People v. Suff

Filed 4/28/14
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE, )
)
Plaintiff and Respondent, )
) S049741
v. )
)
WILLIAM LESTER SUFF, )
) Riverside County
Defendant and Appellant. ) Super. Ct. No. CR 44010
____________________________________)
A jury convicted William Lester Suff of the first degree murders of
Kimberly Lyttle, Tina Leal, Darla Ferguson, Carol Miller, Cheryl Coker, Susan
Sternfeld, Kathleen Milne (also known as Kathleen Puckett), Sherry Latham,
Kelly Hammond, Catherine McDonald, Delliah Zamora (also known as Delliah
Wallace), and Eleanor Casares (Pen. Code, §§ 187, subd. (a), 189), and one count
of attempted murder of Rhonda Jetmore (Pen. Code, §§ 664, 187).1 The jury
found true the special circumstance allegations that defendant was convicted of
more than one offense of murder in this proceeding, and that defendant
intentionally killed each of the homicide victims while lying in wait. (§ 190.2,
1 All further statutory references are to the Penal Code unless otherwise
indicated.
The jury deadlocked with respect to a charge of first degree murder of
Cheri Payseur, and the court declared a mistrial as to that count.
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subd. (a)(3), (15).) The jury also found true the allegations that defendant
personally used a deadly and dangerous weapon, a knife, within the meaning of
sections 12022, subdivision (b) and 1192.7, subdivision (c)(23), in the commission
of the murders of Leal, Miller, Coker, McDonald, and Casares. After defendant
waived his right to a jury trial on the special circumstance allegation that he had
suffered a prior conviction for murder, the trial court found the allegation to be
true. (§ 190.2, subd. (a)(2).)
Following the penalty phase of the trial, the jury returned verdicts of death
with respect to each of the 12 murder convictions. The trial court denied
defendant‘s application to modify the death penalty verdict to life imprisonment
without the possibility of parole (§ 190.4, subd. (e)), and sentenced defendant to
death with respect to each of the 12 murder convictions. The court also sentenced
defendant to life with the possibility of parole with respect to the attempted
murder conviction, and to a total of five years with respect to the findings that he
personally used a deadly and dangerous weapon in the commission of five of the
murders. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.
I. FACTS
A. Guilt Phase Evidence
1. Prosecution case
Defendant‘s victims abused drugs and worked as prostitutes in Riverside
County. The homicide victims were killed between June 1989 and December
1991. All of his victims were asphyxiated, four of the victims also suffered stab
wounds to the chest, and the right breast of three of the victims had been excised.
Hairs, fibers, tire tracks, and shoe impressions connected defendant with the
homicide victims, and each of these types of evidence was associated with more
than one victim. The victim of the attempted homicide identified defendant as her
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assailant, and a friend of homicide victim Kelly Hammond identified defendant as
the person driving a van that Hammond entered the evening she disappeared. A
knife found in defendant‘s van had blood on it that was consistent with the last
homicide victim‘s and not consistent with defendant‘s. Testing of DNA found on
or near nine victims reflected matches to defendant. Personal items belonging to
three of the homicide victims were found at defendant‘s worksite, in his wife‘s
jewelry box, and in the possession of acquaintances to whom he had given them.
Defendant had repeatedly expressed his hatred of prostitutes, and had stated to one
person that he thought that prostitutes should be killed.
a. Attempted murder of Rhonda Jetmore
In January 1989, Rhonda Jetmore was seated on a bench on Main Street in
the City of Lake Elsinore (Lake Elsinore), ―hoping to encounter a date.‖ A man
drove a station wagon alongside the curb near where she was sitting, and
confirmed that he was looking for a ―date.‖ He moved a box containing files of
papers from the front passenger seat to the backseats, where there were more
papers, and she entered his vehicle. He told her his name was ―Bob,‖ they agreed
on a price of $20 for ―straight sex,‖ and she directed him to a nearby vacant
residence. Once inside, Jetmore requested prepayment for her services. The man
handed her a bill and, using her flashlight, she determined it was a single dollar.
Before she could say anything, he grabbed her around her neck with both hands,
pushed her down, and began choking her. As he choked her, she looked at his
face, and also noticed his belt buckle, which had ―Bill‖ spelled on it. She felt she
was losing consciousness, and she believed he was attempting to kill her. When
she realized she still had her flashlight, she struck him with it on the side of his
head, and he released his grip on her neck. They struggled as she attempted to
escape, and his eyeglasses, which had a wire or metal frame, came off. Her
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assailant agreed to let her leave if she assisted him in finding his glasses. She
spotted them with her flashlight, and escaped as he retrieved them.
She did not report the assault until she was contacted later in January 1989
by the Riverside County Sheriff‘s Department regarding a different matter. She
informed a sheriff‘s deputy of the name on the belt buckle, and of her perception
that the assailant had responded when she called him ―Bill.‖ When she was
contacted again in 1992 by the sheriff‘s department, she selected defendant‘s
photograph from a group of six photographs, and she recalled that he drove a
light-colored station wagon. She identified defendant at trial, and stated she had
no doubt that he was her assailant.
At the time of the attack on Jetmore in January 1989, defendant was living
with Bonnie Ashley in Lake Elsinore. Ashley identified defendant in photographs
in which he was wearing wire-rimmed glasses and a belt buckle with the name
―Bill‖ on it. She kept real estate documents and other papers in her vehicle, and
defendant sometimes drove her vehicle, which was a white station wagon.
b. Murder of Kimberly Lyttle
Kimberly Lyttle worked on Main Street in Lake Elsinore. On June 28,
1989, her body was discovered in a rural area near Lake Elsinore. Among the
clothes on her body were socks and a shirt that did not appear to be hers. The
cause of death was asphyxiation due to strangulation. In her neck area were
numerous scratches that appeared to have been caused by fingernails, both of the
person compressing her neck and by the victim trying to free herself. There was
bruising on the skin and in the muscles of her neck, and a hemorrhage and fracture
of the hyoid bone. In addition, hemorrhaging in her scalp was indicative of blunt
force trauma, and round red abrasions on her arms and other parts of her body
were indicative of cigarette burns.
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Two kinds of tests were performed on DNA found in a vaginal swab from
Lyttle‘s body: restriction fragment length polymorphism (RFLP) and polymerase
chain reaction (PCR). No results were generated by the RFLP test. PCR testing
on the male fraction of DNA established one type that matched defendant. The
probability of finding that type would be one in nine in the Black population, one
in 11 in the White population, and one in five in the Hispanic population. 2 The
small amount of DNA available prevented further testing.
On a towel draped over Lyttle‘s body were hairs that were similar to
defendant‘s head hair, and pubic hair similar to defendant‘s pubic hair. Also on
the towel were fibers similar to the carpeting, the sidepanel upholstery, and the
seat fabric in defendant‘s van. Other fibers on the towel were similar to the blue
nylon exterior, the red acetate lining and the white nylon insulation of a sleeping
bag found in defendant‘s van. Sisal rope fibers found on the towel were similar to
the sisal rope found in defendant‘s van.
c. Murder of Tina Leal
On December 13, 1989, Tina Leal‘s body was discovered in the Lake
Elsinore area on a dirt road that was not well traveled. A T-shirt that did not
belong to her was on her body. The cause of death was asphyxiation due to
ligature strangulation and stab wounds to her heart. She had hemorrhaging within
her neck and eyes, and abrasions on her neck from a ligature. She had four stab
wounds to her chest inflicted antemortem, two of which penetrated three to four
inches and into her heart. She also suffered numerous other antemortem injuries,
including injuries to her lip and chin consistent with being hit, a black eye, an
2 It does not appear that any testimony was presented concerning defendant‘s
ethnicity, but he appears in photographs in the record to be White.
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incised or ―cutting‖ wound to her left breast, lacerations or ―splitting injuries‖ to
her vagina, probably caused by blunt force, and a stab wound to the pubic area.
Around her wrists and ankles was redness indicative of a binding ligature. A
General Electric Miser 95-watt light bulb was found inside her uterus; the bulb
apparently entered through the vagina and cervix. General Electric Miser 95-watt
light bulbs were found in defendant‘s apartment.
Hairs found on one of her socks and on the body bag in which she was
transported from the crime scene were similar to defendant‘s head hair. Fibers
found on the T-shirt were similar to carpet fibers in the two units of an apartment
building in which defendant lived from March 1987 until mid-1988 and beginning
again in March 1989. Fibers on the T-shirt were similar to the red acetate lining of
the sleeping bag and the gold acrylic fabric that covered a pillow found in
defendant‘s van. Fibers found in her hair and on her clothing matched a sisal rope
in defendant‘s van.
In April 1990, defendant gave one of his female friends a pair of red-and-
white cloth tennis shoes. A fiber found on Leal‘s sock was similar to the fibers of
the tennis shoes, and purple-brown acrylic fibers found on the T-shirt on Leal‘s
body were similar to fibers found on the tennis shoes. In addition, a hair found in
the shoes was similar to Leal‘s hair.
There were tire tracks on the shoulder of the road near Leal‘s body. Two
tire tracks were consistent with a Yokohama 382 tire, and one tire track was
consistent with an Armstrong Ultra Trac tire, which were the types of tires
defendant had on his van at the time of this homicide.
d. Murder of Darla Ferguson
Darla Ferguson‘s nude body was discovered on January 18, 1990, near a
dirt road in the Lake Elsinore area. Her body was posed, with her legs up and her
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arms positioned crossing her upper torso. The cause of death was asphyxiation
due to strangulation. She had hemorrhaging in an eye and in the skin of her lips;
abrasions on her neck; bruising in the skin and muscles of her neck; hemorrhaging
in the thyroid cartilage of the neck; scratches on her neck consistent with
fingernail marks; and bruising under her jawbones, possibly due to strangulation
and possibly from blunt force injury. Her tongue was protruding and bitten
between her teeth, which was indicative of asphyxia. In addition, she had
hemorrhaging under her scalp, which was consistent with a blunt force trauma,
and she had ligature marks on her wrists.
Male DNA found in the vaginal swab from Ferguson‘s body was analyzed
by RFLP and PCR testing. Both analyses reflected that the DNA was consistent
with defendant‘s DNA. The combined frequency with which the results of these
two analyses would appear is one in 34,000 among Blacks, one in 154,000 among
Whites, and one in 8,500 among Hispanics.
A hair found on Ferguson‘s arm was similar to defendant‘s head hair.
Fibers found on her body were similar to the red acetate lining, the white nylon
insulation, and the white acrylic insulation of the sleeping bag in defendant‘s van.
A rope removed from her body and individual sisal rope fibers found on her body
were similar to a rope found in defendant‘s van. A paint chip found on her chin
was similar to paint chips found on a later victim, Carol Miller. On the edge of the
roadway in front of the area where her body was found were tire tracks from a
single vehicle that were consistent with an Armstrong Ultra Trac and a Yokohama
382, the types of tires defendant had on his van at the time of this murder.
e. Murder of Carol Miller
Carol Miller was last seen on February 6, 1990, on University Avenue in
the City of Riverside (Riverside), entering a small blue automobile with a White
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male. On February 8, 1990, her nude body was discovered in a grapefruit grove in
the Highgrove area of Riverside County. The cause of death was five antemortem
stab wounds to the chest, three of which penetrated her heart. She also exhibited
signs of asphyxia, including hemorrhaging in her eyes, eyelids, lips and gums.
The tissue that attaches the upper lip to the gum was torn, a condition that was
consistent with being struck in the face and also with struggling while being
smothered. There were ligature marks around her wrists.
Male DNA found in the vaginal swab from Miller‘s body was analyzed by
RFLP and PCR testing, and both analyses reflected that the DNA was consistent
with defendant‘s DNA. The combined frequency with which the results of these
two analyses would appear is one in 234,000 among Blacks, one in 1,000,000
among Whites, and one in 55,000 among Hispanics.
A shirt partially covered her face. A hair found on the shirt was similar to
defendant‘s head hair, and a hair found in her pubic area was similar to
defendant‘s pubic hair. Fibers found on the shirt were similar to the red acetate
lining, the white nylon insulation, and the blue nylon exterior of the sleeping bag
in defendant‘s van, and to the van‘s carpet and dark fabric on the van‘s seats.
Fibers found on the shirt and in her pubic area were similar to fibers in the rope
found in defendant‘s van. Paint chips on the shirt were similar to a paint chip
found on Darla Ferguson.
Tire track impressions consistent with Armstrong Ultra Trac tires and
Yokohama 382 tires were found near the body. Track widths — the distance
between two front tires or two back tires — of some of the tire impressions were
consistent with Armstrong Ultra Trac tires being on the front and Yokohama 382
tires being on the back of defendant‘s van, which was the location of the tires
when he purchased the Armstrong Ultra Trac tires.
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f. Murder of Cheryl Coker
Cheryl Coker was last seen by her husband on October 30, 1990, as she
walked to University Avenue in Riverside to engage in prostitution. On
November 6, 1990, her nude body was found in a dumpster located in an industrial
area of Riverside. The cause of death was ligature strangulation. On her neck was
a single thin ligature mark that was so deep in the front that it cut through the skin.
Fingernail marks on her neck were consistent with someone trying to grab the
ligature. Due to decomposition, the medical examiner could not identify petechial
hemorrhage, but the reddish-brown color of the eyes probably indicated
hemorrhaging. There was hemorrhage in the soft tissue under the ligature mark,
and there were bruises on her forearms and on the backs of her legs. Her right
breast had been excised postmortem, and was found approximately 30 feet away
from the dumpster.
RFLP testing on DNA on a used condom found near her feet reflected five
matches to defendant. The frequency of this combination of matches was one in
540 million Blacks, one in one billion Whites, and one in 150 million Hispanics.
Fibers from her pubic area were similar to the carpet in defendant‘s van and
to the rope found in his van. A hair from her pubic area was similar to defendant‘s
head hair.
Shoe impressions found in the vicinity of the dumpster could have been
made by a pair of ProWings tennis shoes owned by defendant.
g. Murder of Susan Sternfeld
Susan Sternfeld was last seen on December 19, 1990, at approximately 2:00
p.m., looking to ―turn a trick‖ on University Avenue in Riverside. On December
21, 1990, her nude body was found in an enclosure for a dumpster in an industrial
area in Riverside. The cause of death was strangulation. There were hemorrhages
9
in her eyes and eyelids and in the muscles of her neck, abrasions on her neck, and
a fracture in her larynx.
RFLP testing on DNA from a vaginal swab reflected five matches to
defendant. The matches were the same as found in the sample from the condom at
the Coker crime scene. As noted above, that DNA profile appears in one in 540
million Blacks, one in a billion Whites, and one in 150 million Hispanics.
Fibers found on the victim‘s body were similar to defendant‘s van‘s carpet,
upholstery, and seat fabric, the rope found in the van, and the red acetate lining of
the sleeping bag found in the van.
h. Murder of Kathleen Milne, also known as Kathleen Puckett
Kathleen Milne worked on University Avenue in Riverside. Her sister last
saw her on January 18, 1991. Her nude body was found the next day adjacent to a
dirt road in the Lake Elsinore area. The cause of death was asphyxiation due to
strangulation and obstruction of her airway by a white sock that had been stuffed
into her mouth. She had hemorrhages in her eyes, mouth, and neck, and a fracture
in her larynx.
RFLP testing on DNA from a vaginal swab reflected four matches to
defendant. The frequency of this combination of matches was one in 16 million
Blacks, one in 23 million Whites, and one in 13 million Hispanics.
A fiber from her hair was similar to the carpet in defendant‘s van. A tuft of
yarn recovered from the sock in her mouth was similar to fabric on the seats of
defendant‘s van. One of the tire impressions found off the roadway and in the
direction of her body was consistent with an Armstrong Ultra Trac tire, the type of
tire that was on defendant‘s van, and was also consistent with tire impressions at
the Leal, Ferguson, and Miller crime scenes.
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i. Murder of Sherry Latham
Sherry Latham worked on Main Street in Lake Elsinore. Her nude body
was found on July 4, 1991, in a field in the Lake Elsinore area. The cause of death
was strangulation. There was hemorrhaging in the muscles of her neck and a
fracture in her thyroid cartilage, but decomposition made it difficult to identify
other injuries.
A hair found on Latham was similar to hair from defendant‘s cat. Fibers
found on her were similar to the red acetate lining inside the sleeping bag in
defendant‘s van and fibers from a rope in defendant‘s van.
j. Murder of Kelly Hammond
Kelly Hammond was last seen on August 15, 1991, working on University
Avenue in Riverside. On the evening she disappeared, her friend, Kelly
Whitecloud, was also working as a prostitute on University Avenue. Whitecloud
entered a van that pulled up beside her, and the man inside agreed to pay her $20
for sexual services. Because Whitecloud was hungry, the driver first took her to a
McDonald‘s restaurant, and then they returned to his van. In the van, they argued
because he wanted to take her to ―the orchards‖ and she wanted to go to her motel
room. In addition, he said he would pay her only $10 because he had purchased
food for her. She told him she wanted to get out, but he refused to stop the van, so
she jumped out while it was moving. The van drove half a block farther and
picked up Kelly Hammond. Whitecloud yelled to Hammond not to go, but
Hammond left in the van and never returned.
Hammond‘s nude body was found on August 16, 1991, in an alleyway in
an industrial area of the City of Corona. Her body had been posed, with her face
down, her right arm under her abdomen, her left arm bent at the elbow with the
palm of her hand facing upward, her left leg drawn up into her chest area, and her
right leg extended outward. The cause of death was strangulation, with acute
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opiate intoxication also contributing. She had hemorrhages in her eyes and mouth,
lacerations on her forehead, and abrasions on her face. Abrasions on her wrist
were consistent with a restraint. A linear injury on the back of her neck and an
abrasion on the front of her neck could have been inflicted with a ligature. There
were four areas of hemorrhage that were caused by compression on her neck.
RFLP testing on DNA from a vaginal swab reflected two matches to
defendant. PCR testing on the DNA also reflected one match to defendant. The
frequency of the combination of the two matches from the RFLP testing and the
match from the PCR testing was one in 7,000 among Blacks, one in 18,000 among
Whites, and one in 4,000 among Hispanics.
A hair from Hammond‘s body was similar to hair from defendant‘s cat.
Fibers found on her body and in her hair were similar to fabric on the seats, fabric
in the upholstery, and the carpeting of defendant‘s van. A fiber from her body was
similar to the red acetate lining inside the sleeping bag in defendant‘s van.
