People v. Merriman , 60 Cal. 4th 1 ( 2014 )

Filed 8/18/14
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE, )
)
Plaintiff and Respondent, )
) S097363
v. )
)
JUSTIN JAMES MERRIMAN, )
) Ventura County
Defendant and Appellant. ) Super. Ct. No. CR45651
____________________________________)
In 2001, a jury convicted defendant Justin James Merriman of the 1992 first
degree murder of Katrina Montgomery (Pen. Code, § 187, subd. (a)),1 and found
true the special circumstance allegations that the murder was committed while
defendant was engaged in the commission of rape and oral copulation (§ 190.2,
subd. (a)(17)(C), (F)), and the allegation that defendant personally used a deadly
weapon (former § 12022, subd. (b)). The jury also convicted defendant of
numerous noncapital crimes that occurred subsequent to the murder, including
multiple counts of sexual assault and witness dissuasion. After a penalty phase
trial, the jury returned a verdict of death. Defendant moved for new trial (§ 1181),
and for modification of his sentence to life without the possibility of parole
(§ 190.4, subd. (e)). The trial court denied the motions and sentenced him to
1 All further undesignated statutory references are to the Penal Code unless
otherwise indicated.
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death.2 Defendant‟s appeal is automatic. (§ 1239, subd. (b).) For the reasons that
follow, we affirm the judgment.
I. FACTS
A. Guilt Phase Evidence
1. Prosecution evidence
a. The murder of Katrina Montgomery
i. Katrina’s prior interactions with defendant
Katrina Montgomery was 16 years old in 1989 when she started dating
Mitch Sutton, one of the founding members of a Ventura County White
supremacist gang called the Skin Head Dogs (SHD). Defendant, who also was
16 years of age at that time, belonged to the same gang. Sutton brought Katrina
2 The court also imposed an aggregate determinate sentence of 63 years,
which was comprised of the following consecutive sentences: The upper term of
eight years for the forcible rape of Robyn G. (§ 261, subd. (a)(2)), six years for the
forcible oral copulation of Robyn G. (§ 288, subd. (c)), six years for the
penetration of Robyn G. with a foreign object (§ 289, subd. (a)), two upper terms
of eight years each for the forcible rape of Billie B. on two separate occasions
(§ 261, subd. (c)(2)), one year for the attempted forcible oral copulation of Billie
B. (§§ 664/288, subd. (c)), an upper term totaling 13 years for personal use of a
firearm while resisting an executive officer (§ 69, former § 12022.5, subd. (a)(1)),
the mid-term of 16 months for assault on a police officer (§ 245, subd. (c)), eight
months for vandalism (former § 594, subd. (b)(2)), three years for each of three
counts of dissuading a witness by force or threat (§ 136.1, subd. (c)), and two
years for solicitation to dissuade a witness (§ 653f, subd. (a)). Pursuant to section
654, the court stayed sentence for two counts of brandishing a deadly weapon to
avoid arrest (§ 417.8), a second count of resisting an executive officer (§ 69), and
conspiracy to dissuade a witness by force or threat, including the gang
enhancement associated with that count (§§ 182, subd. (a)(1), 186.22,
subd. (b)(1)). The court also imposed a sentence of 365 days in county jail, with
credit for actual time served, for a single count of being under the influence of a
controlled substance in violation of Health and Safety Code section 11550.
2
along to SHD parties where she socialized with his fellow gang members and their
wives and girlfriends, some of whom became close friends of hers.
Early in Sutton and Katrina‟s relationship, Sutton enlisted in the Army and
was sent to Germany. Katrina moved to Germany for eight months to be with
him. By the time Sutton returned from his three years of military service in 1992,
he and Katrina had broken up. On his return, Sutton officially left the SHD gang,
although he continued his friendship with defendant.
Meanwhile, between January 1990 and March 1992, Katrina was
corresponding and conversing with defendant on a regular basis while he was in
custody in various juvenile detention facilities and in state prison. In the
beginning, defendant‟s letters encouraged Katrina to “stick with Mitch Sutton”
and he asked her to send him “neat pictures” of herself. Defendant‟s subsequent
letters, which sometimes referenced Katrina‟s breakup with Sutton, became more
sexually explicit and suggested that he believed Katrina was interested in him. In
August 1990, for example, defendant mentioned a photograph Katrina had sent
him, indicating that he wanted to “play with the toys you must have under that
buttercup suit.” In February 1991, defendant asked Katrina for more photographs
“of . . . your fine self so I have something to drool over and think about touching
up one great day.” In March 1992, defendant wrote to Katrina after she had
visited him in prison, saying, “You know deep down inside you enjoy[ed] saying I
was „your‟ long lost locked-up hubby . . . , secret lover but a real faithful
„boyfriend.‟ ” In the same letter, defendant apologized for his “crude and rude but
lewd sexual gestures” during the visit and promised next time “not to toss you
around like one of them blowup sex dolls.”
From these and defendant‟s other letters it can be inferred that Katrina had
sent defendant revealing photographs of herself, and that she had had physical
contact with him during a prison visit. But the correspondence also suggested that
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Katrina had told defendant she wanted to resume her relationship with Mitch
Sutton and that she considered defendant only a friend, which were sentiments that
appeared to both confuse and anger defendant. For example, in March 1992,
shortly before defendant‟s release, he wrote “That shit about you need me for a
friend just doesn‟t cut the mustard anymore,” and he confronted Katrina with his
suspicion that she was using him as a means of reigniting her relationship with
Sutton. Defendant also wrote, “I‟m burned on the third-grade game and the
thought of you trying some kind of snake move like there‟s something you have to
gain but you‟re stringing me along until the time‟s right . . . .” Later in the same
letter, defendant stated, “I feel you‟re up to something and it sure isn‟t me . . . .”
Notwithstanding Katrina‟s apparent indications to defendant that she
wanted to be his friend but not his girlfriend, defendant had communicated to
others that he was interested in her. According to Scott Porcho, one of SHD‟s
founding members and a friend of both defendant and Katrina, it was common
knowledge that defendant expected Katrina would be his girlfriend after he was
released from prison. Porcho‟s wife at that time, Apryl, also was close to Katrina.
She knew that Katrina did not want to become involved with defendant.
Shortly after defendant‟s release from prison in the spring of 1992, Katrina
and a high school girlfriend drove in Katrina‟s truck to defendant‟s home in
Ventura where he lived with his mother and sister. Katrina went inside to
“straighten out a couple of things” while her friend waited in the truck. When
Katrina returned, there were red marks around her neck and she said defendant had
attacked her. Katrina told her friend she was angry not only with defendant but
also with defendant‟s mother, who had witnessed the attack and done nothing to
help her.
The prosecutor presented evidence at trial that Katrina disclosed to her
mother another incident at defendant‟s house after his release from prison, during
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which he had forced himself upon her. According to Mrs. Montgomery, Katrina
told her that she had gone to visit defendant in Ventura. When the evening grew
late, defendant‟s mother suggested to Katrina that she spend the night in their
guest room so that she would not have to drive all the way back to Los Angeles at
that hour. Katrina accepted the offer and went to sleep in the guest room but later
was awakened by defendant, who had climbed into bed with her and was making
sexual advances. When Katrina asked defendant to stop, he refused, saying, “You
know you want it.” Katrina told defendant she felt sick and needed to use the
bathroom, and he did not prevent her from getting up. Instead of going to the
bathroom, however, Katrina ran from the house, got into her truck, and drove
away. When defendant realized she had fled, he went outside and ran after her,
yelling angrily.
The prosecutor also presented evidence that the incident in the guest room
was not the first time defendant had forced himself upon an unwilling partner.
According to a former girlfriend, Corie G., when defendant was 15 years old, he
held her against her will in the camper shell of a pickup truck until she submitted
to having sexual intercourse with him, notwithstanding that she repeatedly
attempted to leave and was yelling for her friends to help her.
ii. Thanksgiving weekend party at the Porchos’ house
Katrina spent most of Thanksgiving Day, Thursday, November 26, 1992,
celebrating the holiday with her family in Los Angeles. She had plans to meet her
parents at another family gathering in Santa Barbara on Saturday, November 28.
On Friday, Katrina left Los Angeles in her truck in the late afternoon to attend a
party at the North Oxnard home of SHD gang leader Porcho and his wife Apryl.
The couple had invited Katrina to spend the night at their house and she had
brought with her an overnight bag in addition to her purse. According to Porcho,
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Katrina was one of the first guests to arrive at the gathering, and she was already
drunk at that time.
Several other SHD gang members and their wives and girlfriends attended
the party. SHD founding member Mike Wozny drove his girlfriend and defendant
to the gathering. Although defendant was not one of SHD‟s original members, he
had joined the gang when he was 14 years old and, now 20 years of age, was
considered a leader by the gang‟s younger members.
Other partygoers included members of a White supremacist gang called the
Sylmar Peckerwood Family (Sylmar Family). The SHD and the Sylmar Family
were on very friendly terms, almost “like one gang.” Five of the Sylmar Family
members who came to the party, including Ryan Bush and 16-year-old Larry
Nicassio, lived together at a “crash pad” in Sylmar.
Partygoers gave varying accounts regarding the interactions between
defendant and Katrina during the evening. Bush saw them hugging and joking
with each other about sexual matters. Nicassio noticed that they were initially
interacting normally but after a while seemed not to be getting along. According
to Porcho, however, defendant did not want Katrina anywhere near him and had
asked Porcho to keep her away. Defendant twice summoned Porcho to remove
Katrina from his side. On one of those occasions, Katrina had her arm around
defendant.
Everyone at the party was drinking alcohol throughout the evening, and
some of the partygoers smoked marijuana and ingested LSD. Several arguments
and fights occurred. For example, defendant kicked a member of the Sylmar
Family in the face for disrespecting their hosts by shaking a can of beer and
spraying its contents around the kitchen.
At one point during the evening, defendant said to Nicassio that he wanted
Nicassio to “get” Katrina and handed Nicassio a steak knife. Nicassio did not take
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defendant seriously and put the knife down. According to Nicassio, it was
common for the older gang members to tease and play jokes on him because he
was only 16 years old. A short time later, however, defendant approached
Nicassio and again gave him a steak knife, saying, “We‟re gonna get that bitch,
you‟re gonna do it.” Nicassio again discarded the knife, thinking defendant had to
be joking. Defendant handed Nicassio a knife a third time while they were
socializing with others in the kitchen and said, “This is the last one I‟m giving
you. You‟re gonna do it.” Nicassio was standing behind Katrina as she sat on a
kitchen chair. To make everyone laugh, he held the knife above Katrina‟s head
and imitated the lead character in the movie Psycho. He then discarded the knife.
During the party, Bush saw defendant and Katrina playfully wrestling on
the bed in one of the bedrooms. At first, Katrina was giggling when defendant
tried to kiss her. However, when Katrina told defendant to stop and he did not,
she became angry and started yelling.
The party‟s hosts heard someone yelling from one of the bedrooms, but
their recollections differed as to what they observed on entering the room.
According to Porcho, Katrina was lying on the bed holding her stomach as if she
had been punched, with defendant and a number of Sylmar Family gang members
standing around her in a semicircle. By contrast, Apryl saw Katrina with only
defendant, Bush, and Nicassio, one of whom was holding her down on the bed.
Apryl walked Katrina out of the room and took her car keys away from her
because she was intoxicated. Porcho and defendant exchanged words over the
incident.
After Apryl left the house to drive a partygoer home, defendant and Porcho
went to the kitchen and continued their argument about the incident in the
bedroom. It was now sometime after 2:00 a.m., and most of the partygoers had
departed. According to Nicassio, when defendant said something to the effect that
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he was going to “get” Katrina, Porcho responded, “You‟re not going to fuckin‟
touch her,” and then hit defendant on the forehead with a 40-ounce beer bottle.
Defendant‟s head was bleeding from the blow.
Katrina went with defendant to the bathroom where she attended to his
wound, cleaning it with a washcloth. Nicassio was standing in the doorway.
While Katrina stood over the sink washing up, defendant pointed to her and
silently mouthed to Nicassio, “Are you gonna do it or what? Do it now, do it
now.” As before, Nicassio thought defendant was joking with him. Later, as
defendant stood outside the house smoking a cigarette, he told Bush, “I‟m gonna
get that bitch.”
When Apryl returned after driving a guest home and saw the mess
defendant and her husband had made during the fight, she decided everyone had to
leave. By now, all of the other Sylmar Family members had left the party, and
defendant offered to let Bush and Nicassio sleep at his house. Apryl drove the
three of them to that destination around dawn. Defendant led Nicassio and Bush
upstairs to his bedroom and gave them some blankets, directing them to sleep on
the floor at the foot of his bed.
While Apryl was driving back to her home after having dropped off the
group at defendant‟s house, defendant called the Porcho residence and asked to
speak with Katrina. Porcho refused to put her on the line. By the time Apryl
returned home, however, Katrina had showered, changed her clothes, and was
talking with defendant on the telephone. Apryl picked up another receiver, told
defendant to go to sleep, and ended the call. Defendant called back again asking
for Katrina but Apryl hung up on him, which upset and angered Katrina. A heated
argument ensued, during which Katrina demanded the keys to her truck and
angrily accused Apryl and Porcho of trying to run her life. After Katrina and
Apryl had argued for about 30 minutes, Apryl retrieved Katrina‟s keys and threw
8
them at her. When Katrina left, Apryl believed she was driving home to Los
Angeles.
Instead, Katrina went to defendant‟s house. According to Nicassio, when
Katrina came into defendant‟s bedroom, she no longer seemed intoxicated.
Shortly after her arrival, she left the room to change into shorts and a T-shirt, and
then got into bed with defendant.
Soon after Katrina got into bed, defendant straddled Katrina‟s shoulders
with his knees, saying, “Come on, just do it.” Katrina protested, “No, not with
them in the room.” Defendant responded by smacking her in the face, saying “Do
it now, bitch.”
As Katrina was being forced to orally copulate defendant, neither Bush nor
Nicassio intervened. Nor did they try to stop defendant when he got on top of
Katrina and had intercourse with her, notwithstanding that she was pleading with
him to stop because he was hurting her. As Nicassio explained, he failed to do or
say anything because he had seen defendant hurt people and he was afraid of him.
Bush likewise feared defendant. Bush looked away as the sexual assault moved
closer to the side of the bed. When he finally spoke up, he asked defendant,
“What are you doing, man?” Defendant replied, “What the fuck do you think I‟m
doing.”
At one point, defendant left the bed to get a bottle of lotion. After rubbing
some of its contents on Katrina‟s genital area, he resumed intercourse with her.
Katrina had started crying and continued begging defendant to stop, saying she did
not want to get pregnant. Defendant got off of her, said, “There, you‟re pregnant,”
and again forced her to orally copulate him, this time pushing her onto the floor at
the foot of the bed while he dangled his legs over the edge. With Katrina now
positioned only a couple of feet away from where Nicassio and Bush were lying
9
down, defendant asked them, “Hey, do you guys want some of this?” Nicassio
just looked away, and Bush responded, “No.”
A short time later, Katrina asked to use the bathroom. Defendant refused,
telling her to use a trash can that he put down on the ground next to her. Nicassio
finally spoke up to defendant, saying, “Why don‟t you just let her use the
restroom?” When defendant said, “All right,” Katrina retrieved her overnight bag
and put her clothes back on. As she was kneeling down to tie her shoes, defendant
came up alongside her with a knife and stabbed her in the throat.
Katrina was crying and holding her throat, begging defendant not to hurt
her, but the attack continued. Defendant covered Katrina with a blanket. He then
retrieved a crescent wrench from his top drawer, kneeled down next to her, and
struck a blow to her head. Katrina was still alive but her breathing became loud
and labored. Defendant then grabbed her by the hair, asking, “Where is her
jugular?” He then slit her throat with a knife, and rolled up the body in blankets
and sleeping bags. At one point during the assault, while Katrina was still alive,
Nicassio suggested they call an ambulance and assured defendant that Katrina
would not say anything because “she‟s afraid of you.” Defendant disagreed,
saying, “She‟ll rat on me.” Instead, he called the Porcho house, asking if Katrina
was there and telling them that she had never showed up at his place.
After the killing, when Nicassio and Bush started pacing around the room
in a panic, defendant angrily warned them, “You better not fuckin‟ say nothing”
and “You‟re part of this, too.” Nicassio tried to leave, promising not to say
anything. But defendant stood between him and the bedroom door holding the
knife and told him, “No, you‟re not fuckin‟ going anywhere.” He then ordered
Nicassio and Bush to help him cover up the crimes, telling them that “[i]f we got
caught . . . we would all go down.” Fearing retaliation from defendant and other
10
gang members if they refused, Nicassio and Bush complied with defendant‟s
command.
At defendant‟s direction, Nicassio drove Katrina‟s truck to the front of the
house. Meanwhile, Bush helped defendant carry the body downstairs and loaded
it into the back of the truck, along with a plastic sack in which defendant had
placed the knife and wrench and some of Katrina‟s belongings. According to
Bush, blood was soaking through the blankets and he was concerned that
defendant‟s mother had seen them as they passed by her bedroom door on their
way downstairs. Defendant assured Bush she would not say anything. Indeed,
defendant‟s mother did more than simply remain silent. When defendant‟s sister
awoke that morning, she saw their mother on her hands and knees using rags and a
pot of water to clean up blood that had stained the carpeting at the top of the stairs.
Defendant‟s sister helped with the cleanup until the stain was no longer noticeable.
Defendant, Bush, and Nicassio then set about to further cover up the
crimes. Nicassio drove the group in Katrina‟s truck to Sylmar where he and Bush
lived. Bush collected rags and paint thinner and borrowed a housemate‟s truck,
signaling Nicassio and defendant to follow him. The two trucks ultimately
stopped near a ravine in a rural area called Sunset Farms, where defendant and
Bush unloaded the body, dragged it into a drainage pipe, and covered it with
tumbleweeds and garbage. A short time later, they drove to Angeles Crest
National Forest and stopped at a turnout. Bush, Nicassio, and possibly defendant
wiped down the inside of Katrina‟s truck with the paint thinner to destroy
fingerprints. Bush then tried to roll the truck off the side of a hill, but he was
unsuccessful and they simply abandoned it there, close to the turnout.
The group left the scene in the truck that Bush had borrowed from his
housemate and went to a restaurant to discuss the situation. Pursuant to their plan,
Nicassio and Bush drove defendant back to his house. While en route, defendant
11
again warned each of them to “keep your fuckin‟ mouth shut.” Nicassio and Bush
then headed back to Sylmar. Before arriving home, they pulled off the freeway in
an industrial area and threw the sack containing the murder weapons and Katrina‟s
overnight bag into a dumpster.
Two nights later, also according to plan, Bush and Nicassio returned to the
site where Katrina‟s body had been hidden in a drainage pipe so they could bury
her. Bush dug a grave about five feet from the pipe while Nicassio kept a lookout.
Meanwhile, Katrina‟s mother was becoming increasingly concerned
regarding her daughter‟s whereabouts. Around 2:00 p.m. on the day after the
Porchos‟ party, she received a call from Apryl asking if Katrina was at home.
Several hours later, she received a call from the Los Angeles County Sheriff‟s
Department informing her that Katrina‟s truck had been discovered over an
embankment. Katrina‟s purse was inside the cab and there was blood on the
outside of the tailgate and in the truck bed. Later testing showed that the blood
belonged to the biological child of Mr. and Mrs. Montgomery.
Mrs. Montgomery immediately started calling family and Katrina‟s friends,
but none knew where she was. When Mrs. Montgomery spoke with Apryl again,
Apryl told Mrs. Montgomery that she had not seen Katrina for several months.
But, in a telephone call to defendant about five hours later, Mrs. Montgomery
learned that defendant had seen Katrina the night after Thanksgiving at the
Porchos‟ home. When Mrs. Montgomery confronted Apryl with that information
a short time later, Apryl admitted that Katrina had been at her house. Thereafter,
the Montgomery family reported Katrina missing and continued to search for her,
distributing flyers and organizing search parties in Ventura and Oxnard and in the
area where her truck had been abandoned.
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iii. The investigation
A police investigation into Katrina‟s disappearance began almost
immediately, and defendant was a suspect from the outset. When Porcho told
fellow SHD gang member Wozny that Katrina‟s truck had been found abandoned,
Wozny left an anonymous message on a tip hotline saying defendant, Nicassio,
and Bush might be responsible for Katrina‟s disappearance. When detectives
interviewed Porcho and Apryl at their home on the Sunday after Thanksgiving,
they learned that Porcho had gotten into a fight with defendant for slapping
Katrina. When one of the detectives asked Porcho who he should speak to in the
event something had happened to Katrina, Porcho replied, “I‟d talk to [defendant].
That‟s all I‟m gonna say.”
Detectives went to defendant‟s home the same day. A carpet cleaner who
was finishing a job there told them he had been called to the house to clean a
coffee spill. Defendant‟s mother was nervous and asked the detectives whether
they had a search warrant to go inside her home. They did not. She eventually
told the detectives that defendant had come home early Saturday morning with “a
couple of boys.”
Over the course of the next several days, investigators were able to obtain
more information about some of the incidents at the Porchos‟ party, including
Katrina‟s argument with Apryl and her abrupt departure from the house. But
efforts by defendant‟s mother, sister, and fellow SHD gang members to protect
defendant by being untruthful, coupled with the SHD and Sylmar Family gangs‟
strict code prohibiting interactions with law enforcement, hampered the
investigation, which languished for years.
This is not to say that no one was discussing the crimes. The day after the
killing, Bush told his older brother, also a gang member, what had happened to
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Katrina. A short time later, Nicassio gave his girlfriend at the time a detailed
account of the incident.
Defendant also spoke about the crimes. Days after the killing, when
defendant‟s sister became aware of Katrina‟s disappearance and confronted
defendant about the blood on the stairs, defendant told her that she did not want to
know and said he was “going to hell for sure for the things he had done.” About
one month later, defendant mentioned to Nicassio that his mother had cleaned up
the blood in his bedroom, and he sought confirmation from Nicassio that the body
had been disposed of.
As the investigation continued, some witnesses started coming forward. For
example, in July 1997, almost five years after Katrina‟s disappearance, Apryl
(now divorced and remarried) met with the prosecutor, telling him that defendant
had called Katrina at the Porcho home and asked her to come to his house after the
party. However, most of the individuals with knowledge of the case, including
Nicassio and Bush, were not forthright with investigators, and many witnesses
brought before a grand jury in November 1997 either failed to disclose what they
knew or lied outright. No indictment was handed down.
The prosecution‟s case quickly revived, however, when Bush, Nicassio, and
Nicassio‟s girlfriend were arrested in November 1997, one or two days after the
first grand jury had failed to hand down an indictment. Nicassio‟s girlfriend
disclosed what Nicassio had told her about the crimes, and she urged Nicassio to
likewise cooperate with the prosecution, which he eventually agreed to do in
exchange for being permitted to plead guilty to voluntary manslaughter. The
prosecutor later received a letter from an incarcerated SHD gang member, John
Crecelius, revealing a statement defendant had made while they were both out of
custody. According to Crecelius, defendant expressed concern on learning that his
“crime partner” or “buddy” had been arrested for raping and murdering “a girl that
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he had cut five years ago.” Defendant also had told Crecelius that he expected the
police would be coming for him soon because he had a strong feeling that Nicassio
“was gonna tell on him.”
The wall of silence that had protected defendant for many years finally
started to give way. In exchange for an early release from prison, SHD gang
member Wozny, who had called in the anonymous tip, agreed to drive defendant
around in a “bait car” equipped with recording devices that would be monitored by
police. While in the bait car in December 1997, defendant solicited Wozny‟s help
in “getting” the Porchos‟ housemate, John Cundiff, who defendant believed had
“ratted on him.” When Wozny and defendant discussed the investigation into
Katrina‟s disappearance, defendant said he “wasn‟t going to do any more time
behind this.” Wozny attempted a second encounter with defendant in the bait car
that same night, but decided to abandon the operation after defendant, with a box
cutter in hand, patted Wozny down to see if he was wearing a wire.
Also in December 1997, a prison inmate named Christopher Bowen disclosed
to investigators that defendant had asked him during casual conversation four
years earlier whether he had ever killed anyone. When Bowen said no and asked
defendant the same question, defendant told him that he had killed “Trina.”
Defendant made other admissions after being taken into custody in January
1998 following an hours-long standoff with law enforcement that led to a number
of separate criminal charges. (See post, pt. I.A.1.c.) All of the incriminating
statements were elicited surreptitiously and many, but not all, of them were the
result of agreements between the prosecution and inmates who agreed to cooperate
in exchange for leniency in their cases.
For example, in April 1998, SHD gang member John Crecelius wore a wire
while in a courthouse holding cell with defendant. Crecelius told defendant that
Nicassio, who was his county jail cellmate, was going to reveal defendant‟s
15
involvement in the killing. Defendant told Crecelius to beat up Nicassio, and
expressed the opinion that Nicassio should take the “rap” for the crimes because
he was the youngest.
Also in April 1998, Kristin S. agreed to help the prosecution in its case
against defendant. Specifically, she agreed to wear a wire during conversations
with defendant‟s mother, who wanted Kristin to request a jail visit with Nicassio at
the same time defendant‟s mother was visiting defendant so that defendant and
Nicassio would be placed in the same visiting area and could communicate with
one another. Kristin had spoken with investigators after defendant‟s arrest, telling
them that in December 1997, the month before he was apprehended, defendant
told her the police were looking for him and that he was afraid he would go to jail
and “never get out.” Kristin also described an incident that had occurred several
years earlier in which defendant, who was wearing only boxer shorts at the time,
cornered her in a bathroom while he injected drugs and tried to get her to touch his
penis. When Kristin got upset and tried to leave, defendant told her to shut her
mouth or he would “slit [her] throat like Trina‟s.” Kristin decided to assist the
prosecution because she hated defendant for what she claimed he had done to her
on an even earlier occasion. According to Kristin, sometime in 1994 or 1995,
defendant had kept her in his bedroom for two days without food and forced her to
masturbate him for hours at a time while he looked at pornographic magazines.
As previously mentioned, Nicassio ultimately entered into an agreement with
the prosecution, the terms of which required him to provide information regarding
the location of Katrina‟s body and assist in the ongoing investigation. Pursuant to
that agreement, Nicassio directed investigators to the area where he and Bush
buried the body, but the land had since been developed and they were unable to
locate the body.
16
Nicassio also wore a wire while interacting with defendant on a number of
occasions. During the first operation, Nicassio showed defendant an altered
version of a probation report that falsely stated Nicassio had refused to cooperate
with the prosecution. Defendant told Nicassio to continue refusing to cooperate
and he wondered aloud who was talking to the prosecution.
Many of the recorded conversations between Nicassio and defendant
occurred in the jail visiting area, interactions that were made possible by Kristin‟s
participation in defendant‟s mother‟s plan to have Nicassio and defendant brought
to the same visiting area at the same time. During the first such visit, Nicassio
asked defendant what would happen if Katrina‟s body was found. Defendant
replied, “If that shit comes out of the ground, we‟ll both be going to L.A. County.”
On another occasion, defendant suggested how they could explain away the
presence of blood on the stairs in his house and in the bed of Katrina‟s truck.
The prosecution stepped up its efforts at obtaining an express admission from
defendant by instructing Nicassio to inform defendant that Katrina‟s body had
been discovered. During the visiting room conversation in which Nicassio gave
defendant the “bad news,” defendant reacted by saying, “Oh, God,” but then told
Nicassio not to believe the “trick.” If the body had been found, defendant said,
“they would already have charged me.” Defendant repeatedly told Nicassio that
he had to keep his mouth shut about Katrina being at defendant‟s house, even
when talking to his lawyer or at trial if he was charged, because it would drag
defendant and Bush into it. As defendant walked away upset and agitated, he
turned back and approached Nicassio with his fists clenched as if to hit him, then
turned again and left the visiting area.
Defendant changed his approach with Nicassio several months later, after
learning that his sister told investigators that she helped clean up blood on the
stairs of their home and that she had been subpoenaed to testify at another grand
17
jury proceeding. Noting that his mother was “involved in this” because of the
blood on the stairs, defendant told Nicassio that if Nicassio were to cooperate with
police he should say that Katrina was taken out of the house over the “bridge,” that
is, the catwalk leading directly to defendant‟s room, and not through the main
house. When Nicassio protested that he “didn‟t do this and [didn‟t] want to do the
time for it,” defendant told him to stop saying that. Defendant also told Nicassio
that his claim of innocence was making him nervous, and he reminded Nicassio
that Nicassio had “fuckin‟ hauled that shit.”
From the time of his arrest in November 1997, Bush had steadfastly refused
to cooperate with the prosecution. Around the time defendant was indicted for
murder in January 1999, however, he decided he no longer wanted to “live a lie”
and agreed to tell investigators what he knew about Katrina‟s disappearance. Like
Nicassio, he led investigators to the general location where Katrina‟s body was
buried.
b. Sexual assaults subsequent to the murder
Defendant was prosecuted for a number of other crimes in addition to the
murder of Katrina, including sexual assault offenses against two other women.
