People v. Dalton , 7 Cal. 5th 166 ( 2019 )

IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
KERRY LYN DALTON,
Defendant and Appellant.
S046848
San Diego County Superior Court
135002
May 16, 2019
Justice Liu authored the opinion of the court, in which Chief
Justice Cantil-Sakauye and Justices Chin, Corrigan, Cuéllar,
Kruger, and Groban concurred.
PEOPLE v. DALTON
S046848
Opinion of the Court by Liu, J.
Defendant Kerry Lyn Dalton was convicted of conspiracy
to commit murder and the first degree murder of Irene Melanie
May. (Pen. Code former § 182, subd. (a)(1), § 187, subd. (a),
former § 189 (all further undesignated statutory references are
to this code).) The jury also found true lying in wait and torture-
murder special-circumstance allegations and an allegation that
Dalton personally used a deadly weapon in committing the
murder. (Former §§ 190.2, subd. (a)(15), (a)(18), 12022,
subd. (b).) In a separate proceeding, Dalton admitted a prior
serious felony conviction for burglary and a prior prison term.
(Former §§ 459, 667, subd. (a), 667.5, subd. (b), 1192.7,
subd. (c)(18).) At the penalty phase, the jury returned a death
verdict, and the trial court entered a judgment of death. This
appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); § 1239,
subd. (b).)
For the reasons below, we vacate as unauthorized the
death sentence imposed (and stayed) on the conspiracy to
commit murder count (Count I). We further vacate the lying in
wait special-circumstance true finding. We remand and direct
the trial court to state on an amended abstract of judgment a
sentence of imprisonment for 25 years to life, stayed pursuant
to section 654, on the conspiracy count (Count I), and to strike
the lying in wait special-circumstance true finding. We affirm
the judgment, as modified, in all other respects.
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PEOPLE v. DALTON
Opinion of the Court by Liu, J.
I. FACTS
A. Guilt Phase
On June 26, 1988, Dalton, her boyfriend Mark “TK”
Tompkins, and Sheryl Ann “John Boy” Baker murdered 23-year-
old Irene Melanie May in Joanne Fedor’s trailer located in the
Live Oak Springs Trailer Park in Boulevard, California. Her
body was never found.
Dalton and her coperpetrators were jointly charged, but
Dalton’s trial was severed. Tompkins pled guilty to first degree
murder. Baker pled guilty to second degree murder in exchange
for testifying at the 1995 trial against Dalton. The prosecutor
also agreed to other terms, including notifying the Department
of Corrections or Board of Prison Terms of Baker’s cooperation
and her level of culpability in Dalton’s case, requesting she serve
her prison time out of state, and transporting her to and from
court separately from Dalton. Baker had not yet been sentenced
at the time of her testimony.
Because Dalton challenges the sufficiency of the evidence
for every charged count and special circumstance allegation, we
review in detail the evidence in support of the prosecution’s case.
1. Prosecution evidence
a. Events before the murder
1) Events before arriving at Fedor’s trailer
Sheryl Baker, who had been previously convicted of grand
theft auto, and in 1988 used crystal methamphetamine several
times a day, testified that in June 1988, she was living in
Lakeside and had known Irene Melanie May (May) for about two
months.
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Opinion of the Court by Liu, J.
May was married to Bobby May and had three children.
On Saturday, June 25, 1988, May had been evicted from her
Lakeside apartment, and she and Baker were shooting
methamphetamine and moving May’s belongings into storage.
Bobby May was incarcerated at the time, and a man named
George, whom Baker met for the first time that day, and several
other individuals helped them. Dalton, whom Baker had known
since 1986, and who other testimony established had previously
lived with May and Bobby May, also arrived with two women,
Patricia Collins and Pamela McGee. Dalton angrily told Baker
much of the furniture in the apartment was hers and she wanted
it, and she was looking for certain pieces of jewelry. Baker told
Dalton she would look for her property, and Dalton left. Collins
testified she bought a dresser from May. Collins had not met
May before and described her as a “[s]kinny little speed freak.”
At about 5:00 p.m., Baker, May, and George went to a
convenience store to meet May’s connection to obtain drugs.
While waiting at the store, Baker called Dalton and told her she
had not found her jewelry. Dalton, who lived nearby, arrived at
the store a few minutes later with Mark Tompkins in a small
yellow pickup truck.
Baker, Dalton, and Tompkins decided to locate and steal
a Trans Am that belonged to an individual they knew, and May
and George accompanied Baker because they were “partying
with” her. May expressed concern about going because she was
afraid of Dalton. About 6:00 p.m., the group left the store in two
trucks; Dalton and Tompkins were in their truck, and Baker,
George, and May followed in George’s truck. No plan had been
discussed other than to steal the car. They drove for hours, and
eventually happened to come upon Dalton’s acquaintance
Joanne Fedor.
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Opinion of the Court by Liu, J.
Fedor, who was accompanied by her three- and four-year-
old children, testified she had pulled her truck over to the side
of the road because of an electrical fire. She encountered Dalton
and her group about 11:30 p.m. Dalton offered to drive Fedor’s
children to Fedor’s home in case the fire resumed. Fedor agreed
and left, followed by the two trucks. According to Baker, the
group following Fedor then lost their way, and the truck
carrying Dalton and Tompkins broke down. Dalton, Tompkins,
and Fedor’s children joined Baker, May, and George in George’s
truck.
2) Events at Fedor’s trailer the night and
morning of June 26, 1988
Fedor testified that about 2:30 a.m. on the morning of
June 26, 1988, Dalton and her companions arrived at Fedor’s
trailer. Baker recalled Fedor was “freaking out” and thought
her children had been kidnapped.
Baker testified that the group and Fedor stayed up all
night and some individuals used drugs. Baker used about a
gram of methamphetamine “throughout the time of this.” By
the following morning Baker had been up at least 24 hours.
At some point during the night or the following morning,
Dalton and Baker searched through papers in George’s truck
because they did not know him, and Dalton wanted to be sure
he was not connected to law enforcement. Also at some point
Dalton emptied May’s purse and “found some of her jewelry.”
Dalton was upset, and “started making [May] her slave and
making her clean [Fedor’s] trailer,” performing chores such as
washing dishes and cleaning the kitchen. May told Baker she
was “very scared.”
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PEOPLE v. DALTON
Opinion of the Court by Liu, J.
Fedor testified she asked her guests several times during
the night “to please be quiet, that my neighbor next door was
nosey, I didn’t need no problems. At one point . . . the neighbor
sent somebody over to complain.” During the night, Fedor heard
Dalton and May arguing, and someone said May was a “snitch,
ratting her old man off.” Fedor also heard Dalton say that while
May thought Dalton was in jail, May had held a yard sale that
included Dalton’s belongings. During this discussion, Dalton
sounded angry, and May sounded “scared to death.” At some
other point that night, Fedor heard Dalton, Baker, and May
using drugs in the bathroom. Dalton and Baker became angry
with May when they learned they had all shared a needle and
May had hepatitis.
Later that morning, Fedor, like Baker, observed Dalton
treat May “like a slave,” “[c]ommanding her” to wash dishes,
clean the house, and make breakfast for and dress Fedor’s
children. At one point when Fedor was drying dishes with May,
May “had a knife” and “wanted to use it on [Dalton], because she
was scared.” May asked Fedor “how she could get out.” Fedor
replied, “if you are afraid, go outside because there [are] mobile
homes on both sides, scream,” and gave May directions to the
freeway. Fedor also, at May’s request, left a message for Nina
Tucker, the child protective services worker assigned to May’s
family, that May would be unable to attend a scheduled meeting
with Tucker.
Fedor did not see May alone in the trailer. Dalton
appeared to tell the others what to do, and Fedor did not observe
Baker or Tompkins refusing to do anything Dalton told them to
do.
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Opinion of the Court by Liu, J.
Baker testified that sometime that morning, she,
Tompkins, and George left the trailer for about an hour to repair
and return with the truck that had broken down.
3) Emergency medical technicians
Lona Agnew testified that in June 1988 she was a
volunteer emergency medical technician for the Boulevard Fire
and Rescue Department and lived in the same trailer park as,
and knew of, Joanne Fedor. Early on the morning of June 26,
1988, she responded to a page regarding a person having
difficulty breathing and a possible asthma attack at Fedor’s
trailer. A woman who was not Fedor and a short white man
were outside, and the man took Agnew into the trailer.
The trailer was very dirty, and there were clothes and
other items “all over.” A tall man with long hair appeared and
asked Agnew what she was doing there. Agnew said she was
from the fire department and they had received a medical call.
The man said, “No, there is no problem here.” Agnew showed
the man the report of an asthma attack. The man again said,
“No, there is no problem here.” He seemed angry Agnew was
there, and instructed the other man to “[g]et her out of here.”
Once outside, and as Agnew began walking back to her
trailer, Fedor leaned out a window and asked if Agnew had a
bronchial inhaler, explaining her son had asthma and was
having difficulty breathing. Agnew said no, and that there was
nothing she could do unless Fedor let her in to see the patient.
Fedor would not let her in, and said, “No, I just need one of those
inhal[ers].”
A short time later, Agnew and her supervisor, Lou
Faulkner, returned to Fedor’s trailer in a marked fire and rescue
truck. As Faulkner exited the truck, he was met by three
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Opinion of the Court by Liu, J.
persons, the man and woman who had been outside earlier, and
the tall man who had been inside the trailer. Agnew did not see
Fedor. The tall man asked what was going on, and Faulkner
said they had “received a report of medical aid.” The tall man
said, “No, there is no problem here.” Agnew and Faulkner left.
Fedor testified that at some point on the morning of
June 26, May was having difficulty breathing. Baker and
Tompkins went to a nearby convenience store to get May a
product that would help her breathe. Afterward, Agnew arrived
at Fedor’s trailer. Dalton and Tompkins were upset that “911”
had been called, and blamed Fedor. Tompkins said: “[W]hen
they come here everybody stays inside. I’ll go out, tell them it
was me that called, that I’m okay.” When Agnew arrived,
Tompkins went outside. Tompkins told Agnew that the medical
report concerned him, but he was all right and she could go.
Fedor then asked Agnew for an inhaler.
4) Trip to La Cima Honor Camp and Lakeside
Fedor testified that at about 11:30 a.m., just after the
emergency medical technicians left, Baker, Tompkins, and
George drove Fedor and her two children to visit Fedor’s
boyfriend, who was incarcerated at La Cima Honor Camp,
located about 45 minutes away. Baker, in her testimony and
statement to police, said that only Baker and Tompkins — not
George — gave Fedor and her two children a ride to the camp.
Fedor testified that Dalton and May stayed in the trailer.
Before Fedor left, she had tried to reenter the trailer, but Dalton
and May did not let her in. Once Fedor arrived at the camp, the
others left. Fedor understood they would pick her up when
visitation ended at 3:30 p.m. They did not do so, and so after
waiting until about 4:00 p.m., Fedor and her young children
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Opinion of the Court by Liu, J.
hitchhiked home. Fedor did not tell sheriffs at the camp there
was a problem at her trailer because “[t]here was no problem at
my trailer as far as I was concerned.”
Baker testified that after dropping Fedor off at the camp,
she and Tompkins went to a home in Lakeside. They left
immediately after learning that the police had been there the
night before because Fedor had been looking for her children.
Baker and Tompkins then went to the home of Baker’s dealer so
Baker could obtain drugs. Tompkins left the home for about
10 minutes to use a telephone. When he returned, he was “in a
panic.” He told Baker to get in the truck, “we have to go,
something happened. We have to get back up there.” Baker was
disinclined to go because “[i]t was very boring” at the trailer, but
Tompkins was insistent. They drove “[d]irectly back to” Fedor’s
trailer, which was a “long drive.” On the way, Tompkins said
“things happen for a reason,” and “things just happen and to go
with the flow.”
Baker agreed with defense counsel that from the time she
left the Lakeside area until they reached Fedor’s trailer “there
was no discussion between [her] and George and [Tompkins]
and Kerry Dalton about doing anything to” May. She also
agreed she had “no discussions” or “plan to do anything” to May
“at any time” from the time that Baker left Lakeside on
Saturday, June 25, 1988, all through the time when she left to
go to the honor camp with Fedor on Sunday, June 26, 1988.
b. Events during the murder
Baker and Tompkins arrived at the trailer at about
3:30 p.m. George was outside and Dalton was inside the trailer.
Baker and Tompkins had been gone from the trailer at least
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Opinion of the Court by Liu, J.
three hours. Dalton asked Tompkins why he had brought Baker
with him.
A person completely covered by a sheet was seated in a
chair in the kitchen. Rope encircled the sheet and tied the
person to the chair. Dalton was upset, and told Baker that
Baker did not “know what happened when [she] was gone, and
something had happened, and that they were going to kill” May.
Dalton also said that “[y]ou don’t know what we went through”
and that May “tried to get away or something.” Dalton led this
discussion for 10 to 15 minutes, and Tompkins “was going along
with” Dalton. Baker testified she did not know and was never
told what had happened at the trailer while she and Tompkins
were gone.
Tompkins joined George outside. Dalton took Baker to the
“back bathroom where there [were] . . . four or five syringes
filled with what she told [Baker] was” battery acid. The content
of the syringes resembled methamphetamine or water. Dalton
said, “[W]e were going to shoot her up with battery acid; it would
be really quick and easy, that it would be over with.” Dalton
also said the battery acid would “kill her instantly.” Dalton told
Baker that Baker “had to be a part of it” because Tompkins
wanted to kill Baker, and “in order for him not to” kill her, “if
[she] helped, that [she] would be guilty, too” and would not “tell
on them.”
Dalton and Baker returned to the kitchen, and Dalton told
May she was going to give her a sedative to calm her. Dalton
asked Baker to try to inject May with a hypodermic needle, but
apparently because of May’s drug use, Baker could not find a
vein. Dalton was angry, took the syringe, and depressed it once
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Opinion of the Court by Liu, J.
into May’s leg. There was no blood in the syringe, which
indicated to Baker that Dalton had not penetrated a vein.
Dalton told Baker that May was not dead and was
suffering and that they “had to do something about it.” Dalton
handed Baker a cast iron frying pan from the stove and told
Baker to hit May with the pan. Baker hit May once in the head
with the pan. May did not bleed, but the pan broke. Dalton said
they were “going to have to get” Tompkins because “[t]his isn’t
working.” Baker told police Dalton “couldn’t do it and she didn’t
wanna tell” Tompkins. When Tompkins came back inside, he
“was mad, [and] called us stupid bitches that couldn’t handle
nothing.” Tompkins and Dalton decided to stab May, and
Tompkins stabbed May twice. Tompkins may have also hit May
with a breaker bar. Baker did not see an extension cord with
“bare” ends, nor was such an extension cord used against the
person in the chair.
There was no blood on the sheet, but there was a small
amount on the floor that Dalton cleaned up. Tompkins and
George wrapped May in a carpet, placed her body in the back of
George’s truck, and left to dispose of May’s body. About half an
hour passed between the time Baker and Tompkins returned to
the trailer and when Tompkins stabbed May.
On cross-examination, Baker testified she never saw the
face of the person under the sheet, and the person made no
sound or movement. She could not tell if the person was injured
in any way. She did not know if the person was alive when she
and Tompkins returned to the trailer. On redirect, she agreed
that in March 1992 she had told officers May had said, “I don’t
wanna die,” and, “[p]lease don’t kill me, I’m sorry.” On recross-
examination, Baker agreed with defense counsel that in July
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Opinion of the Court by Liu, J.
1994, during her second interview with law enforcement, she
had told officers she had given “the wrong answers” in her first
interview in March 1992, not because she had lied but because
she did not want to remember what happened. Baker told
officers in July 1994 that she did not know whether May was
alive when Baker returned to the trailer, and testified at trial
that this was the truth.
Donald McNeely testified that for three months, from
June to August of 1992, he had shared a cell at the San Diego
County jail with Tompkins. During this time, Tompkins told
McNeely he was “in on a murder charge” and called it a “torture
slaying.” Tompkins said the victim was “Melanie May,” and the
murder occurred in June of 1988 in a “house trailer” in the “Live
Oak Springs, Boulevard area.” Tompkins said that he was
“really into violence,” that he “tortured the hell out of her,” and
that “pain was the name of the game.” In McNeely’s view,
Tompkins “seemed to enjoy it.” Tompkins said the “original plan
was to give Miss May a hotshot” and that Tompkins did so.
Tompkins also mentioned a screwdriver, knife, and a
heavy kitchen skillet, saying “they work wonders on the knees.”
Tompkins “got tired of it” and “just wanted it to end,” so he
stabbed May with a knife.
c. Events after the murder
Tompkins told McNeely he put May’s body into a vehicle
and took it to a nearby Indian reservation. He then
dismembered the body so it would be more difficult to locate.
Baker testified that Dalton said Tompkins and George
were going to burn the body. Dalton and Baker took showers
and cleaned the trailer. Baker collected a breaker bar,
screwdriver, and the frying pan; Baker and the others took these
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Opinion of the Court by Liu, J.
items with them when they left Fodor’s trailer. Tompkins had
the knife. Baker did not see a bloody pillow, pillow case, or bar
of soap, or notice any blood outside the kitchen.
When Fedor returned, Baker was in the yard picking up
items. Dalton told Fedor that she and May “got in a fight,” and
May had left. Dalton also told Fedor they were going to the
store, and Dalton, Baker, Tompkins, and George left in George’s
truck.
After leaving Fedor’s trailer, the group stopped at an
Alpine gas station to get “rid of the stuff that we had with us”;
Baker threw away the screwdriver, frying pan, and breaker bar.
The group then went to El Cajon where Dalton sold a leather
jacket.
Patricia Collins testified she saw Dalton “a couple of days”
after the two had attended the yard sale. Dalton tried to sell her
a black leather jacket. Dalton seemed scared and nervous
because “she kept saying that she needed money, she needed a
place to stay.”
Baker testified that she, Dalton, George, and Tompkins
checked into a hotel in El Cajon. Dalton and Tompkins argued.
Tompkins wanted to blow up Fedor’s trailer, but Dalton said “he
couldn’t do that because children were there.” George drove
Baker to her parents’ home for the night. As she was getting
out of George’s truck she saw in the truck Dalton’s knife that
Tompkins used to stab May. It was an “old kind of buck knife”
with a fixed brown handle.
Sherri Fisher testified that about three days after she saw
May leave Fisher’s home with Baker, she saw Baker, who was
hysterical and crying, and said she had to leave. Baker
described a murder, saying the victim had died slowly and
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Opinion of the Court by Liu, J.
“wouldn’t die.” Baker left with Fisher’s mother. A couple of
hours after they left, Dalton came to Fisher’s home and asked
for May’s belongings; Fisher gave her a purse and some papers.
Fisher’s mother, Marsha Watson, testified that on
June 30, 1988, she traveled with Baker to Watson’s home in
Yucca Valley. Baker had a purse with papers including May’s
birth certificate and birth certificates for “[s]ome boys.” Baker
left the papers at Watson’s house when she departed. Watson
described Baker as “spun,” or someone who had “taken too
much” methamphetamine. At this time, Watson was a heroin
addict who also used crystal methamphetamine.
Dalton made several statements to Baker at various times
after the murder. Dalton told Baker that Tompkins and George
had burned May’s body and it “would never be found.” Dalton
observed, “There was no body, there was no case,” and said that
“if we kill [Tompkins], then if this case ever came up, that we
could blame him.” Dalton said Baker “should never talk about
it,” but Baker did speak to several individuals because she was
“scared that they were going to kill” her.
On October 31, 1991, Fedor identified Dalton, Tompkins,
and Baker from photographic lineups as individuals who had
been at her trailer. In 1992, Fedor identified Tompkins in a live
lineup.
In 1988, Fedor was using a quarter gram of
methamphetamine two or three times a day by injecting it with
a syringe, snorting it, or eating it. On June 25, 1988, Fedor used
methamphetamine “[p]robably at least two or three” times, and
she used this drug at about 8:30 a.m. on June 26, 1988.
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d. Physical evidence
1) Fedor’s testimony
Fedor testified that when she returned to the trailer
between 5:00 and 5:30 p.m. on the afternoon of June 26, 1988, it
was in disarray. A recliner, bedding, and clothes were missing,
and her bed had been moved. The kitchen trash can had been
dumped on the children’s bedroom floor. Baker was washing the
kitchen floor with shampoo.
Dalton was in Fedor’s bedroom and asked to borrow
clothes so she could take a shower. Fedor noticed clothes,
sheets, towels, and blankets she had thrown on her bed were
missing. She asked Dalton where these items were, and Dalton
explained she had accidentally cut herself, “got blood all over,”
and the items were taken to be washed. Dalton also said
Tompkins and George had taken May back to Lakeside.
After Dalton showered, the soap bar was bloody. The
trash can outside of the trailer contained a “dripping wet” bloody
pillow. Fedor asked Baker about the pillow, and Baker and
Dalton had a discussion in which Dalton became angry.
Tompkins and George arrived at the trailer; Tompkins
had white dust on him. Dalton, Baker, Tompkins, and George
left in George’s truck between 8:00 and 9:00 p.m., when it was
starting to get dark, leaving behind their second truck.
Immediately after Dalton and her companions left, Fedor
called the Sheriff’s Department. Fedor then found a screwdriver
with what appeared to be blood, hair, and scalp material on it
and a bloody pocketknife. A standup heater was “full of blood
spatters.” A substance like blood had splattered on her kitchen
paneling. Fedor placed the screwdriver, the trash can
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containing the bloody pillow, and the bloody knife and soap in
her truck.
San Diego County Deputy Sheriff David Wilson responded
at about 9:00 p.m. Fedor tried to show him the screwdriver and
bloody knife that she had placed in her truck, but he would not
let her go outside because it was too dark, and said he would get
them in the morning. She did not mention the bloody soap, did
not give him the heater, and could not recall whether she
mentioned the bloody pillow or the truck her guests had left
behind. While they spoke, Dalton and Tompkins called and
Tompkins heard the officer’s walkie-talkie. Tompkins told
Fedor “not to bother the blue truck” and “not to talk to anybody
or tell anybody.” After this call, Deputy Wilson asked Fedor if
she wanted to file burglary charges, and she said no. Deputy
Wilson said he would return the following day but “never came
back.” A day or two later her guests’ second truck was gone.
After Deputy Wilson left, Fedor found her bedroom
chandelier was gone. One end of the cord to the chandelier had
been cut, and the other end was still “plugged in,” apparently to
an outlet. On the cut end of the cord, part of the plastic
protective covering was melted, exposing the electrical wire.
Although the record is not entirely clear, Fedor also found at
least one extension cord in the shape of a figure eight. Another
extension cord was tied in the shape of two figure eights with a
different cord connecting the two figure eights. She did not
contact law enforcement to inform them of this discovery.
Fedor did not stay in her house for four to six weeks after
“things happened” because she was “in fear of [her] life.” In July
1988, Fedor gave the heater to Darlene Burns, her child
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protective services worker, to help Fedor “find out what
happened at my house.”
At some point Mike Hissom, an acquaintance of Fedor’s,
as a joke took the screwdriver and knife from her truck and
placed them in a freezer. Fedor never saw them again. The
bloody pillow at some point disappeared, and the extension
cords and bloody soap were “lost in the shuffle.”
On cross-examination, Fedor testified that in September
1988, law enforcement took samples from her bedroom, kitchen,
family room, “pop-out” room, and living room. These included
samples from the carpet, carpet pad, and kitchen floor. In
November 1988, law enforcement officers returned to the trailer
and took samples from both inside and outside the trailer. In
early 1989, Fedor moved out of the trailer. (Further testimony
about the 1988 forensic searches was adduced in the defense
case. (See post, pt. I.A.2.a.))
2) Deputy Wilson’s testimony
Deputy Wilson testified that on June 26, 1988, at 8:55 p.m.
he received a telephone call to go to Fedor’s trailer in the Live
Oak Springs Trailer Park to investigate a burglary report.
There were approximately 30 trailers in the park, and the park
was situated in a retirement community “like a little village”
that also included homes, A-frame motel units, a store, a
restaurant, and a gas station.
Deputy Wilson arrived at Fedor’s trailer at 9:02 p.m.
Fedor appeared to be under the influence of methamphetamine.
She was “very excited,” did not “complete her sentences,” and
seemed “very paranoid.” When Deputy Wilson tried to ascertain
what Fedor was afraid of, she would speak rapidly, ramble, and
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not answer his questions. Deputy Wilson testified, “[I]t was like
trying to talk to somebody who was mentally ill.”
The lighting inside the trailer was dim, so Wilson also
used his flashlight to examine the kitchen, living room, and
master bedroom. He saw a stack of dirty clothes in the doorway
to the bedroom and dirty clothes piled on the bathroom floor. On
a chair were car parts.
Deputy Wilson asked Fedor what had been taken from the
house, and she said a yellow trash can and a chair slipcover.
Fedor also said she had found a blood-soaked pillowcase on her
bed. Deputy Wilson did not observe such an item or any blood
on Fedor’s bed. Fedor then said “they put it in a box” and it was
under the trailer. Deputy Wilson looked under the trailer with
his flashlight from five different positions, but did not see a box
or pillowcase. Fedor suggested Deputy Wilson look in the trash
that was in her pickup truck. Deputy Wilson looked briefly in
the back of the truck, but did not see a bloody pillowcase or other
bloody item, and the bags of trash and boxes looked undisturbed.
Deputy Wilson did not see any blood in the kitchen, living
room, or master bedroom, nor did Fedor point out any blood in
the trailer or ask him to look at her heater, carpet, or walls. Nor
did Fedor tell him there was a screwdriver with blood and hair
on it in the back of her truck or give him a screwdriver, knife, or
bar of soap.
At one point Fedor received a telephone call. She asked
Deputy Wilson to turn off his portable radio because she did not
want “them to hear.” Fedor seemed afraid and was crying. She
refused to tell Deputy Wilson who “they” were because she was
concerned for either her safety or that of a friend who had been
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there earlier. Fedor refused to tell Deputy Wilson the name of
the friend.
Deputy Wilson did not see any evidence that a burglary
had occurred, and therefore did not write a report about the
incident until several months later, on September 15, 1988. On
that day, he happened to see Sheriff’s Department detectives
from the violent crimes team at the trailer park, and they
requested he write the report. Fedor did not call Deputy Wilson
after June 26, 1988.
3) 1991 forensic testing
Gary Dorsett, an evidence technician with the San Diego
Police Department Crime Laboratory, testified that on
August 12, 1991, at about 6:00 p.m., he and Annette Peer, a
DNA criminalist at the same laboratory, went to a trailer (that
had previously been Fedor’s trailer) in the Live Oak Springs
Trailer Park in Boulevard. The trailer was occupied. Dorsett
observed “very small” spots on the living room and master
bedroom walls, floors, and ceiling that tested positive for the
presumptive presence of blood. On August 24, 1991, at about
noon, Dorsett returned to the trailer with two law enforcement
officers and performed additional testing. He then marked,
photographed, and took samples for further testing of the areas
of the living room, master bedroom, and “pop-out” room that
tested positive for the presumptive presence of blood.
Gary Harmor, a forensic serologist at the Serological
Research Institute in Richmond, California, testified that in
April 1992 he tested six samples from Fedor’s trailer to
determine ABO blood type and species origin. He obtained
readings of type O on some samples and type A on other
samples. Both type A and type O were found on one sample, and
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Opinion of the Court by Liu, J.
Harmor was of the view that different donors had deposited
blood on the sample, although he could not tell if they had done
so at the same time. The sample might also have consisted of
only type A blood because type A blood contains type O blood.
Harmor was unable to determine the age of the samples or
whether the six samples were of human or animal origin.