At trial, the manager of the McDonald‘s restaurant identified defendant as
the man with Whitecloud the evening Hammond disappeared, and Whitecloud
identified defendant as the driver of the van that picked up Whitecloud and then
Hammond. Whitecloud described the van as ―bluish gray‖ with ―grayish‖
carpeting. She recalled that it had two ―captain‘s chairs‖ in front and one in back,
and something that looked like a Bible on the center console. When shown a
variety of vans by a police investigator the day after Hammond disappeared, she
identified an Astro model van as the most similar to the van she had seen. When
defendant was arrested in January 1992, he was driving a Mitsubishi van. The
manufacturer‘s description of the van‘s color was ―Ascot Silver,‖ and defendant‘s
ex-wife, Bonnie Ashley, described it as gray. In the van‘s glove box was a
―Notice to Appear‖ that had been issued to Kelly Marie Hammond a week before
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she was last seen alive. A black appointment book was found in the van, and two
captain‘s chairs were found in defendant‘s apartment.
k. Murder of Catherine McDonald
Catherine McDonald worked on University Avenue in Riverside. Her
daughter saw her for the last time on September 12, 1991, when she left their
apartment that evening, supposedly to go to the store. On September 13, her nude
body was found near a dirt road in a remote location in the Lake Elsinore area.
Her body was posed, with her legs spread apart, her feet together, and her arms
extended outward from her body. The cause of death was neck compression and
multiple sharp force injuries. There was hemorrhaging in her eyes, abrasions on
her neck, and a large cut wound on her neck that penetrated through the muscle,
the trachea, the left jugular vein, and the left carotid artery. There were three stab
wounds to her chest, two of which penetrated her heart. The stab wounds to the
chest and the wound to the neck were inflicted antemortem. There was bleeding
in the neck, separate from the bleeding associated with the neck wound, which
was evidence of compression to her neck. Her right breast had been excised
postmortem. There was a stab wound and four cut wounds to her genitalia; the
stab wound and two of the cut wounds were inflicted antemortem.
RFLP testing on DNA from a vaginal swab reflected one match to
defendant. That match would be found in one in 115 Blacks, one in 250 Whites,
and one in 119 Hispanics.
Fibers from McDonald‘s hair and body were similar to the red acetate
lining of the sleeping bag, the white nylon insulation of the sleeping bag, the
acrylic fabric of the gold pillow found in defendant‘s van, and fabric on the seats
in defendant‘s van. Hairs found in her pubic area and in her vagina were similar
to defendant‘s pubic hair. Hairs found in McDonald‘s head hair were similar to
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the hair on defendant‘s cat. A hair found in the back of defendant‘s van was
similar to McDonald‘s hair.
Tire impressions were found on the dirt road, and shoe impressions were
found in the immediate vicinity of her body. The shoe impressions could have
been made by a pair of Pro Wings tennis shoes owned by defendant. The tire
impressions were consistent with a Yokohama 382 tire on the right rear wheel and
Yokohama 371 tires on the front wheels. When defendant‘s van was impounded
in January 1992, a comparison of its front left tire, a Yokohama 371, was made
with a tire track left at the McDonald crime scene, and the features and wear
pattern were similar. The model of tire on the left rear wheel of the vehicle
associated with the impression at the crime scene was not identified before
defendant‘s van was impounded, but it was subsequently determined that the left
rear tire of his van, a Dunlop SP32J, could have made that impression at the
McDonald crime scene. The track width and the wheel base of the tire
impressions were consistent with a Mitsubishi van.
Defendant was employed by Riverside County as a stock clerk at the
county‘s supply warehouse. He usually worked and took breaks at the packing
table at the end of aisle 6. A box on a shelf at that packing table contained three
purses, one of which contained an identification card with the photograph of a
Black woman and the name McDonald on it.
l. Murder of Delliah Zamora, also known as Delliah Wallace
Delliah Zamora worked on University Avenue in Riverside. Her body was
found on October 30, 1991, near a freeway interchange in Riverside County. The
cause of death was strangulation. There were hemorrhages in her eyes, eyelids,
and neck, and abrasions on her neck, perhaps caused by fingernails. Her larynx
14
was crushed, an injury that requires ―an extreme amount of pressure.‖ PCR
testing of DNA from a vaginal swab reflected a match to defendant.
Fibers on her clothing were similar to the red acetate fibers in the lining of
the sleeping bag, a fiber from her wrist was similar to the sisal rope, and fibers
from her shirt and hair were similar to the gold pillow found in defendant‘s van.
In early November 1991, defendant gave his wife, Cheryl Suff, a blue
denim ―Levi‖ purse, telling her that his boss had found it. Cheryl did not want the
purse. Also in November 1991, he gave a blue denim ―Levi‖ purse to his
neighbor, Vivian Swanson, telling her it had been Cheryl‘s, but Cheryl no longer
wanted it. Sometime later in November, defendant gave Swanson a gold bracelet
he claimed he had purchased. The ―Levi‖ purse recovered from Swanson had
belonged to Zamora. The gold bracelet belonged to Zamora‘s niece, who had left
it at Zamora‘s house. Two rings found in defendant‘s wife‘s jewelry box had
belonged to Zamora.
In the supply warehouse where defendant worked, a small purse containing
citations issued to Zamora for prostitution and drug offenses was found in a box
hidden on a shelf under the packing table at the end of aisle 6, where defendant
typically worked. Another box on a shelf of the packing table at the end of aisle 6
contained three purses, one of which had belonged to Zamora and which contained
earrings that were hers. Zamora had a habit of carrying smaller purses inside a
larger purse. A blouse belonging to Zamora was found on a shelf of the packing
table at the end of aisle 7.
m. Murder of Eleanor Casares
Eleanor Casares worked on University Avenue in Riverside. Her sister last
heard from her in the morning on December 23, 1991. At approximately 1:00
p.m., her nude body was found near a dirt road in orange groves. The cause of
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death was strangulation. There were abrasions on her neck, hemorrhages in her
eyes and eyelids, a fracture in her thyroid cartilage, and a fracture and bleeding in
her hyoid bone. There was a stab wound in the middle of her chest, which also
would have been fatal. One of her breasts had been excised postmortem, and was
found approximately 40 feet from her body.
Human blood on a knife found in defendant‘s van was type A. A pinkish-
white substance, which may have been fatty tissue, on the knife was tested to
determine the type of its phosphoglucomutase (PGM) enzyme, and it was
determined to be a PGM type 2+1-. The blood and PGM types matched Casares‘s,
and did not match defendant‘s. This combination of blood type and PGM type
appears in 1.2 percent of the Black population, 1.8 percent of the White
population, and 1.9 percent of the Hispanic population. Additional DNA testing
reflected that the blood was consistent with Casares‘s and not with defendant‘s.
A hair from Casares‘s clothing was similar to defendant‘s head hair. Hairs
taken from her clothing and body were similar to defendant‘s pubic hair. Hairs
found on her body were similar to hairs from defendant‘s cat. Hairs in defendant‘s
van were similar to Casares‘s hair. Fibers on her clothing were similar to the
fibers of numerous items in defendant‘s van: the carpeting, a green blanket, the
gold pillow, the red acetate lining and white nylon insulation of the sleeping bag,
and the sisal rope.
Shoe impressions where Casares‘s body was found could have been made
by the Converse shoes defendant was wearing when he was arrested on January 9,
1992. Tire impressions at the location were consistent with the Yokohama 371
16
tire, the two Uniroyal Tiger Paw XTM tires, and the Dunlop SP32J tire on
defendant‘s van at the time he was arrested.3
Defendant gave the jeans that Casares was wearing on December 22, the
day before her body was found, to a cousin of one of his neighbors. He gave the
sweater she was wearing on December 22 to the agent who rented out apartments
in defendant‘s apartment complex. An identification card with a photograph of a
Mexican woman and with the name Casares on it was found in a purse in a box on
a shelf of the table where defendant usually worked.
On December 23, 1991, defendant had scratches on his face that were
―thick‖ and ―looked like claw-like marks.‖ During his interrogation on January
10, 1992, defendant admitted that on December 23, his van was on the avenue
next to the orange groves, he had left his shoe impressions in the orange groves,
and there was a body in the groves, but he denied putting the body there.
3 This final crime scene was the sixth at which tire impressions were found
that matched the types of tires defendant had previously purchased for his van. In
addition, the tire impressions at the various crime scenes matched each other.
More particularly, the Armstrong Ultra Trac impressions found at the Leal,
Ferguson, Miller, and Puckett crime scenes were consistent with each other, and
the Yokohama 382 impressions found at the Leal, Ferguson, Miller, and
McDonald crime scenes were consistent with each other. Also, the impression of
a Yokohama 382 tire at the McDonald crime scene, which was made more than 19
months after the earlier impressions, reflected a well-worn tire. Finally, tire
impressions at the McDonald and Casares crimes scenes matched the tires that
were on defendant‘s van when he was arrested. More particularly, a Yokohama
371 tire impression at the McDonald crime scene was consistent with the
Yokohama 371 on defendant‘s van, including excessive wear on the outside of the
tire; the Dunlop SP32J tire impression at the McDonald crime scene was
consistent with the Dunlop tire on defendant‘s van; and the Yokohama 371, the
Dunlop SP32J, and the two Uniroyal Tiger Paw XTM tire impressions at the
Casares crime scene were all consistent with the tires on defendant‘s van at the
time of his arrest.
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n. Defendant’s animosity toward prostitutes
In 1984, defendant told his brother, Robert Suff, that he hated prostitutes.
In August 1989, the 14-year-old daughter of the property manager at defendant‘s
apartment complex and some of her friends dressed up like ―Barbies,‖ and asked
defendant to judge who was the prettiest. Defendant said that the girls who were
wearing makeup looked like ―goddamn prostitutes.‖ On another occasion,
defendant became agitated about four women living with a man in the apartment
complex, and said the women were ―whores.‖ In 1990, when a friend of
defendant‘s stayed at his apartment for four to six weeks, defendant talked to her
about prostitutes almost every night, and he commented that they needed to be
killed because they were sluts. Defendant raised the subject of the ongoing
prostitute killings five or six times with James Dees, a correctional officer, who
came to the Riverside County supply warehouse to pick up supplies. In December
1991, defendant told Dees that he thought the person who was killing prostitutes
was ―going to clean the place up.‖
2. Defense case
Defendant impeached prosecution witnesses and presented evidence to
rebut various aspects of the prosecution‘s case. He also presented two experts
who challenged the probative value of the DNA evidence.
Defendant impeached various witnesses with prior convictions and
inconsistencies or omissions in their statements or in their recollections. For
example, in 1989, Jetmore told a detective that her assailant‘s belt buckle was
silver, and in 1992, she told a detective it was gold colored; in 1991, the manager
of the McDonald‘s said he could not remember the man who was with Whitecloud
the evening Hammond disappeared, but he identified defendant at trial; in 1992,
Whitecloud said she ―tumbled out‖ of the van and landed on her feet, not that she
18
fell on her stomach; and defendant‘s brother, Robert Suff, who testified for the
prosecution, had been convicted of a misdemeanor and three felonies.
Defendant presented evidence related to a wide variety of other points. For
example, his evidence reflected that on December 19, 1990, defendant‘s timecard
reflected that he worked from 7:00 a.m. to 4:30 p.m., hours that would have made
it difficult for him to have encountered Sternfeld, who was last seen around
2:00 p.m. that day; on July 2, 1990, the last time Latham‘s boyfriend saw her, she
was entering a black Nissan Maxima; on August 15, 1991, the day Hammond
disappeared, she was seen being picked up around midnight by a man in a blue
pickup truck; on December 23, 1991, the day Casares‘s body was found, a
waitress saw her get into a light blue truck with two young men at about 9:00 a.m.
on University Avenue in Riverside; on December 23, 1991, defendant was home
when Cheryl Suff woke up at 9:00 a.m. or 10:00 a.m., and she recalled telling a
detective that she thought she had defendant‘s van that day, but that she was not
certain she had it; defendant was nice to prostitutes, although he did not like
prostitutes who ―were chasing drugs 24 hours a day‖; and defendant‘s brother,
who testified that defendant had told him at Bonnie Ashley‘s house that he hated
prostitutes, may not have ever been at Ashley‘s house.
With respect to the physical evidence, defendant elicited testimony from a
prosecution expert that sisal fibers in general are very similar, and that if another
sisal rope were purchased, the expert probably would not be able to distinguish its
sisal fibers from the fibers at issue. In addition, testing to determine the PGM type
of semen found on vaginal swabs from the bodies of Ferguson, Puckett,
Hammond, and McDonald revealed PGM types that were consistent with these
victims‘ respective PGM types, and not consistent with defendant‘s PGM type, but
based on the low to moderate levels of sperm that were present in the swabs, it
19
was more likely that the PGM types discerned were from the victims‘ vaginal
secretions than from the sperm.
Defendant presented two witnesses who challenged the validity of the
prosecution‘s DNA statistics. Laurence Mueller, an expert in population genetics
and evolutionary biology, criticized the way in which the Federal Bureau of
Investigation (FBI) calculates the frequency of particular lengths of DNA
generated through RFLP testing. He stated that because frequencies vary among
subgroups of broader racial groups, calculating the frequency of a particular
combination of results based on the frequencies within a broad racial group will
result in an inaccurate answer. Using data from the Mayan population in Mexico
and the Surui population in Brazil, Mueller testified that a particular six-locus
match appears in one in 37 people in these populations, but the FBI‘s techniques
would generate a frequency of one in 96 million. He also testified that the FBI‘s
criteria for determining whether there is a match underestimates, in some cases,
the chance of finding a match.
Mueller stated that the National Research Council (NRC) has
recommended that the criteria be adjusted, but the FBI has not followed that
recommendation. He calculated the match probabilities following the NRC‘s
recommendations, and determined the following frequencies with which the DNA
matches in this case would appear: Ferguson, one in 40; Miller, one in 111;
Coker, one in 11,000; Sternfeld, one in 6,972; Puckett, one in 6,086; Hammond,
one in 50; and McDonald, one in 23.
John Gerdes, the clinical director of a company that matches organ donors
and recipients for transplants, described ways in which a sample may be
contaminated by the presence of more than one type of DNA. First, the sample
may begin with more than one source of DNA. Second, in the forensic setting,
DNA may be inadvertently transferred from one sample to another as the evidence
20
is manipulated. Third, when DNA is amplified to millions or billions of copies in
a laboratory, it becomes easy to contaminate the lab itself with DNA. He testified
that in a clinical laboratory, personnel aseptically collect a sample from a known
individual, but in his experience, forensic personnel are not trained as well in
aseptic technique. Also, a crime scene is not a sterile environment. In Gerdes‘s
view, contamination problems present an equal chance of false inclusion and false
exclusion, and until there are adequate controls to prevent such errors or to
identify how often they occur, PCR analysis should not be used in legal
proceedings. He noted that the NRC report states that in the context of mixed
donors, the analysis cannot identify a major donor and a minor donor.
3. Rebuttal
Bruce Budowle, a research scientist with the FBI, confirmed that there are
population substructures reflecting differences between subgroups. Studies have
been done comparing estimates of frequencies among all of the different databases
from around the world, and the data relating to different subgroups does not
produce substantially different estimates as long as the subgroups are within the
same major category. There may be special circumstances in which the subgroup
is an issue, such as an isolated native population in Brazil that does not travel
elsewhere, but if that group is not located where the crime was committed, it is
irrelevant. In Budowle‘s view, the report prepared by the NRC reflected poor
science. The report was not peer reviewed before it was published, and criticisms
began after its publication. With respect to Dr. Mueller‘s calculations, Budowle
stated that there is a one in 1,000 chance that two brothers will have five matches,
yet Dr. Mueller calculated the frequency of the five matches to defendant found in
the Coker and Sternfeld cases as one in 354. He stated that Mueller‘s calculation
―defies genetics and science.‖ He also stated that population genetics among fruit
21
flies, which is what Mueller studied, was different from population genetics
among humans, who historically have traveled more than fruit flies. In his view,
multiplying together the frequency estimation from the RFLP methodology and
from DQa results was reasonable. He described the FBI‘s procedures as reliable
and valid.
B. Penalty Phase Evidence
1. Prosecution case
The prosecution presented details concerning defendant‘s 1973 murder of
his baby daughter, evidence that he killed another prostitute in a different county
in 1988, evidence related to physical abuse of defendant‘s second baby daughter in
1991, and victim impact evidence.
With respect to the victims, evidence was presented that Catherine
McDonald was four months pregnant. In addition, 16 relatives of 10 of the murder
victims testified concerning the impact of the murders on them. (See post, II.C.1.)
Evidence concerning the 1973 death of defendant‘s two-month-old
daughter, Dijanet Suff, in Texas, for which defendant was convicted of murder,
reflected that the cause of death was blunt force trauma. Bruises covered most of
the front of the infant‘s body, and one injury was a human bite mark. There was
significant blunt force trauma to the head or severe shaking of the infant. A large
quantity of blood in the abdominal cavity indicated a massive injury within the
abdomen. Two ruptures of the liver would have required a great amount of force.
Multiple fractures to the ribs and a fracture of an arm bone were several weeks
old. An abrasion on one foot was consistent with a burn mark.
Evidence was presented that in January 1988, defendant killed Lisa Lacik,
who used drugs and worked as a prostitute in San Bernardino County. Lacik was
stabbed to death, and also suffered blunt force trauma to her forehead. In addition,
22
her right breast had been excised. In 1992, Connie Anderson, who saw Lacik get
into a vehicle with a man who had offered her $100, identified defendant in a
photographic lineup as the person who had picked up Lacik.
Evidence was also presented of physical abuse of defendant‘s daughter,
Bridgette Suff, who was born in July 1991. Defendant‘s wife, Cheryl, returned
home one evening in October 1991, when defendant had been caring for Bridgette,
and found that the child did not respond as she normally did, and did not open her
eyes. A nurse at a hospital advised Cheryl to bring the baby in, but defendant
refused, and Cheryl did not have a driver‘s license. The baby was admitted to the
hospital the next day. A review by a suspected child abuse and neglect (SCAN)
team determined that an ankle fracture was likely caused by nonaccidental trauma;
four of her ribs had been fractured two to three weeks earlier, and the fractures
were of a type consistent with someone grabbing Bridgette and shaking her; and
there was widespread swelling of her brain, which would be caused by a whiplash
type of injury, and was consistent with someone grabbing a baby and shaking the
baby violently. The injuries almost caused Bridgette to die. A houseguest saw
defendant, perhaps the weekend before Bridgette was hospitalized, pick Bridgette
up and shake her while yelling at her to shut up.
2. Defense case
Defendant presented evidence to raise doubt concerning his commission of
the Lacik killing and the abuse of Bridgette Suff. In addition, his mother testified
concerning his life, several witnesses testified about his childhood, and employers
and friends testified about his good qualities. The jury also heard about his
conduct while in county jail. Finally, an expert testified about prison life for those
who are sentenced to life without the possibility of parole, and concerning
defendant‘s adjustment to life in prison.
23
With respect to the Lacik killing, a detective testified that Connie Anderson
stated that ―she didn‘t get a really great look‖ at the man who picked up Lacik.
With respect to the abuse of Bridgette Suff, a police sergeant testified that
defendant‘s houseguest told him that Bridgette would crawl around and bump up
against things.