The following evidence was presented not only to support these sexual offense
counts but also the murder charge and the rape-murder and oral-copulation-murder
special-circumstance allegations.
i. Robyn G.
Robyn G. and defendant used drugs together and sometimes engaged in sex.
One day between November 1994 and January 1995, defendant joined Robyn and
others on the boat where Robyn was living at the time. Robyn and her visitors
were injecting heroin and methamphetamine. At one point, Robyn went
downstairs with defendant into one of the boat‟s bedrooms to use more drugs.
18
After doing so, they started kissing. Defendant then started acting aggressively
toward Robyn. When Robyn became uncomfortable and said she wanted to leave,
defendant ordered her to sit on the bed. He then demanded that she orally copulate
him. Robyn complied because she was afraid. Defendant was flipping through
pornographic magazines while Robyn orally copulated him. When she tried to
leave, defendant called her names and kept her from getting off the bed.
Defendant continued the sexual assault by forcing Robyn to have intercourse.
At various points, Robyn communicated to defendant that she was sore and
wanted to stop. Defendant responded by ordering her to assume different
positions. At one point, defendant inserted a gun into Robyn‟s vagina. The
assault lasted two to three hours.
ii. Billie B.
Billie B. met defendant in 1988 when she started attending parties with her
SHD gang member boyfriend, Mitch Buley. In March 1992, Billie became
involved with defendant after having split up with Buley, who was then in prison.
Defendant directed her not to tell Buley about them, or he would hit her.
Billie did not attend the Thanksgiving weekend party at the Porchos‟ house
in 1992, but she learned from her roommate, SHD gang member Wozny, that
Katrina was missing. When defendant called Billie‟s house on the Sunday after
Thanksgiving, Wozny told him to “ „not call here anymore.‟ ” Defendant showed
up at the door a short time later anyway, but Wozny would not let him inside.
During this period of time, Billie‟s relationship with defendant started to
change, and defendant became increasingly violent and sexually abusive. For
example, sometime after August 1994, defendant was visiting Billie in her new
apartment when her former roommate Wozny knocked on the door. Not wanting
Wozny to know he was alone with Billie, defendant pushed Billie down in the
19
hallway to prevent her from letting Wozny inside. Defendant then forced Billie to
orally copulate and masturbate him by repeatedly pushing her head and hand to his
penis. Defendant would not let Billie stop or leave. The incident lasted for
several hours.
Billie‟s subsequent sexual encounters with defendant sometimes started as
consensual vaginal intercourse but then turned assaultive. An incident occurring
at defendant‟s house between August 1994 and January 1995 is illustrative. After
Billie and defendant had engaged in intercourse for four or five hours, Billie
indicated that she wanted to stop because she was tired and he was hurting her. At
one point she had started to bleed from her vagina. Defendant told her to shut up
and continued having intercourse. When he was finished, he became enraged at
Billie for having stained his sheets with blood and he dragged her downstairs by
the hair to the laundry room, calling her “sick” and angrily disparaging her.
On many occasions, defendant‟s sexual assaults on Billie were not preceded
by consensual sex. Between August 1994 and January 1995, for example,
defendant repeatedly forced Billie to orally copulate and masturbate him for hours
at a time while he looked at pornography, using the weight of his body to keep her
from leaving. In an incident that occurred in Billie‟s apartment in October or
November 1995, defendant kept pulling Billie onto the couch and shoving her
hand into his pants. The more she resisted, the angrier defendant became. Billie
finally left the couch and went into her daughter‟s room, trying to avoid defendant.
Defendant followed her in and tackled her to the floor. Billie explained that she
did not resist having intercourse with defendant at that time because she was afraid
he would hurt her if she did not submit.
20
c. Standoff with police prior to arrest
As previously mentioned, defendant was taken into custody in January 1998
after an hours-long standoff with police officers. The prosecution charged
defendant with a number of crimes in connection with the incident and also argued
at trial that defendant‟s conduct evidenced his consciousness of guilt concerning
the murder count. The evidence showed the following events.
Ventura County Sheriff‟s Deputies Howe and Miller were patrolling a high-
crime area in Ventura on a Friday night in late January 1998 when they saw two
bicyclists, defendant and a woman, riding without headlights. The officers pulled
alongside them, but defendant ignored Officer Howe‟s repeated orders to stop and
continued riding. Officer Howe gave chase on foot, joined by other officers who
were nearby at the time. Meanwhile Officer Miller pursued defendant in the patrol
car, cornering him several blocks away. He grabbed defendant by the shirt, but
defendant managed to break free.
Other officers joined the chase on foot through a vacant lot, shouting for
defendant to stop. They stopped abruptly after one officer yelled, “Gun!”
Defendant had pulled out a revolver and was holding it to his own head, warning
the officers not to approach or he would shoot himself.
Defendant then walked to a chain link fence in a dark area of the lot, climbed
over it, and ran to the house where his girlfriend at the time, Annette Berryhill,
was visiting Janette Trembley-Rail. When defendant arrived, he banged on the
door, yelling, “Let me in, you gotta let me in, there‟s cops all over the place.”
Berryhill opened the door but did not remove the chain lock. Defendant pushed
his way inside and ran into Trembley-Rail‟s bedroom. When Trembley-Rail told
defendant to leave, he refused and ordered her to do as he said. According to
Trembley-Rail, defendant was agitated, hostile, and out of breath, and he was
holding a triangular object under a dish towel. Meanwhile, police had surrounded
21
the house. When defendant began to barricade himself inside by moving furniture,
throwing items around, and trying to cover the windows with blankets, a SWAT
team was called in.
Berryhill distracted defendant long enough for the other people in the house,
including Trembley-Rail, Trembley-Rail‟s daughter, and young granddaughter, to
escape. Berryhill eventually exited the house through a window, telling officers at
a command post that defendant was not coming out.
After a seven-hour standoff, when all attempts at communicating with
defendant had failed, officers fired tear gas into the house. At one point,
defendant opened the front door coughing and gagging, took a breath of fresh air,
and went back inside. He did the same thing a second time.
Defendant ultimately left the house blinded by the tear gas and crawling on
all fours. Officers approached defendant to apprehend him, but saw that he was
holding a knife and slashing with it in the direction of any noise. The officers
backed off and tried to subdue defendant with rubber bullets, which did not have
the desired effect. Defendant then crawled back into house.
A short time later, defendant opened the door and emerged from the house
again. As before, officers approached to place him under arrest. This time,
defendant did not have a knife in his hand. When he reached into his jacket as if
to retrieve a weapon, however, one of the officers aimed his rifle, then ordered
defendant to lie down. Defendant refused, but he was grabbed from behind and
dragged to the ground. It took six officers to finally subdue him.
When Trembley-Rail returned to her home, she found the entire residence
“knee deep in debris” and estimated the total damage to be $55,000. Defendant‟s
mother told Trembley-Rail‟s daughter she would pay for the damage if she agreed
not to cooperate with police.
22
Defendant was transported to the hospital. During the ride, he was
unresponsive and seemed to be under the influence. A blood test showed the
presence of amphetamines.
After defendant‟s arrest, he stated in a telephone call to an acquaintance that
“If [he] would have known it was for a headlight, [he] wouldn‟t have ran like
that.”
During the defense closing argument, defense counsel conceded defendant‟s
guilt of all charges stemming from the incident that culminated in his arrest.
d. Postindictment witness intimidation
Defendant was first indicted for Katrina‟s murder and other crimes in January
1999. For the next two months, he undertook efforts to silence the fellow gang
members and others who were cooperating with the prosecution. At trial, which
was held in 2001, the prosecutor pointed to these efforts not only as evidence of
defendant‟s culpability for the murder but also as the basis for five later-added
counts charging defendant with various witness dissuasion crimes, including
conspiracy to intimidate witnesses and soliciting the intimidation of witnesses.
(§§ 136.1, subd. (c), 182, subd. (a)(1)/136.1, subd. (c), 653f, subd. (a)/136.1, subd.
(c).) During the defense closing argument, defense counsel conceded defendant‟s
guilt of these charges.
In connection with the conspiracy count, the prosecution presented expert
testimony to support an associated sentencing allegation that the conspiracy
occurred to benefit and in association with a criminal street gang. (See § 186.22,
subd. (b).) One gang expert testified about the SHD gang‟s violent White
supremacist philosophy and the criminal convictions of its members, which
included attempted murder and assault with a deadly weapon. The expert also
described the SHD gang‟s structure and strict code of noncooperation with law
23
enforcement, explaining to the jury how the gang had been heavily influenced by
prison culture in this regard. According to the expert, it was incumbent upon all
members of the SHD gang to take appropriate action against any person who had
been identified as a “rat,” so long as there was “paperwork,” that is, written proof
of cooperation with the police. As one SHD gang member later explained to the
jury, gang members were obligated to do “anything necessary” to silence a
member of their own gang who had been labeled a rat.
The prosecution also presented extensive evidence regarding defendant‟s
postindictment activities in jail, where, by using his mother and others as go-
betweens, he managed to collect information regarding the individuals he believed
were “ratting” on him and disseminate that information to fellow gang members.
Some of this evidence consisted of letters written by defendant that were seized by
jail and prison authorities. In one letter to an SHD gang member incarcerated at
Wasco State Prison, defendant told the recipient that Bowen and Nicassio had
worn a wire on him. Another letter from defendant that was found during a search
of an SHD member‟s cell in the same prison stated that fellow SHD member Mike
Wozny had taken him for a drive in a “wired cop car” prior to his arrest. In a letter
to an SHD gang member being housed at Tehachapi State Prison defendant gave a
“rundown on all these wire-wearing pieces of poop,” naming Wozny, Bowen,
Crecelius, and Kristin S.
The paperwork on the individuals who were cooperating with the prosecution
came from the transcripts of the grand jury proceeding at which the informants
had testified. A search of defendant‟s mother‟s home disclosed nine volumes of
the grand jury transcripts, one of which had been unbound. Several pages of that
volume were found during a search of defendant‟s cell conducted on the same
day. Also recovered from defendant‟s cell, hidden inside the mattress, were two
pieces of paper listing the names, telephone numbers, and addresses of victims and
24
witnesses. On the pages of defendant‟s Bible were written, in tiny print, the
names of a couple who were close to Nicassio and Bush.
Defendant‟s communications with his fellow gang members were facilitated
by a number of persons outside the jail, including defendant‟s mother, sister,
girlfriend, and various women who associated with the SHD gang. The
facilitators‟ roles ranged from simply mailing or dropping off defendant‟s letters
under their own names to “spreading the word” regarding the informants. For
example, after learning from defendant that Nicassio was wearing a wire to help
investigators, Jennifer Wepplo communicated that information directly to an
incarcerated SHD gang member, who later wrote to her saying someone had to
“get” Nicassio from inside the jail. According to Samantha Medina, another SHD
associate who agreed to assist defendant in his efforts to dissuade witnesses,
defendant directed her to inform an SHD gang member named Spencer Arnold
that Arnold‟s girlfriend, Kristin S., was wearing a wire.3
Defendant also sought the involvement of John Hernandez, a member of the
Ventura Avenue Gangsters who was housed in the cell next to defendant at the
county jail. Defendant gave Hernandez grand jury transcripts so that Hernandez
could “pass the word around” that Crecelius was “ratting” on him. Defendant also
supplied Hernandez with a handwritten list of the individuals who had cooperated
3 Prior to the start of defendant‟s trial, defendant‟s mother and two women
who helped facilitate his communications outside the jail were convicted of
conspiring with defendant to intimidate witnesses. (§§ 182, subd. (a)(1), 136,
subd. (c).) In defendant‟s mother‟s case, she voluntarily pleaded guilty midtrial
after being shown a transcript of the recorded conversation between defendant and
Nicassio in which defendant instructed Nicassio to tell police that Katrina‟s body
went over the catwalk, rather than through the house, so as not to implicate his
mother.
25
with the prosecution, asking Hernandez to circulate the names of the “rats” among
his “homeboys” for the purpose of having them assaulted. The list named
Nicassio, Crecelius, Bowen, Wozny, and Kristin. Nicassio was shown the list by
an inmate who said Hernandez had given it to him.
Defendant‟s list was successfully circulated pursuant to his request. When
Nicassio was in the courtroom‟s holding tank during the grand jury proceedings
that led to additional charges of witness intimidation, Nicassio was approached by
a member of the Nazi Low Riders prison gang who told him there was paperwork
on him throughout the state‟s prison system and that he would be killed for being a
rat. After defendant‟s efforts to dissuade witnesses had come to light, however,
the prosecution made arrangements with officials at the Ventura County Jail and
the California Department of Corrections for the protection of its incarcerated
witnesses and no harm ever came to Nicassio or any of the other individuals who
defendant sought to silence.
2. Defense case
The defense called defendant‟s mother to testify regarding her recollection of
events at her home around the time of Katrina‟s disappearance. She remembered
nothing remarkable about the Friday after Thanksgiving Day 1992, only that
defendant came home late at night. She heard male voices coming from
defendant‟s room, but no female voice, and no unusual sounds like someone
running, banging, yelling, or moving about the house.
According to defendant‟s mother, when she arose around 7:00 a.m. on
Saturday, she noticed blood on the stairwell, which she and her daughter cleaned.
When she asked defendant a short time later who had gotten hurt, he pointed to his
forehead and said, “Check this out,” then returned to his room, ignoring her advice
26
that he needed stitches. She testified further that she saw no one with defendant
that morning and that defendant did not leave the house prior to 1:30 p.m.
Defendant‟s mother confirmed that she had arranged to have the carpets in
her home cleaned by an SHD gang member on the Sunday after Thanksgiving, the
day after she had discovered the blood on the stairwell. She explained, however,
that the cleaning had nothing to do with the blood. Rather, it was because
defendant‟s room “smelled like a brewery.”
Contrary to the testimony of the officers who came to defendant‟s home to
investigate Katrina‟s disappearance, defendant‟s mother told the jury that she did
allow the officers inside and that they went upstairs to defendant‟s room. She also
denied having unbound the grand jury transcripts to copy pages. According to
defendant‟s mother, at the time she was in possession of the transcripts,
defendant‟s girlfriend was living with her and had access to the room where she
kept those documents.
Defendant‟s mother testified that, to her knowledge, defendant was not in a
gang. As she saw it, defendant‟s association with his friends was “just some kids
having a good time.”
As previously mentioned, defense counsel conceded defendant‟s guilt of the
charges stemming from the incident that culminated in defendant‟s arrest and the
counts involving defendant‟s postindictment attempts to dissuade the witnesses
who had testified against him at the grand jury proceeding.
3. Prosecution’s rebuttal
The prosecution attempted to cast doubt upon defendant‟s mother‟s version
of events with evidence of her contradictory statements and outright lies. For
example, one of the officers who interviewed defendant‟s mother three years after
Katrina‟s disappearance testified that she said the stains on the carpet were from a
27
coffee spill, which was consistent with a statement by the carpet cleaner the day
after Katrina had disappeared. The prosecutor also presented a tape-recorded
conversation between defendant‟s sister and a friend in which defendant‟s sister
said that when she told her mother she was planning to talk with the prosecutor,
defendant‟s mother “got really scared” and admitted she was “living a lie.”
B. Penalty Phase Evidence
1. Prosecution’s case in aggravation
The prosecution‟s case in aggravation focused primarily on the circumstances
of the murder and the other crimes of which defendant had been convicted at the
guilt phase. In addition, members of Katrina‟s family testified regarding their
memories of her and how her disappearance and death have affected them. The
prosecution also presented evidence of eight prior incidents involving defendant‟s
use of violence or threat of violence, some of which occurred while defendant was
incarcerated at a juvenile detention facility and the Ventura County jail.
a. Victim impact evidence
Katrina‟s parents, brother, sister, and grandmother testified briefly about their
close relationships with Katrina and described how difficult it was to cope, first,
with her disappearance and later, with the realization that she was no longer alive.
According to Katrina‟s parents, when Katrina returned home after living in
Germany for six months with her then-boyfriend Sutton, she had “turned a
corner,” and started working full time and attending community college classes to
pursue a career in photography. Midway through examining Katrina‟s mother, the
prosecutor played a videotape of Katrina dancing and socializing at a large family
celebration. When questioning resumed, Katrina‟s mother said she always feels
Katrina‟s absence when the family gathers for such events.
28
b. Prior convictions and incidents involving force or violence
Much of the prosecution‟s evidence regarding defendant‟s commission of
other crimes involving violence or threat of violence was introduced pursuant to
stipulations read aloud by the prosecutor, which the court instructed the jury to
accept as proved.
The parties stipulated that in July 1989, defendant pushed a 32-inch wooden
club into the face of a man who was engaged in a verbal altercation with
defendant‟s friend, threatening to “beat the crap outta [him].” In connection with
this incident, defendant was charged with battery and brandishing a deadly
weapon. (§§ 242, 417, subd. (a).)
The prosecution presented evidence of another incident that occurred about
one year later in June 1990 while defendant was a ward at the California Youth
Authority facility in Paso Robles. A high school teacher at that institution, Ronald
Jenkins, testified that defendant entered his classroom embroiled in a racially
charged argument with an African -American ward. At Jenkins‟s directive, the
wards took their seats and quieted down. At one point, defendant got up and
walked toward the bathroom. After passing the ward with whom he had argued,
defendant picked up a chair and used it to hit him in the back of his neck and
shoulder blades. A brief fight ensued and lasted until security officers arrived on
the scene.
The parties stipulated to defendant‟s involvement in another altercation at the
same California Youth Authority facility one month later. In July 1990, defendant
and two other wards were instructed to come out of their cells and walk to the
showers. Defendant started walking toward the showers, then turned and struck
the escorting officer multiple times with closed fists. As the officer and his
coworkers attempted to wrestle defendant to the ground, defendant continued to
swing and kick at the officer until he was finally subdued and handcuffed. Two
29
officers were injured in the incident. Defendant said he attacked the officer
because he believed he had been talking about his sister and mother, but the
officer denied having done so. In connection with the attack, defendant pleaded
guilty to forcibly resisting or deterring an officer in the performance of his duties
and was sentenced to a two-year prison term. (§ 69.)
The parties further stipulated that on Halloween night in 1992, Deputy Van
Davis responded to a party noise complaint and observed defendant and a
companion getting up off an individual who was lying on the ground motionless
and bleeding heavily from his lip. For that attack, defendant was convicted of
misdemeanor battery. (§ 242.)
The prosecutor presented the testimony of two witnesses who described a
June 1994 attack on an inmate in the Ventura County jail. June Marsh, a service
technician at the jail, testified that while monitoring the inmates‟ movements
within the jail, she observed defendant and two other inmates who were ready to
return from the visiting area to their cells. Pursuant to jail procedure, the inmates
were instructed to line up in single file with their hands behind their backs. Marsh
testified that as she activated the door for them to reenter the cell area, defendant
turned around with a raised fist and punched the inmate behind him in the face,
knocking him to the ground. According to Marsh, defendant kneeled down and
continued striking the inmate in the face for several seconds, then walked away as
officers began responding to the scene. Marsh heard someone ask defendant,
“What did you do that for?” She recalled that defendant replied, “Because I felt
like it.”
The prosecution also presented testimony by Sergeant Steven Cargile, the
first officer to arrive on the scene of the June 1994 incident in the Ventura County
jail. Cargile testified that when he reached the inmate who had been attacked, he
overheard the inmate say to defendant, “ „That was a sucker punch, a real P.C.
30
[protective custody] move.‟ ” Defendant responded, “ „I got you though, didn‟t
I?‟ ”
Another stipulation by the parties concerned defendant‟s April 1996 attack
on a patron at a Santa Barbara nightclub. The victim, a university student, was
drunk and dancing in the “mosh pit.” After being assaulted by skinheads, he left
that area of the club and went to the lobby. Defendant approached and punched
him in the nose, causing him to fall to the floor. Defendant‟s companion, fellow
SHD gang member Scott Porcho, continued the attack by kicking the victim two
or three times in the head. The victim suffered a broken nose, a swollen eye, and
lacerations that required 13 stitches. In connection with this incident, defendant
pleaded guilty to misdemeanor battery causing serious bodily injury. (§ 243,
subd. (d).)
The parties further stipulated that during a January 1998 vehicle stop, an
officer discovered a small knife concealed in defendant‟s front pants pocket while
he searched defendant incident to arrest. The knife was admitted into evidence.
The prosecution concluded its case in aggravation with a final stipulation by
the parties regarding another incident at the Ventura County jail in November
1998. On that occasion, defendant intervened in a fight between a Black inmate
and a White inmate, punching the Black inmate in the face. When another Black
inmate told defendant he should stay out of it, defendant became angry and
slammed the inmate against a jail cell door, knocking him down. Before officers
responding to the fight finally subdued defendant, he broke away from a control
hold and attempted to kick the inmate he had knocked down.
31
2. Defense case in mitigation
a. Defendant’s upbringing and background
The defense evidence regarding defendant‟s background emphasized his
tumultuous home life, his drug use, fighting, and problems in school beginning at
an early age, and his frequent bouts of detention and incarceration that were
triggered mostly by his use of drugs.
In brief testimony, defendant‟s grandmother told the jury that defendant‟s
biological parents separated when he was two years old, and that she had been his
primary caregiver off and on for his entire life. She indicated that defendant had
always showed her love and respect, and she did not believe he committed the
crimes of which he was convicted.
One of the defense experts, Psychologist Patrick Barker, Ph.D., offered the
jury a more detailed account of defendant‟s upbringing and family history, which
was based on information provided by defendant, his mother, and his adoptive
father. Dr. Barker reported that defendant‟s biological father was an alcoholic
with whom defendant had little contact after his parents‟ separation. When
defendant was five years old, his mother married Dean Merriman, who adopted
defendant. Merriman likewise was an alcoholic and their home life was “badly
dysfunctional.” When Merriman drank heavily, which was often, he would swear
angrily, break things, and abuse defendant‟s mother both verbally and physically.
He often belittled defendant in front of others.
According to Dr. Barker, defendant‟s mother and adoptive father frequently
separated and reunited. When they were together, they fought much of the time.
When they separated, defendant would move back and forth between the two
households.
Defendant told Dr. Barker that to escape the domestic turmoil and instability,
he often stayed away from home. At one friend‟s house, drugs were readily
32
accessible and, at age 11, defendant first began using methamphetamine. When
defendant was in his very early teens, he was sexually molested by a woman at a
neighbor‟s house.
Dr. Barker learned that beginning at an early age defendant had significant
problems in school that were attributable to his behavior, truancy, and learning
difficulties. He attended seven or eight different schools before eventually
dropping out of high school. Defendant‟s mother indicated that because defendant
did so poorly in school, he became the class clown. Starting in his early teens,
defendant also established a reputation as a good fighter, and prided himself for
not backing down in a fight. Dr. Barker‟s review of defendant‟s school records
confirmed that defendant‟s behavior, attendance, and performance were poor.
One notation indicated that in seventh grade defendant was caught distributing
methamphetamine to his fellow students.
Defendant‟s association with skinheads and White supremacists likewise
began in his early teens. Defendant‟s mother believed defendant‟s involvement
was influenced by Dean Merriman‟s racist views and an incident at a party in
which defendant was stabbed by an African-American.
Defendant‟s criminal history began at 15 years old when he was arrested for
vandalism and other crimes and sent to a medium-security juvenile detention
facility. Defendant spent most of the next 10 years as an inmate at one sort of
facility or another, including prison. Most of his detentions were due to his use of
drugs. Defendant told Dr. Barker that he was addicted to heroin and abused other
drugs and alcohol.
b. Expert testimony
The defense sought to show through its mental health experts that defendant
suffered from severe brain damage that was further exacerbated by his drug and
33
alcohol use, and that these serious mental deficits were the source of a long history
of unplanned, impulsive behavior, including Katrina‟s murder.
Dr. Barker, a forensic and clinical psychologist, testified regarding the results
of various tests he administered to defendant to assess his intelligence and pinpoint
dysfunctional personality traits. The Wechsler Adult Intelligence Scale, a test of
intellectual functioning, showed defendant in the low-average range with a full-
scale I.Q. of 88. The results of two tests for traits associated with personality
disorders, the Minnesota Multiphasic Personality Inventory (MMPI) and the
Millon Clinical Multiaxial Inventory, showed defendant matched a profile type
that is thought to be among “the most difficult of the criminal offenders.” Such
individuals are distrustful, anti-social, cold, unstable, impressionable, hostile, and
violent. His answers on the tests further reflected alcoholic and addictive
tendencies.
Dr. Barker emphasized that individuals with defendant‟s personality profile
have poor impulse control, that they act without thinking about the consequences,
and blame others when they do get in trouble rather than learn the consequences of
their actions. He further believed that, in defendant‟s case, his heavy drug and
alcohol use would make him even more impulsive and unpredictable. But even
were defendant not under the influence, Dr. Barker observed, he likely would
exhibit a lack of respect for others and fail to take into account the consequences
of his behavior. On cross-examination, Dr. Barker indicated that he had diagnosed
defendant as suffering from antisocial personality disorder.
Jordan Witt, Ph.D., a clinical psychologist with special training in clinical
neuropsychology, conducted a neuropsychological examination of defendant in
order to assess brain function. His conclusion was that defendant suffered from
brain damage, which manifested itself in his very limited concentration span, his
extreme hyperactivity, his inability to properly manage, process, and react to
34
information, and his memory difficulties. According to Dr. Witt, defendant‟s
brain dysfunction leads him to operate in “kind of a living present,” in which he
acts at the whim of his impulses and emotions and cannot rely upon his memories,
reasoning, and information from his environment. Based on defendant‟s
background and the results of the battery of neurological tests, Dr. Witt believed
that defendant‟s brain was defective at birth and that his dysfunction worsened
over time due to both his substance abuse and multiple head injuries with loss of
consciousness from fights and an automobile accident. Like Dr. Barker, Dr. Witt
diagnosed defendant as suffering from antisocial personality disorder, as well as
other cognitive and learning disorders and polysubstance dependence.
The defense bolstered its argument that defendant suffered from brain
damage by calling Psychiatrist Joseph Wu, M.D., who testified in relevant part
regarding the results of a positron emission tomography (PET) brain imaging scan
that was performed on defendant in August 2000, prior to the start of the guilt
phase of trial. Dr. Wu found brain activity abnormalities in defendant‟s scan that
showed “more likely than not” that defendant had brain damage or disease in the
frontal lobe of the brain, the area involved with functions such as the regulation of
aggression, long-term planning, and judgment. His findings from the PET scan
were corroborated by the results of an earlier electroencephalogram, which
showed abnormal electrical activity in the brain‟s frontal and temporal lobes, and
which was consistent with possibility of complex partial seizures, a type of
epilepsy that can affect certain emotions and movements.
The defense called its fourth expert, Forensic Psychologist Leonard
Diamond, Ph.D., to show that the adverse effects of defendant‟s serious brain
deficits had begun to manifest themselves many years before the capital crime.
Dr. Diamond first evaluated defendant in 1989 while he was in a juvenile
detention facility. According to Dr. Diamond‟s report, defendant operated on pure
35
impulse, had no insight into his own actions, and, because he lacked an orderly
progression of thoughts, was incapable of planning. After reevaluating defendant
prior to the penalty phase, Dr. Diamond concluded that defendant had changed
little during the intervening 12 years. For example, Dr. Diamond explained,
defendant still showed no insight into his behavior and still had extremely poor
judgment and very poor social skills. Also like before, defendant was impulsive,
“acts out,” and “blows up easily.” According to Dr. Diamond, defendant is not
psychotic but rather has “a long-standing characterological disorder” that was
formed early in life, possibly at the time of birth. During cross-examination,
Dr. Diamond agreed with the prosecutor that it would be fair to characterize
defendant as having antisocial personality disorder and to describe him as a very
violent, dangerous, and vengeful person.
3. Prosecution rebuttal evidence
The prosecutor presented two mental health expert witnesses who disagreed
with the methodology and findings of the defense experts.
Neuropsychologist Ari Kalechstein, Ph.D., evaluated Dr. Witt‟s opinion that
defendant suffered from brain damage. In his view, Dr. Witt had an inadequate
basis on which to reach that conclusion and committed errors in scoring the
diagnostic tests. Dr. Kalechstein observed, for example, that Dr. Witt failed to
take into account that defendant was in solitary confinement for the two months
prior to their meeting, which, in Dr. Kalechstein‟s view, would have explained
why defendant seemed distracted and inattentive. According to Dr. Kalechstein,
Dr. Witt also failed to properly explore the possibility that defendant was faking
his mental status, and should either have obtained information from sources other
than defendant‟s self-reporting or be tested for malingering. When
36
Dr. Kalechstein scored some of the neurological tests administered by Dr. Witt,
the results showed defendant in the average range of neurological functioning.
Neurologist Helen Mayberg, Ph.D., offered her views regarding Dr. Wu‟s
opinion that the results of PET brain imaging showed an abnormality in
defendant‟s frontal lobes. Dr. Mayberg‟s critique began with concerns regarding
the normal control group against which Dr. Wu had compared defendant‟s scan.
For example, as she pointed out, normal brains have tremendous variability in
shape and activity levels, and she was unsure whether defendant‟s scan actually
deviated from an expected pattern. She also faulted Dr. Wu for not taking into
account defendant‟s medical conditions and medications, which, she explained,
can suppress activity in the frontal lobe.
