The People v. Jones

Filed 10/2/13 (unmodified opn. attached)
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE, )
)
Plaintiff and Respondent, )
) S042346
v. )
)
BRYAN MAURICE JONES, )
) San Diego County
Defendant and Appellant. ) Super. Ct. No. CR 136371
____________________________________)
ORDER MODIFYING OPINION AND
DENYING PETITION FOR REHEARING
THE COURT:
The opinion herein, filed August 26, 2013, and appearing at 57 Cal. 4th 899,
is modified as follows:
1. On page 942 of 57 Cal.4th, the following paragraph is deleted:
―As previously noted, we agree with respondent that a challenge to the
Kelly third prong goes to the weight, not the admissibility, of the evidence.
(People v. Brown, supra, 91 Cal.App.4th at p. 647.) We thus reject at the outset
any suggestion the trial court erred by admitting the evidence.‖
2. Also on page 942, the first sentence following the deleted paragraph is
deleted. The deleted sentence reads: ―We also reject the argument that Dr.
Blake‘s rebuttal evidence failed to satisfy Kelly‘s third prong.‖ Substitute this new
sentence reading: ―We reject this argument.‖
1
This modification does not affect the judgment.
The petition for rehearing is denied.
2
Filed 8/26/13 (unmodified version)
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE, )
)
Plaintiff and Respondent, )
) S042346
v. )
)
BRYAN MAURICE JONES, )
) San Diego County
Defendant and Appellant. ) Super. Ct. No. CR 136371
____________________________________)
A jury in San Diego County Superior Court convicted defendant Bryan
Maurice Jones in 1994 of the first degree murders of JoAnn Sweets and Sophia
Glover (Pen. Code, §§ 187, 189; all further statutory references are to this code
unless otherwise indicated), attempting to murder Maria R. and Karen M.
(§§ 664/187), and committing forcible rape, sodomy and oral copulation against
Karen M. (§§ 261, subd. (a)(2), 286, subd. (c), 288a, subd. (c)). The jury further
sustained an allegation that defendant used a deadly weapon when attempting to
murder Maria R. (§ 12022, subd. (b).) Finally, the jury sustained three special
circumstance allegations rendering defendant eligible for the death penalty: that
he murdered both Sweets and Glover during the commission or attempted
commission of the crime of sodomy (§ 190.2, subd. (a)(17)), and that he
committed multiple murders (§ 190.2, subd. (a)(3)). Although defendant was also
charged with murdering two additional victims, one with special circumstances,
the jury failed to return a verdict on those counts, and they were not retried. On
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April 6, 1994, following a penalty trial, the jury set the punishment at death under
the 1978 death penalty law. (§ 190.1 et seq.) This appeal is automatic. (§ 1239,
subd. (b).) We affirm the judgment in all respects.
I. GUILT PHASE
A. Facts
In 1985 and 1986, defendant lived with his mother, Ann Jones, in an
apartment on 51st Street in San Diego. Ann Jones worked 24 hours a day, five
days a week, as an in-home nurse tending to the needs of an elderly woman named
Tillie Wilsie, who lived on Mississippi Street, also in San Diego. Defendant
would often spend weekends at the Wilsie home, including time when his mother
was not present. He had a key to the Wilsie home.
At the time of the crimes, defendant was six feet five inches tall, weighed
approximately 300 pounds, and was familiar with the martial art of karate. He
occasionally borrowed his sister‘s car, a 1980 Datsun ―280Z‖ with faded blue two-
tone paint.
1. Maria R.
Maria R. testified that on August 15, 1985, she was homeless and living on
the street. She used heroin two or three times a week but was not high that day.
She struck up a conversation with defendant, and he offered her $20 for sex. She
did not usually engage in prostitution but would occasionally do so. She agreed,
and they took the bus to defendant‘s apartment on 51st Street. Maria R. had sex
with defendant in the apartment, he paid her, and she took a shower. When she
emerged from the shower, defendant had a rope in his hand. He forcibly placed
the rope around her neck, jumped on her back and started choking her with his
hands and the rope. She blacked out; when she awoke, defendant attacked her
again, and she again blacked out. When she awoke a second time, defendant told
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her she would have to orally copulate him if she wanted him to let her go. She
complied because she ―wanted [her] life‖ and had no choice. Defendant released
her after first taking back his $20.
Although Maria R. had had problems with the police before, she reported
the crime to them. She accompanied police to the apartment building where she
had been assaulted and hid while they brought defendant outside. Defendant was
taken into custody but after his release a few days later, she returned to the
apartment with some people from a church, who apparently tried to dissuade
defendant from attacking her again.
The jury found defendant guilty of attempting to murder Maria R. using a
deadly weapon, i.e., a rope. (§§ 664/187, 12022, subd. (b).)
2. Tara Simpson
Two weeks later, on August 29, 1985, police and firefighters responded to a
report of a fire in a dumpster in the alley behind defendant‘s apartment on 51st
Street. The fire had been set intentionally using an accelerant. After dousing the
fire, responders found in the dumpster the body of Tara Simpson, an 18-year old
African-American prostitute, burned almost beyond recognition. Although the
severity of the burning made forensic examination difficult, an autopsy revealed a
traumatic injury to her nose that was not caused by the fire, an incised injury like a
knife wound in her abdomen, and evidence of asphyxia (small petechial
hemorrhages on the surface of the heart), but no trauma to her throat or airway.
Swabs revealed the presence of acid phosphatase in her mouth, vagina and rectum,
suggesting seminal fluid. There being no aspirated soot in her lungs, she had died
before being burned, probably of alcohol and cocaine poisoning. Although
defendant was charged with murdering Simpson, the jury hung eight to four in
favor of guilt.
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3. Trina Carpenter
Five and one-half months later, on February 11, 1986, firefighters
responded to another dumpster fire in the same alley, about one block away from
where they found Simpson‘s body. It also was started with an accelerant. After
dousing the fire, they found inside the dumpster the body of Trina Carpenter, a 22-
year old African-American prostitute. Her body bore evidence of bruising and
other injuries around her neck, and tests showed she had cocaine and/or cocaine
metabolites in her body when she died. An autopsy concluded she died from
asphyxia caused by strangulation.
Carpenter‘s body had been placed in a duffel bag before being put in the
dumpster and set alight. The bag contained two cotton balls, one in her hand and
one inside the duffel bag. The cotton balls bore evidence of spermatozoa and
epithelial cells. In addition, vaginal swabs indicated the presence of spermatozoa
as well as a high concentration of acid phosphatase, indicating the presence of
seminal fluid. Swabs from Carpenter‘s mouth and rectum were negative for
evidence of sexual activity. Genetic testing of the cotton balls found sperm
contributed by more than one man to be present, but the predominant contributor
was someone of defendant‘s genotype. A population frequency analysis shows
this genotype appears in approximately 15 percent of the African-American
population.
On the evening Carpenter was killed, a witness heard a ―very loud thunk‖
emanating from the alley where Carpenter‘s body was eventually found. The
witness looked out her window and saw an older car with blue oxidized paint near
the dumpster where Carpenter‘s body was later found. When firefighters arrived,
the car was gone. Although defendant was charged with Carpenter‘s murder, the
jury hung 11 to one in favor of guilt.
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4. JoAnn Sweets
Two and one-half months later, on May 9, 1986, police found the body of
JoAnn Sweets. She was in a dumpster behind defendant‘s apartment, just one
block from where police had found Carpenter‘s body and steps from where Maria
R. was assaulted. She was unclothed except for a bra and blouse. Sweets, a 34-
year old African-American woman, had been killed by manual strangulation and
had severe injuries to her face and neck. She also had a broken neck, clavicle and
rib. Cocaine was detected in her body. Her body was wrapped in a bed sheet and
a mattress pad and then placed in two plastic garbage bags sealed with tape.
Everything in the dumpster was covered by an afghan blanket.
Defendant‘s sister, L.A., told police she was almost 100 percent sure her
mother had crocheted the blanket, although she backtracked somewhat at trial.
Carpet fibers found on Sweets‘s blouse, the mattress pad and the afghan blanket
matched the carpet in defendant‘s apartment on 51st Street. Using a process called
vacuum metal deposition, police also discovered defendant‘s fingerprints and one
of his palm prints on the plastic garbage bags. They also found his fingerprint on
the dumpster.
Oral and vaginal swabs of Sweets‘s body tested negative for spermatozoa.
Some sperm was detected on rectal swabs, but not enough to test. The bed sheet
in which Sweets was wrapped was stained with semen, and a genetic test
determined that more than one man had produced the stains. Defendant‘s
genotype was represented in the stains, and epithelial cells found on the unstained
portion of the sheet were also consistent with defendant‘s genotype.
The jury convicted defendant of the first degree murder of Sweets and
sustained a special circumstance allegation that he killed her while engaged in the
commission or the attempted commission of a forcible sodomy. (§§ 187, 189,
190.2, subd. (a)(17).)
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5. Sophia Glover
On August 15, 1986, about three months after police found JoAnn Sweets‘s
body, police discovered the lifeless body of Sophia Glover rolled in a blanket and
placed on the grassy area between the sidewalk and the street, about a block from
the Wilsie home on Mississippi Street. Glover, a 37-year-old African-American
woman, was living on the streets at the time she was killed and may have been a
prostitute. Her body bore severe trauma to the head, neck and chest, and she had
cocaine in her system when she died. An autopsy determined she died of asphyxia
due to manual strangulation. One of Wilsie‘s neighbors found Glover‘s clothes
neatly folded and stacked in a nearby alley.
A small amount of spermatozoa was found on a vaginal swab taken from
Glover‘s body, and both spermatozoa and acid phosphatase, indicative of seminal
fluid, were found on an anal swab. The amount of genetic material on the vaginal
swab was deemed insufficient for testing, but the spermatozoa on the anal swab
was consistent with defendant‘s genotype and subject to the same population
statistics, i.e., 15 percent of the African-American population has that genotype.
The jury convicted defendant of the first degree murder of Glover and
sustained a special circumstance allegation that he did so while engaged in the
commission or attempted commission of a forcible sodomy. (§§ 187, 189, 190.2,
subd. (a)(17).)
6. Bertha R.
Evidence of defendant‘s crimes against Bertha R. was admitted as tending
to prove his identity, motive, and intent in the charged crimes. Bertha, an African-
American woman, testified that on October 16, 1986, about two months after
Glover was killed, she was in a telephone booth on El Cajon Boulevard looking up
the address of a check-cashing store so she could cash a check. Bertha was
employed as a cook and was not a prostitute, although El Cajon Boulevard was a
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street where many prostitutes worked. Defendant pulled up in a blue Datsun
280Z, engaged her in conversation, told her he knew the location of the check-
cashing place, and offered her a ride. Bertha thought he seemed nice so she
agreed, and he drove her to the store. The computers were down at the check-
cashing store, however, so defendant suggested she hang out with him and she
agreed. He drove her to a home she later identified as the Wilsie home on
Mississippi Street. Once inside, they smoked a marijuana cigarette.
As they sat on the sofa watching television, he asked her if he would ―be
too forward if he asked me to kiss [him].‖ She declined the kiss. They continued
to watch television but he suddenly grabbed her neck very tightly from behind.
He had a knife in the other hand and told her that if she did not do what he said, he
would kill her. He then forced her to disrobe and attempted to sodomize her.
When he was unsuccessful at achieving penetration, he raped her. As she got
dressed, he went through her purse and took $65 in cash. After she was dressed,
he said, ―I have got to find someplace to put you.‖ He took her back to his car and
they drove to Fiesta Island. Once there, he told her he knew where she lived and
he would kill her family if she reported the crime. He then forced her to orally
copulate him in the car. From there they drove around the San Diego area, but
when she told him she was about to vomit he let her out of the car and she
escaped.
Defendant was tried separately for these crimes, convicted of several
felonies and sentenced in 1987 to 22 years in prison.
7. Karen M.
On October 20, 1986, just four days after assaulting Bertha R., Karen M.,
an admitted drug addict and prostitute, was on the street near 29th Street and
Imperial Avenue when defendant pulled up in a blue/gray Datsun 280Z. He
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solicited her for an act of prostitution and she agreed. Although her preference
was to have a ―car date,‖ defendant said he had a house and took her to the Wilsie
house on Mississippi Street. Once there, she remarked that she had a bottle of
Jack Daniel‘s whiskey and offered him some, so he went into the kitchen to get a
glass while she disrobed. When she asked about her payment, he placed her in a
choke hold from behind, completely lifting her off the floor by her neck. He told
her to do as he said or he would kill her. She was beginning to black out, so she
agreed.
After defendant released her from the choke hold, he forced her to drink a
large glass of whiskey, which made her sick. She told him she would do whatever
he wanted and pleaded with him not to hurt her. She then orally copulated him; he
attempted to sodomize her but was unsuccessful. Defendant attempted several
more sex acts and continued to force the victim to drink whiskey. She eventually
passed out and was discovered by Marjorie Wilsie, who had come to the house to
clean up following her mother-in-law‘s death two weeks earlier. The police
responded to the scene and although Karen M. protested that she was guilty of
nothing more than prostitution, she was arrested for burglary and sent to a
detoxification center. She told police she had been raped, but they did not then
believe her.
With regard to the crimes involving Karen M., the jury convicted defendant
of attempted murder and three forcible sex crimes: rape, sodomy and oral
copulation. (§§ 664/187, 261, subd. (a)(2), 286, subd. (c), 288a, subd. (c).) The
jury also sustained a multiple-murder special-circumstance allegation. (§ 190.2,
subd. (a)(3).)
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B. Pretrial Issues
1. Dismissal of Prospective Juror Based Solely on His Written
Responses on the Jury Questionnaire
Defendant contends his penalty judgment must be reversed because the trial
court improperly excused Prospective Juror A.M. for cause based on his views on
capital punishment, solely as expressed in his written responses on the jury
questionnaire. As we explain, although we reject respondent‘s contention that
defendant forfeited this claim, the record nevertheless suggests that defense
counsel acquiesced in the juror‘s excusal. In any event, the record shows the court
could properly exclude the identified juror for cause without undertaking a further
in-person exploration of the juror‘s views concerning capital punishment.
The record reveals the trial court was interested in streamlining the jury
selection process and informed the parties that if, after reading the jury
questionnaires, the court strongly believed a particular juror was biased and thus
unsuitable to sit on the jury, it intended to excuse the juror without any oral voir
dire. The prosecutor objected to this proposal and asked the court to follow
―statutory procedure‖ in which the two sides alternate challenging jurors for cause,
but the court overruled the objection, explaining its proposed procedure would
save time. Defendant joined the prosecutor‘s objection.
After the trial court questioned the suitability of one juror and excused him
when neither party objected, the prosecutor suggested that counsel for both sides
could simply list the jurors they believed could be excluded for cause based on the
jurors‘ questionnaire answers. Counsel could see if both sides listed some of the
same jurors, and then the court could suggest others. The court agreed. Defense
counsel then listed several prospective jurors they felt were excludable for cause
and the parties discussed those jurors. Some were retained (at least temporarily,
pending further inquiry) and some were excused for cause. The prosecutor then
9
identified jurors he believed were excludable for cause. The first on the
prosecution‘s list was Prospective Juror A.M., about whose exclusion defendant
now complains. The prosecutor explained why, based on A.M.‘s questionnaire
answers, he believed ―the juror‘s views would ‗prevent or substantially impair the
performance of his duties as a juror in accordance with his instructions and his
oath.‘ ‖ (Wainwright v. Witt (1985) 469 U.S. 412, 424.) The prosecutor noted that
based on his answers, A.M. ―quite candidly comes out and tells us he can‘t kill
anyone.‖ The trial court suggested it tended to agree and asked defense counsel to
comment on the merits of the prosecutor‘s assertion. Defense counsel replied:
―With regard to—well, he indicates that he—we will submit it on this one, your
honor.‖ (Italics added.) The court then excused Prospective Juror A.M. for cause.
We reject respondent‘s contention that defendant forfeited the claim, for
when this pretrial proceeding occurred in 1994, an objection was not necessary to
preserve this type of error for appeal. (People v. Velasquez (1980) 26 Cal. 3d 425,
443 [discussing Witherspoon1 error]; see People v. Bivert (2011) 52 Cal. 4th 96,
112 [recognizing the Velasquez rule].) We recently reexamined the Velasquez ―no
forfeiture‖ rule and unanimously overruled it for cases tried in the future. (People
v. McKinnon (2011) 52 Cal. 4th 610, 637-643; id., at p. 699 (conc. & dis. opn. of
Werdegar, J.) [expressly agreeing with the majority on this point].)
Although we find no forfeiture on this record, we also find no error. Under
Wainwright v. Witt, supra, 469 U.S. 412, ― ‗[a] prospective juror who would
invariably vote either for or against the death penalty because of one or more
1 Witherspoon v. Illinois (1968) 391 U.S. 510 was the precursor to
Wainwright v. Witt, supra, 469 U.S. 412, which explains the federal standard for
removing prospective jurors in a capital case due to their views on capital
punishment.
10
circumstances likely to be present in the case being tried, without regard to the
strength of aggravating and mitigating circumstances, is . . . subject to challenge
for cause . . . .‘ ‖ (People v. Ledesma (2006) 39 Cal. 4th 641, 671.) ―[N]ot all who
oppose the death penalty are subject to removal for cause in capital cases; those
who firmly believe that the death penalty is unjust may nevertheless serve as
jurors in capital cases so long as they state clearly that they are willing to
temporarily set aside their own beliefs in deference to the rule of law.‖ (Lockhart
v. McCree (1986) 476 U.S. 162, 176.)
― ‗[A] prospective juror in a capital case may be discharged for cause based
solely on his or her answers to the written questionnaire if it is clear from the
answers that he or she is unwilling to temporarily set aside his or her own beliefs
and follow the law.‘ ‖ (People v. Wilson (2008) 44 Cal. 4th 758, 787, quoting
People v. Avila (2006) 38 Cal. 4th 491, 531.) The juror‘s written answers need not,
however, dispel ―all possible or theoretical doubt‖ regarding the juror‘s fitness to
serve (People v. McKinnon, supra, 52 Cal.4th at p. 647), and on appeal we
evaluate the question of a juror‘s fitness to serve de novo (id., p. 648).
Prospective Juror A.M.‘s jury questionnaire shows that although he was
generally pro-prosecution, he held strong, religion-based views against capital
punishment. Answering question 76, he wrote: ―I have a real problem with the
death penalty. Life comes [from] God. I don‘t feel I could be [a] party to killing
another person regardless of the justification.‖ Answering question 91, he wrote:
―God gives life [and] only God should take life.‖ Asked in question 93(c) whether
his opposition to the death penalty would ―substantially impair‖ his ability to vote
for the death penalty, he gave this terse response: ―There are no appropriate
circumstances to kill.‖
Because those who oppose capital punishment may still serve on a capital
jury, the key questions were questions 103 and 104, which concerned the guilt and
11
penalty phases, respectively. Question 103 asked in pertinent part: ―[S]hould you
be selected to sit as a juror on this case, do you feel you are able and willing to
completely put aside any thought or concern relating to penalty issues while you
deliberate the question of guilt on these charges?‖ (Italics added.) Prospective
Juror A.M. did not check the box for either ―Yes‖ or ―No,‖ and instead wrote:
―Possibly.‖ Question 104 asked: ―Having heard the Court‘s orientation and
procedures for a death penalty trial, can you follow the instructions of the Court
given to you in this case?‖ (Italics added.) Prospective Juror A.M. wrote: ―[N]ot
in the penalty part.‖ By these answers, A.M. made clear that he could not, and
would not, consider the death penalty as a possible punishment in this case.