Defendant‘s mother testified that when defendant was 16 years old, his
father abruptly left the family without telling anyone he was leaving, and after he
left, he never wrote to them. Defendant helped with his four younger siblings and
also worked part time to help the family. After high school, he joined the Air
Force and moved to Texas. His girlfriend, Teryl, became pregnant while he was
away, but they married, and they gave the baby to defendant‘s mother to raise.
Thereafter, Teryl gave birth to a son and a daughter. When defendant returned to
California after serving 10 years in prison for murdering his daughter, he was
more withdrawn. Several other witnesses also testified concerning his childhood,
recalling that defendant‘s mother had little interest in her children, that defendant
took over the father role when his father left, and that defendant was a normal,
quiet high school student who did not appear to have any problems with girls.
Employers recalled defendant‘s excellent computer skills, and described
him as enthusiastic, friendly, likeable, and punctual. One couple who employed
him trusted him to pick up their child from school, and testified that defendant was
afraid of doing anything wrong and going back to jail. Defendant‘s supervisor at
the county warehouse recalled that he volunteered for social events and was very
mindful of his daughter Bridgette. Several people testified that defendant helped
them with work and personal chores.
During defendant‘s time in county jail, he had one ―disciplinary marker,‖
for possession of contraband — a safety pin, a paper clip, and a staple. A nurse at
24
the jail testified that he was always pleasant and polite, and that he spent his time
watching public television, reading, and writing a cookbook.
James Park, a prison expert, reviewed the grand jury transcripts and
defendant‘s Texas prison records, and interviewed defendant. He found defendant
to be an intelligent person who was realistic about his situation. Defendant did
well in the Texas prison system, with only two disciplinary incidents noted during
his 10 years, neither of which involved violence. He worked in prison, and also
obtained his associate and bachelor degrees. Park predicted that defendant ―would
be an excellent, conforming prisoner, nonviolent, will work as assigned, do what
he‘s told,‖ and Park did not expect any problems with defendant. If sentenced to
life without the possibility of parole, defendant would be placed in a level 4
maximum security prison. In Park‘s opinion, defendant would make an excellent
adjustment to prison. As a level 4 prisoner, his cell would be 60 or 80 square feet,
and he would be allowed to have a television, stereo system, and typewriter if he
purchased them. He would be allowed to work and to participate in hobbies, and
he could purchase personal items from the prison canteen. Defendant could earn a
lower security rating; of 1,576 life prisoners without the possibility of parole, 300
to 400 of them were in level 3 prisons, and two or three were in level 2 prisons.
Finally, Park testified that because defendant killed a baby and 12 women, he was
likely to be victimized in prison, and might require protective custody.
II. DISCUSSION
A. Pretrial Issues
1. Removal of public defender’s office as defendant’s counsel
Defendant contends that the trial court‘s removal of the Riverside County
public defender‘s office as his counsel violated his right to counsel under the Sixth
25
Amendment to the United States Constitution and article 1, section 15 of the
California Constitution.
In October 1992, less than nine months after defendant was arrested and
more than two years before defendant‘s trial commenced, the district attorney
moved to relieve the public defender as defendant‘s counsel, based upon a conflict
of interest arising from the public defender‘s prior representation of victims and
prosecution witnesses. The public defender had previously represented Rhonda
Jetmore, the victim of the count alleging attempted murder, and she was unwilling
to waive her attorney-client privilege. The public defender had also represented
18 potential witnesses in 56 matters, and 11 of these individuals executed
declarations stating they were unwilling to waive their attorney-client privilege.
Prior to filing his opposition, defense counsel indicated that discovery
would be necessary to enable the defense to evaluate these individuals‘
relationships to the public defender‘s office and to this case. The court responded
that the content of the witnesses‘ testimony was not relevant, and it would be
sufficient for the prosecutor to provide a list of potential witnesses, with their
addresses and telephone numbers. The court also rejected defendant‘s contention
that the prosecutor had no interest in who represented defendant and should not be
allowed to participate in the proceedings to relieve counsel.
In his written opposition, defendant asserted that the public defender‘s prior
representation of individuals who would be witnesses in the present matter did not
automatically give rise to a conflict of interest, absent a threatened disclosure of
confidential information. In addition, defendant‘s deputy public defender
executed a declaration stating that he had represented defendant for more than 10
months, their working relationship was ―close and harmonious,‖ defendant wished
counsel to continue representing him, and the Riverside County public defender‘s
office would not declare a conflict. The deputy public defender also informed the
26
court that he had not personally represented any of the individuals previously
represented by the public defender, with one exception — he had made one
appearance, not as the attorney of record, in connection with one individual‘s
failure to appear in court, he did not have contact with that individual, and he
recalled no information about the case. Finally, the deputy public defender was
not aware of any confidential information relating to the prior representations, and
the defense would not use any confidential information. In the event the court
found a conflict, defendant urged the court to consider measures other than
disqualification of the public defender‘s office, such as appointing another
attorney to conduct cross-examination of former clients of the public defender‘s
office.
The trial court relieved the public defender, and selected the county‘s
conflicts panel to represent defendant. The court took judicial notice of the
exhibits and the case files in prior criminal actions, and concluded that ―38 current
and former [deputy] public defenders represented all these individuals in various
cases . . . . At least 25 of those are current [deputy] public defenders in the
office.‖ It also observed that the individual who was the acting public defender
until two days prior to the hearing had made appearances in the prior actions, and
that the wife of that acting public defender (1) had been counsel in one of the prior
actions and (2) had been one of defendant‘s counsel until two days prior to the
hearing. The court concluded that there had been ―confidences, numerous and
replete, by the public defender‘s office with these various potential witnesses.‖
With respect to defendant‘s willingness to waive any conflicts, the court observed
that Jetmore and other witnesses were unwilling to waive conflicts with respect to
their prior representation by the public defender. The court stated that there was
an actual conflict of interest, and ―a potential conflict of interest that is so replete,
so staggering, that I think I would be remiss in not granting the motion.‖
27
Defendant contends the trial court abused its discretion in finding a conflict
of interest, because the court did not determine that relevant confidential
information existed or that defense counsel was privy to any confidential
information that could be used by the defense. He also contends that the trial court
abused its discretion by rejecting less drastic remedies, such as appointing separate
counsel for the limited purpose of cross-examining witnesses who previously had
been represented by the public defender, and by refusing to accept his offer to
waive any conflict. Finally, he asserts that the trial court abused its discretion in
allowing the prosecutor to participate in the disqualification proceedings, and the
prosecutor‘s actions constituted prosecutorial misconduct. As explained below,
we find no abuse of discretion in the trial court‘s decision to disqualify the public
defender‘s office and, in any event, any error was harmless.
A trial court has inherent authority to ―[t]o control in furtherance of justice,
the conduct of its ministerial officers, and of all other persons in any manner
connected with a judicial proceeding before it, in every matter pertaining thereto.‖
(Code Civ. Proc., § 128, subd. (a)(5).) This power ―authorizes a trial court . . . to
discharge an attorney who has a conflict of interest.‖ (People v. Noriega (2010)
48 Cal.4th 517, 524 (Noriega).) Generally, a trial court‘s decision to disqualify an
attorney is subject to review for an abuse of discretion. (In re Charlisse C. (2008)
45 Cal.4th 145, 159 (Charlisse C.)
The trial court took judicial notice of the numerous cases in which the
public defender‘s office had represented witnesses in this case, and it determined
that relevant confidential information existed, stating that there were ―confidences,
numerous and replete‖ with respect to the former clients of the public defender‘s
office, there was an actual conflict of interest, and there was ―a potential conflict
of interest that is so replete, so staggering, that I think I would be remiss in not
granting the motion.‖ Defendant does not contend that the court‘s determinations
28
are unsupported by substantial evidence. (See People ex rel. Dept. of
Corporations v. Speedee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1143
[―the reviewing court should not substitute its judgment for the trial court‘s
express or implied findings supported by substantial evidence‖].)
To the extent defendant focuses on the knowledge of the particular deputy
public defender assigned to represent him, his challenge relates to the
disqualification of the entire public defender‘s office. The trial court did not have
the benefit of the analysis set forth in Charlisse C., supra, 45 Cal.4th 145, which
requires the trial court to consider what screening measures or structural
safeguards could protect the former clients‘ confidences, and places on the
defendant the evidentiary burden to show that confidential information can be
screened within the public defender‘s office. (Id. at pp. 161-166.) Nonetheless,
the trial court inquired of defense counsel what measures could be taken short of
recusal of the public defender‘s office. In response, defense counsel proposed
allowing defendant to waive the conflict and appointing outside counsel to cross-
examine witnesses who had previously been represented by the public defender‘s
office. It also appears that the trial court considered whether defendant‘s counsel
would become privy to the confidences held by others in the office. The court
noted not only the large number of prior cases involving potential witnesses and
the numerous deputy public defenders who had been involved in those cases, but
also the fact that the individual who was the acting public defender until two days
before the hearing had been involved in the defense of the prior criminal actions in
which confidences were gained, and that the wife of the individual who had been
the acting public defender had been one of defendant‘s counsel until two days
earlier. (See id. at pp. 163-164 [where the attorney with a conflict has
supervisorial or policymaking responsibilities, it is more difficult to isolate an
attorney serving under them from information and influences].)
29
In light of the extraordinary number of witnesses and deputy public
defenders relevant to the disqualification motion, the trial court‘s finding that the
potential conflict of interest was ―staggering,‖ and the early stage in the
proceedings at which disqualification was sought, we find no abuse of discretion
in the trial court‘s action in disqualifying the entire office and not appointing
separate counsel to cross-examine the numerous witnesses who had previously
been represented by that office. For the same reasons, we conclude that the trial
court did not abuse its discretion in rejecting defendant‘s offer to waive the
conflict. (See Wheat v. United States (1988) 486 U.S. 153, 162-163 [―likelihood
and dimensions of nascent conflicts of interest are notoriously hard to predict‖;
trial courts ―must be allowed substantial latitude in refusing waivers of conflicts of
interest‖]; People v. Jones (2004) 33 Cal.4th 234, 240-241.)
In any event, assuming the trial court‘s procedure did not adequately
consider ways to screen defendant‘s counsel or other alternatives to
disqualification, as we subsequently prescribed in Charlisse C., supra, 45 Cal.4th
145, or that the decision was otherwise flawed, defendant has not undertaken to
establish that replacement of his counsel altered the outcome of the trial.
Accordingly, ―[h]e has not shown a reasonable probability (see Noriega, supra, 48
Cal.4th at p. 525) or possibility (see People v. Brown (1988) 46 Cal.3d 432, 447)
that the jury would have reached a different verdict at either the guilt or the
penalty phase of the trial had the public defender‘s office continued to represent
him.‖ (People v. Thomas (2012) 54 Cal.4th 904, 924.)
With respect to defendant‘s state constitutional right to counsel (Cal.
Const., art. I, § 15), ―a trial court does not violate a defendant‘s right to counsel
under the state Constitution when it ‗removes a defense attorney because of a
potential conflict of interest.‘ ‖ (Noriega, supra, 48 Cal.4th at p. 524.) As noted
above, the trial court concluded that the potential conflict of interest was
30
―staggering.‖ Therefore, the trial court‘s removal of the public defender as
defendant‘s counsel in this matter did not violate defendant‘s state constitutional
right to counsel.
With respect to defendant‘s rights under the federal Constitution, ― ‗[t]he
right to counsel of choice does not extend to defendants who require counsel to be
appointed for them.‘ (United States v. Gonzalez-Lopez [(2006)] 548 U.S. [140,]
151, italics added.)‖ (Noriega, supra, 48 Cal.4th at p. 522.) The ―replacement of
one appointed attorney with another does not violate a defendant‘s constitutional
right to effective assistance of counsel unless replacement counsel‘s representation
‗ ―was deficient when measured against the standard of a reasonably competent
attorney and . . . this deficient performance caused prejudice in the sense that it ‗so
undermined the proper functioning of the adversarial process that the trial cannot
be relied on as having produced a just result.‘ ‖ ‘ ‖ (Id. at p. 522.) Defendant does
not attempt to show that his new counsel was deficient. Therefore, he has failed to
establish a violation of his right under the Sixth Amendment to the effective
assistance of counsel. (Id. at pp. 522-523; see Thomas, supra, 54 Cal.4th 908,
923-924.)
Independent of the merits of the disqualification, defendant claims that the
trial court abused its discretion in allowing the prosecutor to participate in the
proceedings to disqualify the public defender. In the trial court, defense counsel
asserted that the prosecutor should not be a party to the process of determining
whether defense counsel should be disqualified, questioned whether the prosecutor
should be served with defendant‘s responding points and authorities, and
requested that the defense be allowed to respond in camera. He also complains
that by placing the burden on the prosecutor to establish that disqualification was
appropriate, the trial court gave the prosecution the last word on the issue and did
not allow defendant to respond further. Defendant attempts to analogize the
31
disqualification process to a Marsden proceeding (People v. Marsden (1970) 2
Cal.3d 118), stating that the only substantial difference is that in a Marsden
proceeding, it is the defendant who seeks to remove his or her own counsel. But
unlike a Marsden proceeding, in which privileged information may be revealed to
establish the reasons the defendant seeks the removal of counsel, the motion to
disqualify the public defender‘s office concerned that office‘s relationship to
individuals other than defendant; the disqualification proceeding did not require
the disclosure of any privileged information. The trial court did not abuse its
discretion in allowing the prosecutor to participate in the proceedings.
Finally, defendant contends that the prosecutor was overly aggressive in
pursuing the disqualification of the public defender‘s office, and that various
actions the prosecutor took were inappropriate. He asserts, for example, that the
prosecutor persuaded witnesses that the public defender‘s office would be required
to breach a nonexistent privilege, that he gave legal advice to witnesses and
asserted their attorney-client privilege, thereby creating a conflict between their
interests and ―his duties to see that justice was done,‖ and that he claimed he
intended to present various witnesses and subsequently stated that he was not sure
if he would present them.
Defendant asserts that the prosecutor‘s actions ―infected [defendant‘s] trial
with such unfairness as to make the conviction a denial of due process in violation
of both the federal and state Constitutions.‖ (See People v. Maciel (2013) 57
Cal.4th 482, 541 [prosecutorial misconduct includes conduct that infects the trial
with such unfairness as to violate the right to due process].) Although defense
counsel expressed concern in the trial court that the prosecutor had contacted
clients of the public defender‘s office and was seeking affidavits from those
individuals without giving notice to the public defender, and raised the possibility
that some of those individuals had waived their privileges by discussing matters
32
with the prosecutor, no objection of prosecutorial misconduct was made.
Therefore, this claim has been forfeited. (People v. Boyette (2002) 29 Cal.4th 381,
432; People v. Jones (1991) 53 Cal.3d 1115, 1144.) In any event, although the
prosecutor‘s actions may have contributed to the disqualification of the public
defender, it does not appear they had any other effect on the subsequent
proceedings. Thus, the prosecutor‘s actions did not infect the trial itself with
unfairness.
2. Denial of defendant’s motion for a change of venue
Defendant contends the trial court‘s denial of his motion for a change of
venue violated his rights to due process and to a fair trial by an unbiased jury
under the Fifth, Sixth, and Fourteenth Amendments to the United States
Constitution and article I, sections 7, 15, and 16 of the California Constitution.
In December 1994, approximately two months before trial, defendant filed
a motion for a change of venue. He asserted that ―[t]hese alleged crimes have
engendered community shock, fear and indignation,‖ and ―[t]he publicity has
made the members of the community so aware of the alleged circumstances that
an impartial jury cannot be obtained.‖ He stated that potential jurors had been
exposed to information in the media that would not be admissible, at least at the
guilt phase of trial. According to a public opinion survey conducted between
November 8 and November 22, 1994, during which 396 residents of Riverside
County were interviewed, 73.2 percent of the sample recognized this case, and
66.9 percent of that 73.2 percent (49 percent of the sample) thought defendant was
―definitely guilty‖ or ―probably guilty.‖ In addition, 47.6 percent of the sample
was aware of defendant‘s prior conviction for murdering his child.
In January 1995, the court heard testimony from defendant‘s expert,
Edward Bronson, a professor of political science, concerning the likelihood that
33
defendant could receive a fair trial in Riverside County. Based on the opinion
survey of residents of the county, analysis of media coverage related to the case,
and consideration of other factors, including the gravity of the crime and the status
of defendant and the victims, he concluded there was a reasonable likelihood
defendant could not receive a fair and impartial trial in Riverside County.
Bronson focused on newspaper articles, because he found that the
television coverage ―simply reflects what‘s found in the newspaper publicity, but
in a far less comprehensive way.‖ 4 He testified that there was ―a flood of
publicity,‖ but also that ―the major articles were [in] the earlier period, going back
primarily to 1992, and then also to 1991.‖ With respect to the ―emotional‖ or
―inflammatory‖ aspects of the coverage, he counted 265 references to ―serial
killer‖ in ―the first half of the publicity.‖ He also noted references to nude bodies,
sexual mutilation, bite marks, semen found on all 19 bodies,5 and the posing of
some bodies in lewd positions, and stated that the reporting on bite marks was
troubling because there was some reference to the presence of bite marks on the
child killed by defendant in Texas. He also focused on terms and phrases such as
―grisly,‖ ―gruesome,‖ and ―reign of terror‖ as evidence of the inflammatory
character of the coverage. With respect to publicity concerning inadmissible facts,
Bronson noted that the district attorney had declined to state whether defendant
had confessed, and Bronson asserted that if there was no confession, the district
4 He reviewed articles from local newspapers such as the Press-Enterprise, as
well as articles from the Los Angeles Times, the Orange County Register, the San
Diego Union-Tribune, and USA Today.
5 The press reported that 19 women had been identified by Riverside County
authorities as victims of a serial killer who preyed on prostitutes and drug abusers.
The tally began with an October 1986 homicide, and the 19th victim was Eleanor
Casares. Defendant was prosecuted for 13 of these homicides.
34
attorney‘s statements declining to state whether there was a confession were
prejudicial. He also noted the coverage of defendant‘s prior murder conviction,
which included graphic descriptions of the child‘s injuries. It had also been
reported that defendant was ―cold‖ and had ―no remorse,‖ that he and his former
wife were ―animals,‖ and that jurors in the prior case believed he tortured his
daughter to death. There was also reporting on the fact that in October 1991,
defendant‘s three-month-old daughter had been beaten almost to death.
Bronson asserted that the news coverage ―makes it remarkably clear that
the evidence is overwhelming in this case.‖ He noted statements by criminal
justice officials that indicated defendant was guilty. He acknowledged that there
was also exculpatory reporting, such as statements that defendant was not linked
to some killings. He added, however, that the positive coverage defendant
received, such as the fact that he participated in chili-cooking contests, was
presented as evidence that he enjoyed attention. Similarly, the media linked
defendant‘s work as an Air Force medic to serial killers‘ lack of abhorrence to
blood.