The parties stipulated that May and Tompkins had type A
blood, and Dalton and Baker had type O blood. Harmor testified
that 50 percent of whites and blacks, 65 percent of Hispanics,
and 32 percent of Asians had type O blood. Thirty-six percent
of whites, 26 percent of blacks, 31 percent of Hispanics, and
38 percent of Asians had type A blood. Animals, including dogs,
rodents, squirrels, and mosquitos carrying blood, also have ABO
blood types.
Jennifer Mihalovich, a criminalist at Forensic Science
Associates in Richmond, California, testified that the size of
most of the samples she examined was about one millimeter or
the size of a pinhead. She was unable to obtain DNA results
from tested samples because the amount of DNA present was
insufficient. Mihalovich also examined a heater received from
Investigator Cooksey and did not detect the presence of blood on
the heater.
Investigator Cooksey, who was assigned to the case of
May’s disappearance in July 1991, testified he conducted two
unsuccessful searches for her. Both searches involved about
20 individuals and several dogs trained to locate human bodies.
One search lasted nearly a day and was conducted north of
Fedor’s trailer. Another search was performed on the Viejas
Indian reservation.
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Opinion of the Court by Liu, J.
4) Fedor “corroboration”
The prosecution presented numerous witnesses in an
effort to corroborate Fedor’s testimony.
San Diego County Deputy Sheriff Richard Baumann
testified that during the night of June 25 to June 26, 1988, he
received a call to investigate a kidnapping. He was told to look
for Dalton at a house in Lakeside. When he arrived at the house,
the dispatcher told him the reporting person had her children.
Alisha Fedor, Joanne Fedor’s daughter, testified she was
about 12 years old on June 26, 1988, and spent that weekend
away from home. When she returned on Monday, she noticed a
recliner was missing from the living room, and much of the
remaining furniture in the trailer had been moved outside. One
corner of the wall-to-wall living room carpet had been pulled up
and flipped over. White powder was on the living room windows.
The heater appeared to have blood on it. In her bedroom, trash
had been “dumped everywhere.” In her mother’s bedroom, the
cord to a hanging lamp had been cut, and the wire was exposed.
The cord appeared to have been burned, and the room “smelled.”
She did not recall seeing bedding on her mother’s bed. Small
dark brown or reddish-brown spots were on her mother’s
bedroom carpet, and similar spots were on the floor and wall of
the pop-out room. Outside, a large screwdriver with hair and
what appeared to be blood, was lying in a space underneath an
open truck bed.
Kathy Eckstein testified she knew Joanne Fedor and had
visited her trailer. One Sunday between 2:00 p.m. and
3:00 p.m., her son Fred and his friend Mike Howard were
dropped off at Fedor’s trailer. About a half hour later, Fred
called home and asked to be picked up. When Eckstein arrived
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Opinion of the Court by Liu, J.
at Fedor’s trailer about 5:00 p.m., it was dark outside. The
trailer was “a mess,” and clearly visible nickel and dime sized
red spots that appeared to be dried blood were “all over the
place,” including the carpeting, walls, and blankets on the bed
in Fedor’s bedroom. Fedor showed Eckstein a bar of soap with
teeth marks and a cut extension cord with two loops.
Eckstein did not call law enforcement to report seeing
blood in Fedor’s bedroom. Eckstein was using
methamphetamine occasionally during this time period, but not
on the weekend addressed in her testimony. Eckstein was not
sure of the year, month, or time of year these events had
occurred, but was certain they had occurred on a Sunday. She
said it started to get dark in June at about 5:00 p.m., and noted
that at the time of her testimony in February it got dark “later
around 6:30” p.m.
Fred Eckstein, Kathy Eckstein’s son, who in June 1988
was about 14 years old, testified he would stay at Fedor’s trailer
for several days at a time and often babysat for her. Fedor drove
Fred to her trailer “that evening, after it happened.” Fedor
pointed out spots on the living room carpet and walls that
appeared to be blood. Fedor also showed him a rusty
screwdriver. Fred saw extension cords on the living room floor
that were tied in a knot “like something was bound in them and
cut,” and a telephone cord. Fedor’s bedroom had a pungent odor
“like fish after being out all day.” About two days later, Fred
replaced Fedor’s living room carpet and padding and took the
old carpet outside.
Fred did not recall the date, month, or the day of the week
these events occurred. He did not think it was in June. School
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was still in session, although Fred was suspended at the time.
“It had to be summer” because the days were long.
At this time, Fred was using methamphetamine two or
three times a day. He obtained it from Fedor, and had been
using it for “quite awhile.” He had used methamphetamine on
the day he saw the unusual things in her trailer.
Jeanette Bench testified that one day in the summer of
1988, Bench was speaking with her friend Lacy Grote outside of
Grote’s home in Santee. Fedor, who was hysterical, walked up
the driveway carrying a screwdriver about 12 inches long with
what appeared to be skin, hair, and dried blood on the metal
part, but not the tip, of the screwdriver. Bench had suffered five
prior felony convictions, had used a number of aliases, and in
1988 was injecting methamphetamine “quite a bit.”
Patrick Woods testified that in June 1988 his girlfriend
was Lacy Grote. Woods recalled at some point — he did not
know the year or month — throwing out an “old, odd-ball
screwdriver” he found in his garage freezer. The screwdriver
was in a dirty paper bag, had grease or blood and lint or dog hair
on it, and was “chipped up” and looked old. At this time in his
life, Woods was regularly injecting methamphetamine.
Darlene Burns testified that in 1988 she was Joanne
Fedor’s San Diego County social worker. On August 17, 1988,
Burns visited Fedor’s trailer. Fedor was distraught and
nervous, and showed Burns areas of her carpet. Burns observed
dark spots that looked like blood on the living room carpet, and
advised Fedor to contact the sheriff. On September 7, 1988,
Burns again visited Fedor’s home. Fedor gave her a knife and a
heater that Burns took to the local sheriff’s station.
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PEOPLE v. DALTON
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e. Dalton’s admissions
Laurie Carlyle testified that in 1992 she had been
incarcerated with Dalton. On one occasion, Carlyle told Dalton
their mutual acquaintance Patricia Collins had said hello.
Dalton said she did not want to be associated with Collins
because Collins could get her in trouble by “run[ning] her
mouth.” Dalton asked Carlyle not to mention Dalton in any
letters to Collins because “it could cause [Dalton] problems.”
Dalton also spoke to Carlyle about Sheryl Baker, whom
Dalton called “John-Boy,” saying Baker also could cause Dalton
problems. Dalton said she, Baker, and Mark Tompkins were
involved in the murder of Melanie May in the “Live Oaks” area.
May had been killed by battery acid, and her body was at the
bottom of a well on an Indian reservation. Carlyle exchanged
correspondence with Baker in 1993, and at one point told Baker
that she, Carlyle, had never met Dalton. Carlyle did not speak
to either Baker or Patricia Collins about the case that she was
testifying about, but she did hear “a few things” in 1992 from
fellow inmate Sue Aguilar. Carlyle had suffered prior felony
convictions, including a California forgery conviction, a 1993
New Mexico theft conviction, and three or four 1993 New York
grand larceny convictions.
Patricia Collins testified that a “couple of months” after
Dalton tried to sell Collins the leather jacket, the two were in
jail together. Collins asked Dalton why she killed May, and
Dalton said because May “was a rat” who “deserved to die.”
Dalton gave Collins no details about the murder. On another
occasion, when Dalton visited Collins in jail, she told Collins
that if it appeared Collins was going to be “blamed for the
murder that [Dalton] would turn herself in.” In a third
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Opinion of the Court by Liu, J.
conversation — Collins did not recall when — Dalton was upset
Tompkins was taking credit for “killing somebody that he didn’t
kill.” Dalton also said that she “didn’t think that there would be
a case because there wasn’t a body” and that she wanted to leave
town because she did not want to be caught. On cross-
examination, Collins recalled Dalton also said that May must be
alive and that May was not dead but had left with her boyfriend.
On redirect, Collins said Dalton “flopped back and forth all of
the time” or apparently gave inconsistent explanations for May’s
disappearance.
To avoid being blamed for May’s murder, and because it
was a “sick crime,” Collins agreed to cooperate with law
enforcement. In November 1988 she engaged in taped telephone
conversations with Baker. Collins was released from jail
15 days early as a benefit for this cooperation.
Collins had used methamphetamine intravenously from
1988 to 1991. She had suffered a 1986 felony conviction for
conspiracy to manufacture methamphetamine.
Jeanette Bench testified she had been incarcerated with
Dalton at Las Colinas Women’s Detention Facility (Las Colinas).
In 1992, Bench called Dalton a “tramp” or other name, and
Dalton “came at” Bench but was stopped by a deputy. This
occurred after Bench told authorities about seeing Fedor with
the screwdriver. In December 1994, Dalton called Bench a
“lying bitch” and said either “I ought to have you killed” or “I
ought to kill you.” Bench was frightened, contacted law
enforcement, and was moved.
On another occasion, Dalton walked by and spat on
Bench’s window. Investigator Cooksey testified Bench said
during an interview that before Dalton spat, she told Bench,
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PEOPLE v. DALTON
Opinion of the Court by Liu, J.
“You don’t know anything about this case and that she was dead.
She is a dead woman.”
At some point, Sherri Fisher was interviewed by
Investigator Cooksey about May’s disappearance. Immediately
after the interview, Fisher went to a park and saw Dalton, who
told Fisher “to say I don’t know . . . [May], [May] never lived
with me, never say the names [sic] again.” Fisher had sold and
occasionally intravenously used methamphetamine in the past,
but was not a methamphetamine user when she spoke to
Investigator Cooksey.
The prosecution introduced a handwritten note the parties
stipulated was written between July 9, 1988, and December 7,
1988, that said: “Look Bud — don’t worry, . . . they’ve got
Nothing and will NEVER have anything — dig? I get out
February 2, we’ve got to leave bud — work on that for me, . . .
try to find me a place to hide out till you get out and we’ll
split . . . I’m scared they’re not gonna cut me loose — so if they
do — I’ve Got to DISAP[P]EAR! [¶] Help ME — [¶] I Love You,
[¶] Lots.” Sheryl Baker and Patricia Collins identified the
handwriting as Dalton’s. David Oleksow, a forensic document
examiner, testified he had compared the note to Dalton’s known
handwriting exemplars and was of the view that Dalton was
“probably responsible” for the handwriting on the note.
Judy Brakewood, a drug dealer, testified that in 1988 she
was living in El Cajon and knew Dalton. Late one night in May
or June 1988, she brought methamphetamine to Steven Nottoli,
also known as “Streaker,” who was in a green van parked at a
7-Eleven store in Spring Valley. In the van with Nottoli was a
woman Brakewood did not recognize. Dalton was about 10 to
15 feet away from the van speaking on a pay telephone. While
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Opinion of the Court by Liu, J.
Dalton was away from the van and Brakewood was in the van
with Nottoli and the unidentified woman, Nottoli told
Brakewood “they had shot up this girl with battery acid” and
“burned her.” When Dalton returned to the van at the “tail end
of a conversation,” she said, “Yep, we really fucked that girl up.”
Brakewood described Dalton as “exuberant.”
f. Evidence May was dead
Although May’s body was never found, there were several
indications she was dead. Bobby May, May’s husband, testified
May had a daughter from a prior relationship and the couple
had two sons. At one point their children were placed in
protective custody. May and Bobby attended a parenting class
and made great efforts to be reunited with their children. Kandy
Koliwer, May’s attorney, testified May attended all of the court
hearings held before June 30, 1988. Nina Tucker testified that
in December 1987, she was the San Diego County Child
Protective Services worker assigned to the May family. At that
time, May and Bobby had custody of their three minor children
under a reunification plan. May made about three court
appearances, was present when Tucker visited the May’s home,
and telephoned Tucker about three times. During a home visit
in March or April 1988, May appeared very lethargic and
undernourished, and Tucker recommended she seek medical
treatment.
On June 10, 1988, Tucker, a social worker, and a law
enforcement officer again removed the children from May’s
home. May subsequently admitted to Tucker she had been
abusing drugs and neglecting her children. May appeared with
Koliwer at a hearing on June 15, 1988. On June 24, May called
Tucker and said she wanted to get her children back, was tired
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PEOPLE v. DALTON
Opinion of the Court by Liu, J.
of being on the street, and wanted to make changes in her
lifestyle. Tucker asked May to call her so they could meet at
9:00 a.m. the following Monday (June 27). May seemed pleased,
but Tucker did not see or hear from her again. May also failed
to appear with Koliwer at a hearing on June 30, 1988, and
Koliwer had not seen her since that time.
In Koliwer’s view, May’s children were the “most
important people in [May’s] life.” May did not indicate she was
interested in leaving or abandoning her children, and did not
appear to be suicidal. Tucker similarly believed that May loved
and was responsive to her children, and gave no indication she
would abandon them.
Bobby testified he had not seen May since June 17, 1988,
when Bobby was arrested. Bobby also testified, however, that
he had seen May after he was released from jail in July 1988.
Phyllis Cross testified that she met Bobby May at some
point after May disappeared, and was his girlfriend at times for
about three years. Bobby was “very serious” in his efforts to find
May. At some point Tompkins told Bobby to stop looking for his
wife. Dalton told Cross she thought May was dead; Cross noted,
“[T]hat is just what everybody thought.”
Sherri Fisher testified that around June 1988, she met
May, who was homeless, and invited May to live with her. The
last time Fisher saw May, May was leaving the apartment with
Sheryl Baker.
Marsha Watson, Sherri Fisher’s mother, met Bobby May
“months” after she traveled with Sheryl Baker to Yucca Valley
in June 1988. He asked for the papers Baker had left at the
home. He told Watson he could not find his wife and would like
to do so to put her to rest.
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Opinion of the Court by Liu, J.
Howard Simmons, a document custodian for the San
Diego County Department of Social Services (DSS), testified
that May and Bobby May received $859 in Aid to Families with
Dependent Children (AFDC) and $166 in food stamps each
month from April 1986 to June 1987, and from October 1987 to
June 1988. May received DSS checks on June 1, 1988, and
June 15, 1988, that were cashed by her. The checks stopped in
June 1988 because May had not filed the required monthly
paperwork by the June deadline. May did not reapply for
assistance, and DSS had no further contact with her.
Marla Tottress testified that she was a teletype operator
for the San Diego County District Attorney’s Office, and in June
1994 and February 1995 she ran a complete records check on
the names Irene Louise Clair (May’s maiden name), Irene May,
Melanie May, and Irene Miller in 50 states and Puerto Rico. In
particular, Tottress looked for persons with one of these names
on a driver’s license or identification card, vehicle registration,
arrest warrant, restraining order, “missing persons” report,
“criminal history” (meaning if any such individual had been
fingerprinted or arrested), and whether such an individual
owned real property in San Diego. Tottress found Irene Melanie
May had been arrested on June 2, 1988, in San Diego and the
case had been dismissed, but Tottress did not otherwise locate a
person by any of these names.
g. Expert testimony
Dr. Brian Blackbourne, a pathologist, testified as an
expert on the effect of battery acid and electricity on the human
body. He explained battery acid is sulfuric acid mixed with
water. Sulfuric acid is a corrosive acid that kills “local cells
where [it] is placed.” The process begins immediately when the
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PEOPLE v. DALTON
Opinion of the Court by Liu, J.
acid contacts the cells. If pain fibers are present, they sense pain
until they are destroyed by the acid. If battery or sulfuric acid
were injected into a muscle, it would cause a “Charl[ey]-horse
type of pain” in that muscle. If the acid were injected into a vein,
it would be “much more painful,” causing pain for a “short time,
seconds” until it was “neutralized by the tissue.” Battery acid
that had only a local effect would not be lethal. If enough acid
were injected to “get into the blood stream to cause the whole
body acid base balance to be affected” and “go into acidosis, that
could be serious,” and would probably take several hours to
occur. On cross-examination, Dr. Blackbourne agreed with
defense counsel that persons can also die from natural causes,
asthma attacks, hepatitis, or methamphetamine overdoses.
The hypodermic syringe generally used by drug users was
one cubic centimeter. This amount of acid would have
predominantly local effects and not cause death, but
Dr. Blackbourne would expect the person to scream and jerk
around.
Electricity has “two effects,” the first of which effect is
local. Skin “has a fairly high resistance to electricity,” so as
electricity passes through the skin it “causes intense heat to be
produced just at that local place.” If the voltage is 110V, or
normal household current, and the current is sustained for
minutes, the electricity would cause a burn. The second effect
is electrocution, which occurs when “electricity goes through the
body,” and “in so doing goes through either the heart or the
brain.” Combining an injection of battery acid with an electrical
contact would result in two sources of pain that were additive.
Only “awfully severe” pain causes unconsciousness. A
severe enough blow from a pan could cause unconsciousness. It
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Opinion of the Court by Liu, J.
was “usually quite certain” that if a person were going to become
unconscious as the result of a blow, he or she would “utter some
sort of sound.”
2. Defense evidence
a. Physical evidence
Investigator Cooksey testified that the folding knife
Joanne Fedor gave Darlene Burns tested negative for the
presence of blood. On September 15, 1988, and November 16,
1988, law enforcement forensic teams unsuccessfully searched
Fedor’s trailer for the presence of blood.
Randolph Robinson, the supervising criminalist for the
San Diego Sheriff’s Crime Lab, testified that on September 15,
1988, he and several law enforcement officers searched Fedor’s
trailer in Live Oak Springs for three hours for the presence of
blood. Robinson checked the carpets, baseboards, walls, and
ceilings in every room in the trailer, as well as appliances and
other items, and did not detect the presence of blood.
Criminalist Walter Fung, who in 1988 worked for the San
Diego County Sheriff’s Department, testified that on November
16, 1988, he and two law enforcement officers searched Fedor’s
trailer for two and a half to three hours. Fung visually searched
the carpets, ceilings, and walls of the master bedroom and
bathroom, living room, and parts of the kitchen and pop-out
room for blood. He took three pieces of the carpet pad under a
bed in the master bedroom, a piece of carpet from the kitchen
and the living room threshold area, and a piece of tile from
under the refrigerator in the kitchen back to the Sheriff’s
Department laboratory for testing. None of the items tested
positive for the presence of blood.
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Lauren Najor testified her husband was one of the owners
of the trailer park in Live Oak Springs, and they lived in
space 23. In June 1988, Fedor lived in space 25. Between the
time Fedor moved out of the trailer and the 1991 forensic
testing, the trailer was occupied by a series of at least three
different renters.
b. Second Baker interview
In its case-in-chief, the prosecution played for the jury the
redacted tape of Sheryl Baker’s March 4, 1992 interview with
law enforcement in which she told officers that May had said, “I
don’t wanna die,” and “[p]lease don’t kill me, I’m sorry.” The
defense played for the jury the tape of Baker’s July 5, 1994
interview with law enforcement in which she told police she did
not think May was alive when Baker and Tompkins returned to
the trailer because May made no sound during the attack, and
Baker was not sure whether she had moved. Baker also said
she did not recall seeing a bloody pillow or any other bloody
object. Baker fell asleep on the way to the honor camp and
apparently woke up when Tompkins was dropping Fedor off. At
that time, Fedor did not tell them when her visit would end or
ask them to pick her up.
c. Impeachment of prosecution witnesses
As explained more fully in part II.A.1.c., the defense
theorized that Mark Tompkins made no statements concerning
the murder to his cellmate Donald McNeely, but rather McNeely
surreptitiously read materials regarding the case that
Tompkins possessed in the cell. Alan Fenton, a defense
attorney, testified that in May 1992 he had been appointed to
represent Mark Tompkins. By June 1992, Fenton had received
two to three thousand pages of case reports related to the
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Opinion of the Court by Liu, J.
charges against Tompkins. Fenton gave Tompkins
documentation of his statements to others regarding his alleged
involvement, copies of his codefendants’ interviews, and press
releases relating to his case. These materials included
references to giving someone a “hotshot,” placing a body into a
car, and cutting up a body, as well as references to the location
of the alleged homicide, a skillet, an Indian reservation, and the
phrase “to help her out of her misery.” They also included
references to other locations where the body or parts of the body
could be found, as well as conflicting stories as to whether the
body had been burned or cut up.
Investigator Cooksey testified that when he interviewed
Alisha Fedor on September 12, 1991, she was not sure whether
she had seen a screwdriver.
Pamela Aitchison testified that Patricia Collins had a
reputation in the community as a dishonest person and a thief.
d. Expert testimony
Apparently to impeach those prosecution witnesses who
used methamphetamine and to support a defense theory that
May could have died from natural causes, the defense called
Dr. Clark Smith, a psychiatrist who served as the medical
director of Vista Pacifica, a drug and alcohol treatment hospital,
and the clinical director for the drug and alcohol treatment
programs at Mesa Vista Hospital and Vista Hill Foundation.
Dr. Smith testified as an expert on the effects of
methamphetamine use.
Intravenous use of methamphetamine was the most
severe form of addiction and had the greatest effect on the
person using the drug. Methamphetamine is a type of
amphetamine. A quarter of a gram or 250 milligrams of
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Opinion of the Court by Liu, J.
methamphetamine was 50 times the amount of amphetamine in
a typical diet pill and a “dangerous amount” for a person to use.
Intravenous methamphetamine use commonly causes
psychosis or “truly believ[ing]” one sees or hears something that
is not really there. The possibility of psychosis, including
psychotic delusions and visual or tactile hallucinations,
increases as the individual uses more amphetamine.
Hallucinations are common with methamphetamine abuse,
occurring in close to 90 percent of users. Seeing blood that is not
in fact present is a common visual hallucination reported by
individuals Dr. Smith had treated. If impurities are present in
the methamphetamine used, it can cause hallucinations “for
protracted periods of time with unexpected severity using what
seems to be a small amount of the drug.” Psychotic delusions,
such as believing that “the police . . . are after you” or persons
on the street are discussing you, are also common. Individuals
might contact law enforcement because they believe they are
victims of a crime that has no basis in fact. Distortion of a
person’s perception of time and reality is exacerbated by the
extreme sleep deprivation that results from methamphetamine
abuse.
When a person has used methamphetamine over a period
of time and injects a quarter of a gram, eight to 10 hours later
the drug remains in the brain and bloodstream, the user is still
under its influence, and the user can experience psychosis,
paranoia, hypervigilance, and delusions that someone is
attacking him or her. Hallucinations and delusions generally
cease after a person completely stops using methamphetamine
and the drug is cleaned out of his or her system. Dr. Smith had
repeatedly observed individuals who were clean of
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Opinion of the Court by Liu, J.
methamphetamine but “still believe[d] the psychotic delusions”
they had experienced because the delusions had been “so vivid.”
Methamphetamine use changes the physiology and
chemical balance of the brain, often depriving the brain of its
“normal neurotransmitter, such as the normal adrenalin that’s
in the brain.” Methamphetamine also constricts vessels and
cuts off the blood supply to the brain causing “microscopic
strokes” or small portions of the brain to die.
Impurities in methamphetamine can damage the heart,
liver, and kidneys. For those who suffer from asthma,
impurities can cause a pulmonary embolism and can trigger
severe asthma attacks that may result in death. Combining
asthma medication and methamphetamine can cause heart
attacks or heart fibrillation. If a user has decreased liver
function due to hepatitis, a usual dose of methamphetamine can
be lethal.
On cross-examination, Dr. Smith testified that if a person
were under the influence of methamphetamine and hence more
likely to be dehydrated, have poor nutrition, and be in a
generally weakened state, electricity “would probably hurt the
person.”
B. Prior Convictions
In a separate proceeding outside the presence of the jury,
Dalton admitted that in March 1984 she had suffered felony
convictions for credit card forgery and petty theft with a prior
conviction (former §§ 484, 666), she had served a prison term for
these offenses, and she had not remained free of prison and the
commission of an offense resulting in a felony conviction for five
years after her release from prison. (Former § 667.5, subd. (b).)
She also admitted that on June 4, 1985, she suffered a prior
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serious felony conviction for burglary. (Former §§ 459, 667,
subd. (a), 1192.7, subd. (c)(18).)
C. Penalty Phase
1. Prosecution Case
Cynthia Johnson testified that in February 1992, she was
living with her husband in a recreational vehicle in Jamul.
Johnson was caring for her mother, who lived in a house on the
property and was dying of cancer. Johnson’s mother was taking
large doses of morphine. About 11:30 on the morning of
February 3, 1992, Johnson was alone in the trailer. A man with
a white hockey mask and a woman in a ski mask entered
through her unlocked screen door. The man hit Johnson
repeatedly in the head with a flashlight. While he did so, the
woman took Johnson’s purse and jewelry case and her mother’s
medication, and left. Johnson bit the man, and he fled. Johnson
ran after them. The man removed his mask, and the woman got
into a car. Johnson wrote down the license plate number and
called 911. About 15 minutes later, Johnson identified the man,
the woman, who was Dalton, and Johnson’s purse to police.
Johnson suffered a slight concussion and continued to get
headaches at the time of her testimony. Two months after the
attack, her mother died and Johnson suffered a nervous
breakdown. The parties stipulated that Dalton pled guilty to
robbery for this offense.
Dawn Crawford testified that in October or November of
1994, she was incarcerated at Las Colinas in room 169 of the B-
1 housing area. Each room had a door rather than bars in front.
At some point during this time period Dalton was housed next
door to Crawford in room 168. Through an emergency call box
on the wall, Crawford could hear voices in the next room.
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Opinion of the Court by Liu, J.
On one occasion, when the doors to both room 168 and
room 169 were closed, Crawford heard Dalton speaking with
inmate Terry Carbaugh. Dalton said she had participated in a
murder. She referred to the victim as “the bitch” and said the
victim had owed Dalton $80. The victim was tied and injected
with battery acid. Dalton said that “hearing her scream was the
greatest high that she has ever experienced.” The victim was
stabbed in the head and “cut up and mutilated.” Dalton
mentioned an Indian reservation. Dalton also mentioned a
woman named “John-Boy” and said “John-Boy better keep
quiet.” During the conversation, Dalton was “laughing . . . like
it was no big deal.”
On cross-examination, Crawford testified it was common
knowledge at Las Colinas that conversations could be heard
between the rooms through the call boxes. She had taken notes
of the conversation when it occurred, but she could not find
them. At some point Crawford was housed in the same area as
Sheryl Baker and spoke to her. Crawford had “received a lot of
death threats from inmates about this case” and was “very
concerned about [her] safety.”
In October or November of 1994, Crawford was facing an
assault with a deadly weapon charge and a weapon
enhancement allegation. On November 30, 1994, she pled guilty
to assault by means of force likely to produce great bodily injury,
and the weapon allegation was dismissed.
Pamela Johnson testified that on September 13, 1993, she
was incarcerated at Las Colinas and had been subpoenaed to
appear in court regarding Dalton’s case. Johnson had
previously participated in a taped interview about Dalton’s case
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Opinion of the Court by Liu, J.
with Investigator Cooksey. Apparently as a result, the two
women were to be kept separate from one another.
On September 13, Johnson was sitting in the Las Colinas
visiting area, a “holding area for inmates going to court,”
speaking to another inmate. Dalton approached and told the
other inmate to leave. Dalton said that Johnson “was a snitch,
and that if I snitched out on her I would pay for it.” Dalton also
said, “[N]o matter where I was, whether I was in jail or out of
jail, she could get to me; if I snitch[ed] on her that I would die.”
Dalton also asked Johnson how it felt “having a son of a junkie,
just like me.” When Johnson started to get up, Dalton said
Johnson could not get away from her, and Dalton elbowed
Johnson in her right rib area, bruising her. Dalton said Johnson
was going to die, and asked Johnson if she had heard from her
husband or son lately. Johnson yelled for Dalton “to get out of
my face.” Deputies intervened and separated the women.