Because his views would thus ― ‗prevent or substantially impair the performance
of his duties as a juror in accordance with his instructions and his oath‘ ‖
(Wainwright v. Witt, supra, 469 U.S. at p. 424), the trial court properly excluded
him without orally questioning him.
2. Wheeler/Batson
During jury selection, after the prosecution used peremptory challenges to
excuse two African-American prospective jurors, Y.J. and C.G., defendant moved
to quash the venire, citing People v. Wheeler (1978) 22 Cal. 3d 258. The trial court
found defendant had made a prima facie showing of group bias, whereupon the
prosecutor stated his reasons for his challenges. The court proclaimed it was
―completely satisfied‖ with those reasons and denied the motion. Defendant
renewed his Wheeler motion when the prosecutor challenged and excused another
prospective juror, N.S.2 As to N.S., the trial court found no prima facie showing
2 Defendant also cited the excusal of a fourth prospective juror, an African-
American man, in this second motion but does not renew the claim on appeal.
12
had been made. Defendant renews these claims on appeal, arguing these three
jurors were excused based on their race.
Under both People v. Wheeler, supra, 22 Cal. 3d 258, and its federal
constitutional counterpart, Batson v. Kentucky (1986) 476 U.S. 79, a party who
believes his opponent is using peremptory challenges animated by a prohibited
discriminatory purpose must first make a prima facie showing of such group bias.
(People v. Lenix (2008) 44 Cal. 4th 602, 612; Johnson v. California (2005) 545
U.S. 162, 168.) ―In order to make a prima facie showing, ‗a litigant must raise the
issue in a timely fashion, make as complete a record as feasible, [and] establish
that the persons excluded are members of a cognizable class.‘ ‖ (People v. Gray
(2005) 37 Cal. 4th 168, 186.) The objecting party must then produce evidence
― ‗sufficient to permit the trial judge to draw an inference that discrimination has
occurred.‘ ‖ (Ibid., quoting Johnson v. California, supra, at p. 170.) This prima
facie assessment is sometimes called ―the first stage of a Batson inquiry.‖ (People
v. Mills (2010) 48 Cal. 4th 158, 174.)
If the defendant succeeds in establishing a prima facie case, the burden
shifts to the prosecutor to justify the challenges. (People v. Lenix, supra, 44
Cal.4th at p. 612.) The court then evaluates the prosecutor‘s responses to
determine whether purposeful discrimination has been proven. At this so-called
third stage of the Batson inquiry, the trial court often bases its decision on whether
it finds the prosecutor‘s race-neutral explanations for exercising a peremptory
challenge are credible. ― ‗Credibility can be measured by, among other factors,
the prosecutor‘s demeanor; by how reasonable, or how improbable, the
explanations are; and by whether the proffered rationale has some basis in
accepted trial strategy.‘ ‖ (Lenix, at p. 613, quoting Miller-El v. Cockrell (2003)
537 U.S. 322, 339.)
13
―Review of a trial court‘s denial of a Wheeler/Batson motion is deferential,
examining only whether substantial evidence supports its conclusions.‖ (People v.
Lenix, supra, 44 Cal.4th at p. 613.) We have explained that ― ‗the trial court must
evaluate not only whether the prosecutor‘s demeanor belies a discriminatory
intent, but also whether the juror‘s demeanor can credibly be said to have
exhibited the basis for the strike attributed to the juror by the prosecutor,‘ ‖ that
― ‗these determinations of credibility and demeanor lie ― ‗peculiarly within a trial
judge‘s province,‘ ‖ ‘ ‖ and that, thus, ― ‗ ―in the absence of exceptional
circumstances, we would defer to [the trial court].‖ ‘ ‖ (Id., at p. 614, quoting
Snyder v. Louisiana (2008) 552 U.S. 472, 477.)
Here no dispute exists that defendant made a prima facie case with regard
to Jurors Y.J. and C.G. He objected and made his record. Respondent concedes
both women were African-Americans and thus were members of a cognizable
class. We then turn to the trial court‘s evaluation of the prosecutor‘s reasons for
excusing the women. ―The proper focus of a Batson/Wheeler inquiry . . . is on the
subjective genuineness of the race-neutral reasons given for the peremptory
challenge, not on the objective reasonableness of those reasons.‖ (People v.
Reynoso (2003) 31 Cal. 4th 903, 924.) ― ‗[E]ven a ―trivial‖ reason, if genuine and
neutral, will suffice.‘ [Citation.] A prospective juror may be excused based upon
facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic
reasons.‖ (People v. Lenix, supra, 44 Cal.4th at p. 613.)
With regard to Prospective Juror Y.J., the prosecutor stated numerous
reasons why he excused her. He explained the prosecution had devised a
numerical score for each prospective juror based on their desirability, and Y.J.
rated very poorly. She had worked at the Job Corps, and because defendant had
attended there, the prosecutor thought some mitigating evidence related to that
organization might be introduced at the penalty phase. He did not ―want to take
14
the chance that [it] will and that [Y.J.] will have a link to this man because of her
employment and his connection to the Job Corps.‖ In addition, Y.J. was twice
divorced, and both her children were either separated or divorced. ―That shows
me some instability that I am not comfortable with.‖ Additionally, she expressed
interest in being a counselor, ―a helping person, someone to get everyone better. I
see that as . . . contrary . . . towards what I will be asking them to do; that is, to kill
this defendant.‖ She was a loner; she expressed the view that the police
sometimes ―shoot too quickly,‖ suggesting some hostility to law enforcement; she
was seeing a psychiatrist; her support for the death penalty was ―weak‖ and ―she
says she dislikes making this very crucial decision.‖
Defendant attacks each of these explanations separately as pretextual, but
he did not raise these arguments below. Moreover, even assuming a suspicion of
pretext could be raised as to one or two of these reasons, the persuasive power of
all of them, taken together, convinces us that our usual deference to the trial
court‘s assessment of the prosecutor‘s sincerity is appropriate. Here, the
prosecutor‘s expressed apprehension about the Job Corps connection between
defendant and Y.J. seems a legitimate concern unrelated to race. In addition, other
matters that can justify a peremptory challenge are a prospective juror‘s ―negative
views of the police‖ (People v. Guerra (2006) 37 Cal. 4th 1067, 1102), ―a juror‘s
experience in counseling or social services‖ (People v. Clark (2011) 52 Cal. 4th
856, 907 [juror was a ―licensed pastoral counselor‖]; People v. Landry (1996) 49
Cal. App. 4th 785, 790-791 [work in youth services might suggest bias in a
defendant‘s favor]), and a juror‘s experience with psychology (People v. DeHoyos
(July 8, 2013, S034800) __ Cal.4th ___, ___ [p. 37] [juror‘s ―educational
background, interest, and experience in the field of psychology was a race-neutral
reason justifying his excusal‖]; Clark, supra, at p. 907 [juror had taken college
courses in psychology]). Finally, ―[a] prospective juror‘s reluctance to vote for a
15
penalty verdict of death is a permissible, race-neutral reason for exercising a
peremptory challenge.‖ (People v. Elliott (2012) 53 Cal. 4th 535, 561.)
With regard to Prospective Juror C.G., the prosecutor stated that he had
also rated her very low because she exhibited ―liberal tendencies.‖ He based his
views on her involvement with the restoration of wetlands in the Famosa Slough,
along with her involvement with the ―San Diego Environmental Project, [and the]
Equal Employment Opportunity [Commission].‖ In addition, she did not read the
newspaper, she was dissatisfied about a police response to a burglary, her
questionnaire suggested she would apply a ―shadow of a doubt‖ standard rather
than a beyond a reasonable doubt standard, she had doubts about the
persuasiveness of circumstantial evidence, and she was seeing a therapist for
depression. Defendant criticizes some of these reasons (for example, the
prosecutor may have exaggerated her negative views about police, and her views
on reasonable doubt and circumstantial evidence were expressed before the court
educated her on the law) and argues they were pretextual. We defer, however, to
the trial court‘s assessment of the prosecutor‘s reasons as being subjectively
genuine. (People v. Reynoso, supra, 31 Cal.4th at p. 924.)
For example, we need not debate whether the policies of certain
organizations are liberal or not; the prosecutor‘s subjective distrust of jurors
affiliated with such organizations—if genuine—is sufficient to support the juror
challenge. (People v. Ward (2005) 36 Cal. 4th 186, 202, citing People v. Wheeler,
supra, 22 Cal.3d at p. 275 [subjective mistrust of a juror‘s objectivity is
sufficient].) That the prosecutor was genuinely concerned about C.G.‘s views on
the People‘s burden of proof and the power of circumstantial evidence is shown by
his specific questioning of her on these topics. As with Prospective Juror Y.J., her
psychological issues (she admitted she had been very depressed and had been
seeing a therapist periodically) could legitimately raise red flags for the
16
prosecutor. The trial court declared itself ―very satisfied that the reasons stated are
substantial and do not relate to color whatsoever. [¶] I will indicate that I noticed
[Prospective Juror C.G.] almost looked like she was in tears when she was
explaining the tragedies she has personally gone through over the last few years
and it‘s pretty heart-breaking.‖ We defer to this conclusion that the prosecutor‘s
reasons for excusing C.G. were not based on group bias.
Defendant further argues the prosecutor excused Prospective Juror N.S.
based on her race. Unlike with the excusals of Prospective Jurors C.G. and Y.J.,
the trial court declined to find defendant had satisfied his burden of demonstrating
a prima facie case with regard to N.S.; therefore, this is a Batson first-stage issue
and we have no explanation by the prosecutor to evaluate. In addition, the record
reveals the trial court was uncertain what standard to apply in determining whether
defendant had carried his prima facie burden.3 Under such circumstances,
3 Earlier in the voir dire, when discussing defendant‘s Wheeler/Batson
motion in connection to Prospective Juror C.G., the following colloquy occurred:
―[THE COURT:] I am going to ask you to state your reasons, in any event.
This is not an issue that is very clear to me. I do not feel that the case law gives a
lot of help [in]this regard with respect to when that prima facie case has been
made.
―And I am just going to be very frank. I think that the trial court does not
have enough guidance to be real firm. The first time around I have no problem
whatsoever. There absolutely was nothing on which to do it. This time I just
don‘t know. I am not clear. And I am going to ask you to, for that reason, to state
your reasons why you would . . . exercise a peremptory as to [Prospective Juror
C.G.].
―[THE PROSECUTOR]: If I may, I think the law is clear that there must
be a substantial showing that the challenges are being exercised for race and race
alone.
―I don‘t think that showing has been made, and I haven‘t heard the court
say that, ‗yes, I think there is a prima facie showing.‘ ‖ (Italics added.)
As the United States Supreme Court made clear in Johnson v. California,
supra, 545 U.S. 162, however, Batson requires only that the objector state facts
(footnote continued on next page)
17
deference to the trial court‘s ruling is inappropriate and we instead review the
record independently. (People v. Hartsch (2010) 49 Cal. 4th 472, 487; People v.
Bonilla (2007) 41 Cal. 4th 313, 342.)
Assessing the record independently, we find ample evidence to support the
trial court‘s ruling that defendant failed to establish a prima face case of group bias
with regard to Prospective Juror N.S. The prospective juror revealed in her
questionnaire that she had been married to a man who had been convicted of
murder. ―[A] prosecutor may reasonably surmise that a close relative‘s adversary
contact with the criminal justice system might make a prospective juror
unsympathetic to the prosecution.‖ (People v. Farnam (2002) 28 Cal. 4th 107,
138.) Accordingly, our independent review of the record reveals adequate support
for the trial court‘s decision not to find a prima facie case of group bias with
regard to Prospective Juror N.S.
3. Speedy Trial
The People alleged defendant assaulted Maria R. on August 15, 1985.
Although the victim‘s complaint led to defendant‘s arrest shortly thereafter, he
was not then prosecuted, probably because the victim did not appear in the district
attorney‘s office for an interview, and she later called the police department to say
she did not intend to pursue the matter. The police nevertheless knew the facts of
the Maria R. incident, as they were mentioned in the 1987 sentencing documents
(footnote continued from previous page)
giving rise to a reasonable inference of discrimination in order to satisfy the prima
facie burden. Language in some California state cases requiring a showing of a
― ‗strong likelihood‘ ‖ of discrimination, or that a peremptory challenge was
― ‗more likely than not’ ‖ motivated by group bias, incorrectly articulated the
applicable standard. (See People v. Gray, supra, 37 Cal.4th at pp. 186-187.)
18
for the Bertha R. case. Although the statute of limitations for any potential sex
crimes committed against Maria R. expired after six years, or around mid-August
1991, defendant was eventually charged with attempting to murder Maria R. in a
complaint filed on January 7, 1993. An information charging that attempted
murder, along with the murders of Simpson, Carpenter, Sweets and Glover, and
the sexual assault and attempt to murder Karen M., was filed on January 14, 1993,
and then amended twice in January 1994.
Defendant moved to dismiss all charges on state and federal due process
and speedy trial grounds. The trial court denied the motion, finding the delay had
not prejudiced defendant. Although the court noted that defendant could raise the
issue again following trial, when the extent of any possible prejudice would be
more apparent, the court reiterated its ruling when defendant raised the issue again
in a motion for a new trial. Now on appeal, defendant renews his state and federal
due process and speedy trial claims, but raises only the delay in charging him with
attempting to murder Maria R. (That was the oldest of the crimes charged, with a
delay of nearly seven years.)
We recently set forth the law applicable to this claim: ―A defendant‘s state
and federal constitutional speedy trial rights (U.S. Const., 6th Amend.; Cal.
Const., art. I, § 15, cl. 1) do not attach before the defendant is arrested or a
charging document has been filed. (People v. Nelson (2008) 43 Cal. 4th 1242,
1250.) Nonetheless, a defendant is not without recourse if a delay in filing charges
is prejudicial and unjustified. The statute of limitations is usually considered the
primary guarantee against overly stale criminal charges (People v. Archerd (1970)
3 Cal. 3d 615, 639), but the right of due process provides additional protection,
safeguarding a criminal defendant‘s interest in fair adjudication by preventing
unjustified delays that weaken the defense through the dimming of memories, the
death or disappearance of witnesses, and the loss or destruction of material
19
physical evidence (Nelson, at p. 1250).
―A defendant seeking relief for undue delay in filing charges must first
demonstrate resulting prejudice, such as by showing the loss of a material witness
or other missing evidence, or fading memory caused by the lapse of time. (People
v. Archerd, supra, 3 Cal.3d at pp. 639-640.) Prejudice to a defendant from
precharging delay is not presumed. (People v. Nelson, supra, 43 Cal.4th at
p. 1250; People v. Catlin (2001) 26 Cal. 4th 81, 107.) In addition, although ‗under
California law, negligent, as well as purposeful, delay in bringing charges may,
when accompanied by a showing of prejudice, violate due process. . . . If the
delay was merely negligent, a greater showing of prejudice would be required to
establish a due process violation.‘ (Nelson, at pp. 1255-1256.) If the defendant
establishes prejudice, the prosecution may offer justification for the delay; the
court considering a motion to dismiss then balances the harm to the defendant
against the justification for the delay. (Nelson, at p. 1250.) But if the defendant
fails to meet his or her burden of showing prejudice, there is no need to determine
whether the delay was justified. (Serna v. Superior Court (1985) 40 Cal. 3d 239,
249; Scherling v. Superior Court (1978) 22 Cal. 3d 493, 506.)‖ (People v. Abel
(2012) 53 Cal. 4th 891, 908-909, fn. omitted.) Although defendant frames his
claim as one under both the federal and state Constitutions, ―[b]ecause the law
under the California Constitution is at least as favorable to defendant as federal
law, we apply California law to defendant‘s claim.‖ (Abel, at p. 909, fn. 1.)
―We review for abuse of discretion a trial court‘s ruling on a motion to
dismiss for prejudicial prearrest delay [citation], and defer to any underlying
factual findings if substantial evidence supports them [citation].‖ (People v.
Cowan (2010) 50 Cal. 4th 401, 431.) In evaluating the correctness of a trial court‘s
denial of a defendant‘s speedy trial motion, we consider all evidence that was
before the court at the time the trial court ruled on the motion. (Ibid.) Thus,
20
evidence presented at trial may be used to support or reject defendant‘s posttrial
assertion of his speedy trial rights.
We begin with the question of prejudice because it is dispositive.
Defendant‘s case for prejudice hinges on his claim the delay in charging interfered
with his ability to present exculpatory evidence of Maria R.‘s alleged apology for
falsely accusing him. (Post, pt. I.C.4.) Arguing in favor of the speedy trial motion
before trial, defense counsel asserted defendant‘s ability to contest the Maria R.
charges had been hampered because her memory had faded over the years:
―When questioned at the preliminary hearing, [Maria R.] acknowledged having
gone back to the defendant‘s house after this incident with some preacher, but
denied even remembering who the individual was or how she got there or really
what was discussed at that time. [¶] These kinds of things, when they were left to
be investigated until two, three, four years later and as much as five years later,
certainly the lapse of time affects the ability of the defense to present any kind of
response to the charges.‖
The trial court found no prejudice. While admitting the delay may have
caused some memories to fade, the court noted that in a large case with many
witnesses, some delay, and thus the possibility that some memories may fade, is
inevitable. But considering defendant‘s showing, the court noted, ―Most of what
has been offered to the court is purely speculative.‖ ―[W]hat‘s being proffered to
the court is this person might have been able to help the defendant, but you can‘t
put your finger on it. [¶] And I recognize that‘s the dilemma the defense faces, but
the law looks at that and says not good enough, and so I can‘t find that it‘s good
enough.‖ The court also observed that because some of the witnesses were drug
users, some memory loss on their part could be expected even if the case had been
brought promptly. Finally, the court suggested it did not view the defense‘s
assertions of lost evidence favorably because many of defense counsel‘s other
21
claims of lost evidence—unrelated to the crimes against Maria R.—proved to be
false.4
We find no abuse of discretion. (People v. Cowan, supra, 50 Cal.4th at
p. 431.) Although defendant contends he lost two ―important‖ witnesses
(presumably the two people who came to his mother‘s home and delivered Maria
R.‘s alleged apology for falsely accusing him) and that the memories of two more
witnesses (Maria R. and defendant‘s mother) had faded as a result of the delay, we
agree with the trial court‘s assessment that this evidence of prejudice is
speculative. Maria R. was a habitual drug user, and the trial court reasonably
concluded her memory would not have been the best in any case. Although
defendant‘s pretrial motion briefly mentioned his mother, Ann Jones, and claimed
her lack of memory of the alleged apology incident was due to the delay, defense
counsel‘s voluminous declaration in support of the pretrial motion makes scant
mention of either Maria R.‘s or Ann Jones‘s faded memory. Regarding counsel‘s
asserted inability to find the couple who allegedly came to Jones‘s door, neither
defendant‘s pretrial motion nor counsel‘s supporting declaration mentions this
point. A defense investigator‘s extensive declaration, submitted in support of the
pretrial motion, briefly mentions the alleged apology incident but it does not say
he attempted to locate either of the two persons who came to the Jones home, let
alone that he was unsuccessful.