Bronson also reviewed characterizations of defendant in the media,
including references to his being a ―murderer,‖ a ―convicted child killer,‖ a
―monster,‖ and an ―animal.‖ Articles reported on his ―very violent temper,‖ and
used terms such as ―volcanic‖ and ―explosive.‖ He was called ―a new Antichrist,‖
and his ex-wife was quoted as saying, ―he should rot in hell.‖ His father was
quoted as saying it was ―a big mistake to release him from prison,‖ and that
neither parent planned to visit him. Bronson stated that although the victims were
―on the margins of society,‖ the media reflected a ―redemptive process‖ through
its reporting on their families and their struggles.
The court disagreed with Bronson‘s conclusion concerning the likelihood
defendant could receive a fair trial in Riverside County, but acknowledged the
35
extensive publicity the case had received, and therefore decided not to make a
final ruling on defendant‘s motion until a jury was impaneled. The court also
stated that it would examine the questions that would be asked on the juror
questionnaire regarding publicity, and would increase the amount of time counsel
would be allowed to question prospective jurors.
In March 1995, after both sides declined to exercise further peremptory
challenges and accepted the panel, defendant requested that the court revisit his
motion for a change of venue. According to defense counsel‘s review of the juror
questionnaire responses, approximately one-third of the prospective jurors
responded that they knew nothing or recalled nothing of the case. Because
approximately two-thirds of prospective jurors recalled, in varying degrees, the
events underlying the charges, defense counsel concluded defendant could not
receive a fair trial in Riverside County. Counsel explained that he exercised only
10 of his 20 peremptory challenges because the prosecutor had exercised only
seven peremptory challenges, and ―we decided at a certain point in time that the
mix was as good as we were going to get.‖
The court noted that it had allowed unlimited confidential voir dire of any
prospective juror who ―expressed any knowledge about the case to any extent
other than ‗Yes,‘ and then the press or TV.‖ It stated that, among the 12 jurors and
eight alternates, six wrote on their questionnaires that they knew nothing of the
case, and four had limited knowledge of the case.6 The court concluded defendant
6 The six jurors who indicated on their juror questionnaires that they knew
nothing of the case before coming to court were Jurors Nos. 2, 4, 9, and 11 and
Alternate Jurors Nos. 2 and 8. Juror No. 2, however, stated during voir dire that
―[a]fter going through and answering these questions . . . , I started vaguely
remembering the case as it had happened several years prior to that.‖ She added
that she did not remember much of what she read, ―[j]ust vaguely that they kept
finding these girls‘ bodies.‖
(footnote continued on next page)
36
(footnote continued from previous page)
The four jurors described by the court as having limited knowledge of the
case were Jurors Nos. 3, 6 and 8, and Alternate Juror No. 7. Juror No. 3 wrote that
she had ―skimmed the initial article‖ in the Press-Enterprise. Juror No. 6 wrote
that she read about the case in the Press-Enterprise, and that ―I don‘t remember
what I read in paper. I think it was several years ago.‖ Juror No. 8 wrote that she
did not remember whether she had seen or heard anything about the case.
Alternate Juror No. 7 wrote that he ―[p]robably read about it in local papers but
didn‘t give it much attention. I lived in Ohio until 1992.‖
The other 10 jurors and alternates responded on the questionnaire as
follows: Juror No. 1 wrote that he had read some articles in the Press-Enterprise
regarding the murders, the case, and defendant‘s arrest, but he had no thought
concerning the truth or falsity of the charges, explaining that ―I was not able to
read enough information.‖ Juror No. 5 wrote that he read about the case in the
newspaper, but ―didn‘t pay that much [attention] to the articles.‖ Juror No. 7
wrote that she heard about the case on television, and could disregard anything
that she had heard. Juror No. 10 wrote that she had not seen or read ―very much‖
about the case, and added that someone at her place of employment had ―said a
few things about what they had found in the van.‖ She also wrote that she had
―not followed this case enough to have thoughts either way‖ about the truth or
falsity of the charges. Juror No. 12 wrote that he ―heard [defendant] worked for
County of Riverside on the news shortly after arrest,‖ and that he had no thoughts
about the truth or falsity of the charges. Alternate Juror No. 1 wrote that he heard
about the case from ―[o]n and off again reports in the ‗Press-Enterprise‘ . . . .
Most coverage when arrest first made.‖ With respect to whether he had any
thoughts about the truth or falsity of the charges, he wrote, ―Have not read any
proof of evidence findings in news accounts.‖ Alternate Juror No. 3 wrote that she
heard about the case from friends, family, and coworkers, that she did ―not
particularly‖ have any thoughts concerning the truth or falsity of the charges, and
that her ―friends/family are not always an accurate source‖ of information.
Alternate Juror No. 4 wrote that she heard about the case in the newspaper and on
television, and ―[o]n the surface, my reaction is [defendant is] guilty.‖ Alternate
Juror No. 5 wrote that she heard defendant‘s name and of the accusations through
her employment at the sheriff‘s department, and that she had not ―given it any
consideration in any way‖ whether the charges were true or false. Alternate Juror
No. 6 wrote that he had read about the case in a newspaper, and did not have any
thought concerning the truth or falsity of the charges.
37
could receive a fair trial in Riverside County and from the jury panel selected, and
denied the motion for a change of venue.
―[T]he court shall order a change of venue: [¶] . . . when it appears that
there is a reasonable likelihood that a fair and impartial trial cannot be had in the
county.‖ (§ 1033, subd. (a).) ―The phrase ‗reasonable likelihood‘ in this context
‗means something less than ―more probable than not,‖ ‘ and ‗something more than
merely ―possible.‖ ‘ ‖ (People v. Proctor (1992) 4 Cal.4th 499, 523.) ―On appeal
from the denial of a change of venue, we accept the trial court‘s factual findings
where supported by substantial evidence, but we review independently the court‘s
ultimate determination whether it was reasonably likely the defendant could
receive a fair trial in the county. . . . [A] defendant challenging the court‘s denial
of a change of venue must show both error and prejudice, that is, that it was not
reasonably likely the defendant could receive a fair trial at the time of the motion,
and that it is reasonably likely he did not in fact receive a fair trial.‖ (People v.
Rountree (2013) 56 Cal.4th 823, 837.) ―Both the trial court‘s initial venue
determination and our independent evaluation are based on a consideration of five
factors: ‗(1) nature and gravity of the offense; (2) nature and extent of the media
coverage; (3) size of the community; (4) community status of the defendant; and
(5) prominence of the victim.‘ ‖ (People v. Leonard (2007) 40 Cal.4th 1370,
1394.)
With respect to the first factor, the 13 murder charges and the attendant
special circumstance allegations weighed in favor of a change of venue, but the
nature and gravity of the offenses is not dispositive. As we noted in People v.
Farley (2009) 46 Cal.4th 1053 (Farley), ―on numerous occasions we have upheld
the denial of change of venue motions in cases involving multiple murders.‖ (Id.
at p. 1083; see, e.g., People v. Ramirez (2006) 39 Cal.4th 398, 407, 434-435 [13
counts of murder].)
38
Addressing the second factor, post, the last three factors did not weigh in
favor of a change of venue. Given Riverside County‘s population, as of January 1,
1994, of 1,357,000, the size of the community was a neutral factor. (See People v.
Anderson (1987) 43 Cal.3d 1104, 1131 [the size of the community was a neutral
factor when Riverside County‘s population was 600,000]; see also People v. Kelly
(1990) 51 Cal.3d 931, 955 [―The community, Riverside County, is large and
diverse‖].) Defendant‘s contention that the dispersal of this large population
through much of the county, resulting in only two cities with populations greater
than 100,000 and perhaps a sense of small-town life in many areas of the county,
does not alter our conclusion. ―When, as here, there is a ‗large, diverse pool of
potential jurors, the suggestion that 12 impartial individuals could not be
empanelled is hard to sustain.‘ ‖ (People v. Famalaro (2011) 52 Cal.4th 1, 23
(Famalaro); see People v. Coffman and Marlow (2004) 34 Cal.4th 1, 45 [rejecting
relevance of argument that state‘s fourth most populous county ―is like a
collection of small towns‖].) With respect to defendant‘s status in the community,
defendant conceded in his motion that he ―has never been a prominent or highly-
visible member of the community.‖ With respect to the victims‘ prominence, they
―were prostitutes. Although they could be seen as especially vulnerable, they [did]
not occupy an elevated position in society.‖ (People v. Jennings (1991) 53 Cal.3d
334, 363.)
Finally, we consider the second factor, the nature and extent of the media
coverage. Newspaper articles submitted by defendant include two from 1988,
three from 1989, and three from 1990, each reporting on the discovery of female
human remains, with two articles referencing the possibility of a serial killer.
Sixty-two articles published in various newspapers in 1991 increasingly referred to
a serial killer, and began tallying the number of victims with each discovery of
another body, which ended in December 1991 with a count of 19 victims. Articles
39
in 1991 also reported on the increase in law enforcement personnel assigned to the
investigation, and referred to a killer ―stalking local valley communities,‖
―giv[ing] Lake Elsinore [a] bad image,‖ and ―bring[ing] urban realities to Lake
Elsinore.‖ On New Year‘s Day, 1992, it was reported that Riverside‘s 42
homicides in 1991 set a record high, almost double the number of homicides in
1990.
Defendant was arrested on January 9, 1992. Media coverage was extensive
through mid-January, and then began to decline. On January 13 and 14, 1992,
articles regarding defendant‘s detention on a parole violation referred to his being
a suspect in 19 killings. Some of the articles referred to reports that defendant had
been detained ―during a ‗transaction‘ with a prostitute‖ and had confessed to some
of the killings. Some noted that defendant had been convicted in Texas of beating
his two-month-old daughter to death, and had been paroled after serving 10 years
of a 70-year sentence.
On January 15, it was reported that defendant had been charged with two
killings, and was suspected in 19 murders. Articles included details of the beating
death of his daughter, the Texas prosecutor‘s characterization of defendant as an
―animal,‖ and statements from defendant‘s lawyer in the Texas prosecution that
the lawyer saw no remorse in defendant in that prior case. A juror in the Texas
case described ―horrifying‖ details that led the jury to believe defendant ―tortured‖
his daughter to death, and characterized defendant as ―cold‖ and lacking remorse.
There was information linking defendant‘s van‘s tires to tire tracks at some of the
crime scenes, and statements by law enforcement officials that the evidence was
―strong,‖ ―primarily scientific,‖ and might involve DNA testing. It was also
reported that defendant appeared in court with his hands shackled, had failed to
report annually to the Texas parole board, and was not monitored by Texas
officials due to a ―computer glitch.‖ A neighbor of defendant‘s was quoted as
40
saying that defendant went out at ―strange hours,‖ and that when defendant
answered his door on December 21, 1991, he was ―all shaken up‖ and had
scratches on both sides of his face. Prominent serial killers as well as serial
killings under investigation were noted in connection with press coverage of the
crimes.
On January 16, 1992, it was reported that defendant and his wife lost
custody of their three-month-old daughter the previous October due to a ―near
fatal beating,‖ and that defendant had been interrogated concerning the abuse, but
no charges had been filed. It was also reported that he was linked to 13 rather than
19 killings. Reports on January 17 added that defendant kept copies of news
articles about the murders, was ―prone to rages directed at his wife and often was
out late at night.‖ On January 18, defendant was ―recalled as violent,‖ and it was
reported that police hoped to link him to 19 murders. On January 19, one article
explored why people are ―transfixed by serial killers,‖ and a second article stated
that ―[t]he bizarre and gruesome circumstances [in this case] fit a classic profile of
other serial killing cases.‖ Two days later, an article about defendant‘s first wife
revealed that ―their marriage was filled with violence, hatred, and murder.‖ Over
the remainder of January 1992, it was reported that a second inquiry into the
October 1991 beating of defendant‘s child had ended due to a lack of evidence
concerning who harmed the child; the police stated that defendant was a suspect in
two additional murders, but reports that 13 killings had been attributed to him
were unsubstantiated; defendant‘s parents were stunned by the allegations; and a
couple with whom defendant had lived questioned his guilt.
Coverage continued to decline after January 1992. In February, the press
reported that defendant‘s arraignment had been delayed, new charges were
expected, the case would take years and cost the county millions of dollars, the
prosecution was likely to seek the death penalty, defendant‘s counsel might have a
41
conflict, and defendant had pleaded not guilty to two killings. There were also
articles about flaws in the county‘s system of checking for criminal backgrounds
of employment applicants, various events that led to defendant‘s arrest,
defendant‘s congenial attitude toward friends and coworkers, and the public‘s
fascination with mass killings. Fewer articles appeared in March, and most
addressed routine court appearances. It was also reported that another body had
been discovered, and that the police had determined the killing was not related to
19 other killings. An article in June stated that ―scientific tests linked‖ defendant
to 15 more deaths. At the end of July, the grand jury‘s indictment of defendant on
14 counts of murder and the crimes against Rhonda Jetmore was reported.
Articles included information about evidence linking defendant to the crimes and
the condition of some of the bodies when they were discovered. Finally, it was
reported that the task force investigating serial killings had been disbanded
following the indictments.
Thereafter, coverage was sporadic. Defendant‘s expert‘s media log
identifies only two more articles in 1992, four in 1993, and 13 in 1994.7 The
articles covered court events, such as defendant‘s plea, the denial of a suppression
motion, and the setting of a trial date. They also addressed DNA testing that was
performed to evaluate whether defendant was connected to another homicide; the
prosecution of defendant‘s brother for child molestation; the arrest of the lead
Riverside Police Department detective assigned to the homicide task force for
7 Defendant‘s expert testified that the log listed ―all the newspaper articles
that I was furnished,‖ but he added that he was certain he did not have all the
articles, and also that some of the articles were duplicates that varied only in the
headline and publication in which they appeared.
42
receiving stolen property; and the murder of an actress who was cast as a prostitute
in a film that mentioned defendant.
The reporting was largely factual, and most of the coverage referred to
evidence that was ultimately admitted at trial. (See Farley, supra, 46 Cal.4th at
p. 1083.) In addition, many of the media terms characterized by defendant‘s
expert as ―emotional‖ and ―prejudicial‖ reflected the facts of the case, such as
statements referring to a ―serial killer‖ and to victims‘ being stabbed, strangled,
suffocated, bludgeoned, tortured, mutilated, and dumped. ―Media coverage is not
biased or inflammatory simply because it recounts the inherently disturbing
circumstances of the case.‖ (People v. Harris (2013) 57 Cal.4th 804, 826.)
Although ―press coverage need not be inflammatory to justify a change of venue‖
(Farley, supra, at p. 1084), something more than sensational facts has been present
in cases in which a change of venue was required. (See ibid.) Here, relative to the
nature and extent of media coverage, there are no factors weighing in favor of a
change of venue other than the sensational facts of the case. In contrast, in
Daniels v. Woodford (9th Cir. 2005) 428 F.3d 1181, 1210-1212, on which
defendant relies, extensive publicity shortly before the trial turned the two police
officers whom the defendant had murdered into ―posthumous celebrities.‖ A
stadium was named after one of the victims, and both were the focus of media
coverage of the unveiling of a memorial to fallen officers across the street from the
courthouse. In addition, the public reacted passionately to the murders;
approximately 3,000 people attended the funerals, and editorials and numerous
letters to the editor advocated execution. In this case, media interviews with the
families of the victims did not similarly transform the victims into celebrities or
heroes.
The passage of time from the early intense media coverage diminished the
potential for prejudice. In People v. Ramirez, supra, 39 Cal.4th 398, in which the
43
media coverage was described by the trial court as ― ‗saturation, as much as they
possibly can give,‘ ‖ we observed that ―the passage of more than a year from the
time of the extensive media coverage served to attenuate any possible prejudice
. . . .‖ (Id. at p. 434.) In People v. Lewis (2008) 43 Cal.4th 415, many media
reports used inflammatory terms, and some revealed inadmissible facts such as the
defendant‘s prior incarceration, his gang affiliations, and his codefendant‘s
confession, as well as prejudicial information concerning his status as a suspect in
other offenses and his confessions to several charged murders. In rejecting his
claim that a change of venue was required, we noted that ―[m]ost of the coverage
— and nearly all of the potentially inflammatory coverage — occurred . . . nearly
a year before jury selection occurred.‖ (Id. at p. 449.) Here, nearly three years
passed from the intense coverage in the first few months after defendant was
arrested until the time of trial.
Although most of the jurors selected to serve had some familiarity with the
facts of the case, ―the circumstance that most of the actual jurors have prior
knowledge of a case does not necessarily require a change of venue. (See, e.g.,
People v. Davis [(2009)] 46 Cal.4th 539, 580 [all 12 jurors with prior knowledge
of the case]; People v. Ramirez, supra, 39 Cal.4th 398, 434 [11 jurors with prior
knowledge of the case]; People v. Bonin (1988) 46 Cal.3d 659, 678, overruled on
other grounds as recognized in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1,
[10 jurors exposed to media coverage of the case]; People v. Leonard, supra, 40
Cal.4th at pp. 1396-1397 [eight jurors with prior knowledge of the case].) ‗The
relevant question is not whether the community remembered the case, but whether
the jurors . . . had such fixed opinions that they could not judge impartially the
guilt of the defendant.‘ ‖ (Famalaro, supra, 52 Cal.4th at p. 31.) Here, all
prospective jurors were asked to respond to questions concerning their knowledge
of the case and their reaction to any information they had received. They were
44
also asked whether they had developed a positive or negative reaction about
anyone involved in the case, whether they had any thoughts concerning the truth
or falsity of the charges, and whether they had formed any opinions about
defendant‘s guilt or innocence. Finally, they were asked whether they could
follow an instruction to disregard anything they had read or heard about the case
and base the verdict solely on the evidence and law presented in court. All of the
jurors and alternates responded that they could disregard what they had read or
heard and decide the case based on the trial.
Defendant contends, however, that this case ―falls ‗within the limited class
of cases in which prejudice would be presumed under the United States
Constitution.‘ ‖ He cites only the media coverage, which we have described
above, and the fact that ―it was never established that the vast majority of the jury
recalled nothing of the case or remembered few details.‖ As we have noted, prior
knowledge of a case does not necessarily disqualify a juror. The extraordinary
cases in which prejudice has been presumed involve circumstances in which ―the
influence of the news media, either in the community at large or in the courtroom
itself, pervaded the proceedings.‖ (Murphy v. Florida (1975) 421 U.S. 794, 799.)
For example, where a 20-minute film of the defendant‘s confession was broadcast
three times in the community where the trial took place, the defendant had
essentially been tried in the community of 150,000 rather than in the courtroom.
(Id. at p. 799.) Prejudice was also presumed where the news media was allowed to
overrun the courtroom and create a circus atmosphere. ―The proceedings in these
cases were entirely lacking in the solemnity and sobriety to which a defendant is
entitled in a system that subscribes to any notion of fairness and rejects the verdict
of a mob. They cannot be made to stand for the proposition that juror exposure to
information about a state defendant‘s prior convictions or to news accounts of the
45
crime with which he is charged alone presumptively deprives the defendant of due
process.‖ (Ibid.; see People v. Prince (2007) 40 Cal.4th 1179, 1217-1218.)