Dr. Mayberg was leery of Dr. Wu‟s opinion that defendant had brain damage
in the frontal lobe because, in her view, a diagnosis cannot be made solely on the
basis of a PET scan. She believed furthermore that any lower activity in
defendant‟s frontal lobes could be explained by an infolding of the brain at that
spot, and she saw no pattern of variations in defendant‟s brain activity or anything
appearing on the scan itself that could be considered abnormal.
4. Defendant’s statement
In an unexpected development just before closing arguments, the court
reopened the penalty phase trial so that defendant could testify on his own behalf.
Defendant took the witness stand against counsel‟s advice, and read from a
rambling statement he had prepared the previous night in which he offered his
sympathies to Katrina‟s family, complained that his counsel did not provide him
with a proper defense, and maintained his innocence. Before testifying, defendant
indicated to the court he was aware he likely would be subject to cross-
37
examination. After reading his statement, defendant nonetheless refused to answer
any of the prosecutor‟s questions.
II. DISCUSSION
A. Refusal to Sever Trial on Murder Charge from Trial on Other
Counts
Defendant contends that the trial court abused its discretion by refusing to
sever trial on the murder count from trial on the rest of the charges against him.
He furthermore asserts that a joint trial on all charges deprived him of his
constitutional rights to a fair trial and due process. His claim fails, as we explain
below.
1. Background
The Ventura County Grand Jury initially returned a 25-count indictment
against defendant in January 1999. The first three counts of the indictment
charged defendant with special circumstance murder and other crimes involving
Katrina.4 Seven of the counts charged defendant with sexually assaulting
Robyn G. and Billie B., and nine counts arose from the circumstances surrounding
defendant‟s attempt to evade arrest in January 1998. The remaining six counts
charged defendant with being under the influence of a controlled substance at
various times predating his arrest. A second, five-count indictment was issued in
May 1999, about four months after the first indictment, charging defendant with
crimes stemming from various attempts to dissuade witnesses who had testified at
the earlier grand jury proceeding.
4 The murder count included rape-murder and oral-copulation-murder
special-circumstance allegations. The first indictment also charged defendant with
the substantive crimes of rape and forcible oral copulation in connection with the
same incident, but those counts were dismissed before trial on the prosecutor‟s
motion because the six-year statute of limitations had expired.
38
In 2000, the court conducted a hearing on two pretrial motions by the parties,
granting the prosecution‟s motion to consolidate the two indictments, and granting
as to certain counts a defense motion to sever trial on the murder charge from trial
on the other charges in the first indictment.5 The court denied the request to sever
the murder count from all other charges, however. In making that determination,
the court found the evidence that supported the charges involving defendant‟s
attempt to evade arrest was cross-admissible to show his consciousness of guilt as
to the murder, and that the evidence underlying the sexual offense charges
involving women other than Katrina appeared to be cross-admissible because
sexual assault was part of the murder case.
2. Statutory requirements for joinder of charges
Section 954 authorizes the joinder of “two or more different offenses
connected together in their commission . . . or two or more different offenses of
the same class of crimes or offenses, under separate counts . . . .” The statute
further provides that “if two or more accusatory pleadings are filed in such cases
in the same court, the court may order them to be consolidated.” (§ 954.)
As a threshold matter, we conclude that the charges in question met the
statutory requirements for joinder. The sexual offense charges were properly
joined with the murder count because they are assaultive crimes against the person
and therefore belong to the same class of crimes. (People v. Maury (2003)
30 Cal. 4th 342, 395; People v. Alvarez (1996) 14 Cal. 4th 155, 188.) The counts
5 The court severed trial on (1) drug- and firearm-possession charges
connected with defendant‟s arrest that required proof of defendant‟s status as a
convicted felon and drug addict and (2) five counts charging defendant with being
under the influence of a controlled substance that were based upon events
unrelated to his arrest. As to these charges, the court found that joinder would
prejudice defendant.
39
involving defendant‟s attempts to evade arrest and to dissuade and intimidate the
witnesses who testified at the grand jury proceeding were connected together in
their commission with the murder count because defendant‟s apparent motive for
resisting arrest and intimidating witnesses was to avoid criminal liability for
Katrina‟s murder. (Cf. People v. Alvarez, supra, at p. 188 [the charged rape was
connected in its commission to the vehicle theft count because the theft may have
been motivated by a desire to avoid arrest for the rape]; People v. Valdez (2004)
32 Cal. 4th 73, 119 [notwithstanding the passage of time, a charge of escape from
custody was connected in its commission to the murder charge because the
apparent motive for the escape was to avoid prosecution for murder].) We observe
that the one count charging defendant with being under the influence of a
controlled substance at the time of his arrest is neither in the same class of crimes
nor connected together in its commission with the murder charge. Because the
drug offense occurred in conjunction with the other crimes stemming from
defendant‟s arrest, however, it was connected together in its commission with
those offenses and therefore properly joined. (See People v. Johnson (1988)
47 Cal. 3d 576, 587 [concluding that joinder of an additional charge connected in
its commission to one of several properly joined counts met the requirements of
§ 954].)
Defendant does not suggest there was any failure in meeting the statutory
requirements for joinder. He points out, however, that a court has discretion to
order severance of charges “in the interests of justice and for good cause shown,”
even when the requirements of section 954 are satisfied. (§ 954.) Defendant
contends that the court abused its discretion by refusing to sever trial on the
murder charge from trial on all other joined counts.
40
3. A court has discretion to order separate trials
The law favors the joinder of counts because such a course of action
promotes efficiency. (Alcala v. Superior Court (2008) 43 Cal. 4th 1205, 1220.)
Nonetheless, as defendant correctly observes, a trial court has discretion to order
that properly joined charges be tried separately. (§ 954; People v. Sapp (2004)
31 Cal. 4th 240, 257-258.) Likewise, although a trial court is authorized to
consolidate two or more accusatory pleadings for trial in an appropriate case, it is
not required to do so. (§ 954; People v. Marlow (2004) 34 Cal. 4th 131, 143.)
In exercising its discretion in this regard, the court weighs “the potential
prejudice of joinder against the state‟s strong interest in the efficiency of a joint
trial. [Citation.]” (People v. Arias (1996) 13 Cal. 4th 92, 126.) To succeed on a
claim that the trial court abused its discretion in denying severance or ordering
consolidation, the defendant must make a “ „clear showing of prejudice‟ ” and
establish that the ruling fell “ „ “ „ “outside the bounds of reason.” ‟ ” ‟ ” (Alcala
v. Superior Court, supra, 43 Cal.4th at p. 1220, italics omitted; accord, People v.
Soper (2009) 45 Cal. 4th 759, 774; People v. Lucky (1988) 45 Cal. 3d 259, 277.)
An appellate court evaluates such claims in light of the showings made and the
facts known by the trial court at the time of the court‟s ruling. (People v. Avila
(2006) 38 Cal. 4th 491, 575; People v. Mendoza (2000) 24 Cal. 4th 130, 161;
People v. Balderas (1985) 41 Cal. 3d 144, 171.)
If the evidence underlying the joined charges would have been cross-
admissible at hypothetical separate trials, “that factor alone is normally sufficient
to dispel any suggestion of prejudice and to justify a trial court‟s refusal to sever
properly joined charges.” (People v. Soper, supra, 45 Cal.4th at p. 775; see also
Alcala v. Superior Court, supra, 43 Cal.4th at p. 1221; People v. Mendoza, supra,
24 Cal.4th at p. 161.) Relevant to our inquiry here, it is sufficient that evidence
supporting the various noncapital crimes would be admissible in a separate murder
41
trial. As this court has explained, “ „two-way‟ cross-admissibility is not required.”
(People v. Zambrano (2007) 41 Cal. 4th 1082, 1129; accord, Alcala v. Superior
Court, supra, at p. 1221.)
As we explain in greater detail below, the evidence known to the court at the
time of its rulings that supported the charges of sexual crimes against Robyn G.
and Billie B., resisting arrest, and the dissuasion of witnesses generally would
have been cross-admissible in a hypothetical separate trial of the murder charge.
Accordingly, defendant fails to make the requisite clear showing of prejudice to
establish that the court abused its discretion in denying severance and ordering
consolidation.
a. Joinder of the sexual assault counts
The initial indictment charged seven sexual assault counts involving victims
other than Katrina: one count each of rape, forcible oral copulation, and
penetration with a foreign object against Robyn G. (§§ 261, subd (a)(2), 288, subd.
(c), 289, subd. (a)), and three counts of rape and one count of attempted forcible
oral copulation against Billie B. (§§ 261, subd. (a)(2), 664/288, subd. (c).)
The charges involving Robyn G. were based upon her testimony at the grand
jury proceeding, which was similar to her testimony at trial. According to
Robyn G., during the course of what had started out as a consensual sexual
encounter in the bedroom of a boat where she was living at the time, defendant
prevented her from leaving, forced her to orally copulate him while he viewed
pornographic magazines, raped her, and put a gun into her vagina.
Billie B.‟s trial testimony likewise tracked her earlier testimony at the grand
jury proceeding. Billie B. described an hours-long incident in which defendant
forced her to orally copulate and masturbate him by repeatedly pushing her head
and hand to his penis. She also recounted a different incident lasting four to five
42
hours that began as a consensual encounter. On that occasion, defendant ignored
Billie‟s protestations that she was tired and that the intercourse was hurting her,
telling her to shut up while he continued having intercourse. On still another
occasion, Billie related, defendant repeatedly pulled her onto the couch with him
and shoved her hand into his pants. He became angry when she resisted. When
Billie eventually got up and went into her daughter‟s room to avoid defendant, he
followed her and tackled her to the floor. As Billie explained, she did not resist
having intercourse with defendant at that time because she was afraid he would
hurt her if she refused.
The grand jury testimony regarding the sexual assaults against Robyn G. and
Billie B. was known to the court at the time of its ruling on the defense motion to
sever. At the hearing on the severance motion, the prosecutor argued that the
evidence supporting the sexual assault counts was cross-admissible in the murder
trial to show common plan or scheme and propensity to commit sexual offenses.
Defense counsel countered that the evidence was inadmissible because its
prejudicial effects substantially outweighed its probative value. The court made
no finding in that regard, noting only that the prosecutor had indicated he intended
to file a motion regarding the admissibility of the sexual assaults evidence. For
purposes of ruling on the severance motion, the court assumed cross-admissibility
and denied severance subject to reconsideration of the issue in light of later
rulings. The court observed, however, that given the statements of Nicassio and
Bush describing the events that occurred in defendant‟s bedroom on the night in
question, sexual assault was part of the murder case.
During a later pretrial hearing at which the court considered the prosecution‟s
offer of proof supporting admission of both charged and uncharged sexual
assaults, the court ruled in relevant part that the evidence underlying the seven
sexual offense charges was cross-admissible as to the special circumstance
43
allegations associated with the murder count. Specifically, the court found that the
evidence regarding the crimes against Robyn G. and Billie B. had distinctive,
unusual, and significant similarities to the sexual assault special circumstances, for
example, the involvement of drugs and alcohol, and victims who were “skinhead
groupies . . . who come back for more no matter how badly they‟re treated.” The
court further found that the probative value of the evidence was “very significant”
and not prejudicial, and that the evidence was therefore admissible both under
Evidence Code section 1101, subdivision (b), and under Evidence Code section
1108. (See Evid. Code, §§ 1101, subd. (b), 1108, 352.) The court did not revisit
its denial of severance at the time of those rulings, and the defense did not
thereafter ask the court to reconsider its earlier ruling.
Defendant argues that the court‟s findings regarding the factual similarities
between the sexual assaults against Robyn G. and Billie B. and the sexual assaults
underlying the murder charge were insufficient to establish cross-admissibility
under Evidence Code section 1101, subdivision (b).6
For her part, the Attorney General argues that similarities in the type of
victims targeted by defendant, in the circumstances surrounding the assaults, and
in the sexual acts defendant forced upon his victims raised reasonable inferences
6 Evidence Code section 1101, subdivision (b) (Evidence Code section
1101(b)) states, “(b) Nothing in this section prohibits the admission of evidence
that a person committed a crime, civil wrong, or other act when relevant to prove
some fact (such as motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake or accident, or whether a defendant in a prosecution
for an unlawful sexual act or attempted unlawful sexual act did not reasonably and
in good faith believe that the victim consented) other than his or her disposition to
commit such an act.”
44
that defendant acted with the requisite intent to force Katrina to orally copulate
him and to rape her before killing her.
We need not resolve the parties‟ debate concerning whether the evidence
supporting the sexual assault crimes was sufficiently similar to the evidence
underlying the murder charge to permit admission under Evidence Code section
1101(b) to prove intent, common plan, or identity in a separate trial on the murder
count. This is because the sexual assaults evidence would have been cross-
admissible pursuant to Evidence Code section 1108 to show defendant‟s
propensity to commit the rape and forcible oral copulation upon which both the
murder charge and the special circumstance allegations were based.
Evidence Code section 1108 provides that “[i]n a criminal action in which
the defendant is accused of a sexual offense, evidence of the defendant‟s
commission of another sexual offense or offenses is not made inadmissible by
Section 1101 if the evidence is not inadmissible pursuant to Section 352.”
Defendant was “accused of a sexual offense” within the meaning of Evidence
Code section 1108 because it was alleged he murdered Katrina during the
commission of rape and forcible oral copulation (Pen. Code, §§ 261, 288a), both
of which are “sexual offenses” as defined by Evidence Code section 1108,
subdivision (d)(1). (Cf. People v. Loy (2011) 52 Cal. 4th 46, 60 [for purposes of
Evid. Code, § 1108, the defendant was “ „accused of a sexual offense‟ ” in a
prosecution for murder during the commission of a lewd and lascivious act on a
child]; People v. Story (2009) 45 Cal. 4th 1282, 1291-1292.)
We are persuaded furthermore that the evidence supporting the sexual assault
crimes that was known to the court at the time of the severance motion would not
have been inadmissible under Evidence Code section 352 in a separate trial on the
murder count. A court deciding whether evidence of one or more sexual offenses
meeting the definitional requirements of Evidence Code section 1108 should
45
nonetheless be excluded pursuant to Evidence Code section 352 undertakes a
careful and specialized inquiry to determine whether the danger of undue
prejudice from the propensity evidence substantially outweighs its probative value.
Specifically, the court weighs factors such as the “nature, relevance, and possible
remoteness [of the evidence], the degree of certainty of its commission and the
likelihood of confusing, misleading, or distracting the jurors from their main
inquiry, its similarity to the charged offense, its likely prejudicial impact on the
jurors, the burden on the defendant in defending against the uncharged offense,
and the availability of less prejudicial alternatives to its outright admission, such
as admitting some but not all of the defendant‟s other sex offenses . . . .” (People
v. Falsetta (1999) 21 Cal. 4th 903, 917 (Falsetta).) Balancing these considerations,
we conclude that the risk of undue prejudice from the sexual assaults evidence
would not have outweighed its probative value were it admitted at a separate trial
on the murder count.
The probative value of the sexual assaults evidence was substantial. First,
the evidence supporting the sexual assault charges involving Robyn G. and
Billie B. was relatively similar to that supporting the murder count. Each of the
victims was an SHD “groupie,” in each incident defendant raped his victim and
forced her to orally copulate him and, in each instance, defendant forcibly
prevented the victim from leaving and ignored her pleas to stop. The sexual
assaults occurred no more than three years after the murder and were therefore not
remote, which further increased their probative value. In addition, the evidence
supporting the sexual assaults was independent of the evidence supporting the
murder; Robyn G. and Billie B. initially described the crimes against them without
any knowledge of the sexual crimes against Katrina. (See Falsetta, supra, 21
Cal.4th at p. 917; People v. Balcom (1994) 7 Cal. 4th 414, 427.)
46
Defendant repeats his contention, previously mentioned, that the factual
similarities between the two sets of charges were insufficient to permit inferences
regarding intent, common plan or scheme, or identity. (See Evid. Code,
§ 1101(b).) Such dissimilarities ordinarily would diminish the probative value of
the proffered sexual assaults evidence. (See People v. Balcom, supra, 7 Cal.4th at
p. 427.) But defendant‟s argument ignores the distinction between admissibility
under Evidence Code section 1101(b), which requires a sufficient degree of
similarity between charged and uncharged offenses, and admissibility under
Evidence Code section 1108, which does not. As we have observed, although lack
of similarity is relevant to the court‟s decision whether to exclude Evidence Code
section 1108 propensity evidence as more prejudicial than probative, that factor is
not dispositive. (People v. Loy, supra, 52 Cal.4th at p. 63.)
If the prejudicial effect of the sexual assaults evidence would substantially
outweigh its probative value in a separate trial on the murder count, it would
defeat cross-admissibility of the evidence. The admission of this evidence would
not have been unduly prejudicial, however. Although the sexual assaults were
demeaning, disturbing, and unsavory, their underlying facts paled in comparison
to the horrendous nature of the murder. The sexual assaults evidence was
considerably less inflammatory than the murder and, therefore, its admission
would not likely have had an unduly prejudicial impact on a jury. (See People v.
Lewis (2009) 46 Cal. 4th 1255, 1287-1288 [evidence of a prior rape was less
inflammatory than the charge that the defendant raped, strangled, and cut the
throat of the murder victim while her children were asleep upstairs].) And
although defendant complains generally that “this sort of evidence” distracted the
jury from its main area of inquiry, he fails to explain why the sexual assaults
evidence would have confused, misled, or otherwise distracted the jurors from
their task of deciding defendant‟s guilt of Katrina‟s murder. We observe in this
47
regard that the testimony of Robyn G. and Billie B. at the grand jury proceeding
was not extensive and its presentation at a separate trial on the murder count
would not have been unduly time consuming.
Finally, defendant emphasizes that at the time of the court‟s ruling he had not
been convicted of the sexual assaults against Robyn G. and Billie B. We agree
that the absence of a conviction would increase the prejudicial impact of the
evidence at a separate trial on the murder count because the jury might be tempted
to convict defendant of murder as punishment for having escaped criminal liability
for subsequent crimes. (See Falsetta, supra, 21 Cal.4th at p. 917; cf. People v.
Balcom, supra, 7 Cal.4th at p. 427.) This circumstance does not tip the balance
against cross-admissibility, however. Just as defendant bears a heavy burden to
overcome the preference for a single trial of properly joined counts, he likewise
faces a presumption favoring the admissibility of sexual offense evidence under
Evidence Code section 1108 to show propensity to commit the charged offense.
(People v. Loy, supra, 52 Cal.4th at p. 62; People v. Soto (1998) 64 Cal. App. 4th
966, 984.)
We conclude that defendant has failed to carry his burden of rebutting the
strong presumption of admissibility of the sexual assault crimes evidence under
Evidence Code section 1108. Because the sexual assaults evidence clearly would
have been cross-admissible in a separate trial on the murder count, that
circumstance alone is sufficient to dispel any potential of prejudice arising from
the joinder of these counts (Alcala v. Superior Court, supra, 43 Cal.4th at
p. 1221), and we find no reason that this rule should not apply here. Accordingly,
we conclude the trial court did not abuse its discretion in refusing to sever trial on
the sexual assault counts from trial on the murder charge.
48
b. Joinder of the resisting arrest counts
The indictment charged defendant with nine crimes in connection with the
incident in late January 1998 in which he fled from officers and then barricaded
himself inside a residence until tear gas forced him outside and he was
apprehended. As relevant here, the charges included two counts of resisting an
executive officer (§ 69), two counts of brandishing a handgun to resist arrest
(§ 417.8), and one count each of assault on a peace officer, felony vandalism, and
being under the influence of a controlled substance. (§ 245, subd. (c), former
§ 594, subd. (b)(2); Health & Saf. Code, § 11550, subd. (a).)
The prosecution made the following offer of proof in opposition to the
defense motion to sever trial on these counts from trial on the murder count. By
late 1997, defendant was aware he was a suspect in Katrina‟s murder. On the
evening of January 30, 1998, officers noticed two individuals, one of whom was
later identified as defendant, riding bicycles without headlights. When they
approached the pair, defendant fled, ignoring the officers‟ order to stop. The
officers gave chase. As they got closer, defendant pulled a gun from his waistband
and threatened to shoot himself. Defendant then jumped a fence and ran to a
nearby home, where he beat on the door and demanded to be let inside. The
occupants complied, but eventually left the house. Meanwhile, defendant
barricaded himself inside. A Ventura County SWAT team was called to the scene
but the standoff continued for hours. After tear gas was deployed, defendant went
out of the house and back inside several times. On one occasion, he crawled on
his hands and knees with a knife in his hand, and slashed at one of the approaching
officers, then retreated into the house. He was apprehended the next time he
emerged when a group of officers managed to tackle and handcuff him. A blood
sample taken from defendant shortly after the incident showed the presence of
methamphetamine. Subsequent to defendant‟s arrest, he told an acquaintance that
49
he felt like a “dumb fuck” for running from the police because he thought he was
being arrested for murder, not for a bicycle infraction.
After hearing extensive argument from the parties, the trial court denied
severance on all but two of the counts arising from the incident. 7 The court
acknowledged the six-year gap between the alleged murder and the events
surrounding defendant‟s arrest. It also acknowledged the defense argument that,
given defendant‟s status as a chronic drug user, gang member, and prison parolee,
he likely fled from the police for reasons other than consciousness of guilt. But
the court found that the prosecution had “plugged those holes” with evidence that
was clearly admissible, and it determined that defendant would not be unduly
prejudiced by the use of that evidence both to prove the separate charges and to
show consciousness of guilt as to the murder.
Evidence that defendant, thinking he was being arrested for murder, fled
from police and resisted arrest by engaging in a dramatic, hours-long standoff
generally would be admissible at a separate trial on the murder charge to show his
consciousness of guilt for killing Katrina. Likewise, evidence of the murder
generally would be cross-admissible in a separate trial on the resisting arrest
charges to help explain the intensity of his efforts to evade police. (See People v.
Arias (1996) 13 Cal. 4th 92, 127-128 [evidence the defendant kidnapped and
robbed one victim would be cross-admissible in a separate trial for the robbery
murder of a gas station clerk that occurred 13 days earlier because the defendant‟s
need for money and transportation to avoid arrest for the murder showed his
7 The indictment charged two additional counts in connection with this
incident — possession of a firearm by a narcotic addict and felon in possession of
a firearm (former § 12021, subd. (a)(1)). The court granted the severance motion
as to those counts.
50
consciousness of guilt; evidence of the murder in turn would be admissible in the
kidnapping-robbery trial to show motive]; see also People v. Lewis and Oliver
(2006) 39 Cal. 4th 970, 1027 [evidence that the defendant attempted to avoid arrest
by jumping fences before being apprehended was properly admitted as tending to
show his consciousness of guilt for the capital crimes].) We reject defendant‟s
assertion that the bulk of the evidence of events surrounding his arrest served no
purpose other than to prejudice him.
Defendant repeats the argument advanced by his trial counsel at the hearing
that there were any number of reasons why defendant would have fled the police
other than a consciousness of guilt for Katrina‟s murder. His argument
demonstrates only that the evidence proffered by the prosecution regarding
defendant‟s motive for evading police was disputed by the defense. He points to
no case, and we have located none, suggesting that a finding of cross-admissibility
is an abuse of discretion simply because the defense has challenged the inferences
that may be drawn from the proffered evidence. (See People v. Kraft (2000)
23 Cal. 4th 978, 1032 [upholding the trial court‟s ruling denying severance of 16
murder charges in which evidence relating to one or more of the murders, some of
which was disputed by the defense, was cross-admissible to refute anticipated
defenses].)
Because any inference of prejudice from the joinder was dispelled by the
cross-admissibility of the evidence, the court did not abuse its discretion in
declining to sever trial on the murder count from trial on the charges arising from
incident relating to defendant‟s arrest.
c. Consolidation of the witness dissuasion counts
After defendant was charged with Katrina‟s murder, the sexual assaults on
her and two other victims, and the crimes stemming from the incident relating to
51
his arrest, a second indictment was issued in May 1999 charging defendant with
five counts that involved various attempts to dissuade witnesses who had testified
at the earlier grand jury proceeding. Specifically, defendant was charged with
three counts of dissuading a witness by force or threat, and the solicitation of, and
conspiracy to commit, those crimes. (§§ 136.1, subd. (c), 653f, subd. (a), 182,
subd. (a)(1).) In connection with the conspiracy count, it was alleged that the
crime was committed for the benefit of and in association with a criminal street
gang, for purposes of sentence enhancement under section 186.22, subdivision (b).
The prosecutor later moved to consolidate the two indictments. At a brief
hearing on consolidation that preceded the hearing on the defense severance
motion, defense counsel acknowledged that the evidence of intimidation and
threats would be admissible at trial on the other charges. The trial court granted
the consolidation motion without elaboration, impliedly rejecting defense
counsel‟s argument that consolidation of the two indictments would be unduly
prejudicial to defendant.
We conclude the court did not abuse its discretion in ordering consolidation.
Notably, the victims identified in the second indictment were the witnesses who
testified against defendant in the grand jury proceeding that led to the original 25-
count indictment. Evidence supporting the witness dissuasion charges therefore
generally would have been cross-admissible in a separate trial on all of the charges
in the first indictment to show defendant‟s consciousness of guilt as to those
counts. (See People v. Jenkins (2000) 22 Cal. 4th 900, 948 [evidence that the
defendant solicited someone to kill the robbery victim before he testified against
the defendant at a pending trial on that crime would have been admissible at a
separate trial on conspiracy to murder a detective to prevent his testimony at the
robbery trial]; see also People v. Pinholster (1992) 1 Cal. 4th 865, 945 [evidence
that defendant threatened to kill a witness if he testified was properly admitted at
52
trial to show his consciousness of guilt]; People v. Hannon (1977) 19 Cal. 3d 588,
599.)
On appeal, defendant again acknowledges that evidence of his attempts to
dissuade witnesses from testifying was relevant to show his consciousness of guilt
as to the murder count. He asserts, however, that the inference of prejudice was
not dispelled by the cross-admissibility of the evidence because of the voluminous
amount of highly inflammatory evidence relating to his gang membership and
White supremacist views, his obscene and vulgar writings, his “Mansonesque”
psychosexual power over young women, and his perverse relationship with his
mother that was admitted to prove the witness dissuasion counts and the associated
gang enhancement.
In these respects, defendant‟s argument is based on evidence developed later
at trial, not on the facts known to the trial court at the time it ruled on the motion
to consolidate the indictments. Although the points he raises are relevant to the
question whether consolidation of the charges and denial of severance resulted in
gross unfairness in violation of his right to due process (see post, pt. II.A.4), these
argument have no bearing on the question whether the court‟s ruling on the motion
to consolidate was an abuse of discretion. (People v. Mendoza, supra, 24 Cal.4th
at p. 162, fn. 3 [an appellate court reviews the trial court‟s ruling on a motion to
consolidate charges in light of the facts then known to the court].)
4. Constitutionality of trial on the joined charges
Even when we conclude, as we do here, that the trial court acted well within
its discretion in denying severance or consolidating charges, we must further
inquire whether events after the court‟s ruling demonstrate that joinder actually
resulted in “gross unfairness” amounting to a denial of defendant‟s constitutional
right to fair trial or due process of law. (People v. Rogers (2006) 39 Cal. 4th 826,
53
851; People v. Mendoza, supra, 24 Cal.4th at p. 162; People v. Bean (1988) 46
Cal. 3d 919, 940.) Our review of the trial record in the case discloses there was no
gross unfairness.
Defendant does not dispute that the evidence regarding the sexual assaults
against Robyn G. and Billie B. known to the court when it ruled the evidence
admissible with regard to the murder count differed little from the evidence
actually presented at trial. He argues, however, that the presentation of this
evidence under Evidence Code section 1108 to show his propensity to commit
sexual crimes created a “fundamentally unfair paradigm” that unconstitutionally
prejudiced him in the eyes of the jury.
We previously have upheld the constitutionality of Evidence Code section
1108 against a similar challenge and find no persuasive reason to revisit our
conclusion. (Falsetta, supra, 21 Cal.4th at pp. 916-922; see also People v. Fitch
(1997) 55 Cal. App. 4th 172, 180-184.) The record shows the trial court carefully
weighed the probative value of the sexual assaults evidence against its potential
prejudicial effect before allowing its admission in connection with the murder
count and the associated special circumstances, and defendant does not suggest the
court failed to undertake the requisite inquiry. The due process clause does not
require more. (Falsetta, supra, at pp. 917-918.) We observe furthermore that
because the sexual offenses against Robyn G. and Billie B. were charged, rather
than uncharged crimes, there was no risk that the jury would have found defendant
guilty of murder to punish him for escaping criminal liability for the other sexual
offenses. (See People v. Balcom, supra, 7 Cal.4th at p. 427; People v. Bean,
supra, 46 Cal.3d at p. 939.) The joinder of the murder charge with the sexual
offense counts did not render defendant‟s trial grossly unfair.