Regarding defendant‘s posttrial speedy trial motion, we conclude the trial
4 For example, defense counsel claimed under penalty of perjury that the
following evidence could not be found due to the passage of time: defendant‘s
school records, defendant‘s sister‘s car (a distinctive blue Datsun 280Z) and
garbage company records indicating when the dumpster in which one of the
victims was found was last emptied. The prosecution showed these claims were
false.
22
testimony supports the trial court‘s conclusion that any potential prejudice flowing
from the delay was speculative. Although Ann Jones testified at trial and
suggested she could not say with assurance the woman who came to the door (and
allegedly apologized) was Maria R., the trial court reasonably discounted this
evidence because Maria R.‘s testimony describing the crime against her ―was
strikingly similar to Karen [M.‘s] and Bertha [R.‘s]. She had no motive to lie, and
her immediate report to the police about the rope was very significant because the
rope was found in the apartment. [¶] So it was . . . an extremely strong case.‖
The court found similarly speculative defendant‘s claim that his asserted inability
to locate the two people who allegedly visited Ann Jones‘s home was traceable to
the passage of time. Although defense counsel argued he had acted reasonably
and diligently in looking for the man described as a preacher,5 the trial court found
―that it would be completely speculative as to whether that minister could have
been located, even had this case proceeded within a few months of the crime
itself.‖
―Under the abuse of discretion standard, ‗a trial court‘s ruling will not be
disturbed, and reversal of the judgment is not required, unless the trial court
exercised its discretion in an arbitrary, capricious, or patently absurd manner that
resulted in a manifest miscarriage of justice.‘ ‖ (People v. Hovarter (2008) 44
Cal. 4th 983, 1004.) We cannot say on this record that the trial court acted in such
5 Counsel Varela explained: ―We have tried every church thing. I mean, I
went walking up and down, up and down El Cajon [Boulevard]. I went to a Praise
the Lord Fellowship on 51st; tried to contact a bunch of them. I walked to
anything that looked like it was there. Nobody remembered anything about
anything at that time. [¶] And then I tried looking and seeing if I could find
anybody that had Spanish-speaking evangelical services that did outreach
programs, and, you know, I was running into walls everywhere. There was just—
nobody remembered. Nobody knows.‖
23
a manner in denying defendant‘s pretrial and posttrial speedy trial motions.
Because we conclude the trial court acted within its broad discretion in finding
defendant was not prejudiced by the delay in charging him with attempting to
murder Maria R., we need not address defendant‘s further argument challenging
the prosecutor‘s multiple justifications for the delay or the trial court‘s acceptance
of those reasons.
4. Severance
Defendant was charged jointly with murdering four women (Tara Simpson,
Trina Carpenter, JoAnn Sweets, Sophia Glover) and attempting to murder
Maria R. and Karen M. He moved before trial to sever the murder counts from the
attempted murder counts, citing section 954 and his right to due process under
both the state and federal Constitutions. After discussing the various factors for
and against joinder, the trial court denied the severance motion, explaining:
―Overall, in looking at this, first I have to say that the charges are initially properly
joined under [section] 954 because they are offenses of the same class and they are
connected together by common elements of substantial importance, and I believe
that severance is not warranted because I do not believe that this appears to be an
unjustified negative impact by a joinder against the defendant. The probative
value is extremely high, and the negative impact is not unfair, in my estimation, in
looking at this overall.‖
Section 954 governs the issue of joinder of counts and it provides in
pertinent part: ―An accusatory pleading may charge two or more different
offenses connected together in their commission, . . . or two or more different
offenses of the same class of crimes or offenses, under separate counts, . . .
provided, that the court in which a case is triable, in the interests of justice and for
good cause shown, may in its discretion order that the different offenses or counts
24
set forth in the accusatory pleading be tried separately or divided into two or more
groups and each of said groups tried separately.‖ (Italics added.) As defendant
concedes, murder and attempted murder are of the same class of crimes within the
meaning of section 954. (People v. Jenkins (2000) 22 Cal. 4th 900, 947.) The
statutory requirements for joinder thus being satisfied, defendant ― ‗can predicate
error in denying the motion only on a clear showing of potential prejudice.
[Citation.] We review the trial court‘s ruling on the severance motion for abuse of
discretion.‘ [Citations.]‖ (People v. Vines (2011) 51 Cal. 4th 830, 855.)
― ‗Refusal to sever may be an abuse of discretion where: (1) evidence on
the crimes to be jointly tried would not be cross-admissible in separate trials;
(2) certain of the charges are unusually likely to inflame the jury against the
defendant; (3) a ―weak‖ case has been joined with a ―strong‖ case, or with another
―weak‖ case, so that the ―spillover‖ effect of aggregate evidence on several
charges might well alter the outcome of some or all of the charges; and (4) any one
of the charges carries the death penalty or joinder of them turns the matter into a
capital case.‘ [Citations.]‖ (People v. Bradford (1997) 15 Cal. 4th 1229, 1315.)
Defendant presents three reasons he claims show the joinder of claims
prejudiced him. First, he argues evidence supporting the four murder counts
would not have been cross-admissible in a separate trial of the two attempted
murder counts. But ― ‗cross-admissibility is not the sine qua non of joint trials.‘ ‖
(People v. Geier (2007) 41 Cal. 4th 555, 575.) Section 954.1 makes this clear,
directing that, ―[i]n cases in which two or more different offenses of the same
class of crimes or offenses have been charged together in the same accusatory
pleading . . . , evidence concerning one offense or offenses need not be admissible
as to the other offense or offenses before the jointly charged offenses may be tried
together before the same trier of fact.‖
25
In any event, the trial court considered the cross-admissibility issue, noting
―the overwhelming marked distinctiveness of the m.o. [modus operandi] in all the
cases.‖ We agree. Evidence that a person has committed other crimes is not
rendered inadmissible by Evidence Code section 1101, subdivision (a) if relevant
to prove such facts as ―motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake or accident‖ (id., subd. (b)), and we understand the
trial court‘s reference to proving an offender‘s ―m.o.‖ (i.e., modus operandi) to
mean proof of intent, plan or identity. (See People v. Maury (2003) 30 Cal. 4th
342, 393 [―the similarities of the offenses . . . were sufficient to establish a
common modus operandi, raising a strong inference [of identity]‖]; People v.
Kraft (2000) 23 Cal. 4th 978, 1062 [commonality and distinctiveness of certain
features of the various crimes suggested the killer‘s modus operandi, and were
relevant to prove his identity]).
Evidence of other crimes can be admitted to prove the offender acted
according to a certain plan, or acted with a particular motive, if a degree of
similarity exists between the past and present crimes so as to permit a reasonable
inference that the offender must have entertained the same intent in both instances.
But to use evidence of prior crimes to prove the identity of the offender in the
present crime requires the highest degree of similarity between the past and
present crimes. ―For identity to be established, the uncharged misconduct and the
charged offense must share common features that are sufficiently distinctive so as
to support the inference that the same person committed both acts. [Citation.]
‗The pattern and characteristics of the crimes must be so unusual and distinctive as
to be like a signature.‘ ‖ (People v. Ewoldt (1994) 7 Cal. 4th 380, 403.)
26
We cannot say the trial court abused its discretion by finding a common
modus operandi sufficient to deny severance. In this case, in the space of a few
months,6 someone began attacking lone women, often prostitutes, along or near El
Cajon Boulevard in San Diego, a street known to be populated by women
engaging in prostitution. With one exception,7 the victims were all African-
American. Defendant attacked Maria R. at his 51st Street apartment and attacked
Karen M. at the Mississippi Street home where his mother worked. The bodies of
all four murder victims were found in close proximity to one of those two
residences. All victims were sexually molested. Three of the murder victims were
found in dumpsters; the body of the fourth victim (Glover) was rolled in a blanket
and discarded on the area between the sidewalk and the street, like garbage. Maria
R. and Karen M. were attacked after consenting to have sex for money; as the four
murder victims were all prostitutes, it is likely they were lured to their deaths by a
perpetrator using the same ruse. All victims were either choked or strangled; none
was shot. Under these circumstances, that the crimes would have been cross-
admissible in separate trials to establish a common and distinctive modus operandi
is likely. ―To be admissible to demonstrate a distinctive modus operandi, the
evidence must disclose common marks or identifiers, that, considered singly or in
combination, support a strong inference that the defendant committed the crimes.‖
(People v. Maury, supra, 30 Cal.4th at p. 392.)
6 The first attack was against Maria R. on August 15, 1985. The ensuing
crimes occurred on August 29, 1985 (Tara Simpson), February 11, 1986 (Trina
Carpenter), May 9, 1986 (JoAnn Sweets), August 15, 1986 (Sophia Glover),
October 16, 1986 (Bertha R.), and October 20, 1986 (Karen M.).
7 Maria R. has a Hispanic surname.
27
Defendant next contends joinder permitted the prosecution to bolster the
allegedly weaker murder counts (JoAnn Sweets, Sophia Glover) with the stronger
attempted murder counts, both by inflaming the jury and by allowing it to
aggregate evidence of identity. The trial court explicitly considered this point but
rejected it after carefully considering the argument. We find no abuse of
discretion. At the threshold, we question the premise, that is, that the evidence
was so weak as to some counts and so strong as to others that the stronger counts
would fill in the gaps in the evidence for the weaker counts. Although both Maria
R. and Karen M. identified defendant as their assailant, the evidence of those
counts was not necessarily exceptionally strong, as both victims were subject to
impeachment on the grounds they were prostitutes and drug addicts. Maria R.,
moreover, had dropped the initial prosecution. Further, the evidence of
defendant‘s involvement in the Sweets murder, although circumstantial, was quite
strong. Police discovered seminal fluid at the scene consistent with his genotype,
his fingerprints were on the garbage bag containing the victim‘s body, and carpet
fibers on the victim matched those in his apartment. Only as to Glover was the
evidence somewhat weak, but as the trial court reasoned, clear evidence of a
consistent modus operandi justified joinder.
Nor is there merit to defendant‘s claim that joinder allowed the jury to
aggregate the evidence. That the jury was able to consider each case on its
individual merits is shown by its failure to reach a unanimous verdict on the
counts involving Simpson and Carpenter. Where the jury returns a guilty verdict
of a lesser crime, or, as here, fails to convict at all on some charges, we are
confident the jury was capable of, and did, differentiate among defendant‘s crimes.
(People v. Ruiz (1988) 44 Cal. 3d 589, 607.)
Finally, citing Williams v. Superior Court (1984) 36 Cal. 3d 441 in support,
defendant argues the trial court ―failed to acknowledge its duty of heightened
28
scrutiny as compelled by the presence of the capital charges.‖ We indeed stated in
Williams that ―the court must analyze the severance issue with a higher degree of
scrutiny and care than is normally applied in a noncapital case.‖ (Id., at p. 454.)
But we have since qualified Williams, explaining that ―the subsequent enactment
of section 790, subdivision (b)—which, as noted, specifically provides for joinder
of capital cases such as these—makes it clear that such a heightened analysis is no
longer called for.‖8 (Alcala v. Superior Court (2008) 43 Cal. 4th 1205, 1229, fn.
19.) In any event, because the Maria R. and Karen M. charges did not elevate the
Sweets and Glover murders into capital offenses, any concern over the unfairness
of joining capital and noncapital charges is minimal. (People v. Vines, supra, 51
Cal.4th at p. 855.)
C. Trial Issues
1. The Bertha R. Evidence
Prior to trial, the prosecution moved to present evidence that on October 16,
1986, defendant assaulted, and forcibly raped and sodomized Bertha R. under
circumstances similar to the charged crimes against JoAnn Sweets, Sophia Glover,
Tara Simpson, Trina Carpenter, Maria R. and Karen M. The prosecution argued
8 Section 790, subdivision (b) provides: ―If a defendant is charged with a
special circumstance pursuant to paragraph (3) of subdivision (a) of Section 190.2,
the jurisdiction for any charged murder, and for any crimes properly joinable with
that murder, shall be in any county that has jurisdiction pursuant to subdivision (a)
for one or more of the murders charged in a single complaint or indictment as long
as the charged murders are ‘connected together in their commission,’ as that
phrase is used in Section 954, and subject to a hearing in the jurisdiction where the
prosecution is attempting to consolidate the charged murders. If the charged
murders are not joined or consolidated, the murder that was charged outside of the
county that has jurisdiction pursuant to subdivision (a) shall be returned to that
county.‖ (Italics added.)
29
in its written motion that the evidence was admissible under Evidence Code
section 1101 ―to prove the following issues in dispute: ―A. the identity of
defendant; [¶] B. the intent of the defendant as demonstrated by: [¶] 1. Motive;
[¶] 2. a common plan, scheme and modus operandi.‖ In support of its motion, the
prosecution attached a transcript of Bertha R.‘s preliminary hearing testimony.
Opposing the motion, the defense argued, ―The factual dissimilarities between
these unrelated cases are apparent.‖ Defendant highlighted four aspects of his
crimes against Bertha R. that differed from the charged offenses: she was not a
prostitute; he approached her and offered her a ride without requesting an act of
prostitution; one of the forcible sex acts occurred in his car rather than in the
apartment; and he threatened her with a knife. The trial court announced its
tentative position was to grant the prosecution‘s motion and admit the evidence,
but invited final argument from defense counsel. Counsel then reiterated many of
the points in his written opposition.
The trial court ruled Bertha R.‘s testimony was admissible to prove
defendant‘s motive, intent and identity, reasoning, ―the marks of distinction
outweigh those that would be dissimilarities. And, again, the clear mark of
distinction that stands out in this case, the Bertha [R.] case, is the force used on an
otherwise willing sexual partner. [¶] She may not have been a prostitute, but she
was willing to go with the defendant to the house on Mississippi Street four days
before the [Karen M.] case.‖ ―I think these distinctive common marks tie it into
[the Karen M. case] and tie it into the rest of the cases, and, therefore, it is
probative. It‘s highly probative and goes to the question of identity, motive,
intent, which is all at issue in this case.‖
30
At trial, prior to Bertha R.‘s testimony, the trial court gave the jury a
limiting instruction applicable to her testimony.9 The witness then testified. She
related how defendant engaged her while she was walking on El Cajon Boulevard,
how she agreed to ―hang out‖ with him, how he drove her in his blue Datsun 280Z
to the Wilsie home on Mississippi Street, how when she refused to kiss him he put
his arm around her neck from behind and strangled her, threatened her with a
knife, attempted to forcibly sodomize and then raped her, stole money out of her
purse, forced her to drive around with him, and forced her to orally copulate him
in his car before she escaped. Prior to the jury‘s guilt phase deliberations, the trial
court again gave the jurors a limiting instruction.
9 ―Ladies and gentlemen, please pay attention. This is one of the instructions
that I will be giving you at the end of the trial also. It‘s called a limiting
instruction. It means that some evidence may come in and you may consider it for
certain purposes, but not for other purposes.
―Evidence may be introduced for the purpose of showing that the defendant
committed a crime other than that for which he is on trial.
―Such evidence, if believed, will not be received and may not be considered
by you to prove that the defendant is a person of bad character or that he has a
disposition to commit crimes.
―Such evidence may be received and may be considered by you only for the
limited purpose of determining if it tends to show the existence of the intent,
which is a necessary element of the crime charged, the identity of the person who
committed the crime, if any, of which the defendant is accused, or a motive for the
commission of the crime charged.
―For the limited purpose for which you may consider such evidence, you
must weigh it in the same manner as you do all other evidence in the case.
―You are not permitted to consider such evidence for any other purpose.
This would be circumstantial evidence and will be also subject to other
instructions on circumstantial evidence, as well.‖
31
a. Challenge to the Admission of the Evidence
Defendant renews his argument the trial court erred under Evidence Code
section 1101 by admitting Bertha R.‘s testimony. As noted (ante, at p. 26),
subdivision (a) of that section provides a general evidentiary rule of exclusion,
providing that ―evidence of a person‘s character . . . in the form of . . . evidence of
specific instances of his or her conduct . . . is inadmissible when offered to prove
his or her conduct on a specified occasion.‖ (Italics added.) The scope of that rule
is clarified in subdivision (b): ―Nothing in this section prohibits the admission of
evidence that a person committed a crime . . . when relevant to prove some fact
(such as motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake or accident . . .) other than his or her disposition to commit
such an act.‖ (Italics added.)10
The rules governing the admissibility of evidence under this section are
well settled. ― ‗ ―Evidence of the defendant‘s commission of a crime other than
one for which the defendant is then being tried is not admissible to show bad
character or predisposition to criminality but it may be admitted to prove some
material fact at issue, such as motive or identity. (Evid. Code, § 1101.) Because
evidence of other crimes may be highly inflammatory, its admissibility should be
scrutinized with great care. [Citation.]‖ [Citation.] In cases in which the
10 Shortly after defendant was tried in 1994, the Legislature added section
1108 to the Evidence Code. (Stats. 1995, ch. 439, § 2, p. 3429.) This new statute
―loosened the restrictions on the admissibility of other-crimes evidence in cases
involving sex crimes‖ (People v. Hovarter, supra, 44 Cal.4th at p. 1002, fn. 7), by
creating an explicit exception to the restrictions of Evidence Code section 1101.
Because the Legislature intended ―to expand the admissibility of disposition or
propensity evidence in sex offense cases‖ (People v. Falsetta (1999) 21 Cal. 4th
903, 911), had section 1108 existed at the time of defendant‘s trial, the statute
likely would have justified the admission of evidence of defendant‘s sexual crimes
against Bertha R.
32
prosecution seeks to prove the defendant‘s identity as the perpetrator of the
charged offense by evidence he had committed uncharged offenses, admissibility
―depends upon proof that the charged and uncharged offenses share distinctive
common marks sufficient to raise an inference of identity.‖ ‘ [Citation.] A
somewhat lesser degree of similarity is required to show a common plan or
scheme and still less similarity is required to show intent. (People v. Ewoldt
(1994) 7 Cal. 4th 380, 402-403.) On appeal, we review a trial court‘s ruling under
Evidence Code section 1101 for abuse of discretion.‖ (People v. Roldan (2005) 35
Cal. 4th 646, 705.)
As noted, ante, in contrast to using evidence of other crimes to prove
―motive, opportunity, intent, preparation, [or] plan‖ (Evid. Code, § 1101, subd.
(b)), the admissibility of Bertha R.‘s testimony to prove defendant‘s identity as the
assailant of JoAnn Sweets, Sophia Glover, Maria R. and Karen M. requires a
higher degree of distinctiveness and commonality between the Bertha R. crimes
and the crimes against the other victims. ―The greatest degree of similarity is
required for evidence of uncharged misconduct to be relevant to prove identity.
For identity to be established, the uncharged misconduct and the charged offense
must share common features that are sufficiently distinctive so as to support the
inference that the same person committed both acts. [Citation.] ‗The pattern and
characteristics of the crimes must be so unusual and distinctive as to be like a
signature.‘ [Citation.]‖ (People v. Ewoldt, supra, 7 Cal.4th at p. 403.)
Accordingly, we first consider whether the evidence could be admitted to prove
defendant‘s identity, because if it was admissible for that purpose, it necessarily
would also have been admissible to prove defendant‘s intent and motive, which
require a lesser degree of distinctiveness.