Our independent evaluation of the record leads us to conclude that
defendant failed to demonstrate that it was reasonably likely that (1) he could not
receive a fair trial in the absence of a change of venue, or (2) he did not in fact
receive a fair trial. Therefore, denial of defendant‘s motion for a change of venue
did not deprive him of due process of law or a fair trial.
3. Denial of defendant’s motion to suppress evidence
Defendant contends the trial court‘s denial of his motion to suppress
evidence obtained as a result of his warrantless detention and arrest violated his
rights under the Fourth Amendment to the United States Constitution and article 1,
section 13 of the California Constitution.
a. Facts
Frank Orta was a police officer for the City of Riverside. On January 9,
1992, he was working as a uniformed motorcycle officer, enforcing traffic laws.
At approximately 9:30 p.m., he was driving on University Avenue in Riverside, an
area with much prostitution activity, when he observed a gray or silver minivan
make a U-turn in a parking lot by a liquor store, and then come to a stop facing
University Avenue, with its headlights on. It did not appear to Orta that the
occupant of the van was parking in order to conduct business at any of the
commercial establishments in the area. Orta was aware of information in a police
bulletin concerning an individual and a vehicle suspected to be involved in serial
killings of prostitutes in Riverside County. The bulletin described the vehicle as a
late model, two-tone, blue over gray, Chevrolet Astro van, and requested patrol
officers to collect ―field information‖ regarding any vehicles or suspects matching
the descriptions in the bulletin.
46
Upon observing the type of vehicle stopped in the parking lot, Orta
intended to find a clear vantage point, observe any activity, and effect a traffic stop
if a woman entered the van and the van drove away. A woman, who appeared to
Orta to be a prostitute, approached the van and crossed in front of it, through the
headlights, but then she noticed Orta, and immediately turned and walked back in
the direction from which she had come. The van then began to move.
Orta decided to make contact with the van despite the fact that the woman
had walked away, in order to gather information about the driver and the van.
When he observed the van leave the lot, he followed it, with the intention to stop
it. As he drove behind the van, the driver stopped at a red light. The van and
Orta‘s motorcycle ―were positioned to go straight in the lane, . . . [a]nd then the
van suddenly made a right turn without any kind of signals or without moving
over towards the curb.‖ Orta stopped the van for failing to signal the turn.
Orta then asked the driver for his driver‘s license and vehicle registration.
The driver, whom Orta identified at trial as defendant, produced a driver‘s license,
but stated that he did not have his vehicle registration with him. The license,
which identified the driver as ―Bill Lee Suff,‖ had expired in August 1991. On the
front of the license was an address in Lake Elsinore, but that address had been
scratched out. On the back was a second Elsinore address and an address in
Rialto. Orta testified that these addresses were significant to him, because some of
the victims‘ bodies had been dumped in the Lake Elsinore area, and one body had
been dumped in close proximity to Rialto. Orta also thought that defendant
resembled the police artist‘s sketch of the suspected serial killer.
Orta informed defendant that he had stopped him for his failure to signal
his turn, and that defendant‘s cracked windshield was also in violation of the
Vehicle Code. He asked defendant for his current address, and returned to his
motorcycle to issue a citation for the Vehicle Code violations. He also contacted a
47
police dispatcher to confirm the status of defendant‘s driver‘s license and to
determine the status of the vehicle‘s registration. In response, he learned that the
driver‘s license was suspended and, despite the 1992 registration sticker on the
license plate, the vehicle‘s registration had expired in 1990. Based on this
information, Orta decided to impound the vehicle. He testified that when he
discovered a vehicle was unregistered for more than a year, he always impounded
the vehicle.8
Five or six minutes after Orta stopped defendant, while Orta was preparing
a citation for the Vehicle Code violations, a notice to the driver that his license
was suspended, and an impound storage sheet for the vehicle, Riverside Police
Officers Duane Beckman and Don Taulli arrived at his location. They confirmed
they were part of the task force assembled to apprehend the serial killer, and Orta
informed them of his observations concerning defendant and defendant‘s driver‘s
license. He requested their assistance in conducting an inventory of the vehicle
prior to its being impounded and towed. He confirmed at trial that Riverside
Police Department policy requires that an inventory of a vehicle be conducted
prior to the vehicle‘s being impounded and stored.
Among the items found in the van during the inventory search were wire-
rimmed glasses, a parole card with defendant‘s name on it, a black notebook that
8 At the time Orta impounded defendant‘s van, Vehicle Code section 22651,
subdivision (o), authorized a peace officer to remove a vehicle found upon a
highway, public land, or a parking facility if the vehicle‘s registration had expired
more than one year before the vehicle was found. (As amended by Stats. 1991,
ch. 189, § 40, pp.1474, 1476.) In addition, former subdivision (p) authorized the
removal of a vehicle when an officer issued a citation for driving with a suspended
or revoked license, and there was no passenger in the vehicle licensed to drive.
(Id., p. 1477.)
48
looked like a Bible, blankets, and numerous pieces of cord. In response to a
question from Officer Beckman, defendant stated that he was on parole in Texas.
Beckman recalled that the police bulletin mentioned that there was a Bible on the
console of the suspect‘s van. When Officer Taulli found what appeared to be a
firearm in a holster, Officer Beckman informed defendant he was under arrest for
possession of a firearm, and he placed handcuffs on defendant. At this point,
approximately 10 minutes had passed since Beckman and Taulli had arrived on the
scene. Defendant informed Beckman that the item they had found was a pellet
gun, and the officers removed it from its holster and determined it was a pellet
gun. Officer Taulli then found a ―fishing-type‖ knife in the van, and Beckman
informed defendant he was still being arrested for parole violation and having a
fixed-blade knife.
Taulli informed Beckman that it looked like there was blood on the knife,
and Beckman then contacted the sergeant in charge of the special surveillance
operation that evening and informed him of the information they had gathered.
The sergeant then contacted Detective Christine Keers, who asked what brand of
tire was on the front wheel of the driver‘s side of the van. After Taulli informed
the sergeant that it was a Yokohama brand tire, the officers were instructed to
secure the scene and wait for the detective. Keers arrived at the scene
approximately 20 minutes later. After Keers determined that the passenger side
tires were Uniroyal brand, she introduced herself to defendant, at which point she
noticed that he was wearing Converse tennis shoes, and she asked him for
permission to search his van, which he gave. Inside the van, she found fibers that
were consistent with fibers found at some of the crime scenes. Keers then
requested that defendant be transported to the police station for questioning
regarding the serial killings. Approximately 15 to 20 minutes had passed between
Keers‘s arrival and her request that defendant be transported.
49
Defendant moved to suppress the evidence obtained as a result of the traffic
stop on the grounds that the stop, detention and search of his vehicle were
unlawful, and his arrest was without probable cause. His initial theory was that
the stop based on a violation of the Vehicle Code was a pretext to search for
evidence of other crimes. The People opposed the motion, asserting that (1) Orta
had a reasonable suspicion to stop the vehicle, based on the activity observed near
the liquor store and facts known concerning a serial killer, (2) the stop of the van
for the failure to signal was lawful, (3) the detention was not unduly prolonged, (4)
the inventory search of the van was lawful, and (5) the evidence seized would
inevitably have been discovered. Defendant filed a supplemental brief, asserting
that (1) Orta had no reasonable suspicion to stop the vehicle, and (2) defendant
had not violated Vehicle Code section 22107 because that provision requires use
of a turn signal ―in the event any other vehicle may be affected by the [turn],‖ and
there was no other vehicle that could have been affected by defendant‘s turn.
The trial court found that ―Officer Orta had articulable reasonable
suspicions of criminal activity under the totality of circumstances,‖ citing Orta‘s
familiarity with the activity of prostitutes on University Avenue, and his
knowledge of the type of vehicle thought to be used by a serial killer, which
matched the type he believed was occupied by someone who was attempting to
solicit a prostitute. The court also found that Orta ―objectively could have stopped
the vehicle for an improper turn, turning without a signal.‖ The court further
concluded that once Orta stopped the van, he properly determined the status of
defendant‘s driver‘s license and vehicle registration, and then properly discovered
other information, without unduly prolonging the detention. Therefore, the trial
court denied the motion to suppress the evidence gathered as a result of the traffic
stop.
50
b. Analysis
―A defendant may move to suppress evidence on the ground that ‗[t]he
search or seizure without a warrant was unreasonable.‘ (§ 1538.5, subd.
(a)(1)(A).) A warrantless search is presumed to be unreasonable, and the
prosecution bears the burden of demonstrating a legal justification for the search.
[Citation.] ‗The standard of appellate review of a trial court‘s ruling on a motion
to suppress is well established. We defer to the trial court‘s factual findings,
express or implied, where supported by substantial evidence. In determining
whether, on the facts so found, the search or seizure was reasonable under the
Fourth Amendment, we exercise our independent judgment.‘ ‖ (People v. Redd
(2010) 48 Cal.4th 691, 719 (Redd); see People v. Williams (2013) 56 Cal.4th 165,
184; People v. Ayala (2000) 24 Cal.4th 243, 279.)
― ‗A detention is reasonable under the Fourth Amendment when the
detaining officer can point to specific articulable facts that, considered in light of
the totality of the circumstances, provide some objective manifestation that the
person detained may be involved in criminal activity.‘ [Citation.] Ordinary traffic
stops are treated as investigatory detentions for which the officer must be able to
articulate specific facts justifying the suspicion that a crime is being committed.‖
(People v. Hernandez (2008) 45 Cal.4th 295, 299 (Hernandez).) The motivations
of the officer are irrelevant to the reasonableness of a traffic stop under the Fourth
Amendment. (Whren v. United States (1996) 517 U.S. 806, 813.) ―All that is
required is that, on an objective basis, the stop ‗not be unreasonable under the
circumstances.‘ ‖ (United States v. Mariscal (9th Cir. 2002) 285 F.3d 1127, 1130
(Mariscal).)
Defendant contends that (1) the Vehicle Code did not require him to signal
his turn, and (2) the events witnessed by Officer Orta prior to defendant‘s
departure from the liquor store parking lot did not justify a suspicion that a crime
51
was being committed. For the reasons set forth below, we conclude defendant
violated the Vehicle Code when he failed to signal his turn, and Officer Orta was
authorized to detain him, demand his driver‘s license and vehicle registration, and
impound and search his vehicle, both because defendant‘s license was suspended
and because the vehicle‘s registration had expired more than a year earlier.
Therefore, we need not and do not address whether other circumstances also
justified the traffic stop.
With respect to his contention that he was not required to use a turn signal
when he made the turn immediately preceding his detention, defendant first relies
on Vehicle Code section 21453, which describes the circumstances in which a
driver who is facing a red traffic light is authorized to turn, but does not mention
any requirement that the driver signal the turn.9 He acknowledges Vehicle Code
section 22107‘s requirement that a driver signal a turn,10 but notes that Vehicle
Code section 22108 requires that the signal ―be given continuously during the last
100 feet traveled by the vehicle before turning,‖ and asserts that ―[w]hen motorists
form the intent to turn after coming to a complete stop at a red light, . . . it is
physically impossible to comply with the provisions of section 22108 by giving a
continuous signal during the last 100 feet traveled by the vehicle. Under these
9 The People contend defendant forfeited his contention that Vehicle Code
section 21453 authorized his turn without a signal because he did not rely on this
particular statute in the trial court. Because his argument raises only an issue of
law, we may consider it despite the fact that it was raised for the first time on
appeal. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 195.)
10 Vehicle Code section 22107 provides: ―No person shall turn a vehicle from
a direct course or move right or left upon a roadway until such movement can be
made with reasonable safety and then only after the giving of an appropriate signal
in the manner provided in this chapter in the event any other vehicle may be
affected by the movement.‖
52
circumstances, there is simply no obligation under California law to give a signal
of any kind.‖
Defendant claims the legislative history of these statutes supports his
theory. He notes that in the same year that the Legislature added the Vehicle Code
provision authorizing a turn at a red light (Veh. Code, former § 476 [right-on-red
rule], added by Stats. 1947, ch. 1256, § 3, p. 2769), the Legislature amended the
predecessor to Vehicle Code section 22107, the statute that requires a turn signal,
to add the phrase ―from a direct course or move right or left upon a roadway.‖
(Veh. Code, former § 544 [entitled ―Turning Movements and Required Signals‖],
as amended by Stats. 1947, ch. 875, § 5, p. 2053.) He contends that the provision
authorizing a right turn on a red light ―conflicted with [former Vehicle Code]
section 544, which required a signal at all turns. How could a driver who decided
to turn after stopping at a red light comply with section 544 by continuously
signaling an intention to turn for a specified distance? Therefore, [former Vehicle
Code] section 544 was amended in the same legislative session to provide that a
signal is required only when a vehicle turns ‗from a direct course or move[s] right
or left upon a roadway.‘ Whereas all turns had theretofore required a signal, the
amendment made clear that the statute only required vehicles turning from a direct
course (i.e., moving) or those moving right or left on a public roadway (i.e.,
changing lanes) to give a signal of an intention to turn.‖
There was, however, no conflict in 1947 between the requirement to signal
all turns and the authority to turn right at a red traffic signal, nor is there any
conflict between the current provisions concerning signaling (Veh. Code,
§§ 22107, 22108) and those related to turning at a red light (Veh. Code, § 21453).
The provisions concerning signals require the driver to signal a turn, and the right-
on-red provisions address when a driver may turn despite a red light. The
extension or clarification of the provisions concerning signaling to encompass
53
both a turn ―from a direct course‖ and a ―move right or left upon a roadway‖
reflects that the signaling requirements apply to lane changes as well as changes of
course; it does not reflect a legislative intent to require a signal only if the driver
decides to turn before reaching a red light. Defendant cites no authority for the
proposition that a ―direct course‖ refers only to vehicles that are moving, nor does
he suggest any reason the Legislature would provide that a turn signal is not
required before a vehicle turns at a red light. Finally, nothing in these statutes
concerns the timing of a driver‘s decision to turn.
Alternatively, defendant contends that he was not required to signal his turn
because Vehicle Code section 22107 states that a signal is required ―in the event
any other vehicle may be affected by the movement,‖ and there was no vehicle
that could have been affected by defendant‘s turn. Essentially the same argument
was made in People v. Logsdon (2008) 164 Cal.App.4th 741, in which a police
officer, who was driving behind the defendant in the same lane, stopped the
defendant for failing to signal a lane change. In rejecting the defendant‘s
contention that no vehicles could have been affected by his lane change, Logsdon
observed that ―a signal is primarily aimed at vehicles behind the car making the
lane change.‖ (Id. at p. 744.)
Defendant asserts, however, that because Orta‘s motorcycle was stopped
behind defendant‘s van, the motorcycle could not have been affected by
defendant‘s turn. In support of this theory, he cites Mariscal, supra, 285 F.3d
1127, which involved Arizona‘s law that a signal is required ― ‗in the event any
other traffic may be affected by the movement.‘ ‖ (Id. at p. 1131, italics added.)
In Mariscal, patrol officers had been notified of the defendant‘s route, and they
positioned themselves at an intersection toward which the defendant was driving.
At that intersection, the defendant made a right turn without signaling the turn, and
the officers then had to make a U-turn to follow him to make a traffic stop. The
54
Ninth Circuit invalidated the stop, concluding that the stationary police vehicle
was not in ―traffic‖ within the Arizona law‘s definition of traffic, which required
―us[e of] a highway for purposes of travel.‖ The court concluded that the
stationary vehicle was not traveling, based on a dictionary definition that
suggested that ―traffic‖ involves ―circulation‖ or ―flow‖ or ―movement.‖ (Id. at p.
1132.) The court added that even if the officers were in ―traffic,‖ they could not
have been ―affected‖ by the defendant‘s turn, which was made on the other side of
the intersection from where the officers were parked.
Mariscal is distinguishable. First, Vehicle Code section 22107 refers to
whether a ―vehicle‖ may be affected rather than whether ―traffic‖ may be affected.
Second, Orta was behind defendant‘s vehicle, not stationed across an intersection
as were the police in Mariscal. Third, Orta was clearly in a position to be affected
by defendant‘s turn; had Orta decided to proceed to the right of defendant‘s van to
make a right turn, he would have done so without knowing that defendant was
planning to turn right into the same path.
In sum, defendant was required to signal that he was going to turn at the
intersection, and his failure to do so justified Officer Orta‘s traffic stop. (See
Hernandez, supra, 45 Cal.4th at p. 299.) The officer was then authorized to
require defendant to produce his driver‘s license and evidence of registration of his
van. (Redd, supra, 48 Cal.4th at p. 719.) Upon determining that the registration
of defendant‘s van had expired more than a year earlier, the officer was authorized
to impound the van. (Veh. Code, § 22651, former subd. (o)(1); Redd, supra, at
p. 721.) Having impounded the vehicle, Orta was authorized to conduct an
inventory ―aimed at securing or protecting the car and its contents.‖ (South
Dakota v. Opperman (1976) 428 U.S. 364, 373.) For these reasons, we conclude
the trial court did not err in denying defendant‘s motion to suppress the evidence
obtained as a result of the traffic stop.