Johnson and Dalton were subsequently placed on a bus to
the courthouse. Dalton told the inmate to whom she was
handcuffed that Johnson was a “snitch” and causing Dalton “to
serve lots of time.” To be called a “snitch” in custody meant
“you’re turning on your own kind,” and “that you have to pay for
it.” Johnson had suffered prior convictions for welfare fraud and
credit card forgery.
The parties stipulated to Dalton’s prior convictions and
the dates on which she was in custody in state prison.
2. Defense Case
Victoria Perez, Dalton’s sister, testified that Dalton’s 12-
year-old daughter Hannah had been adopted by Perez. Hannah
had lived with Dalton until she was two and a half years old.
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Opinion of the Court by Liu, J.
Perez had moved to Washington State about a year before
her 1995 testimony. Before then, she had lived in San Diego and
had visited Dalton at the Las Colinas jail weekly. Perez also
wrote to and spoke on the telephone with Dalton and had
continued to do so after her move to Washington. Hannah and
Perez’s other children loved Dalton.
Perez was religiously devout, and her visits with Dalton
often were about their shared faith. Perez was impressed by the
depth of Dalton’s knowledge of scripture and her understanding
of Christianity. Dalton was repentant and understood “she
hadn’t walked the way [the] Lord wants her to.” Dalton was
enrolled in a theology school and hoped to minister to others in
prison, help them to know they were loved by God, and break
the cycle of being incarcerated. Dalton had been a blessing to
Perez and her family the past three years, and Perez did not
want her to die.
Todd Thorpe, Dalton’s brother, testified that Dalton had
“turned her life around” and was trying to “do good for herself
and others.” Thorpe loved Dalton and wanted her to live. He
believed she could touch other lives in prison and “lead them to
make the right decisions in their life and turn things around.”
Rosalie Thorpe, Dalton’s mother, testified Dalton was born
on January 24, 1960. She had two sisters and a brother. Dalton
had five children, three girls and two boys, who were six to 16
years old. Two of Dalton’s daughters, Brianne and Christiana,
lived with and had been adopted by Rosalie. Brianne stopped
living with Dalton when she was two months old, and
Christiana had gone home with Rosalie after she was born.
Dalton’s oldest child, David, lived with his father and had not
lived with Dalton since he was four and a half years old because
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PEOPLE v. DALTON
Opinion of the Court by Liu, J.
of Dalton’s drug use. Her other son, Jason, who was 10, lived
with Dalton for about eight months, before living with Dalton’s
sister Laurie.
Rosalie, Brianne, and Christiana had started visiting
Dalton about five months before Rosalie’s March 1995
testimony. Rosalie had heard from other family members and
Dalton’s chaplain that Dalton had changed long before then, but
Rosalie could not “comprehend it.” Brianne and Christiana
loved Dalton “very much.” During the visits, the girls sang
songs to Dalton over the phone, longed to touch her, and blew
her kisses and said “I love you” as they left. At night Christiana,
who was six years old, prayed Dalton could rejoin her family.
Rosalie believed Dalton had “completely changed” and
knew in her heart, “as her mother, that she is different.” In
Rosalie’s view, “drugs took [Dalton] from our family,” “[s]he is
now back,” and it was “a miracle.” Rosalie and the rest of
Dalton’s family “pray[ed] that she lives.” Rosalie did not believe
Dalton had “killed anybody.”
Keith LaChance, Dalton’s father, testified that he left the
family in 1966 when Dalton was six years old. He next had
contact with Dalton when she was 15 years old, and she came to
live with LaChance for a few months in Fairbanks, Alaska.
Dalton was well-behaved, and did not use drugs or alcohol. The
next time he saw Dalton was in August of 1992 when she was
32 years old and had been arrested for murder. Since 1992, he
had become close to Dalton, saw her on a regular basis, and
wrote to her when he needed to travel. He had sacrificed “just
about everything to have this relationship, and I hope I get to
continue it.”
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Opinion of the Court by Liu, J.
Reverend Romie Cervantes, who supervised the chaplains
at Las Colinas, testified that she had known Dalton since 1992.
At first, Dalton was “mean,” profane, and argumentative.
Reverend Cervantes met weekly with Dalton, and had watched
her “grow into a beautiful Christian woman.” Dalton
“soak[ed] . . . up” “everything that we’ve taught her,” and
Reverend Cervantes believed her religious commitment was
genuine. Because Reverend Cervantes was a volunteer, she
considered her time valuable and thus spent it with people who
“are hungry and [who] really want God, not just . . . somebody
that’s playing church in jail.” Although Dalton had not shared
the details of her past, she told Reverend Cervantes she had
“done awful things” and had expressed remorse for “everything
that she’s done.” Reverend Cervantes did not want Dalton to
receive the death penalty because she had witnessed the
difference Dalton made in other inmates’ lives.
Charlene Gill, a church ministry volunteer, testified she
led a Bible Study twice a month at Las Colinas. She had known
Dalton since October 1992, or nearly two and a half years.
Dalton had been faithful in her attendance, paid attention, and
asked questions. She related well, often “lovingly,” to her
classmates. Dalton was strongly “committed to the Lord, and
she’s trying to live her life for him now.”
Duetta Bellamy testified that she had been a Bible study
teacher at Las Colinas for about 15 months. During that time
Dalton had actively participated in the group and was kind and
supportive to other members. Once when another inmate had a
seizure, Dalton immediately comforted and prayed for her until
the guards arrived. Dalton’s cell mates who were in the group
thought “very highly of her and look[ed] up to her as a . . .
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PEOPLE v. DALTON
Opinion of the Court by Liu, J.
witness of the Lord.” Bellamy believed Dalton would be of
assistance to other inmates as a lay minister.
In response to Dawn Crawford’s testimony, on
February 28 and March 2, 1995, Marion Pasas and Allan
Cotten, licensed private investigators, conducted an experiment
at Las Colinas. They were unable to locate rooms 168 and 169
in the B−1 housing area (the rooms testified to by Dawn
Crawford) but did locate rooms 268 and 269.
Cotten entered room 268 and Pasas entered room 269, and
the doors to each room were closed. Cotten spoke in a
conversational tone in room 268. Pasas stood in different parts
of room 269 but could not hear him. The two then switched
rooms and repeated the experiment with the same result. Pasas
then put her ear to the vent in room 268, which was not
physically possible for her to do in room 269, and heard muffled
voices and a woman yelling. Except for the woman who was
yelling, Pasas could not distinguish any voice or understand
their conversation. Pasas heard no sound through the call box.
The call box in room 269 was located higher on the wall than the
call box in room 268. Pasas and Allan did not bring a tape
recorder.
Theresa Carbaugh, who had suffered a prior felony
conviction for drug possession for sale, testified that in the fall
of 1994 she had been incarcerated in the B−1 housing area at
Las Colinas and shared a room with Dalton. Dalton was
religiously devout, sensitive, caring, and thoughtful to others.
The two studied scripture together, and Dalton encouraged
Carbaugh to attend church and not to judge others.
Dalton never discussed her case with Carbaugh and, in
particular, did not describe cutting up or mutilating a woman,
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Opinion of the Court by Liu, J.
refer to anyone in her case as a “bitch,” tell her that the victim
was tied up and injected with acid, say that hearing someone
scream was the greatest high she had ever experienced, mention
an Indian reservation, or say that John-Boy should keep quiet.
On the wall of the room Carbaugh and Dalton shared,
there was a small box through which inmates could contact
deputies and deputies could at all times listen to inmates. The
box was not used to listen to other inmates’ conversations, and
it was not possible to understand a conversation in the next
room.
Dawn Crawford was incarcerated in the room next to
Carbaugh and Dalton. In Carbaugh’s opinion, Crawford was “a
liar” and had a reputation for being a dishonest person.
Robin Wilson testified she was incarcerated in housing
area B−2 at Las Colinas. She had suffered prior felony
convictions for attempted robbery and grand theft, and had used
various aliases, birth dates, and social security numbers. She
testified that persons who spoke into the intercom speakers on
the walls of the rooms in housing area B−2 could be heard by
deputies in the coffee shop if the deputies’ switch was on. The
intercom did not need to be activated to be used, but a button
could be pushed by an inmate to alert deputies that the inmate
wanted to speak with them. Wilson also said that if she was in
her room with the door locked, she could not hear normal
conversation in a room next door through the intercom.
Gwyndolyn Coleman testified she had been incarcerated
at Las Colinas since July 1994 and had suffered felony
convictions for assault on a cohabitant, assault with a deadly
weapon, robbery, and forgery. Coleman was the lead trustee for
the B−1 housing area and also had access to the B−2 housing
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Opinion of the Court by Liu, J.
area. Coleman believed Dalton to be compassionate because she
regularly gave food items from the jail store to needy inmates,
and she described Dalton as one who “mostly reads her Bible”
and “minds her own business.” Dalton had never spoken with
Coleman about her case. Crawford had been housed in both the
B−1 and B−2 housing areas, and had a reputation for being
“deceitful, evil and a liar.”
Judith Reeves testified that in 1994 she had managed an
apartment building in which Crawford was a tenant for about
three and a half months. At no time was Crawford honest with
Reeves — “everything was upside down, wrong, a lie.” Crawford
also had a reputation for dishonesty in the community.
Jeannie Shim lived at the same apartment complex as
Reeves and had met Dawn Crawford about one and a half years
before her testimony. “[J]ust about everything [Crawford had]
ever told [Shim] ha[d] turned out to be a lie.” Crawford had also
stabbed Shim and pled guilty to the crime, and had stolen from
her.
Cameo Brooks testified that in September 1993, while
incarcerated at Las Colinas, she was in the jail visiting room
with Pamela Johnson waiting to be taken to court. Dalton
entered the room and conversed with Brooks. While they spoke,
Johnson “got hysterical,” screamed for the deputies, and said,
“I’m not supposed to be in the same room with this lady.”
Deputies removed Dalton. Dalton had neither threatened nor
struck Johnson.
Brooks, Dalton, and Johnson were then taken on the bus
to court. Dalton did not speak of Johnson while they rode and,
in particular, did not threaten her or call her a “rat.” Brooks
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Opinion of the Court by Liu, J.
had previously suffered convictions for possession of a stolen
vehicle and second degree burglary.
Michele Pease testified that she was incarcerated at Las
Colinas. She had previously suffered convictions for grand theft
and possession of a check with intent to defraud. Pease had
lived in the same housing area as Dalton from October 1994 to
February 1995, and the two had studied the Bible together
nearly every day. When Pease spoke with Dalton in Dalton’s
room, the two did not discuss their cases but rather their
children and the difficulties of being incarcerated. Although it
was possible to hear voices in the room next door, it was not
possible to discern what was being said.
The parties stipulated that Dalton had appeared in court
43 times between October 26, 1992, and February 6, 1995, when
evidence was first introduced at trial.
3. Rebuttal
San Diego County Probation Officer Carol Roberts
testified that in February 1987, she interviewed Dalton while
preparing a probation report for her. Dalton denied having a
substance abuse problem and said she had been attending
Narcotics Anonymous meetings. In Dalton’s written statement
submitted to Roberts, Dalton “talked about making some life
changes,” said she had been “talking with a Christian drug
program leader for Victory Outreach,” a Christian residential
treatment program, and wondered, “If God cannot show me . . .
I wonder if it’s possible for anyone or anything to help[?]” On
March 7, 1987, Dalton was admitted to a substance abuse
program called New Entra Casa.
The parties stipulated that between December 1992 and
January 1995, Dalton had committed 12 rule violations at Las
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Opinion of the Court by Liu, J.
Colinas that had resulted in disciplinary action. No criminal
charges had been filed.
San Diego County District Attorney’s Office Investigator
David Decker testified that on March 2, 1995, he and
Investigator Cooksey visited rooms 268 and 269 in the
B−1 housing area at Las Colinas. One investigator went into
room 268 and the other into room 269, and the doors to each
room were closed. Although not aligned, the speaker boxes in
each room were mounted back to back on the same six-inch thick
cinder block wall. The speaker boxes were also used to monitor
the room electronically. Investigators Decker and Cooksey were
able to communicate through the “air space in the speaker.”
On March 4, 1995, Investigators Decker and Cooksey
returned to the rooms and successfully repeated their
experiment while using a tape recorder. Decker started a foot
from the speaker box, moved away and then back toward the
box. The investigators also removed the speaker grills and
observed a four-inch long hollow electrical conduit that
connected the speaker boxes and conducted the sound. The tape
made during this visit was played for the jury.
Investigator Cooksey also testified regarding the speaker
experiment. On cross-examination, he said he had placed the
tape recorder about one to two inches from the speaker box.
When he interviewed Dawn Crawford on February 3, 1995, she
had “referred to the device that she heard the conversation
through as the vent.”
Athena Shudde testified she was an attorney who had
previously represented Mark Tompkins. On October 1, 1993, at
a pretrial hearing attended by Tompkins and Dalton, Dalton
spat in the direction of Tompkins.
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Opinion of the Court by Liu, J.
II. DISCUSSION
A. Guilt Phase Issues
1. Jailhouse informant
Dalton contends the trial court erred in admitting the
hearsay statements of Mark Tompkins through the testimony of
jailhouse informant Donald McNeely and in limiting her cross-
examination of McNeely. We reject the claim.
Before trial Dalton filed a motion to preclude admission of
Tompkins’s statements to McNeely on the grounds that they
were inadmissible under Evidence Code section 1230 and
violated her right to confrontation. Dalton also asserted that
because Baker would be testifying, the prosecution no longer
needed “codefendants’ hearsay statements in order to establish
corpus.” The trial court admitted the statements under
Evidence Code section 1230 (as statements against interest),
redacted the statements, including changing all plural personal
pronouns to singular personal pronouns, and allowed the
statements to be used to “establish that events occurred in the
trailer,” or “corpus,” such as the use of electric shock, the “hot
shot,” and a knife, but not to implicate Dalton.
Before McNeely testified, Dalton again unsuccessfully
objected, as relevant here, on the grounds raised before trial.
McNeely, who had suffered 12 California burglary
convictions and four Missouri felony convictions, testified that
for three months, from June to August of 1992, he had shared a
cell at the San Diego County jail with Tompkins. As noted,
McNeely testified that during their time as cellmates, Tompkins
told McNeely he was “in on a murder charge” and called it a
“torture slaying.” (See ante, p. 11.) Tompkins said the victim
was “Melanie May,” and the murder occurred in June of 1988 in
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Opinion of the Court by Liu, J.
a “house trailer” in the “Live Oak Springs, Boulevard area.”
Tompkins said that he was “really into violence,” that he
“tortured the hell out of her,” and that “pain was the name of
the game.” In McNeely’s view, Tompkins “seemed to enjoy it.”
Tompkins said the “original plan was to give Miss May a
hotshot” and that Tompkins did so. Tompkins also said he had
given May a “shock treatment,” and McNeely believed he
mentioned an electrical cord. Tompkins also mentioned a
screwdriver, knife, and a heavy kitchen skillet, saying “they
work wonders on the knees.” Tompkins “got tired of it” and “just
wanted it to end,” so he stabbed May with a knife. Tompkins
told McNeely he put May’s body into a vehicle and took it to a
nearby Indian reservation. He then dismembered the body so it
would be more difficult to locate.
After cross-examining McNeely, Dalton unsuccessfully
moved for a mistrial based on his testimony.
Investigator Cooksey testified that McNeely did not
request, and he was not promised and did not receive, any
benefit for testifying. On cross-examination, Investigator
Cooksey agreed with defense counsel that Investigator Cooksey
told McNeely that in exchange for his cooperation, a letter might
be written by the district attorney’s office to the sentencing
judge advising the judge of McNeely’s cooperation.
The trial court instructed the jury that McNeely was an
“in-custody informant” and that his testimony “should be viewed
with caution and close scrutiny.”
a. Statement against interest
Dalton asserts that “[i]ntroduction of Tompkins’
unreliable hearsay statements . . . violated the state hearsay
rule.” We reject the contention.
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Evidence Code section 1230 provides in relevant part:
“Evidence of a statement by a declarant having sufficient
knowledge of the subject is not made inadmissible by the
hearsay rule if the declarant is unavailable as a witness and the
statement, when made, . . . so far subjected him to the risk of . . .
criminal liability . . . that a reasonable man in his position
would not have made the statement unless he believed it to be
true.” “To demonstrate that an out-of-court declaration is
admissible as a declaration against interest, ‘[t]he proponent of
such evidence must show that the declarant is unavailable, that
the declaration was against the declarant’s penal interest when
made and that the declaration was sufficiently reliable to
warrant admission despite its hearsay character.’ [Citation.] ‘In
determining whether a statement is truly against interest
within the meaning of Evidence Code section 1230, and hence is
sufficiently trustworthy to be admissible, the court may take
into account not just the words but the circumstances under
which they were uttered, the possible motivation of the
declarant, and the declarant’s relationship to the defendant.’ ”
(People v. Grimes (2016) 1 Cal.5th 698, 711 (Grimes).) The
determination of whether a statement was against the
declarant’s interest when made is reviewed for abuse of
discretion. (People v. Valdez (2012) 55 Cal.4th 82, 143 (Valdez).)
Here, the trial court could reasonably have concluded that
Tompkins’s statement to his cellmate describing his torture and
murder of May “so far subjected [Tompkins] to the risk of . . .
criminal liability . . . that a reasonable man in [Tompkins’s]
position would not have made the statement unless he believed
it to be true.” (Evid. Code, § 1230.)
Dalton claims that Tompkins’s statements were
unreliable because McNeely and Tompkins both lacked
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credibility. As to McNeely, “[w]e have previously rejected the
argument that ‘in considering the admissibility of evidence
offered under’ Evidence Code section 1230 ‘the trial court could
properly consider the credibility of the in-court witness,’ and
observed that ‘[n]either the hearsay rule nor its exceptions are
concerned with the credibility of witnesses who testify directly
to the jury.’ ” (People v. Rangel (2016) 62 Cal.4th 1192, 1219
(Rangel).)
As to Tompkins, Dalton asserts that a “statement of one
inmate bragging to another inmate about crimes committed is
not necessarily against penal interest at the time or under the
circumstances it was made.” In her view, “[i]t appears that . . . .
Tompkins was not confiding in McNeely so much as bragging or
puffing” and that Tompkins “was in custody and wanted to be
perceived of as tough.” But Dalton’s argument shows “ ‘only that
a court might perhaps have been able to arrive at the conclusion
that [Tompkins’s] statement did not so far subject him to the
risk of criminal liability that a reasonable person in his position
would not have made it unless he believed it to be true. [It]
simply do[es] not show that a court was unable to arrive at the
opposite conclusion. Therefore, [it does] not establish an abuse
of discretion.’ ” (Valdez, supra, 55 Cal.4th at p. 144.)
As to this and other claims, Dalton alleges for the first
time that the error complained of violated her federal
constitutional rights. To the extent that in doing so she has
“raised only a new constitutional ‘gloss’ ” on a claim preserved
below, that new aspect of the claim is not forfeited. (People v.
Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 364 (Bryant,
Smith and Wheeler).) At the same time, “ ‘[n]o separate
constitutional discussion is required, or provided, when
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rejection of a claim on the merits necessarily leads to rejection
of [the] constitutional theory . . . .’ ” (Ibid.)
b. Reliability
Dalton contends that Tompkins’s statements were
unreliable and hence their admission was improper under Ohio
v. Roberts (1980) 448 U.S. 56 (Roberts) and violated her right to
due process. In Crawford v. Washington (2004) 541 U.S. 36(Crawford), the United States Supreme Court overruled
Roberts, “which had held that the confrontation right does not
bar admission of the out-of-court statements of an unavailable
witness if the statements ‘bear[] adequate “indicia of
reliability.” ’ Rejecting this approach, Crawford held that, in
general, admission of ‘testimonial’ statements of a witness who
was not subject to cross-examination at trial violates a
defendant’s Sixth Amendment right of confrontation, unless the
witness is unavailable and the defendant had a prior
opportunity for cross-examination. (Crawford, at pp. 59−60,
68.)” (Rangel, supra, 62 Cal.4th at p. 1214.)
Contrary to Dalton’s assertion, the high court “ ‘has made
clear that Roberts, supra, 448 U.S. 56, and its progeny are
overruled for all purposes, and retain no relevance to a
determination whether a particular hearsay statement is
admissible under the confrontation clause.’ ” (Rangel, supra,
62 Cal.4th at pp. 1217−1218.) Rather, “a statement cannot fall
within the Confrontation Clause unless its primary purpose was
testimonial.” (Ohio v. Clark (2015) 576 U.S. __, __-__ [135 S.Ct.
2173, 2179-2180]; People v. Cortez (2016) 63 Cal.4th 101, 129
(Cortez).) It “ ‘is the testimonial character of the statement that
separates it from other hearsay that, while subject to traditional
limitations upon hearsay evidence, is not subject to the
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Confrontation Clause.’ ” (Rangel, at p. 1217, italics omitted,
quoting Davis v. Washington (2006) 547 U.S. 813, 821.)
Here, Tompkins’s statements to his cellmate “were not
made to law enforcement officers, nor were they otherwise made
under circumstances suggesting a primary purpose of creating
evidence” for Dalton’s prosecution. (Rangel, supra, 62 Cal.4th
at p. 1217.) The statements therefore were not testimonial.
(Ibid.; cf. Ohio v. Clark, supra, __ U.S. at pp. __−__ [135 S.Ct.
2173, 2181−2183] [three-year-old’s statements to his preschool
teachers not testimonial because they “clearly were not made
with the primary purpose of creating evidence for [the
defendant’s] prosecution”].)
In her reply brief, Dalton appears to acknowledge that
Davis v. Washington, supra, 547 U.S. 813, filed six months
before her opening brief, foreclosed her claim that
nontestimonial statements continue to be subject to the test in
Roberts, supra, 448 U.S. 56. She therefore attempts to recast
her confrontation clause claim as one under the due process
clause, asserting: “While the full scope of Davis is not clear, it
is wholly inconsistent with due process to admit into evidence at
a capital trial the unreliable hearsay statement of a declarant
who lacks credibility and is not available for cross-examination,
through the testimony of a skilled con artist-informant.”
We have rejected above Dalton’s claim that Tompkins’s
statements were so unreliable they failed to satisfy the
requirements of Evidence Code section 1230. (See ante,
pt. II.A.1.a.) Dalton cites no additional compelling basis for
concluding these statements were nonetheless so unreliable
that their admission violated the due process clause.
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Nor does Dalton cite any persuasive basis for concluding
that McNeely’s testimony recounting Tompkins’s statements
was so unreliable as to violate the due process clause. We
conclude below that the challenged limitations on McNeely’s
cross-examination were either not erroneous or not prejudicial.
(See post, pt. II.A.1.c.) Moreover, “ ‘ “[a]lthough an appellate
court will not uphold a judgment or verdict based upon evidence
inherently improbable, testimony which merely discloses
unusual circumstances does not come within that category.
[Citation.] To warrant the rejection of the statements given by
a witness who has been believed by a trial court, there must
exist either a physical impossibility that they are true, or their
falsity must be apparent without resorting to inferences or
deductions. [Citations.] Conflicts and even testimony which is
subject to justifiable suspicion do not justify the reversal of a
judgment, for it is the exclusive province of the trial judge or
jury to determine the credibility of a witness and the truth or
falsity of the facts upon which a determination depends.” ’ ”
(People v. Maciel (2013) 57 Cal.4th 482, 519 (Maciel).) Here,
nothing about McNeely’s testimony was inherently unbelievable
or implausible.
c. Restricted impeachment
Dalton asserts that the trial court prejudicially precluded
impeachment of McNeely with the prosecutor’s characterization
of him in a different case as a “manipulator” and with the
circumstances underlying his prior felony and misdemeanor
convictions. We reject the claim.
1) Factual background
Before McNeely’s testimony in Dalton’s case, he had
previously been prosecuted for 12 counts of burglary by Deputy
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District Attorney Jeff Dusek, the prosecutor in Dalton’s case,
and Deputy District Attorney Robert Phillips. In the
prosecution’s 1989 statement in aggravation in eight of
McNeely’s burglary cases, Deputy District Attorney Dusek
described how McNeely dressed as an exterminator to gain
entry to one of his wealthy victims’ homes, went to the home
when only a housekeeper was present, and stole jewelry worth
$65,000. Deputy District Attorney Dusek stated: “This is
perhaps one of the most sophisticated burglary series [of crimes]
to come through this court,” and although McNeely’s “outward
appearance[] and lifestyle[]” was not that of a “typical burglar,”
examination of his “soul and conscience” reveal a “confirmed
thief and conman.” He continued: “The only difference between
this burglar and the vast majority is that this defendant is not
satisfied with a ‘nickel and dime haul,’ ” and “has the looks,
brains, and wherewithal to make the big score. In fact, he scored
big eight separate times.”
McNeely pled guilty. In January 1990, he moved to
withdraw his plea, attaching a supporting declaration by his
mother. McNeely’s mother stated that at the preliminary
hearing, she had seen Deputy District Attorney Dusek showing
what appeared to be photographs to individuals who appeared
to be witnesses entering the courtroom, heard the witnesses say,
“That is him,” and therefore believed the prosecutor was
showing the witnesses photographs of McNeely and “verifying
that . . . this was the person who they were going to see in
Court.” In the prosecution’s opposition to McNeely’s motion to
withdraw his plea, Deputy District Attorney Dusek described
McNeely as a “manipulator” and a “desperate man” whose “day
of judgment is near and [who] will resort to any tactic to
postpone a lengthy prison sentence.”
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Before trial in this case, Dalton subpoenaed Deputy
District Attorneys Dusek and Phillips as defense witnesses. The
San Diego County District Attorney’s Office moved to quash the
subpoenas, and the trial court granted the motion. As to Deputy
District Attorney Dusek, the court stated that no attorney
involved in a case should be called as a witness without an
“absolute compelling need,” and no such need was demonstrated
here because McNeely could be impeached with his prior
convictions. Dusek’s testimony would therefore be cumulative.
The court also found Dusek had not stated an opinion as to
McNeely’s veracity in the statement in aggravation and that the
statement in aggravation was inadmissible hearsay.
At trial, during his testimony on direct, McNeely testified
he had previously suffered 12 California burglary convictions
and four Missouri felony convictions for burglary and firearm
theft. He also said he had come forward about Tompkins’s
statements because “I’m not a violent person myself, and . . .
after hearing it over the course of days and weeks . . . it really
got to me after awhile; and . . . you start the [sic] feel for
this — .” Dalton’s objection was sustained, but the court
declined her request to strike the answer, stating, “The answer
will stand.”
On cross-examination, defense counsel asked, “[D]o you
consider yourself to be a confirmed thief and con man?”
McNeely replied, “I would say at one time, yeah, that[] . . . would
have been appropriate. Prison has changed me somewhat.”
Counsel asked, “Would you agree with this statement about you,
that you’re a manipulator?” The trial court sustained the
prosecutor’s relevance objection. Counsel asked, “Mr. McNeely,
are you a manipulator?” McNeely said, “I don’t know. Some
people may say that. . . . I wouldn’t say it.” Counsel
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subsequently asked if during the felonies McNeely “posed as an
exterminator.” The trial court sustained the prosecutor’s
relevance objection. At sidebar, defense counsel explained that
in their view McNeely was manipulating the court and had read
Tompkins’s documents and was simply testifying to what he
read. They sought to ask McNeely about his method of operation
in posing as an exterminator in eight of the burglaries and a
drapery cleaner in the four other burglaries to obtain trust and
access to money and jewelry, and to demonstrate “he is a
manipulator” and “an imposter.” The trial court denied the
request on the ground that “the law of impeachment of prior
felonies is you get to ask the nature of the felony and when it
occurred; and I’ve allowed you to do that.”
Dalton also sought to impeach McNeely with the
circumstances surrounding his misdemeanor convictions. The
trial court excluded the evidence, finding the convictions were
remote in time, and would involve undue consumption of time
given that McNeely could be impeached with at least 10 prior
felony convictions. (Evid. Code, § 352.)