The key issue in this case was identity. No witness came forward to
identify defendant as the person who killed JoAnn Sweets or Sophia Glover.
33
Substantial forensic evidence linked defendant to Sweets (fingerprints on the trash
bag, DNA evidence, the afghan blanket, carpet fibers), however, making that case
stronger than the one involving Glover. From Glover‘s body police had obtained
DNA evidence that was only moderately incriminating, placing the donor of that
semen sample—and defendant‘s sample—within 15 percent of the African-
American population. But a pattern emerged among the cases. Someone was
preying on African-American women in a certain area of San Diego in 1985 and
1986. All the victims were lone women, encountered, or likely encountered, on
the street. All were, or likely were, contacted on or around El Cajon Boulevard in
San Diego, an area frequented by prostitutes. All save Maria R. were African-
American and all save Bertha R. were, or likely were, prostitutes or homeless
women living on the streets. Three victims who survived the attacks — Maria R.,
Karen M., and Bertha R. — identified defendant and described how they were
taken to either his apartment on 51st Street or the Wilsie home on Mississippi
Street (to which he had access). That the surviving victims were able to identify
the apartments where they were brutalized is significant because the women who
were killed were all found in close proximity to one of these residences. All of the
women were manually strangled. All of the women were forced into brutalizing
sex acts. Several of the victims testified to, or their bodies bore evidence of, anal
sex. Drugs and alcohol were also a theme. The bodies of the women who lost
their lives were treated like trash, found discarded in a dumpster or, in Glover‘s
case, rolled in a blanket and placed curbside as if she were a piece of refuse. For
the victims who were or likely were prostitutes (Maria R., Tara Simpson, Trina
Carpenter, JoAnn Sweets, Sophia Glover, Karen M.), we may assume they went
with defendant of their own free will. We may also assume they were willing to
have sex with defendant, albeit for money. Although Bertha R. was not a
prostitute and denied she was willing to have sex, defendant encountered her
34
walking alone on a street known for its prostitutes and he may have believed she
was a prostitute. She admitted she went with defendant to the Wilsie home
willingly.
Given these other common and distinctive facts, we must ask: Did the trial
court abuse its discretion in concluding these crimes bore such common and
distinctive marks that the person who committed one of them likely committed all
of them? Viewing the evidence in a light most favorable to the trial court‘s ruling
(People v. Carter (2005) 36 Cal. 4th 1114, 1148), we conclude in the negative.
That some distinctions exist, as defendant contends, is true, but ―[t]o be highly
distinctive, the charged and uncharged crimes need not be mirror images of each
other.‖ (Ibid.)
Defendant emphasizes that unlike the other victims, Bertha R. was neither a
prostitute nor a homeless person. But that she was walking alone on El Cajon
Boulevard, known as a place where prostitutes gathered, and accepted a ride from
defendant, a total stranger, tends to blunt the importance of the fact she was not a
prostitute. As the trial court explained, ―[s]he may not have been a prostitute, but
she was willing to go with the defendant to the house on Mississippi Street.‖
Defendant also argues that—contrary to the trial court‘s expressed justification for
admitting the evidence—Bertha R. was not a willing sex partner because she told
defendant she did not want to kiss him. But defendant may have believed she was
a compliant partner, as she agreed to come to a strange house with a strange man
and smoke marijuana with him. She also otherwise fit the pattern of lone African-
American women defendant encountered along El Cajon Boulevard, took to one of
his residences, and then choked and forced to have sex in multiple and brutalizing
ways. Further, that Maria R., Karen M., and Bertha R. were not deposited in a
dumpster or treated like garbage is of no moment because they managed to escape
with their lives.
35
Defendant also argues no evidence showed Sweets and Glover were also
willing sex partners, but inferences from the evidence suggested both women were
prostitutes. Indeed, in arguing against the persuasiveness of the prosecution‘s
DNA evidence, defense counsel admitted all of the victims were prostitutes. In
any event, at the time the trial court ruled on the pretrial motion, defendant‘s own
moving papers described Sweets and Glover as ―known drug user[s] and
prostitute[s].‖ Nothing defense counsel said in arguing the motion before the trial
court contradicted this. We cannot fault the court for proceeding on the
understanding that Sweets and Glover had been willing sex partners.
Defendant further contends the court erred by considering the use of force
on a willing sex partner to be a distinctive feature of the crimes. He notes violence
against prostitutes is now and was in fact at the time common in San Diego. But
he did not make this argument to the court below, so we cannot fault the court for
failing to consider it. The same is true of defendant‘s further claim that the
existence of copycat killers undermines the persuasiveness of the People‘s
argument that the Bertha R. crimes were similar to the charged crimes.
For a number of other reasons, defendant seeks to distinguish the Bertha R.
crimes from those against the other victims. For example, Bertha R. alone was
threatened with a knife. But that she was also strangled tends to diminish the
importance of that fact. That defendant drove her around the city and forced to
commit a sex act in his car distinguishes her case somewhat from the others, but
by the time defendant assaulted Bertha R., he may have decided to stop discarding
his victims‘ bodies in dumpsters behind his own apartment, prompting his chilling
comment to her that ― ‗I have got to find someplace to put you.‘ ‖ Although
defendant‘s crimes against Bertha R. were not wholly identical to those against
Maria R., Karen M., JoAnn Sweets and Sophia Glover, we find the trial court did
36
not abuse its discretion in admitting her testimony. (People v. Rogers (2006) 39
Cal. 4th 826, 862; People v. Roldan, supra, 35 Cal.4th at p. 705.)
The relative distinctiveness of the Bertha R. crimes aside, defendant
contends the trial court erred in admitting evidence of them because, although his
identity was in issue, his intent and motive in the Sweets and Glover crimes were
not. We disagree. The prosecution was required to prove not only that defendant
was the killer, but that he killed intentionally while committing the charged sex
crimes. (People v. Kipp (1998) 18 Cal. 4th 349, 371-372.) Bertha R.‘s evidence
was thus relevant and its admission did not contravene defendant‘s due process
rights.
Defendant also contends the trial court erred in admitting the evidence
because identity, intent and motive were not at issue in the Maria R. or Karen M.
crimes. We disagree. Assuming without deciding defendant objected on this
specific ground, we find the court properly admitted the evidence. To be sure,
both Maria R. and Karen M. identified defendant as their assailant. But in proving
the culprit‘s identity, the People were entitled to bolster the victims‘ in-court
identifications with additional evidence. Moreover, because defendant was
charged with attempting to kill both victims, Bertha R.‘s evidence was relevant to
demonstrate his probable intent and motive; that is, that he intended to kill them.
Intent to kill is, of course, an element of the offense of attempted murder. (People
v. Osband (1996) 13 Cal. 4th 622, 683.)
Defendant also contends admission of evidence of the crimes against
Bertha R. violated his federal right to due process of law. It does not appear
defendant moved to exclude the evidence on this ground below. Assuming
without deciding we may reach this constitutional issue, we reject it because
defendant fails to persuade us the admission of the Bertha R. evidence ―rendered
37
his trial so fundamentally unfair that it violated his due process rights.‖ (People v.
Roldan, supra, 35 Cal.4th at p. 705, fn. 23.)
b. Challenge to the Jury Instructions
Defendant next argues the trial court‘s jury instruction on the subject of
Bertha R.‘s evidence was erroneous and requires reversal. We disagree. The trial
court delivered this basic instruction to the jury: ―Evidence has been introduced in
this trial for the purpose of showing that the defendant committed crimes against
Bertha [R]. Defendant is not charged in this trial with crimes relating to Ms. [R].
[¶] Such evidence, if believed, was not received and may not be considered by you
to prove that the defendant is a person of bad character or that he has a disposition
to commit crimes. [¶] Such evidence was received and may be considered only
for the limited purpose of determining if it tends to show: [¶] The existence of the
intent, which is a necessary element of crimes charged; [¶] The identity of the
person who committed the crimes, if any, of which the defendant is accused; [¶]
A motive for the commission of the crimes charged; [¶] And for the limited
purpose for which you may consider such evidence, you must weigh it in the same
manner as you do all other evidence in the case. [¶] You are not permitted to
consider such evidence for any other purpose.‖
Defendant contends that ―[w]ithout at least proof that Sophia Glover and
JoAnn Sweets were prostitutes, there was no evidence that either was a willing
sexual partner. Thus, applying the court‘s reasoning, the jury had no basis for
determining that the Bertha [R.], Sophia Glover, and JoAnn Sweets offenses all
[bore] the same signature.‖ This argument, though framed as a challenge to the
jury instruction, merely reprises the issue of whether the evidence was admissible,
a claim we have previously rejected in connection with defendant‘s challenge to
the trial court‘s denial of his severance motion. (See pt. B.4, ante.) Once the
38
court ruled on that motion and admitted the evidence, the court was obliged to
instruct the jury on its proper consideration. That the court instructed the jury that
―[s]uch evidence was received and may be considered only for the limited purpose
of determining if it tends to show‖ intent, identity or motive (italics added), also
undermines defendant‘s argument, for if the jury had found the crimes too
dissimilar, we presume it would have found the evidence did not tend to prove
intent, identity or motive. Because the instruction correctly stated the applicable
law, we also reject defendant‘s argument the instruction violated his due process
rights.
Defendant next argues the jury instructions on other crimes evidence
violated his right to due process under the state and federal Constitutions because
no rational way existed for the jury to make the connection between defendant‘s
guilt of the other crimes and his guilt of the present crimes. (Ulster County Court
v. Allen (1979) 442 U.S. 140, 157.) That is, he contends the jury instructions
allowed the jurors to rely improperly on a permissive presumption to establish his
identity as the killer under circumstances in which it cannot be said ― ‗with
substantial assurance that the presumed fact is more likely than not to flow from
the proved fact on which it is made to depend.‘ ‖ (Id., at p. 166, fn. 28; see People
v. Pensinger (1991) 52 Cal. 3d 1210, 1243-1244 [rejecting the same argument in
connection with the pattern instruction on the inference of a consciousness of guilt
arising from flight].) We reject the argument, because ―reason and common sense
amply justified the suggested conclusion‖ that the person who committed the
Maria R., Karen M, and Bertha R. crimes likely committed the very similar
Simpson, Carpenter, Sweets and Glover crimes. (People v. Yeoman (2003) 31
Cal. 4th 93, 131 [rejecting the same argument in connection with CALJIC No. 2.06
(attempt to suppress evidence indicates a consciousness of guilt)].)
39
2. Admission of DNA Evidence
a. The Evidence
Dr. Edward Blake testified as an expert for the prosecution and related the
results of his testing of genetic material found at three of the crime scenes.
Regarding sperm and epithelial cells on two cotton balls found with Trina
Carpenter‘s body, the evidence suggested two different sperm donors. Dr. Blake
analyzed the sample‘s deoxyribonucleic acid (DNA) with a process known as
polymerase chain reaction, or PCR. His examination of the gene known as DQ-
Alpha indicated someone belonging to a population group consistent with
defendant‘s DNA had deposited the greater amount of sperm. According to Dr.
Blake, a population frequency analysis of the 21 different DQ-Alpha genotypes
has shown that defendant‘s genotype appears in approximately 6 percent of the
African-American population, 5 percent of the Caucasian population, and slightly
more than 2 percent of the Mexican-American population.
On rebuttal, Dr. Blake testified that he also subjected the genetic material
on the cotton balls to a different kind of PCR test called polymarker analysis. This
method compared five different genes rather than the single gene used in the DQ-
Alpha test and was thus more precise. Because the defense argued that Carpenter
was likely killed by Randy Lockwood, La-Jon Van Reed, or Prince Johnson,
individuals who were involved in the drug trade milieu of which the victim was a
part, Dr. Blake used the polymarker analysis to test samples from those three men
as well as defendant. The results of this second round of testing showed defendant
could not be eliminated as the donor of the sperm found on the cotton balls, and
that neither Lockwood, nor Reed, nor Johnson was the donor.
Although no sperm was found on oral or vaginal swabs taken from JoAnn
Sweets‘s body, and the amount of sperm on the rectal swab was too small to test
for DNA, five areas of the bed sheet in which Sweets‘s body was wrapped showed
40
signs of semen and were tested for genetic markers. Dr. Blake found a mixed
sample of semen (i.e., from more than one donor) on the bed sheet and his analysis
on cuttings from the sheet using the PCR DQ-Alpha technique showed the sperm
was deposited by someone belonging to a population group consistent with
defendant, as judged by the same frequency statistics as above. On rebuttal, Dr.
Blake testified the results of the polymarker DNA test showed he could not
eliminate defendant as the donor of the semen found on the bed sheets. Although
defendant had suggested Sweets‘s erstwhile boyfriend, Ike Jones, was responsible
for her death, Dr. Blake concluded that a DNA comparison of the bed sheet stain
with a genetic sample from Ike Jones showed he was not one of the donors.
Sperm and seminal fluid were found on a swab taken from Sophia Glover‘s
rectum and Dr. Blake‘s PCR DQ-Alpha analysis of that swab showed the sperm
cells were consistent with defendant‘s DNA, as judged by the same population
frequency statistics. On rebuttal, Dr. Blake testified that his polymarker analysis
suggested the sperm from the swab was ―fairly evenly balanced‖ between two
donors of sperm, and that possibly the sperm from a third donor was also present.
In light of this new evidence, Dr. Blake revised his estimate of how frequently the
particular genetic pattern appeared, saying that 15.1 percent of the African-
American population (including defendant) matched the possible genotypes found
on the swab. In other words, Dr. Blake could not eliminate defendant as the
donor, but defendant was not the only contributor to the sample drawn from
Glover‘s body.
b. PCR Analysis of the DQ-Alpha Gene
Defendant moved before trial to exclude Dr. Blake‘s intended testimony,
citing People v. Kelly (1976) 17 Cal. 3d 24. Kelly was the genesis of a rule,
41
previously called the ―Kelly/Frye rule,‖11 that governs the admissibility of
evidence derived from new scientific techniques. ―Under Kelly, the proponent of
evidence derived from a new scientific technique must establish that (1) the
reliability of the new technique has gained general acceptance in the relevant
scientific community, (2) the expert testifying to that effect is qualified to give an
opinion on the subject, and (3) the correct scientific procedures were used.
[Citation.]‖ (People v. Doolin (2009) 45 Cal. 4th 390, 445.) After considering
what it characterized as ―mounds of material‖ that both the defense and the
prosecution submitted, the trial court ruled Dr. Blake‘s intended testimony
satisfied the Kelly test.
Defendant does not specifically argue that PCR analysis of the DQ-Alpha
gene itself fails the Kelly test. Rather, he launches a more specific, four-part
challenge to the trial court‘s ruling. We note that since the time of defendant‘s
trial, ―[c]ourts have applied the Kelly three-pronged approach to various
techniques used in forensic DNA testing‖ (People v. Henderson (2003) 107
Cal. App. 4th 769, 777), including PCR, the method used in this case. PCR ―takes
small pieces of DNA and copies or amplifies them[, and] is used when the DNA
sample is too small or degraded to perform the [restricted fragment length
polymorphism] method.‖ (Id., at p. 778.) ―PCR analysis of DQ alpha involves
three general steps. First, DNA is extracted from the nucleus of cells present in an
unknown bloodstain. Second, the DQ Alpha is replicated or amplified by a
process which involves combining the DNA with a commercially available
11 See Frye v. United States (D.C. Cir. 1923) 293 F. 1013, 1014, superseded
by statute as explained in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993)
509 U.S. 579.
42
solution or ‗cocktail‘ and then subjecting the solution to a series of controlled
temperature cycles. Finally, the amplified gene is typed in order to identify the
alleles[12] present in the amplified DNA.‖ (People v. Morganti (1996) 43
Cal. App. 4th 643, 662, fn. omitted.) PCR testing of the DQ-Alpha gene also works
for semen stains. (People v. Reeves (2001) 91 Cal. App. 4th 14, 24-25.)
PCR analysis of the DQ-Alpha gene is now firmly established as a
scientific technique that satisfies the Kelly test. (People v. Doolin, supra, 45
Cal.4th at p. 448; People v. Morganti, supra, 43 Cal.App.4th at p. 669.)13 ―Once a
published appellate decision has affirmed admission of a scientific technique, the
technique‘s general acceptance is established as a matter of law. Further hearings
on general acceptance are unnecessary ‗at least until new evidence is presented
reflecting a change in the attitude of the scientific community.‘ [Citations.]‖
(Doolin, supra, at p. 447.)
Apparently accepting the scientific community‘s approval of PCR testing in
general, defendant argues that, by admitting Dr. Blake‘s testimony, the trial court
12 ―Because there is no practical way to sequence all three billion base pairs in
a person‘s DNA, forensic scientists seek to identify individuals through variations
in their base-pair sequences at polymorphic DNA locations (loci). Each variation
in sequence is called an ‗allele.‘ ‖ (People v. Venegas (1998) 18 Cal. 4th 47, 59,
fn. omitted.) ―In genetics, ‗allele‘ usually means an alternate form of gene on one
of a pair of chromosomes at a particular locus. In forensic analysis, the term is
expanded to include an alternate form of any base-pair sequence.‖ (Id., at p. 59,
fn. 10.)
13 Defendant suggests Morganti is distinguishable because it was ―not a
mixed sample case.‖ Subsequent to Morganti, however, published cases have held
that because PCR has attained a consensus in the scientific community as a valid
procedure, its use for mixed-source samples does not constitute a new scientific
procedure separately subject to Kelly. (See, e.g., People v. Stevey (2012) 209
Cal. App. 4th 1400, 1411; People v. Smith (2003) 107 Cal. App. 4th 646, 665.)
43
nevertheless erred in four specific ways: (1) Dr. Blake‘s use of something called
―dot intensity‖ analysis to determine the genotypes present in a mixed-donor
sperm sample was not admissible because this method was not generally accepted
in the scientific community; (2) Dr. Blake used incorrect scientific procedures to
identify possible genotypes present in the samples tested; (3) Dr. Blake‘s use of
population frequency statistics was flawed; and (4) Dr. Blake‘s conclusions from
conducting a polymarker analysis were inadmissible because he failed to follow
proper scientific procedures. As we explain, admission of Dr. Blake‘s testimony
did not result in reversible error.
c. Dot Intensity Analysis
The PCR DQ-Alpha method tests for the presence or absence of six
common identifiable alleles at the DQ-Alpha genetic marker. An individual‘s
genotype for the DQ-Alpha marker is composed of a pair of alleles. ―The six DQ-
Alpha alleles can be paired to form 21 distinct genotypes, meaning the human
population can be divided into 21 population groups. Ultimately, the DQ-Alpha
genotype of the sample is determined by the presence of blue dots on test strips
that indicate an allele of the sample DNA bonded with a specific DNA sequence
or ‗primer‘ on the test strip.‖ (People v. Doolin, supra, 45 Cal.4th at pp. 446-447.)
When a sample being tested has more than one donor, scientists compare
the intensity of the blue color of the dots on the resulting test strip to identify the
genotype of the alleles from the primary contributor of the sample. (People v.