55
4. Denial of defendant’s discovery requests
Defendant contends that the denial of discovery concerning murders of
prostitutes with which defendant was not charged and concerning any profile of
the killer prepared by law enforcement violated his right to a fair trial and an
intelligent defense under the due process clause of the Fourteenth Amendment to
the United States Constitution. He also contends that the prosecutor‘s refusal to
produce this information constituted prosecutorial misconduct.
a. Facts
i. Discovery related to killings of other prostitutes
In May 1993, defendant sought discovery of information related to six other
killings of prostitutes, including one committed after defendant was arrested and
with which a different person had been charged. The People opposed discovery
on the grounds that (1) the other cases remained under investigation and the
information was therefore privileged, (2) the privacy rights of the families of the
victims in the other cases were ―compelling,‖ and (3) the information was not
relevant unless the defense could identify the perpetrator of the other crimes. At
the hearing on the motion, defense counsel stated that the defense was seeking
―the same types of things that would be available to use were these people on the
charged indictment,‖ and asserted that the information sought ―could be relevant
in the defense to say that . . . these killings are so similar and yet there is clearly an
exclusion, perhaps, of [defendant] from them.‖
The trial court stated that the defense had to ―show . . . more specificity
than . . . simply because they were prostitutes killed during the same timeframe.‖
The defense responded that ―some analysis of the type of investigation that
occurred‖ was needed before its relevancy could be judged. The trial court
suggested that it was appropriate to rely on the prosecution to fulfill its sworn duty
and obligation to produce relevant information. The defense responded that each
56
side was biased, and that the trial court must review the materials and make a
determination. The court stated that the defense‘s proposal ―is not a solution . . .
because I have no idea of what has gone before . . . .‖ The court ordered that ―if
there‘s any known exculpatory information as to the charged crimes against
[defendant], I‘m ordering that be divulged.‖
In August 1994, defendant renewed his motion to compel discovery with
respect to two prostitutes whose bodies were found in the Riverside area after
defendant was arrested. Cheryl Clark had died from strangulation and stabbing
and was dumped in a trash receptacle, and Janine Sheppard had been dumped in a
dirt alley. The prosecution represented that it intended to abide by the trial court‘s
earlier order to produce exculpatory information. It further stated that another
man had been convicted of Clark‘s murder, and that bodily fluid analyses in
connection with that crime had excluded defendant as a semen donor. With
respect to Sheppard‘s murder, the prosecution reiterated that it would produce any
exculpatory evidence, but added that releasing all of the evidence in that case
would compromise the investigation. At the hearing, the prosecutor stated that
―[w]e are well aware of the types of information that [defense counsel] is looking
for in this kind of case. If we find it, we will provide it.‖ The trial court indicated
with respect to discovery of the reports in the Sheppard case that ―you‘d have to
find the perpetrator. And I don‘t think that‘s what we‘re about.‖ It added that the
prosecution had ―an obligation to keep these things secret for their ongoing
investigation.‖ The court then observed that the information related to the
Sheppard case was part of an ongoing investigation and could be withheld if its
disclosure would jeopardize that investigation, and for those reasons denied
discovery ―at least at this time.‖ With respect to the Clark case, the court noted
that the case had been tried in open court, and suggested that the defense talk to
57
counsel in the Clark case and determine whether there were similarities. The court
also directed the prosecution to review both of the cases again.
ii. Discovery related to serial killer profiles
The defense also sought discovery of any profile that had been prepared by
a law enforcement agency with respect to the investigation of a serial killer of
prostitutes. At the June 1993 hearing on the matter, the prosecutor asserted that
any psychological profile was irrelevant, and declined to state whether one
existed. The trial court agreed that, as of that point in time, any profile was
irrelevant. In May 1994, following renewed requests for any profile, the trial court
stated that it would deny any request for a profile, and noted that the defense had
already received the reports from which any profile would have been developed.
The court added that further investigation that brought up new evidence might be
discoverable, but ―some configuration or some probability chart‖ based on the
accumulated reports would not be discoverable. It concluded that ―everything is
available to you to develop for either phase through your own expert.‖
In May 1995, during trial, the prosecution filed a motion to introduce expert
testimony by a member of the National Center for Analysis of Violent Crime of
the FBI. The motion disclosed that the center ―maintains a computer database
analysis unit called V.I.C.A.P., the Violent Criminal Apprehension Program. The
program was employed before the arrest of the defendant in this case.‖ The
testimony was offered to establish that the crimes were committed by a single
individual, based on such evidence as the selection of primarily White female
prostitutes, the commission of the killings and the disposal of the bodies outside
the ―comfort zones‖ of the perpetrator‘s home or business, the binding of victims
to prolong contact with them, the ―unusual inputs‖ into the killings such as
mutilation and postmortem stabbing, and the unusual pattern of body disposal
58
(e.g., nude or partially nude bodies in posed positions) in visible places in a
manner to draw attention. The trial court denied the prosecution‘s motion on the
ground that the evidence‘s prejudicial effect outweighed its probative value.
(Evid. Code, § 352.)
The prosecution again sought to admit expert evidence regarding the profile
at the penalty phase in response to defendant‘s evidence of his good character.
The defense objected, and the trial court excluded the testimony on the ground that
it was not proper rebuttal evidence.
b. Analysis
―A public entity has a privilege to refuse to disclose official information‖
(Evid. Code, § 1040, subd. (b)) if ―[d]isclosure of the information is against the
public interest because there is a necessity for preserving the confidentiality of the
information that outweighs the necessity for disclosure in the interest of justice
. . . .‖ (Id., subd. (b)(2).) ―Ongoing investigations fall under the privilege for
official information.‖ (People v. Jackson (2003) 110 Cal.App.4th 280, 287; see
Pen. Code, § 1054.7 [―possible compromise of other investigations by law
enforcement‖ constitutes good cause to deny, restrict, or defer disclosure].)
A trial court has discretion to deny disclosure not only when the necessity
for confidentiality outweighs the necessity for disclosure, but also ―when there is
an ‗ ―absence of a showing which specifies the material sought and furnishes a
‗plausible justification‘ for inspection [citations].‖ ‘ ‖ (People v. Kaurish (1990)
52 Cal.3d 648, 686 (Kaurish).) The trial court‘s ruling is reviewed under the
abuse of discretion standard. (People v. Prince, supra, 40 Cal.4th at p. 1232.)
Here, regardless of whether defendant sought to prove a third party culpability
theory or to disprove the prosecution‘s serial murderer theory, the trial court did
59
not abuse its discretion in concluding that defendant did not sufficiently specify
the material sought.
To be exculpatory as third party culpability evidence, the information
sought would have to assist defendant in establishing that the uncharged prostitute
killings were committed by a third party who was directly connected to a charged
crime. (People v. Hall (1986) 41 Cal.3d 826, 832 [third party culpability evidence
must tend to directly connect the third party to the commission of the charged
crime]; People v. Littleton (1992) 7 Cal.App.4th 906, 911 [―Because no one had
been arrested or charged with those other crimes . . . , the information in the
reports would have been of no value to the defendant unless he was able to solve
the other crimes and identify the perpetrator‖].) Defendant did not identify any
such information.
To be exculpatory with respect to the prosecution‘s serial murderer theory,
the information sought would have to assist defendant in establishing that he was
not responsible for an uncharged killing and the killing was sufficiently similar to
the charged crimes to tend to rebut the prosecution‘s theory that all of the charged
homicides were committed by the same person.11 The prosecution‘s serial murder
―linkage‖ theory was based on numerous similarities among the charged
homicides, including binding, mutilation, postmortem stabbing, disposing the
bodies in a manner indicating they were intended to be found, and posing and re-
dressing some victims. In addition, the charged homicides were connected by
11 The Attorney General asserts defendant did not present this theory of
relevancy in the trial court. Although defendant‘s legal arguments in support of
his motions for discovery focused on the possibility that the reports would lead to
evidence that a third person was involved in the crimes, his arguments at the
hearing were somewhat broader and arguably raised this theory.
60
numerous commonalities in the forensic evidence, including tire treads, fibers, and
hairs. Defendant did not identify any factors other than that the uncharged killings
involved drug-addicted prostitutes whose bodies were dumped.
Defendant complains that he could not demonstrate additional specificity
without reviewing the police files regarding the uncharged homicides. Given the
numerous distinctive facts associated with the charged murders, the specific
details one would look for in connection with the uncharged crimes were obvious
— the similarities that supported the prosecution‘s serial murder theory.
Despite the trial court‘s statement that the defendant would have to show
greater specificity to obtain discovery, and the court‘s observation that having the
court review the files would be of no assistance to the process because the court
was not familiar with the evidence of the charged crimes, defendant did not
describe the discovery sought with any greater specificity. Thus, it appears
defendant sought to undertake a proverbial fishing expedition. (See People v.
Jenkins (2000) 22 Cal.4th 900, 957 [―defendant‘s showing of need . . . was based
upon speculation and constituted the proverbial fishing expedition‖]; see also
Pitchess v. Superior Court (1974) 11 Cal.3d 531, 538 [noting that ―the documents
have been requested with adequate specificity to preclude the possibility that
defendant is engaging in a ‗fishing expedition.‘ ‖].) Because defendant failed to
describe the information sought with greater specificity, the trial court did not
abuse its discretion in denying discovery of the police files. (See Kaurish, supra,
52 Cal.3d at pp. 686-687 [because defendant failed to provide greater specificity
than ― ‗police reports pertaining to child molestation killings in the Hollywood
area‘ for the six months preceding and following the murder,‖ trial court did not
abuse its discretion in denying discovery request].)
Defendant complains that, ―based solely on the prosecutor‘s judgment that
there was nothing about the investigations which would be of assistance to
61
[defendant] in preparing and presenting a defense, the judge determined that the
government had met its burden of demonstrating the privilege.‖ This contention
conflates the issues of privilege and relevance. Although the trial court
acknowledged the privilege that applies to ongoing investigations, it concluded
that the defense would have to demonstrate more specificity than the mere fact
that ―they were prostitutes killed during the same timeframe.‖ The court also
noted the prosecution‘s duty to produce all exculpatory evidence (§ 1054.1, subd.
(e); Brady v. Maryland (1963) 373 U.S. 83, 87; see People v. Jenkins, supra, 22
Cal.4th at pp. 952-954), and ordered the prosecution to divulge all exculpatory
information. Because the prosecution did not identify any exculpatory evidence,
there was no occasion for the trial court to conduct an in camera review of the
investigatory files to evaluate a claim of privilege. The fact that the prosecution
asserted that the files were confidential does not alter the analysis.12
12 Defendant asserts that the People are barred by the doctrine of judicial
estoppel from contending that the trial court could deny the motion to compel
discovery without holding an in camera review, because the People conceded in
People v. Jackson, supra, 110 Cal.App.4th at page 284, that the trial court erred in
that case when it denied a discovery motion without conducting an in camera
review to determine whether police files related to uncharged crimes contained
exculpatory evidence. Without deciding whether the doctrine may apply against
the prosecution in a criminal action (see People v. Watts (1999) 76 Cal.App.4th
1250, 1262 [stating that the doctrine apparently had never been applied against the
prosecution]), we note that the circumstances here do not satisfy various criteria
for application of the doctrine. The Attorney General‘s earlier concession of a
legal point does not constitute the successful assertion of a position. In addition,
there is no showing that the earlier position was not the result of ignorance, fraud,
or mistake, and there is no indication that the Attorney General‘s decision to
contest the legal issue in this proceeding reflects an abuse of the judicial process.
(See Aguilar v. Lerner (2004) 32 Cal.4th 974, 986-987; Swahn Group, Inc. v.
Segal (2010) 183 Cal.App.4th 831, 842-851; People v. Watts, supra, 76
Cal.App.4th at p. 1261; Jackson v. County of Los Angeles (1997) 60 Cal.App.4th
171, 183.)
62
With respect to the request for any profile of serial murderers, defendant
contends he established below that a profile could lead to admissible evidence. He
cites his response to the trial court‘s statement that any profile ―could be way off
base.‖ He responded that the profile ―could be absolutely right about some of
them, that‘s just it. It might lead to some introducible evidence.‖ Defendant‘s
assertion that the profile might have been accurate did not explain how it would
lead to admissible evidence. He also contends that he adequately established that
the profile might ―assist in developing alternate suspects and defense theories.‖
His theory appears to be that if he had access to law enforcement‘s profile
information, the defense could have tried to find a third party who fit that profile
and thereby perhaps find the evidence that someone else killed the victims in this
case. Defendant‘s theory that a profile of the characteristics of a person who
might have committed the 19 killings, if accurate, would have led the defense to
the killer, is purely speculative.
Finally, defendant asserts that the prosecution‘s failure to disclose the
profile and its failure to provide to the defense the serial murderer linkage
evidence 30 days before trial as required by section 1054.7 deprived defendant of
due process of law and constituted prosecutorial misconduct. Although the
prosecution declined to state whether there was a profile, the trial court denied the
discovery request, and we have found no error in its ruling. In addition, the trial
court declined to admit evidence of the profile. Therefore, the prosecutor‘s
statements concerning the existence of any profile did not deprive defendant of his
due process rights or constitute prosecutorial misconduct.13
13 The People assert defendant forfeited this claim of prosecutorial
misconduct by failing to raise it and seek appropriate sanctions in the trial court,
(footnote continued on next page)
63
B. Guilt Phase Issues
1. Exclusion of defense evidence
Defendant contends the exclusion of evidence that (1) the murders of
prostitutes continued after he was arrested and (2) Detective Christine Keers, the
lead Riverside Police Department detective assigned to the homicide task force,
was charged with various crimes and terminated from the police force, violated his
rights to present a defense, to a fair trial, and to reliable guilt and penalty
determinations under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the
United States Constitution and article I, sections 7, 15, 16, and 17 of the California
Constitution.
a. Evidence of continued killings of prostitutes
Although unsuccessful in obtaining the records of police investigations of
the murders of other prostitutes, defendant moved to present evidence of the
murders of three prostitutes in Riverside County that occurred after he was
arrested. He asserted the evidence was relevant in light of the view expressed by
some prospective jurors that the murders had stopped when defendant was
arrested, and also as third party culpability evidence. With respect to the latter
purpose, he complained that the lack of discovery concerning other murders
limited his ability to link a third person to the charged crimes. At the hearing, the
defense stated that it learned from newspapers, from ―informal discussions with
various people in law enforcement,‖ and from defense investigators that there
were three killings of prostitutes who were drug users and whose bodies had been
(footnote continued from previous page)
but as defendant notes, it would have been futile to raise the issue because the trial
court had ruled that the prosecution was not required to produce any profile.
64
dumped in ―alleys, hillsides, open area, or something like that.‖ The prosecutor
confirmed that he had discussed two of the postarrest murders with the
investigating detectives (the third murder had just occurred), and stated that there
was no information that would exculpate defendant. He also stated the two
victims were prostitutes and probably drug users, but ―[t]here were a lot of
dissimilarities in the cases . . . with respect to the 13 charges that [defendant] has
been accused of committing.‖ He added that he did ―not intend to argue to this
jury that [defendant] is guilty because once he was arrested, the killing of
prostitutes stopped in Riverside County. What I intend to argue is the weight of
the evidence that points specifically to [defendant] as killing these 13 women.‖
The trial court denied the motion, stating that there was no link and there was
nothing to show that the fact there were three other killings of prostitutes had any
relevance to this case.
We first consider whether the evidence was admissible as third party
culpability evidence. ― ‗[T]o be admissible, evidence of the culpability of a third
party offered by a defendant to demonstrate that a reasonable doubt exists
concerning his or her guilt . . . must link the third person either directly or
circumstantially to the actual perpetration of the crime.‘ ‖ (People v. Elliott
(2012) 53 Cal.4th 535, 580.) ―For evidence of an uncharged offense to be
admissible to establish the third party‘s identity as the perpetrator of the charged
crimes, ‗ ―[t]he pattern and characteristics of the crimes must be so unusual and
distinctive as to be like a signature.‖ ‘ [Citations.] A large number of common
marks may, when viewed in combination, establish the required distinctive
pattern.‖ (Id. at p. 581; see People v. Page (2008) 44 Cal.4th 1, 39 [right to
present all evidence of a significant probative value is not ―inconsistent with the
rule . . . that third party culpability evidence is admissible only if it links a third
party to the crime‖].)
65
The evidence that, after defendant was arrested, three prostitutes, at least
two of whom abused drugs, were fatally stabbed and whose bodies were dumped
like trash, does not establish a link between a third person and the crimes charged
against defendant. None of these shared characteristics is unusual or distinctive.
As the prosecutor noted, prostitutes are vulnerable and tend to be victimized.
(See, e.g., People v. Jones (2013) 57 Cal.4th 899 [two and perhaps three homicide
victims were prostitutes, and the three had been left in dumpsters]; People v.
Solomon (2010) 49 Cal.4th 792, 798 [six drug-abusing prostitutes murdered];
People v. Doolin (2009) 45 Cal.4th 390, 400 [defendant murdered two prostitutes
and attempted to murder four more prostitutes]; People v. Rogers (2006) 39
Cal.4th 826, 835 [two prostitutes murdered]; see also People v. Jennings, supra,53 Cal.3d at p. 363 [noting that prostitutes ―could be seen as especially
vulnerable‖].) Therefore, the trial court did not abuse its discretion in excluding
this evidence.
We next consider whether the evidence was admissible to prove the bare
fact that the murders of prostitutes did not end with defendant‘s arrest. Defendant
asserts that the prosecutor, by arguing that defendant was guilty because he was
the serial killer responsible for all of the charged killings, ―reinforced the jury‘s
predisposition‖ to believe that the killings of prostitutes stopped when defendant
was arrested. Therefore, he contends, the evidence of postarrest killings was
relevant to rebut the jury‘s belief. We disagree. Because no evidence was
presented that similar murders of prostitutes ended upon defendant‘s arrest, and no
element of the charges otherwise raised an issue of whether the murder of
prostitutes continued after defendant‘s arrest, the evidence was not relevant to the
issue of guilt. The fact that a number of prospective jurors, none of whom was
selected as a juror in this case, made statements in the course of jury selection that
66
reflected a belief that the murders had ended with defendant‘s arrest, does not
render the evidence relevant to the issues litigated.
Finally, we consider defendant‘s contention that the evidence was relevant
to rebut the prosecutor‘s argument that defendant was guilty based on the pattern
of killings. The prosecutor‘s theory was not based on the fact that the victims
were all drug-abusing prostitutes whose bodies were dumped. Rather, his
argument relied on the repeated patterns of evidence, including the tire
impressions at multiple scenes that matched the tires that were on defendant‘s van
at the time of the particular killing, the shoe impressions that were similar to two
pairs of Pro Wings and a pair of Converse shoes defendant purchased over the
course of these killings, and the various fibers associated with multiple victims
that were similar to fibers in his van. As the prosecutor explained to the jury, ―It‘s
this cross-association of evidence that in and of itself, if you look at in a vacuum,
may not be that significant. But when you look at the big picture . . . we see
continual patterns that repeat themselves with respect to many different types of
evidence.‖ The fact that drug-abusing prostitutes continued to be killed and
dumped did not rebut the prosecution‘s theory.
b. Evidence of criminal charges against lead detective and her
discharge from the police force
The prosecution moved to exclude impeachment evidence related to crimes
allegedly committed by Christine Keers, the lead homicide task force detective.
Keers was indicted by a Riverside County grand jury in October 1994 on three
counts of attempting to violate section 496, subdivision (a), receiving stolen
property, a misdemeanor, and one count of violation of section 653f, soliciting the
commission of a burglary, a felony. Keers was put on administrative leave in
August 1994, and terminated from the Riverside Police Department in December
1994, but she had not been tried for the alleged crimes prior to defendant‘s trial,
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which began in February 1995. According to the motion, Keers would be called
by the prosecution to testify concerning (1) her recording of an interview with
Kelly Whitecloud, the friend of Kelly Hammond, (2) her involvement in the tape-
recorded interview of defendant after his arrest, and (3) her recovery of items of
clothing and jewelry that belonged to victims. The prosecution stated that her
testimony was ―important to maintain the flow and continuity of the presentation
of evidence,‖ but ―virtually every fact she will relate has a second percipient
witness who can testify to the same facts.‖ It noted that if the defense sought to
challenge the evidence Keers would convey, Kelly Whitecloud could be cross-
examined, the recording of the interview of defendant could be played, and the
individuals from whom Keers had collected personal belongings of the victims
were available.