Defendant argues more generally that the result of the court‟s refusal to sever
the trial on the murder count from trial on all other counts was a trial in which the
54
“jury‟s view of the actual evidence of the capital crime was hopelessly entangled
with evidence of defendant‟s character.” For example, defendant argues, joinder
permitted the admission of evidence of his “bizarre and scary behavior” while
attempting to evade arrest, as well as evidence of the vulgar, antisocial, and
frightening beliefs he embraced by virtue of his membership in a White
supremacist gang. According to defendant, the “sheer amount of evidence that
was extraneous and fundamentally irrelevant” to the murder charge “had
everything to do with the jury‟s willingness to convict defendant of it.”
We disagree with defendant that the evidence supporting the sexual offenses,
resisting arrest, and witness dissuasion counts was extraneous and irrelevant to the
murder count. Rather, for the reasons previously discussed, all three groups of
crimes were bound up with proving defendant‟s guilt of the murder and the
evidence developed at trial was properly admitted for that purpose. For example,
the evidence regarding the SHD gang explained the code of silence, which tended
to show why the two eyewitnesses did not report the murder to law enforcement
until years after the incident. Nor was the evidence of guilt of the murder count
substantially weaker than the evidence supporting defendant‟s guilt of the other
crimes so as to render his trial grossly unfair. (People v. Soper, supra, 45 Cal.4th
at p. 784; People v. Jenkins, supra, 22 Cal.4th at p. 949.) All of the crimes were
proved by strong, direct evidence, which included testimony either by
eyewitnesses or the victims themselves.
To support his claim of a constitutional violation, defendant points to
numerous items of evidence that were not before the court at the time of its
severance ruling, specifically, his jailhouse letters to fellow gang members and
female “gang groupies,” as the trial court described them. Defendant argues that
this evidence so inflamed the jury as to render his trial grossly unfair. We have
reviewed the complained-of evidence and find that the bulk of it is easily
55
dismissed as flip and adolescent rants and ramblings. Furthermore, defendant‟s
suggestive drawings and use of profanity and vulgarity, although distasteful,
would not have unduly inflamed the jury. As one prosecution witness explained
during cross-examination, letters from inmates commonly contained crude sexual
references. Moreover, given the jurors‟ knowledge that the SHD was a White
power, male-dominated gang, they likely would not have been surprised or
shocked by defendant‟s drawings of swastikas and expressions of admiration for
Adolf Hitler, his racist, anti-Semitic, and homophobic remarks, or his demeaning
characterizations of women.
Two items of evidence cited by defendant warrant further discussion. The
first exhibit is a jailhouse letter from defendant to an unknown inmate that
includes a vulgar and unsavory poem describing anal intercourse. The other
exhibit is a letter from defendant to a fellow gang member containing a
reprehensible, demeaning poem mocking African Americans. We observe,
however, that although these exhibits were admitted into evidence, the text of the
poems was neither read to nor summarized for the jury.
Defendant did not ask the court to redact the complained-of exhibits to
remove the offensive material before they were placed into evidence. But even if
the letters should have been redacted, their admission did not render defendant‟s
trial grossly unfair. The facts of the murder far overshadowed any evidence of
defendant‟s vulgar and racist musings, and defendant‟s guilt of that charge was
supported by strong evidence, including detailed testimony by the two
eyewitnesses. Although the evidence of defendant‟s jailhouse letters was not
insubstantial, neither was it pervasive.
Pointing to the prosecutor‟s closing argument, which urged the jury to
consider the various sexual crimes against the different victims as “not just one
evil act [but as] all the evil together,” defendant argues finally that the jury could
56
not reasonably have been expected to “compartmentalize the evidence” so as to
decide each count individually on the evidence presented. (People v. Soper,
supra, 45 Cal.4th at p. 784.) The record does not support his assertion. The
prosecutor‟s point was that were the jury to find defendant committed rape and
forcible oral copulation against some of the victims, it could infer that defendant
had a disposition to commit, and likely did commit, all of the charged sexual
offenses, an argument he was entitled to make. (Evid. Code, § 1108.) The record
shows moreover that the jury was instructed on the elements of each of the
charged crimes, told that “each count charges a distinct crime,” and directed to
“decide each count separately.” (CALJIC No. 17.02.) Absent some showing to
the contrary, we presume the jury followed the court‟s instructions. (People v.
Yeoman (2003) 31 Cal. 4th 93, 139.) No such showing was made here.
In resolving a claim that joinder resulted in gross unfairness in violation of a
defendant‟s right to a fair trial and due process, we have observed that a judgment
will be reversed on this ground only if it is “reasonably probable that the jury was
influenced [by the joinder] in its verdict of guilt.” (People v. Bean, supra,
46 Cal.3d at p. 940.) For all the reasons explained above, we conclude there was
no reasonable probability that the joinder of counts tainted the jury‟s verdicts in
this case.
B. Excusal of Two Prospective Jurors for Cause
Defendant asserts that his death sentence must be reversed because the trial
court erred when it granted the prosecution‟s challenges for cause against two
prospective jurors, depriving him of his rights under the Sixth, Eighth, and
57
Fourteenth Amendments to the United States Constitution.8 We conclude that the
trial court did not err in excusing the prospective jurors in question.
The governing principles are well settled. Under the state and federal
Constitutions, a criminal defendant is entitled to trial by an impartial jury. (People
v. Clark, supra, 52 Cal.4th at p. 895; Wainwright v. Witt (1985) 469 U.S. 412,
424.) “ „To achieve the constitutional imperative of impartiality [in a capital
case], the law permits a prospective juror to be challenged for cause only if his or
her views in favor of or against capital punishment “would „prevent or
substantially impair the performance of his [or her] duties as a juror‟ ” in
accordance with the court‟s instructions and the juror‟s oath.‟ [Citations.]”
(People v. Martinez (2009) 47 Cal. 4th 399, 425.) As this court has explained,
absent a finding of substantial impairment, a trial court may not exclude a person
from jury service in a capital case based upon his or her “personal conscientious
objection to the death penalty.” (People v. Stewart (2004) 33 Cal. 4th 425, 446.)
8 Defendant invokes these and other state and federal constitutional
provisions in nearly every other claim raised in this appeal. “In most instances,
insofar as defendant raised the issue at all in the trial court, he failed explicitly to
make some or all of the constitutional arguments he now advances. In each
instance, unless otherwise indicated, it appears that either (1) the appellate claim is
of a kind . . . that required no trial court action by the defendant to preserve it, or
(2) the new arguments do not invoke facts or legal standards different from those
the trial court itself was asked to apply, but merely assert that the trial court‟s act
or omission, insofar as wrong for the reasons actually presented to that court, had
the additional legal consequence of violating the Constitution. To that extent,
defendant‟s new constitutional arguments are not forfeited on appeal. [Citations.]”
(People v. Boyer (2006) 38 Cal. 4th 412, 441, fn. 17, italics omitted.)
“ „ “No separate constitutional discussion is required, or provided, when rejection
of a claim on the merits necessarily leads to rejection of any constitutional theory
or „gloss‟ raised for the first time here.” [Citations.]‟ ” (People v. Clark (2011) 52
Cal. 4th 856, 890, fn. 7.)
58
“During voir dire, jurors commonly supply conflicting or equivocal
responses to questions directed at their potential bias or incapacity to serve. When
such conflicting or equivocal answers are given, the trial court, through its
observation of the juror‟s demeanor as well as through its evaluation of the juror‟s
verbal responses is best suited to reach a conclusion regarding the juror‟s actual
state of mind. [Citation.] „ “ „There is no requirement that a prospective juror‟s
bias against the death penalty be proven with unmistakable clarity. [Citations.]
Rather, it is sufficient that the trial judge is left with the definite impression that a
prospective juror would be unable to faithfully and impartially apply the law in the
case before the juror.‟ ” ‟ [Citation.]” (People v. Jones (2012) 54 Cal. 4th 1, 41.)
A trial court‟s ruling on a challenge for cause is reviewed for abuse of
discretion. (People v. Martinez, supra, 47 Cal.4th at p. 426.) We will uphold the
court‟s decision “ „ “ „if it is fairly supported by the record, accepting as binding
the trial court‟s determination as to the prospective juror‟s true state of mind when
the prospective juror has made statements that are conflicting or ambiguous.‟
[Citations.]” ‟ ” (People v. Cunningham (2001) 25 Cal. 4th 926, 975; accord,
People v. Manibusan (2013) 58 Cal. 4th 40, 60.) When there is no inconsistency or
ambiguity, we will uphold the court‟s ruling if it is supported by substantial
evidence. (People v. Pearson (2012) 53 Cal. 4th 306, 327-328.)
1. Prospective Juror S.B.
S.B.‟s responses in her juror questionnaire indicated that she supported both
the death penalty and life without the possibility of parole. Specifically, when
asked to give her general feelings regarding the death penalty, S.B. wrote that if “a
person killed someone they should serve a life sentence or receive the death
penalty.” Although she believed life without parole was a more severe
punishment for defendants because “they have to deal with this for the rest of their
59
lives,” she also checked “Yes” to the question whether she would be open-minded
regarding which penalty should be imposed in the case.
At the outset of voir dire questioning, the court asked S.B. whether there was
any reason she could not be fair in this matter. She shrugged her shoulders and
said, “No, I guess not.” When the court then asked whether there was anything
else about her views regarding the death penalty, she qualified her questionnaire
response by stating, “I‟m not really for it unless they‟re a serial murderer or
something, but if it‟s just one murder, I think they should [get] . . . life without
parole.” In response to the court‟s further question whether she was saying she
would automatically vote for life without parole in a case involving only a single
murder victim, S.B. replied, “Yes, yes.” The prosecutor then challenged her for
cause.
Defense counsel questioned S.B. first, eliciting from her that she would make
certain exceptions to her view that the death penalty should be reserved for serial
killers. She agreed that death would be appropriate, for example, for someone
who killed a child. When defense counsel observed that S.B. seemed “right in the
middle” and “would consider both [penalties], depending on the circumstance,”
S.B. agreed, indicating, “Yeah, I think I would.” She also agreed with defense
counsel‟s observation that “in the right case with only one victim” she could vote
to impose the death penalty, depending on what she heard at trial. As S.B. stated
in her own words, “I‟m willing to listen to the case . . . before I make my
decision.”
S.B. retreated somewhat from those views while being questioned by the
prosecutor, however. Although she confirmed she could consider the death
penalty in a case involving only one victim, she indicated, “I don‟t know if I
would do it.” She also answered “Yeah,” when the prosecutor asked whether
there was a possibility she would not be “fair” on the death penalty issue. When
60
the prosecutor then inquired into S.B.‟s view that life without parole was a harsher
punishment than death, she agreed that if she thought the harsher penalty was
appropriate, it was more likely she would vote for life without parole because
“they‟d have to think about it forever.” S.B. then agreed with the prosecutor again
“there was a good chance in a case like this that [she] probably won‟t be fair in a
penalty stage.”
The parties then conducted another round of questioning, eliciting somewhat
vacillating responses from S.B. When defense counsel asked S.B. what she would
do if she was convinced by the evidence that death was appropriate, S.B. replied,
“I would say yes if it was appropriate.” The prosecutor, after reminding S.B. that
she had previously agreed with him that there was a good chance she could not be
fair in the case, then asked whether in a case with only one victim, it would be
very unlikely for her to return a verdict of death. S.B. answered, “Yes.”
The court conferred with the parties outside the presence of the prospective
jurors, indicating at the outset that it was “leaning” toward excusing S.B. Defense
counsel argued that her answers consistently indicated she would consider, and
return, a death verdict in an appropriate “one victim” case. For his part, the
prosecutor noted that at the outset of voir dire questioning, before any prompting
and leading questions by either side, S.B. responded to the court‟s open-ended
question by indicating she could not be fair. In the prosecutor‟s view, because
S.B. was going to say whatever the attorneys wanted her to say, her remarks
during the initial questioning by the court were the best indicator of her true state
of mind.
Finding the question “close,” the court granted the challenge for cause over a
strenuous defense objection. The court observed that S.B.‟s views were difficult
to read “because she just swayed with the wind.” It found, however, that her
comment at the outset of questioning was “very revealing,” and concluded
61
accordingly that her duty as a potential capital juror would be impaired by her
reluctance to impose the death penalty in single-victim cases.
Under the circumstances presented here, the trial court‟s impression of S.B.‟s
true state of mind is entitled to deference by this court, and we conclude that its
ruling is supported by the record. It is true that S.B. indicated during questioning
by defense counsel that “in the right case with only one victim” she could vote to
impose the death penalty. But she had expressed the opposite view at the outset of
questioning without any prompting, and then vacillated back and forth in her
responses to leading questions by the parties. Those responses, when considered
in conjunction with S.B.‟s demeanor, could have left the court with the
“ „ “definite impression” ‟ ” that she would be unable to faithfully and impartially
perform her duties as a juror in the case. (People v. Moon (2005) 37 Cal. 4th 1, 14,
see id. at pp. 15-16; People v. Friend (2009) 47 Cal. 4th 1, 61 [the court‟s excusal
of a prospective juror after determining he would be unwilling to consider the
death penalty for a defendant who had committed only one murder was fairly
supported by the record]; People v. Hawthorne (2009) 46 Cal. 4th 67, 84 [same].)
Defendant asserts that because S.B.‟s views regarding the death penalty were
neither ambiguous nor equivocal, the trial court‟s determination of her state of
mind is not entitled to deference. He observes that S.B. quickly retreated from her
initial comment that the death penalty should be imposed only on serial killers.
According to defendant, as voir dire continued and S.B. became more familiar
with the process, her understanding evolved and she unambiguously expressed her
ability to apply the law and vote for death in an appropriate case. Defendant may
be correct that, when considered separately, S.B.‟s views were not ambiguous.
But the record supports the trial court‟s observation that S.B. “swayed with the
wind” depending on which of the parties was questioning her. For example, after
having agreed with defense counsel that she “would consider both [penalties],
62
depending on the circumstance,” S.B. then agreed with the prosecutor that in a
case with only one victim it would be very unlikely for her to vote for death.
Contrary to defendant‟s argument, the record does not show that the continued
questioning in this case solidified and clarified the prospective juror‟s views. (Cf.
People v. Williams (2013) 56 Cal. 4th 630, 667 [upholding the trial court‟s refusal
to excuse a prospective juror whose initial responses appeared conflicting but
whose views were clarified in the final round of questioning].) In any event, the
court‟s resolution of the conflict in S.B.‟s responses, which was based upon its
firsthand observations of the prospective juror‟s answers and demeanor, is entitled
to deference here. (See People v. Wilson (2008) 44 Cal. 4th 758, 780 [observing
that the court “was in the best position to assess the juror‟s state of mind, based on
her conflicting responses, her demeanor, her vocal inflection and other nonverbal
cues”].)
Defendant contends furthermore that the court applied an erroneous standard
to excuse S.B. when it found she was impaired by her reluctance to impose the
death penalty in single victim cases. Specifically, he complains there was no
finding whether S.B. could set aside her personal beliefs and carry out her duties
as a juror without substantial impairment. As defendant points out, under
applicable law, even a juror who “might find it very difficult to vote to impose the
death penalty” is not necessarily substantially impaired unless he or she was
unwilling or unable to follow the court‟s instructions in determining the
appropriate penalty. (People v. Stewart, supra, 33 Cal.4th at p. 447, italics
omitted; see also People v. Rountree (2013) 56 Cal. 4th 823, 848 [prospective juror
was properly excused for cause, not because he believed judging the defendant
would be difficult, but because he indicated it would be difficult for him to set
aside his religious beliefs in order to carry out his duties as a juror].) We disagree,
however, that the court employed an erroneous standard here. The focus of
63
questioning by the court and the parties was whether there was a likelihood that
S.B. fairly could consider both the death penalty and life without parole. We have
repeatedly explained that such an inquiry is a proper formulation of the standard
set forth in Wainwright v. Witt, supra, 469 U.S. 412. (See People v. Martinez,
supra, 47 Cal.4th at p. 432.) As previously discussed, the record supports the trial
court‟s determination that S.B.‟s views would substantially impair the
performance of her duties as a juror because those views rendered her incapable of
returning a death verdict in an appropriate case involving only a single murder
victim. The trial court did not err in excusing S.B. for cause.
2. Prospective Juror B.T.
Prospective Juror B.T.‟s questionnaire responses indicated a consistent and
emphatic opposition to the death penalty. He checked “Yes” in answering the
question whether his opposition to the death penalty was so strong that he would
always vote against the death penalty, no matter what the evidence, and he
included comments that the death penalty “promotes a culture of state sanctioned
killing, ” it is “irreversible,” “mistakes are made,” and it does not “serve[] any
good purpose.” He also marked “No” when asked whether he could be open-
minded as to which penalty should be imposed were the case to proceed to a
penalty phase, reiterating his earlier comment that he opposes the death penalty.
During voir dire questioning, however, B.T. appeared less certain of his
views, telling the court he “couldn‟t tell you for sure” that he felt he could never
vote for the death penalty but that he “dread[ed] the thought” of ever having to do
so. When asked whether he would be open-minded as to either penalty, B.T.
indicated that he was “open-minded to following the law.” As he explained, “I
always try and do everything I can to follow the law . . . but to try to tell you how I
would consider voting on the death penalty, I couldn‟t even tell you. I couldn‟t
64
even tell you my own mind.” B.T. reiterated his opposition to the death penalty
and indicated he “would start out with my mind opposing the death penalty.” He
then explained, “I . . . always do everything I can to follow the law and I would do
. . . the same thing as a juror, cause I think if I was accused of a crime, I‟d want
every possible safeguard I could have to see that the laws are followed.” He
acknowledged, however, that he could not say how his feelings would affect him.
And when asked if there were any scenarios in which he felt he could vote for the
death penalty, he responded, “No.” The prosecutor challenged B.T. for cause but
did not question him further.
Defense counsel began his questioning by confirming with B.T. that he
understood a juror‟s various roles during a capital case and that a juror takes an
oath to follow the court‟s instructions when making the penalty determination.
When counsel asked B.T. whether he could do that, B.T. replied, “Yes,” and again
indicated he “would always follow the law.” B.T. indicated, however, that he also
opposed the death penalty and didn‟t know whether he could vote for death. In
response to counsel‟s further question whether his opposition to the death penalty
was so strong that he could not consider it as an option, B.T. said, “No,”
reiterating that, “as a juror, I would always do everything I could to follow the
law.”
Defense counsel then elicited from B.T. several responses suggesting his
views would not substantially impair his ability to perform his duties as a juror.
B.T. agreed with counsel that he would follow the law and the instructions given
to him at the penalty phase. And when asked if he could set aside his general
opposition to the death penalty and be as fair to the prosecution as he would be to
the defendant, B.T. answered, “Yes, I believe I could.” In response to the question
whether his mind was foreclosed to the possibility of choosing death as a penalty,
he indicated, “No it‟s not.”
65
After neither defense counsel nor the prosecutor indicated he wanted to be
heard on the issue, the court excused B.T. for cause without comment.
B.T.‟s responses to questions regarding his views on the death penalty were,
at best, equivocal and conflicting. His answers on the questionnaire showed
strong opposition to capital punishment, but during questioning in open court he
was unable to say for sure how those views would affect his ability to vote for
death in an appropriate case. And although B.T. told the court there was no
scenario in which he felt he could vote for the death penalty, he indicated later
during defense counsel‟s questioning that his mind was not foreclosed to the
possibility of choosing death as a penalty. We defer to the court‟s resolution of
the ambiguities and conflicts in B.T.‟s views, which was informed by the court‟s
firsthand observations of the prospective juror‟s responses and demeanor. We
conclude furthermore that the record fairly supports the court‟s determination that
B.T.‟s views regarding the death penalty would substantially impair the
performance of his duties as a juror. B.T. twice indicated on his questionnaire that
he would not be able to set aside his personal views and apply the law. The trial
court, having considered B.T.‟s demeanor during voir dire questioning, was
entitled to accept those responses, notwithstanding B.T.‟s contradictory answers
during voir dire questioning. (People v. Whalen (2013) 56 Cal. 4th 1, 49-50.)
As defendant correctly observes, this court has made clear that a juror‟s
strong opposition to the death penalty does not necessarily disqualify him or her
from serving on a jury in a capital case. (People v. Jones, supra, 54 Cal.4th at
p. 42; People v. Martinez, supra, 47 Cal.4th at p. 427; People v. Stewart, supra,
33 Cal.4th at p. 446.) He does not persuade us that the trial court‟s excusal of B.T.
is contrary to that pronouncement, however. “[T]hose who firmly believe that the
death penalty is unjust may nevertheless serve as jurors in capital cases so long as
they state clearly that they are willing to temporarily set aside their own beliefs in
66
deference to the rule of law.” (Lockhart v. McCree (1986) 476 U.S. 162, 176.)
During voir dire questioning, B.T. indicated repeatedly that he strove to always
“follow the law.” But whether he could set aside his views regarding the death
penalty was not so clear. Although B.T. answered, ”Yes” when defense counsel
asked whether he could set aside his general opposition to the death penalty, his
questionnaire responses indicated that his beliefs in that regard were so strong that
he always would vote against the death penalty, regardless of the evidence.
Having assessed B.T.‟s demeanor firsthand during questioning, the trial court
could properly find the questionnaire responses the better reflection of B.T.‟s true
state of mind. (People v. Whalen, supra, 56 Cal.4th at p. 49.)
C. Evidentiary Rulings at the Guilt Phase
1. Admission of uncharged misconduct
Before the start of the guilt phase, the prosecution filed a detailed trial brief
seeking admission of evidence of defendant‟s uncharged misconduct through the
testimony of his alleged victims. Defendant claims the trial court erred by
allowing the prosecutor to present the resulting evidence involving sexual assaults
and other violence against women, and he asserts that the admission of this
evidence deprived him of a fair trial and due process. We conclude the challenged
evidence was properly admitted.
a. Testimony of Kristen S.
According to the prosecution‟s offer of proof, Kristen S. was acquainted with
defendant because they used methamphetamine together. Sometime between 1993
and 1996, Kristen went home with defendant after a party. She probably would
have consented to “normal” sexual activity with him. At one point, however,
defendant started to “get weird,” ordering her to undress and then holding her hand
on his penis while he lay on his bed and looked through pornography. Kristen
67
manually stimulated defendant for hours, but he was unable to maintain an
erection and demanded that she perform other sexual acts, also for an extended
period of time. She orally copulated him for so long that it became painful for her.
The offer of proof further indicated that Kristen S. wanted to leave but never
actually told defendant so because she was scared and confused. She believed that
defendant knew she wanted to leave, however, because when she said she had to
use the bathroom, defendant escorted her there and stood over her until she was
finished. The entire incident lasted for almost two days, at the end of which
Kristen left defendant‟s bedroom and went home. She did not contact the police
to report what had happened.
Kristen S. encountered defendant again several nights later when she was at a
tattoo shop having a “White power” design that was created by defendant tattooed
on her buttocks. Defendant, who was hanging around the shop watching the tattoo
artist at the time, slapped Kristen‟s buttocks repeatedly, saying it would help set
the ink. When Kristen complained to defendant about his behavior, he forced her
into the bathroom and made her sit on the toilet. Holding her there with one hand,
he attempted with the other hand to inject drugs into his arm. While doing so,
defendant drew his own blood with the syringe and started squirting it at Kristen‟s
face, angrily saying that he did not like “mouthy girls” and warning her that if she
continued to mouth off he “would slice her throat like he did to Trina.”
i. Evidence regarding the sexual assault
At a hearing concerning the admissibility of various uncharged sexual
assaults, the court ruled that the incident with Kristin S. in defendant‟s bedroom
was admissible as propensity evidence under Evidence Code sections 1108 and
1101(b). The court found significant similarities between that event and the other
68
charged and uncharged crimes, and determined that the probative value of the
evidence was not outweighed by its prejudicial effects.
We uphold the court‟s ruling for reasons similar to those on which we
rejected defendant‟s challenge to the court‟s refusal to sever the murder count
from the sexual assault charges. (See ante, pts. II.A.3.a, II.A.4.)
Evidence Code section 1108 permits the prosecutor in a sexual offense trial
to present evidence of the defendant‟s other sexual offenses, so long as the other
sexual offenses are not inadmissible pursuant to Evidence Code section 352. As
previously explained, defendant was accused in the present matter of sexual
offenses against Katrina because it was alleged she was murdered during the
commission of rape and oral copulation. In addition, he was charged with sexual
offenses against Robyn. G. and Billie B. that fell within the scope of Evidence
Code section 1108. (See Evid. Code, § 1108, subd. (d)(1) [listing rape, sexual
penetration with a foreign object, and forcible oral copulation as qualifying sexual
offenses].)
Defendant does not dispute that he was being prosecuted for sexual offenses
within the meaning of Evidence Code section 1108. He argues, however, that
Kristen S.‟s testimony regarding the incident in the bedroom should not have been
admitted under Evidence Code section 1108 or otherwise. Pointing to Kristen‟s
heavy drug use at the time of the events in question and her failure to report the
incident to authorities until long after it had occurred, he first asserts that her
recollection of these events was so vague, disjointed, and inherently unreliable as
to be inadmissible on that ground alone. It is well settled, however, that the
reliability of a witness‟s testimony is a matter for the jury to decide and therefore
concerns the weight of the evidence, and not its admissibility. (People v.
Anderson (2001) 25 Cal. 4th 543, 587.)
69
Defendant further contends that the incident as described by Kristen S., even
if believed, did not amount to a sexual offense for purposes of admission under
Evidence Code section 1108. Specifically, he argues there was no showing that
defendant forced Kristen to do anything against her will or that the sexual
encounter was otherwise nonconsensual. Defendant‟s characterization of the
evidence is belied by the prosecution‟s offer of proof and Kristin‟s testimony at
trial. Although Kristen acknowledged that she did not expressly refuse
defendant‟s orders to perform various sexual acts or try to escape, she explained
that she did not attempt to resist defendant because he had gotten “weird” and she
was scared and confused. Given Kristen‟s vulnerability by being alone with
defendant in his bedroom, and the testimony regarding her awareness of his
membership in a violent skinhead gang, her acquiescence to and continued
participation in sexual acts with defendant is not inconsistent with the conclusion
that a forcible sexual assault occurred.
Characterizing the sexual assault evidence as “yet another bizarre and
disturbing incident” involving drugs and “strange sex” that created an “aura of evil
around him,” defendant argues finally that the evidence was not properly admitted
under Evidence Code section 1108 because it was “inadmissible pursuant to
section 352.” (Evid. Code, § 1108, subd. (a).) A court has broad discretion to
exclude, as substantially more prejudicial than probative, sexual offense evidence
that meets the requirements for admission under Evidence Code section 1108, and
its ruling in this regard is reviewed for abuse of discretion. (People v. Loy, supra,
52 Cal.4th at p. 61.)
As previously explained in the discussion regarding defendant‟s challenge to
the court‟s denial of his motion to sever the murder charge from the sexual assault
offenses (see ante, pt. II.A.3.i.), a court considering the admissibility of evidence
under Evidence Code section 1108 examines a number of specified factors to
70
determine whether the danger of undue prejudice from the evidence in question
substantially outweighs its probative value regarding defendant‟s propensity to
commit the charged sexual offenses. (People v. Loy, supra, 52 Cal.4th at p. 61;
Falsetta, supra, 21 Cal.4th at pp. 917-918.) Here, the relevant factors amply
support the conclusion that the court did not abuse its discretion in admitting
evidence of defendant‟s sexual assault of Kristen S. for purposes of showing
defendant‟s propensity to commit the charged sexual assaults.
First, the nature and quality of the offenses against Kristen S., each of which
amounted to a forcible sexual assault, were identical to the nature and quality of
the charged sexual offenses, suggesting their strong probative value as evidence of
defendant‟s disposition to commit such crimes. Although the incident involving
Kristen occurred several years after the sexual crimes against Katrina, it happened
around the same time as the sexual assaults against Robyn. G. and Billie B. and
showed defendant‟s continuing pattern of sexual crimes against the women who
befriended him. (See People v. Story, supra, 45 Cal.4th at p. 1293 [defendant‟s
history of sexual assaults was probative of the sexual conduct that preceded
defendant‟s strangulation of the victim].)
We observe furthermore that the sexual assaults against Kristen S. bore many
similarities to the charged offenses, further supporting the probative value of the
evidence in question. Kristen, like Katrina, Robyn G., and Billie B., was, as
described by the court, a “skinhead groupie” who considered defendant either a
friend or a boyfriend. In addition, the assaults against all four victims involved a
multiplicity of forced sexual activities and, in the case of Kristen, Robyn G., and
Billie B., they were lengthy ordeals during much of which defendant flipped
through pornographic magazines. Notably, and likely related to the manner in
which Katrina escaped from defendant‟s home during the first unwanted sexual
71
encounter, defendant prevented all four victims from using the bathroom without
his supervision.
That defendant had not been charged and convicted of any sexual crimes in
connection with the incident involving Kristen S. arguably increased the potential
for undue prejudice because of the risk that the jury might want to convict
defendant of the charged offenses because he had escaped punishment for his
crimes against Kristen. We observe furthermore that because there was no prior
conviction, defendant‟s commission of the offenses against Kristen was less
certain and he bore some additional burden defending against that evidence.