Doolin, supra, 45 Cal.4th at pp. 446-447.) The dots of a ― ‗minor‘ contributor to
the mixed DNA sample, for example, [have] ‗significantly less‘ color intensity
than [those] of a ‗major‘ contributor.‖ (Id., at p. 447.) As Dr. Blake testified, ―if
you have an unequal mixture, . . . the sample that is there at the lowest level will
produce relatively faint typing dots relative to the sample that‘s present at a higher
44
level, and that‘s reflected in the typing result.‖ Moreover, the ―density of the
color‖ of the resulting dots further indicates which alleles belong together in a
mixed-donor sperm sample. Dr. Blake testified at the preliminary hearing that
comparing the dots‘ color intensities to determine the alleles of the primary and
secondary donors was a valid technique, citing an article he cowrote and another
authored by two other experts.14 He was unaware of any other articles on the
subject, although he was sure there were some.
Defendant objected to this methodology, arguing: ―None of the other
material provided, and in particular the [National Research Council] report does
not support Dr. Blake‘s conclusion that you can tell a primary from a secondary
donor, if you will, nor that you can even tell which alleles go together in a
situation where maybe you have four as opposed to which you would expect to
find two. You can‘t really tell which of those go together based on the kind of
testing, and all that is, in fact, available.‖ After considering all the evidence and
argument, the trial court concluded: ―I think that Blake‘s procedures have been
substantiated as correct scientific procedures. They are [a] little bit different, but
substantiated.‖ Although the court made no specific or separate ruling on Dr.
Blake‘s use of the dot intensity analysis, and defendant did not press the court for
14 See Blake, et al., Polymerase Chain Reaction (PCR) Amplification and
Human Leukocyte Antigen (HLA)-DQ⍺ Oligonucleotide Typing on Biological
Evidence Samples: Casework Experience (May 1992) 37 J. Forensic Sciences
700. Dr. Blake asserts in the article that ―the resulting dot intensity‖ from a PCR
DQ-Alpha analysis can be used to distinguish the genotypes present in a mixed
sample.
See also Comey & Budowle, Validation Studies on the Analysis of the HLA
DQ⍺ Locus Using the Polymerase Chain Reaction (Nov. 1991) J. Forensic
Sciences 1633 (reaching the same conclusion).
45
a specific ruling (see People v. Ramos (1997) 15 Cal. 4th 1133, 1171 [party
seeking to preserve a claim for appeal must ―secure an express ruling from the
court‖]), we assume the trial court‘s reference to Dr. Blake‘s ―procedures‖ is broad
enough to encompass a ruling on the dot intensity analysis.
We have previously encountered a claim that the dot intensity analysis
associated with PCR DNA testing fails the Kelly test. We noted that ―[w]hether
‗dot-intensity analysis‘ is a novel technique requiring its own proof of general
acceptance has not been addressed in a California published opinion.‖ (People v.
Doolin, supra, 45 Cal.4th at p. 448.) We declined to address the merits of the
claim in Doolin because, inter alia, any error was harmless. (Ibid.) Here, too, we
need not address the merits of defendant‘s claim because even were we to assume
the dot intensity analysis performed by Dr. Blake constitutes a new scientific
technique and not merely an expert‘s opinion based on observable scientific data
(see People v. Stoll (1989) 49 Cal. 3d 1136, 1157 [―absent some special feature
which effectively blindsides the jury, expert opinion testimony is not subject to
Kelly . . . .‖]), and if we further assume the People‘s showing concerning the dot
intensity analysis was deficient under Kelly, defendant suffered no prejudice.
Dr. Blake‘s testimony describing his DNA analysis played no role in
defendant‘s convictions for attempting to murder Maria R. and Karen M., and the
jury did not reach a verdict on the murder counts involving Trina Carpenter and
Tara Simpson. Therefore, Dr. Blake‘s evidence is significant on appeal only to the
murder counts involving Sophia Glover and JoAnn Sweets. But with regard to the
Glover counts, Dr. Blake‘s initial testimony, which was based on his use of the dot
intensity technique in connection with the PCR DQ-Alpha test and identified
defendant‘s genotype on the anal swab drawn from Glover‘s body, was superseded
by his testimony on rebuttal, in which he described the results of his later, more
precise polymarker analysis. Thus, even assuming for argument the People‘s
46
Kelly showing for the dot intensity technique was deficient, because of the
witness‘s own re-evaluation of the sperm sample using a later test that was both
more accurate and not reliant on the dot intensity technique, it is not reasonably
probable the verdict would have been more favorable absent the challenged
portion of Dr. Blake‘s evidence. (See People v. Doolin, supra, 45 Cal.4th at
p. 448.)
We reach the same conclusion with regard to the counts involving JoAnn
Sweets. Dr. Blake testified he tested a semen stain on a bed sheet found with
Sweets‘s body and identified a genotype with alleles 1.2, 2, consistent with that of
defendant. Dr. Blake admitted, however, that the sperm was a mixed sample, and
the stain could have been deposited by someone with the alleles 1.2, 1.2. Because
defendant presented evidence suggesting a third party named Ike Jones, whose
genotype included the 1.2, 1.2 alleles, could have been Sweets‘s killer, Dr. Blake
could not rule him out at that earlier period. On rebuttal, however, Dr. Blake
described the results of his polymarker testing and concluded that Ike Jones could
be excluded as a possible donor of the bed sheet stain, but that defendant‘s
―genotypes in each one of these genetic marker systems is compatible with the
type found in the sperm [sample].‖ As with Dr. Blake‘s testimony concerning
Sophia Glover, his rebuttal evidence reflecting the more accurate polymarker
testing rendered harmless any deficiency in the People‘s Kelly showing regarding
the dot intensity analysis in connection with the initial PCR DQ-Alpha testing.15
We thus conclude that, even assuming for argument that the People failed
to demonstrate the scientific community had generally accepted the dot intensity
15 To the extent defendant also challenges the testimony based on the
polymarker test as to the crimes against Sweets, even if we accepted that challenge
any error would be nonprejudicial, as discussed, post, at page 52.
47
technique at the time of defendant‘s trial, any error in admitting Dr. Blake‘s
testimony was harmless under any standard in light of his rebuttal testimony
describing the results of his polymarker DNA testing.
d. Kelly’s Third Prong: Relevance
Defendant next argues the trial court erred in admitting Dr. Blake‘s
testimony because ―[t]he prosecution . . . failed to carry its burden under Kelly‘s
third prong, which requires proof that Dr. Blake used proper scientific procedure
to determine that [defendant‘s] DNA and the perpetrator‘s DNA matched.‖ He
claims Dr. Blake used an incorrect scientific procedure to identify possible
genotypes present in the samples he tested because, having found two donors in
the samples swabbed from Glover, Carpenter and Sweets, it was equally possible
that instead of finding a donor matching defendant‘s genotype (by pairing two of
the four alleles identified in the sample) and a second, unknown donor (whose
genotype was identified by pairing the remaining two alleles in the sample), a
different combination of the four alleles would have revealed two donors, neither
of whose genotype matched defendant‘s. According to defendant, ―[i]f the
prosecution could not establish which genotype the perpetrator possessed at that
locus [i.e., at the DQ-Alpha locus], there was no relevant evidence to admit from
that locus‖ (citing People v. Pizarro (2003) 110 Cal. App. 4th 530, 600-601), and
the DNA evidence was just as likely to exonerate as inculpate him. Under such
circumstances, he argues, the trial court should have excluded the evidence as
irrelevant.
The gist of this argument seems to be one of relevance rather than a
complaint about Kelly‘s third prong, but whether defendant objected on either of
these grounds is not clear. Assuming for argument that he did and the issue was
preserved for our review, we reject it. ―The Kelly third-prong inquiry involves
48
further scrutiny of a methodology or technique that has already passed muster
under the central first prong of the Kelly test, in that general acceptance of its
validity by the relevant scientific community has been established. The issue of
the inquiry is whether the procedures utilized in the case at hand complied with
that technique. Proof of that compliance does not necessitate expert testimony
anew from a member of the relevant scientific community directed at evaluating
the technique‘s validity or acceptance in that community. It does, however,
require that the testifying expert understand the technique and its underlying
theory, and be thoroughly familiar with the procedures that were in fact used in
the case at bar to implement the technique.‖ (People v. Venegas, supra, 18
Cal.4th at p. 81, italics added.) ―Where the prosecution shows that the correct
procedures were followed, criticisms of the techniques go to the weight of the
evidence, not its admissibility.‖ (People v. Brown (2001) 91 Cal. App. 4th 623,
647.)
No real question exists that Dr. Blake was an expert in the field of DNA
testing and that he fully understood the theory and procedures used to test the
sperm samples for their genetic markers. Moreover, he was well aware that more
than one man had produced the samples he tested, and his testimony regarding the
procedures he used to analyze the samples, including the dot intensity analysis,
explained why he paired certain alleles to others to conclude defendant‘s genotype
was present in the samples. We thus reject defendant‘s argument that the DNA
evidence failed Kelly‘s third prong and conclude defendant‘s criticism of Dr.
Blake‘s procedures go to the weight, not the admissibility, of that evidence.
To the extent defendant argues the DNA evidence was irrelevant because
Dr. Blake‘s test results were as likely to exonerate as inculpate him, we reject the
argument because the trial court did not abuse its broad discretion when it
implicitly concluded Dr. Blake‘s evidence had a ―tendency in reason to prove or
49
disprove [a] disputed fact that [was] of consequence to the determination of the
action.‖ (Evid. Code, § 210.) Defendant‘s further reliance on the reasoning in
People v. Pizarro, supra, 110 Cal. App. 4th 530, is unpersuasive; Pizarro was
decided many years after the trial court‘s Kelly hearing in this case, and, in any
event, that case involved a type of DNA testing (restriction fragment length
polymorphism) different from the PCR testing used in this case.
e. Use of Population Frequency Data
Defendant next argues the trial court erred in admitting Dr. Blake‘s
testimony that he relied on population frequency statistics. Again citing People v.
Pizarro, supra, 110 Cal. App. 4th 530, defendant argues the proper scientific
procedure where the perpetrator‘s race is unknown is to present the most
conservative frequency statistic without mentioning any further refinement based
on ethnic groups. Whether defendant objected on this ground and preserved the
issue for appeal is unclear, but assuming for argument that he did, we reject the
claim because this court disapproved Pizarro on this point in People v. Wilson
(2006) 38 Cal. 4th 1237. ― ‗Thus, there is no cogent reason to preclude testimony
of a range of ethnic or racial genetic profile frequencies when the race of the
perpetrator is unknown, so long as the data is not presented in a manner that
assumes that the race of the perpetrator is the same as the race of the defendant.
Since the testimony in the present case made no such assumptions, it was relevant,
nonprejudicial, and properly received . . . .‘ ‖ (Wilson, at p. 1250.)
f. Polymarker Evidence
Defendant finally argues the trial court erred by admitting Dr. Blake‘s
testimony on rebuttal regarding his conclusions from conducting the PCR
polymarker analysis on the Carpenter and Sweets sperm samples because the
witness failed to follow proper scientific procedures. According to defendant,
50
because no sensitivity dot (known as an ―s‖ dot) appeared on the test strip for
those samples, Dr. Blake should have aborted the test because ―the manufacturer
of the polymarker kit used by Dr. Blake[] recommends against typing a DNA
sample unless the sensitivity dot is visible.‖ Because Dr. Blake did not follow
correct scientific procedures, defendant argues, his polymarker evidence on
rebuttal failed Kelly‘s third prong.
As previously noted, we agree with respondent that a challenge to the Kelly
third prong goes to the weight, not the admissibility, of the evidence. (People v.
Brown, supra, 91 Cal.App.4th at p. 647.) We thus reject at the outset any
suggestion the trial court erred by admitting the evidence.
We also reject the argument that Dr. Blake‘s rebuttal evidence failed to
satisfy Kelly‘s third prong. Although defendant argues the kit‘s manufacturer
recommends against using results when no sensitivity dot is visible on the test
strip, his characterization of such user instructions is inaccurate. Dr. Blake read
the manufacturer‘s directions into the record: ― ‗To read the developed amplitype
PM DNA probe strip, begin by examining the ―s‖ dot. It is recommended that a
DNA probe strip with no visible ―s‖ dot not be typed for any locus. . . . [¶] . . . [¶]
However, individual laboratories may choose to type all loci for which a band was
observed on the amplitype PM PCR product gel. Those dots that appear either
darker than or equivalent to the ―s‖ dot are . . . considered positive. . . . Dots that
are lighter than the ―s‖ dot should be interpreted with care.‘ ‖ Thus, the
manufacturer did not state categorically that the absence of a sensitivity dot
rendered the resulting test strip unreliable.
Dr. Blake explained why he reported his results despite the absence of an
―s‖ dot on some test strips: He ran two test strips on a reference sample of
defendant‘s DNA; one had a visible ―s‖ dot and one did not. Because the typing
in both was identical (as they should have been, because they were both taken
51
from defendant), he felt confident in reporting results from the test. Similarly, Dr.
Blake ran two polymarker tests on the sample from the Sweets case. One had a
faint ―s‖ dot and the other had no dot visible, but ―the typing results from both
specimens [were] identical,‖ suggesting the absence of a visible sensitivity dot was
of less importance.
In addition, defendant‘s experts did not categorically proclaim that a
missing ―s‖ dot rendered a polymarker test result invalid per se. When defense
expert Marc Taylor was asked whether ―genotype results can be interpreted on
unknown samples where no ‗s‘ dot is visualized on the test strip?‖ he replied: ―I
think under certain circumstances that there are some interpretations that can be
made. I think there are some very big dangers of misinterpretations when there
isn‘t an ‗s‘ dot.‖ And defense expert Patrick O‘Donnell, when asked about a test
strip with a missing ―s‖ dot, responded: ―I would attach . . . a very conservative
interpretation to any sample in which an ‗s‘ dot was not visible,‖ but later admitted
there were other ways of compensating for the lack of a visible ―s‖ dot.
Finally, any error with regard to the missing sensitivity dot was harmless
under any standard. First, with regard to evidence implicating defendant in Trina
Carpenter‘s killing, any error was harmless because the jury did not reach a verdict
on that charge, and the People elected not to retry it. Second, with regard to
evidence suggesting defendant killed JoAnn Sweets, the evidence against
defendant was very strong even aside from Dr. Blake‘s PCR polymarker rebuttal
testimony: Defendant‘s fingerprints were found on the plastic garbage bag in
which Sweets‘s body was wrapped, she was found with a blanket made by
defendant‘s mother, and carpet fibers on her body matched those in defendant‘s
apartment.
In sum, we find the court did not prejudicially err in admitting the DNA
evidence.
52
3. Admission of Dr. Meloy’s Testimony
Defendant moved before trial for an evidentiary hearing to discover the
nature of the testimony the prosecution intended to present from witness Dr. John
Reid Meloy. The trial court held an Evidence Code section 402 hearing at which
Dr. Meloy testified and described the basis of his expertise and the nature of his
expected testimony. At the end of the hearing, the trial court ruled Dr. Meloy
could testify as an expert on sexual homicides but could not express the opinion
that defendant himself fell into the category of a being a perpetrator of sexual
homicides. The court also emphasized its ruling was a tentative one. When
defendant later formally moved to exclude Dr. Meloy‘s testimony, the court
affirmed its earlier tentative ruling, noting the witness‘s testimony would be
limited to ―intent and motive at the time [of the crime].‖ In other words, the court
allowed the witness to testify and ―to dispel . . . what may be misperceptions by
the jury that nobody would kill for sex when you have got a prostitute there.‖
The court revisited its tentative ruling twice more, each time reaffirming its
previous ruling, noting the ruling‘s limits and affirming that it would exclude all
other parts of Dr. Meloy‘s anticipated evidence under Evidence Code section 352.
In light of the limits the court placed on Dr. Meloy‘s trial testimony, it was
brief, spanning only 16 pages in the trial transcript. He explained that he was a
forensic psychologist and, on a parttime basis, the chief of court services for the
San Diego County forensic mental health division. In the latter capacity, he was,
among other things, ―administratively responsible for the outpatient psychiatric
treatment program for individuals that have been found not guilty by reason of
insanity, have then gone to the state hospital, usually for a number of years, and
then are released by the court back to the community.‖ In addition to having
received a number of degrees, Dr. Meloy also was board certified as a forensic
psychologist and had worked in the criminal law field for many years. He had
53
particular experience studying the field of ―sexual homicide,‖ which he defined as
― ‗the intentional killing of another human being during which there is evidence of
sexual activity by the perpetrator.‘ ‖ He had conducted research and published
papers on that subject and had been retained as an expert in numerous criminal
cases.
Asked by the prosecutor how sexual homicide differs from more common
homicide, Dr. Meloy explained: ―Generally in most homicides there is not any
sexual arousal involved. Generally most people who kill somebody else
intentionally, it is usually somebody they know; actually, quite well. And they are
usually very frightened or very angry when they do it, and there is no sexual
component to it at all.‖ Asked whether ―a motivation or desire [or] intent . . .
drives‖ the perpetrator of a sexual homicide, Dr. Meloy replied: ―The intent in
sexual homicide, and the reason that sexual homicides exist, is that the person who
does this, his rage toward women, his violence toward women, and the woman‘s
suffering under his domination is his biggest sexual turn-on‖; that is, the
perpetrator of such a crime ―is sexually aroused by the act of violence toward the
victim, who is usually a woman, and he [will desire to reach a sexual climax]
before, during, or after the killing.‖ On cross-examination by defense counsel, Dr.
Meloy affirmed that his definition sexual homicide ―is not a legal definition of any
kind‖ and that it is not included in any diagnostic literature such as the ―DSM-
III.‖16
16 Known by the acronym ―DSM,‖ the ―Diagnostic and Statistical Manual of
Mental Disorders [is published] by the American Psychiatric Association. ‗The
DSM–IV is recognized by the courts as a standard reference work containing a
comprehensive classification and terminology of mental disorders.‘ ‖ (People v.
Mills, supra, 48 Cal.4th at p. 205, fn. 17.)
54
Defendant raises a number of arguments challenging the admission of Dr.
Meloy‘s testimony.
a. Bledsoe
Defendant first contends, as he did below, that admission of Dr. Meloy‘s
testimony was contrary to the principles set forth in People v. Bledsoe (1984) 36
Cal. 3d 236. Bledsoe addressed the admissibility of expert evidence describing
rape trauma syndrome. Such psychological evidence, we recognized, may explain
why some rape victims delay reporting the crime, or even recant an accusation,
and thus ―may play a particularly useful role by disabusing the jury of some
widely held misconceptions about rape and rape victims, so that it may evaluate
the evidence free of the constraints of popular myths.‖ (Id., at pp. 247-248.) In
Bledsoe, however, ―the evidence was not admitted for any such purpose‖ (id., at
p. 248), as the victim in the case reported the crime immediately and never
wavered in her story, nor did the defendant argue the victim‘s postcrime behavior
indicated she had not been raped. Under those circumstances, we concluded that
―expert testimony that a complaining witness suffers from rape trauma syndrome
is not admissible to prove that the witness was raped.‖ (Id., at p. 251.)