2) Analysis
(a) Subpoena
Dalton asserts the trial court erred in quashing her
subpoena of Deputy District Attorney Dusek because his
statements in the statement in aggravation and opposition to
McNeely’s motion to withdraw his plea were admissible as
statements of a party-opponent under Evidence Code
section 1220. Evidence Code section 1220 provides: “Evidence
of a statement is not made inadmissible by the hearsay rule
when offered against the declarant in an action to which he is a
party in either his individual or representative capacity,
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Opinion of the Court by Liu, J.
regardless of whether the statement was made in his individual
or representative capacity.” Dalton did not raise this ground of
admissibility below, and it is therefore forfeited. (Evid. Code,
§ 354; People v. Ervine (2009) 47 Cal.4th 745, 779.)
Even if the issue was preserved, and assuming the
statements were admissible under Evidence Code section 1220,
Dalton fails to demonstrate that Deputy District Attorney
Dusek should have been called as a witness. “ ‘Only in
extraordinary circumstances should an attorney in an action be
called as a witness, and before the attorney is called, defendant
has an obligation to demonstrate that there is no other source
for the evidence he seeks.’ ” (People v. Linton (2013) 56 Cal.4th
1146, 1186 (Linton).) In this case there was another source for
the evidence Dalton sought, i.e., McNeely. That is, Dalton could
have simply asked McNeely who had been the prosecutor in his
burglary cases and what were the circumstances underlying
those convictions. We therefore turn to Dalton’s claim that her
cross-examination of McNeely was improperly limited because
she was precluded from eliciting the circumstances underlying
his burglary convictions.
(b) Imposter evidence
As noted, on cross-examination Dalton unsuccessfully
sought to impeach McNeely with the circumstances underlying
his 12 California burglary convictions. In particular, Dalton
sought to demonstrate McNeely’s insidious nature by eliciting
testimony that he had successfully posed as an exterminator or
drapery cleaner in order to gain entry to numerous homes of
wealthy persons and steal their money and property. The trial
court sustained objections to this line of questioning on the
ground that a party could only impeach a witness with the
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“nature of the felony and when it occurred,” presumably relying
on Evidence Code sections 787 and 788. Dalton contends this
was error that violated her rights to confrontation and cross-
examination, presentation of a defense, a fair trial, due process,
and a reliable determination of guilt and penalty. We conclude
any error in limiting the cross-examination was harmless.
(People v. Watson (1956) 46 Cal.2d 818, 837 (Watson).)
Contrary to the trial court’s ruling and to the Attorney
General’s position in this court, admission of relevant evidence
of the circumstances underlying a felony conviction is no longer
generally barred in criminal cases. It is true that Evidence Code
section 787 provides: “Subject to Section 788, evidence of
specific instances of his conduct relevant only as tending to
prove a trait of his character is inadmissible to attack or support
the credibility of a witness.” And section 788 generally provides:
“For the purpose of attacking the credibility of a witness, it may
be shown by the examination of the witness or by the record of
the judgment that he has been convicted of a felony.” Before
June 1982, these sections as well as former Code of Civil
Procedure section 2051, the predecessor of section 788, had been
interpreted to generally provide that although “the testimony of
a witness may be impeached by proof that he has suffered the
prior conviction of a felony,” the “details and circumstances
comprising the prior offenses are not admissible.” (People v.
David (1939) 12 Cal.2d 639, 646; see People v. Wagner (1975)
13 Cal.3d 612, 618; People v. Smith (1966) 63 Cal.2d 779, 790.)
In June 1982, the voters adopted Proposition 8, an
initiative that amended the California Constitution to effect
(among other things) criminal procedure reforms. (Ballot
Pamp., Primary Elec. (June 8, 1982) text of Prop. 8, p. 33.)
Proposition 8 added article I, former section 28, subdivision (d)
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(now § 28, subd. (f)(2) (§ 28(f)(2))), the “Truth-in-Evidence”
amendment, which provides in relevant part: “Except as
provided by statute hereafter enacted by a two-thirds vote of the
membership in each house of the Legislature, relevant evidence
shall not be excluded in any criminal proceeding, including
pretrial and post conviction motions and hearings, or in any trial
or hearing of a juvenile for a criminal offense, whether heard in
juvenile or adult court. Nothing in this section shall affect any
existing statutory rule of evidence relating to privilege or
hearsay, or Evidence Code Sections 352, 782 or 1103.”
“Proposition 8 applies only to prosecutions for crimes committed
on or after its effective date.” (People v. Smith (1983) 34 Cal.3d
251, 258.)
“By its plain terms, section 28[(f)(2)] requires the
admission in criminal cases of all ‘relevant’ proffered evidence
unless exclusion is allowed or required by an ‘existing statutory
rule of evidence relating to privilege or hearsay or Evidence
Code, [s]ections 352, 782 or 1103,’ or by new laws passed by two-
thirds of each house of the Legislature.” (People v.
Wheeler (1992) 4 Cal.4th 284, 292 (Wheeler), italics omitted.) We
have said it is “manifest” that the electorate intended to repeal
“both judicially created and statutory rules restricting
admission of relevant evidence in criminal cases . . . except
insofar as section 28[(f)(2)] expressly preserves them.” (People
v. Harris (1989) 47 Cal.3d 1047, 1081−1082; accord, In re
Freeman (2006) 38 Cal.4th 630, 640, fn. 5 [section 28(f)(2)
“ ‘supersedes all California restrictions on the admission of
relevant evidence except those preserved or permitted by the
express words of section 28[(f)(2)] itself’ ”].) We have also
observed that “section 28[(f)(2)] contains no . . . exception that
would preserve the exclusionary rule of Evidence Code
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PEOPLE v. DALTON
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sections 786−790, when the evidence relates to a witness’s
conduct, but is offered to attack or support the credibility of the
witness.” (Harris, at p. 1081.)
Thus, section 28(f)(2) abrogates Evidence Code
section 787’s prohibition on admission of specific instances of
misconduct that are “relevant only as tending to prove a trait of
[a witness’s] character.” (Evid. Code, § 787.) Evidence of
circumstances underlying a conviction is admissible to impeach
credibility if the proponent demonstrates that the evidence has
“any tendency in reason” to disprove credibility. (Evid. Code,
§ 210; see ibid. [defining relevant evidence as “having any
tendency in reason to prove or disprove any disputed fact that is
of consequence to the determination of the action” including
“evidence relevant to the credibility of a witness”]; Evid. Code,
§ 780 [“the court or jury may consider in determining the
credibility of a witness any matter that has any tendency in
reason to prove or disprove the truthfulness of his [or her]
testimony at the hearing . . .”].) Trial courts retain discretion to
exclude such evidence under Evidence Code section 352 “if its
probative value is substantially outweighed by the probability
that its admission will . . . necessitate undue consumption of
time or . . . create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury.” We disapprove
of People v. Casares (2016) 62 Cal.4th 808, 830 (Casares)
[“Under California law, the right to cross-examine or impeach
the credibility of a witness concerning a felony conviction does
not extend to the facts underlying the offense.”]; People v.
Ardoin (2011) 196 Cal.App.4th 102, 120; People v.
Szadziewicz (2008) 161 Cal.App.4th 823, 842; People v.
Shea (1995) 39 Cal.App.4th 1257, 1267; People v. Santos (1994)
30 Cal.App.4th 169, 176−177; People v. Thomas (1988)
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206 Cal.App.3d 689, 700, fn. 6; and People v. Heckathorne (1988)
202 Cal.App.3d 458, 462, to the extent they are inconsistent
with our opinion.
Here, certain statements by the trial court suggest it may
have been unaware that it had discretion to admit the
circumstances underlying McNeely’s felony convictions. But
even assuming such an error, there is no reasonable probability
that a different outcome as to the conspiracy and murder counts
and the torture-murder special-circumstance allegation (the
matters to which McNeely’s testimony was arguably relevant)
would have resulted if the excluded line of questioning had been
presented. (Watson, supra, 46 Cal.2d at p. 837; see People v.
Prince (2007) 40 Cal.4th 1179, 1296−1297 (Prince).)
The defense theory was that McNeely had fabricated the
conversations to which he testified after surreptitiously
examining documents in Tompkins’s case, such as his
statements to others regarding his alleged involvement, copies
of his codefendants’ interviews, and press releases relating to
his case that were available to McNeely in the cell he shared
with Tompkins. According to Dalton, evidence that McNeely on
12 occasions had successfully impersonated an exterminator or
a drapery hanger in order to gain access to wealthy persons’
homes and steal their valuable property “suggest[ed] not only a
proclivity to lie, but also an ability to do so quite well.”
We do not agree that this evidence would have cast
McNeely’s credibility in a significantly different light. The jury
was aware that McNeely had suffered 12 California burglary
convictions and four Missouri felony convictions for burglary
and firearm theft, and McNeely testified he had committed
“probably a few more” burglaries. The specifics of McNeely’s
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burglaries might have illustrated more vividly his intelligence
and skill in deception, but would not have left the jury with a
materially different impression of his credibility. The mere
existence of these 16 felony convictions and additional
unadjudicated crimes cast doubt on McNeely’s veracity because
“ ‘it is undeniable that a witness’ moral depravity of any kind
has “some tendency in reason” [citation] to shake one’s
confidence in his honesty.’ ” (Wheeler, supra, 4 Cal.4th at
p. 295.) We have also recognized that the commission of
numerous crimes involving moral turpitude “may be more
probative of credibility than a single crime.” (People v. Clark
(2011) 52 Cal.4th 856, 932.) Moreover, McNeely agreed with
defense counsel that at one time he had been a “confirmed thief
and con man,” but believed prison had changed him “somewhat.”
He further conceded “[s]ome people” might describe him as a
“manipulator.”
In addition, when McNeely was asked if he had developed
“some sort of friendship or relationship” with Tompkins,
McNeely called him an “acquaintance” and said they shared not
“quite a friendship” but “kind of a bond.” McNeely agreed with
defense counsel that Tompkins “didn’t want to talk about his
case to other people” and apparently warned other inmates not
to discuss their cases. These circumstances tended to
undermine the probative value of McNeely’s testimony that
Tompkins had enthusiastically and repeatedly for three months
divulged to McNeely intimate details of his torture and murder
of May. As noted, the trial court instructed the jury that
McNeely was an “in-custody informant” and that his testimony
“should be viewed with caution and close scrutiny.”
Nor did McNeely’s testimony materially bear on the
charges of conspiracy and murder or on the torture-murder
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special-circumstance allegation. As to the charges of conspiracy
and murder, the comments by Tompkins that McNeely conveyed
did not refer to or implicate Dalton. Moreover, as to conspiracy,
although Tompkins referred to a “plan,” no details as to how or
when that plan was developed were provided by McNeely’s
testimony. As to murder, Dalton was connected to the crime by
evidence that she covered May in a sheet and bound her to a
chair and prepared four or five hypodermic needles of battery
acid for the purpose of killing her, told Laurie Carlyle that she
had been involved in May’s murder and that May had been
killed with battery acid, and told Patricia Collins that she had
killed May because May “was a rat” who “deserved to die” (ante,
pp. 9−10, 23−24).
As to the special circumstance allegation of torture
murder, we have said that torture is the infliction of “ ‘ “pain and
suffering in addition to death.” ’ ” (People v. Edwards (2013)
57 Cal.4th 658, 716 (Edwards).) “The torture-murder special-
circumstance allegation requires an ‘ “intent to cause cruel or
extreme pain and suffering for the purpose of revenge, extortion,
persuasion, or for any sadistic purpose.” ’ [Citation.] Unlike
torture murder, it also requires an intent to kill and, at the time
of [May’s] murder, required ‘proof of the infliction of extreme
physical pain no matter how long its duration’ on a living victim.
(Former § 190.2, subd. (a)(18), as added by Prop. 7, § 6,
approved by voters, Gen. Elec. (Nov. 7, 1978); [citations].) It
does not require a premeditated and deliberate intent to torture
[citation], a causal relationship between the torturous act and
death [citation], or proof the victim subjectively experienced
pain [citation]. ‘Distilled, the statutory language requires intent
to kill, intent to torture, and infliction of an extremely painful
act upon a living victim.’ ” (Edwards, at p. 718).
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The statements by Tompkins that McNeely recounted did
not refer to Dalton, so they were not relevant to her intent to kill
or to her intent to cause cruel or extreme pain and suffering for
a sadistic purpose. Although the statements were relevant to
whether May had suffered the infliction of extreme physical
pain while alive, they were cumulative to other evidence of this
element. Dalton told Carlyle that May had been killed with
battery acid, and the prosecution expert testified that if battery
acid were injected into a person’s vein, it would be “much more
painful” than a Charley-horse. Baker testified that after Dalton
injected a syringe of battery acid into May’s leg, Dalton told
Baker that May was suffering. Baker further testified that she
(Baker) hit May on the head with a cast iron frying pan with
such force she broke the bottom of the pan. Tompkins stabbed
May twice to kill her and may have also hit her with a breaker
bar.
In addition, Fedor testified that the cord to her bedroom
chandelier had been cut and that part of the plastic protective
covering was melted, exposing the electrical wire, while the
other end was apparently still plugged into an outlet and several
extension cords had been either tied into shapes or together.
She also found a screwdriver with blood, hair, and scalp
material on it. The jury could reasonably infer based on Fedor’s
testimony that these objects were used in the attack on May.
Further, Baker testified that she saw a screwdriver but could
not recall what it was used for, and that she did not see an
extension cord with “bare” ends or see an extension cord used
against the person in the chair. From this testimony, the jury
could reasonably infer that the injuries from the cords and the
screwdriver were inflicted on May before Baker and Tompkins
returned home or at a time when May was alive. Finally, May
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was bound; although restraint of a victim is not dispositive, it is
one circumstance for the jury to consider in determining
whether a victim was tortured. (See People v. Elliot (2005)
37 Cal.4th 453, 468, fn. 4.) Thus, the statements by Tompkins
that McNeely recounted were cumulative to other evidence on
the issue of whether extreme physical pain was inflicted on May
while she was alive.
In sum, we conclude that any error in limiting McNeely’s
cross-examination was harmless as to the conspiracy and
murder charges and as to the torture-murder special-
circumstance allegation. (Watson, supra, 46 Cal.2d at p. 837.)
For the same reasons, we reject Dalton’s further claim that the
trial court’s limitation of McNeely’s cross-examination violated
her constitutional right to confrontation. “ ‘ “[A] criminal
defendant states a violation of the Confrontation Clause by
showing that he was prohibited from engaging in otherwise
appropriate cross-examination designed to show a prototypical
form of bias on the part of the witness, and thereby, ‘to expose
to the jury the facts from which jurors . . . could appropriately
draw inferences relating to the reliability of the witness.’ ”
[Citation.] However, not every restriction on a defendant’s
desired method of cross-examination is a constitutional
violation. Within the confines of the confrontation clause, the
trial court retains wide latitude in restricting cross-examination
that is repetitive, prejudicial, confusing of the issues, or of
marginal relevance. . . . Thus, unless the defendant can show
that the prohibited cross-examination would have produced ‘a
significantly different impression of [the witnesses’] credibility’
[citation], the trial court’s exercise of its discretion in this regard
does not violate the Sixth Amendment. [Citation.]’ ” (Linton,
supra, 56 Cal.4th at p. 1188.) Even assuming the trial court had
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exercised its discretion to allow impeachment of McNeely with
the circumstances underlying his 12 California burglary
convictions, no significantly different impression of his
credibility would have resulted here.
(c). Misdemeanor convictions
Dalton further contends the trial court abused its
discretion in precluding cross-examination as to evidence of the
circumstances surrounding McNeely’s misdemeanor
convictions. She does not delineate what those underlying
circumstances were or why they were important. Thus, even
assuming that the trial court erred in precluding cross-
examination as to these circumstances, Dalton fails to
demonstrate that such cross-examination “ ‘would have
produced “a significantly different impression of [the witness’s]
credibility.” ’ ” (People v. Dement (2011) 53 Cal.4th 1, 52
(Dement).)
d. Corpus delicti
Dalton asserts the prosecutor improperly relied on
Tompkins’s out-of-court statements to prove the corpus delicti of
the charged crimes because hearsay statements of an accomplice
cannot be used to prove corpus. We conclude that the corpus
delicti of murder and torture was established by Fedor’s
testimony.
In the memorandum in support of Dalton’s motion to
exclude “confessions prior to proof of the corpus delicti,” she
asserted that “the corpus must be proven independently and
without consideration to defendant’s or codefendant’s
extrajudicial statements.” She also asserted that “[p]roof of the
corpus delicti includes both proof of the alleged homicide, . . .
[and] also proof of the special circumstances.” The trial court
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instructed the jury: “No person may be convicted of a criminal
offense unless there is some proof of each element of the crime
independent of any admission made by her outside of this trial.”
“To convict an accused of a criminal offense, the
prosecution must prove that . . . a crime actually occurred.”
(People v. Alvarez (2002) 27 Cal.4th 1161, 1164.) “[T]he corpus
delicti or body of the crime . . . cannot be proved by exclusive
reliance on the defendant’s extrajudicial statements.” (Id.,
p. 1165.) “The independent proof may be circumstantial and
need not be beyond a reasonable doubt, but is sufficient if it
permits an inference of criminal conduct, even if a noncriminal
explanation is also plausible. [Citations.] There is no
requirement of independent evidence ‘of every physical act
constituting an element of an offense,’ so long as there is some
slight or prima facie showing of injury, loss, or harm by a
criminal agency. [Citation.] In every case, once the necessary
quantum of independent evidence is present, the defendant’s
extrajudicial statements may then be considered for their full
value to strengthen the case on all issues.” (Id., p. 1171.)
Tompkins’s out-of-court statements, which referenced no
other perpetrator, were relevant to the charge of murder and to
the torture-murder special-circumstance allegation, but not to
the charge of conspiracy to commit murder. The Attorney
General contends that the “corpus delicti rule does not apply to
special circumstances” because in 1990, two years after May was
murdered, the voters passed Proposition 115, which provided in
part that the “corpus delicti of a felony-based special
circumstance enumerated in paragraph (17) of subdivision (a) of
Section 190.2 need not be proved independently of a defendant’s
extrajudicial statement.” (§ 190.41, added by Prop. 115, as
approved by voters, Primary Elec. (June 5, 1990) § 11.) Dalton
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was charged with torture-murder under section 190.2,
subdivision (a)(18), not a special circumstance under
subdivision (a)(17), and we have in any event held that
section 190.41 cannot constitutionally be applied to crimes
“committed before the measure’s effective date.” (Tapia v.
Superior Court (1991) 53 Cal.3d 282, 297–298.)
We have also held that the corpus delicti requirement
applies to special circumstance findings that “require proof of
some crime other than the murder in question.” (People v.
Hamilton (1989) 48 Cal.3d 1142, 1175.) Here that crime —
torture under section 206 — was also enacted by Proposition 115
in 1990, and so was not a separate crime when May was
murdered, although the torture-murder special-circumstance
allegation required proof of similar elements. (§ 206, added by
Prop. 115, as approved by voters, Primary Elec. (June 5, 1990)
§ 13; see Edwards, supra, 57 Cal.4th at p. 718 [delineating the
elements of torture-murder at the time of May’s murder].)
Even assuming the prosecutor was required to satisfy the
corpus delicti requirement for both murder and the torture-
murder special-circumstance allegation, the Attorney General
correctly asserts that Fedor’s testimony did so. Fedor testified
that when she returned to the trailer on the afternoon of
June 26, 1988, Dalton and Baker were present, but May was
not. The trailer was in disarray, Baker was washing the kitchen
floor with shampoo, and clothes, sheets, towels, and blankets
Fedor had thrown on her bed were missing. When Fedor asked
Dalton where these items were, Dalton explained she had
accidentally cut herself, “got blood all over,” and the items were
taken to be washed. Fedor found a “dripping wet” bloody pillow
in the trash can outside of the trailer, and after Dalton
showered, Fedor noticed the soap bar was bloody. Fedor
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subsequently found a screwdriver with what appeared to be
blood, hair, and scalp material on it. She also discovered that
the cord to her bedroom chandelier had been cut and that part
of the plastic protective covering was melted, exposing the
electrical wire, and the other end was apparently still plugged
into an outlet. In addition, several extension cords had been
either tied into shapes or together. (See ante, pp. 14–16.)
Thus, unlike Jones v. Superior Court (1979) 96 Cal.App.3d
390, 397, on which Dalton relies (and without addressing the
validity of that case), the corpus delicti of the crimes charged
here was not established solely by Tompkins’s out-of-court
statements. Fedor’s testimony was prima facie evidence that
May had been killed that was independent of Tompkins’s and
Dalton’s statements. Fedor’s testimony also permitted an
inference — independent of these statements — that May had
been tortured.
Dalton further claims the trial court erred in failing to
instruct the jury that Tompkins’s statements were admissible
only to establish the corpus or that the crime occurred, and that
its failure to do so allowed the prosecutor to rely on Tompkins’s
statements “to establish Dalton’s guilt.” We reject the claim.
Dalton did not request such an instruction, and the trial court
had no duty to so instruct on its own motion. (Valdez, supra,
55 Cal.4th at p. 139.) To the extent Dalton asserts admission of
Tompkins’s statements violated her Sixth Amendment right to
confront the witnesses against her, we have concluded above
that Tompkins’s statements were not testimonial. (See ante,
pt. II.A.1.b.)
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e. Undue prejudice
Dalton contends McNeely’s testimony was unduly
prejudicial under Evidence Code section 352. Assuming the
claim is preserved, we reject it.
Although Dalton asserts the probative value of McNeely’s
testimony was “slight,” she also asserts that Tompkins’s
statements “should have been excluded because they were ‘so
[rife] with condemning facts against [her] that they [were]
devastating or crucial to [her] case.’ ” We rejected a
substantially similar argument in Valdez: “[T]he test for
prejudice under Evidence Code section 352 is not whether the
evidence in question undermines the defense or helps
demonstrate guilt, but is whether the evidence inflames the
jurors’ emotions, motivating them to use the information, not to
evaluate logically the point upon which it is relevant, but to
reward or punish the defense because of the jurors’ emotional
reaction.” (Valdez, supra, 55 Cal.4th at p. 145.) Here, Dalton
does not suggest how Tompkins’s statements, which did not
mention Dalton, prejudiced her in this manner.
2. Further cross-examination issues
Dalton contends that the trial court improperly limited
her cross-examination of prosecution witnesses Joanne Fedor,
Sheryl Baker, Kandy Koliwer, Fred Eckstein, Jeanette Bench,
Judy Brakewood, Patricia Collins, Phyllis Cross, Laurie Carlyle,
and Pamela Johnson, in violation of her rights to confrontation,
to present a defense, a fair trial, due process of law, and a
reliable determination of guilt and penalty. We conclude there
was no prejudicial error.
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Opinion of the Court by Liu, J.
a. Joanne Fedor
Dalton asserts the trial court erroneously precluded
Dalton from cross-examining Fedor regarding her pending
charges of grand theft and forgery, and from impeaching Fedor
with the conduct underlying her four misdemeanor convictions.
Before Fedor’s testimony, the trial court ruled that Dalton
could not impeach Fedor with the conduct underlying her
1982 misdemeanor convictions for forgery, petty theft, and
possession of a hypodermic needle because they were too remote
and would require an undue consumption of time, or with the
conduct underlying her 1983 misdemeanor battery conviction
because the crime did not involve moral turpitude. The court
subsequently ruled that defense counsel could not impeach
Fedor with her pending charges of grand theft and forgery,
stating, “[I]t’s obviously not usable for impeachment, since it’s
pending and she may be found not guilty.” The charges had been
filed in August 1994, and the preliminary hearing was
scheduled to be held 10 days after Fedor’s February 1995
testimony in Dalton’s case. The prosecutor said he had not
“interceded on her behalf in any way . . . to affect the charges,
her custody status, any disposition, anything whatsoever.”
Dalton contends that cross-examination on the pending
charges would have demonstrated Fedor had a motivation to lie
in her testimony. The Attorney General agrees that a witness
may be impeached with pending charges but appears to contend
that the trial court exercised its discretion in limiting the cross-
examination as to the pending charges. The record appears
otherwise.
Even assuming that the trial court erred in summarily
precluding cross-examination on the pending charges, however,
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Dalton fails to demonstrate that cross-examination as to these
charges “ ‘would have produced “a significantly different
impression of [the witness’s] credibility.” ’ ” (Dement, supra,53 Cal.4th at p. 52.) Fedor was impeached by the circumstance
that Deputy Wilson examined her trailer immediately after
Dalton and the others left, yet he saw no blood or cut electrical
cords and was not shown items she testified were in or near the
trailer, such as the bloody bar of soap. Two subsequent forensic
searches that same year revealed no evidence of blood in the
trailer, and the heater and knife Fedor deemed suspicious tested
negative for the presence of blood. Fedor was further impeached
by her methamphetamine use generally and on the day of May’s
murder, by evidence she regularly supplied her 14-year-old
babysitter with methamphetamine, and by Deputy Wilson’s
description of her on the night of the murder as akin to
“somebody who was mentally ill.” Although Fedor testified that
Dalton had spent the night a “couple weeks” before June 26,
1988, she acknowledged she had previously told law
enforcement that on June 26, 1988, she had not seen Dalton
since 1981. Indeed, Fedor was deemed so lacking in credibility
by the prosecutor that he called numerous witnesses to, in his
words, “corroborate[]” her testimony. For these same reasons,
Dalton fails to demonstrate the trial court abused its discretion
in denying impeachment of Fedor concerning the circumstances
underlying her misdemeanor convictions.
b. Sheryl Baker
Dalton asserts the trial court erroneously precluded
Dalton from cross-examining Baker regarding a prior juvenile
adjudication and certain prior convictions. We reject the claim.
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The trial court precluded cross-examination of Baker with
(1) the true finding in her 1980 juvenile adjudication for forgery
because it was not a serious or violent offense, (2) the conduct
underlying her 1983 misdemeanor conviction of receipt of stolen
property, 1984 misdemeanor conviction for weapon possession,
and 1986 or 1988 misdemeanor theft conviction because they
were too remote and their probative weight was outweighed by
the consumption of time, (3) her 1990 misdemeanor conviction
for possession of a controlled substance because it was not a
crime of moral turpitude, (4) her 1986, 1988, and 1989
misdemeanor convictions respectively for loitering, false
representation to a police officer, and possession of hypodermic
needles because they were not crimes of moral turpitude and
because their probative weight was outweighed by the
consumption of time, and (5) her 1989 misdemeanor conviction
for receipt of stolen property because the court had admitted her
1987 felony conviction for receipt of stolen property and hence
the misdemeanor conviction had little probative value and
would consume undue time.
At trial, Baker testified she had suffered a 1987 felony
conviction for grand theft auto. Moreover, Baker was impeached
by her admitted role in May’s murder and the favorable terms
of her second-degree murder guilty plea. She was further
impeached by the fact that she would not be sentenced until
after her testimony in Dalton’s case, by her failure to inform law
enforcement about the murder for nearly four years and then
only after she learned she had been apparently caught on tape
describing the murder to a friend, and by her testimony that she
used a significant amount of methamphetamine during the time
she observed the events to which she testified. Her cross-
examination consumes more than 40 pages of the reporter’s
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transcript. Dalton fails to demonstrate that cross-examination
as to the prior convictions and juvenile adjudication “ ‘would
have produced “a significantly different impression of [the
witness’s] credibility.” ’ ” (Dement, supra, 53 Cal.4th at p. 52.)
“Moreover, ‘[a]s a general matter, the ordinary rules of
evidence do not impermissibly infringe on the accused’s right to
present a defense.’ ” (Dement, supra, 53 Cal.4th at p. 52.)