(See People v. Loy, supra, 52 Cal.4th at p. 61 [prior conviction for a sexual
offense admitted as propensity evidence under Evid. Code, § 1108 diminishes its
potential for prejudice].) None of these factors is dispositive, however. And
although the incident in question may have been “bizarre and disturbing” as
defendant asserts, it was not so horrendous as to have inflamed the jury. Nor did
the prosecutor belabor its details at trial. Given the strong probative value of the
evidence in question, the potential for prejudice did not overcome Evidence Code
section 1108‟s presumption in favor of admissibility of the sexual offense
evidence to show defendant‟s propensity to commit the charged sexual offenses.
(See People v. Loy, supra, at p. 62.)9
ii. Tattoo parlor incident
After extensive argument by the parties, and over defense objection, the court
ruled that Kristen S. could testify about the incident at the tattoo parlor in its
9 Like our resolution of defendant‟s challenge to the court‟s denial of his
motion to sever trial on the murder count from trial on the sexual offense charges,
we need not, and do not, address whether the court acted within its discretion in
admitting the evidence under Evidence Code section 1101(b).
72
entirety. Although the court acknowledged that the evidence placed defendant in
an unfavorable light, it found the prejudicial impact of the evidence was not
outweighed by its significant probative value in providing context for defendant‟s
admission. Kristen‟s eventual testimony at trial differed only slightly from the
prosecution‟s offer of proof. She testified at trial that defendant, who was clad
only in boxer shorts at the time, was angry at her for refusing to touch his penis
and wanting to leave the bathroom.
Defendant does not challenge the admissibility of his statement to Kristen S.
to the effect that he “sliced” Katrina‟s throat. He argues, however, that the court‟s
ruling admitting the facts surrounding the entire incident at the tattoo shop
exposed the jury to irrelevant and highly prejudicial “criminal propensity”
evidence forbidden under subdivision (a) of Evidence Code section 1101, and
inadmissible under Evidence Code section 352. For example, defendant asserts,
the evidence that before he made the admission regarding Katrina he was injecting
drugs and then using the syringe to squirt his own blood at Kristen demonstrated
to the jury that he acted with depraved indifference to Kristen‟s life.
Defendant‟s challenge to this evidence does not succeed. As defendant
acknowledges, his unsolicited statement to Kristen S. about slicing Katrina‟s
throat constituted an admission and was therefore properly allowed into evidence
to show the identity of the perpetrator. (See People v. Robinson (2000) 85
Cal. App. 4th 434, 445.) Furthermore, the circumstances surrounding that
admission were relevant because they placed his statement in context. (Ibid.) The
jury was entitled to know, for example, that defendant‟s admission was made
neither in passing nor in jest but rather for purposes of instilling fear in Kristen for
refusing his demand for sexual stimulation.
A “trial court,” of course, “has broad discretion” under Evidence Code
section 352 “to exclude even relevant evidence „if its probative value is
73
substantially outweighed by the probability that its admission will . . . create
substantial danger of undue prejudice, of confusing the issues, or of misleading the
jury.‟” (People v. Clark, supra, 52 Cal.4th at p. 893 [quoting Evid. Code].) But
we cannot say that the tattoo parlor evidence was unduly prejudicial within the
meaning of Evidence Code section 352. (People v. Karis (1988) 46 Cal. 3d 612,
638 [“ „ “prejudicial” is not synonymous with “damaging” ‟ ”]; accord, People v.
Lopez (2013) 56 Cal. 4th 1028, 1059.) Nor does defendant persuade us that the
prejudicial impact of the complained-of evidence outweighed its strong probative
value in giving context to his admission, particularly when that evidence is
compared to other unsavory evidence properly before the jury, such as the horrific
facts underlying the capital crime. (People v. Harris (2013) 57 Cal. 4th 804, 842;
People v. Jones (2011) 51 Cal. 4th 346, 371.) We conclude the court did not abuse
its discretion in admitting evidence regarding the incident at the tattoo shop.
b. Testimony of Corie G.
Before trial, the prosecutor also sought a ruling admitting evidence that
defendant sexually assaulted Corie G. According to the prosecutor‟s offer of
proof, defendant and Corie first started dating in 1988 when defendant was 15
years old and she was two years his senior. Defendant, who was a member of the
SHD gang at the time, was incarcerated during much of their relationship. On one
occasion when he was not in custody, defendant held Corie against her will in the
camper shell of a truck parked in front of a residence and forced her to engage in
sexual intercourse. Although Corie told defendant she did not want to do so, she
submitted because she believed if she did not let defendant do what he wanted, it
was “gonna get bad” and defendant would become violent.
At a hearing on the prosecutor‟s motion, the court expressed strong doubts
that the incident was sufficiently similar to the charged offenses to justify its
74
admission under Evidence Code section 1101 (b). It concluded, however, that the
dissimilarities did not render the evidence inadmissible under Evidence Code
section 1108. Ruling that it would allow the evidence under the latter provision,
the court explained that it found the incident was not inflammatory when
compared to the other sexual crimes and that it was relevant to show defendant‟s
treatment of women. Corie G.‟s testimony at trial was substantially the same as
the prosecution‟s offer of proof, although she added that during the incident she
yelled for her friends in a nearby house to help her but that no one came out. She
also indicated during cross-examination that, after the incident, she continued to
“hang out” with defendant and other SHD gang members and that she felt safe
with defendant “because he was the toughest guy.”
Defendant argues that the court erred in admitting evidence of the sexual
assault against Corie G. because the evidence was substantially more prejudicial
than probative. For reasons similar to those supporting the admission of evidence
regarding the sexual crimes against Kristen S. (see ante, pt. II.C.1.a.), we conclude
that the court did not abuse its discretion in allowing the challenged evidence. The
probative value of the evidence in question was shown by the forcible nature and
quality of the sexual offense, which mirrored the nature and quality of the charged
sexual offenses. Although the incident had occurred five or more years before the
sexual assaults against Katrina and the victims of the other charged crimes, the
evidence was highly probative of defendant‟s lengthy history of sexually
assaulting “skinhead groupies” who considered him a boyfriend or friend but
feared a violent response if they refused his commands. As for the issue of
prejudice, there is no question that forcible sexual intercourse is a serious and
demeaning crime. However, the admission of evidence regarding the
circumstances surrounding defendant‟s rape of Corie cannot be characterized as
unduly prejudicial when compared to the facts underlying the charged crimes.
75
Defendant points out, correctly, that, like the sexual assault against Kristen, the
incident involving Corie did not result in a prior conviction, which creates a
potential for prejudice. Nor did the incident involve a demand for sexual acts
other than intercourse or occur over an extended period of time, similar to some or
all of the charged sexual offenses. These factors, however, do not compel the
conclusion that the potential for prejudice by admitting the challenged evidence
substantially outweighed its probative value, as described above. As previously
mentioned, there is a strong presumption in favor of admitting sexual assault
evidence under Evidence Code section 1108 to show propensity to commit
charged crimes. (People v. Loy, supra, 52 Cal.4th at p. 62.) Contrary to
defendant‟s argument, the presumption of admissibility was not overcome as to
the evidence of defendant‟s sexual assault against Corie.
c. Testimony of Susan V.
The prosecutor also sought admission of evidence regarding an incident that
occurred after Katrina‟s murder, arguing that the evidence was admissible to show
defendant‟s consciousness of guilt. Susan V. was a former girlfriend of
defendant‟s. She also was a good friend of John Cundiff, an SHD gang member
who was living with the Porchos at the time of Katrina‟s disappearance. About
two years after Katrina disappeared, Susan had a conversation with Cundiff
regarding that subject and defendant somehow became aware of their talk. About
one week after Susan spoke with Cundiff, she drove to defendant‟s home to visit
him. Defendant came out to the car and walked with Susan toward the house, then
turned abruptly and punched her in the face with a closed fist. Susan ran back to
the car and locked herself inside, but defendant followed, apologizing for hitting
her, and telling her they needed to talk. Susan accepted the apology, got out of the
car, and walked along with defendant. As they approached defendant‟s house,
76
however, defendant started punching her in the face again. Susan eventually
ended up in defendant‟s room. During an ensuing conversation, defendant asked
Susan what she had spoken to Cundiff about and then told her not to talk about
Katrina again.
The court admitted the proffered evidence, rejecting defense counsel‟s
argument that presenting the incident in its entirety would show defendant‟s bad
character and propensity for violence. The court acknowledged the prejudicial
impact of evidence that defendant “sucker-punched” a woman and then lured her
out of her car and did it a second time. But the court concluded that the inferences
to be drawn from the incident had significant probative value that outweighed any
prejudice, remarking that “[s]ome things we‟ve got to take as they allegedly
happened and let the jury sort it out.”
Citing to People v. Nelson (2008) 43 Cal. 4th 1242, defendant complains that
the trial court abdicated its responsibility for deciding the admissibility of
evidence by ruling that it would allow the jury to “sort it out.” We have no quarrel
with defendant‟s contention that the task of resolving questions regarding the
relevance of evidence is a “hallmark responsibility of the trial judge.” (Id. at p.
1265.) Contrary to his assertion, however, the record of the court‟s ruling on the
admissibility of the evidence regarding defendant‟s attack on Susan V., when read
in its entirety, amply demonstrates that the court thoughtfully and carefully carried
out its judicial obligation in this respect. Placed in context, the court‟s comment
about letting the jury “sort it out” meant that the jury ultimately would determine
the inferences to be drawn from the challenged evidence.
We likewise reject defendant‟s substantive challenge to the admission of this
evidence. Defendant‟s warning to Susan V. not to talk about Katrina‟s
disappearance was highly probative of his consciousness of guilt and the central
issue of his identity as the killer. Even more probative in this regard were the
77
violent assaults that preceded the warning. (See People v. McKinnon (2011) 52
Cal. 4th 610, 669 [evidence that the defendant‟s sister‟s threat to dissuade a witness
was accompanied by a violent assault was more powerful than evidence the
defendant had only verbally threatened the witness].) Defendant‟s sudden,
unprovoked assault on a former girlfriend, coupled with the deceptive manner in
which he coaxed her out of the car for a second beating, undoubtedly placed him
in a negative light. But, in ruling the evidence admissible, the court acted well
within its discretion in finding that its probative value substantially outweighed
any prejudicial impact.
2. Admission of Katrina’s out-of-court statements
The court conducted a number of pretrial evidentiary hearings to decide
whether to allow prosecution witnesses to relate Katrina‟s statements describing
two incidents involving assaultive conduct by defendant that occurred several
months prior to her disappearance. Defendant claims the court‟s rulings admitting
the out-of-court statements violated state evidentiary law and his state and federal
constitutional rights to due process and to confront the witnesses against him. We
conclude the trial court did not abuse its discretion in admitting two of the
statements in question. Although we will assume the court erred in admitting a
third statement, we conclude its admission did not prejudice defendant. We
conclude furthermore that the admission of the out-of-court statements did not
deprive defendant of any constitutional rights.
a. Spontaneous statements
Two of the three out-of-court statements in question were admitted, for the
truth of the matters asserted, under the spontaneous statement exception to the
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hearsay rule. (Evid. Code, § 1240.)10 The admissibility requirements for such
out-of-court statements are well established. “ „(1) [T]here must be some
occurrence startling enough to produce this nervous excitement and render the
utterance spontaneous and unreflecting; (2) the utterance must have been before
there has been time to contrive and misrepresent, i.e., while the nervous
excitement may be supposed still to dominate and the reflective powers to be yet
in abeyance; and (3) the utterance must relate to the circumstance of the
occurrence preceding it.‟ [Citations.]” (People v. Poggi (1988) 45 Cal. 3d 306,
318.) A statement meeting these requirements is “considered trustworthy, and
admissible at trial despite its hearsay character, because „in the stress of nervous
excitement, the reflective faculties may be stilled and the utterance may become
the instinctive and uninhibited expression of the speaker‟s actual impressions and
belief.‟ [Citation.]” (People v. Clark, supra, 52 Cal.4th at p. 925.)
A number of factors may inform the court‟s inquiry as to whether the
statement in question was made while the declarant was still under the stress and
excitement of the startling event and before there was “time to contrive and
misrepresent.” (People v. Poggi, supra, 45 Cal.3d at p. 318.) Such factors include
the passage of time between the startling event and the statement, whether the
declarant blurted out the statement or made it in response to questioning, the
declarant‟s emotional state and physical condition at the time of making the
statement, and whether the content of the statement suggested an opportunity for
10 Evidence Code section 1240 provides that “[e]vidence of a statement is not
made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate,
describe, or explain an act, condition, or event perceived by the declarant; and
[¶] (b) Was made spontaneously while the declarant was under the stress of
excitement caused by such perception.”
79
reflection and fabrication. (People v. Clark, supra, 52 Cal.4th at p. 925, People v.
Ramirez (2006) 143 Cal. App. 4th 1512, 1525.) This court has observed, however,
that these factors “may be important, but solely as an indicator of the mental state
of the declarant.” (People v. Farmer (1989) 47 Cal. 3d 888, 903-904.) For this
reason, no one factor or combination of factors is dispositive. (People v. Gutierrez
(2009) 45 Cal. 4th 789, 810; see, e.g., People v. Poggi, supra, at p. 319 [a
statement made calmly and coherently also may have been made spontaneously];
People v. Trimble (1992) 5 Cal. App. 4th 1225, 1234 [the lapse of time between the
startling event and the statement is not determinative of its spontaneity].)
Whether an out-of-court statement meets the statutory requirements for
admission as a spontaneous statement is generally a question of fact for the trial
court, the determination of which involves an exercise of the court‟s discretion.
(People v. Poggi, supra, 45 Cal.3d at p. 318.) We will uphold the trial court‟s
determination of facts when they are supported by substantial evidence and review
for abuse of discretion its decision to admit evidence under the spontaneous
statement exception. (People v. Lynch (2010) 50 Cal. 4th 693, 752; People v.
Brown (2003) 31 Cal. 4th 518, 540-541.)
i. Katrina’s statements to Shawna Torres
The summary of facts in the prosecution‟s trial brief included a statement by
Katrina‟s friend Shawna Torres regarding an incident that occurred when Katrina
paid a visit to defendant shortly after his release from prison in the spring of 1992.
According to Torres, Katrina wanted to make clear to defendant that she was not
his girlfriend and to tell him to stop calling and writing her. Katrina was inside
defendant‟s home for about 20 minutes while Torres waited in the truck. When
Katrina returned, she was visibly upset and told Torres that defendant had grabbed
80
her by the neck and started choking her while his mother stood by and did nothing.
Torres noticed red marks on Katrina‟s neck.
The defense objected to the proposed testimony on the ground it was based
upon inadmissible hearsay, and the prosecutor countered that Katrina‟s out-of-
court statement qualified for admission under the spontaneous statement exception
to the hearsay rule. At an initial hearing on the matter, in which the parties
debated the admissibility of the evidence both under the excited utterance
exception and under Evidence Code section 352, the court remarked that it found
the probative value of the evidence “astronomical.” However, the court did not
then issue a ruling, and granted a defense request to conduct a hearing at which
Torres could be questioned regarding her anticipated testimony.
At the hearing, Torres provided an account of events substantially similar to
what had appeared in the prosecution‟s trial brief, adding that Katrina was both
upset and “really angry” when she returned to the truck. At the conclusion of
Torres‟s testimony, and after considering further argument by the parties, the court
overruled the defense objections and concluded without elaboration that the entire
incident was admissible under the spontaneous statement exception to the hearsay
rule. Torres testified at trial that Katrina told her that defendant “got upset” with
her and then attacked her, and that she showed Torres the red marks on her neck.
We conclude the court acted well within its discretion in finding Katrina‟s
statements to Torres met the requirements of the spontaneous statement exception.
Because Katrina‟s statement to Torres described a physical assault by defendant, it
clearly satisfied the requirement that the statement in question relate to an
occurrence that was startling enough to cause nervous excitement. The record also
amply supports the trial court‟s finding that Katrina spoke to Torres while she was
under the “stress of excitement” and before there was time to contrive or
misrepresent what had happened. Torres testified that Katrina was in defendant‟s
81
house for only 20 minutes and that when she returned to the truck she was upset
and angry. Torres testified further that Katrina immediately told her that
defendant had tried to choke her while his mother stood by doing nothing, and
Torres could see red marks on Katrina‟s neck.
Defendant does not assert that Katrina‟s statement to Torres failed to satisfy
any of the requirements for admission under Evidence Code section 1240. Rather,
he raises a more general challenge to the statement‟s admissibility, arguing that
Katrina‟s association with defendant and his violent and hateful gang, and her
efforts to hide the truth of those affiliations from the other people in her life,
“made contrivance and misrepresentation a way of life” and therefore rendered her
statement to Torres innately unreliable.
Defendant‟s argument is not well taken. Permitting the admission of an out-
of-court statement satisfying all of the requirements of Evidence Code section
1240 is based upon the long-held recognition that a statement uttered while under
the stress of excitement interferes with the process of reflection and fabrication,
and therefore is considered a true expression of the declarant‟s observations and
impressions. (People v. Clark, supra, 52 Cal.4th at p. 925, People v. Farmer,
supra, 47 Cal.3d at p. 903.) Under defendant‟s reasoning, the statement of an
individual who lives an “unreliable or unpredictable” lifestyle is always unreliable,
no matter what the circumstances under which it was made. Such a proposition
ignores the “crucial element” in determining the admissibility of a purportedly
spontaneous statement, namely, the mental state of the speaker at the time the
statement was uttered. (People v. Gutierrez, supra, 45 Cal.4th at p. 811.)
Although defendant‟s focus on Katrina‟s “dual life” may be relevant to the weight
of the evidence in question, it has no bearing on its admissibility.
We also reject defendant‟s assertion that the admission of Katrina‟s
statements to Torres violated his federal constitutional rights to due process and to
82
confront the witnesses against him. Because the evidence was properly admitted
under Evidence Code section 1240, its admission did not deprive defendant of due
process. (People v. Riccardi (2012) 54 Cal. 4th 758, 809-810 [the “routine and
proper application of state evidentiary law does not impinge on a defendant‟s due
process rights”].) Nor did its admission violate the confrontation clause. (People
v. Griffin (2004) 33 Cal. 4th 536, 579-580, fn. 19 [admission of the declarant‟s out-
of-court statement to a friend at school does not implicate the confrontation clause
because it is not “ „testimonial hearsay‟ within the meaning of” Crawford v.
Washington (2004) 541 U.S. 36].)
ii. Katrina’s statements to her mother
The admissibility of Katrina‟s statements to her mother regarding defendant‟s
attempt to rape her presents a closer question. At an evidentiary hearing regarding
the admissibility of those statements, Katrina‟s mother testified that their
conversation took place one morning in the late spring or summer of 1992, the
year of Katrina‟s disappearance. Katrina had returned from a weekend in Ventura.
Shortly after her mother had arisen that morning, Katrina started following her
around the house. She was acting nervous and “like something was upsetting
her.” When they finally sat down together in Katrina‟s mother‟s bedroom, Katrina
told her mother she wanted to talk about something that had happened to her in
Ventura. According to Katrina‟s mother, Katrina seemed emotional, agitated,
afraid, and “shocked at her own vulnerability.”
Katrina‟s mother then testified regarding what Katrina said about the incident
in question. Katrina told her that she had stopped by defendant‟s house the
previous night to say hello. When the hour got late, defendant‟s mother suggested
she stay overnight instead of driving back to Los Angeles and she accepted the
offer. Katrina went to sleep in an extra bedroom, but awoke to find defendant in
83
bed with her making sexual advances. When she told defendant to stop, he
responded that he knew she wanted it. She managed to flee by telling defendant,
falsely, that she was sick and needed to use the bathroom. She went into the
bathroom for a moment but then grabbed her things, ran out of the house, and got
into her truck. As she was driving off, defendant came outside, yelling at her.
Although Katrina‟s mother repeatedly stated that she believed the events
Katrina described to her had occurred the previous night, she could not say so with
absolute certainty and indicated that the incident could have happened the night
before that. She also indicated during cross-examination that she was unsure
whether Katrina had come home and gone to bed the night before their
conversation or had arrived home that same morning.
After considering further briefing and argument by the parties, the court ruled
that Katrina‟s conversation with her mother was admissible as a spontaneous
statement. The court noted that Katrina‟s mother was being “very cautious”
regarding the timeframe but it found, as a factual matter, that the incident had
occurred the night before Katrina‟s conversation with her mother, rather than two
nights earlier. The court further found that the revelations in question had all the
“earmarks” of the hearsay exception for spontaneous statements. In the court‟s
view, Katrina would not have raised the issue with her mother at all “unless it was
bothering her to the point where she was still under the stress of what happened.”
The court was impressed by the testimony that Katrina had followed her mother
around the house until she could talk to her alone, and it found Katrina “clearly”
needed to get something “off her mind.” The court also noted, “based on
everything [known] about this case up to that point,” how traumatic the incident
appeared to have been for Katrina. The court found it significant that Katrina was
the victim of the startling event rather than simply an eyewitness.
84
At trial, Katrina‟s mother‟s testimony regarding her conversation with
Katrina was substantially similar to her testimony at the pretrial hearing.
Like Katrina‟s statements to Shawna Torres, Katrina‟s statements to her
mother described an assault by defendant, and therefore clearly satisfied the
requirement that the statement in question relate to an incident that was startling
enough to have caused nervous excitement. Defendant does not argue otherwise.
Rather, he asserts that Katrina was no longer under the stress of the startling event
when she recounted the sexual assault to her mother because their conversation
occurred after a substantial amount of time, possibly as much as 36 hours, had
elapsed.
We observe at the outset that the trial court expressly found a shorter duration
of time between the purported incident and the conversation, a determination we
conclude is supported by substantial evidence. As the record shows, Katrina‟s
mother repeatedly stated that she believed the incident Katrina described to her
had happened the night before their conversation. Although Katrina‟s mother
indicated that the events in question could have occurred one night before that, she
said so only because she was not absolutely certain of the time frame. On this
record, the court was entitled to find that her reference to a lengthier timeframe
was made out of an abundance of caution and that it did not call into question her
other testimony.
We do not disagree with defendant that, in any event, an appreciable amount
of time had elapsed between the sexual assault and Katrina‟s statements to her
mother describing those events. Our cases suggest that allowing admission of a
statement that was made approximately eight hours after the startling event may be
the exception rather than the rule. (See, e.g., People v. Lynch, supra, 50 Cal.4th at
p. 754 [trial court erred in admitting murder victim‟s statement describing to her
daughter the beating that had occurred more than one hour earlier]; see also
85
1 Witkin, Cal. Evidence (5th ed. 2012) Hearsay, § 180, p. 1035 [statements made
at a time substantially after the event are likely to be excluded].)
For her part, the Attorney General argues that notwithstanding the passage of
time following the sexual assault, Katrina‟s conversation with her mother may
have been her first opportunity to disclose the traumatic event to a person whom
she trusted. (See People v. Trimble, supra, 5 Cal.App.4th at p. 1235 [the
defendant‟s departure from the family‟s residence presented the first secure
opportunity for the young child who had witnessed the fatal assault on her mother
two days earlier to describe the incident to her mother‟s sister].)
We need not decide whether the trial court reasonably determined that
Katrina remained under the stress of the asserted sexual assault up to and
including the time she disclosed to her mother the incident in question. Even
assuming the court abused its discretion in permitting the prosecutor to introduce
the out-of-court statement, its admission does not require reversal because there is
no reasonable probability that defendant would have obtained a more favorable
result had the evidence been excluded from trial. (People v. Gutierrez, supra, 45
Cal.4th at p. 813; People v. Watson (1956) 46 Cal. 2d 818, 836.) The evidence
regarding defendant‟s rape and murder of Katrina was strong, and included
consistent accounts of the crimes by the two eyewitnesses, Bush and Nicassio.
Other properly admitted evidence, such as the testimony of the sexual assault
victims and Apryl Porcho, raised a strong inference that Katrina would not have
consented to sexual activity with defendant on the night of the murder. Still other
evidence, including Katrina‟s statement to her friend Torres and Nicassio‟s
testimony that defendant repeatedly directed him to stab Katrina with a knife at the
Porchos‟ party, showed that defendant had both engaged in and solicited prior acts
of violence against Katrina. The admission of Katrina‟s statement to her mother
describing a sexual assault in the guest room of defendant‟s house several months
86
before the murder, which comprised but a minor part of the prosecution‟s case,
was cumulative of, and no more inflammatory than, the properly admitted
evidence at trial. Any error in its admission did not prejudice defendant.
Defendant asserts that the admission of this evidence infringed his federal
constitutional right to due process. We have recognized that the admission of
evidence in violation of state law may also violate due process, but only if the
error rendered the defendant‟s trial fundamentally unfair. (People v. Partida
(2005) 37 Cal. 4th 428, 439.) Defendant fails to show that the introduction of a
hearsay statement describing an uncharged and unsuccessful attempt to sexually
assault Katrina, even if erroneous, was so prejudicial as to render his trial unfair.
For reasons previously discussed, we also reject defendant‟s further argument that
the admission of Katrina‟s statement to her mother deprived him of his United
States Constitution Sixth Amendment right to confront the witnesses against him.
(See People v. Gutierrez, supra, 45 Cal.4th at pp. 812-813 [three-year-old
declarant‟s statement to his aunt was not testimonial and therefore did not
implicate the defendant‟s rights under the confrontation clause, within the
meaning of Crawford v. Washington, supra, 541 U.S. 36].)
b. Statement by Katrina admitted for a nonhearsay purpose
The court conducted another pretrial evidentiary hearing to consider the
admissibility of a different out-of-court statement by Katrina concerning the same
sexual assault that she previously had described to her mother. According to
Katrina‟s girlfriend, Lee Jensen, Katrina called her “within a few days” of the
incident, crying and upset. She told Jensen that defendant had gotten on top of her
and when she told him to get off, he covered her mouth with his hand and started
pulling off her boxers. When Katrina then convinced defendant she was starting
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to feel sick and needed to visit the bathroom, she left the guest room, grabbed her
purse, and ran out of the house.
The court ruled that Katrina‟s statement to Jensen was not admissible as a
spontaneous statement because the evidence did not meet the statutory
requirements for admission under that exception to the hearsay rule. (See
discussion ante, pt. II.C.2.a.) Just before Jensen‟s testimony at trial, however, and
over defense objection, the court granted the prosecutor‟s request to allow him to
question the witness about Katrina‟s statements for the purpose of showing
Katrina‟s state of mind regarding whether she would have consented to sexual
intercourse with defendant. The court qualified its ruling by directing the
prosecutor to ask Jensen about the incident without giving the details.
In accordance with the court‟s ruling, the prosecutor asked Jensen whether
Katrina had disclosed to her that “something had happened” at defendant‟s house
in the summer of 1992. Jensen replied, “Yes.” The court interrupted the
prosecutor‟s continued questioning to give a limiting instruction, informing the
jurors that the witness‟s reference to an incident at defendant‟s house was being
admitted, not for its truth, but to illustrate Katrina‟s state of mind toward
defendant.11
11 The court instructed the jury as follows. “The last testimony appears to be
in reference to something that you heard from Mrs. Montgomery as well, an
incident, and to the extent this witness has referred to it, the out-of-court
statements by Katrina Montgomery that this witness has referred to are not offered
for their truth, that is, not offered and not to be considered by you to prove this
incident happened but for whatever light they may or may not shed about Katrina
Montgomery‟s state of mind in relation to the defendant at the time in question.
[¶] As opposed to this limiting instruction, the previous testimony by Mrs.
Montgomery about Katrina Montgomery relating the details of an incident that
took place when she allegedly fled the defendant‟s house, that evidence can be
considered by you for the truth of the matter, that is, evidence that what was said
(footnote continued on next page)
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We conclude the court did not abuse its discretion by admitting evidence of
Katrina‟s disclosure to her friend that “something had happened” at defendant‟s
house. As the court made clear, the evidence was not being admitted to establish
that defendant had in fact sexually assaulted Katrina on a previous occasion.
Admitting the evidence for that purpose would have contravened the hearsay rule.
Rather, the disclosure was allowed as circumstantial evidence of Katrina‟s then-
existing state of mind for the nonhearsay purpose of showing she would not have
consented to sexual activity with defendant on the night of the murder. “In the
case of forcible rape, evidence of any circumstance that makes it less plausible that
the victim consented to sexual intercourse is relevant. [Citations.]” (People v.
Harris, supra, 57 Cal.4th at p. 843 [letters written by the rape-murder victim to a
friend one week before her murder in which she described her and her boyfriend‟s
future plans together was circumstantial evidence of the victim‟s then state of
mind and properly admitted for the purpose of showing she would not have had
consensual sex with another person].)
We have observed that statements admitted for a nonhearsay purpose present
an increased risk of prejudice “if the jury is unable to distinguish between the truth
of the matters asserted and the inferences concerning the declarant‟s state of
mind.” (People v. Riccardi, supra, 54 Cal.4th at p. 823.) The potential for such
prejudice, however, did not outweigh the probative value of the state of mind
(footnote continued from previous page)
did happen, if you accept it. [¶] Of course, it‟s up to you whether to do that or
not, as it is as to all factual issues.” Even assuming the court erred in admitting
under the spontaneous statement exception to the hearsay rule Katrina‟s out-of-
court statement to her mother, the court‟s reference to that evidence in the limiting
instruction did not prejudice defendant, for the reasons discussed ante, in part
II.C.2.a.ii.