In denying defendant‘s motion to exclude Dr. Meloy‘s testimony in the
instant case, the trial court explained: ―[W]hen considering Bledsoe, the relevance
of [Dr. Meloy‘s] testimony is not to prove that a sexual homicide did or did not
occur here, nor to prove that the defendant committed any of these crimes. . . . [¶]
His testimony is simply to give the jury insight into the motive and intent that may
go behind a sexual homicide, and such testimony is highly relevant where lay
persons will probably find it incomprehensible why a prostitute would be
murdered for sex when the sex could be obtained voluntarily.‖ The court later
reiterated the limits of its ruling, saying: ―Dr. Meloy‘s testimony would be limited
55
to just that portion that would dispel any confusion on the jury‘s part concerning
the intent of somebody where there is the killing of a willing prostitute for sex. So
I think the people are entitled to dispel that confusion, and the rest of it would be
out under [Evidence Code section] 352 or lack of foundation.‖
Although the court did not admit Dr. Meloy‘s testimony as evidence
defendant committed the charged crimes, defendant nevertheless contends the rule
permitting admission of such psychological evidence is inapplicable here. He
argues the prosecution presented no evidence of a commonly held misconception
that Dr. Meloy‘s evidence might serve to contradict. But Dr. Meloy testified
extensively at the Evidence Code section 402 hearing about what his research into
the area showed, and it was reasonable for the trial court to find that jurors might
not understand why a person would kill a consensual sexual partner. Dr. Meloy‘s
description of the unusual psychological urges of those who commit sexual
homicides was thus relevant to the jury‘s proper assessment of the evidence. ―The
trial court has broad discretion in deciding whether to admit or exclude expert
testimony [citations], and its decision as to whether expert testimony meets the
standard for admissibility is subject to review for abuse of discretion.‖ (People v.
McDowell (2012) 54 Cal. 4th 395, 426.) Applying that standard here, we find no
abuse of discretion.
Defendant raises a number of subsidiary claims. Assuming for argument he
properly preserved them below, we similarly find them nonmeritorious.
Defendant first contends that because Dr. Meloy and the trial court agreed that
sexual homicides were rare, there could be no commonly held misconception about
such killings or the murders in this case. This was a matter for the trial court to
weigh in exercising its discretion and we perceive no abuse of discretion in that
regard. Second, defendant observes the jury questionnaire included questions
concerning protection of prostitutes, and whether they can be victims of rape, and
56
the jurors‘ answers to these questions showed they harbored no such
misconceptions about prostitutes. But Dr. Meloy testified that some persons
appear to suffer from a mental disorder that leads them to kill willing sexual
partners in order to experience heightened sexual pleasure. The jury questionnaire
did not give the jurors this information.
Third, defendant argues Dr. Meloy‘s evidence was not targeted to refuting
the specific misconception that people do not kill willing sexual partners to
achieve increased sexual pleasure. He contends, for example, that none of the
studies on which Dr. Meloy relied involved victims who were prostitutes. The
trial court reasonably considered the issue in more general terms: the killing of
any willing sexual partners, not simply prostitutes. Fourth, defendant argues Dr.
Meloy‘s evidence was inadmissible because the defense introduced no contrary
evidence to be refuted; that is, defendant never claimed that willing sexual
partners were never killed for psychological reasons. But the court did not admit
Dr. Meloy‘s testimony because defendant had somehow opened the door to it by
his own evidence. (See, e.g., People v. Coffman and Marlow (2004) 34 Cal. 4th 1,
74 [defendant‘s testimony opened the door to questioning about other crimes].)
Nor was Dr. Meloy‘s testimony tantamount to rebuttal evidence, which is subject
to certain restrictions. (See People v. Young (2005) 34 Cal. 4th 1149, 1199
[rebuttal evidence ― ‗is restricted to evidence made necessary by the defendant‘s
case in the sense that he has introduced new evidence or made assertions that were
not implicit in his denial of guilt‘ ‖].) Instead, the court admitted the evidence
because it was ―[r]elated to a subject that is sufficiently beyond common
experience that the opinion of an expert would assist the trier of fact.‖ (Evid.
Code, § 801, subd. (a).) We thus reject these subsidiary claims.
57
b. Relevance, Evidence Code Section 352, and Due Process
Defendant next contends Dr. Meloy‘s testimony should have been excluded
because it was irrelevant and violative of both Evidence Code section 352 and his
right to state and federal due process of law. Of course, only relevant evidence is
admissible (Evid. Code, § 350), and relevance is defined as ―having any tendency
in reason to prove or disprove any disputed fact that is of consequence to the
determination of the action‖ (id., § 210). The trial court has broad discretion to
determine the relevance of evidence (People v. Gurule (2002) 28 Cal. 4th 557,
614), and we will not disturb the court‘s exercise of that discretion unless it acted
in an arbitrary, capricious or patently absurd manner (People v. Rodrigues (1994)
8 Cal. 4th 1060, 1124-1125).
As he did in the trial court, defendant argues Dr. Meloy‘s evidence was so
speculative that it was irrelevant. ― ‗The test of relevance is whether the evidence
tends ―logically, naturally, and by reasonable inference‖ to establish material facts
such as identity, intent, or motive.‘ [Citations.]‖ (People v. Bivert, supra, 52
Cal.4th at pp. 116-117.) Here the trial court admitted the evidence to show
motive. As the court explained, Dr. Meloy‘s ―testimony would be offered to
provide insight into the motive or intent involved in the perpetration of the sexual
homicide,‖ likening it to another case in which an expert was allowed to give
evidence on Munchausen‘s syndrome by proxy. (People v. Phillips (1981) 122
Cal. App. 3d 69, 78-79.)
The record shows the trial court carefully, even meticulously, considered
the proper limits on Dr. Meloy‘s anticipated testimony. Under the circumstances,
we find no abuse of discretion. Although defendant attacks Dr. Meloy‘s evidence
because it was based on a small sample, incorporated the use of Rorschach inkblot
testing, and used surveys that included offenders who did not kill prostitutes, such
alleged discrepancies do not demonstrate Dr. Meloy‘s testimony was so
58
speculative as to render it inadmissible. (See People v. Horning (2004) 34 Cal. 4th
871, 900-901 [inability of expert to say bullets were unquestionably fired from a
particular gun did not render evidence inadmissibly speculative].) To the extent
defendant argues Dr. Meloy‘s testimony was inadmissible because defendant‘s
intent and motive were not in dispute, we reject that claim as well. ― ‗Motive is
not a matter whose existence the People must prove or whose nonexistence the
defense must establish. [Citation.] Nonetheless, ―[p]roof of the presence of
motive is material as evidence tending to refute or support the presumption of
innocence.‖ ‘ ‖ (People v. Roldan, supra, 35 Cal.4th at p. 707.) Finally, we reject
defendant‘s argument that Dr. Meloy expressed an opinion on the ultimate fact of
defendant‘s state of mind in violation of section 29.17 The witness offered no such
opinion; he merely agreed that in a sexual homicide, the perpetrator‘s motivation,
desire or intent ―drives‖ the activity, and that ―[t]he intent in sexual homicide, and
the reason that sexual homicides exist, is that the person who does this, his rage
toward women, his violence toward women, and the woman‘s suffering under his
domination is his biggest sexual turn-on.‖ The jury was left to decide whether
defendant had committed a sexual homicide and so had acted with that intent.
Defendant also reprises his pretrial claim that the court abused its discretion
in denying his motion to exclude Dr. Meloy‘s testimony as being more prejudicial
than probative. (Evid. Code, § 352.) ―. . . Evidence Code section 352 requires the
exclusion of evidence only when its probative value is substantially outweighed
17 ―In the guilt phase of a criminal action, any expert testifying about a
defendant‘s mental illness, mental disorder, or mental defect shall not testify as to
whether the defendant had or did not have the required mental states, which
include, but are not limited to, purpose, intent, knowledge, or malice aforethought,
for the crimes charged. The question as to whether the defendant had or did not
have the required mental states shall be decided by the trier of fact.‖ (§ 29.)
59
by its prejudicial effect. ‗Evidence is substantially more prejudicial than probative
[citation] [only] if, broadly stated, it poses an intolerable ―risk to the fairness of the
proceedings or the reliability of the outcome‖ [citation].‘ ‖ (People v. Tran (2011)
51 Cal. 4th 1040, 1047.) The trial court was well aware of the danger Dr. Meloy‘s
evidence posed and therefore limited the scope of his testimony severely. The trial
court has broad discretion under Evidence Code section 352 to exclude evidence
(People v. Mills, supra, 48 Cal.4th at p. 195), and we cannot say it abused its
discretion in this case. Nor did defendant suffer any prejudice; although he
contends Dr. Meloy‘s testimony must have created a ―deep loathing‖ for him and
instilled ―an emotional bias‖ against him, the facts are otherwise. By failing to
come to a verdict on two of the four alleged murders, the jury showed it had
considered each count separately and thoughtfully and was not overcome by bias
against, or hatred for, defendant.
Many of these same considerations lead us to reject defendant‘s claim that
his right to due process under the state and federal Constitutions was violated by
the admission of Dr. Meloy‘s testimony, which rendered his trial fundamentally
unfair. ―The admission of relevant evidence will not offend due process unless the
evidence is so prejudicial as to render the defendant‘s trial fundamentally unfair.‖
(People v. Falsetta, supra, 21 Cal.4th at p. 913.) The trial court‘s careful pruning
of Dr. Meloy‘s anticipated evidence and the ultimate brevity of his testimony
underscore the fairness of the process, and defendant‘s ability to call witnesses to
impeach Dr. Meloy, as well as the jury‘s inability to return verdicts on two of the
four charged murders, demonstrate the trial was not fundamentally unfair.
c. Evidence Code Section 720
One of the grounds on which defendant relied for his pretrial motion to
exclude Dr. Meloy‘s testimony was that the witness was not qualified under
60
Evidence Code section 720 to testify as an expert regarding sexual homicide. On
appeal, defendant has reframed his argument: he contends Dr. Meloy‘s testimony
was inadmissible because no such subfield of psychology known as ―sexual
homicide‖ exists, ―or at the very least, the prosecution failed to show its
existence.‖ Although respondent argues defendant failed to preserve this precise
claim by raising it in this form below, we take defendant‘s consistent reliance on
Evidence Code section 720 to mean he contends the prosecution failed to show Dr.
Meloy ―has special knowledge, skill, experience, training, or education sufficient
to qualify him as an expert on the subject to which his testimony relates.‖ (Evid.
Code, § 720, subd. (a).) As so construed, we reject it.
A trial court‘s decision that a proposed witness qualifies as an expert under
Evidence Code section 720 is a matter within the court‘s broad discretion and will
not be disturbed on appeal unless the defendant demonstrates a manifest abuse of
that discretion. (People v. Castaneda (2011) 51 Cal. 4th 1292, 1336.) When a
preliminary showing is made that the proposed witness has sufficient knowledge
to qualify as an expert under the Evidence Code, questions about the depth or
scope of his or her knowledge or experience go to the weight, not the
admissibility, of the witness‘s testimony. (People v. Eubanks (2011) 53 Cal. 4th
110, 140.) Here, an extensive hearing pursuant to Evidence Code section 402 was
held before trial in which Dr. Meloy related his educational history, his study of
the subject of sexual homicide, his personal interviews and observations of
subjects, his published papers, and his conclusions regarding sexual homicide. At
trial, he candidly admitted on cross-examination that the definition he was using of
sexual homicide was not contained in the DSM. Defendant was free to call his
own witness to dispute Dr. Meloy‘s conclusions, but the trial court‘s decision to
permit Dr. Meloy to testify as an expert was well within its discretion.
61
d. Evidence Code Section 801
As he did before trial, defendant contends Dr. Meloy‘s testimony regarding
sexual homicides amounted to a legal conclusion in violation of Evidence Code
section 801, subdivision (a). Although that provision permits an expert to ―assist
the trier of fact‖ by testifying to any subject ―that is sufficiently beyond common
experience,‖ such testimony is limited in an important way. ―[Although] opinion
evidence which is otherwise admissible is not made inadmissible simply because it
embraces the ultimate issue to be decided by the trier of fact . . . [t]he cited rule
does not . . . authorize an ‗expert‘ to testify to legal conclusions in the guise of
expert opinion. Such legal conclusions do not constitute substantial evidence.‖
(Downer v. Bramet (1984) 152 Cal. App. 3d 837, 841, cited with approval in
Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal. 3d 863, 884; see 1 Witkin,
Cal. Evidence (5th ed. 2012) Opinion Evidence, § 98, pp. 745-748.)
Contrary to defendant‘s argument, Dr. Meloy‘s testimony at trial did not
run afoul of this rule. The witness neither provided a legal conclusion nor defined
a crime for the jury. He merely described the phenomenon, noted by other
experts, called ―sexual homicide.‖ He did not offer a legal conclusion that all
sexual homicides are intentional and purposeful, nor did he say that such crimes
were tantamount to deliberate and premeditated murder. Although Dr. Meloy
agreed with the prosecutor that sexual homicides involve ―goal-oriented
behavior,‖ he did not go further to say that the goal of the perpetrators of such
homicides was always to kill. In any event, defendant did not object to this
testimony and he thus forfeited the issue.
Defendant also contends Dr. Meloy‘s testimony contravened subdivision
(b) of Evidence Code section 801. That provision states in pertinent part: ―If a
witness is testifying as an expert, his testimony in the form of an opinion is limited
to such an opinion as is: [¶] . . . [¶] (b) Based on matter . . . that is of a type that
62
reasonably may be relied upon by an expert in forming an opinion upon the
subject to which his testimony relates . . . .‖ We addressed that subject in People
v. Gardeley (1996) 14 Cal. 4th 605, where we explained that expert testimony can
be based on a wide variety of information so long as it is reliable. ―For ‗the law
does not accord to the expert‘s opinion the same degree of credence or integrity as
it does the data underlying the opinion. Like a house built on sand, the expert‘s
opinion is no better than the facts on which it is based.‘ ‖ (Id., at p. 618.) A trial
court enjoys broad discretion when ruling on foundational matters such as
qualifying a witness under Evidence Code section 801, subdivision (b), and such
decisions will not be disturbed on appeal absent a showing of a manifest abuse of
discretion. (People v. Mickey (1991) 54 Cal. 3d 612, 688.)
Although an expert witness‘s opinion may not be based on guess or
conjecture (People v. Moore (2011) 51 Cal. 4th 386, 405), such was not the case
here. In the foundational hearing held before trial, Dr. Meloy carefully described
his 18 years of experience with sexual homicides, his research, his methodology,
the publications he had read, and the cases involving sexual homicide in which he
had been a consultant. Defendant criticizes this foundation of Dr. Meloy‘s
opinions as unreliable within the meaning of Evidence Code section 801,
subdivision (b), arguing that his opinions were self-contradictory and tentative,
that the methodology of using Rorschach inkblot tests had not been peer reviewed,
that other cases in the literature had not involved prostitutes as victims, that Dr.
Meloy had not personally interviewed other perpetrators of sexual homicide and
asked them about their motives, and that his definition of sexual homicide was
―unworkable and unreliable.‖ On this record, however, we cannot say the trial
court abused its broad discretion in finding Dr. Meloy was qualified as an expert
under the Evidence Code, especially as the court carefully limited the scope of Dr.
Meloy‘s testimony to describing the phenomenon of sexual homicide without
63
tying it specifically to defendant. Defendant was free to try to impeach Dr. Meloy
by calling his own expert witness to make these points.
e. Evidence Code Section 1101
Defendant also argues Dr. Meloy‘s testimony constituted impermissible
character evidence that the court should have excluded pursuant to Evidence Code
section 1101. As respondent observes, however, defendant never moved to
exclude the evidence under that section and has thus forfeited the claim for appeal.
Defendant responds that because the trial court made comments suggesting it was
aware that Dr. Meloy‘s anticipated testimony could potentially transgress the rule
against bad-character evidence, we should find the issue was before the court—
and therefore preserved for appeal—despite his failure to object. We decline his
invitation because the purpose of the rule requiring a timely and specific objection
is not only ― ‗to alert the trial court to the nature of the anticipated evidence and
the basis on which exclusion is sought, [but also] to afford the People an
opportunity to establish its admissibility.‘ ‖ (People v. Partida (2005) 37 Cal. 4th
428, 435, italics added.) Although the trial court may have made some comments
about character evidence, defendant never placed the prosecution on notice that it
needed to justify the admissibility of Dr. Meloy‘s evidence under Evidence Code
section 1101. Accordingly, he did not preserve the claim for appeal.
Were we to address the merits of the claim despite the absence of an
objection below, we would find no error and no prejudice. Under Evidence Code
section 1101, subdivision (b), evidence of a person‘s prior bad act—evidence that
might incidentally tend to show the person‘s disposition to commit such an act—is
nevertheless admissible, if relevant, to raise an inference of (and hence prove) his
motive or intent when he committed his crimes. So even assuming for argument
that defendant is correct in his characterization of Dr. Meloy‘s testimony as
64
showing defendant‘s bad character, it could still be admissible to show defendant‘s
motive. In any event, Dr. Meloy never connected defendant to his psychological
theory; that is, he never testified that defendant was in fact a perpetrator of sexual
homicide. Accordingly, because Dr. Meloy did not testify to or describe
defendant‘s past bad acts, Evidence Code section 1101 is simply inapposite.
f. Kelly
Defendant next contends the trial court erred by admitting Dr. Meloy‘s
testimony without first assessing the reliability of his methodology under the Kelly
rule. (People v. Kelly, supra, 17 Cal. 3d 24.) As noted, ante, at pages 41-42, Kelly
directs that the proponent of expert testimony based on a new scientific technique
or procedure demonstrate both the new technique‘s reliability and that the witness
is qualified to give an opinion on the subject. Caution with evidence involving
new scientific techniques is justified because ―[l]ay jurors tend to give
considerable weight to ‗scientific‘ evidence when presented by ‗experts‘ with
impressive credentials. We have acknowledged the existence of a ‗. . . misleading
aura of certainty which often envelops a new scientific process, obscuring its
currently experimental nature.‘ [Citations.]‖ (People v. Kelly, supra, at pp. 31-32.)
No such concerns are present in this case. Like the proposed expert
evidence regarding the psychological factors that might affect the accuracy of
eyewitness identifications at issue in People v. McDonald (1984) 37 Cal. 3d 351,
or the proposed expert evidence (that the defendant‘s psychological test results did
not suggest sexual deviancy) at issue in People v. Stoll, supra, 49 Cal. 3d 1136, the
evidence here was not a new scientific technique or procedure but merely expert
opinion evidence. ―It is important to distinguish in this regard between expert
testimony and scientific evidence. When a witness gives his personal opinion on
the stand—even if he qualifies as an expert—the jurors may temper their
65
acceptance of his testimony with a healthy skepticism born of their knowledge that
all human beings are fallible. But the opposite may be true when the evidence is
produced by a machine: like many laypersons, jurors tend to ascribe an
inordinately high degree of certainty to proof derived from an apparently
‗scientific‘ mechanism, instrument, or procedure. Yet the aura of infallibility that
often surrounds such evidence may well conceal the fact that it remains
experimental and tentative.‖ (McDonald, supra, at pp. 372-373.)