Dalton was “given considerable leeway to challenge [Baker’s]
veracity and suggest [her] motivation to lie. [Dalton] was not
precluded from attempting to demonstrate that [Baker] was not
worthy of belief; [s]he was merely precluded from proving it with
time-consuming and remote evidence that was not obviously
probative on the question.” (Ibid.)
c. Patricia Collins
Dalton contends the trial court erred by precluding Dalton
from cross-examining Patricia Collins regarding her prior
convictions and limiting cross-examination regarding her role as
an informant. We reject the claim.
The trial court precluded cross-examination regarding
Collins’s 1987 and 1988 convictions for possession of a controlled
substance because they were not crimes of moral turpitude and
the 1987 offense was too remote. It also excluded her
1990 conviction for firearm possession because it was not an
offense involving moral turpitude. The trial court instructed the
jury that Collins was an “in-custody informant” and that her
testimony “should be viewed with caution and close scrutiny.”
At trial, Collins was impeached by her 1986 felony
conviction for conspiracy to manufacture methamphetamine.
She was also impeached by the fact that, in part to avoid being
blamed for May’s murder, she had agreed to cooperate with law
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enforcement. In November 1988, Collins engaged in secretly
taped telephone conversations with Baker, and Collins was
released from jail 15 days early as a benefit for this cooperation.
Collins was further impeached by her methamphetamine use
from 1988 to 1991 and her use of numerous aliases. Dalton fails
to demonstrate that cross-examination as to the circumstances
underlying her convictions “ ‘would have produced “a
significantly different impression of [the witness’s]
credibility.” ’ ” (Dement, supra, 53 Cal.4th at p. 52.)
Dalton further contends the trial court “improperly
restricted cross-examination of Collins regarding her possible
prior work as an informant in other cases, including work
with . . . [Police Officer] Lusardi, with whom she worked in this
case and for whom she tape-recorded telephone conversations
with Sheryl Baker.” The claim is not further elaborated, and to
support this assertion, Dalton simply cites to two pages of the
record. On the first page, defense counsel asked Collins on
cross-examination, “Miss Collins, before this date when you
made a phone call for Mr. Lusardi, you had a prior relationship
with him, is that correct?” The prosecutor’s objection on the
grounds of relevance, beyond the scope, and Evidence Code
section 352, was sustained. Defense counsel then asked, “Well,
you had worked with Mr. Lusardi before on cases; is that
correct?” Collins replied, “No.” Dalton does not explain in what
way she believes the cross-examination was curtailed.
On the second cited page, defense counsel asked,
“Miss Collins, you had an interview[] with a Detective
Wisniewski, Mr. Lusardi, and Mr. Samms; isn’t that correct?”
Collins replied, “I don’t recognize the names.” Counsel asked,
“[O]n March 15, 1989; isn’t that correct? Three law enforcement
officers up there?” Collins again replied, “I don’t recognize the
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names.” Counsel asked, “And if Detective Wisniewski indicated
that you were an informant for the Metropolitan Homicide Task
Force, would that be a truth or lie?” The prosecutor successfully
objected that the question misstated the evidence and that it
addressed a time period after Collins “did the phone calls.”
Defense counsel then asked, “Miss Collins, do you consider
yourself an informant?” She replied, “No.” Counsel asked, “You
gave information while you were in jail; is that correct?” Collins
replied, “Yes.” Defense counsel then said, “Nothing further,”
and the witness was excused. Again, it is not clear in what way
Dalton believes the cross-examination was improperly
restricted.
d. Kandy Koliwer
Kandy Koliwer had been appointed to represent May in
June 1987 after May and Bobby’s three children were removed
from the couple’s home. On cross-examination at trial, defense
counsel asked Koliwer, “You were certainly aware that . . . May
did have a methamphetamine drug problem, weren’t you.” The
trial court sustained the prosecutor’s objection on the grounds of
relevance and lack of personal knowledge. Defense counsel then
said, “I have no further questions.”
Dalton contends the trial court erroneously sustained the
prosecutor’s objection because Koliwer had testified about May’s
devotion to her children and, in Dalton’s view, believed that
“regular drug use was not an issue in the case she was handling
for May.” Dalton contends Koliwer’s “knowledge, or lack of
knowledge, regarding May’s drug use would certainly relate to
her credibility and reliability as a witness about May.”
But Koliwer testified on cross-examination that a
condition of May’s getting her children back in 1987 was that
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she remain drug-free. She further testified that according to
allegations in the petition filed in court by the Department of
Social Services, May’s children were again removed in June
1988 — the month May disappeared — from her home in part
because May had been arrested for possession of a controlled
substance and had been away from the home for three days
before the social worker’s visit. Furthermore, Koliwer testified
that May’s children were improperly supervised and that drug-
related activities appeared to be occurring at the home. Dalton
fails to demonstrate that cross-examination as to Koliwer’s
personal knowledge of May’s drug use “ ‘would have produced “a
significantly different impression of [the witness’s]
credibility.” ’ ” (Dement, supra, 53 Cal.4th at p. 52.)
e. Fred Eckstein
On cross-examination of Fred Eckstein, defense counsel
asked, “[W]ere your parents using methamphetamine?” The
trial court sustained the prosecutor’s objection on the grounds of
relevance and speculation. Dalton contends this ruling was
erroneous because Fred’s mother, Kathy Eckstein, had testified
about seeing small spots of dried blood, a soap bar with teeth
marks, and a knotted extension cord in Fedor’s trailer, and
hence Fred’s “observations of his mother’s use of
methamphetamine around the time of her alleged observations
would have been important impeaching evidence of Kathy’s
credibility and powers of observation.” No error appears. Kathy
Eckstein testified that she was using methamphetamine during
this period, but not on a regular basis. Kathy’s reliability as a
witness was further diminished by the circumstance that she
did not call law enforcement to report seeing blood in Fedor’s
trailer. Her reliability was also called into question by her
confusion about some basic facts: she was not sure of the year
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or month these events occurred, believed it started to get dark
in June at about 5:00 p.m., and noted that at the time of her
testimony in February it got dark “later around 6:30” p.m.
Dalton fails to demonstrate that cross-examination as to Fred’s
knowledge of his mother’s drug use “ ‘would have produced “a
significantly different impression of [his mother’s]
credibility.” ’ ” (Dement, supra, 53 Cal.4th at p. 52.)
f. Judy Brakewood
Dalton asserts that the trial court precluded cross-
examination regarding Brakewood’s 1989 concealed weapon
possession conviction because it was not a crime of moral
turpitude. Dalton makes no effort to explain why this was
erroneous. Moreover, Brakewood was impeached by the fact
that at the time of the events to which she testified, she had been
a methamphetamine dealer and was injecting three-quarters of
a gram to one gram of methamphetamine a day. She was
further impeached by her failure to come forward about the 1988
conversation until she read a 1992 newspaper article that
recounted Investigator Cooksey’s testimony, apparently at the
preliminary hearing, that “ ‘May was then injected with a hot
shot of battery acid’ ” and that Tompkins said he “ ‘took May’s
body to an Indian reservation.’ ”
Dalton further asserts without elaboration that
“[a]lthough counsel attempted to question [Brakewood] about
her sales of methamphetamine, the court cut [counsel] off.” She
cites two record pages, only one of which contains an objection.
On this page, Brakewood testified that she started selling
methamphetamine in 1987 and was selling this drug in 1988.
When defense counsel asked Brakewood how often she sold
methamphetamine, the trial court sustained the prosecutor’s
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objection under Evidence Code section 352. Dalton makes no
effort to explain how the frequency with which Brakewood sold
methamphetamine “ ‘would have produced “a significantly
different impression of [the witness’s] credibility.” ’ ” (Dement,
supra, 53 Cal.4th at p. 52.)
g. Bench, Cross, Carlyle, and Johnson
As to Jeanette Bench, Phyllis Cross, Laurie Carlyle, and
Pamela Johnson, Dalton simply lists the prior convictions on
which she sought to cross-examine the witnesses and notes the
trial court’s reasons for precluding admission of each one. She
makes no effort to demonstrate that the trial court’s rulings
regarding each of these prior convictions was an abuse of
discretion. Rather, she broadly asserts: “The court’s rulings
unduly restricted [Dalton’s] right to cross-examine witnesses,
violating her rights to confrontation and cross-examination, to a
fair trial, to due process of law, to present a defense, and to a
reliable determination of both guilt and penalty. [Citations.]
The perceived volume, breadth and recidivist nature of the
witnesses’ prior convictions and conduct was severely and
qualitatively diminished by the court’s rulings. There is a
reasonable probability that the suppressed impeachment
evidence would have affected the jurors’ assessment of each
individual witness’s credibility, which would have diminished
the strength of the prosecution’s case in general. The
suppression of the impeachment evidence was prejudicial, and
this Court must reverse the convictions, special circumstance
findings and death judgment.” Such general allegations fail to
demonstrate that “the ‘cross-examination would have produced
“a significantly different impression of [the witness’s]
credibility.” ’ ” (Dement, supra, 53 Cal.4th at p. 52.)
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h. Cumulative prejudice
Dalton asserts that even if any individual error in
restricting cross-examination of these witnesses was not
prejudicial, the errors were prejudicial as cumulated. We have
assumed error, but concluded there was no prejudice, in the
restriction of McNeely’s and Fedor’s cross-examination. Nor do
we conclude these assumed errors were cumulatively
prejudicial.
3. Nottoli statements
Dalton contends the trial court erred in admitting Judy
Brakewood’s testimony regarding Steven Nottoli’s statements
because they did not qualify as an adoptive admission, were
irrelevant, and were unduly prejudicial. (Evid. Code, § 1221.)
We conclude there was no error.
a. Factual background
Before Brakewood testified, Dalton unsuccessfully
objected to the testimony on the ground that it was irrelevant
because Brakewood was not certain whether the conversation
occurred in the spring of 1987 or 1988, and that it was unduly
prejudicial under Evidence Code section 352. In response, the
prosecutor said that the conversation occurred after the alleged
murder and that Brakewood would testify Dalton was “excited
about the murder, about having taken the body . . . to an Indian
reservation; that battery acid was used and it was fun torturing
the victim.”
Brakewood’s actual testimony diverged from the
prosecutor’s representation. Brakewood testified that in 1988,
she was living in El Cajon and knew Dalton. In 1992, she had
read a newspaper article about a case that caused her to recall
a conversation she had previously had with Dalton.
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Brakewood testified that after receiving a call from
Nottoli, also known as “Streaker,” she brought drugs to a green
van parked at a 7-Eleven store in Spring Valley. The van was
older, and the doors opened but did not slide. In the van were
two persons: Nottoli and a woman Brakewood did not recognize.
Nottoli was in the driver’s seat, and Brakewood and the
unidentified woman were sitting on the floor of the van because
there was no back seat. Dalton was “not in the van at this time”
because she was speaking on a telephone. Brakewood was
“making it up,” meaning preparing the drugs for use.
The prosecutor asked, “While Kerry Dalton was gone, did
you have a conversation?” Brakewood replied, “Yes, I did.” After
establishing that Dalton eventually returned to the van, the
prosecutor then asked, “[W]here did [Dalton] go in the van?”
Brakewood replied, “She went into the passenger seat,” and
confirmed that Brakewood was near Dalton and could hear her
when she spoke in the van. The prosecutor asked, “What did
she say?” Brakewood replied, “She came in on the . . . tail end
of a conversation; and she said, ‘Yep, we really fucked that girl
up.’ ” Brakewood described Dalton as “[e]xuberant, excited,
happy,” but said Dalton did not provide any details about what
she meant.
The prosecutor then asked, “Was [Dalton] there when
Mr. Nottoli said anything about what . . . really fucked her up,
then?” Brakewood replied, “I don’t think that she was in there
at the time.” The prosecutor asked, “When the two of them were
still there, was anything else said about the girl?” Brakewood
replied that while she was preparing the drugs, Nottoli “was
mentioning to me how . . . they had —” Defense counsel objected
on the ground of hearsay. The trial court overruled the
objection, stating, “It’s foundational.” Brakewood said,
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“[Nottoli] had told me how that — that they had shot up this girl
with battery acid and — and burned her.” Brakewood did not
recount any explanation by Nottoli of who “they” were. Defense
counsel objected, stating: “Your honor, I ask that it be stricken.
It’s hearsay. It’s not foundational.” The trial court said, “Let
me hear the next question first.” The prosecutor asked
Brakewood, “Did Miss Dalton acknowledge or say anything
about that conversation?” Brakewood replied, “And directly
after that, ‘Yeah, we really fucked that girl up.’ ” The trial court
then overruled the hearsay objection. When the prosecutor
subsequently asked whether Dalton was present when Nottoli
described the location of the body, Brakewood replied, “I don’t
believe so.”
On cross-examination, Brakewood testified that she
received Nottoli’s call late at night in the spring of 1988. While
Brakewood was with Nottoli in the green van, Dalton was
speaking on a telephone (presumably a pay phone) that was
located about 10 to 15 feet away from the van. Brakewood did
not recall whether the van windows were open. While Dalton
was away and on the phone, Brakewood and Nottoli had a
conversation in which he mentioned battery acid and an Indian
reservation. Dalton came in on the tail end of the conversation
and said, “ ‘We really fucked that girl up.’ ” Dalton provided no
details, and Brakewood did not know who they were talking
about or when the girl had been “fucked . . . up.”
Brakewood identified the 1992 newspaper article she had
read. The article mentioned Dalton, Tompkins, and Baker, and
recounted Investigator’s Cooksey’s testimony (apparently at the
preliminary hearing) that “ ‘May was then injected with a hot
shot of battery acid,’ ” and that Tompkins said he “ ‘took May’s
body to an Indian reservation.’ ”
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Brakewood and Nottoli met in the summer of 1987 and
had dated until the end of that year. In 1988, Brakewood was a
drug dealer who injected three-quarters of a gram to one gram
of methamphetamine a day.
On redirect, the prosecutor established that Brakewood’s
conversation with Nottoli had occurred in May or June of 1988.
At that time, her drug use did not prevent her from satisfying
her responsibilities in managing an attorney’s office.
No evidence was introduced at trial linking Nottoli to
May’s disappearance or murder. Nottoli was called by the
defense and denied making the statements, denied hearing
Dalton say, “Yep, we really fucked that girl up,” denied ever
driving a green van, and denied ever being in a white van (the
color van Nottoli possessed in February 1988) with Brakewood
and Dalton. Nottoli and Brakewood had been friends but had a
falling out in December 1987 after traveling to Boston together,
and Nottoli had not seen her since that time. Nottoli and Dalton
were friends and had been physically intimate, but Nottoli had
not seen her since 1988. Nottoli had suffered prior felony
convictions for grand theft auto, burglary, robbery, forgery, and
receiving stolen property. He became addicted to drugs while
serving in Vietnam, and in the late 1980’s he used
methamphetamine.
In closing argument, the prosecutor said: “Nottoli is
talking about the battery acid and burns” and “the defendant
says, ‘Yeah, we really fucked up that woman. We really got
her.’ ” The prosecutor also said: “Did [the torture] happen? Yes
it did. . . . Judy Brakewood told you how giddy [Dalton] was
when the discussion came up in that . . . van out in Spring
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Valley; happy, excited, exuberant. ‘Yeah, we really fucked up
that bitch.’ She was proud of it.”
b. Analysis
Evidence Code section 1221 provides: “Evidence of a
statement offered against a party is not made inadmissible by
the hearsay rule if the statement is one of which the party, with
knowledge of the content thereof, has by words or other conduct
manifested his adoption or his belief in its truth.” “In
determining whether a statement is admissible as
an adoptive admission, a trial court must first decide whether
there is evidence sufficient to sustain a finding that: (a) the
defendant heard and understood the statement under
circumstances that normally would call for a response; and
(b) by words or conduct, the defendant adopted the statement as
true.” (People v. Davis (2005) 36 Cal.4th 510, 535; Evid. Code,
§§ 403, 1221.) If so, the jury then determines whether these
preliminary facts actually occurred. (See Assem. Com. on
Judiciary com., 29B pt. 1B West’s Ann. Evid. Code (2011 ed.)
foll. § 403, p. 18 [“the jury must finally decide whether the
preliminary fact exists”].)
As an initial matter, we conclude that Dalton’s statement
on its own, “ ‘Yep, we really fucked that girl up,’ ” and her
accompanying exuberance were admissible as a party statement
under Evidence Code section 1220. We further conclude that
this statement by Dalton manifested her adoption of Nottoli’s
inculpatory statements.
Although the record fails to precisely reflect what the “tail
end” of the conversation was, that is, what portion of the
conversation Dalton heard, her statement upon entering the van
demonstrated awareness of the topic of conversation and, in
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particular, Nottoli’s statement that the victim had been burned
and injected with battery acid. Brakewood testified, “[Nottoli]
had told me . . . that they had shot up this girl with battery
acid . . . and burned her.” Defense counsel objected, and the
court said it would “hear the next question first” apparently
before ruling. The prosecutor asked, “Did [Dalton] acknowledge
or say anything about that conversation?” Brakewood replied,
“And directly after that, ‘Yeah, we really fucked that girl up.’ ”
The jury could reasonably infer that Brakewood used the
phrase “[a]nd directly after that” in reference to Nottoli’s
statement that “they” had injected a girl with battery acid and
burned her. This evidence is sufficient to “sustain a finding that:
(a) the defendant heard and understood the statement under
circumstances that normally would call for a response; and
(b) by words or conduct, the defendant adopted the statement as
true.” (People v. Davis, supra, 36 Cal.4th at p. 535; Evid. Code,
§§ 403, 1221.) We therefore conclude the court acted within its
discretion in implicitly admitting Nottoli’s statements as
Dalton’s adoptive admission, and their weight was for the jury
to decide in light of all the other evidence, including Nottoli’s
denial the conversation ever occurred.
Dalton further contends that Brakewood’s testimony was
irrelevant and unduly prejudicial under Evidence Code
section 352. At the time the trial court ruled, that is, before
Brakewood’s testimony, the evidence was relevant to the
torture-murder special-circumstance allegation given Baker’s
testimony that Dalton had injected the victim with battery acid.
Although Brakewood may have been uncertain of the date of her
conversation with Nottoli before her testimony, this uncertainty
went to the weight and not the admissibility of the evidence.
(People v. Merriman (2014) 60 Cal.4th 1, 57 (Merriman) [“the
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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”].) Likewise, the circumstance that
Dalton’s statement “ ‘Yep, we really fucked that girl up’ ” could
have “meant many and various things” does not render it
irrelevant given one possible meaning was as a reference to
May’s murder. (See People v. Lewis (2008) 43 Cal.4th 415, 502
(Lewis) [rejecting argument that the amplifier found in the
defendant’s car should not have been admitted because a
witness testified only that it resembled the relevant amplifier,
“ ‘[m]illions of other amplifiers could also have looked like the
amplifier[] in question,’ ” and the prosecutor failed to compare
brand name, serial numbers, and wattage].)
Nor was the probative value of the evidence of
Brakewood’s testimony substantially outweighed by the
probability that its admission would “create substantial danger
of undue prejudice, of confusing the issues, or of misleading the
jury.” (Evid. Code, § 352.) The jury was required to decide if
May had been tortured, and the court’s ruling was within its
discretion at the time it was made.
4. State of mind evidence
Dalton contends that the trial court erred when it
permitted Nina Tucker to offer a lay opinion of May’s state of
mind based on hearsay. There was no error.
a. Factual background
As explained, Nina Tucker testified that in December
1987, she was the San Diego County Child Protective Services
worker assigned to the May family. (See ante, pp. 26−27.) At
that time, May and Bobby had custody of their three minor
children under a reunification plan. May made about three
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court appearances, was present when Tucker visited the Mays’
home, and telephoned Tucker about three times. On June 10,
1988, Tucker, a social worker, and a law enforcement officer
again removed the children from May’s home. May
subsequently admitted to Tucker she had been abusing drugs
and neglecting her children.
On June 24, May called Tucker and said she wanted to get
her children back, was tired of being on the street, and wanted
to make changes in her lifestyle. Tucker asked May to call her
so they could meet at 9:00 a.m. the following Monday (June 27).
May seemed pleased, but Tucker did not see or hear from her
again. Tucker believed that May loved and was responsive to
her children, and gave no indication she would abandon them.
May had “verbalized” to Tucker that she “loved her children very
much.”
b. Analysis
Dalton contends the trial court improperly permitted
Tucker to state a lay opinion based on hearsay. A “ ‘lay witness
may offer opinion testimony if it is rationally based on the
witness’s perception and helpful to a clear understanding of the
witness’s testimony.’ (People v. Leon (2015) 61 Cal.4th 569, 601;
see Evid. Code, § 800.) ‘By contrast, when a lay witness offers
an opinion that goes beyond the facts the witness personally
observed, it is held inadmissible.’ ” (People v. Jones (2017)
3 Cal.5th 583, 602.) Here, Tucker’s opinion that May loved and
was responsive to her children and wanted to keep them was
based on her personal observations of and conversations with
May over a six-month period, and was properly admitted. “[A]
witness may testify about objective behavior and describe
behavior as being consistent with a state of mind.” (People v.
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Chatman (2006) 38 Cal.4th 344, 397.) Indeed, although
Tucker’s testimony was admitted as a lay opinion, it was her job
as May’s Child Protective Services worker to observe and draw
conclusions regarding May’s engagement with and attitude
towards her children.
Dalton claims the trial court erred in allowing Tucker to
recount May’s June 24, 1988 hearsay statement to Tucker that
she wanted to get her children back, was tired of being on the
street, and wanted to make changes in her lifestyle. The
statement was not hearsay, but circumstantial evidence of
May’s then existing state of mind that gave rise to the inference
she would not abruptly abandon her children. This inference in
turn supported the prosecution theory May was dead. (See
Merriman, supra, 60 Cal.4th at p. 71 [murder victim’s earlier
statement that the defendant had sexually assaulted her was
not admitted for its truth but for the nonhearsay purpose of
demonstrating that the victim would not have consented to
sexual activity with the defendant on the night of the murder];
People v. Green (1980) 27 Cal.3d 1, 23, fn. 9 [describing the
difference between testimonial use of state of mind evidence,
which is hearsay, and circumstantial use of such evidence,
which is not hearsay].)
Dalton contends that the “circumstances under which May
made the statements to Tucker indicate a lack of
trustworthiness” and hence were inadmissible under the
Evidence Code section 1250 state of mind exception to the
hearsay rule. Again, “[t]he 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.” (Merriman, supra, 60 Cal.4th at p. 72, and cases
cited.) Dalton’s challenge to the reliability of May’s statement
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to Tucker, “at most, goes to the weight of the evidence, and not
its admissibility.” (Ibid.) We further reject Dalton’s claims that
Tucker’s testimony erroneously “collaterally operated as victim
impact evidence” because it “engendered great sympathy for the
victim and her family,” or “distorted the fact-finding process to
such an extent that the resulting verdict could not have
possessed the reliability required by the Eighth Amendment.”
Dalton asserts that because Tucker was employed by
Child Protective Services and had initiated judicial proceedings
to remove May’s children, “May’s statements were testimonial”
and their introduction violated Dalton’s Confrontation Clause
rights. Dependency proceedings are civil in nature, and
“[b]ecause Crawford is based on the Sixth Amendment right
to confrontation, its rule has not been extended to civil
proceedings.” (People v. Sanchez (2016) 63 Cal.4th 665, 680,
fn. 6; see In re James F. (2008) 42 Cal.4th 901, 915 [detailing
differences between criminal and dependency proceedings]; In
re Sade C. (1996) 13 Cal.4th 952, 959−960, 991−992 [noting
reasons criminal defendants and parents in dependency
proceedings are not similarly situated].)
5. Baker’s statements
Dalton contends that the trial court erred in admitting
Sheryl Baker’s March 4, 1992 redacted statement to police. We
conclude there was no error.
a. Factual background
Baker gave videotaped statements to police on March 4,
1992, and July 5, 1994, and testified at the 1995 trial. After her
trial testimony, the prosecutor sought to play for the jury much
of Baker’s 1992 statement as either prior consistent statements
(Evidence Code sections 791, 1236) or inconsistent statements
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(Evidence Code sections 770, 1235). Dalton opposed the motion.
The trial court granted the motion, redacting the statement to
remove any reference to Baker giving a blood sample, an
incident in an El Cajon motel room, and Dalton belonging to a
gang or cult. The court further allowed Dalton to play for the
jury — over the prosecutor’s objection — much of Baker’s 1994
statement.
Before opening statements, the trial court instructed the
jury: “[S]tatements of the lawyers during the course of the trial
are not evidence. . . . Questions the attorneys ask a witness are,
likewise, not evidence. The question is only relevant to your
consideration if the question gives meaning to the answer that
the witness gives. It’s the answer to the question that’s
evidence.” Before the redacted tape of Baker’s 1992 statement
was played, the trial court instructed the jury: “We’re going to
be playing a videotape here momentarily. . . . [W]hen we get to
the playing of the tape there’ll be an investigator on there asking
questions. The same admonition I gave you earlier about
statements of counsel not being evidence applies to statements
of the investigator on the tape. The statements of the
investigator on the tape are relevant to your determination of
the facts in this matter only in that the question gives meaning
to the answer that’s given by the person on the tape; so that
same admonition applies.”
b. Analysis
1) Prior consistent statements
Evidence Code section 791 provides: “Evidence of a
statement previously made by a witness that is consistent with
his testimony at the hearing is inadmissible to support his
credibility unless it is offered after: [¶] . . . [¶] (b) An express or
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implied charge has been made that his testimony at the hearing
is recently fabricated or is influenced by bias or other improper
motive, and the statement was made before the bias, motive for
fabrication, or other improper motive is alleged to have arisen.”
Dalton contends that Baker’s March 1992 statement was
inadmissible under Evidence Code section 791 as a prior
consistent statement because her motive to fabricate arose
before she gave the statement. On cross-examination of Baker,
defense counsel explored the details of her 1994 plea agreement
and established that under the deal she would not be sentenced
until after her testimony in Dalton’s case. Defense counsel’s
questioning of Baker “ ‘raised an implicit charge that the “deal”
provided [Baker] with an additional motive to testify
untruthfully. This, in turn, entitled the prosecution to show
that [the accomplice’s] testimony was consistent with the
recorded statement [she] gave shortly after [her] arrest but
before the “deal” was consummated, that is, before the
subsequent, specific motive to fabricate arose.’ ” (People v. Jones
(2003) 30 Cal.4th 1084, 1106 (Jones).)
Dalton contends that Baker was also motivated to
minimize her role in May’s murder during her March 1992
statement so that she would receive a “good deal.” But we have
held that Evidence Code section 791 does not require a witness
to be free from all possible bias at the time of her prior consistent
statement. Rather, “a prior consistent statement is admissible
if it was made before the existence of any one or more of the
biases or motives that, according to the opposing party’s express
or implied charge, may have influenced the witness’s
testimony.” (People v. Hayes (1990) 52 Cal.3d 577, 609; see
People v. Ainsworth (1988) 45 Cal.3d 984, 1014 [“That there may
always have been present a motive to fabricate does not deprive
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a party of his right to show that another motive, suggested by
the evidence, did not also affect his testimony”].) The
circumstance that Baker may have been motivated to be
untruthful during her March 1992 statement so that she would
receive a favorable plea bargain was simply a factor the jury
could consider when deciding what weight to give that
statement. (Jones, supra, 30 Cal.4th at p. 1107.)
Dalton further contends that our long-standing precedent
in this area is inapplicable because Baker’s “one and only motive
to fabricate her account of the events was to receive favorable
treatment by the prosecution.” For purposes of Evidence Code
section 791, however, our cases treat fear of voiding a plea
bargain as a motivation to fabricate that arises at the time the
plea bargain is entered into, and as a different motivation from
the more general “desire to obtain leniency at defendant’s
expense.” (People v. Andrews (1989) 49 Cal.3d 200, 210; see
Jones, supra, 30 Cal.4th at p. 1107.) For this reason, People v.