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evidence in this case. Almost immediately after the testimony in question, the
court instructed the jury on the limited purpose for which the evidence could be
considered. We find nothing in the record that would rebut the presumption that
the jury followed the court‟s directive. (People v. Cox (2003) 30 Cal. 4th 916,
963.)
Pointing to the trial court‟s finding that Katrina‟s statements to Jensen failed
to satisfy the requirements for admission as a spontaneous statement, defendant
complains that if the evidence was so unreliable as to fall outside that hearsay
exception, it should be inadmissible for all purposes. Defendant‟s argument,
which ignores the limited, nonhearsay purpose for which the testimony in question
was admitted, is contrary to law. The evidence was admitted for a purpose other
than for the truth of the matter asserted, and therefore need not have met the
reliability requirements of a hearsay exception. (See People v. Letner and Tobin
(2010) 50 Cal. 4th 99, 157 [because the defendant‟s statement was properly
admitted for the nonhearsay purpose of showing his consciousness of guilt, it was
unnecessary to show that it met the requirements for admission under Evid. Code,
§ 1221, the adoptive-admission exception to the hearsay rule]; People v. Jablonski
(2006) 37 Cal. 4th 774, 820-821 [murder victim‟s statement that she feared the
defendant was not admissible under the state of mind hearsay exception set out in
Evid. Code § 1250 to establish she was actually fearful of him, but was relevant to,
and admissible for, the nonhearsay purpose of its effect on the defendant‟s mental
state when going to visit the victims].) Defendant‟s challenge to the reliability of
Katrina‟s statement to Jensen, at most, goes to the weight of the evidence, and not
its admissibility.
Defendant‟s argument that the admission of Katrina‟s statement to Jensen
deprived him of his federal constitutional rights likewise fails. An out-of-court
statement properly admitted for a limited nonhearsay purpose does not render a
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trial fundamentally unfair in violation of a defendant‟s Fifth Amendment right to
due process. (People v. Livingston (2012) 53 Cal. 4th 1145, 1163.) Nor does it
deprive a defendant of the Sixth Amendment right to confront the witnesses
against him within the meaning. (Crawford v. Washington, supra, 541 U.S. at
p. 60, fn. 9; People v. Cage (2007) 40 Cal. 4th 965, 975, fn. 6.)
3. Admission of evidence defendant was in possession of a stolen car
Defendant contends the trial court erred by allowing the prosecutor to elicit
testimony that defendant was in possession of a stolen car on the morning of the
hours-long standoff with police that ended with his arrest. As we explain, the
court did not abuse its considerable discretion in admitting the evidence.
a. Background
As previously discussed in part II.A., the defense brought a pretrial motion to
sever trial on the murder count from trial on all other charges, including the
various counts stemming from the incident in January 1998 that preceded
defendant‟s arrest. In arguing for the severance of those crimes, the defense
presented an extensive offer of proof that defendant was not the person who police
had attempted to stop for riding a bicycle at night without a headlight. According
to the defense brief, on the morning that preceded the incident, defendant‟s friend
Naomi Sponza let him borrow her Ford Escort. Defendant used the vehicle to visit
the homes of assorted friends and acquaintances in the vicinity, and a number of
witnesses stated they had seen him driving the Ford that day. Later in the evening,
defendant drove to a residence where his girlfriend was socializing and parked the
car in front. Around the same time, and in close proximity to where defendant had
just parked, police were pursuing an individual who fled on foot after being
approached for the headlight violation. Witnesses told defense investigators that
the individual running from police was not defendant. According to the defense
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brief, the day after defendant had been taken into custody, his friend Sponza
retrieved her vehicle from the spot where defendant had left it.
Although the defense ultimately did not present the proffered evidence at
trial, some of it was presented in the prosecution‟s case-in-chief during the
testimony of defendant‟s acquaintance, Roy Miller. Miller testified in relevant
part that he was with defendant earlier in the day before the standoff with police
that evening.
During cross-examination, the defense asked Miller for further details
regarding his activities with defendant on the morning of the day the standoff
occurred. Miller indicated that he and defendant had been partying and using
drugs at someone‟s house the night before and parted company around 9:00 a.m.
When defense counsel asked how defendant left the house, Miller indicated that he
saw defendant and another individual drive off in a car.
The prosecutor followed up on that point during redirect examination,
eliciting from Miller that defendant had asked him to drive the car to someone‟s
house. When the prosecutor then asked the witness whether defendant told him
where he had gotten the car, the trial court sustained a defense relevancy
objection.
The court reversed its ruling, however, after hearing further argument from
the parties at a sidebar conference. At that time, the prosecutor indicated that his
question would elicit from Miller that the car was stolen and that defendant
wanted Miller to help him sell it. The prosecutor argued that the evidence was
relevant because the defense had opened the door to that issue by asking how
defendant had left the party in the morning. The trial court agreed with the
prosecutor, finding the evidence relevant because defense counsel‟s question
regarding defendant‟s departure suggested the defense would be pursuing the
theory, disclosed to the prosecution during discovery, that because defendant was
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driving a car on the day of the standoff, he could not have been the person on the
bicycle who fled from the officers.
When questioning resumed, the prosecutor elicited from Miller that
defendant told him the car was stolen and asked him to help drive the vehicle to
someone‟s house to get rid of it. When defense counsel asked Miller during
recross-examination whether defendant informed him that Naomi Sponza had
given him the car, he replied, “I don‟t think so.” Defense counsel did not later call
Sponza as a witness or present any other evidence during the defense case to
challenge the testimony identifying defendant as the person officers approached
for riding without a headlight and, in closing argument, the defense conceded
defendant‟s guilt of the charges stemming from the incident that preceded his
arrest.
b. Discussion
Only relevant evidence is admissible at trial. (Evid. Code, § 350.) Under
Evidence Code section 210, relevant evidence is evidence “having any tendency in
reason to prove or disprove any disputed fact that is of consequence to the
determination of the action.” A trial court has “considerable discretion” in
determining the relevance of evidence. (People v. Williams (2008) 43 Cal. 4th 584,
634.) Similarly, the court has broad discretion under Evidence Code section 352
to exclude even relevant evidence if it determines the probative value of the
evidence is substantially outweighed by its possible prejudicial effects. (People v.
Clark, supra, 52 Cal.4th at p. 893.) An appellate court reviews a court‟s rulings
regarding relevancy and admissibility under Evidence Code section 352 for abuse
of discretion. (People v. Linton (2013) 56 Cal. 4th 1146, 1181.) We will not
reverse a court‟s ruling on such matters unless it is shown “ „the trial court
exercised its discretion in an arbitrary, capricious, or patently absurd manner that
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resulted in a manifest miscarriage of justice.‟ [Citation.]” (People v. Brown,
supra, 31 Cal.4th at p. 534.)
Defendant contends the trial court‟s ruling was in error because the defense
had not placed before the jury the issue whether or not defendant was driving a car
on the morning of his arrest. Defendant‟s argument misses the mark. The issue in
dispute was not simply whether defendant was driving a car that morning but
rather whether it could be inferred from his possession of a car at that time that he
would not have been riding a bicycle later in the evening. Evidence that defendant
solicited Miller‟s help early in the morning to unload a stolen vehicle was relevant
to counter that inference.
It is true that at the time of the trial court‟s ruling the defense had not
presented any affirmative evidence in support of the theory, advanced prior to
trial, that defendant was not the person stopped by police for a bicycle headlight
violation. The trial court reasonably found, however, that the defense had begun
to lay the groundwork for raising the inferences upon which its misidentification
theory was premised by asking the witness during cross-examination what
defendant did when they parted company on the morning in question. Although
the defense ultimately declined to challenge the testimony identifying defendant as
the bicyclist stopped by police, counsel represented to the court at the time of its
ruling that the defense “may or may not go there.” On this record, we conclude
that the court did not abuse its discretion in finding the evidence regarding
defendant‟s possession of a stolen car relevant and admissible, on redirect
examination, to counter the inferences supporting a defense theory that counsel
had started to develop during cross-examination. (See Witkin, Cal. Evidence (5th
ed. 2012) Presentation at Trial, § 268, p. 385 [purpose of redirect examination is,
among others, to rebut inferences developed during cross-examination].)
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Defendant further contends that even if the evidence in question bore some
relevance to a disputed issue at trial, it should have been excluded as unduly
prejudicial under Evidence Code section 352 because it branded him as a criminal.
We disagree. The evidence regarding the events that culminated in defendant‟s
arrest included defendant‟s assaults on officers and his destruction of the interior
of the house in which he had barricaded himself. Miller‟s brief testimony that
defendant was in possession of a stolen vehicle on the morning of that incident
would not have “ „tend[ed] to evoke an emotional bias against [him] as an
individual‟ ” and would have had “ „very little effect on the issues.‟ ” (People v.
Karis, supra, 46 Cal.3d at p. 638.)
4. Admission of evidence attacking defense witness’s credibility
Defendant‟s mother, Beverlee Sue Merriman, was the principal witness for
the defense at the guilt phase. Defendant contends the trial court erred in
overruling a defense objection and permitting the prosecutor to challenge his
mother‟s credibility with irrelevant and prejudicial evidence that defendant had
asked her to facilitate certain possibly illegal activities for him. We conclude that
the court‟s ruling was proper.
a. Background
As previously noted, defendant‟s mother was charged with conspiring with
defendant and others to dissuade the witnesses who testified against defendant at
the grand jury proceeding that led to his indictment for murder. During trial on the
charges against Ms. Merriman, she was shown a transcript of the recorded
conversation between defendant and Nicassio in which defendant implicated
himself in Katrina‟s murder by instructing Nicassio to say Katrina‟s body went
over the catwalk, rather than through the house, so as not to involve his mother.
Sobbing uncontrollably after reading the transcript, Ms. Merriman said she “didn‟t
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know” and apologized, first to the prosecutor and then to Katrina‟s mother. The
following day she pleaded guilty to the charges.
In the course of the prosecutor‟s cross-examination of Ms. Merriman at
defendant‟s trial, the court held a hearing outside the jury‟s presence to rule on the
prosecutor‟s request to place into evidence a letter defendant wrote to his mother
from jail chastising her for thinking she was guilty of the charges against her. The
prosecutor pointed out that shortly after receiving that letter, defendant‟s mother
told a probation officer she was not guilty of the charges but pleaded guilty
because her counsel told her to. The letter impeached the witness‟s credibility, the
prosecutor argued, because it showed Ms. Merriman would say and do whatever
defendant wanted her to say and do. The court allowed the prosecutor to ask
Ms. Merriman about some portions of the letter.
When cross-examination resumed, the prosecutor elicited from
Ms. Merriman that she had received a letter from defendant in which he told her
he was upset about her guilty plea. She denied, however, that the letter caused her
to tell the probation officer she was not guilty. Defendant‟s mother agreed with
the prosecutor that when defendant asked her for something, she would do her best
to get it for him. When the prosecutor then asked her whether she would agree to
carry out defendant‟s wishes even if the requests involved illegal activity, the
defense objected on relevance and prejudice grounds and the court held a sidebar
conference.
Outside the earshot of the jurors, the prosecutor proffered a number of letters
from defendant to his mother that were written while defendant was in custody. In
one series of letters, defendant asked her to retrieve a .45-caliber gun from
someone. In another exchange, defendant wanted his mother to fill out paperwork
in order for him to receive disability benefits on his release from prison. The court
agreed with defense counsel that these activities were not illegal. However, it
96
found the evidence relevant to illustrate the prosecutor‟s point regarding the
witness‟s relationship with defendant, and ruled it would allow a “brief inquiry.”
Before questioning resumed in open court, the court directed the jury to
disregard the prosecutor‟s previous reference to criminal behavior. The court then
admitted into evidence several letters from defendant to his mother that
Ms. Merriman read aloud to the jury. In one of the letters, defendant wrote in
relevant part, “What up with that .45? Did you go and pick it up . . . from Mike‟s
friend yet? No. Okay. I didn‟t think so. So this is another reminder, go pick
up — go pick the gun up. I am not going — I am not giving my gun to them, ha-
ha, no way.” In another letter, defendant asked his mother to help him with
paperwork for government disability benefits, saying he could receive a monthly
check for $700 once he was released from prison. Defendant wrote, “I‟m going to
talk with a psych while I‟m here at Wasco [State Prison]. They always want to put
you on those dummy pills that make me shuffle and sleep all day. I‟ll act like I
swallowed „em, and spit „em out in the toilet when I get on my way with it. For
700 — for $700 bills a month, why not?” In response to the prosecutor‟s question
whether she helped defendant with his disability benefits application,
Ms. Merriman said, “Yes and no,” adding that defendant needed assistance for a
surgery that she could not afford.
During closing argument, the prosecutor returned to the subject of
interactions between defendant and his mother, remarking that the relationship
between defendant and Ms. Merriman was relevant to her credibility because the
person in control was defendant and he had “completely skewed her reality about
what‟s going on in the world.” The prosecutor illustrated the point, not by
referring to the letters concerning the .45-caliber gun or the disability benefits
application, but rather by replaying a taped conversation at jail between defendant
and his mother in which Ms. Merriman told defendant she was planning to give a
97
refrigerator to defendant‟s sister but changed her mind when defendant expressed
his disapproval.
b. Discussion
Defendant contends that the trial court‟s ruling admitting evidence that he
asked his mother to carry out on his behalf potentially criminal activity relating to
firearms and disability benefits fraud permitted the jury to hear even more
evidence of uncharged offenses having no bearing on Katrina‟s murder. More
specifically, he argues that the letters in question are akin to the improper evidence
that led to reversal of the defendant‟s voluntary manslaughter conviction in People
v. Ortiz (1979) 95 Cal. App. 3d 926. The Court of Appeal in Ortiz concluded the
trial court committed prejudicial error by allowing the prosecutor to elicit and
comment upon irrelevant and highly inflammatory testimony describing in detail
how the defendant performed animal sacrifices in connection with his membership
in a religious cult. (Id. at pp. 933-936.) In reversing the defendant‟s conviction,
the appellate court concluded that the defendant‟s religious practice was irrelevant
to any issue in the case (id. at p. 933), and that the prosecutor‟s repeated reference
to animal sacrifices posed a substantial danger of undue prejudice because it
“create[d] a negative image of defendant in the minds of the jury.” (Id. at p. 934.)
Contrary to defendant‟s contention, Ortiz is distinguishable from the present
matter in important respects. Unlike in Ortiz, the evidence in question here was
relevant in that it bolstered the prosecutor‟s attack on Ms. Merriman‟s credibility,
that is, it tended to show she would do and say anything defendant told her to do
and say. (See Evid. Code, § 210.) Furthermore, unlike in Ortiz, there was no risk
of undue prejudice from the admission of the letters. The prosecutor‟s cross-
examination in this regard was brief and mostly involved having Ms. Merriman
read the letters aloud to the jury. Notably, the prosecutor did not refer to the
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letters at all during closing remarks. Given the minor role this evidence played in
the prosecutor‟s vigorous attempts to cast doubt on Ms. Merriman‟s veracity, and
the court‟s admonition to the jury to disregard the prosecutor‟s question describing
the evidence as requests to engage in criminal activities, defendant fails to
persuade that the admission of the letters asking his mother to retrieve a gun and to
help him apply for disability benefits were likely to have created such “a negative
image of [him] in the minds of the jury” (People v. Ortiz, supra, 95 Cal.App.3d at
p. 934) as to outweigh the probative value of the evidence. We conclude there
was no error in the court‟s implied finding under Evidence Code section 352
permitting the evidence for purposes of impeaching the defense‟s main witness.
5. Admission of items seized from defendant’s bedroom
Defendant next challenges the admission of two pornographic magazines and
two Polaroid photographs showing defendant and a fellow gang member with
knives in their hands, all of which were seized during a search of his bedroom five
years after Katrina‟s disappearance.
Well-settled law governs our review of the trial court‟s rulings admitting the
evidence in question. As previously explained, a trial court is authorized to admit
only relevant evidence, that is, evidence “having any tendency in reason to prove
or disprove any disputed fact that is of consequence to the determination of the
action.” (Evid. Code, § 210; see id., § 350.) A trial court has considerable
discretion to exclude even relevant evidence, however, if it determines the
probative value of the evidence is substantially outweighed by its possible
prejudicial effects. (Evid. Code, § 352; see People v. Clark, supra, 52 Cal.4th at
p. 893.) A trial court‟s rulings in this regard will be upheld on appeal unless it is
shown “ „the trial court exercised its discretion in an arbitrary, capricious, or
patently absurd manner that resulted in a manifest miscarriage of justice.‟
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[Citation.]” (People v. Brown, supra, 31 Cal.4th at p. 534.) For the reasons
explained below, we conclude defendant fails to show an abuse of discretion.
a. Pornographic magazines
During the prosecution‟s case-in-chief, the court considered the admissibility
of two pornographic magazines proffered by the prosecutor as a representative
sample of the 100-plus pornographic magazines discovered by investigators
during their search of defendant‟s bedroom. One of the magazines was an adult
sexual fantasy comic book with an “evil woman” theme that included illustrations
of scantily clad, seductively posed women with exaggerated features. The other
magazine was a copy of Bridled, which featured staged photographs of nude adult
women who had been gagged and bound, with some of the photographs
suggesting the subjects were being whipped. The court did not disagree with
defense counsel that most people would find such images “disgusting.” The court
was persuaded, however, that the magazines were admissible to confirm the
testimony of the alleged sexual assault victims, whose testimony had been
vigorously challenged by the defense during cross-examination. The court also
found the magazines relevant to rebut character evidence, also elicited by the
defense, that some of the female witnesses considered defendant a “good guy.”
The magazines were admitted into evidence a short time later during the
testimony of Detective Volpei, the investigator who conducted the search of
defendant‟s bedroom. Volpei provided a brief description of the magazines‟
contents and informed the jury that he had found over 100 such publications in
defendant‟s dresser drawer. The two magazines were not provided to the jury at
that time, however.
Contrary to defendant‟s assertion, the court could reasonably find that the
two pornographic magazines seized from his bedroom were relevant. Billie B.,
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Robyn G., and Kristen S. each testified that defendant forced her to orally copulate
or masturbate him while he flipped through pornographic magazines. The
evidence of defendant‟s extensive collection of such material tended to
corroborate their testimony regarding the circumstances of the sexual assaults.
(See People v. Gann (1968) 259 Cal. App. 2d 706, 713 [numerous photographs
depicting nude men and women engaged in sexual intercourse that were seized
from the defendant‟s residence were properly admitted to corroborate the
molestation victims‟ reports that they had been shown such photographs before the
lewd acts occurred]; cf. People v. Scheid (1997) 16 Cal. 4th 1, 15 [crime scene
photograph was relevant to illustrate and corroborate the witnesses‟ testimony
regarding the circumstances of the crime].) Because the pornographic magazine
evidence tended to corroborate the sexual assault victims‟ testimony, it was highly
probative of the factual similarities between the sexual assaults. As previously
discussed, the similarities between these incidents, in turn, tended to show
defendant‟s propensity to commit such crimes. (Evid. Code, § 1108; see
discussion ante, pt. II.C.1.)
Defendant argues that evidence he possessed pornographic magazines would
have been sufficient to corroborate the testimony of the sexual assault victims in
this regard, and there was no need for the prosecutor to present the actual contents
of these materials. It is true that the prosecutor could have asked Investigator
Volpei merely to describe the magazines‟ contents instead of moving the court to
admit those materials for the jury‟s possible inspection during deliberations. Our
decisions make clear, however, that the court is not required to exclude
photographic or other documentary evidence simply because the images they
depict could have been described by a witness. (People v. Michaels (2002)
28 Cal. 4th 486, 532 [evidence that was cumulative of testimony could assist the
jury in evaluating the testimony]; People v. Scheid, supra, 16 Cal.4th at p. 19.) So
101
long as the probative value of graphic or disturbing material is not substantially
outweighed by its prejudicial effects, a prosecutor is entitled to use such evidence
to “present a persuasive and forceful case.” (People v. Booker (2011) 51 Cal. 4th
141, 171.)
Regarding the potential prejudicial impact, defendant argues that the
pornography was highly inflammatory evidence that portrayed him as a person of
low moral character. We have recognized that certain sexually explicit magazines
and photographs “would undoubtedly be disturbing to most people.” (People v.
Memro (1995) 11 Cal. 4th 786, 865.) On the record before us, however, it cannot
be said that the risk of undue prejudice from the magazine evidence outweighed its
probative value in corroborating the testimony of witnesses whose veracity was
being vigorously challenged by the defense. Although the stylized illustrations of
“evil women” and images of staged bondage arguably carried a risk of evoking an
emotional bias from the jury, it is unlikely that the effect of this evidence would
have produced a reaction that differed in any significant respect from the impact of
the witnesses‟ testimony describing the degrading and humiliating circumstances
of the sexual assaults against them. This court has recognized that evidence of
pornography “may threaten to distract jurors from potentially more probative
evidence and to consume undue amounts of time.” (People v. Page (2008)
44 Cal. 4th 1, 41, fn. 17.) No such concerns are presented here, however. The
pornography evidence was admitted for the limited purpose of establishing witness
credibility, it did not require further explanation or additional evidence, and its
presentation comprised only a small part of the prosecution‟s case-in-chief. We
conclude the court did not abuse its discretion in finding that the probative value
of the pornography evidence was not substantially outweighed by its potential for
undue prejudice.
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b. Photographs of defendant holding knives
The prosecutor initially sought admission of two photographs that were taken
in defendant‟s bedroom one or more years after Katrina‟s disappearance. After
conducting a hearing, the court excluded one photograph and admitted the other.
The court found unduly prejudicial and refused to admit a staged photograph that
depicted defendant and a fellow gang member holding knives to each other‟s
throats. Over defense objection, the court admitted the other photograph, which
showed a hacksaw in the background and defendant and fellow gang member,
Mitch Buley, with knives in their hands. The court agreed with the prosecutor that
the image was probative of defendant‟s access to knives and tools in his bedroom.
The photograph was admitted into evidence a short time later and handed to the
jurors for their examination.
For the next two days, the jury heard testimony by Ryan Bush, one of the two
eyewitnesses to Katrina‟s killing. During the course of that testimony, and over
defense objection, the court granted the prosecutor‟s request to admit another
photograph that had been seized during the search of defendant‟s bedroom. That
image, also taken in defendant‟s bedroom, showed Buley holding a hacksaw to
defendant‟s head in a mock threat and defendant pointing a small knife toward the
camera. The court found the photograph probative on the subject of defendant‟s
use of a smaller sized knife in the alleged murder, an issue the court believed had
become more prominent after defense counsel‟s cross-examination of Bush. The
court explained furthermore that the proffered evidence was much less prejudicial
than the photograph it had previously ruled inadmissible because defendant is not
being shown holding a knife to someone‟s neck. When the prosecution‟s case
resumed, the photograph was admitted into evidence and shown to the jury.
Defendant asserts that the court erred in admitting the photographs of him
and his fellow gang member because the presence of knives and a hacksaw in his
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bedroom one or more years after Katrina‟s disappearance tended to prove no fact
at issue in the case. We observe in this regard that the prosecution did not advance
the theory at trial that defendant used the knives or the hacksaw depicted in the
photographs to murder Katrina. (Cf. People v. Champion (1995) 9 Cal. 4th 879,
924 [photographs of both defendants holding the type of gun used in killing one of
the victims were “obviously relevant”]; People v. Rinegold (1970) 13 Cal. App. 3d
711, 720 [“an implement by means of which it is likely that a crime was
committed is admissible in evidence if it has been connected with the
defendant”].)
This court also has observed, however, that evidence of weapons
unconnected to the crime may be relevant for other purposes. (People v. Prince
(2007) 40 Cal. 4th 1179, 1249; People v. Cox (2003) 30 Cal. 4th 916, 955-956.)
In the present case, the photographs were relevant in that they tended to show
defendant kept knives and tools in his bedroom, which in turn tended to
corroborate the testimony of the eyewitnesses Nicassio and Bush regarding
defendant‟s fatal attack on Katrina. Defense counsel vigorously cross-examined
Bush regarding his recollection of defendant coming up behind Katrina with a
knife and stabbing her in the throat, which arguably called into question his
account of the incident. (People v. Sassounian (1986) 182 Cal. App. 3d 361, 401-
402 [photographs of the defendant in battle fatigues and holding various firearms
weapons were relevant because they tended to corroborate the testimony of the
prosecution‟s primary witness in the face of substantial attacks by the defense
during cross-examination].) Contrary to defendant‟s argument, the photographs
were not admitted simply to ascribe to him additional antisocial behavior. (See
People v. Prince, supra, 40 Cal.4th at p. 1249 [evidence of knives seized from the
defendant‟s vehicle was relevant to his commission of crimes other than the
murder and did not simply constitute bad character evidence].)
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As for whether the trial court erred by not excluding the photographs as being
more prejudicial than probative under Evidence Code section 352, we conclude
the court did not abuse its broad discretion in this regard. The probative value of
the evidence for purposes of corroborating the eyewitnesses‟ testimony was
arguably limited, given that the photographs were taken at a time well after the
killing. On the other side of the equation, however, the photographs were neither
unduly inflammatory nor likely to engender an emotional response by the jury. As
the court pointed out when ruling the evidence admissible, neither of the
photographs showed defendant threatening anyone with a knife. Furthermore,
other testimony presented at trial indicated that defendant and his fellow gang
members routinely wielded knives and other weapons. For example, the
prosecution‟s gang expert informed the jury that between 1994 and 1998, eight
members of the SHD gang had been convicted of assault with a deadly weapon.
Indeed, the jury heard evidence that defendant used a large knife to slash wildly at
officers who were attempting to apprehend him when he temporarily exited the
tear-gas-filled house in which he had barricaded himself to avoid arrest. The court
reasonably could determine that, on balance, the probative value of the photograph
evidence was not substantially outweighed by its potential prejudicial effect. No
abuse of discretion appears.
6. Admission of evidence that prosecution witnesses were reluctant to
testify
Defendant contends the court erred by allowing the prosecutor to elicit from
seven prosecution witnesses that they were nervous and reluctant to testify. As we
explain, defendant has forfeited his claim of error regarding all but two of the
witnesses in question and his contention lacks merit in any event.
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a. Background
To support the vandalism count, the prosecution called Jennifer Bowkley to
testify regarding defendant‟s actions inside the house in which he had barricaded
himself prior to his arrest. At the outset of that testimony the prosecutor asked the
witness how she was feeling. She responded that she was nervous and scared and
“wanted to forget that night.” When the witness agreed with the prosecutor that
she did not want to be in court, defense counsel moved to strike her answer as
irrelevant. The court overruled the objection without comment, and the prosecutor
elicited from the witness that after she had been subpoenaed she told investigators
that she did not want to have anything to do with the case.
Without objection, sexual assault victims Billie B., Susan V., Robyn G., and
Robyn G.‟s friend, Elaine Byrd, likewise indicated at the outset of direct
examination that they were nervous. Billie B., Corie G., Robyn G., and Kristin S.
also expressed reluctance to openly discuss the sexual assaults against them. For
example, before testifying regarding the details of the sexual assaults, Billie B.
stated that the incidents were something she would “rather not talk about in front
of people.”
The prosecutor asked two of these witnesses whether testifying at trial was
more difficult and stressful than testifying at the grand jury proceeding. Over
defense counsel‟s relevancy objection, Corie G. stated that giving trial testimony
was harder for her because defendant and his mother were “right there.” Without
objection, Robyn G. testified to the contrary that she was more nervous testifying
in front of the grand jury because she did not want to be labeled a rat. On further
questioning, she indicated that she had asked to be excused from that proceeding
because she was scared, embarrassed, and trying not to be involved.
Also without objection, the prosecutor elicited from two witnesses that they
felt fearful testifying in court. Billie B. admitted that she had not reported the
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sexual assaults to police but indicated that she believed if she had done so, there
would have been attacks on her home, herself, and her children. When asked
whether she harbored similar fears by being in court, she said she did. Corie G.
likewise testified that she did not consider reporting the sexual assault to police
because she feared defendant and his friends. Confirming that she no longer
resided in the area, she added, “I hate being in Ventura; there‟s fear.”
b. Discussion
Defendant complains that the prosecutor‟s inquiry into the female witnesses‟
discomfort and nervousness on the witness stand should not have been allowed
because the line of questioning was irrelevant to an assessment of these witnesses‟
credibility and it improperly suggested to the jury that the witnesses had been
threatened by defendant and feared him.
As a threshold matter, we agree with the Attorney General that defendant has
forfeited his claim of error regarding the admission of evidence that prosecution
witnesses were reluctant to testify, except to the extent he challenges as irrelevant
the above described testimony by Jennifer Bowkley and Corie G. Absent a timely
objection in the trial court on the ground or grounds urged on appeal, we generally
will not review challenges to the admissibility of evidence. (People v. Fuiava
(2012) 53 Cal. 4th 622, 670; People v. Waidla (2000) 22 Cal. 4th 690, 717.)