―[A]bsent some special feature which effectively blindsides the jury, expert
opinion testimony is not subject to Kelly[].‖ (People v. Stoll, supra, 49 Cal.3d at
p. 1157.) ― ‗We have never applied the Kelly[] rule to expert medical testimony,
even when the witness is a psychiatrist and the subject matter is as esoteric as the
reconstitution of a past state of mind or the prediction of future dangerousness, or
even the diagnosis of an unusual form of mental illness not listed in the diagnostic
manual of the American Psychiatric Association.‘ ‖ (Stoll, supra, at p. 1157,
quoting People v. McDonald, supra, 37 Cal.3d at p. 373, italics added.) Our
conclusion in Stoll applies fully to this case: ―The psychological testimony
proffered here raises none of the concerns addressed by Kelly[]. The methods
employed are not new to psychology or the law, and they carry no misleading aura
of scientific infallibility.‖ (Stoll, supra, at p. 1157.)
Defendant‘s attempt to distinguish Stoll and McDonald is unpersuasive. He
primarily argues that prior cases such as People v. Coogler (1969) 71 Cal. 2d 153,
that permitted an expert witness‘s reliance on Rorschach test results, also involved
other factors as well, such as results from the Minnesota Multiphasic Personality
Inventory. (Id., at p. 165.) But without passing on whether an expert opinion
based solely on Rorschach tests would be inadmissible under Kelly, we note that
Dr. Meloy‘s opinions were based not only on Rorschach test results, but also on
his broad knowledge and experience with the subject matter in question. Such
66
knowledge came from his familiarity with research and published studies in the
area of sexual homicide, his treatment of a patient in Chicago, his employment as
an expert evaluating criminal defendants charged with sex-related homicides, his
own research, which included personally interviewing subjects, his cooperation
with an individual who worked with the Federal Bureau of Investigation in
establishing a training seminar on the subject, his participation in lectures and
workshops around the country on the subject, and his publication of nine papers
and parts of two books dedicated to the subject.
To the extent defendant challenges Dr. Meloy‘s qualifications on the
grounds that he was not an impartial witness, or that he did not personally
interview all 18 subjects in one study, we reiterate that the trial court did not abuse
its discretion in finding he qualified as an expert under the Evidence Code.
Accordingly, the matters raised go simply to the weight, not the admissibility of
Dr. Meloy‘s testimony. We further reject defendant‘s claim that Dr. Meloy‘s
testimony ―blindside[d] the jury‖ within the meaning of People v. Stoll, supra, 49
Cal.3d at page 1157. After the lengthy Evidence Code section 402 hearing, Dr.
Meloy‘s actual testimony before the jury was surprisingly short: after he
explained his background and experience, his description of sexual homicides
comprises barely five pages in the trial transcript. As a result, it likely had little
impact with the jury.
4. Exclusion of Maria R.’s Alleged Apology
Defendant contends the trial court abused its discretion, and also committed
federal constitutional error, by excluding evidence that sometime after defendant
assaulted Maria R., she returned to the apartment on 51st Street to apologize for
falsely accusing him. We reject the claim because defendant fails to demonstrate
67
the trial court abused its broad discretion when it determined that he failed to lay a
proper foundation for this proposed evidence.
Maria R. testified that after she was assaulted, she met some people from a
church and told them she was afraid defendant might harm her again. She then
returned to the Jones apartment with some of these people but stayed in the car
while they went to speak with defendant at the apartment. When defense counsel
asked the witness what these people told defendant, the prosecutor successfully
interposed a hearsay objection, although the court allowed defense counsel to ask
her if she knew what was said. She replied, ―No, only what they told me.‖
Later in the trial, the defense called defendant‘s mother, Ann Jones (Jones),
to the stand. While questioning Jones, defense counsel asked her whether, in
August 1985, someone came to her door. She replied that a Hispanic man and a
woman came to her door, that the man identified himself as a preacher of a church
the witness did not recognize, and that he translated for the woman, who spoke
Spanish only. When the witness began recounting what the Hispanic man and
woman said, the prosecutor objected on hearsay grounds, arguing the defense had
not laid a foundation as to the identity of the two persons who came to Jones‘s
apartment. At a sidebar conference, defense counsel argued the Hispanic woman
whom Jones saw on her doorstep was in fact Maria R., although counsel admitted
that when shown a photo of Maria R., Jones did not identify her but merely noted
that she remembered the woman as thinner. The trial court suggested that because
Maria R. testified in English but Jones said the woman spoke Spanish only and
needed the preacher to translate, perhaps there was ―an identification problem.‖
Defense counsel speculated that because nine years had elapsed between the
assault and the trial, Maria R.‘s English proficiency might have improved.
Counsel admitted that, despite some effort, the defense had not been able to locate
the man Jones described as a preacher.
68
The court tentatively found the doubts about the evidence went to its
weight, not its admissibility, and was of a mind to admit it, but defense counsel,
apparently for tactical reasons, asked for a hearing out of the jury‘s presence to
establish the foundation for the evidence, ―because if there is not enough, I don‘t
want to set up a situation where [the jury] really consider[s] it a straw man type of
situation. I [would] just as soon have it out.‖ The court obliged and held a
hearing out of the jury‘s presence to determine whether a foundation existed for
the proposition that Maria R. spoke to Jones and apologized for claiming that
defendant had assaulted her. Jones testified at the hearing that the Spanish-
speaking woman, as interpreted by the preacher, told her that ―[s]he‘s here to say
she‘s sorry. And I said ‗sorry about what?‘ And he said she was upset. She had
been beaten up by her husband. She didn‘t know why she did this. She didn‘t
know why she did that. And she was just confused. [¶] And I said—by that time I
think I called [defendant], you know, called him out because I think he was in the
back and he came to the door. [¶] And basically this woman was, you know,
talking very quickly and the man would translate and she would talk, and she was
just—and I am like ‗you‘re sorry about what? What happened? What happened?‘
And then I asked my son and he said, ‗well, I gave her some food, you know. I
tried to help her out.‘ ‖ Jones said she had never seen the Hispanic woman before
and denied the police had ever shown her pictures of her.
On the foundational question of the mystery woman‘s identity, Jones
testified that she had attended the first day of trial and observed Maria R. testify.
Asked whether she recognized her at that time, Jones replied: ―No. I thought she
looked kind of heavy, to me. About the same height, but then I am tall. So she
didn‘t seem very tall to me, but she looked kind of chunky or—but then it was at
night. I don‘t—you know, it was kind of hard to say.‖ (Italics added.) Later, she
was asked: ―Did you recognize her from having been one of the people at your
69
door other than the difference in weight?‖ She replied: ―The only thing I can say
is I thought maybe that was her.‖ (Italics added.) On cross-examination by the
prosecutor, Jones could not identify the month, day or even year when the alleged
encounter occurred. On redirect, defense counsel asked her whether there was
―anything else about the woman you saw testify that caused you to believe it was
[Maria R.]?‖ She replied: ―When she walked in, when I turned my head and I
saw her, and I thought, gee, she‘s gained a lot of weight. I still don‘t know why I
said that, but I just—you know, I just felt like I knew her. From where I don’t
know.‖ (Italics added.) Following this testimony, the trial court sustained the
prosecutor‘s hearsay objection for lack of foundation.
―Evidence of a statement made by a witness is not made inadmissible by
the hearsay rule if the statement is inconsistent with his testimony at the hearing
. . . .‖ (Evid. Code, § 1235.) Had there been evidence from which a reasonable
jury could have concluded the Hispanic woman who came to Ann Jones‘s home
was Maria R., then the alleged apology could be considered a statement that was
inconsistent with her accusations of assault and thus admissible under Evidence
Code section 1235. But a trial court‘s decision to admit or exclude a hearsay
statement under this hearsay exception will not be disturbed on appeal absent a
showing of abuse of discretion. (People v. Cowan, supra, 50 Cal.4th at p. 462.)
When the admissibility of evidence turns on the existence of a preliminary fact
(see Evid. Code, § 403), the trial court may, as here, hold a hearing outside the
jury‘s presence to determine whether that preliminary fact exists. ―The court
should exclude the proffered evidence only if the ‗showing of preliminary facts is
too weak to support a favorable determination by the jury.‘ [Citations.] The
decision whether the foundational evidence is sufficiently substantial is a matter
within the court‘s discretion.‖ (People v. Lucas (1995) 12 Cal. 4th 415, 466.)
70
Because Jones could not say the Hispanic woman was in fact Maria R.,
there is no reason to think the speaker‘s statements were a prior statement of
Maria R., inconsistent or otherwise. Defendant contends he presented sufficient
evidence from which a reasonable jury could have found Maria R. was the
Hispanic woman who accompanied the preacher to Jones‘s home, observing that
― ‗the judge‘s function on questions of this sort is merely to determine whether
there is evidence sufficient to permit a jury to decide the question. The ―question
of admissibility . . . merges imperceptibly into the weight of the evidence, if
admitted.‖ ‘ ‖ (Quoting Legis. Com. com., 29B pt. 1 West‘s Ann. Evid. Code
(1995 ed.) foll. § 403, p. 361, quoted with approval in People v. Lucas, supra, 12
Cal.4th at p. 467.) The flaw in this argument is that defendant never presented
sufficient evidence to allow the jury to find that the woman who came to Jones‘s
home was in fact Maria R. The victim testified that she went to the home with
some ―church people‖ she met, that ―some church lady‖ went to the house, but that
she (Maria) stayed in the car. Jones did not contradict this testimony, admitting
that she did not recognize Maria R. when she testified at trial, and that she knew
her from somewhere but could not say where. Jones testified that ―maybe‖ the
woman was Maria R. Defense counsel acknowledged that Jones did not identify
Maria R. when shown her photograph, and that the preacher could not be located
for corroboration. Under the circumstances, the trial court did not abuse its broad
discretion by excluding the evidence because defendant failed to present evidence
that, if believed by the jury, would have shown it was Maria R. who came to speak
to defendant at Jones‘s home.
Defendant further argues the evidence of the alleged apology for a false
accusation was admissible because the unidentified ―church people‖ were acting
as a Maria R.‘s agents. This claim fails because no evidence establishes such
agency. Maria R. testified she told the ―church people‖ that she was afraid
71
defendant would hurt her again, so one may infer they went to warn defendant not
to do so. Maria R. never said she asked them to apologize for a false accusation.
Indeed, she disclaimed any knowledge of what these people told Jones and
defendant until they returned and related to her what they said.
There being no abuse of discretion in excluding the evidence under
Evidence Code section 1235, we also reject defendant‘s additional claim that the
trial court‘s ruling deprived him of his federal constitutional right to present a
defense. (See, e.g., Crane v. Kentucky (1986) 476 U.S. 683.) As we have
explained, the routine application of provisions of the state Evidence Code law
does not implicate a criminal defendant‘s constitutional rights. (People v. Mills,
supra, 48 Cal.4th at p. 194.) Instead, because the trial court merely excluded some
evidence that could have impeached a complaining witness and did not preclude
defendant from presenting a defense, any error would be one of state evidentiary
law only. (People v. McNeal (2009) 46 Cal. 4th 1183, 1203.)
5. Admission of Expert Fingerprint Evidence
Defendant next argues the trial court erred by permitting an expert to testify
that she used a vacuum metal deposition device in Ottawa, Canada, assisted by the
Royal Canadian Mounted Police, to discover and preserve fingerprints on the
plastic garbage bags in which JoAnn Sweets‘s body was found. After a hearing,
the trial court overruled defendant‘s objection for lack of foundation and admitted
the evidence. As we explain, the trial court did not abuse its discretion.
Dianne Donnelly testified that at the time of defendant‘s trial, she worked
for the San Diego Police Department as a latent fingerprint examiner. She was
asked in 1992 to determine if there were any identifiable fingerprints on the plastic
trash bags in which police found JoAnn Sweets‘s body. Although Sweets‘s body
was found in 1986, the plastic bags had not yet been processed for prints.
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Donnelly testified she carefully transported the bags to Ottawa, Canada, because it
was determined that the best way to process old fingerprints on plastic bags was
by the vacuum metal deposition method and the United States did not have the
machinery necessary to conduct the procedure. ―The Royal Canadian Police
generously assisted us in allowing me to come up and learn about this method and
to try to obtain prints from these bags.‖ When Donnelly began describing the
process, defense counsel objected on the ground that the witness was testifying
―outside of her expertise.‖ After discussing the matter at sidebar, the trial court
provisionally overruled the defense objections, provided the prosecutor would lay
a proper foundation ―as to what training she had . . . in this machinery.‖18 It was
acknowledged the evidence would be subject to a continuing objection by the
defense.
Donnelly admitted she was not familiar with the vacuum metal deposition
process ―since we don‘t have a chamber here in San Diego or in the U.S.,‖ but that
she learned the process from two Canadians when she arrived there. Once in
Canada, she familiarized herself with the process, doing ―several trial runs‖ so that
she could ―observe it and learn the process.‖ She had done a lot of background
reading about the process before going to Canada and later wrote and presented a
18 The trial court told the parties: ―I think that [Donnelly] should talk about
the kinds of literature that she read about it, go a little more deeply into exactly
what it was that she read, what she observed, the whole process, how the thing was
preserved when she went up [to Canada].‖ Later, it opined: ―Here‘s what I
require. The foundation—the objection is foundation, and it seems to me that the
foundation is lacking and the thoroughness with which she is describing her
knowledge of the machinery and how it works exactly and exactly how the bags
were treated while they were in her custody and what was done with them. [¶] So
those are the two areas I ask you to cover is all. I think that that will do it. And
other issues might require other witnesses.‖
73
paper to the California division of the International Association for Identification
on her experiences using the Canadian device.
Donnelly then testified to the condition of the plastic bags and the
precautions she took to preserve them from contamination or alteration. She said
the process was first developed in the United Kingdom in 1976, but technicians in
other countries, such as Canada, also use it. As to why her office chose that
method, she explained that ―[v]acuum metal deposition‘s strength[] is in the
detection of older prints, which in this case is what we had. We knew that the
print had to be at least six years old. From the time of the occurrence of the death
to the time that I came in custody of these bags there was a six year difference, and
this—the strength of vacuum metal is also on these polyethylene type bags. [¶] It
can‘t be used—this type of process on every type of evidence. This is its strength:
plastic bags and on older prints. That‘s why we chose it.‖
The process, which she personally observed, involved placing the bag in a
chamber and subjecting it to vaporized zinc and gold. Those metals are absorbed
by the fats and lipids in any existing prints on the bag and settle into the valleys
between the ridges of the print. The process does not add fingerprints not already
present on the tested material, nor remove or alter prints already deposited.19
Fingerprints made visible by the process are then photographed to preserve them
and are compared to fingerprints on file. Donnelly matched the fingerprints found
on the bag to those of defendant on file with the San Diego police.
19 As the trial court commented: ―Nobody would even think in their wildest
imagination that if you put something into a machine that it‘s going to put prints
on it. So you probably don‘t have to know what the intricacies are of what
happens inside the machine. The questions are whether it goes in and comes out
with something showing.‖
74
On cross-examination, Donnelly testified that she did not attempt to process
the bags before going to Canada and was not aware that anyone else had either.
Had someone done so, the bags would have been contaminated and the vacuum
metal deposition process would not have worked. Had the bags not been so old,
she would have processed them in a cyanoacrelate fuming chamber using
superglue fumes, stained them with a florescent dye and then used a laser to
examine the florescence. Asked whether she was ―aware of how the process
actually worked,‖ she replied, ―[n]ot all the functions of the machine, no. I was
just aware of how the latent print reaction would work, that general process. As
far as how all the machinery works, I really don‘t care. As long as it develops the
latent prints on my evidence, that‘s what I care about.‖ Asked whether she made
―any kind of investigation regarding whether the machine was working properly,‖
she said she did ―only what [the Canadian authorities] did. I mean, the system is
very idiot proof, if I can use that term. It will stop a procedure or it won‘t let you
continue if there is something wrong.‖
In further describing the process, Donnelly said the reason they had to do so
many applications—14 in all—was because the bag was so large, and the zinc and
gold evaporation dishes would only work on a small area. She revealed that the
fingerprints she found were all on the outside of the bag.
As noted, ante, part I.C.3.c., a trial court has broad discretion to find a
proposed witness qualifies as an expert under Evidence Code section 720 and that
decision will not be disturbed on appeal absent a showing of manifest abuse of that
discretion. (People v. Castaneda, supra, 51 Cal.4th at p. 1336.) Defendant cites
People v. Williams (2002) 28 Cal. 4th 408, 412, and Davenport v. Department of
Motor Vehicles (1992) 6 Cal. App. 4th 133, 140, to argue the prosecution failed to
establish a foundation for Donnelly‘s testimony by showing that ―(1) the testing
device was in proper working order, (2) the test was properly administered, and
75
(3) the operator was competent and qualified.‖ (Williams, at p. 412.) Respondent
counterargues that those cases ―and the three-step test are inapposite because they
specifically involve blood-alcohol testing devices (Davenport) and preliminary
alcohol screening (PAS) testing devices requiring compliance with Title 17 of the
California Code of Regulations (Williams).‖ Respondent further argues that no
authority exists applying this three-step analysis to fingerprint analysis.
We need not resolve the point because the record demonstrates the trial
court did not abuse its broad discretion. Although Donnelly arguably did not
demonstrate she was a renowned expert in the workings of the vacuum metal
deposition device, she expressed sufficient expertise—reading ―books from
different authors‖ about the process, being trained by Canadian law enforcement
officials, undertaking several trial runs—to adequately support the trial court‘s
conclusion that she demonstrated ―special knowledge, skill, experience, training,
or education sufficient to qualify [her] as an expert on the subject to which [her]
testimony relates.‖ (Evid. Code, § 720.)
There being sufficient evidence to conclude the trial court did not abuse its
broad discretion in finding Donnelly‘s testimony was not outside of her expertise
within the meaning of Evidence Code section 720, questions about the depth or
scope of her knowledge or experience go to the weight, not the admissibility, of
her testimony. (People v. Eubanks, supra, 53 Cal.4th at p. 140.)
8. Alleged Insufficient Evidence
Defendant contends the evidence underlying his murder convictions and the
sodomy-murder special-circumstance allegations was insufficient, requiring we
reverse those convictions and findings and vacate the imposition of the death
penalty. ―The law is clear and well settled. ‗On appeal we review the whole
record in the light most favorable to the judgment to determine whether it
76
discloses substantial evidence—that is, evidence that is reasonable, credible, and
of solid value—from which a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal. 3d 557, 578;
see also Jackson v. Virginia (1979) 443 U.S. 307, 317-320.)‘ ‖ (People v. Abilez
(2007) 41 Cal. 4th 472, 504.)