Coleman (1969) 71 Cal.2d 1159, on which Dalton relies, and
which involved only one motivation, is distinguishable.
(Andrews, at pp. 210–211 [distinguishing Coleman].)
2) Prior inconsistent statements
As Dalton acknowledges, portions of Baker’s 1992
statement were admissible as prior inconsistent statements. At
trial, Baker testified that the person under the sheet made no
sound during the attack, and Baker did not know whether the
person was alive when Baker and Tompkins returned to the
trailer. She was impeached by her 1992 statement in which she
said that May had spoken during the attack. Baker further
testified that she did not clean in the kitchen and did not clean
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any floors, and she was impeached with her 1992 statement in
which she said she cleaned some blood off the kitchen floor.
Dalton asserts that because Baker was impeached by
certain statements in her 1992 statement during her testimony,
the trial court should have exercised its discretion under
Evidence Code section 352 and precluded the prosecutor from
then playing for the jury the redacted videotape of her 1992
interview that contained these inconsistent statements. She
contends that playing the videotape was repetitious,
cumulative, and gave undue weight to the statements. Even
assuming the trial court had discretion to exclude the redacted
videotape on this basis, we discern no possible undue prejudice
from the jury hearing these few statements a second time. (See
Evid. Code, §§ 770, 1235; People v. Chism (2014) 58 Cal.4th
1266, 1294 [“ ‘A statement by a witness that is inconsistent with
his or her trial testimony is admissible to establish the truth of
the matter asserted in the statement under the conditions set
forth in Evidence Code sections 1235 and 770.’ ”].) Moreover, as
discussed above, the remaining portions of the redacted
videotape were relevant to demonstrate Baker’s prior consistent
statement to police before she negotiated her plea agreement.
3) Evidence Code section 352
Dalton contends that admission of Baker’s 1992 statement
was unduly prejudicial under Evidence Code section 352. In
particular, she claims the probative value of the statement was
substantially outweighed by the probability that its admission
would “create substantial danger of undue prejudice” (Evid.
Code, § 352) because the officers’ “interview techniques
minimized Baker’s role, involved leading questions, introduced
unsupported and inadmissible aggravating information, . . .
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misled and confused the jurors with false and extraneous
evidence,” and contained “inadmissible victim impact evidence.”
As set forth above, the court instructed the jury that the
investigator’s statements were not evidence and were relevant
only to the extent they gave meaning to Baker’s answers. We
presume the jury understood and followed that instruction.
(People v. Romero and Self (2015) 62 Cal.4th 1, 28 (Romero and
Self).)
6. Expert testimony
Dalton contends that the trial court erred in allowing
Dr. Brian Blackbourne, a pathologist, to testify generally as an
expert on the effect of battery acid and electrical current on the
human body because the testimony lacked foundation, was
irrelevant, and was unduly prejudicial. We reject the claim.
a. Foundation
Dalton asserts Dr. Blackbourne’s testimony lacked
foundation because “there was absolutely no evidence
concerning the use” of electricity and battery acid. Foundation
for Dr. Blackbourne’s testimony regarding the effect of battery
acid on the human body appears in Baker’s testimony that
Dalton showed her several syringes filled with what she told
Baker was battery acid and that Dalton subsequently injected
this substance into May. In addition, Dalton told Carlyle that
May had been killed by battery acid.
Foundation for Dr. Blackbourne’s testimony regarding the
effect of electricity on the human body appears in Fedor’s
testimony that after Deputy Wilson’s visit on June 26, 1988, she
found the cord to her bedroom chandelier had been cut and the
other end was still “plugged in” (apparently to an outlet). On
the cut end of the cord, part of the plastic protective covering
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was melted, exposing the electrical wire. Although the record is
not entirely clear, Fedor also found at least one extension cord
in the shape of a figure eight. Another extension cord was tied
in the shape of two figure eights with a different cord connecting
the two figure eights.
b. Relevance
Dalton asserts Dr. Blackbourne’s testimony was
irrelevant because the “jurors did not need an expert to explain
to them that electric shock and acid cause pain.” Evidence Code
section 801 “qualifies a matter as the proper subject for expert
testimony if it is ‘sufficiently beyond common experience that
the opinion of an expert would assist the trier of fact.’ That is
not to say, however, that the jury need be wholly ignorant of the
subject matter of the expert opinion in order for it to be
admissible. [Citation.] Rather, expert opinion testimony ‘ “will
be excluded only when it would add nothing at all to the jury’s
common fund of information, i.e., when ‘the subject of inquiry is
one of such common knowledge that [people] of ordinary
education could reach a conclusion as intelligently as the
witness’ ” [citation]. ’ ” (People v. Jones (2012) 54 Cal.4th 1, 60.)
Here, Dr. Blackbourne explained that acid injected into a
vein would be more painful than when it was injected into a
muscle. He also explained that electricity can have a local effect
on the area where it is applied, or can cause electrocution if it
goes to the brain or heart. Hence Dr. Blackbourne’s “medical
expertise provided additional insight above and beyond the
jury’s general knowledge” in the area of whether these
injuries — if inflicted — were extremely painful within the
meaning of the torture-murder special-circumstance allegation.
(Edwards, supra, 57 Cal.4th at p. 709.)
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Dalton further contends Dr. Blackbourne’s testimony was
irrelevant because the issue as to the torture-murder special-
circumstance allegation was whether Dalton intended to inflict
pain, not whether Dr. Blackbourne believed the acts caused
pain. As noted, at the time of May’s murder the prosecutor was
required to prove the infliction of extreme physical pain on a
living person. (Edwards, supra, 57 Cal.4th at p. 718; see ante,
pt. II.A.1.c.2.b.) Dr. Blackbourne’s testimony was relevant to
this issue.
c. Evidence Code section 352
Dalton asserts that Dr. Blackbourne’s expert testimony
was unduly prejudicial under Evidence Code section 352.
“ ‘Evidence is substantially more prejudicial than probative’ ”
under Evidence Code section 352 “ ‘if, broadly stated, it poses an
intolerable “risk to the fairness of the proceedings or the
reliability of the outcome [citation].” ’ ” (People v. Riggs (2008)
44 Cal.4th 248, 290.) No such intolerable risk was present here.
We have rejected above Dalton’s claim that
Dr. Blackbourne’s testimony did not assist the jury in
understanding the effects of battery acid and electricity on the
human body. (See ante, pt. II.A.6.b.) Nor, contrary to Dalton’s
assertion, did Dr. Blackbourne testify that a victim would suffer
a “prolonged and painful death” when inflicted with electric
shock and battery acid. Moreover, the trial court instructed the
jury that simply because the court permitted a hypothetical
question to be asked did not mean the court had found “all the
assumed facts have been proved. It only determines that those
assumed facts are within the probable or possible range of the
evidence. It is for you, the jury, to find from all the evidence
whether or not the facts assumed in a hypothetical question
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have been proved.” We presume the jury followed this
instruction. (See Romero and Self, supra, 62 Cal.4th at p. 28.)
7. Blood evidence
Dalton contends the trial court erroneously admitted over
her objection evidence of the presence of blood in Fedor’s former
trailer. We conclude any erroneous admission of this evidence
was not prejudicial.
a. Factual background
At the preliminary hearing, Investigator Cooksey testified
that in September and November 1988, the trailer had been
unsuccessfully searched by law enforcement for the presence of
blood. On August 12, 1991, Investigator Cooksey, along with
crime technician Gary Dorsett and serologist Annette Peer,
again searched Fedor’s former trailer for the presence of blood.
In August 1991, Fedor no longer lived in the trailer, and it was
occupied by a different tenant. Spots from the living room and
master bedroom that tested presumptively positive for the
presence of blood were collected on a later date, and six samples
were sent to the Serological Research Institute in Richmond,
California, for analysis by forensic serologist Gary Harmor.
Harmor testified that many of the blood samples from the
trailer were small. He could not determine the age of the blood
stains. Nor could he identify their species origin; he testified
they could have come from any mammal. ABO blood testing
indicated some samples were type O blood and others were type
A blood; all mammals have ABO blood groups. About 48 percent
of the white human population has type O blood, and about a
third has type A blood. DNA testing produced no results. May
and Tompkins had type A blood, and Dalton and Baker had type
O blood.
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Before trial, Dalton unsuccessfully moved to exclude the
blood evidence on the grounds that the evidence was irrelevant,
speculative, and unduly prejudicial under Evidence Code
section 352. At trial, the trial court granted Dalton a standing
objection to evidence of blood in Fedor’s former trailer.
Substantially similar evidence to that presented at the
preliminary hearing was presented at trial. (See ante,
pts. I.A.1.d.3., I.A.2.a.) In addition, evidence was introduced
that the heater and knife Fedor gave Darlene Burns tested
negative for the presence of blood.
Fedor testified that before she moved into the trailer, it
had been an illegal drug laboratory, and while she lived there
on many occasions before and after June 1988, friends visited
and used methamphetamine by injecting it with a syringe.
Fedor and Baker testified that when they injected
methamphetamine, blood would get into the syringe. Baker said
she would at times clear the syringe by pressing the blood out,
noting, “[Y]ou could squirt it anywhere.” She said, “I sure have,”
when asked if she had seen other people shoot the blood into the
room in which they were using methamphetamine.
Fedor moved out of the trailer around March 1989.
Between the time Fedor moved out of the trailer and the 1991
forensic testing, the trailer was occupied by a series of at least
three different renters.
b. Analysis
Dalton contends that the 1991 blood evidence was not
relevant and that its probative value was substantially
outweighed by its prejudice. Even assuming the blood evidence
should not have been admitted, there is no reasonable
probability the verdict would have been different absent this
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error given the blood evidence’s weak probative value. Thus, as
the jury was fully apprised, a search of Fedor’s trailer on the
night of the 1988 murder uncovered no evidence of blood; two
searches by law enforcement forensic experts later in 1988 also
uncovered no evidence of blood; the 1991 search uncovered
minute samples of blood but the prosecution expert could not
determine either the age of the blood or whether it was of human
origin, several different tenants had occupied the trailer
between the time of the 1988 murder and the 1991 search, and
the presence of blood in the trailer could be explained by the
clearing of blood in hypodermic needles. Much of this evidence
was also before the court when it correctly ruled before trial that
the evidence was not unduly prejudicial.
For these same reasons, we reject Dalton’s further claim
that her rights to due process and to reliable fact finding in a
capital case were violated by admission of the 1991 blood
evidence. Dalton asserts that the blood evidence suggested a
“link between Dalton and a bloody torture-murder that
otherwise was supported by no physical evidence.” Even if
correct, such a weak and attenuated link was not, as Dalton
contends, “ ‘so inflammatory as to prevent a fair trial.’ ”
Dalton also asserts that the prosecutor argued that
“[w]hen the people who had the time, took the time, had the
equipment, used the equipment, went back, they found evidence
of this torture, of this blood-letting. They found the drops of
blood around the room, and the pictures are here.” The
prosecutor also argued that the blood evidence “corroborate[d]”
Baker’s testimony. Dalton contends that the erroneous
admission of the 1991 blood evidence thus allowed the
prosecutor to rely on irrelevant and prejudicial evidence. We
have concluded, however, that the evidence was not prejudicial.
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8. Mistrial motion
Dalton contends that the trial court erred in denying her
mistrial motion. We disagree.
During Fedor’s testimony on direct, Fedor interjected,
“Does she have to stare at me the whole time?” Defense counsel
objected, and the court advised Fedor, “Just don’t look at her.”
Fedor responded, “Your honor, she molested my kids.” The court
struck the comment and admonished Fedor, “Don’t talk like
that.” Defense counsel asked to approach the bench, and the
court said, “No, that was just stricken.” Counsel said, “Well, I
would like to go on the record,” and the court replied that could
be done during the recess. The court then admonished the jury:
“[I]f you heard her last comment, disregard it. It is stricken.”
At the next recess, Dalton moved for a mistrial. The court
denied the motion and admonished the witness, “Don’t mention
anything like that again in front of this jury.”
The following morning, the trial court with the parties’
agreement questioned each juror and three alternate jurors
individually as to whether he or she had heard Fedor’s comment
regarding her children that had been struck from the record. If
the juror had heard the comment, the court told the juror that
the comment was a completely unfounded allegation and asked
the juror whether he or she could follow the court’s admonition
and give Dalton a fair trial. Each juror who heard the comment
stated he or she could disregard it and give Dalton a fair trial.
Following the questioning, the trial court inquired
whether Dalton was still moving for a mistrial. Defense counsel
said, “Yes, your honor.” The motion was denied.
“ ‘ “A mistrial should be granted if the court is apprised of
prejudice that it judges incurable by admonition or instruction.
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[Citation.] Whether a particular incident is incurably
prejudicial is by its nature a speculative matter, and the trial
court is vested with considerable discretion in ruling on mistrial
motions. [Citation.]” [Citation.] A motion for a mistrial should
be granted when “ ‘ “a [defendant’s] chances of receiving a fair
trial have been irreparably damaged.” ’ ” ’ (People v. Collins
(2010) 49 Cal.4th 175, 198.)” (Edwards, supra, 57 Cal.4th at
p. 703.) We conclude here that Fedor’s assertion Dalton had
molested her children was not “so incurably prejudicial that a
new trial was required.” (People v. Ledesma (2006) 39 Cal.4th
641, 683.)
Fedor’s isolated comment was brief and not solicited by the
prosecutor’s questioning. Moreover, the trial court went to great
lengths to ensure Dalton was not prejudiced by Fedor’s
statement. The court immediately struck the comment,
admonished the jury to disregard it, and admonished Fedor,
“Don’t talk like that.” The following day, each juror was
privately questioned by the court in the presence of counsel and
asked if he or she had heard Fedor’s comment. Every juror who
heard the comment or part of the comment was admonished that
the allegation was completely unfounded, and stated he or she
could disregard the comment and give Dalton a fair trial. On
this record, the trial court did not abuse its discretion in denying
the mistrial motion.
9. Conspiracy
a. Statute of limitations
Dalton contends that her conviction for conspiracy to
commit murder (Penal Code § 182) must be reversed because
that crime is subject to a three-year statute of limitation, but the
information charging her was filed more than three years after
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June 26, 1988, the date of May’s murder, which was the last
overt act and the object of the conspiracy. We reject the claim.
A claim that a charge was filed outside the statute of
limitation can be raised at any time “if the charging document
indicates on its face that the charge is untimely,” and there has
been no express waiver of the statute of limitations. (People v.
Williams (1999) 21 Cal.4th 335, 338.) The Attorney General
points to no such waiver here. The relevant limitation periods
here are found in Penal Code sections 799−801. These sections
were repealed and reenacted in 1984 in response to
recommendations made by the California Law Revision
Commission. (Sen. Com. on Judiciary, Analysis of Assem. Bill
No. 2764 (1983−1984 Reg. Sess.) as amended May 16, 1984, p. 2;
Recommendation Relating to Statutes of Limitation for Felonies
(Jan. 1984) 17 Cal. Law Revision Com. Rep. (1984) pp. 313−324
(Commission Report).) Before 1984, “most felonies [were]
subject to a three year period of limitation,” and the “crimes for
which there [was] no period of limitation [were] specified.”
(Assem. Com. on Criminal Law and Public Safety, Analysis of
Assem. Bill No. 2764 (1983−1984 Reg. Sess.) as amended May 7,
1984, pp. 2−4.) “The Commission’s primary recommendation
[was] that felony statutes of limitation should generally be
based on the seriousness of the crime as reflected by
classification of the crime as a felony, a misdemeanor or an
infraction, and by the term of imprisonment imposed for the
offense.” (Id., at p. 1.) “To implement this basic
recommendation” (ibid.), Assembly Bill 2764 repealed and then
reenacted the statutes of limitation that were then in effect in
1988 when Dalton was alleged to have conspired to murder May.
Thus, in 1988 when the conspiracy is alleged to have
occurred (and currently in § 799, sub. (a)), section 799 provided,
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“an offense punishable by death or by imprisonment in the state
prison for life or for life without possibility of parole, or for the
embezzlement of public money,” has no statute of limitations.
(Stats. 1984, ch. 1270, § 2, p. 4335.) Section 800, which applies
to offenses punishable by imprisonment in the state prison for
eight years or more, “[e]xcept as provided in Section 799,”
provided a statute of limitation of six years. (Stats. 1984,
ch. 1270, § 2, p. 4335.) Section 801 provided, “[e]xcept as
provided in Sections 799 and 800, prosecution for an offense
punishable by imprisonment in the state prison shall be
commenced within three years after commission of the offense.”
(Stats. 1984, ch. 1270, § 2, p. 4335.) “An offense is deemed
punishable by the maximum punishment prescribed by statute
for the offense, regardless of the punishment actually sought or
imposed.” (§ 805, subd. (a).)
In 1988 (and currently in § 182, subd. (a)), section 182
provided that “in the case of conspiracy to commit murder, . . .
the punishment shall be that prescribed for murder in the first
degree,” which at that time was 25 years to life. (Stats. 1983,
ch. 1092, § 247, p. 4026; Stats. 1987, ch. 1006, § 1, p. 3367; see
People v. Cortez (1998) 18 Cal.4th 1223, 1226 [conspiracy to
commit murder is necessarily conspiracy to commit
premeditated first degree murder, and “is therefore punishable
in the same manner as first degree murder pursuant to the
provisions of Penal Code section 182.”].) Thus, the language of
sections 182 and 799 is clear that because conspiracy to commit
murder is punishable by 25 years to life in prison, it has no
limitation period. (People v. Sconce (1991) 228 Cal.App.3d 693,
701, fn. 3 [“there is no statute of limitations applicable to the
crime of conspiracy to commit murder in California”].)
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In contending that the applicable statute of limitations for
conspiracy to commit murder is three years under section 801,
Dalton relies on the 1984 Commission Report and on the
legislative history of unpassed bill Senate Bill No. 951
(2013−2014 Reg. Sess.). Because the language of sections 182
and 799 is unambiguous, we need not consider these materials.
(People v. Valencia (2017) 3 Cal.5th 347, 357 [if the statutory
“ ‘language is clear and unambiguous there is no need . . . to
resort to indicia’ ” of the Legislature’s intent].)
Dalton also relies on dicta in People v. Prevost (1998)
60 Cal.App.4th 1382, and People v. Milstein (2012)
211 Cal.App.4th 1158. In Prevost, a case involving convictions
for conspiracy to commit a misdemeanor, the court broadly
stated that “[c]riminal conspiracy is governed by a three-year
statute of limitations,” and if a person were “charged with
conspiracy to commit certain offenses like murder, where the
underlying offense is not governed by a statute of limitations,
the three-year statute of limitations for conspiracy would
govern.” (Prevost, at p. 1401; see id. at pp. 1387−1388, 1390,
fn. 3.) Prevost relied on People v. Crosby (1962) 58 Cal.2d 713, a
case decided long before the 1984 reenactment of
sections 799−801, at a time when most felonies were governed
by a three-year statute of limitation. (Prevost, at p. 1401; see
Commission Report, supra, at p. 307 [in and before January
1984, “most felonies [were] subject to a three-year” statute of
limitation.]; see also Assem. Com. on Criminal Law and Public
Safety, Analysis of Assem. Bill No. 2764, supra, at p. 4.)
Although we cited Prevost with approval in People v. Johnson
(2013) 57 Cal.4th 250, 262, we did so not in deciding the issue of
the applicable statute of limitations for conspiracy to commit
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murder, which was not before us, but for the proposition that “it
is possible to conspire to commit a misdemeanor.”
Likewise, in People v. Milstein, the court held that the
statute of limitation for conspiracy to defraud by false pretenses
or false promises, proscribed by section 182, subdivision (a)(4),
was “governed by the three-year limitations period generally
applicable to criminal conspiracies,” not the four year period for
crimes involving fraud or a breach of fiduciary obligation.
(People v. Milstein, supra, 211 Cal.App.4th at p. 1164; see id. at
pp. 1163−1165.) Milstein also relied on a pre-1984 case of this
court and on the statement in Prevost quoted above for the
proposition that even in cases of conspiracy to commit murder,
the three-year statute of limitations applied. (Milstein, at
pp. 1167−1168.) We disapprove People v. Milstein (2012)
211 Cal.App.4th 1158 and People v. Prevost (1998)
60 Cal.App.4th 1382, to the extent they are inconsistent with
this opinion.
In sum, in 1988 the allegation that Dalton conspired to
commit murder had no statute of limitation. Hence, the filing of
the information four and a half years after May’s murder, which
was the last overt act and the object of that conspiracy, was
timely.
b. Sufficiency of the evidence
Dalton contends that no substantial evidence supports her
conspiracy conviction. We reject the claim.
“ ‘When considering a challenge to the sufficiency of the
evidence to support a conviction, we review the entire record in
the light most favorable to the judgment to determine whether
it contains substantial evidence — that is, evidence that is
reasonable, credible, and of solid value — from which a
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reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.’ (People v. Lindberg (2008) 45 Cal.4th 1, 27.)
We determine ‘whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt.’ (Jackson v. Virginia (1979) 443 U.S. 307,
319.) In so doing, a reviewing court ‘presumes in support of the
judgment the existence of every fact the trier could reasonably
deduce from the evidence.’ (People v. Kraft (2000) 23 Cal.4th
978, 1053.) The same standard of review applies to the
sufficiency of the evidence supporting special circumstance
findings.” (Edwards, supra, 57 Cal.4th at p. 715.)
“ ‘Conspiracy requires two or more persons agreeing to
commit a crime, along with the commission of an overt act, by at
least one of these parties, in furtherance of the conspiracy.’ ”
(People v. Homick (2012) 55 Cal.4th 816, 870.) “ ‘Evidence is
sufficient to prove a conspiracy to commit a crime “if it supports
an inference that the parties positively or tacitly came to a
mutual understanding to commit a crime. [Citation.] The
existence of a conspiracy may be inferred from the conduct,
relationship, interests, and activities of the alleged conspirators
before and during the alleged conspiracy.” ’ ” (Maciel, supra,
57 Cal.4th at pp. 515−516; Homick, at p. 870 [the element of
agreeing to commit a crime “must often be proved
circumstantially”].)
“ ‘One who conspires with others to commit a felony is
guilty as a principal. (§ 31.) “ ‘Each member of the conspiracy
is liable for the acts of any of the others in carrying out the
common purpose, i.e., all acts within the reasonable and
probable consequences of the common unlawful design.’
[Citations.]” [Citation.]’ (In re Hardy (2007) 41 Cal.4th 977,
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1025−1026.) ‘[A]ll conspiracy to commit murder is necessarily
conspiracy to commit premeditated and deliberated first degree
murder.’ ” (Maciel, supra, 57 Cal.4th at p. 515, italics omitted.)
Significant to the conspiracy conviction was Baker’s
testimony to the following: After Fedor was taken to the honor
camp, Tompkins and Baker were at the house of Baker’s drug
dealer in Lakeside. Tompkins left for about 10 minutes to
telephone Dalton, returned in a “panic,” and told Baker
“something happened” and “[w]e have to get back up there.” As
they drove, Tompkins said “things just happen and to go with
the flow,” and “things happen for a reason.” (See ante, p. 8.)
When Baker and Tompkins returned to the trailer, May was in
a chair in the kitchen covered with a sheet and bound. Dalton
was upset and told Baker that Baker did not “know what
happened when [she] was gone, and something had happened,
and that they were going to kill” May. Dalton had prepared
several syringes of battery acid and injected one into May.
Baker hit May with a heavy pan, and Tompkins stabbed and
killed May.
The jury could reasonably infer based on these
circumstances that during the telephone call between Tompkins
and Dalton, Tompkins learned something had gone awry while
Dalton and May were at the trailer and conspired with Dalton
to kill May. (See People v. Jurado (2006) 38 Cal.4th 72, 121;
Maciel, supra, 57 Cal.4th at p. 516.) Because the object of the
conspiracy was to kill May, her “murder satisfied the element of
an overt act committed in furtherance of the conspiracy.”
(Maciel, at p. 518; see Jurado, at p. 121 [“Commission of the
target offense in furtherance of the conspiracy satisfies the overt
act requirement.”].)
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Dalton argues that Baker’s testimony is not corroborated
as required by section 1111. Evidence corroborating Baker’s
testimony was required for each count as to which Baker was an
accomplice as a matter of law. (See Romero and Self, supra,
62 Cal.4th at p. 40.) We have explained that under
section 1111, “the corroboration must connect the defendant to
the crime independently of the accomplice’s testimony.” (Romero
and Self, supra, 62 Cal.4th at p. 36.) “ ‘The entire conduct of the
parties, their relationship, acts, and conduct may be taken into
consideration by the trier of fact in determining the sufficiency
of the corroboration.’ [Citations.] The evidence ‘need not
independently establish the identity of the victim’s assailant’
[citation], nor corroborate every fact to which the accomplice
testifies [citation], and ‘ “may be circumstantial or slight and
entitled to little consideration when standing alone.” ’ ” (Id. at
p. 32.)
The Attorney General generally asserts that lack of
corroboration is not properly raised on appeal because “the jury
decided the facts, and already resolved inconsistencies in favor
of the judgment.” Contrary to the Attorney General’s assertion,
“[t]he requirement that accomplice testimony be corroborated is
an ‘ “exception[]” to the substantial evidence’ rule. [Citation.] It
is based on the Legislature’s determination that ‘ “because of the
reliability questions posed by” ’ accomplice testimony, such
testimony ‘ “by itself is insufficient as a matter of law to support
a conviction.” ’ ” (Romero and Self, supra, 62 Cal.4th at p. 32.)
For this reason, “[t]he trier of fact’s determination on the issue
of corroboration” is not binding on the reviewing court if the
“corroborating evidence . . . does not reasonably tend to connect
the defendant with the commission of the crime.” (People v.
McDermott (2002) 28 Cal.4th 946, 986.)
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We first conclude Baker’s testimony regarding May’s
murder was corroborated. Dalton’s statement to Carlyle that
she, Baker, and Tompkins were involved in May’s murder, and
her response to Collins that May “was a rat” who “deserved to
die” when Collins asked Dalton why she had killed May,
connected Dalton to May’s murder independent of Baker’s
testimony. (Romero and Self, supra, 62 Cal.4th at p. 36;
People v. Davis (1930) 210 Cal. 540, 558 (Davis) [a “defendant’s
own statements and admissions, made in connection with other
testimony” may corroborate an accomplice’s testimony].)
Baker’s testimony was further corroborated by Fedor’s
testimony that Dalton, May, Baker, and Tompkins had been at
her trailer during the relevant time period, that Dalton was
upset because May had held a yard sale that included Dalton’s
belongings and had acted controlling toward May, that Dalton
was left alone in the trailer with May before May’s
disappearance, and that when Fedor returned late that
afternoon, May was gone and Dalton told her she had cut herself
and the bloody linens and clothes had been taken to be washed.
(See ante, pp. 4−5, 7, 14−16.)
As to the conspiracy to commit murder, it is not clear as a
preliminary matter whether the trial court properly instructed
the jury that Baker was an accomplice as a matter of law. As
the Attorney General notes, the prosecutor conceded at the
hearing on the motion for acquittal that Baker was not part of a
conspiracy and “she should probably be removed from that
conspiracy.”
Assuming Baker was an accomplice as to a conspiracy to
murder May, we have said that the “existence of a conspiracy
may be proved by uncorroborated accomplice testimony;
corroboration of accomplice testimony is needed only to connect
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the defendant to the conspiracy.” (People v. Price (1991)
1 Cal.4th 324, 444 (Price), italics added.) Here, the jury could
reasonably infer the existence of a conspiracy to kill May from
Baker’s testimony that Tompkins left the Lakeside home they
were visiting for about 10 minutes to make a telephone call,
returned in a “panic,” told Baker “something happened” and
“[w]e have to get back up there,” and as they drove, said “things
just happen and to go with the flow,” and “things happen for a
reason.” When Baker and Tompkins returned to the trailer,
May was in a chair in the kitchen covered with a sheet and
bound, and was shortly thereafter killed. These facts
demonstrate the existence of a conspiracy between Tompkins
and someone else to kill May.