At the hearing on the motion, the prosecution argued that because Keers
had not been convicted of the alleged crimes, admission of the evidence would
require a mini-trial of the allegations. It also stated that the primary witness
against Keers had died, portions of the audio recordings of that witness‘s
conversations with Keers were inaudible, and there might be an entrapment
defense by Keers. The prosecution also noted that Keers‘s termination from the
police department involved standards and factors different from the criminal
charges, and that neither the prosecution nor the defense had knowledge of the
internal affairs investigation that had been conducted. The prosecution asserted
that admitting the evidence would lead to ―nitpicking wars over collateral
credibility‖ of a witness who was ―simply a receiver of information in this case.‖
The defense stated that a trial of the charges was not necessary; instead, the
defense should be allowed to ask whether Keers had been indicted by a grand jury
for receiving stolen property and whether she had been terminated from the police
department.
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The court stated that in its view, presentation of the impeachment evidence
would become a mini-trial on the issue, because the percipient witness in the
Keers matter was deceased and multiple witnesses would be required to prove the
charged event. It concluded that ―this would be so time consuming‖ when
considered in the context of a witness who was not the sole witness as to the topics
of her testimony, and hence the court granted the prosecution motion and excluded
the impeachment evidence under Evidence Code section 352.
The defense subsequently sought permission to introduce evidence that
Keers had been terminated from her employment in the police department. The
trial court stated that it did not know why Keers was terminated, and that the
evidence, ―left dangling like that,‖ was irrelevant.
Defendant contends the trial court abused its discretion in determining that
the probative value of the evidence was outweighed by the undue consumption of
time required to prove wrongdoing by Keers. ―A trial court‘s exercise of
discretion under section 352 will be upheld on appeal unless the court abused its
discretion, that is, unless it exercised its discretion in an arbitrary, capricious, or
patently absurd manner.‖ (People v. Thomas (2012) 53 Cal.4th 771, 806.)
Defendant identifies various facts to highlight the importance of the
impeachment evidence. He complains that Keers was allowed to testify regarding
her career at the police department, leading the jury to believe that she was a
trusted, upstanding officer who would not lie to the jury. He asserts that Keers‘s
testimony concerning her interaction with Kelly Whitecloud was not corroborated,
and that the jury had reason to doubt the veracity of Whitecloud because she was a
prostitute, a drug user, and a felon who had admitted an intent to ―rip off‖ the
driver of the van the night Kelly Hammond disappeared. He identifies various
inconsistencies between Whitecloud‘s testimony at trial and statements she made
to various police detectives and the grand jury. He asserts that if the jury had
69
known of the charges against Keers and the termination of her employment, it
―would have had reason to seriously consider that either Whitecloud or Keers, or
both, were not telling the truth and that the police had arrested the wrong man.‖
The trial court did not abuse its discretion in concluding that proof of the
criminal charges against Keers would have required an undue consumption of
time. Proof of the charges was complicated by the death of the percipient witness,
and the value of the impeachment evidence was low, given that all of Keers‘s
testimony could be corroborated. Any concern with Whitecloud‘s corroboration
of Keers‘s testimony is mitigated by the fact that most of the information provided
by Whitecloud to Keers about the man who picked up Hammond was
memorialized by Keers before defendant was identified as a suspect. Following
defendant‘s arrest, Keers presented two photographic lineups to Whitecloud, and
Whitecloud picked defendant from each as the man who took her to McDonald‘s
and then picked up Hammond, but at trial, the McDonald‘s manager also
identified defendant as the man who was with Whitecloud that night. Finally, the
unexplained fact that Keers had been terminated from the police department was
irrelevant.
2. Failure to exclude evidence obtained during police questioning of
defendant
Defendant contends the police continued questioning him after he requested
counsel, in violation of his privilege against self-incrimination under the Fifth
Amendment to the United States Constitution, and that evidence obtained as a
result of that questioning should have been excluded.
Defendant was arrested on January 9, 1992, between 10:00 p.m. and
10:30 p.m., for a violation of parole, and transported to the Riverside Police
Department. Detective Keers began interrogating him approximately two hours
later, at 12:30 a.m. on January 10. She gave him the Miranda warning and waiver
70
(Miranda v. Arizona (1966) 384 U.S. 436 (Miranda)), which he signed, and then
he asked, ―Do I need a lawyer?‖ She responded, ―Well, I don‘t know. Do you
need a lawyer?‖ He said, ―I don‘t know. For what I‘ve done, I don‘t see why I
need a lawyer.‖ Keers then said, ―And all I‘m doing is asking you to talk to me.
Do you want to do that?‖ He said, ―Okay.‖
The first phase of the interrogation continued until 1:10 a.m., at which time
a technician arrived to collect hair and saliva samples. The interview resumed and
continued until 2:45 a.m. During this early morning interrogation, Keers asked
defendant for permission to search his home. By this time in the interrogation, the
topics of prostitute killings, the knives in defendant‘s van, footprints, and
defendant‘s Converse sneakers had been discussed. Defendant responded to the
request to search his home by stating, ―I need to know, am I being charged with
this, because if I‘m being charged with this I think I need a lawyer.‖ Keers stated,
―Well at this point, no you‘re not being charged with this,‖ and defendant then
consented to a search of his apartment.
Questioning resumed that afternoon at 2:50 p.m. and continued until
5:40 p.m. During this questioning, defendant admitted he had been in the orange
groves and that there was a body in the orange groves. When pressed to tell them
―about the body you left there,‖ he said, ―I better get a lawyer now. I better get a
lawyer, because you think I did it and I didn‘t.‖ Questioning continued, and
defendant admitted taking a knife out of Casares‘s chest and putting it in his van.
In May 1995, defendant moved to exclude ―defendant‘s admission that he
was in the orange grove where Eleanor Casares‘ body was found, saw the body,
and pulled the knife out of her chest and kept it . . . .‖ The trial court ruled that
defendant invoked his right to an attorney when he stated, ―I better get a lawyer
now. I better get a lawyer, because you think I did it and I didn‘t.‖ Therefore, his
statements about removing the knife and putting it in his van were excluded.
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Defendant contends that he invoked his right to counsel earlier, during the
morning session when he stated, ―if I‘m being charged with this I think I need a
lawyer.‖
―In order to invoke the Fifth Amendment privilege after it has been waived,
and in order to halt police questioning after it has begun, the suspect ‗must
unambiguously‘ assert his right to silence or counsel. [Citation.] It is not enough
for a reasonable police officer to understand that the suspect might be invoking his
rights. [Citation.] Faced with an ambiguous or equivocal statement, law
enforcement officers are not required under Miranda, supra, 384 U.S. 436, either
to ask clarifying questions or to cease questioning altogether.‖ (People v. Stitely
(2005) 35 Cal.4th 514, 535; see Davis v. United States (1994) 512 U.S. 452.)
Because defendant‘s statements are undisputed, we independently determine
whether he unambiguously asserted his right to counsel. (People v. Bacon (2010)
50 Cal.4th 1082, 1105.)
Defendant contends that his statement — ―I need to know, am I being
charged with this, because if I‘m being charged with this I think I need a lawyer‖
— was an unambiguous invocation of his right to counsel. He asserts that ―Keers
simply could not have interpreted this as a conditional request because she knew
that the condition was virtually certain to manifest itself.‖ He proposes that Keers
could have asked the prosecutor, who was monitoring the interrogation from
another room, whether defendant was going to be charged, and ―then could have
explained [defendant‘s] status to him truthfully . . . .‖
Defendant acknowledges that in People v. Gonzalez (2005) 34 Cal.4th 1111(Gonzalez), we held that a similar statement was not an unambiguous invocation
of the right to counsel. In Gonzalez, the defendant told the interrogating detectives
that if he was going to be charged with anything, he wanted to talk to a public
defender. One of the detectives informed Gonzalez that he would be booked that
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evening, but if polygraph results indicated he was telling the truth, he would be
released. Gonzalez asked, ― ‗Book me on what?‘ ‖ The detective responded ― ‗On
murder. That doesn‘t mean you‘re going to be filed on.‘ ‖ (Id. at p. 1119.) The
second detective gave a similar response, and also stated that ― ‗[a]n arrest is not a
prosecution . . . .‘ ‖ (Id. at p. 1120.) We explained that, ―[o]n its face, defendant‘s
statement was conditional; he wanted a lawyer if he was going to be charged. The
conditional nature of the statement rendered it, at best, ambiguous and equivocal
because a reasonable police officer in these circumstances would not necessarily
have known whether the condition would be fulfilled since, as these officers
explained, the decision to charge is not made by police. Confronted with this
statement, a reasonable officer would have understood only that ‗the suspect might
be invoking the right to counsel,‘ which is insufficient under Davis to require
cessation of questioning. [Citation.] Here, moreover, the detectives responded to
defendant‘s statement by explaining to him the difference between being arrested
and booked and being charged, thus providing him with an opportunity to clarify
his meaning, but at no point in this initial exchange did defendant unequivocally
request the immediate presence of an attorney before he would answer any more
questions. It is this type of statement Davis requires before the police must
terminate the interrogation.‖ (Id. at p. 1126, citing Davis v. United States, supra,
512 U.S. at p. 459, 461-462.)
Defendant attempts to distinguish Gonzalez based on the officers‘
explanation in that case of the difference between booking and charging, which, he
asserts, ―tend[ed] to show that they truly did not know if he had invoked his
rights.‖ He further notes that the defendant‘s subsequent conduct in Gonzalez
established that he was not invoking his right to counsel. He contrasts these facts
to what he characterizes as Keers‘s ―deceit and trickery to convince [defendant] to
keep talking with her.‖ He notes the evidence of which she was aware as the lead
73
investigator — the gray van that matched Whitecloud‘s description, the matching
tire treads, the matching shoe impressions — and concludes that ―[a] reasonable
officer who knew what Keers knew could only have construed [defendant‘s]
statements as an invocation of his right to counsel. She had evidence linking
[defendant] to one murder and, by the line of questioning she pursued over the
next several hours, it is obvious that she was deliberately buying time in an effort
to keep him talking.‖ Therefore, defendant asserts, Keers ―responded deceptively‖
to his question by stating that he was not being charged ―at this time.‖
The focus of the test, however, is the clarity of the defendant‘s request, not
the particular officer‘s belief, and there is no requirement that an officer ask
clarifying questions. (Davis v. United States, supra, 512 U.S. at pp. 459-462.) As
we subsequently confirmed, ―a defendant does not unambiguously invoke his right
to counsel when he makes that request contingent on an event that has not
occurred. (See People v. Gonzalez (2005) 34 Cal.4th 1111 [defendant‘s request
for counsel was conditioned on whether he was going to be charged with any
crimes].)‖ (People v. Martinez (2010) 47 Cal.4th 911, 952.) Moreover, as in
Gonzalez, supra, 34 Cal.4th 1111, the officer‘s response in this case provided
defendant with an opportunity to clarify his meaning, but as in Gonzalez,
defendant did not then unequivocally request the presence of an attorney. Instead,
he consented to a search of his residence.
Defendant also contends that Keers‘s failure to inform him of ―critical
information‖ and ―the severity of his predicament‖ rendered his waiver of rights
under Miranda involuntary and unknowing. Miranda requires that the person in
custody be informed of the right to remain silent, the consequences of forgoing
that right, the right to counsel, and that if the person is indigent, a lawyer will be
appointed. (Miranda v. Arizona, supra, 384 U.S. at pp. 467-473.) There is no
requirement that, before a person may validly waive his privilege against self-
74
incrimination, he must be apprised of the evidence against him, the ―severity of his
predicament,‖ or the chances he will be charged. (People v. Sanders (1990) 51
Cal.3d 471, 513.)
Finally, defendant contends his Miranda waiver was limited because he
―placed a condition on his waiver‖ when he stated that he thought he needed a
lawyer if he was being charged. He asserts that ―[a]n ‗ordinary understanding of
[defendant‘s] statement requires the conclusion that his consent to waive his rights
only existed if he were not being charged with the crime.‖ A person may invoke
his Miranda rights selectively (Arnold v. Runnels (9th Cir. 2005) 421 F.3d 859,
864 [defendant clearly and unequivocally stated that he did not want to speak on
tape]), but defendant did not state that he would speak to the detectives without the
assistance of counsel only if he would not be charged with the crimes. As
explained above, his statement concerning counsel was ambiguous and
conditional, and did not constitute an invocation of his right to counsel. He cannot
avoid the rule of Davis v. United States, supra, 512 U.S. 452, by characterizing an
ambiguous reference to counsel as a limitation on his waiver of his Miranda
rights.
3. Admission of photographs of the victims
Defendant contends that a photo board containing photographs of the 13
homicide victims while they were alive should not have been admitted into
evidence because it constituted an inappropriate emotional appeal to the jury.
Near the end of the guilt phase, an investigator with the district attorney‘s
office testified concerning an exhibit he had prepared, a four-and-one-half-foot
square photo board, containing photographs of the 13 victims defendant was
charged with killing. The board included the victims‘ names along with the dates
and approximate locations where their bodies were discovered. The photographs
75
were obtained from the family members and friends of the victims. The
investigator attempted to obtain the most recent photograph of each victim, but in
some cases the photographs were taken a year or two before the subject‘s death,
and at least one was taken at least five years before the subject‘s death. The sizes
of the photographs vary slightly, but each generally fills an 8 1/2 by 11-inch sheet
of paper. All the photographs, save for one, are cropped to show only the victim‘s
head or head and upper body.
Several court days later, at the close of the prosecution‘s case, defendant
objected to admission of the photo board, asserting that the photos ―were taken of
the victims under the best of all possible circumstances,‖ and arguing that the
exhibit was ―an emotional appeal. It is abstract or distanced . . . from the nature of
the victims that the prosecution has been . . . arguing all along, which is street and
drug using prostitutes.‖ The prosecutor responded that the photographs had been
obtained from family members, and in some cases there were not many
photographs available. He stated that the defense could seek to introduce booking
photos of the victims and could fairly comment on the issue in argument. Finally,
he asserted that ―with this number of victims and the type of evidence that relates
to each of these victims, it‘s important for the jury to identify a name with a face
. . . .‖
The trial court first addressed the prosecutor‘s purpose — to assist the jury
in keeping track of the victims and evidence — and stated that it was not admitting
the photographs exclusively for the purpose of ―associating a name with a
photograph,‖ which could be done ―with other things as well.‖ The court then
stated that it would allow their admission, ―because [the jurors] can see the
similarity between those photographs and those photographs of these women at
their worst. It‘s not because they were put at their worst, someone put them at
their worst. And I think it‘s appropriate to let them see them, these individuals not
76
necessarily at their best, but at least as you and I are seeing them on a daily basis
and the jurors in associating or identifying those victims from various parts of our
county.‖14
The trial court‘s comments are not entirely clear, but they appear to reflect
that the court recognized that the photographs had some probative value to assist
jurors in keeping track of the evidence, but it viewed their value for this purpose as
insufficient by itself to warrant their admission. The court did not, however, reject
this purpose on the ground that admission of the photographs would cause undue
prejudice to defendant. The court‘s comments also identify a second purpose of
the photographs — to show what the victims looked like while alive rather than as
they appeared in crime scene and autopsy photographs admitted at trial. Finally,
the comments reflect that the trial court rejected defendant‘s theory of undue
prejudice.
―We have recognized that ‗[c]ourts should be cautious in the guilt phase
about admitting photographs of murder victims while alive, given the risk that the
photograph will merely generate sympathy for the victims. [Citation.] But the
possibility that a photograph will generate sympathy does not compel its exclusion
if it is otherwise relevant. [Citation.] The decision to admit victim photographs
14 The trial court stated in full: ―It seems to me that these, and I‘m not going
to allow it to come in, because for the sake of having 24 photo boards associated
with their names and strictly and that exclusively that is associating a name with a
photograph, is they can do that with other things as well, so it‘s not, but I am going
to allow it to come in, because they can see the similarity between those
photographs and those photographs of these women at their worst. It‘s not
because they were put at their worst, someone put them at their worst. And I think
it‘s appropriate to let them see them, these individuals not necessarily at their best,
but at least as you and I are seeing them on a daily basis and the jurors in
associating or identifying those victims from various parts of our county. I think
it‘s appropriate and it shall come in.‖
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falls within the trial court‘s discretion, and an appellate court will not disturb its
ruling unless the prejudicial effect of the photographs clearly outweighs their
probative value.‖ (People v. Rogers (2009) 46 Cal.4th 1136, 1163 (Rogers).)
Here, the court, in admitting the photos, implicitly determined the photos
themselves did not generate sympathy. Our review of the photos is in accord. The
photographs are ordinary, with no uniform emotion or quality. In seven, the
victims are smiling, and in six, they have blank or sour expressions. The style of
photograph is seemingly random, ranging from what appear to be school portraits
to ―candids‖ to posed pictures. (See People v. Hovey (1988) 44 Cal.3d 543, 571
[―photo, though perhaps ‗charming,‘ was nonetheless an ‗ordinary‘ one not likely
to produce a prejudicial impact‖].) Due to the manner in which the photographs
were cropped, their context is ambiguous, making the portraits appear neutral and
detached. (See People v. Cooper (1991) 53 Cal.3d 771, 821 [trial court ordered
photograph cropped to remove family dogs in order to minimize prejudice];
People v. Thompson (1988) 45 Cal.3d 86, 115 [photograph was not ―calculated to
elicit sympathy,‖ such as a photograph taken at church or with small children].)
Further, as we held in Rogers, subsequent to the trial in this matter,
photographs may be admitted to assist jurors in keeping track of individuals in a
case, if the photographs are not unduly prejudicial. In Rogers, the trial court
admitted two photographs of the three victims, taken while they were alive. We
concluded the trial court did not abuse its discretion, noting that ―two of the
victims were similar in appearance to two of the witnesses, all four had been
girlfriends of defendant, and one victim and one witness had the same first name.
Given these circumstances, admission of the photographs was proper to meet the
prosecution‘s concern that the jurors might ‗lose track of who these individuals
are‘ and also to help any witness ‗identify the people that they saw in this case.‘ ‖
(Rogers, supra, 46 Cal.4th at p. 1163, fns. omitted.)
78
Similarly, in this case despite the trial court‘s statement, we find the photo
board was useful to assist the jurors in keeping track of the 13 murder charges and
the extensive array of evidence associated with the crimes. Also, as in Rogers,
supra, 46 Cal.4th 1136, the photographs are ―neutral and unremarkable and would
not have engendered an emotional reaction capable of influencing the verdict.‖
(Id. at p. 1163.)
The trial court did not abuse its discretion in concluding the photographs
were not unduly prejudicial. Defendant‘s theory of prejudice is that the
photographs aroused the jury‘s passion because they portrayed the victims more
sympathetically than did the prosecutor‘s description of them as drug-abusing
prostitutes. In other words, his argument speculates that the jurors imagined that
the victims looked worse in their daily lives than they appear in these photographs,
and evidence that the victims looked like ordinary people constitutes prejudice that
would weigh against their admission. ―For purposes of Evidence Code section
352, evidence is considered unduly prejudicial if it tends to evoke an emotional
bias against the defendant as an individual and has a negligible bearing on the
issues.‖ (People v. Mendoza (2011) 52 Cal.4th 1056, 1091.) To the extent the
photo board portraying the victims in their daily lives tended to deprive defendant
of any perceived advantage he might have gained as a result of jurors‘ mental
images of drug-addicted prostitutes, such alleged detriment is not ―undue
prejudice‖ within the meaning of Evidence Code section 352, as this effect cannot
be characterized as evoking an emotional bias against defendant.