Defendant acknowledges that his counsel did not object to most of the
testimony in question, but argues that after the initial objection it was “clear” that
the court would have overruled any further defense challenges to similar
questioning. Defendant‟s bare assertion that further objection would have been
futile is unconvincing. In challenging Jennifer Bowkley‟s testimony to the effect
that she did not want to be in court, defense counsel simply stated, “Objection,
Your Honor; irrelevant.” The court, in turn, overruled the objection without
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comment and counsel raised no further objection to the witness‟s continued
testimony in this regard. On the present record, we cannot presume that because
the court overruled the objection to Bowkley‟s testimony, it necessarily would
have overruled subsequent challenges to evidence of other witnesses‟ reluctance to
testify. (People v. Valdez (2012) 55 Cal. 4th 82, 138-139.) Defendant‟s claim is
forfeited except to the extent it challenges the relevance of testimony by Bowkley
and Corie G. regarding their reluctance to testify.
Defendant‟s challenge to evidence that prosecution witnesses were nervous
and reluctant to testify lacks merit in any event. Contrary to defendant‟s assertion,
such evidence was relevant to the evaluation of the witnesses‟ credibility. Under
Evidence Code section 780, which concerns the scope of questioning at trial, a
jury may consider “any matter that has any tendency in reason to prove or
disprove the truthfulness of [a witness‟s] testimony,” unless such evidence is
inadmissible under some other statutory provision. Such matters include the
witness‟s “demeanor while testifying and the manner in which” the witness
testified (Evid. Code, § 780, subd. (a)), and the witness‟s “attitude toward the
action” or “toward the giving of testimony” (Id. subd. (j)).
The trial court did not abuse its discretion in overruling the defense relevancy
objection to Jennifer Bowkley‟s testimony that she did not want to be in court.
(People v. Williams, supra, 43 Cal.4th at p. 634 [a trial court is vested with
“considerable discretion” in determining the relevance of evidence].) As the
Evidence Code makes clear, the witness‟s attitude toward testifying would have
assisted the jury in evaluating her credibility. (Evid. Code, § 780, subd. (j).)
Nor did the court abuse its discretion in overruling defense counsel‟s
relevancy objection to Corie G.‟s testimony that it was more difficult for her to
testify at trial than it had been to testify at the grand jury proceeding because
defendant and his mother were present in the courtroom. Just prior to eliciting that
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testimony, the prosecutor confirmed with the witness that she had been
uncomfortable talking to investigators about the sexual assault and found it
difficult to testify about the incident at the grand jury proceeding. Her testimony
regarding the additional discomfort she felt in describing the incident in front of
defendant and his mother was relevant to her demeanor on the witness stand.
Although the cold record does not fully disclose the witness‟s emotional state at
the outset of questioning, it strongly suggests she was nervous and shaken.
Immediately following the challenged testimony, the prosecutor asked the witness,
“Are you gonna be able to do this?” After the witness nodded her head
affirmatively, the prosecutor reassured her, saying, “Take your time. We‟ll go
slow, all right.” The witness‟s testimony indicating it was difficult for her to
testify in front of defendant and his mother tended to explain her demeanor on the
witness stand and therefore was relevant to her credibility. (Evid. Code, § 780,
subd. (a).)
We reach the same conclusion regarding the relevance of Robyn G.‟s
expression of discomfort and nervousness when testifying at trial. (Evid. Code,
§ 780, subd. (a); People v. Scott (2011) 52 Cal. 4th 452, 493 [a witness‟s
“ „demeanor is always relevant to credibility‟ ”]; Elkins v. Superior Court (2007)
41 Cal. 4th 1337, 1358 [observing that witness demeanor is “ „ “part of the
evidence” ‟ ” and “ „of considerable legal consequence‟ ”].) Robyn G.‟s testimony
indicating she was uncomfortable talking openly about the sexual assaults was not
only relevant to her demeanor at trial, but also tended to explain why she had not
disclosed during her grand jury testimony that defendant inserted a gun into her
vagina. (People v. McAlpin (1991) 53 Cal. 3d 1289, 1300 [evidence of factors that
may have affected a witness‟s prior statements or testimony is relevant to the
witness‟s credibility].)
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Regarding the two witnesses who indicated that they feared retaliation for
testifying at trial, such evidence was clearly relevant. As this court has previously
recognized, “[e]vidence that a witness is afraid to testify or fears retaliation for
testifying is relevant to the credibility of that witness . . . . [as is an] explanation of
the basis for the witness‟s fear . . . .” (People v. Burgener (2003) 29 Cal. 4th 833,
869; accord, People v. Guerra (2006) 37 Cal. 4th 1067, 1141-1142.) “A witness
who testifies despite fear of recrimination of any kind by anyone is more credible
because of his or her personal stake in the testimony. . . . [¶] Regardless of [the
source of the threat], the jury would be entitled to evaluate the witness‟s testimony
knowing it was given under such circumstances.” (People v. Olguin (1994)
31 Cal. App. 4th 1355, 1368-1369, italics omitted.)
Defendant does not dispute that the line of questioning pursued by the
prosecutor could be relevant to a witness‟s credibility. He argues, however, that
our decisions have limited such testimony to circumstance in which the witness
hesitates in his or her responses or when nervousness or fear interferes with the
witness‟s ability to testify truthfully. (See, e.g., People v. Guerra, supra, 37
Cal.4th at p. 1142 [“evidence that [the witness] feared retaliation for testifying
against defendant was [properly] offered for the . . . purpose of explaining
inconsistencies in portions of her testimony, including her equivocal responses
when asked whether she feared retaliation”].) We do not share defendant‟s
understanding of the law. A witness‟s hesitation in answering questions is only
one of any number of reasons that evidence may be relevant to his or her
credibility; our cases establish no such limitations. (See People v. Mendoza,
supra, 52 Cal.4th at p. 1086 [inconsistent testimony is not a prerequisite for
admission of evidence of a witness‟s fear of testifying].) Indeed, as People v.
Mendoza explains, a trial court has discretion, within the strictures of Evidence
Code section 352, to permit the prosecution to introduce evidence supporting a
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witness‟s credibility even on direct examination, so long as the prosecution
reasonably expects the defense to attack the witness‟s credibility during cross-
examination. (People v. Mendoza, supra, at p. 1085.) In the present matter, the
witnesses in question were former drug users. Most of the witnesses had been
involved in consensual sexual relationships with defendant and none had reported
the sexual assaults to law enforcement until years after the incidents occurred.
The prosecutor reasonably could anticipate, first from the defense motion to sever
charges and then from defense counsel‟s cross-examination during various pretrial
hearings that the defense would vigorously challenge these witnesses‟ credibility
at trial. The prosecutor was entitled to present evidence of the witnesses‟
reluctance to testify to preemptively counter such an effort. (See People v. Sapp,
supra, 31 Cal.4th at pp. 280-281 [trial court properly allowed the prosecutor to
present evidence that the defendant‟s friends warned the prosecution witness
against giving the police information regarding the murder victim‟s disappearance
in order to counter evidence that the witness had not come forward to report what
she knew].)
Defendant argues furthermore that the prosecutor‟s questioning was an
improper attempt to convey to the jury that defendant had directly threatened the
witnesses, which was especially prejudicial given that he had been charged with
witness dissuasion. We disagree with the premise of defendant‟s assertion.
Nothing in the prosecutor‟s line of questioning or in the witnesses‟ testimony
suggested that the reason for anyone‟s reluctance to testify was because defendant
had threatened or intimidated her. Indeed, there was ample evidence from which
to infer that the witnesses were reluctant to testify, not because defendant had
threatened them, but because of their desire to distance themselves from their prior
association with the SHD gang‟s culture and lifestyle. There was no error in
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eliciting from the seven witnesses in question that they were reluctant to testify at
trial.
D. Instruction on Circumstantial Evidence
Defendant complains that he was denied due process and other constitutional
rights because, he alleges, the instruction that explained to the jury how to
consider circumstantial evidence were contrary to the requirement of proof beyond
a reasonable doubt. We have repeatedly rejected similar challenges to the
circumstantial evidence instructions, and find no basis on which to reach a
different conclusion here.
The court instructed with CALJIC Nos. 2.01 and 8.83 regarding the
sufficiency of circumstantial evidence to prove guilt and the special circumstance
allegations, respectively. In relevant part, both instructions informed the jury that
if one interpretation of the circumstantial evidence “appears to you to be
reasonable and the other interpretation to be unreasonable, you must accept the
reasonable interpretation and reject the unreasonable.”
Defendant contends that telling the jurors they must accept an interpretation
of the evidence “that appears to be reasonable” allows a finding of guilt based on
proof less than beyond a reasonable doubt. (See Cage v. Louisiana (1990)
498 U.S. 39, 41.) We have long rejected the identical contention. “ „When the
questioned phrase is read in context, not only with the remaining language within
each instruction but also together with related instructions, including the
reasonable doubt instruction, it is clear that the jury was required only to reject
unreasonable interpretations of the evidence and to accept a reasonable
interpretation that was consistent with the evidence.‟ [Citations.]” (People v.
Myles (2012) 53 Cal. 4th 1181, 1216.)
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Defendant also criticizes the circumstantial evidence instructions for
requiring the jury to draw an incriminatory inference when such an inference
appears to be merely reasonable. According to defendant, imposing on the jurors
a duty to accept an interpretation of evidence pointing to his guilt creates an
impermissible mandatory, conclusive presumption. (Carella v. California (1989)
491 U.S. 263, 265-266.) We have consistently rejected the identical contention,
and do so again here. (People v. Jones (2013) 57 Cal. 4th 899, 972; People v.
Myles, supra, 53 Cal.4th at pp. 1216-1217.)
E. Juror Misconduct
Defendant contends that a juror‟s misconduct during jury selection and later
at the guilt phase requires reversal of the judgment. We agree with defendant that
misconduct occurred during the guilt phase but conclude after an independent
review of the entire record that the presumption of prejudice arising from that
misconduct has been rebutted and that defendant is not entitled to relief.
1. Background
The jury returned its guilt phase verdicts on February 13, 2001, finding
defendant guilty of murder and all other charges but one, and finding true all of the
associated sentencing allegations, including the rape-murder and oral-copulation-
murder special-circumstance allegations. The penalty phase of trial commenced
just shy of two weeks later, on February 27. On March 5, during the prosecution‟s
rebuttal case, the court met with counsel outside the jury‟s presence to inform
them that two juror-related problems had arisen that morning. First, Juror No. 1
had left a message saying she would be unavailable to come to court due to a
family illness. Second, one of the sheriff‟s deputies assigned to the courtroom
reported to the court that he had learned from a fellow officer, Deputy Kathleen
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Baker, that Baker and a seated juror with whom she was acquainted may have
discussed the case over lunch.
With counsel‟s assent, the court called the jurors into the courtroom and
asked them as a group whether anyone knew or may have had contact with Deputy
Baker. No juror gave an affirmative response. Outside the jury‟s presence, the
sheriff‟s deputy who had reported the communication to the court then provided
more details about his encounter with Deputy Baker, which had occurred when
they ran into each other in a bookstore the previous day. According to the officer,
Deputy Baker told him she had had lunch with a juror who said that she had been
on a murder trial for two months and that “they were gonna fry him.”
A short time later, again outside the jury‟s presence but with counsel‟s assent
and involvement, the court placed a telephone call to Juror No. 1. The court first
inquired about Juror No. 1‟s message regarding her unavailability. She explained
that she could not attend trial all week because she had to care for her adult
daughter, who was recuperating from a serious surgery. When the court then
asked her whether she was acquainted with Deputy Baker, Juror No. 1 indicated
that Deputy Baker was her other daughter‟s sister-in-law and that her daughter had
told her that Deputy Baker was working near the courthouse. Juror No.1 admitted
that she had spoken to Deputy Baker by telephone on the day the jury announced
its guilt phase verdicts and on one other occasion, between two and four weeks
earlier, to set up a lunch date. She explained, however, that they never met for
lunch because Deputy Baker‟s superiors ordered her not to. Juror No. 1 repeatedly
denied telling Deputy Baker, “We‟re gonna fry him.” According to Juror No. 1,
Deputy Baker ascertained during their first telephone conversation that she was
serving as a juror in defendant‟s case, although Juror No. 1 could not remember
whether she or Deputy Baker commented on the trial.
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With no objection from counsel for either side, the court excused Juror No. 1
from the jury and appointed an alternate juror to take her place. A hearing
regarding possible misconduct commenced the same afternoon.
a. Hearing on juror misconduct
Deputy Baker was the first witness to testify at the hearing. She confirmed
that her brother was married to Juror No. 1‟s daughter and indicated that she had
seen Juror No. 1 once a year or so at family gatherings. Deputy Baker testified
that Juror No. 1 had left a message on her home answering machine about three or
four weeks earlier, mentioning that she was on jury duty in the Ventura County
courthouse and suggesting they meet for lunch. Under the impression that Juror
No. 1 had simply been summoned to appear for jury selection, Deputy Baker
returned the call. During the course of that five-minute conversation, they spoke a
little about Deputy Baker‟s brother. In response to Deputy Baker‟s questions
about jury duty, Juror No. 1 told her she had been a juror on defendant‟s case for
the past two months and that she liked the experience. Deputy Baker recalled
Juror No. 1 then blurting out, “Yeah, we . . . we all want to fry him.” According to
Deputy Baker, she “really didn‟t think anything of [Juror No. 1‟s statement]” and
did not respond to it. During questioning by the prosecutor, however, Deputy
Baker described Juror No. 1 as a “sweet,” “older gal” and agreed with him that it
seemed unlikely Juror No. 1 would use that type of language. Deputy Baker
acknowledged it was “possible” she was only interpreting what Juror No. 1 had
said to her. She was certain, however, that Juror No. 1 had not discussed the case
or the jury‟s deliberations with her. Deputy Baker believed their first conversation
had occurred three or four weeks earlier, on a Sunday. A couple of days after that,
they had a second, very brief telephone conversation in which Deputy Baker told
Juror No. 1 that, at her supervisor‟s directive, she could not have lunch with her.
115
Deputy Baker indicated during questioning that she had related Juror No. 1‟s
statement to several individuals, including her husband and two supervising
officers, all of whom testified at the hearing when it resumed the following day.
Sergeant Richard Barber testified that Deputy Baker mentioned to him she was
planning to have lunch with a “Merriman juror” who said they were going to
“hang him” or “fry him.” Captain Gordon Hansen testified that he overheard
Deputy Baker‟s conversation with Barber and recalled hearing Baker say the juror
indicated “[they] were anxious to convict [defendant] of the charges” and “looking
forward to frying this guy.” Captain Hansen could not recall the precise date he
overheard Deputy Baker relate the juror‟s statement to Sergeant Barber, but he
believed it was midmorning on the day before the newspaper reported the guilty
verdicts.
The testimony of Deputy Baker‟s husband Michael, who also was a deputy
sheriff, mostly echoed that of his wife but differed in one significant respect. Like
Deputy Baker, he described Juror No. 1 as a family acquaintance with whom they
had socialized no more than four or five times, and not a close relative. He also
indicated that within the last 30 days Juror No. 1 had called their residence several
times when his wife was not at home, and that she once left a message on their
answering machine. Deputy Baker‟s husband testified that if his wife had told him
that her brother‟s mother-in-law was a juror in the Merriman case, it likely “would
have went in one ear and out the other.” He did not recall his wife telling him that
Juror No. 1 said “they‟re going to fry Merriman,” but he believed that such
terminology would be something he would remember.
The sheriff‟s deputy who had first reported to the trial court Deputy Baker‟s
communication with a juror also gave sworn testimony at the hearing, repeating
his account of the casual, off-duty conversation with Deputy Baker two days
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earlier in which she told him she had had lunch with a Merriman trial juror who
told her “they were looking forward to frying him.”
At one point during the hearing, the trial court judicially noticed the jury‟s
guilt phase verdicts in the case. Specifically, the court took judicial notice that the
verdicts on the murder count and special circumstance allegations were dated
Tuesday, February 13, 2001, and the verdicts on all other counts and allegations
were dated Friday, February 9.
Juror No. 1 was the hearing‟s final witness and she was extensively
questioned by the court and the attorneys, this time while under oath. After her
telephone conversation with the court on the previous morning, she had been
trying to recall the events in question and brought along the notes she had written
in this regard, which she referred to during the hearing and later gave to the court.
Some of Juror No. 1‟s testimony was consistent with that given by Deputy
Baker and Baker‟s husband. For example, she indicated that, at her daughter‟s
suggestion, she had called the Bakers‟ residence, and that when Deputy Baker
returned her call, they chatted for three to five minutes about family matters and
Deputy Baker‟s job, and made tentative plans to have lunch. A second
conversation occurred when she called Deputy Baker from the courthouse on
February 13, 2001, during a recess between the time the verdicts had been signed
and when they were formally announced in open court. Deputy Baker informed
her at that time that she was not permitted to have lunch with her, and neither of
them discussed the case.
Juror No. 1 confirmed that the subject of the Merriman trial arose at one
point during her first telephone conversation with Deputy Baker. But her
recollection of the exchange was markedly different from Baker‟s. According to
Juror No. 1, Baker “said something like, „I hope you put him away,‟ ” to which
Juror No. 1 replied, “He will be put away” or “He will be.” As Juror No. 1
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explained at the hearing, “it was a capital case and [defendant] was either gonna
spend his life in prison or [get] the death penalty.”
Juror No. 1 repeatedly testified she was unsure when the first conversation
took place but believed it was before, rather than during deliberations. When the
prosecutor pointed out that Juror No. 1‟s response to Deputy Baker‟s comment
suggested that defendant already would have been convicted of something, Juror
No. 1 explained that the reason for her remark was that the evidence was so
overwhelming. She further explained that her response was an expression of her
own opinion, no one else‟s, and that she did not discuss the conversation with
anyone else, including any of her fellow jurors.
Referencing Juror No. 1‟s statement regarding the overwhelming evidence of
guilt, defense counsel observed that it sounded as though she had made up her
mind prior to deliberations. Juror No. 1 replied, “[t]hat probably is true.” She
then explained, however, that deliberations were conducted “very conscientiously”
and “everything that was deliberated upon was . . . judged by evidence.”
Juror No. 1 did not recall saying, “We‟re gonna fry him,” even jokingly, and
she agreed with the prosecutor that those were words she normally would not use.
She acknowledged it was possible she did so, however.
When the court resumed questioning, it focused initially on whether there
was any comment or conversations either before or during deliberations with
regard to penalty. Juror No. 1 did not recall any.
The court then further probed Juror No. 1‟s affirmative response to defense
counsel‟s suggestion that she probably had made up her mind before deliberations
because the evidence at trial was overwhelming. When the court asked Juror
No. 1 whether she went into deliberations with an open mind and considered
everything the other jurors had to say, she indicated that she did. Highlighting the
apparent conflict between those responses, the court asked Juror No. 1 to explain.
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She clarified that she and the other jurors did not vote on the counts until they had
examined all of the exhibits that backed up each of the charges. In response to the
court‟s question whether she based her votes on her impressions before
deliberations had started or on the deliberations, Juror No. 1 said she voted based
on “when we found the evidence.” As she further explained, “everything was
backed up so we knew.”
The court continued its inquiry into whether Juror No. 1 had prejudged the
case by focusing on her purported statement to Deputy Baker that defendant “will
be put away.” Juror No. 1 indicated that she had not actually made up her mind
when she made that statement. As she explained, the evidence was overwhelming
but during deliberations she and the other jurors examined each count individually
to determine whether it was verified by the exhibits and then voted on it.
At the conclusion of questioning, Juror No. 1 apologized for making an
inappropriate remark to Deputy Baker, and she assured the court she would abide
by the court‟s admonition not to discuss the case or the present proceeding until
informed otherwise.
The next day, at the behest of defense counsel, the trial court individually
questioned each juror and the remaining alternate juror, asking whether he or she
had participated in or overheard any discussions with another juror or nonjuror
regarding what the penalty or punishment should or was likely to be in the case.
All jurors but one indicated that they had neither participated in nor were aware of
any such discussions. Juror No. 4 related that she had told an acquaintance that
she was a juror in the penalty phase of a capital case and that the choice was
between two penalties. In response to further inquiry, the juror assured the court
that she could potentially vote either way on penalty and planned to participate
fully in deliberations.
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Defense counsel then moved for mistrial on the ground that Juror No. 1 had
committed prejudicial misconduct by prejudging defendant‟s guilt, and the penalty
he should receive, before engaging in guilt phase deliberations. Counsel further
argued that Juror No. 1 had committed misconduct during voir dire by concealing
her relationship with Deputy Baker. Had her relationship with a Ventura County
Sheriff‟s Department deputy been mentioned in the juror questionnaire, counsel
asserted, the defense would not have wanted to keep Juror No. 1 on the jury. After
hearing the prosecutor‟s argument opposing the motion, the court took the matter
under submission.
b. Denial of the mistrial motion
The court denied the mistrial motion the day following the hearing, giving an
extensive explanation of its factual findings and legal conclusions. Regarding
certain conflicts in the testimony, the court credited the testimony of Juror No. 1
over that of Deputy Baker.
The court found that on Friday, February 9, 2001, the jury reached guilt
phase verdicts on all counts except the murder charge and special circumstance
allegations and there was a three-day recess until deliberations resumed on
Tuesday, February 13. During that recess, Juror No. 1 either contacted, or was
contacted by Deputy Baker, the sister of Juror No. 1‟s son-in-law. The court
determined that Juror No. 1 and Deputy Baker were acquaintances with infrequent
contact, not close relatives.
The reason for the communication, the court found, was because Juror No. 1
had learned from a family member that Deputy Baker worked in the same county
government complex where the trial was being held. Deputy Baker either was
aware or became aware that Juror No. 1 was a juror in a criminal case, but she
knew little about the case itself.
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With regard to the substance of the conversation between Juror No. 1 and
Deputy Baker, the court found that Deputy Baker said something to the effect that
she hoped the jury would put defendant away. Juror No. 1 responded that
defendant “would be put away one way or the other.” By this, Juror No. 1 was
contemplating only two possible penalties, life without parole or death. The court
found it “highly likely” that Juror No. 1 added some sort of statement to the effect
that she expected death would be imposed, either using the word “fry” or possibly
assenting to Deputy Baker‟s use of the word. The court was of the view that it
could not make a definitive finding in that regard. In either case, the court found,
Juror No. 1‟s remark was an “ „off-the-cuff‟ comment in response to a provocative
statement by Baker.” The court further found that Juror No. 1‟s “prediction”
regarding penalty was not the result of improper discussion of penalty by some or
all of the jurors, and that Juror No. 1 did not interject into the conversation with
Deputy Baker any issue or information related to defendant‟s case or commit any
other improprieties.
As for Juror No. 1‟s state of mind at the time of deliberations, the court
credited Juror No. 1‟s testimony and found that she remained open-minded and
able to vote either way on the murder count and special circumstance allegations.
Noting the numerous charges of which defense counsel conceded defendant‟s guilt
during closing argument, the court found the jury would have begun deliberating
on the murder count on Friday, February 9, before the conversation between Juror
No. 1 and Deputy Baker occurred.
Based upon its factual findings, the court saw several areas of possible
misconduct and addressed each in turn. First, the court found Juror No. 1‟s failure
to mention Deputy Baker in her juror questionnaire did not amount to misconduct.
In the court‟s view, the omission was inadvertent and understandable in light of
the distant nature of the relationship and their limited contact. The court found it
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significant that during voir dire Juror No. 1 was not questioned directly about the
extent of her acquaintances with individuals in law enforcement.
The court concluded that Deputy Baker‟s comment to Juror No. 1 to the
effect that she hoped defendant would be “put away,” and the response it
prompted from Juror No. 1, did constitute misconduct. It further concluded,
however, that the presumption of prejudice arising from that misconduct had been
rebutted, finding no reasonable likelihood the improper conversation influenced
the verdicts. The court noted that the exchange was brief and not initiated by the
Juror No. 1. It also observed that the conversation had little prominence in Juror
No. 1‟s mind and that she did not share it with any other juror. In the court‟s
view, the misconduct occurred at a stage in the proceedings in which Juror No. 1
would be expected to be forming opinions on guilt, and it credited her testimony
regarding being open-minded. The court also found that the brevity of
deliberations suggested the jury shared Juror No. 1‟s view regarding the strength
of the evidence of guilt.
Regarding the question whether Juror No. 1 had prejudged the case, the
court‟s answer was twofold. The court found that the substance of Juror No. 1‟s
comment suggested that she had prejudged penalty but that because she no longer
was a seated juror, the question of prejudice was moot. The court further
concluded that Juror No. 1 had not prejudged defendant‟s guilt. Crediting Juror
No. 1‟s testimony, the court reasoned in relevant part that Deputy Baker‟s
comment, which put Juror No. 1 on the spot, prompted a response (that defendant
“would be put away one way or the other”) that should be interpreted as a
prediction of what would happen were the case to proceed to the penalty phase.
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2. Discussion
Defendant claims that Juror No. 1 committed prejudicial misconduct in two
separate, but interrelated ways, first, by failing to mention in her juror
questionnaire or during voir dire questioning her relationship with Deputy Baker
and second, by communicating with Deputy Baker about the case. Defendant
argues that the misconduct was prejudicial because, he contends, Juror No. 1 had
made up her mind regarding defendant‟s guilt prior to deliberations and therefore
was actually biased against him. The judgment must be reversed, he asserts,
because Juror No. 1‟s presence on the jury deprived him of his state and federal
constitutional rights to an unbiased jury, fair trial, effective representation of
counsel, and due process of law.
The legal principles that guide our consideration of defendant‟s claim of
prejudicial juror misconduct are well established. A criminal defendant has a
constitutional right to trial by an impartial and unbiased jury. (U.S. Const., 6th
and 14th Amends.; Cal. Const., art. I, § 16; In re Hitchings (1993) 6 Cal. 4th 97,
110.) A deprivation of that right occurs even if only one juror is biased. (People
v. Nesler (1997) 16 Cal. 4th 561, 578 (lead opn. of George, C.J.).)
A juror‟s misconduct or involuntary exposure to certain events or materials
other than what is presented at trial generally raises a rebuttable presumption that
the defendant was prejudiced and may establish juror bias. (In re Hamilton (1999)
20 Cal. 4th 273, 295-296.) As relevant here, it is misconduct, and therefore
presumptively prejudicial, for a juror to conceal relevant facts during the jury
selection process (In re Hitchings, supra, 6 Cal.4th at p. 111), or to discuss the
case with a nonjuror during trial (In re Hamilton, supra, at p. 295). A nonjuror‟s
unauthorized communication with a juror during trial that concerns the matter
pending before the jury likewise raises a presumption of prejudice. (In re Price
(2011) 51 Cal. 4th 547, 560; In re Hamilton, supra, at pp. 295, 305-306.)
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Relevant to defendant‟s claims of misconduct here, the presumption of
prejudice is rebutted, and the verdict will not be disturbed, if a reviewing court
concludes after considering the entire record, including the nature of the
misconduct and its surrounding circumstances, that there is no substantial
likelihood that the juror in question was actually biased against the defendant.
(In re Price, supra, 51 Cal.4th at p. 560; In re Carpenter (1995) 9 Cal. 4th 634,
654.) Our inquiry in this regard is a “mixed question of law and fact” subject to
independent appellate review. (People v. Nesler, supra, 16 Cal.4th at p. 582.) But
“ „[w]e accept the trial court‟s credibility determinations and findings on questions
of historical fact if supported by substantial evidence.‟ [Citations.]” (People v.
Schmeck (2005) 37 Cal. 4th 240, 294.)
Applying these principles, we conclude that although misconduct occurred,
the presumption of prejudice was rebutted and defendant is not entitled to reversal
of the judgment, as explained more fully below.
a. Failure to mention Deputy Baker during jury selection
Question No. 32 on the jury questionnaire asked, “Do you have any relatives
or close friends who are in law enforcement or are lawyers, or judges?” Juror
No. 1 checked “Yes” and answered question No. 32a, which asked prospective
jurors who had responded affirmatively to question No. 32 to list the relationship,
occupation, and name of such persons. Juror No. 1 wrote, “Richard Walsh —
Guard — Tehachapi Prison.”
The subject of relatives or close friends in law enforcement did not arise
during voir dire questioning, and Juror No. 1 did not offer any additional
information in that regard. When the trial court asked Juror No. 1 in the post-
guilt-phase telephone call on March 5, 2001, whether she was acquainted with
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Deputy Sheriff Kathleen Baker, however, Juror No. 1 readily indicated that the
officer was her daughter‟s sister-in-law.
During the hearing on possible juror misconduct, Deputy Baker and her
husband both testified that their contact with Juror No. 1 had been infrequent,
possibly four or five times in as many years, and that they were not close to her.
Deputy Baker‟s husband testified further that when Juror No. 1 called the house
the first time, she introduced herself to him and reminded him who she was.
Based on this evidence, the trial court found that Juror No. 1 had infrequent
contacts and only a distant relationship with Deputy Baker, and concluded that
Juror No. 1‟s failure to mention Deputy Baker in her questionnaire and during voir
dire questioning was an inadvertent omission that did not amount to misconduct.