Moreover, Baker’s testimony regarding Dalton’s
involvement in the conspiracy to kill May was corroborated.
Dalton was independently linked to the conspiracy by her
statement to Carlyle that she, Baker, and Tompkins were
involved in the murder of May in the “Live Oaks” area, and that
May had been killed by battery acid. (Romero and Self, supra,
62 Cal.4th at p. 36; Davis, supra, 210 Cal. at p. 558.) This
statement corroborated Baker’s testimony that when she and
Tompkins returned to Fedor’s trailer (located in the Live Oak
Springs Trailer Park), Dalton had already prepared several
syringes of battery acid and subsequently injected one into May.
The circumstance that Dalton had already prepared the
syringes suggests planning and an agreement between
Tompkins and Dalton to kill May.
Fedor also corroborated Baker’s testimony by stating that
when she returned to her trailer between 5:00 and 5:30 p.m. on
the afternoon of June 26, 1988, it was in disarray, May was
gone, and Dalton and Baker were cleaning items from the
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trailer. (Prince, supra, 40 Cal.4th at p. 1257 [accomplice’s
testimony was corroborated in part by the accomplice’s and
defendant’s presence together shortly after the crime].) In
addition to placing Dalton at the murder scene shortly after
Tompkins and Baker had returned from Lakeside, Fedor further
testified that Tompkins and George then returned to the trailer,
and Dalton, Tompkins, Baker, and George left in the same truck
that evening. (People v. Williams (2013) 56 Cal.4th 630, 679
[evidence of the defendant’s “flight after the crimes were
committed supports an inference of consciousness of guilt and
constitutes an implied admission, which may properly be
considered as corroborative of the accomplice testimony”].)
In sum, substantial evidence supports the conspiracy to
commit murder conviction. The judgment as to this count
nonetheless must be modified. The trial court erred in imposing
(and staying) a death sentence based upon the conspiracy
conviction (Count I) because conspiracy to commit murder does
not render a defendant death eligible. (People v. Vieira (2005)
35 Cal.4th 264, 294; People v. Lawley (2002) 27 Cal.4th 102,
171−172; People v. Hernandez (2003) 30 Cal.4th 835, 864–870.)
The Attorney General concedes the sentence was unauthorized,
and the parties agree that the proper sentence is 25 years to life.
(§ 1260; see Vieira at p. 294; Lawley, at pp. 171−172.) Since the
object of the conspiracy was to kill May, the reduced sentence
must be stayed under section 654. (Lewis, supra, 43 Cal.4th at
p. 539 [“under section 654, defendant may not be punished for
both the underlying crimes and the conspiracy, because there
was no showing that the object of the conspiracy was any
broader than commission of the underlying crimes”].) We direct
the trial court to issue an amended abstract of judgment
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reflecting a sentence of imprisonment for 25 years to life, stayed
pursuant to section 654, on the conspiracy count.
10. Additional sufficiency of the evidence claims
Dalton further contends that no substantial evidence
supports her conviction for first degree murder or the true
findings for the lying in wait and torture-murder special-
circumstance allegations. We conclude substantial evidence
supports her conviction for first-degree murder and the torture-
murder special-circumstance true finding, but that no
substantial evidence supports the lying in wait special
circumstance true finding.
a. First degree murder
“Three categories of evidence are helpful to sustain a
finding of premeditation and deliberation in a murder case:
(1) planning activity; (2) motive; and (3) manner of killing.”
(People v. San Nicolas (2004) 34 Cal.4th 614, 658 (San Nicolas).)
These factors are simply a “framework to assist reviewing courts
in assessing whether the evidence supports an inference that
the killing resulted from preexisting reflection and weighing of
considerations,” and do “not refashion the elements of first
degree murder or alter the substantive law of murder in any
way.” (People v. Thomas (1992) 2 Cal.4th 489, 517.)
Here, substantial evidence supports the jury’s finding that
Dalton premeditated May’s murder. The circumstance that
Dalton covered May in a sheet and bound her to a chair, and
prepared four or five hypodermic needles of battery acid for the
purpose of killing her, demonstrates planning and a manner of
killing that supports a finding of premeditation and
deliberation. (San Nicolas, supra, 34 Cal.4th at pp. 658−659;
People v. Bolin (1998) 18 Cal.4th 297, 332.) Evidence of Dalton’s
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belief that May had stolen from her and shared a hypodermic
needle while suffering from hepatitis provided a motive for her
to kill May. We have rejected above Dalton’s claim that Baker’s
testimony lacked corroboration. (See ante, pt. II.A.9.b.)
b. Lying in wait
At the time of May’s murder, the “lying-in-wait special
circumstance required an intentional killing, committed under
circumstances that included a physical concealment or
concealment of purpose; a substantial period of watching and
waiting for an opportune time to act; and, immediately
thereafter, a surprise attack on an unsuspecting victim from a
position of advantage.” (People v. Stevens (2007) 41 Cal.4th 182,
201, fn. omitted (Stevens); see People v. Sandoval (2015)
62 Cal.4th 394, 415.) “The factors of concealing murderous
intent, and striking from a position of advantage and surprise,
‘are the hallmark of a murder by lying in wait.’ ” (Stevens, at
p. 202.) “Concealment of purpose is not by itself ‘sufficient to
establish lying in wait’ because ‘many “routine” murders are
accomplished by such means.’ ” (Sandoval, at p. 416.)
The prosecutor introduced no evidence of such a surprise
attack on May. Sheryl Baker testified that other than Dalton’s
statement that May “tried to get away or something,” Baker did
not know and was never told what had happened at the trailer
while she and Tompkins were gone. Nor did the prosecutor
introduce any other evidence of what happened before Baker
and Tompkins returned to the trailer. May’s body was never
found and hence cannot provide any evidence of how she was
subdued.
In sum, nothing but speculation supports the special
circumstance finding that Dalton killed May while lying in wait,
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and we therefore vacate it. Double jeopardy principles preclude
retrial of this special circumstance allegation. (Burks v. United
States (1978) 437 U.S. 1, 18 [“the Double Jeopardy Clause
precludes a second trial once the reviewing court has found the
evidence legally insufficient”]; People v. Thompson (1980)
27 Cal.3d 303, 332–333 [insufficient evidence supported the
jury’s special circumstance allegation findings, “those findings
must be set aside, and further proceedings on these allegations
are barred by the double jeopardy clause”].)
For this reason, we need not address Dalton’s further
contention that the lying in wait special circumstance is
unconstitutional.
c. Torture-murder
Dalton contends that no substantial evidence supports the
jury’s torture-murder special-circumstance true finding and
that the trial court erred in denying her motion for acquittal on
this ground after the close of the prosecution’s case-in-chief. The
trial court also denied Dalton’s motion for a new trial on this
ground.
“ ‘The standard applied by a trial court in ruling upon a
motion for judgment of acquittal pursuant to section 1118.1 is
the same as the standard applied by an appellate court in
reviewing the sufficiency of the evidence to support a conviction,
that is, “whether from the evidence, including all reasonable
inferences to be drawn therefrom, there is any substantial
evidence of the existence of each element of the offense
charged.” ’ [Citation.] ‘The purpose of a motion under
section 1118.1 is to weed out as soon as possible those few
instances in which the prosecution fails to make even a prima
facie case.’ [Citations.] The question ‘is simply whether the
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prosecution has presented sufficient evidence to present the
matter to the jury for its determination.’ [Citation.] The
sufficiency of the evidence is tested at the point the motion is
made. [Citations.] The question is one of law, subject to
independent review.” (Stevens, supra, 41 Cal.4th at p. 200.)
As noted, torture is the infliction of “ ‘ “pain and suffering
in addition to death.” ’ ” (Edwards, supra, 57 Cal.4th at p. 716.)
The torture-murder special-circumstance allegation “requires
an ‘ “intent to cause cruel or extreme pain and suffering for the
purpose of revenge, extortion, persuasion, or for any sadistic
purpose.” ’ [Citation.] . . . [I]t also requires an intent to kill and,
at the time of [May’s] murder, required ‘proof of the infliction of
extreme physical pain no matter how long its duration’ on a
living victim.” (Id. at p. 718; ante, pt. II.A.1.c.2.b.)
We conclude substantial evidence exists — and existed at
the close of the prosecution’s case-in-chief — to demonstrate
these elements. Dalton’s intent to kill was demonstrated by her
statement to Baker that they were going to kill May by injecting
battery acid and her action in then injecting the victim with that
substance. The infliction of extreme physical pain while May
was alive was demonstrated by Tompkins’s statements that he
“tortured the hell out of [May]” before killing her and that “pain
was the name of the game,” Dalton’s injection of May with
battery acid and her statement that May was suffering after the
injection, Fedor’s discovery of a cut and melted cord, cords tied
together, and a screwdriver with blood, hair, and scalp material
on it, the perpetrators’ use of a heavy kitchen skillet on May
before stabbing her to death, and Baker’s first statement to
police in which she said May had spoken before she was killed.
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Dalton’s intent to cause May cruel or extreme pain and
suffering for the purpose of revenge, extortion, persuasion, or for
any sadistic purpose was demonstrated by Dalton’s statements
and the circumstances surrounding the murder. (People v.
Mungia (2008) 44 Cal.4th 1101, 1137, italics omitted [“The
intent to torture ‘is a state of mind which, unless established by
the defendant’s own statements (or by another witness’s
description of a defendant’s behavior in committing the
offenses), must be proved by the circumstances surrounding the
commission of the offense’ ”]; People v. Cole (2004) 33 Cal.4th
1158, 1172, 1214 [the defendant’s statements after the murder
that he was angry with the victim and wanted to kill her permit
an inference of intent to inflict extreme pain]; People v. Wilson
(2008) 44 Cal.4th 758, 804, italics omitted [“[T]he torture-
murder special circumstance requires proof that the defendant
h[er]self intended to torture the victim”].)
Here, May was covered with a sheet and bound to a chair,
and hence unable to see her assailants or resist their attack.
(People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1188 [“to
establish an intent to torture [citation], it is appropriate to
consider whether the victim was bound and gagged, or was
isolated from others, thus rendering the victim unable to resist
a defendant’s acts of violence.”]; see Edwards, supra, 57 Cal.4th
at p. 717 [evidence that the victim had been bound and gagged
and had a hood placed over her head “suggest[s] a methodical
and prolonged attack rather than an explosion of violence”].)
These physical limitations heightened the terror of any inflicted
violence.
Dalton’s injection of May with battery acid, a substance
that the prosecution expert testified would be quite painful if
injected into a vein, indicates an intent to make her suffer.
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Indeed, Dalton falsely told May she was giving her a sedative to
calm her, thus lowering May’s guard and adding shock to her
ensuing pain. Although Dalton told Baker the substance would
kill May “instantly” and appeared to express concern that May
was suffering as a result of the injection, the jury was not
required to credit these statements or to view them as negating
Dalton’s intent at the time she injected May. (People v. Williams
(1992) 4 Cal.4th 354, 364 [“a trier of fact is permitted to credit
some portions of a witness’s testimony, and not credit others”].)
The jury could discount this testimony in light of other evidence
that Dalton had prepared four or five syringes of battery acid,
thus indicating she did not in fact believe a single injection
would kill May, Dalton’s anger and controlling behavior toward
May on the day of the murder, Dalton’s later exuberance in
telling Brakewood, “ ‘Yeah, we really fucked that girl up’ ” in
response to Nottoli’s description of shooting up a girl with
battery acid and burning her, and Dalton’s motivation to have
Baker participate in the attack so that Baker would also be
culpable and hence not implicate Dalton.
11. Asserted prosecutorial misconduct
a. Guilty plea
Dalton contends that the prosecutor committed prejudicial
misconduct during closing argument in relying on Baker’s guilty
plea and that the trial court erred in failing to give the jury a
limiting instruction on its own motion regarding the use of the
plea. We disagree.
“A prosecutor commits misconduct when his or her
conduct either infects the trial with such unfairness as to render
the subsequent conviction a denial of due process, or involves
deceptive or reprehensible methods employed to persuade the
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trier of fact.” (People v. Avila (2009) 46 Cal.4th 680, 711.) “As a
general rule a defendant may not complain on appeal of
prosecutorial misconduct unless in a timely fashion — and on
the same ground — the defendant made an assignment of
misconduct and requested that the jury be admonished to
disregard the impropriety.” (People v. Samayoa (1997)
15 Cal.4th 795, 841 (Samayoa).) “When attacking the
prosecutor’s remarks to the jury, the defendant must show that,
‘[i]n the context of the whole argument and the instructions’
[citation], there was ‘a reasonable likelihood the jury understood
or applied the complained-of comments in an improper or
erroneous manner.’ ” (People v. Centeno (2014) 60 Cal.4th 659,
667 (Centeno).)
At trial, Baker testified she had pled guilty to second-
degree murder in exchange for testifying at trial against Dalton.
The prosecutor also agreed to other terms, including notifying
the Department of Corrections or Board of Prison Terms of
Baker’s cooperation and her level of culpability in Dalton’s case,
requesting she serve her prison time out of state, and
transporting her to and from court separately from Dalton.
Baker had not yet been sentenced at the time of her testimony.
Dalton does not contend that evidence of Baker’s plea
agreement was improperly introduced. Evidence of Baker’s plea
agreement bore on her credibility and was properly before the
jury to show Baker’s possible bias and motivation to testify. (See
Price, supra, 1 Cal.4th at p. 446.) Indeed, defense counsel began
Baker’s cross-examination by exploring the details of the plea
agreement and introduced Baker’s second statement to
police — in which her counsel delineated the terms of the plea
agreement — in the defense case.
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Dalton asserts that the prosecutor improperly relied on
the plea agreement during closing argument. The prosecutor
said: “Sheryl Baker is another eye witness. . . . She
participated. . . . She knows this woman is dead. . . . Not only
that, she put her money where her mouth is. She pled guilty to
the murder of Irene Melanie May. She knows what happened.”
Dalton asserts that this argument was improper because
the prosecutor used the plea as evidence that the murder
occurred. Dalton did not object to the prosecutor’s argument or
seek an admonition. She now contends that any such objection
would have been futile because the trial court had previously
ruled that Tompkins’s guilty plea was admissible to
demonstrate the corpus delicti of murder. Although the
prosecutor ultimately decided not to introduce Tompkins’s plea,
Dalton asserts that defense counsel had no reason to anticipate
an objection to the prosecutor’s reliance on Baker’s plea to show
corpus would prevail.
Assuming that the claim is preserved and that Dalton is
correct that Baker’s plea could not be used as substantive
evidence a murder had occurred in a prosecution against
someone other than Baker, no prejudice is apparent. Contrary
to Dalton’s assertion, the guilty plea was not the “only evidence
that a crime even occurred.” Rather, in addition to Dalton’s
statements to Laurie Carlyle that she had been involved in
May’s murder and that May had been killed with battery acid,
and Dalton’s statement to Patricia Collins that she had killed
May because May “was a rat” who “deserved to die,” the corpus
delicti of murder was established by Baker’s lengthy testimony
at trial and statements to police, May’s disappearance, and
Fedor’s testimony regarding May’s absence and the state of
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Fedor’s trailer when she returned home on the evening of
June 26, 1988.
Dalton also contends the prosecutor’s statement infringed
on Dalton’s presumption of innocence because it implied that
Dalton’s “failure to act similarly to Baker and plead guilty
implied that Dalton did not want to take responsibility for her
actions.” The reasonable import of the prosecutor’s remarks was
that Baker would not have pled guilty to second-degree murder
if May were not in fact dead. There is no reasonable likelihood
the jury would have construed the remarks as referring
implicitly to Dalton.
Baker also challenges the prosecutor’s remark that “[May]
was alive. Sheryl Baker tells you she was alive, and she pled
guilty to murder, which tells you she was alive when she got
back and did what she did.” The prosecutor also said that Baker
“pled guilty to murder, not mutilating a corpse.” Dalton
contends that these remarks improperly rely on the plea as
evidence May “was alive when she was injected, hit and
stabbed.” Dalton did not object to the prosecutor’s argument or
seek an admonition.
Assuming that the claim is preserved, and that there is a
reasonable likelihood the jury so understood the prosecutor’s
comments, there is no prejudice. Any inference from Baker’s
guilty plea that May was alive when Baker and Tompkins
returned was cumulative to Baker’s March 1992 statement to
police. In Baker’s first statement to police in March 1992, which
was played for the jury, she told officers May had said, “I don’t
wanna die,” and “[p]lease don’t kill me, I’m sorry.”
Dalton also challenges the prosecutor’s argument that
Baker’s “guilty plea corroborates what she says.” Dalton did not
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object to the prosecutor’s argument or seek an admonition, and
no exception to the general rule requiring an objection and
request for admonition applies. The claim is therefore forfeited.
(Samayoa, supra, 15 Cal.4th at p. 841.)
On the merits, Dalton is correct that Baker’s guilty plea
does not corroborate her testimony. As we observed earlier,
under section 1111, “the corroboration must connect the
defendant to the crime independently of the accomplice’s
testimony.” (Romero and Self, supra, 62 Cal.4th at p. 36; see
ante, pt. II.A.9.b.) Baker’s plea did not connect Dalton to May’s
murder. (See People v. Cummings (1993) 4 Cal.4th 1233, 1322
[nontestifying codefendant’s guilty plea did not corroborate
accomplice’s testimony that the defendant was involved in the
crime].) Again, however, no prejudice is apparent. The trial
court correctly instructed the jury on the evidence necessary to
corroborate Baker’s testimony, and we presume it followed that
instruction.
Dalton asserts, relying on United States v. Halbert (9th
Cir.1981) 640 F.2d 1000, that the trial court erred in failing to
instruct the jury on its own motion that Baker’s guilty plea could
be used only to assess her credibility. We rejected a
substantially similar argument in People v. Williams, supra,
56 Cal.4th at p. 668, and Dalton cites no persuasive reason to
revisit our conclusion. In any event, for the reasons stated
above, even assuming the trial court had such a duty, we see no
prejudice from failing to so instruct.
b. Burden of proof and presumption of innocence
Dalton contends the prosecutor committed misconduct in
his rebuttal closing argument by telling the jury Dalton’s
presumption of innocence was gone and by diluting and
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trivializing the People’s burden of proof. We conclude Dalton
forfeited this argument by failing to object at trial, and even
assuming the claim was preserved, there was no prejudicial
prosecutorial misconduct.
1) Factual background
Because the prosecutor’s challenged remarks occurred in
his rebuttal closing argument, we first recount defense counsel’s
argument.
(a) Defense counsel
During Dalton’s closing argument, defense counsel spent
significant time on the prosecution’s burden of proof beyond a
reasonable doubt. He stated: “Ladies and gentlemen, when we
started this case at the beginning, . . . I indicated to you that the
evidence in this case would not prove [Dalton] guilty beyond a
reasonable doubt. You’ve heard the evidence in this case. In a
moment you’ll hear the law from the judge. . . . [A]fter you have
listened to the law in this case and apply it to the evidence in
this case, I think that you will find that Kerry Dalton has not
been proven guilty of the charges against her.”
Defense counsel asserted: “[O]ne of the most important
instructions that the judge will give you and that you’ve been
told already by the judge is the standard, the standard by which
you judge.” “Basically, it says that: A defendant in a criminal
action is presumed to be innocent until the contrary is proved,
and in the case of a reasonable doubt whether her guilt is
satisfactorily shown, she is entitled to a verdict of not guilty.
This presumption places upon the People the burden of proving
her guilty beyond a reasonable doubt.” “There’s three separate
concepts here. . . . . The first one is the concept of presumption
of innocence. . . . Our law says that that person who has been
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accused, Kerry Dalton, is presumed to be innocent; and it wraps
around Kerry Dalton a . . . protective shield, that presumption
of innocence, and that shield remains there unless it is torn
away beyond a reasonable doubt. . . . [U]nless that shield is torn
away beyond a reasonable doubt, the shield remains, and she is
entitled to your verdict of not proven guilty.”
Defense counsel continued: “The second concept that is
discussed in this instruction is the idea of the burden of proof.
That burden of proof places upon the prosecution the burden of
proving guilt beyond a reasonable doubt. . . . . [N]owhere does
the law place on Kerry Dalton the responsibility of having to
prove herself not guilty.” “[T]he third concept here is the
standard of proof, and that standard of proof is proof beyond a
reasonable doubt. In the law we refer to this as the highest
standard of proof, proof beyond a reasonable doubt.”
Defense counsel then read the instruction the jury would
receive defining reasonable doubt. (See post, pt. II.A.11.b.1.c.)
Apparently using a chart that included the words “not guilty” on
it, defense counsel explained that the instruction meant that if
the prosecution demonstrated that the evidence was evenly
divided as to guilty or not guilty, then Dalton was entitled to a
verdict of not guilty. Counsel then discussed the standard of
preponderance of the evidence in civil cases, and said that if
“[i]t’s more likely than not that the defendant committed the
crime . . . [t]here’s still reasonable doubt, and the defendant is
entitled to a verdict of not guilty.” Counsel made similar
arguments for standards of “[p]robably guilty” and clear and
convincing evidence. Defense counsel defined reasonable doubt
as “that state . . . of the evidence above all of these which leaves
the minds of the jurors in the condition they cannot say they feel
an abiding conviction — an abiding conviction — to a moral
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certainty — a moral certainty — of the truth of the charge. And
that concept of moral certainty applies to a discussion that we
had back when we were asking questions during voir dire, and
that was if you were sitting where Kerry Dalton is sitting, how
would you want to be judged? If you have to make decisions in
your life that are the most important decisions, wouldn’t you
want to use the concept of a moral certainty before you would
act? If not, there is reasonable doubt; and if there’s reasonable
doubt, then there has not been proof beyond a reasonable doubt
and Kerry Dalton is entitled to your verdict of not proven guilty.”
Defense counsel continued: “[T]o find a person guilty, you
have to certify that that person has been proven guilty. To find
a person not guilty or not proven guilty, you’re only saying that
you have not been presented evidence beyond a reasonable
doubt, because, once again, there is no burden of proof on the
defense and there is no burden of proof on Kerry Dalton’s part
to have to prove that she did not commit this crime. Now, that’s
the law, and that’s what the judge will give you; and basically
that’s essential as a foundation to go through the evidence and
discuss what you have heard in this case. That wasn’t discussed
this morning. It’s the basic foundation in looking at the evidence
in this case, because no one is asking you to say, well, you
know . . . ‘I’m disturbed by some of this evidence. I’m concerned
with some of this evidence. Some of this evidence certainly
indicates guilt.’ That’s not your job. Your job is to look at all the
evidence; and unless there is proof beyond a reasonable doubt to
a moral certainty, then Kerry Dalton is entitled to your verdict
of not proven guilty. Now, that’s part of the law.”
Toward the end of defense counsel’s argument, he
returned to the issue of the prosecutor’s burden of proof: “If
there is 99 percent proof beyond a reasonable doubt, there is
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one percent reasonable doubt that Irene May may have died, if
she died, of natural causes, then the law requires a finding of
not guilty because proof beyond a reasonable doubt has not been
made. . . . Again, the prosecution has the burden of proof, the
prosecution has the burden to remove all proof that there is a
presumption of innocence to take away the shield to present
proof beyond a reasonable doubt.” “What I ask you to do is to
understand that this is not a game, is to ask you that this is not
about name calling and calling people evil. This is a situation
where Kerry Dalton deserves to be judged the way that you
would be judged. That this is a lasting decision. It is not a
decision for today or for tomorrow, next week, next month, next
year. It is a lasting decision. And that the law requires that
there be proof beyond a reasonable doubt of the charges against
Miss Dalton which are conspiracy to commit murder, and
murder. Based on the evidence in this case, Kerry Dalton has
not been proven guilty and that is why we ask you for your
verdict of not guilty as to the charges against her.”
(b) Prosecutor
In rebuttal, the prosecutor argued: “Counsel made
comments regarding the presumption of innocence and, truly,
the defendant had it . . . when we started this case. Now that
the evidence is here, now that you heard it all, it is gone. The
evidence shattered that presumption of innocence. It only lasts
until the evidence of guilt has been shown. It has been shown.
She’s no longer protected by that presumption.”
The prosecutor continued: “The defendant spent a great
deal of time and perhaps every other sentence talking about
reasonable doubt and had this chart for you. Certainly I have
to prove my case beyond a reasonable doubt. That’s why we
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spent so much time picking a jury, when people thought maybe
beyond a shadow of a doubt, anything beyond that.”
The prosecutor then discussed the chart used by defense
counsel: “This was the chart they gave you. Man, we got not
guilty all over this thing. We don’t even have the courage to put
guilt up there when it does get to reasonable doubt. And this is
perhaps a little misleading.”
The prosecutor then apparently showed the jury his chart,
saying: “Let me give you another one, not formal, not fancy,
handwritten, but another way of looking at it. Using this as
kind of like a thermometer — and don’t worry about the gaps
between all these. That doesn’t mean anything. The law doesn’t
tell you anything about what the gap is between them, but those
are standards of proof that can be or could be established or
required; and when you hear the instructions regarding
reasonable doubt, you’ll hear about possible doubt and
imaginary doubt. Certainly, if there’s no proof, the defendant
is . . . innocent. That’s the way we start the case. There’s no . . .
evidence. Will you vote now? She’s got to be not guilty. She’s
presumed innocent. We work our way up the thermometer. If
we get to preponderance of the evidence, that’s not enough in a
criminal case. That’s not enough. She’s still not guilty. If I can
only establish beyond clear and convincing evidence, that’s not
enough. But . . . when we get to proof beyond a reasonable
doubt, that is enough. Reasonable doubt. Subject to reason; not
guesses, not hopes, not hunches, not attorneys’ arguments. And
we can still go above that. The law could require more than that,
but it doesn’t. I do not have to prove the case beyond a possible
doubt. I don’t. You’ll hear that. You saw that in this chart. I
do not have to prove this case beyond an imaginary doubt.
Anybody can come up with some imaginary doubt; we heard an
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hour of it. I do not have to prove the case beyond a shadow of a
doubt. That is not the same thing as reasonable doubt, make no
mistake about that; and I do not have to eliminate all doubt.”
The prosecutor argued: “Drunk driving, petty theft, car
thefts, robberies, rapes, murders, it’s the same standard in them
all. That’s all I have to establish. I’ve gone way beyond that in
this case. The defendant scared the daylights out of Jeanette
Bench. When she spoke with her out at . . . Las Colinas,
threatened her, called her names, told her what was going to
happen to her. Don’t let the same thing happen to you. Don’t
let the same thing happen to you as to what your job your
function is. It’s the same job, the same function as any jury in
any criminal case; and don’t let the attorneys, myself included,
convince you of what the evidence is or shouldn’t be or what is
reasonable doubt and what isn’t.”
The prosecutor then said, “Let me give you an example.
Those of you that are married, or . . . living with somebody. . . .
Comes the end of the evening, TV show is over, it’s time to go to
bed; time to lock up the house, turn out the lights and go to bed.
It’s your job to do that. You go over and you lock the door, turn
the TV off. You switch the lights out. You do it that way every
night, because that’s your job and you do it. You go up. You get
ready for bed. You climb in bed and your wife says, ‘Did you
turn that light off? Did you turn that light off?’ And now you’re
a big dummy. You never turn it off, you big goof ball. You forgot
your socks the other day. You probably didn’t turn it out. And
all of a sudden, she starts creating a reasonable doubt in your
mind, . . . or it’s not reasonable, because when you went to bed
you knew you turned it out. Don’t let me create that doubt; don’t
let him create that doubt. The guy goes downstairs and, sure
enough, the lights were off and the doors were locked. You knew
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what you had done. You did it right. You did it conscientiously,
just like you’ll do it in this case.”