As we have explained, the photo board was properly admitted. Although
the trial court apparently rejected the prosecutor‘s argument that the exhibit was
necessary to assist the jury in keeping track of the evidence, it did not find the
photo board unduly prejudicial to defendant. Like the trial court, we have rejected
defendant‘s theory of undue prejudice.
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C. Penalty Phase Issues
1. Victim impact evidence
Defendant contends that the extent and nature of the victim impact evidence
deprived him of his rights to due process, a fair trial, and a reliable penalty
determination under the Fifth, Sixth, Eighth, and Fourteenth Amendments of the
United States Constitution.
a. Facts
Defendant moved to exclude all victim impact evidence. The trial court
denied the motion, but stated that it could not envision allowing more than three
victim impact witnesses per victim, and that it ―intend[ed] to keep the proceedings
under control . . . .‖ Thereafter, the prosecution presented 16 victim impact
witnesses: three each with respect to McDonald and Zamora, two each with
respect to Sternfeld and Casares, and one each with respect to the rest, except no
witnesses testified concerning the impact of the murders of Coker and Latham.
Lyttle‘s father testified concerning her childhood difficulties and his painful
memories of her death. Leal‘s brother described their family and the effect that
her death and the manner of her death had on the family. The paternal
grandmother of Ferguson‘s daughter recalled Ferguson‘s struggles with drug
addiction, and the impact her death had on her daughter. Miller‘s sister described
Miller‘s gentle spirit, her efforts to stop using drugs, her son and grandson, and
how difficult it was to tell their mother how she had died. Sternfeld‘s sister
testified that her murder had destroyed Sternfeld‘s brother and left her feeling
angry and cold. Sternfeld‘s mother stated that Sternfeld had visited her once or
twice a day, that her life was ―totally different‖ after the murder, and that her son
visited the cemetery at least twice a week. Puckett‘s sister, who was raising
Puckett‘s three children, testified that Puckett ―always rooted for the underdog,
and she was always raging against injustices and inequities.‖ Hammond‘s brother
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testified that the oldest of Kelly‘s three children was a teenage girl who was at an
age when she needed her mother, and that he wished Kelly could be there to help
care for her mother, who had suffered brain damage. McDonald‘s daughter
thought about her all the time, and McDonald‘s sisters said that McDonald was a
good person who would never do anything that would make someone want to
―torture her like that.‖ Zamora‘s mother missed her very much, and had a void in
her life. The whole family had always celebrated holidays together, and the
family now began each holiday by visiting the cemetery. Casares‘s daughter
missed her mother and wanted to kill herself. Casares‘s sister testified that
Casares was a kind person who helped care for her paralyzed brother, and that
―[s]he didn‘t deserve to die this way.‖
b. Analysis
―The Eighth Amendment does not prohibit the admission of evidence
showing how a defendant‘s crimes directly impacted the victim‘s family, friends,
and the community as a whole, unless such evidence is ‗so unduly prejudicial‘ that
it results in a trial that is ‗fundamentally unfair.‘ [Citations.] Likewise, under
state law, victim impact evidence is admissible as a circumstance of the crime
under section 190.3, factor (a), so long as it ‗is not so inflammatory as to elicit
from the jury an irrational or emotional response untethered to the facts of the
case.‘ ‖ (People v. Taylor (2010) 48 Cal.4th 574, 645-646.) Victim impact
evidence is admissible to establish the unique loss resulting from a murder and
thereby to counteract the defendant‘s mitigating evidence. (People v. Garcia
(2011) 52 Cal.4th 706, 751 (Garcia).) ―The People are entitled to present a
‗ ―complete life histor[y] [of the murder victim] from early childhood to death.‖ ‘
[Citation.] Such evidence, which typically comes from those who loved the
81
murder victim, shows ‗how they missed having [that person] in their lives.‘ ‖
(Ibid.)
Defendant asserts that the trial court erred in permitting three victim impact
witnesses per victim, citing State v. Muhammad (N.J. 1996) 678 A.2d 164, 180,
which generally limited such witnesses to one per victim. We have rejected such a
limitation. (People v. McKinnon (2011) 52 Cal.4th 610, 690; People v. Hartsch
(2010) 49 Cal.4th 472, 509; People v. Zamudio (2008) 43 Cal.4th 327, 364.)
Here, 16 victim impact witnesses was not excessive, given that there were 12
murder victims. (See People v. Pearson (2013) 56 Cal.4th 393, 467 [13 victim
impact witnesses was not excessive, given two murders and testimony from three
generations of the victims‘ families].)
Defendant also faults the trial court‘s three-witness limitation on the ground
that this bare limitation failed to address whether the testimony was otherwise
admissible. The trial court further stated, however, that it ―intend[ed] to keep the
proceedings under control,‖ and, following a colloquy in which the trial court
explained that testimony concerning a victim‘s good qualities could relate to a
specific impact, defendant stated only that ―it has to be directly related to the
impact. That‘s all.‖ During the presentation of victim impact evidence, defendant
rarely objected to the families‘ testimony. On appeal, he cites a few instances of
what he characterizes as ―cumulative, emotional and inflammatory recitations with
virtually no limitations,‖ but he failed to object to most of this evidence.
First, he complains that Zamora‘s mother gave lengthy and irrelevant
narratives. The defense did not object to this testimony while it was being given.
Instead, during a subsequent break, defense counsel stated that ―with Mrs.
Zamora, . . . there were a couple of questions asked that were so narrative, the
response was so long in there, I think there was some objectionable hearsay. It‘s
really hard to object in the middle and interrupt her. It‘s heart-wrenching. I‘d ask
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the questions be a little bit more specific and not call for long, long narrative
answers of that type.‖ The trial court responded that defendant was going to have
to object. It added that ―this was not a woman that was uncontrollable, either. . . .
I don‘t think it‘s something I should have intervened in because she‘s an
uncontrollable witness.‖ Defense counsel reiterated that it was difficult to object,
but that he would do so the next time. Defendant forfeited this claim by failing to
object to the testimony in a timely manner. (Evid. Code, § 353, subd. (a); People
v. Pollock (2004) 32 Cal.4th 1153, 1181 [failure to object ―may not be excused on
the ground that a timely objection would be inconvenient or because of concerns
about how jurors might perceive the objection‖].)
Second, he challenges the admission of photographs, drawings, and a
religious poem. After Zamora‘s mother testified that Zamora‘s children wrote ―I
love you‖ notes at their mother‘s grave, the court admitted four photographs of
two of Zamora‘s children, writing notes and placing them among the flowers on
the grave. Defendant objected that the photographs were irrelevant, unduly
prejudicial, and inflammatory. As the trial court noted, however, the children‘s
tradition of writing love notes and leaving them at her grave was evidence of the
impact her death had on them. We have upheld the admission of photographs to
illustrate victim impact testimony (People v. Thomas, supra, 53 Cal.4th at pp. 824-
825; People v. Davis, supra, 46 Cal.4th at pp. 618-619), and these photographs are
not unduly emotional or inflammatory; they simply show the boys, who are
smiling broadly in one photograph, writing and leaving notes at a grave. Over
hearsay and relevancy objections, Miller‘s sister read a poem Miller wrote about
stumbling and going through hell, but rejecting Satan and ―figur[ing] out Jesus is
the only true love around.‖ The poem was not offered for the truth of the matter
stated, and it contributed to the picture of the victim who was taken from the
family by defendant. Similarly, testimony that Miller was a ―gentle spirit‖ was
83
relevant as a description of what the victims lost. Therefore, this evidence was
admissible. Defendant did not object to the other items, and therefore has
forfeited those challenges. 15
Third, defendant complains that family members testified about diseases
and crimes suffered subsequent to the murders. It is improper for a witness to
speculate regarding the effect of a murder on a third person‘s health (People v.
Abel (2012) 53 Cal.4th 891, 939; People v. Brady (2010) 50 Cal.4th 547, 577-
578), but evidence regarding the reasons a person does not testify is admissible ―to
dispel any potential negative implication that might be drawn from the
prosecutor‘s failure to call him as a witness.‖ (Brady, supra, at p. 577.) When
asked why her mother was not going to testify, McDonald‘s sister properly
testified that her mother ―has a heart condition and my youngest sister died. She
was in a car accident . . . three years before that, and it‘s really hard for her.‖ The
witness did not connect the reasons her mother could not testify to the murder.
(See People v. Carrington (2009) 47 Cal.4th 145, 197 [it is improper to comment
on a possible connection between the victim‘s death and the illness or death that
prevents victim impact testimony].) To the extent the testimony might have been
based on statements made by McDonald‘s mother regarding why she would not
testify, the statements were admissible to establish the mother‘s state of mind. 16
15 The other items were pictures drawn by Sternfeld‘s son, one of his mother
as an angel in heaven and one of Jesus crying; a picture, given by Sternfeld to her
mother, of Dennis the Menace in his mother‘s arms, saying that he loved her ―all
the way up to heaven and way past God‖; and a portion of a school essay written
by Zamora‘s 11-year-old niece, in which she recalled the family looking for
Zamora, learning she had been murdered, and going to her funeral where everyone
was crying.
16 For the same reason, defendant‘s hearsay objection to testimony concerning
how Puckett felt about her daughters was properly overruled.
84
(Evid. Code, § 1250.) For the same reasons, it was proper to admit testimony by
Hammond‘s brother that his father ―told me he couldn‘t bear it. And he‘s got bad
enough problems taking care of my mom and the kids, and he just wants to
remember Kelly as she was.‖ Defendant did not object to other testimony that he
contends connected the murder to a condition of a relative, and therefore has
forfeited his additional claims. 17
Finally, defendant complains that some family members became emotional
on the witness stand, and he claims that the victim impact evidence was excessive
and ―made it likely that emotion improperly overcame reason in the jury‘s death
judgment.‖ We have reviewed all of the victim impact evidence, and find it to be
moderate in both its volume and tone. It was neither unduly prejudicial nor so
inflammatory as to elicit an irrational or emotional decision untethered to the facts.
(See People v. Taylor, supra, 48 Cal.4th at pp. 645-646.)
17 Defendant did not object to the following evidence he now challenges on
appeal: (1) Leal‘s father suffered from cancer, and when Leal was murdered, her
father ―gave up.‖ (2) When asked how the death affected his sisters, Hammond‘s
brother identified one of his sisters as having been affected, and then stated that
that sister had been raped a year after Kelly‘s murder, ―[a]nd so that‘s got a lot to
do with her.‖ (3) Hammond‘s mother became ill and suffered brain damage
before Kelly was killed, and had not been told of Kelly‘s death. (4) When Miller‘s
sister was asked how Miller‘s death affected her and her life, she responded in
part, ―A lot of ways. I‘m under medical care right now since last November. I
kept getting physically sick with respiratory infections, but then the underlying
was major depression. And so I‘m still under a doctor‘s care at this point.‖
Defendant similarly did not object to the following statements regarding
why family members would not testify: (1) Sternfeld‘s brother ―can‘t even come
down here to see this man in this courtroom.‖ (2) Miller‘s son ―can‘t do it. He
hadn‘t even been able to come to court. I tried to talk to him again last night about
coming and he said that, you know, he will be here in spirit, but he just can‘t do it.
He can‘t come here. He is still very upset.‖ (3) With respect to whether Leal‘s
mother was ―able to testify today,‖ Leal‘s brother responded, ―No.‖
85
2. General challenges to California’s death penalty scheme, jury
instructions, and procedures
We have previously rejected the various challenges raised by defendant to
the death penalty scheme, and we are not persuaded that we should reconsider the
following conclusions. ― ‗The California death penalty scheme is not
constitutionally defective because it fails to require jury unanimity on the
existence of aggravating factors, or because it fails to require proof beyond a
reasonable doubt that death is the appropriate penalty, that aggravating factors
exist, or that aggravating factors outweigh mitigating factors. [Citation.] The
United States Supreme Court‘s decisions interpreting the right to a jury trial under
the federal Constitution (see Blakely v. Washington (2004) 542 U.S. 296; Ring v.
Arizona (2002) 536 U.S 584) do not change these conclusions.‘ ‖ (People v.
Lopez (2013) 56 Cal.4th 1028, 1083.) Nor is the trial court required to instruct
―that a defendant bears no burden of proving, and a jury need not unanimously
agree on, mitigating factors.‖ (People v. Duenas (2012) 55 Cal.4th 1, 27.)
―Indeed, trial courts ‗should not instruct the jury regarding any burden of proof or
persuasion at the penalty phase.‘ ‖ (People v. Linton (2013) 56 Cal.4th 1146, 1215
(Linton); see People v. DeHoyos (2013) 57 Cal.4th 79, 149-150 (DeHoyos).) In
addition, the trial court is not required to instruct the jury regarding a presumption
of life. (People v. Mai (2013) 57 Cal.4th 986, 1057; DeHoyos, supra, at p. 151.)
We have also rejected various challenges to CALJIC No. 8.88, and find no
reason to reconsider our conclusions. The instruction ―is not impermissibly vague
or ambiguous for using the phrase ‗so substantial,‘ nor did it impermissibly fail to
inform the jury that it must find death was an appropriate, not just an authorized,
penalty. [Citation.] Nor is CALJIC No. 8.88 unconstitutional for failing to
require the jury to return a verdict of life should it determine the mitigating
circumstances outweigh the aggravating ones. [Citation.] ‗Nor is the instruction
86
defective because it fails to convey to jurors that defendant has no burden to
persuade them that death is inappropriate.‘ ‖ (People v. Jones, supra, 57 Cal.4th
899, 980; see Linton, supra, 56 Cal.4th at p. 1211.) Defendant‘s bare assertion
that ―the instruction improperly reduced the prosecution‘s burden of proof below
that required by Penal Code section 190.3‖ does not raise any contention different
from those we reject above.
We have also concluded that the absence of a requirement that the jury
make written findings regarding aggravating factors does not violate a defendant‘s
federal due process rights, Eighth Amendment rights to meaningful appellate
review, equal protection rights, or Sixth Amendment right to trial by jury.
(DeHoyos, supra, 57 Cal.4th at p. 150; Linton, supra, 56 Cal.4th at p. 1216;
People v. Lopez, supra, 56 Cal.4th at p. 1083.)
― ‗California‘s capital sentencing procedures do not violate principles of
equal protection of the law on the ground they provide safeguards different from
those found in noncapital cases.‘ ‖ (DeHoyos, supra, 57 Cal.4th at p. 151.) We
have also rejected defendant‘s contention that review for intercase proportionality
is required by the federal Constitution (DeHoyos, supra, at p. 151; Linton, supra,
56 Cal.4th at p. 1216), as well as his contention that California‘s death penalty
violates international law and evolving standards of decency. (Mai, supra, 57
Cal.4th at p. 1058; Linton, supra, at p. 1217.)
87
III. CONCLUSION
The judgment is affirmed.
CANTIL-SAKAUYE, C. J.
WE CONCUR:
BAXTER, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
KENNARD, J.*
_____________________________
* Retired Associate Justice of the Supreme Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California Constitution.
88
CONCURRING OPINION BY LIU, J.
I join the court‘s opinion except for its discussion of whether defendant
invoked his right to counsel when he said during custodial interrogation, ―I need to
know, am I being charged with this, because if I‘m being charged with this I think
I need a lawyer.‖ (Maj. opn., ante, at pp. 70–75.) Detective Keers‘s answer that
―at this point, no you‘re not being charged with this‖ was misleading, and her
subsequent questioning of defendant violated his Miranda rights. (Miranda v.
Arizona (1966) 384 U.S. 436 (Miranda).)
At the time Detective Keers told defendant that he was ―not being charged‖
with these murders, she knew the following: One of the murder victims was last
seen entering a ―bluish gray‖ van. Tire tracks at several of the murder scenes were
consistent with a vehicle equipped with Yokohama and Uniroyal brand tires. Shoe
impressions that could have been made by a Converse shoe were found at one
murder scene. When he was arrested, defendant was driving a gray minivan
equipped with Yokohama and Uniroyal brand tires. He was wearing Converse
shoes. A woman who appeared to be a prostitute had approached the van. Inside
the van was a fixed-blade knife that appeared to have blood on it. Detective Keers
also found fibers in the carpeting, side upholstery, and seat fabric of the van that
were consistent with fibers found at some of the crime scenes. Sisal rope fibers
found on or near many of the victims were similar to a sisal rope found in
defendant‘s van.
1
After police stopped him in his van, defendant was arrested, taken to a
police station, and advised of his Miranda rights. He had been interrogated for
more than two hours at the point when Detective Keers asked if he would allow a
search of his home. As noted, defendant said, ―I need to know, am I being
charged with this, because if I‘m being charged with this I think I need a lawyer.‖
Detective Keers answered, ―Well at this point, no you‘re not being charged with
this.‖ Defendant then consented to a search of his apartment.
Detective Keers was the lead investigator on this case. Given what she
knew during the interrogation, she could not have had any doubt that defendant
would be charged with these murders. By telling defendant, ―Well at this point,
no you‘re not being charged with this,‖ she misled him. As Miranda said, ―any
evidence that the accused was threatened, tricked, or cajoled into a waiver will, of
course, show that the defendant did not voluntarily waive his privilege.‖
(Miranda, supra, 384 U.S. at p. 476; see People v. Russo (1983) 148 Cal.App.3d
1172, 1177 [waiver of Miranda rights rendered invalid by detective‘s statement
that ― ‗If you didn‘t do this, you don‘t need a lawyer, you know‘ ‖]; People v.
Hinds (1984) 154 Cal.App.3d 222, 234 (Hinds) [―[D]etectives deliberately misled
appellant concerning his right against self-incrimination . . . [by] twist[ing] the
required advisement: ‗[A]nything you say doesn‘t necessarily held [sic] against
you, it can be held to help you, depending on what happened.‘ ‖].)
The statements defendant made during the nearly three hours of questioning
following Detective Keers‘s misleading statement should have been excluded,
including his admissions that he had been in the orange groves and had seen a
body there. But given the other evidence of defendant‘s guilt, the Miranda
violation was harmless beyond a reasonable doubt.
LIU, J.
2
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Suff
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S049741
Date Filed: April 28, 2014
__________________________________________________________________________________
Court: Superior
County: Riverside
Judge: W. Charles Morgan
__________________________________________________________________________________
Counsel:
Jeffrey J. Gale, under appointment by the Supreme Court, and Michael J. Hersek, State Public Defender,
for Defendant and Appellant.
Edmund G., Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Gary W. Schons, Assistant Attorney General, Adrianne S. Denault and Erika Hiramatsu,
Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Jeffrey J. Gale
5714 Folsom Boulevard, No. 212
Sacramento, CA 95819
(916) 606-8915
Adrianne S. Denault
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2224