Defendant insists the trial court mischaracterized the relationship between
Juror No. 1 and Deputy Baker, arguing that they were instead well-acquainted
relatives. We reject defendant‟s assertion. As recounted above, substantial
evidence supports the trial court‟s finding that the relationship between Juror
No. 1 and Deputy Baker was distant. (People v. Schmeck, supra, 37 Cal.4th at
p. 294.)
Indeed, there is some question that Juror No. 1 and Deputy Baker could be
considered “relatives” at all. Deputy Baker was the sister-in-law of Juror No. 1‟s
daughter. Although Deputy Baker certainly was a relative of Juror No. 1‟s
daughter and son-in-law, it is not clear what the nature of her familial relationship
was, if any, to Juror No. 1. (Cf. People v. Tuggles (2009) 179 Cal. App. 4th 339,
373 [juror did not improperly conceal during voir dire her acquaintance with a
man under investigation for rape whom she barely knew by not mentioning him in
response to the court‟s question whether a “close friend” had been accused of any
offense]; People v. Duran (1996) 50 Cal. App. 4th 103, 107, 114-115 [juror‟s
failure during jury selection to identify a certain individual as a person “close” to
125
her who had been the victim of a violent crime did not amount to misconduct
because there was no evidence establishing her relationship with him was anything
more than casual].)
But even were we to conclude that Juror No. 1 should have included Deputy
Baker in her list of relatives in law enforcement, reversal is not warranted. We
have made clear that “an honest mistake on voir dire cannot disturb a judgment in
the absence of proof that the juror‟s wrong or incomplete answer hid the juror‟s
actual bias.” (In re Hamilton, supra, 20 Cal.4th at p. 300.) The trial court
concluded that Juror No. 1‟s failure to mention Deputy Baker in her questionnaire
and during voir dire questioning was an inadvertent omission. Based on our own
review of the record, we reach a similar conclusion that Juror No. 1‟s failure to
report that relationship during jury selection was, at most, an inadvertent omission
and not a deliberate attempt to conceal bias. Juror No. 1 testified that she learned
from her daughter that Deputy Baker worked near the courthouse and that, at her
daughter‟s suggestion, she called Deputy Baker to set up a lunch date. Such
testimony, when coupled with the court‟s finding of a mere distant relationship
between Juror No. 1 and Deputy Baker, supports the inference that Deputy Baker
was not someone who would have come to mind when Juror No. 1 was responding
to the questionnaire item regarding relatives and close friends in law enforcement.
Notably, neither the court nor the parties asked Juror No. 1 any questions on that
subject or made any statements during voir dire questioning that might have
jogged her memory or clarified for her the types of relationships that would be of
interest to the parties in their evaluation of prospective jurors. When Juror No. 1
was asked by the court in their post-guilt-phase telephone conversation whether
she was acquainted with Deputy Baker, she did not hesitate to report that she was.
The record as a whole strongly supports the conclusion that Juror No. 1‟s failure to
mention Deputy Baker, if a mistake, was honestly made.
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Nor is there anything in the record from which to infer Juror No. 1
deliberately concealed her relationship with Deputy Baker in order to hide any
alleged bias against defendant. We have observed that “good faith when
answering voir dire questions is the most significant indicator that there was no
bias.” (In re Hamilton, supra, 20 Cal.4th at p. 300; accord, In re Boyette (2013)
56 Cal. 4th 866, 890.) After hearing the testimony of Juror No. 1 and others, the
trial court found that her failure to mention Deputy Baker during voir dire was
inadvertent, not deliberate. That finding amply supports the conclusion that Juror
No. 1 did not omit any mention of Deputy Baker in order to conceal her bias
against defendant. (See In re Boyette, supra, at p. 890 [referee‟s findings that
juror‟s failure to disclose his own criminal history and drug use and that of his
friends and relatives was neither intentional nor deliberate supports the conclusion
that the juror was not biased against the defendant].)
b. Conversation with Deputy Baker
The trial court determined that misconduct occurred when Juror No. 1 and
Deputy Baker spoke by telephone about the case shortly before the conclusion of
the guilt phase deliberations, but concluded that the presumption of prejudice
arising from that misconduct had been rebutted. Based upon our independent
review, we reach a similar conclusion.
As set forth in more detail above in the summary of the hearing on possible
juror misconduct, substantial evidence supports the court‟s factual findings
regarding the substance of the improper conversation and its surrounding
circumstances. To briefly recap the court‟s findings, Juror No. 1 and Deputy
Baker had a short telephone conversation on the weekend between the second and
final day of guilt phase deliberations during which Deputy Baker said something
to the effect that she hoped the jury would put defendant away. Juror No. 1
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responded to Deputy Baker‟s comment by saying that defendant “would be put
away one way or the other,” and the court found it “highly likely” she added that
she expected a death verdict, either using the word “fry” herself or by assenting to
Deputy Baker‟s use of that word.
As previously mentioned, any unauthorized communication between a juror
and a nonjuror regarding the matter pending before the jury is misconduct and
presumptively prejudicial. (In re Hamilton, supra, 20 Cal.4th at p. 295.) In the
present case, the communication between Juror No. 1 and Deputy Baker was not a
trivial violation of the court‟s directive not to discuss the case with anyone. (Cf.
People v. Stewart, supra, 33 Cal.4th at p. 510 [a juror‟s technical violation of the
court‟s admonition not to discuss the case with nonjurors was “ „trifling‟
misconduct” that could not have prejudiced the defendant].) Rather, it amounted
to serious misconduct. (See People v. Pierce (1979) 24 Cal. 3d 199, 207 [juror
who conversed midtrial with his police officer neighbor regarding shortcomings in
the prosecution‟s case committed serious misconduct].)
Having determined that serious misconduct occurred, we examine whether
the presumption of prejudice arising from that misconduct has been rebutted.
Based upon our review of the nature of the misconduct and its surrounding
circumstances, and taking into account the court‟s credibility determinations and
factual findings supported by substantial evidence, we conclude that the
presumption of prejudice has been rebutted because there is no substantial
likelihood that Juror No. 1, or any other juror, was actually biased against
defendant, as we explain below. (In re Price, supra, 51 Cal.4th at p. 560.)
Juror No. 1‟s telephone call to Deputy Baker was prompted, not by a desire
to discuss the case, but rather to make arrangements for a lunchtime get-together
suggested by her daughter. During that conversation, Juror No. 1 spoke generally
about her positive experience as a juror, but not about the case specifically. As the
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trial court found, it was Deputy Baker‟s unsolicited comment to the effect that she
hoped the jury would “put defendant away” that prompted Juror No. 1‟s “off-the-
cuff” response predicting that death would be imposed, and there was no further
discussion regarding the pending case. The nature and surrounding circumstances
of the misconduct do not suggest Juror No. 1 was actually biased against
defendant.
The misconduct in this matter is distinguishable in significant respects from
the misconduct at issue in cases in which we have concluded that the presumption
of prejudice was not rebutted. In In re Hitchings, supra, 6 Cal. 4th 97, for
example, the juror engaged in repeated conversations with a friend regarding the
defendant‟s trial while it was pending and on one occasion spoke directly about
the case, heatedly expressing her view that the defendant deserved to be “horribly
mutilated for his crimes.” (Id. at p. 120, see id. at pp. 106-107, 120-122.) Nor is
Juror No. 1‟s misconduct comparable to that at issue in People v. Pierce, supra,
24 Cal. 3d 199. In Pierce, after the prosecution had rested, a juror initiated a
conversation with his police officer neighbor to inquire about the fingerprinting
process. The information obtained by the juror allayed his concerns regarding the
sufficiency of the prosecution‟s evidence in that no fingerprints had been lifted
from the murder weapon. (Id. at pp. 206, 208-209.)
Our conclusion that the record shows no substantial likelihood that Juror
No. 1, or any other juror, was actually biased against defendant is further bolstered
by the court‟s findings, supported by substantial evidence, that Juror No. 1 did not
share with her fellow jurors the fact or substance of her conversation with Deputy
Baker, and that the jurors did not discuss penalty during the guilt phase. (See
People v. Danks (2004) 32 Cal. 4th 269, 307, 310.) Moreover, there is no evidence
suggesting that, but for Juror No. 1‟s conversation with Deputy Baker, she would
have held out for acquittal on the murder count. To the contrary, Juror No. 1
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testified at the hearing that she found the evidence of defendant‟s guilt on that
charge “overwhelming.” As the trial court observed, the speed with which
deliberations were carried out strongly suggested that the other jurors shared that
view. (Cf. People v. Pierce, supra, 24 Cal.3d at p. 208 [rejecting as “sheer
speculation” the People‟s argument that the errant juror necessarily would have
voted to convict even had he not spoken with his police officer neighbor].)
Defendant argues that Juror No. 1‟s actual bias was demonstrated by
evidence that she made up her mind regarding defendant‟s guilt prior to
deliberations. He acknowledges the court‟s finding that Juror No. 1 remained
open-minded and capable of voting either way on the murder count after her
conversation with Deputy Baker. According to defendant, however, that
determination was “fundamentally flawed” because Juror No. 1 was neither
forthright nor honest, and clearly testified that she had already made up her mind.
His argument fails because, in essence, he is asking this court to reweigh the trial
court‟s credibility determinations, a task we do not undertake when those
determinations are supported by substantial evidence. (See People v. Schmeck,
supra, 37 Cal.4th at p. 294.) As we explain, the court‟s finding that Juror No. 1
maintained an open mind regarding defendant‟s guilt is supported by substantial
evidence, and that finding further supports our conclusion that the presumption of
prejudice arising from the juror‟s misconduct was adequately rebutted.
Admittedly, there is some evidence in the record suggesting that Juror No. 1
had made up her mind based on the evidence prior to deliberations. For example,
when defense counsel remarked to Juror No. 1 at the hearing that it sounded as
though she had done so, Juror No. 1 responded that it “probably [was] true.” And
in the hearing transcript pages cited by defendant to support his argument, Juror
No. 1 did indicate that she went into deliberations with the impression that the
evidence was strong. When then asked by the court whether she could have been
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persuaded otherwise if someone was able to convince her, Juror No. 1
equivocated, saying, “Well, I suppose, but, um, the evidence was all there by
then.”
However, Juror No. 1 indicated in her responses to the court‟s further
questioning on the subject that she had an open mind during the deliberative
process. The court asked Juror No. 1 directly, “Is it possible you had already
made up your mind on how you were going to vote [at the time you spoke with
Deputy Baker] as opposed to remaining open-minded through the time you
actually did vote?” Juror No. 1 replied, “No. . . I hadn‟t actually made up my
mind at that time, at that point. All the evidence was so overwhelming, but when
we got into deliberations, it was all . . . individually verified by [the] exhibits.
Whatever the charges were, they were all examined, each one of them
individually, and then everybody voted.” The court was entitled to credit Juror
No. 1‟s more precise and fully developed description of her state of mind over her
earlier, equivocal responses.
We conclude based upon the record summarized above that substantial
evidence supports the court‟s finding that Juror No. 1 remained open-minded as
deliberations continued on the murder count. The court observed firsthand Juror
No. 1‟s responses and demeanor and this court has recognized in a different
context that “ „ “a trial judge who observes and speaks with a . . . juror and hears
that person‟s responses (noting, among other things, the person‟s tone of voice,
apparent level of confidence, and demeanor), gleans valuable information that
simply does not appear on the record.” [Citation.]‟ [Citation.]” (People v. Bramit
(2009) 46 Cal. 4th 1221, 1235.)
We observe furthermore that, contrary to defendant‟s suggestion, a juror who
forms an opinion regarding the strength of the prosecution‟s case before the start
of deliberations has not necessarily prejudged the case. As this court recently
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explained, “[t]he reality that a juror may hold an opinion at the outset of
deliberations is . . . reflective of human nature. It is certainly not unheard of that a
foreperson may actually take a vote as deliberations begin to acquire an early
sense of how jurors are leaning. We cannot reasonably expect a juror to enter
deliberations as a tabula rasa, only allowed to form ideas as conversations
continue. What we can, and do, require is that each juror maintain an open mind,
consider all the evidence, and subject any preliminary opinion to rational and
collegial scrutiny before coming to a final determination.” (People v. Allen and
Johnson (2011) 53 Cal. 4th 60, 75.) We concluded above that there is substantial
evidence in the record supporting the court‟s finding that Juror No. 1 maintained
an open mind and, with her fellow jurors, considered all the evidence before
casting her vote on the murder count. That she held an opinion regarding the
strength of the prosecution‟s case before deliberating does not undermine the
court‟s finding.
We observe finally that the evidence of prejudgment in the present matter is
far different from, and significantly less than, the circumstances that required
reversal of the judgment for juror misconduct in People v. Weatherton. The juror
in that case repeatedly discussed the case with fellow jurors prior to deliberations,
conveying to them his belief that the defendant was guilty, and advocating for a
verdict of guilt, long before the prosecution had finished its presentation of
evidence and the defense had an opportunity to call that evidence into question.
Indeed, the record showed that as early as the first day of trial, the errant juror
indicated to some jurors that “there was no denying” the veracity of the
prosecution‟s star witness and that he believed her testimony was dispositive of
guilt. Both before and during deliberations, the juror expressed the view that the
defendant deserved the death penalty, further suggesting that he had made up his
mind regarding defendant‟s guilt. (People v. Weatherton (2014) 59 Cal. 4th 589,
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598-601.) By contrast here, substantial evidence supports the court‟s finding that
Juror No. 1 remained open-minded as deliberations continued on the murder count.
There was no substantial likelihood that she or any other juror was actually biased
against defendant.
F. Cumulative Effect of Asserted Errors at the Guilt Phase
Defendant contends that his convictions must be reversed because, even if
none of the errors at the guilt phase is prejudicial individually, their cumulative
effect is sufficiently prejudicial as to violate due process. (Taylor v. Kentucky
(1978) 436 U.S. 478, 487, fn. 15.) We have concluded that juror misconduct
occurred but that the presumption of prejudice arising from the misconduct was
rebutted. We also have assumed for argument that the trial court abused its
discretion in admitting evidence of Katrina‟s out-of-court statement to her mother
describing a sexual assault by defendant that occurred several months before the
murder, but concluded furthermore that any error was harmless. Defendant fails to
establish any other error at the guilt phase. Accordingly, there can be no
prejudicial cumulative effect warranting reversal. Contrary to defendant‟s
assertion, he received a fair trial on guilt.
G. Admission of Evidence in Aggravation
Defendant claims he is entitled to reversal of the penalty judgment because
much of the evidence the jury was permitted to consider during the penalty phase
concerned his unsavory lifestyle, neo-Nazi beliefs, and other evidence of his bad
character that did not correspond to any of the statutorily permissible aggravating
factors. We reject defendant‟s argument both procedurally and on the merits.
As a threshold matter, we agree with the Attorney General that defendant has
forfeited his claim of error by not objecting to the admission of the “bad character”
evidence on the ground he now asserts. (Evid. Code, § 353, subd. (a); People v.
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Kipp (2011) 26 Cal. 4th 1100, 1135.) Defendant cites no authority for his
contention that the trial court was obligated, on its own initiative, to reassess the
balance of prejudice and probative value of evidence adduced at the guilt phase
before placing it before the jury for its consideration during the penalty
proceedings. In any event, defendant‟s claim of error fails on the merits.
Defendant is correct that a prosecutor is not permitted to present aggravating
evidence that is irrelevant to the factors in aggravation listed in section 190.3.
(People v. Boyd (1985) 38 Cal. 3d 762, 772-776.) He also correctly observes, more
specifically, that “[e]vidence of a defendant‟s background, character, or conduct
that is not probative of any specific sentencing factor is irrelevant to the
prosecution‟s case in aggravation and therefore inadmissible.” (People v. Nelson
(2011) 51 Cal. 4th 198, 222; People v. Boyd, supra, at pp. 773-774.) Under section
190.3, aggravating factors include the circumstances of the capital offense, other
violent criminal conduct by the defendant, and the defendant‟s prior felony
convictions. (§ 190.3, factors (a)-(c).) These three factors, and the defendant‟s
age at the time of the crime (§ 190.3, factor (i)), are the only factors that may be
considered in aggravation of penalty. (People v. Coffman and Marlow (2004)
34 Cal. 4th 1, 108-109, but see id. at p. 109 [evidence presented by the prosecution
to rebut defense evidence in mitigation need not relate to an aggravating factor].)
Defendant‟s argument that the jurors at the penalty phase were exposed to
inadmissible evidence of his bad character unrelated to the aggravating factors
mostly reprises his claims of error regarding (1) the joinder of the murder charge
with all other counts and (2) the admission of evidence of his uncharged crimes.
As we have explained, ante, in parts II.A. and II.C.1., the joinder of the counts in
question and admission of uncharged crimes evidence did not violate state law or
deprive defendant of any state or federal constitutional rights. Because the counts
were properly joined and the challenged evidence properly admitted at the guilt
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phase, evidence supporting the uncharged crimes involving violence and the
felony offenses of which defendant was convicted was relevant to one or more of
the statutory factors in aggravation and properly could be considered by the jury
during the penalty phase. (See People v. Blair (2005) 36 Cal. 4th 686, 749
[“ „circumstances of the crime‟ ” includes that which surrounds it “ „ “materially,
morally, or logically” ‟ ”]; People v. Kirkpatrick (1994) 7 Cal. 4th 988, 1013-1014
[evidence of circumstances surrounding the conduct that amounts to a statutory
factor in aggravation is admissible to give context to the incident in question, even
when such circumstances include activity that, standing alone, would not be
admissible].) We note that, in an apparent abundance of caution, the trial court
expressly instructed the jury it could not consider the vandalism and drug offense
convictions associated with the incident that culminated in defendant‟s arrest.
Defendant acknowledges that the court also expressly instructed the jury that
it could not consider evidence of defendant‟s “lifestyle or background” as an
aggravating factor. He argues, however, that the instruction was so vague as to
provide no practical guidance for the jury to be able to distinguish between his
“lifestyle and background” and the circumstances of the crime. Defendant is
barred from challenging the adequacy of the court‟s instruction because the
defense asked that it be given.
Under the invited error doctrine, a defendant cannot complain that the court
erred in giving an instruction that he requested. (People v. DeHoyos (2013)
57 Cal. 4th 79, 138.) The invited error doctrine applies when the defense has made
a “ „ “ „conscious and deliberate tactical choice‟ ” ‟ ” in asking for the instruction
in question. (People v. Harris (2008) 43 Cal. 4th 1269, 1293.) The record
supports the conclusion that counsel made such a choice in this case. During
discussion regarding penalty phase instructions, defense counsel pointed out that
the jurors would be told they could consider as aggravating factors defendant‟s
135
convictions, including the gang finding. But he expressed concern that jurors
might not realize it would be improper to also consider as aggravating evidence
defendant‟s membership in the SHD gang, or certain aspects of his lifestyle such
as getting tattoos, drinking beer while underage, and going to punk rock concerts.
Indeed, when the court suggested that the word “lifestyle” might not be
appropriate in this context, defense counsel insisted that it was. Defendant may
not now complain about the inadequacy of the instruction.
Defendant argues finally that permitting the jury to consider at the penalty
phase the evidence regarding his membership in a skinhead gang, and the beliefs
espoused by that gang, contravened his First Amendment rights to freedom of
association and speech. For support, he relies upon the United States Supreme
Court‟s decision in Dawson v. Delaware (1992) 503 U.S. 159, but that decision
does not assist him. In Dawson, the prosecution introduced a stipulation at the
penalty phase that the defendant belonged to a “ „white racist prison gang‟ ” called
the Aryan Brotherhood. (Id. at p. 165.) The high court held the admission of the
Aryan Brotherhood stipulation violated the defendant‟s First Amendment rights.
As the court explained, evidence of the gang‟s racist beliefs was not linked to the
murder, nor was it relevant to help prove any other aggravating circumstance or to
rebut any mitigating evidence. Rather, it showed only the defendant‟s “abstract
beliefs.” (Id. at p. 167.)
In the present case, by contrast, evidence of defendant‟s membership in the
SHD gang, and the gang‟s shared antisocial beliefs, proved more than defendant‟s
association and abstract beliefs. Such evidence was highly relevant to the
circumstances surrounding the capital offense (§ 190.3, factor (a)), as previously
discussed ante, in part II.A.4. For example, testimony regarding defendant‟s
leadership role in the SHD gang and the gang‟s code of silence helped explain
why the investigation into Katrina‟s disappearance languished for so many years.
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Evidence relating to defendant‟s gang membership also bore on defendant‟s other
violent criminal behavior and some of the noncapital convictions. (§ 190.3,
factors (b)-(c).) Evidence of defendant‟s White supremacist views, for example,
tended to show reasons for his 1990 attack on a fellow ward at the juvenile
detention facility, and his fight with Black inmates at the Ventura County jail in
1994. (See People v. Gurule (2002) 28 Cal. 4th 557, 653-654 [evidence of the
defendant‟s membership in a juvenile gang was properly admitted at the penalty
phase as a circumstance of his prior acts of violence].) Dawson made clear that
“the Constitution does not erect a per se barrier to the admission of evidence
concerning one‟s beliefs and associations at sentencing simply because those
beliefs and associations are protected by the First Amendment.” (Dawson v.
Delaware, supra, 503 U.S. at p. 165.) No constitutional violation occurred here.
(See People v. Smith (2003) 30 Cal. 4th 581, 626 [admission of evidence of the
defendant‟s racist remarks, properly admitted at the penalty phase as relevant to
his actual criminal conduct, did not violate the defendant‟s free speech rights].)
H. Constitutionality of California’s Death Penalty Scheme
Defendant raises numerous challenges to the constitutionality of California‟s
death penalty law. He acknowledges that his contentions are identical to those that
previously have been considered and rejected by this court. We decline his
request to reconsider our prior conclusions. (People v. Schmeck, supra, 37 Cal.4th
at pp. 303-304.)
1. Narrowing function
The various special circumstances in section 190.2 that render a murderer
eligible for the death penalty, including the felony-murder special circumstance,
are not so numerous and broadly defined that they fail to genuinely narrow the
class of murderers who are subject to capital punishment, as required by the
137
Eighth and Fourteenth Amendments. Contrary to defendant‟s assertion, voters did
not intend by their enactment of the 1978 death penalty law to make all murderers
death eligible. (People v. Jones, supra, 54 Cal.4th at p. 85; People v. Myles,
supra, 53 Cal.4th at p. 1224; People v. Williams (2010) 49 Cal. 4th 405, 469.)
2. Circumstances of the crime as a factor in aggravation
Application of section 190.3, factor (a), which allows jurors to consider as a
factor in aggravation the “circumstances of the crime,” does not result in the
“ „wanton, and freakish‟ ” imposition of the death penalty in violation of the Fifth,
Sixth, Eighth and Fourteenth Amendments by permitting prosecutors to
characterize as aggravating almost all features of every murder, including polar
opposite and mutually exclusive circumstances. (People v. Jones, supra, 54
Cal.4th at p. 85; see People v. Brown (2004) 33 Cal. 4th 382, 401; see also People
v. Clark, supra, 52 Cal.4th at p. 1007.) As defendant acknowledges, the high
court has found no constitutional infirmity in factor (a). (Tuilaepa v. California
(1994) 512 U.S. 967, 975-976.)
3. Penalty phase procedures
The federal Constitution does not require the jury to make written findings
unanimously concluding beyond a reasonable doubt that the aggravating factors
exist, that they outweigh the factors in mitigation, or that death is the appropriate
penalty. (People v. Whalen, supra, 56 Cal.4th at pp. 90-91; People v. Clark,
supra, 52 Cal.4th at p. 106; People v. Manriquez (2005) 37 Cal. 4th 547, 589.) Nor
is there either a constitutional or statutory command that these determinations be
proved by some lesser standard of proof, or that the jury be told explicitly that
neither side bears the burden of proof. (People v. Leonard (2007) 40 Cal. 4th
1370, 1429; People v. Hawthorne (1992) 4 Cal. 4th 43, 79 [penalty phase
determinations are not subject to burden of proof quantification because they are
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“ „moral and normative, not factual‟ ”].) Contrary to defendant‟s argument, the
high court‟s decisions interpreting the Sixth Amendment, from Apprendi v. New
Jersey (2000) 530 U.S. 466 and Ring v. Arizona (2002) 536 U.S. 584 through
Cunningham v. California (2007) 549 U.S. 270, do not compel a different
conclusion. (People v. Williams (2013) 58 Cal. 4th 197, 295; People v. Whalen,
supra, at pp. 90-91.) As we have explained, determining the balance of evidence
of aggravation and mitigation and the appropriate penalty do not entail the finding
of facts but rather “a single fundamentally normative assessment [citations] that is
outside the scope of Ring and Apprendi.” (People v. Griffin, supra, 33 Cal.4th at
p. 595; People v. Prieto (2003) 30 Cal. 4th 226, 262-263.)
California‟s automatic appeals procedure does not violate constitutional
guarantees by failing to provide for intercase proportionality review. (People v.
Whalen, supra, 56 Cal.4th at p. 91; People v. Myles, supra, 53 Cal.4th at p. 1224.)
Nor does the jury‟s reliance on evidence of defendant‟s unadjudicated
criminal activity as a factor in aggravation, in the absence of unanimous
agreement that such activity was proved beyond a reasonable doubt, violate due
process or render a death sentence unreliable. (People v. Thomas (2012) 53
Cal. 4th 771, 836; People v. Martinez, supra, 47 Cal. 4th 399, 455.)
There is no constitutional requirement that the jury be instructed regarding
which of the statutory factors in section 190.3 are aggravating, which are
mitigating, and which could be either aggravating or mitigating. (People v.
Edwards (2013) 57 Cal. 4th 658, 766 [the statutory instruction directing “ „the jury
to consider “whether or not” ‟ ” certain mitigating factors exist did not invite the
jury to aggravate defendant‟s sentence on “ „ “ „the basis of nonexistent or
irrational . . . factors‟ ” ‟ ”].) The use of the adjectives “extreme” and
“substantial” to describe mitigating factors involving “mental or emotional
disturbance” and “duress or domination” (§ 190.3, factors (d), (g)), does not erect
139
a barrier to the jury‟s consideration of mitigating evidence in violation of
constitutional guarantees. (People v. Manibusan, supra, 58 Cal.4th at p. 100;
People v. DeHoyos, supra, 57 Cal.4th at p. 150.)
Prosecutorial discretion and the absence of standards for deciding whether or
not to seek the death penalty in an eligible case do not create a substantial risk of
arbitrary outcomes that vary from county to county or otherwise offend
constitutional guarantees of due process or equal protection, or the prohibition
against cruel and unusual punishment. (People v. Myles, supra, 53 Cal.4th at
p. 1224; People v. Keenan (1988) 46 Cal. 3d 478, 505.)
Because capital and noncapital defendants are not similarly situated, the
death penalty scheme does not violate equal protection by failing to provide
capital defendants with the same procedural protections that are afforded to
noncapital defendants. (People v. Edwards, supra, 57 Cal.4th at p. 768; People v.
DeHoyos, supra, 57 Cal.4th at p. 151.)
4. International law
Defendant contends that, even assuming that the death penalty itself does not
violate international norms of decency, the broad reach of California‟s capital
punishment scheme and use of the death penalty as a regular form of punishment
for substantial numbers of crimes is contrary to those international standards and
constitute a violation of the Eighth Amendment. We have addressed and
repeatedly rejected the identical argument that California imposes death as
“ „regular punishment for substantial numbers of crimes.‟ ” (People v.
Demetrulias (2006) 39 Cal. 4th 1, 43, italics omitted; accord, People v. DeHoyos,
supra, 57 Cal.4th at p. 151; People v. Souza (2012) 54 Cal. 4th 90, 142.)
Defendant presents no new arguments that would prompt reconsideration of our
prior conclusion.
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I. Cumulative Effect of Asserted Guilt and Penalty Phase Errors
Defendant argues that even if none of the asserted errors at the guilt and
penalty phase warrant reversal when considered individually, the cumulative
weight of those asserted errors was prejudicial, depriving him of a fair trial and
penalty determination and other constitutional rights. We have concluded that
there was no cumulative effect of error at the guilt phase (see ante, pt. II.F.), and
found no error at the penalty phase. Accordingly, there were no additional errors
to cumulate and therefore no cumulative prejudice.
III. CONCLUSION
The judgment is affirmed.
CANTIL-SAKAUYE, C. J.
WE CONCUR:
BAXTER, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.
SIMONS, J.*
* Associate Justice of the Court of Appeal, First Appellate District, Division Five,
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Merriman
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S097363
Date Filed: August 18, 2014
__________________________________________________________________________________
Court: Superior
County: Ventura
Judge: Vincent J. O‟Neill, Jr.
__________________________________________________________________________________
Counsel:
Glen Niemy, under appointment by the Supreme Court, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C.
Hamanaka, Assistant Attorney General, Keith H. Borjon and Jaime L. Fuster, Deputy Attorneys General,
for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Glen Niemy
P.O. Box 764
Bridgton, ME 04009
(207) 647-2600
Jaime L. Fuster
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2354
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