The prosecutor continued: “Great deal was spent about
circumstantial evidence, and circumstantial evidence is
dynamite stuff, and it just about has to be circumstantial
evidence in a case like this.” He then discussed the lack of
probity of the blood evidence, and said: “Circumstantial
evidence, though, what’s the reasonable interpretation? That’s
all we’re looking for. What is reasonable? What isn’t? And the
good thing . . . about circumstantial evidence — let’s wipe out
the blood. Let’s get rid of the blood, assuming the blood is
garbage, cross it off. Okay? Now look at the rest. Look at the
rest of the circumstantial evidence. That’s what you do with
circumstantial evidence, you have to look at [it] in totality. If
one or two or some of you don’t buy into one of it, discard it.
Look at what else you have. ‘Do I still have enough?’ That’s
all we’re talking about, is what’s reasonable. Is this the
reasonable interpretation?”
(c) Jury Instructions
After arguments were concluded, the trial court instructed
the jury: “[Y]ou must determine the facts from the evidence
received in this trial and not from any other source.” “If
anything concerning the law said by the attorneys in their
arguments . . . conflicts with my instructions on the law, you
must follow my instructions . . . . Statements made by the
attorneys during the trial are not evidence . . . .”
On the issue of Dalton’s presumed innocence and the
prosecutor’s burden of proof, the court instructed the jury: “A
defendant in a criminal trial is presumed to be innocent until
the contrary is proved, and in the case of a reasonable doubt
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whether her guilt is satisfactorily shown, she’s entitled to a
verdict of not guilty. This presumption places upon the people
the burden of proving her guilty beyond a reasonable doubt.
Reasonable doubt is defined as follows: It is not a mere possible
doubt; because everything relating to human affairs, and
depending upon moral evidence, is open to some possible or
imaginary doubt. It’s that state of the case which, after the
entire comparison and consideration of the evidence, leaves the
minds of the jurors in that condition that they cannot say they
feel an abiding conviction, to a moral certainty, of the truth of
the charge.” The written instructions were given to the jury for
its deliberations.
2) Analysis
Dalton did not object to the prosecutor’s argument or seek
an admonition, and no exception to the general rule requiring
an objection and request for admonition applies. The claim is
therefore forfeited. (Samayoa, supra, 15 Cal.4th at p. 841.)
Even assuming that the claim is preserved and that portions of
the prosecutor’s argument constituted misconduct, there is no
reasonable probability that a result more favorable to Dalton
would have occurred absent the error. (Watson, supra,
46 Cal.2d at p. 837.) For this reason, we further reject Dalton’s
claim that trial counsel was ineffective in failing to object.
“[T]he Due Process Clause protects the accused against
conviction except upon proof beyond a reasonable doubt of every
fact necessary to constitute the crime with which he is charged.”
(In re Winship (1970) 397 U.S. 358, 364.) A “defendant is
entitled to the presumption of innocence until the contrary is
found by the jury” (People v. Booker (2011) 51 Cal.4th 141, 185
(Booker)), and is “entitled to have his guilt or innocence
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determined solely on the basis of the evidence introduced at
trial” (Taylor v. Kentucky (1978) 436 U.S. 478, 485). “We have
recognized the ‘difficulty and peril inherent’ ” in the “use of
reasonable doubt analogies or diagrams in argument,” and have
discouraged such “ ‘ “experiments” ’ ” by prosecutors. (Centeno,
supra, 60 Cal.4th at p. 667.)
Dalton contends that the prosecutor committed
misconduct by (1) telling the jury Dalton’s presumption of
innocence “is gone,” (2) urging the jury to convict Dalton based
on a “reasonable” account of the evidence rather than proof
beyond a reasonable doubt, (3) using a chart that placed the
beyond a reasonable doubt standard below what he argued were
four higher standards, and (4) trivializing the burden of proof
and deliberative process by comparing them to someone lying in
bed wondering if he had remembered to turn off the lights and
lock the door.
As to the first two challenged instances, we conclude there
was no misconduct. In telling the jury that Dalton’s
presumption of innocence was gone, it appears that the
prosecutor “simply argued the jury should return a verdict in his
favor based on the state of the evidence presented.” (Booker,
supra, 51 Cal.4th at p. 185.) Likewise, the prosecutor’s
comments that “when we get to proof beyond a reasonable doubt,
that is enough,” that “[r]easonable doubt” was “[s]ubject to
reason; not guesses, not hopes, not hunches, not attorneys’
arguments,” and that circumstantial evidence should be
considered in its totality and reasonably interpreted, merely
urged the jury to “reject impossible or unreasonable
interpretations of the evidence,” which “is permissible.”
(Centeno, supra, 60 Cal.4th at p. 672.)
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More troubling is the prosecutor’s “example” of a person in
bed wondering if he forgot to turn off the lights and lock the door.
Dalton asserts “the analogy equated proof beyond a reasonable
doubt to everyday decision-making in a juror’s own life.” (See
People v. Nguyen (1995) 40 Cal.App.4th 28, 36 [“prosecutor’s
argument that people apply a reasonable doubt standard ‘every
day’ and that it is the same standard people customarily use in
deciding whether to change lanes trivializes the reasonable
doubt standard”].) It appears from the record, however, that the
prosecutor used this analogy as an example of the confidence the
jury should feel in its ability to conscientiously consider the
evidence to determine whether Dalton was guilty, not as a
definition of reasonable doubt. Such analogies are ill-advised
because of their potential to confuse, if not mislead, the jury,
which, unlike a reviewing court, cannot leisurely examine the
prosecutor’s transcribed words.
As to the prosecutor’s use of a chart, we observe that the
beyond a reasonable doubt standard is generally not susceptible
to pictorial depiction on a chart or a diagram. Although we have
previously stopped short of “categorically disapproving the use
of reasonable doubt . . . diagrams in argument” (Centeno, supra,
60 Cal.4th at p. 667), we caution that the use of such charts or
diagrams to explain the standard presents a significant risk of
confusing or misleading the jury and that it is better practice
not to use such visuals.
Nonetheless, any misconduct in the prosecutor’s use of the
chart or the bedtime example here was not prejudicial. It is
“significant that defense counsel emphasized the court’s
instructions on reasonable doubt numerous times during closing
argument.” (Cortez, supra, 63 Cal.4th at p. 132.) Moreover, the
trial court’s correct instructions defining reasonable doubt were
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read to the jury after the prosecutor’s rebuttal argument, and so
the prosecutor’s chart and example were not the “last
explanation of reasonable doubt the jury heard.” (People v.
Cowan (2017) 8 Cal.App.5th 1152, 1154.) “We presume that
jurors treat the court’s instructions as a statement of the law by
a judge, and the prosecutor’s comments as words spoken by an
advocate in an attempt to persuade.” (People v. Clair (1992)
2 Cal.4th 629, 663, fn. 8.) Indeed, the court’s instructions
informed the jury that “[i]f anything concerning the law said by
the attorneys in their arguments . . . conflicts with my
instructions on the law, you must follow my instructions,” and
that “[s]tatements made by the attorneys during the trial are
not evidence . . . .” The court also gave the written instructions
to “the jury to consult during deliberations.” (Cortez, supra,
63 Cal.4th at p. 131.)
12. Instructional error
a. Accomplice testimony
Dalton contends the trial court erroneously failed to
instruct the jury that Tompkins was an accomplice as a matter
of law and that his testimony could not corroborate the
testimony of another accomplice. Tompkins did not testify, nor
were his “out-of-court statements made under questioning by
police or under other suspect circumstances.” (People v.
Carrington (2009) 47 Cal.4th 145, 190; see People v. Williams
(1997) 16 Cal.4th 153, 245–246.) “Hence no instruction under
section 1111 was required.” (Maciel, supra, 57 Cal.4th at
p. 529.)
Dalton further contends that the trial court erroneously
failed to instruct the jury that Baker’s testimony could not be
corroborated by Tompkins’s statements because Tompkins was
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also an accomplice. (See Rangel, supra, 62 Cal.4th at p. 1222
[testimony of one accomplice cannot corroborate that of another
accomplice].) Even assuming for the sake of argument that
Tompkins had been an accomplice under section 1111, the
purpose of the corroboration rule is to require evidence
independent of the accomplice testimony that links the
defendant to the crime. (Romero and Self, supra, 62 Cal.4th at
p. 32.) Here, Tompkins’s statements merely recounted the
circumstances of the crime. They did not refer to Dalton and
therefore did not link her to the crime, and hence could not have
been relied on by the jury to corroborate Baker’s testimony that
Dalton was involved.
b. Motive
Baker testified that on June 25, 1988, when she was
helping May move, Dalton came by and angrily said much of the
furniture in the apartment was hers and she was looking for
some jewelry. Dalton later found some of her jewelry in May’s
purse, became angry, and made May perform certain household
chores. Dalton contends that the trial court erroneously failed
to sua sponte instruct the jury that Dalton’s “oral statement of
motive” before the murder should be viewed with caution.
The trial court instructed the jury: “Motive is not an
element of the crimes charged and need not be shown,” but “you
may consider motive . . . as a circumstance in this case.
Presence of motive may tend to establish guilt. Absence of
motive may tend to establish innocence. You will therefore give
its presen[ce] or absence, as the case may be, the weight to which
you find it to be entitled.” The court further instructed the jury:
“An admission is a statement made by the defendant other than
at her trial which does not by itself acknowledge her guilt of the
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crimes for which such defendant is on trial, but which statement
tends to prove her guilt when considered with the rest of the
evidence. . . . Evidence of an oral admission of the defendant
should be viewed with caution.”
These instructions collectively conveyed to the jury the
concept that Dalton’s oral statement of motive, which might
tend to establish her guilt, should be viewed with caution.
Moreover, the broad language “a statement made by the
defendant other than at her trial” would include the time period
before the offense. (Italics added.)
In a related claim, Dalton contends that the motive
instruction allowed the jury to find her guilty of murder based
solely on evidence of her motivation and thereby lessened the
prosecutor’s burden of proof beyond a reasonable doubt and
shifted the burden of proof to Dalton to prove her innocence. We
previously have rejected similar claims and do so again here.
(See People v. Thompson (2016) 1 Cal.5th 1043, 1122–1124;
People v. Nelson (2016) 1 Cal.5th 513, 552–553, and cases
cited (Nelson).)
c. Consciousness of guilt
Dalton contends the trial court erred in instructing the
jury in the language of CALJIC Nos. 2.03 and 2.06, which
respectively allow a jury to consider a defendant’s willfully false
or deliberating misleading statements, and attempts to
suppress evidence, as circumstances tending to show a
consciousness of guilt. We have repeatedly rejected claims
similar to Dalton’s that these instructions improperly duplicate
the circumstantial evidence instructions, are partisan and
argumentative, or permit the jury to irrationally infer guilt.
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(People v. Jones (2013) 57 Cal.4th 899, 971 [CALJIC No. 2.03];
Dement, supra, 53 Cal.4th at pp. 52–53 [CALJIC No. 2.06].)
Dalton notes, as did the defendant in Dement, that many
of this court’s cases have cited the protective nature of the
consciousness of guilt instructions. (See Dement, supra,53 Cal.4th at p. 53, fn. 27, citing People v. Jackson (1996)
13 Cal.4th 1164, 1224 [the “cautionary nature of the
instructions benefits the defense, admonishing the jury to
circumspection regarding evidence that might otherwise be
considered decisively inculpatory”].) Dalton “asserts we
abandoned this ‘rationale’ in People v. Seaton (2001) 26 Cal.4th
598, 673, when we held that error in not giving a consciousness
of guilt instruction was harmless because the instruction ‘would
have benefited the prosecution, not the defense.’ It is not,
however, inconsistent to observe that an instruction that
informs the jury it may consider certain evidence as tending to
show a consciousness of guilt benefits the prosecution while at
the same time noting that language in the instruction limiting
that consideration protects the defendant.” (Dement, at p. 53,
fn. 27.)
d. Bolstering credibility
The trial court instructed the jury in the language of
CALJIC No. 2.13: “Evidence that on some former occasion a
witness made a statement or statements that were inconsistent
or consistent with his or her testimony in this trial, may be
considered by you not only for the purpose of testing the
credibility of the witness, but also as evidence of the truth of the
facts as stated by the witness on such former occasion. If you
disbelieve a witness’[s] testimony that he or she no longer
remembers a certain event, such testimony is inconsistent with
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a prior statement or statements by him or her describing that
event.” Dalton contends this instruction impermissibly
bolstered Baker’s credibility by: (1) “telling the jurors only that
they could consider those prior inconsistent statements for their
‘truth,’ but not telling them that they could also consider those
statements for their ‘falsity’ ”; and (2) “telling the jurors to
consider the prior statements as evidence of the truth of ‘the
facts’ as stated by the witness on those former occasions, by
definition it strongly implied to them that the prior statements
were factual.” We have previously rejected a substantially
similar claim, and Dalton cites no persuasive reason to revisit
our conclusion. (See People v. Wilson (2008) 43 Cal.4th 1, 20–
21.)
e. Reasonable doubt
Dalton contends the trial court’s instructions in the
language of CALJIC Nos. 1.00, 2.01, 2.02, 2.21.1, 2.21.2, 2.22,
2.27, 2.51, 2.90, 8.20, 8.83, and 8.83.1 undermined and diluted
the requirement of proof beyond a reasonable doubt. Dalton
advances no persuasive reason to reconsider our prior rejection
of substantially similar challenges to these instructions, and we
decline to do so. (See Romero and Self, supra, 62 Cal.4th at
p. 43; see People v. Delgado (2017) 2 Cal.5th 544, 572−574;
Grimes, supra, 1 Cal.5th 698, 723–725 [rejecting challenge to
CALJIC No. 8.83]; Nelson, supra, 1 Cal.5th at pp. 553–554
[rejecting challenge to CALJIC Nos. 2.01, 2.02, 8.83 and 8.83.1];
Casares, supra, 62 Cal.4th at p. 831 [CALJIC No. 2.01 did not
“create an impermissible mandatory presumption by requiring
the jury to draw an incriminatory inference whenever such an
inference appeared ‘reasonable’ unless the defense rebutted it
by producing a reasonable exculpatory interpretation”]; Bryant,
Smith and Wheeler, supra, 60 Cal.4th at p. 437 [rejecting
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challenge to CALJIC Nos. 1.00, 2.01, 2.02, 2.21.2, 2.21.2, 2.22,
2.27, 2.51, 2.90, and 8.20]; People v. Carey (2007) 41 Cal.4th 109,
129 [CALJIC Nos. 2.02, 8.83 and 8.83.1 did not inform jury it
could find the defendant guilty if he “ ‘reasonably appeared’ ” to
be guilty].) Moreover, as Dalton acknowledges, she requested
the trial court use the version of CALJIC No. 2.90 that contained
the language “moral evidence” and “moral certainty” that she
now challenges rather than the revised version.
B. Penalty Phase Issues
1. Crawford’s testimony
Dalton contends that the trial court erroneously admitted
Dawn Crawford’s testimony regarding Dalton’s description of
May’s murder. (See ante, p. 36.) We disagree.
Crawford testified that she heard Dalton say she had
participated in a murder. Dalton referred to the victim as “the
bitch” and said she had owed Dalton $80. The victim was tied
and injected with battery acid. Dalton said that “hearing her
scream was the greatest high that she has ever experienced.”
The victim was stabbed in the head and “cut up and mutilated.”
Dalton mentioned an Indian reservation. Dalton also
mentioned a woman named “John-Boy” and said “John-Boy
better keep quiet.” During the conversation, Dalton was
“laughing . . . like it was no big deal.”
Dalton contends the testimony was improper evidence of
her lack of remorse. Although a prosecutor may not argue lack
of remorse as an aggravating factor, Dalton cites no basis for
excluding evidence of a defendant’s statements regarding the
capital offense that may indicate a lack of remorse. Rather,
Dalton’s statement that “hearing [May] scream was the greatest
high that she has ever experienced” was an admission and was
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properly admitted as a circumstance of the crime. (§ 190.3,
factor (a); People v. Cain (1995) 10 Cal.4th 1, 77–78 [the
detective’s question related to the defendant’s emotions during
the burglary, and the “defendant’s answer tended to show his
attitude at that time”].) Contrary to Dalton’s assertion, the
circumstance that she made this statement six years after the
crime does not render it unreliable or inadmissible.
Dalton further contends that the trial court abused its
discretion by not excluding Crawford’s testimony under
Evidence Code section 352. Contrary to her assertion, the
evidence was not unduly prejudicial merely because it was
“devastating” to Dalton’s case. Nor, contrary to Dalton’s
assertion, was the evidence collateral, confusing, or unduly
time-consuming simply because Dalton chose to call numerous
witnesses to rebut it.
2. Spitting
Dalton contends that the trial court erred in admitting
rebuttal evidence Dalton spat in the direction of then
codefendant Tompkins during a pretrial hearing. (See ante,
p. 46.) Even assuming admission of this evidence was
erroneous, we conclude there is no reasonable possibility the
penalty verdict would have been different absent this evidence.
The behavior was incidental in comparison to the capital crimes
and other evidence of Dalton’s unadjudicated criminal activity.
3. Asserted instructional error
Dalton contends the trial court erroneously refused to give
requested defense instructions. We have previously rejected
substantially similar claims and do so again here.
Dalton’s first requested instruction provided: “Life
without the possibility of parole and death mean just that. You
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must assume, for purposes of determining the penalty, that
either sentence will be carried out. If you sentence Ms. Dalton
to life without the possibility of parole, she will spend the
balance of her [natural] life in prison with no possibility of
parole.” There was no error. (People v. Letner and Tobin (2010)
50 Cal.4th 99, 206 [disapproving of instructing a penalty phase
jury to “ ‘assume’ or ‘presume’ that the sentence will be carried
out”].)
Dalton also requested instructions on mitigation and the
role of mercy and sympathy that provided: (1) “The mitigating
circumstances which I have read for your consideration are
given to you merely as examples of some of the factors that you
may take into account as reasons for deciding not to impose a
death sentence upon Kerry Lyn Dalton. You should not limit
your consideration of mitigating circumstances to these specific
factors. You may also consider any other circumstance
presented as reasons for not imposing the death sentence.”
(2) “The mitigating circumstances that I have read for your
consideration are given merely as examples of some of the
factors that a juror may take[] into account as reasons for
deciding not to impose a death sentence in this case. A juror
should pay careful attention to each of those factors. Any one of
them may be sufficient, standing alone, to support a decision
that death is not the appropriate punishment in this case. But
a juror should not limit his or her consideration of mitigating
circumstances to specific factors. [¶] A juror may also consider
any other circumstances relating to the case or to the defendant
as shown by the evidence as reasons for not imposing the death
penalty. [¶] A mitigating circumstance does not have to be
proved beyond a reasonable doubt. A juror may find that a
mitigating circumstance exists if there is any evidence to
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support it no matter how weak the evidence is. [¶] Any
mitigating circumstance may outweigh all the aggravating
factors. [¶] A juror is permitted to use mercy, sympathy and/or
sentiment in deciding what weight to give each mitigating
factor.” (3) “In determining the appropriate penalty for Kerry
Lyn Dalton, you may consider as a circumstance in mitigation
her potential for rehabilitation and leading a useful and
meaningful life while incarcerated.” (4) “You may recommend a
life sentence without finding the existence of an alleged
statutory mitigating circumstance and even should you find
beyond a reasonable doubt the existence of an alleged statutory
aggravating circumstance. In other words, you may, in your
good judgment, recommend a life sentence for any reason at all
that you see fit to consider.” Dalton’s alternative requested
instruction provided: “However, it is not essential to a decision
to impose a sentence of life imprisonment without possibility of
parole that you find mitigating circumstances. You may spare
the life of Kerry Lyn Dalton for any reason you deem
appropriate and satisfactory.” (5) “In determining whether to
sentence Kerry Lyn Dalton to life imprisonment without the
possibility of parole or to death, you may decide to exercise
mercy on behalf of Ms. Dalton.” (6) “If the mitigating evidence
gives rise to compassion or sympathy for the defendant, the jury
may, based upon such sympathy or compassion alone, reject
death as a penalty.”
We conclude the trial court did not err in refusing these
requested instructions. The United States Supreme Court has
held a trial court is not required to instruct the jury that
mitigating factors need not be proved beyond a reasonable
doubt. (Kansas v. Carr (2016) 577 U.S. __, __ [136 S.Ct. 633,
642] [“our case law does not require capital sentencing courts ‘to
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affirmatively inform the jury that mitigating circumstances
need not be proved beyond a reasonable doubt’ ”]; accord,
Samayoa, supra, 15 Cal.4th at p. 862.)
The remaining portions of the requested instructions were
cumulative to instructions given. The trial court instructed the
jury it could consider “[a]ny other circumstance which
extenuates the gravity of the crime[,] even though it is not a
legal excuse for the crime[,] and any sympathetic or other
aspect[] of the defendant’s character or record that the
defendant offers as a basis for a sentence less than death,
whether or not related to the offense[] for which she is on trial.”
The court defined a “mitigating circumstance” as “any fact,
condition or event which . . . does not constitute a justification
or excuse for the crime in question[,] but may be considered as
an extenuating circumstance in determining the
appropriateness of the death penalty,” and explained, “[y]ou are
free to assign whatever moral or sympathetic value that you
deem appropriate to each and all of the various factors that you
are permitted to consider.”
4. Constitutionality of the death penalty statute
Dalton contends California’s death penalty statute and
implementing instructions are constitutionally invalid in
numerous respects. We have repeatedly rejected similar claims,
and Dalton provides no persuasive reason to revisit our
decisions.
“[T]he California death penalty statute is not
impermissibly broad, whether considered on its face or as
interpreted by this court.” (People v. Dykes (2009) 46 Cal.4th
731, 813.) We further “reject the claim that section 190.3,
factor (a), on its face or as interpreted and applied, permits
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arbitrary and capricious imposition of a sentence of death.”
(Ibid.; see Tuilaepa v. California (1994) 512 U.S. 967, 975–976,
978.)
“The death penalty statute does not lack safeguards to
avoid arbitrary and capricious sentencing . . . or constitute cruel
and unusual punishment on the ground that it does not require
either unanimity as to the truth of aggravating circumstances
or findings beyond a reasonable doubt that an aggravating
circumstance (other than Pen. Code, § 190.3, factor (b) or (c)
evidence) has been proved, that the aggravating factors
outweighed the mitigating factors, or that death is the
appropriate sentence.” (Rangel, supra, 62 Cal.4th at p. 1235.)
Nothing in Hurst v. Florida (2016) 577 U.S. __ [136 S.Ct. 616],
Cunningham v. California (2007) 549 U.S. 270, Blakely v.
Washington (2004) 542 U.S. 296, Ring v. Arizona (2002)
536 U.S. 584, or Apprendi v. New Jersey (2000) 530 U.S. 466,
affects our conclusions in this regard. (Rangel, at p. 1235,
fn. 16.)
“No burden of proof is constitutionally required, nor is the
trial court required to instruct the jury that there is no burden
of proof. [Citations.]” (Dement, supra, 53 Cal.4th at p. 55.) The
trial court need not instruct that there is a presumption of life,
that if the mitigating factors outweigh the aggravating factors
the jury should impose a sentence of life imprisonment without
the possibility of parole, or that a jury need not be unanimous in
finding the existence of a mitigating factor. (People v. Williams
(2016) 1 Cal.5th 1166, 1204; People v. Adams (2014) 60 Cal.4th
541, 581; People v. Moore (2011) 51 Cal.4th 1104, 1139–1140.)
The trial court was not required to delete inapplicable factors
from CALJIC No. 8.85 (People v. Watson (2008) 43 Cal.4th 652,
701), or “instruct that the jury can consider certain statutory
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factors only in mitigation.” (People v. Valencia (2008) 43 Cal.4th
268, 311.) “Written findings by the jury during the penalty
phase are not constitutionally required, and their absence does
not deprive defendant of meaningful appellate review.”
(People v. Mendoza (2011) 52 Cal.4th 1056, 1097.)
The jury may properly consider a defendant’s
unadjudicated criminal activity. (People v. Martinez (2010)
47 Cal.4th 911, 968.) The language “so substantial” and
“warrants” in CALJIC No. 8.88 is not impermissibly vague.
(Romero and Self, supra, 62 Cal.4th at p. 56.) “Use of the
adjectives ‘extreme’ and ‘substantial’ in section 190.3, factors (d)
and (g) is constitutional.” (Dement, supra, 53 Cal.4th at p. 57.)
“The federal constitutional guarantees of due process and
equal protection, and against cruel and unusual punishment
[citations], do not require intercase proportionality review on
appeal.” (People v. Mai (2013) 57 Cal.4th 986, 1057.) “Moreover,
‘capital and noncapital defendants are not similarly situated
and therefore may be treated differently without violating’ a
defendant’s right to equal protection of the laws, due process of
law, or freedom from cruel and unusual punishment.” (People
v. Carrasco (2014) 59 Cal.4th 924, 971.) “ ‘The death penalty as
applied in this state is not rendered unconstitutional through
operation of international laws and treaties.’ ” (People v.
Jackson (2016) 1 Cal.5th 269, 373.)
5. Cumulative prejudice
Dalton contends the cumulative effect of guilt and penalty
phase errors requires us to reverse the judgment. Having
concluded no substantial evidence supports the lying in wait
special-circumstance true finding, we vacate that finding. We
have also concluded that the trial court erred in imposing the
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death penalty for Dalton’s conviction of conspiracy to commit
murder. We have assumed error in the trial court’s preclusion
of impeachment of McNeely with the facts underlying his felony
convictions, and of Fedor with her pending charges, in the
admission of evidence of blood in Fedor’s former trailer and of
Dalton spitting in the direction of Tompkins, in certain aspects
of the prosecutor’s guilt phase closing argument, and in the trial
court’s failure to instruct on its own motion that Baker’s guilty
plea could only be used to assess her credibility. These errors
and assumed errors, whether considered individually or
cumulatively, do not require reversal of Dalton’s murder or
conspiracy convictions, nor do they require us to vacate the
personal use of a deadly weapon true finding.
CONCLUSION
For the reasons above, we vacate as unauthorized the
death sentence imposed (and stayed) on the conspiracy to
commit murder count (Count I). We further vacate the lying in
wait special-circumstance true finding. We remand to the trial
court, and direct the court to state on an amended abstract of
judgment a sentence of imprisonment for 25 years to life, stayed
pursuant to section 654, on the conspiracy count (Count I), and
to strike the lying in wait special-circumstance true finding. We
affirm the judgment, as modified, in all other respects.
LIU, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
CUÉLLAR, J.
KRUGER, J.
GROBAN, J.
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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Dalton
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S046848
Date Filed: May 16, 2019
__________________________________________________________________________________
Court: Superior
County: San Diego
Judge: Michael D. Wellington and Thomas J. Whelan
__________________________________________________________________________________
Counsel:
Michael J. Hersek and Mary K. McComb, State Public Defenders, under appointment by the Supreme
Court, Denise Anton and Jolie Lipsig, Deputy State Public Defenders, for Defendant and Appellant.
Edmund G. Brown, Jr., and Xavier Becerra, Attorneys General, Dane R. Gillette, Chief Assistant Attorney
General, Gary W. Schons, Assistant Attorney General, Holly Wilkens, Pat Zaharopoulos and Christen
Somerville, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Jolie Lipsig
Deputy State Public Defender
770 L Street, Suite 1000
Sacramento, CA 95814
(916) 322-2676
Christen Somerville
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 510-3856