As defendant emphasizes, little or no direct evidence connects him to some
of the crimes; the prosecution instead relied on circumstantial evidence. But
― ‗[t]he standard of review is the same in cases in which the People rely mainly on
circumstantial evidence. (People v. Bean (1988) 46 Cal. 3d 919, 932.) ―Although
it is the duty of the jury to acquit a defendant if it finds that circumstantial
evidence is susceptible of two interpretations, one of which suggests guilt and the
other innocence [citations], it is the jury, not the appellate court which must be
convinced of the defendant‘s guilt beyond a reasonable doubt. ‗ ―If the
circumstances reasonably justify the trier of fact‘s findings, the opinion of the
reviewing court that the circumstances might also reasonably be reconciled with a
contrary finding does not warrant a reversal of the judgment.‖ ‘ [Citations.]‖
[Citation.] ― ‗Circumstantial evidence may be sufficient to connect a defendant
with the crime and to prove his guilt beyond a reasonable doubt.‘ ‖ ‘ [Citation.]‖
(People v. Abilez, supra, 41 Cal.4th at p. 504.)
a. JoAnn Sweets
Ample evidence supports defendant‘s conviction for murdering JoAnn
Sweets. Her partially nude body was found in a dumpster on May 9, 1986, placing
the crime within the timeframe in which someone was preying on African-
American women—often prostitutes, but also other poor denizens of the street,
such as homeless women and drug addicts—in and around El Cajon Boulevard in
77
San Diego.20 The dumpster was just behind defendant‘s apartment on 51st street
in San Diego. Like the other victims, Sweets had been beaten and manually
strangled. Her body was partially wrapped in a bed sheet and covered with a
colorful, homemade afghan blanket, placed in plastic garbage bags that were taped
shut with masking tape, and deposited in a dumpster. Defendant‘s sister, L.A.,
admitted she ―might have‖ told police she was ―100 percent sure‖ her mother had
crocheted the afghan, although she backtracked somewhat at trial. Using the
vacuum metal deposition technique, police found defendant‘s fingerprints on the
plastic garbage bags. Further forensic investigation found fibers on the victim‘s
blouse that matched the carpet in defendant‘s apartment. Semen stains on the bed
sheet were consistent with defendant‘s genetic profile, although a DNA analysis
could not positively identify defendant as the donor to the exclusion of all others.
Defendant suggests problems with this evidence: L.A.‘s hesitant and
equivocal testimony about the afghan, alleged unreliability of the testing of the
plastic bags for fingerprints, the possibility the carpet fibers were fairly common
and not unique to defendant‘s apartment, failure to show the semen stains could
have been only from defendant. The whole of the evidence nevertheless
comprises solid and substantial circumstantial evidence which, when combined
with the other evidence of similar crimes that occurred within the relevant
timeframe, including three in which the victims survived and identified defendant
as their assailant (Maria R., Bertha R., Karen M.), could have persuaded a
reasonable jury beyond a reasonable doubt that defendant was guilty of murdering
JoAnn Sweets on either a premeditation or a felony-murder theory. Significantly,
although defendant presented evidence suggesting Ike Jones, Sweets‘s one-time
20 The timeframe is relevant. See ante, page 27, footnote 6.
78
boyfriend, may have been the killer, genetic testing eliminated him as a donor of
the semen stain.
Defendant further argues the evidence was insufficient to sustain the special
circumstance that he killed Sweets while committing the crime of forcible
sodomy. A rectal swab taken from Sweets‘s body revealed the presence of sperm,
but not enough on which to conduct a DNA test. From this evidence, the manner
of Sweets‘s violent murder, the location of her body, and the evidence of
defendant‘s intent and modus operandi as shown by his similar crimes, the jury
reasonably could have found defendant forcibly sodomized Sweets before killing
her.
b. Sophia Glover
We also reject defendant‘s claim that insufficient evidence supported his
conviction for the crimes against Sophia Glover. Although the evidence of
defendant‘s guilt of murdering Glover was less than the evidence of Sweets‘s
murder (there being no fingerprints, blanket, or carpet fibers linking the body to
defendant), Glover fit the profile of defendant‘s victims: she was an African-
American woman, she was likely a prostitute, she was killed during the 14-month
period defendant was known to be preying on such women, she had been beaten
about the head, she died of manual strangulation, and her body was discarded like
garbage in close proximity to a home defendant was known to use. An analysis of
an anal swab found sperm consistent with defendant‘s genotype, which appeared
in approximately 15 percent of the African-American population.
Defendant challenges the force of this evidence, emphasizing the presence
of another man‘s sperm in the swab sample. He also notes that although police
found three hairs on the blanket in which Glover‘s body was wrapped, experts
could not match them to him. Despite these circumstances, a reasonable jury
79
considering all the evidence, including the evidence of other similar crimes that
occurred within the relevant timeframe in three of which the victims survived and
identified defendant (Maria R., Bertha R., Karen M.), could have found beyond a
reasonable doubt that defendant was guilty of murdering Sophia Glover.
Defendant also argues insufficient evidence supported the special
circumstance allegation that he killed Glover while engaged in the commission or
attempted commission of a felony, i.e., forcible sodomy. Critically, a rectal swab
from the victim revealed the presence of sperm consistent with defendant‘s
genotype. Glover‘s clothes were found neatly folded in an alley near to where her
body was found, which was consistent with defendant‘s attacks on Maria R.,
Bertha R., and Karen M. He apparently convinced women to engage in
consensual sex but turned suddenly violent, beating and strangling them and then
forcing them to engage in additional sex acts. The jury could reasonably infer he
committed a forcible sodomy from the presence of sperm, the DNA evidence
linking him to the victim, the manner of Glover‘s violent murder, the location of
her body (she was found near the Wilsie home on Mississippi Street where
defendant‘s mother worked), and the evidence of defendant‘s intent and modus
operandi in committing similar crimes against several other victims within the
same timeframe and general location. Because sufficient evidence supports the
felony-murder special circumstance, the jury necessarily found defendant guilty of
first degree murder on a felony-murder theory, so we need not address his further
claim there was insufficient evidence of premeditation and deliberation.
c. Karen M.
Defendant contends insufficient evidence supports his conviction for the
crimes involving Karen M. The victim testified that on October 20, 1986,
defendant drove up to her on the street in a blue/gray Datsun 280Z and solicited an
80
act of prostitution. She agreed, and he took her to the Wilsie home on Mississippi
Street. Once there, he began choking her and said he would kill her if she did not
comply with his demands. She had with her a bottle of liquor, and he forced her to
drink it before sexually assaulting her. She passed out due to the alcohol and was
found later by Mrs. Wilsie‘s daughter-in-law, Marjorie Wilsie, who called police.
Karen M. testified she told police she had been raped but they did not believe her.
Karen M. admitted she was a prostitute and had several convictions for
prostitution. She was hoping to obtain favorable treatment in another case by
testifying against defendant but was unsuccessful in doing so.
Noting her criminal history, her intoxication, and inconsistencies in her
story, defendant contends Karen M. was ―inherently unreliable‖ and her testimony
―lacked credibility.‖ But it is not for us to say on appeal whether she was worthy
of the jury‘s belief. Nothing to which she testified was physically impossible or
even implausible. ―If the verdict is supported by substantial evidence, we must
accord due deference to the trier of fact and not substitute our evaluation of a
witness‘s credibility for that of the fact finder.‖ (People v. Koontz (2002) 27
Cal. 4th 1041, 1078.) ―Resolution of conflicts and inconsistencies in the testimony
is the exclusive province of the trier of fact. [Citation.] Moreover, unless the
testimony is physically impossible or inherently improbable, testimony of a single
witness is sufficient to support a conviction.‖ (People v. Young, supra, 34 Cal.4th
at p. 1181.) As is standard, the jury was instructed: ―You should give the
testimony of a single witness whatever weight you think it deserves. However,
testimony by one witness, which you believe, concerning any fact is sufficient for
the proof of that fact.‖ (See CALJIC No. 2.27.) We assume that because the
jurors convicted defendant of the charges involving Karen M., they found her a
credible witness. Accordingly, sufficient evidence supports the jury‘s verdict on
those counts.
81
d. Motion for Acquittal (Section 1118.1)
Following the close of the prosecution‘s case-in-chief at the guilt phase,
defendant moved for acquittal on count two, the murder charge involving Tara
Simpson, claiming the prosecution had failed to present sufficient evidence of
guilt. As counsel argued: ―[T]here is nothing which connects [defendant] to that
murder at all but for where he lives; just the opportunity portion that I am sure
the—they will argue. [¶] There was some acid phosphatase that [was] recovered,
but there is nothing to indicate at all that those are—were either identified or
anything of that nature.‖ The trial court denied the motion, saying: ―With respect
to Tara Simpson, there is no question in the court‘s mind that this will pass muster
under 1118.1.‖ Defendant now argues the trial court erred by denying the motion
because no solid and reliable evidence tied him to the crime.
Section 1118.1 provides in pertinent part: ―In a case tried before a jury, the
court on motion of the defendant or on its own motion, at the close of the evidence
on either side and before the case is submitted to the jury for decision, shall order
the entry of a judgment of acquittal of one or more of the offenses charged in the
accusatory pleading if the evidence then before the court is insufficient to sustain a
conviction of such offense or offenses on appeal.‖ As we explained in People v.
Coffman and Marlow, supra, 34 Cal. 4th 1, 89: ―The test applied by the trial court
in ruling on a motion for acquittal is the same test applied by the appellate court in
reviewing a conviction for sufficiency of the evidence, namely, to determine
whether from the evidence then in the record, including reasonable inferences to
be drawn therefrom, there is substantial evidence of the existence of every element
of the offense charged.‖
At the threshold, it is unclear how the trial court‘s denial of defendant‘s
motion of acquittal of Simpson‘s murder prejudiced defendant because the jury
failed to convict him of that charge. Defendant suggests he was prejudiced
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because the trial court specifically allowed the jury to consider Simpson‘s murder
as an aggravating circumstance under section 190.3, factor (b), which authorizes a
capital jury to weigh ―[t]he presence or absence of criminal activity by the
defendant which involved the use or attempted use of force or violence or the
express or implied threat to use force or violence.‖ But the court also instructed
the jury it must find defendant committed that act beyond a reasonable doubt (see
People v. Avena (1996) 13 Cal. 4th 394, 429-430), eliminating any unfairness, for
we assume no jurors considered the facts of Simpson‘s murder unless they found
those facts true beyond a reasonable doubt.
Assuming without deciding that the trial court‘s denial of defendant‘s
section 1118.1 motion could be prejudicial, we find the court did not err.
Simpson‘s murder occurred during a timeframe in which African-American
prostitutes or homeless women using El Cajon Boulevard in San Diego as a base
were being sexually assaulted, beaten and strangled, often causing their death.
None was shot with a gun. The victims were usually drug users. Simpson‘s body,
like those of Glover, Sweets and Carpenter, was found discarded like garbage in
close proximity to one of two residences defendant was known to use. DNA
evidence linked defendant to some, but not all, of the victims. Three surviving
victims largely fitting the pattern (Maria R., Bertha R., and Karen M.) identified
defendant as their assailant. Accordingly, at the time the defense made its motion
for acquittal, the evidence and the reasonable inferences the jury could have drawn
from it comprised substantial evidence that defendant killed Simpson. (People v.
Coffman and Marlow, supra, 34 Cal.4th at p. 89.)
Defendant also argues the trial court should have entered a judgment of
acquittal on count three, which charged him with murdering Trina Carpenter.
Although he moved for acquittal on count two (Tara Simpson), defendant did not
include count three in his motion and thus forfeited the claim for appeal. (People
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v. Smith (1998) 64 Cal. App. 4th 1458, 1464.) Were we to overlook defendant‘s
omission and find the claim properly before us, and were we further to assume he
could possibly have been prejudiced (for the jury hung on count three), we would
reject his claim on the merits for the same reasons we stated with regard to the
Tara Simpson murder; that is, sufficient evidence, along with inferences drawn
from that evidence, supported the conclusion that defendant was responsible for
killing Trina Carpenter due to the pattern of behavior and similarity of crimes, the
interlocking circumstances among the various victims, the DNA evidence, and the
eyewitness testimony from the surviving victims.
D. Assorted Instructional Claims
Defendant contends the trial court committed several errors when
instructing the jury at the guilt phase. As we explain, post, none of these claims
has merit.
1. First Degree Murder
a. Omission of Malice Aforethought
When instructing the jury, the trial court declined to use either CALJIC No.
8.10, the standard pattern instruction defining first degree murder, or CALJIC No.
8.11, the standard instruction defining malice. Instead, the trial court chose to use
its own restated modification of the standard instructions, explaining that ―my
instruction, as you see, takes exactly this definition [from CALJIC No. 8.10] and it
just substitutes ‗the killing was intentional‘ as opposed to ‗the killing was done
with malice aforethought.‘ ‖ Defendant objected to the court‘s proposed
instruction because it excised the definition of malice aforethought, but the court
overruled his objection. The instruction the court eventually read to the jury failed
to require it to find, as a condition of returning a verdict of first degree
premeditated murder, that defendant acted with the intention unlawfully to take the
victim‘s life.
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Defendant contends the failure to instruct specifically on malice
aforethought as set forth in the standard CALJIC instructions requires reversal.
We need not resolve this point because any instructional error was harmless. With
regard to Sophia Glover, the jury was instructed that it could convict of first
degree murder on either of two theories: premeditation and deliberation, or felony
murder. The jury was also instructed on the sodomy-murder special-circumstance
allegation and the jury sustained this allegation. This latter finding demonstrates
the jury necessarily found by a unanimous vote that defendant killed Glover while
he was ―engaged in the commission or attempted commission of . . . sodomy, or
that the murder was committed during the immediate flight after the commission
or attempted commission of . . . sodomy by the defendant,‖ and that he intended to
kill while doing so. This finding demonstrates the jury necessarily found beyond a
reasonable doubt the facts supporting first degree murder on a felony-murder
theory for Glover. Thus, even assuming for argument the malice instructions were
faulty, any error was necessarily harmless under any standard.
People v. Boyd (1985) 38 Cal. 3d 762 is illustrative. In Boyd, the defendant
argued the trial court erred by instructing the jury on premeditation because the
evidence was insufficient to support that theory. We found any instructional error
did not require reversal because ―the jury [that] found defendant guilty of first
degree murder simultaneously returned a verdict finding as a special circumstance
that defendant committed that murder during the commission of an attempted
robbery. It also found defendant guilty of the crime of attempted robbery. Those
findings make it clear that whatever the jurors thought about premeditation, they
agreed upon all of the elements necessary for a verdict of first degree murder
based on a felony-murder theory.‖ (Id., at p. 770, italics added.) Here, as in Boyd,
―we can conclude that, at the very least, the jury reached its verdict of first degree
murder [as related to Sophia Glover] under one legally proper theory. Under such
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circumstances, there is no miscarriage of justice under article VI, section 13 of the
state Constitution and reversal is not required.‖ (People v. Sanders (1990) 51
Cal. 3d 471, 510.) For the same reasons, no federal constitutional error occurred
because any instructional error with regard to Glover would be harmless beyond a
reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
For the crimes committed against JoAnn Sweets, a slightly different
analytical path applies but it leads to the same destination. Although it did not do
so for the murder charge involving Glover, for the Sweets murder charge the trial
court instructed the jury ―to consider only one theory of first degree murder, to
wit: deliberate and premeditated murder.‖ Because the jury was not given the
option of convicting defendant of first degree felony murder for the Sweets
murder, we cannot rely on the special circumstance findings to conclude the jury
necessarily sustained all the elements of that theory of first degree murder. But
any instructional error was rendered harmless by the jury‘s unanimous decision to
sustain the sodomy-murder special-circumstance allegation for Sweets‘s murder.
In doing so, the jury necessarily found, per the jury instructions, that defendant
―intended to kill and killed to carry out or advance the rape or sodomy or to
facilitate the escape therefrom or to avoid detection.‖ Thus, the jury found
defendant unlawfully killed her while harboring the intent to kill. That is what
CALJIC No. 8.11 would have required the jury to find in any event. (CALJIC No.
8.11 [―Malice [aforethought] is express when there is manifested an intention
unlawfully to kill a human being.‖].) Any error is thus harmless under both the
state and federal Constitutions.
b. Alleged Inapplicability of Premeditation and Felony-murder
Defendant next contends we must reverse his two murder convictions
because the language in the information was inadequate to charge him with first
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degree murder under a theory of either premeditation and deliberation or felony
murder. Because the charging language was inadequate, he claims, the trial court
lacked jurisdiction to try him for murder in the first degree. He also argues his
trial for first degree murder violated his constitutional right to due process and to a
fair trial and reliable penalty determination under our state and federal
Constitutions. As we explain, the legal basis of his contention is flawed.
Count four of the information charged defendant as follows: ―On or about
May 9, 1986, BRYAN MAURICE JONES did willfully, unlawfully murder
JOANN SWEETS, a human being, in violation of PENAL CODE SECTION
187(a).‖ The language in count five (Sophia Glover) was the same except for the
date. Following the presentation of evidence, the jury was instructed on first
degree murder and told to consider only one theory—premeditation and
deliberation—for count four (JoAnn Sweets), but that it could consider both
premeditation and deliberation and felony murder (rape) for count five (Sophia
Glover). With regard to both Sweets and Glover, the court also instructed the jury
on the sodomy-murder special circumstance, i.e., whether those two killings were
committed during the commission or attempted commission of a forcible sodomy.
The jury returned first degree murder verdicts on both counts and sustained the
special circumstance as to both Sweets and Glover.
Defendant first contends the information‘s failure to include any mention of
willfulness, premeditation or deliberation means he was charged with second
degree murder only. But ―it has long been the law in this state that an accusatory
pleading charging murder need not specify degree or the manner in which the
murder was committed. . . . Neither is it necessary to specifically plead the
charged murder was wilful, deliberate, and premeditated. [Citation.] So long as
the information adequately alleges murder, the evidence adduced at the
preliminary hearing will adequately inform the defendant of the prosecution‘s
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theory regarding the manner and degree of killing.‖ (People v. Thomas (1987) 43
Cal. 3d 818, 829, fn. 5.)
To the extent defendant argues the information was faulty for mentioning
section 187 and not section 189, we disagree. ―[A] valid accusatory pleading need
not specify by number the statute under which the accused is being charged.
[Citations.] Section 952, which governs how an offense should be stated in an
accusatory pleading, merely provides in pertinent part that ‗[i]n charging an
offense, each count shall contain, and shall be sufficient if it contains in substance,
a statement that the accused has committed some public offense therein specified.
Such statement may be made in ordinary and concise language without any
technical averments or any allegations of matter not essential to be proved. It may
be in the words of the enactment describing the offense or declaring the matter to
be a public offense, or in any words sufficient to give the accused notice of the
offense of which he is accused.‘ ‖ (People v. Thomas, supra, 43 Cal.3d at p. 826.)
Defendant also argues the information, by referencing section 187 but not
section 189, failed to adequately charge first degree murder on a felony murder
theory. Although he concedes People v. Witt (1915) 170 Cal. 104 held that ―it is
sufficient to charge the offense of murder in the language of the statute defining
it,‖ and that such charging language ―includes both degrees of murder‖ (id., at
pp. 107-108), he argues Witt‘s rationale has been ―completely undermined‖ by this
court‘s reasoning in People v. Dillon (1983) 34 Cal. 3d 441, that section 189 is the
―statutory enactment of the first degree felony-murder rule in California.‖ (Dillon,
supra, at p. 472.) But as defendant concedes, ―subsequent to Dillon, supra, 34
Cal. 3d 441, we have reaffirmed the rule of People v. Witt, supra, 170 Cal. 104,
that an accusatory pleading charging a defendant with murder need not specify the
theory of murder upon which the prosecution intends to rely. Thus we implicitly
have rejected the argument that felony murder and murder with malice are
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separate crimes that must be pleaded separately.‖ (People v. Hughes (2002) 27
Cal. 4th 287, 369.) Although defendant further contends that Hughes ―never
explained how the reasoning of Witt can be squared with the holding of Dillon,‖
he is mistaken, for we explained that ― ‗generally the accused will receive
adequate notice of the prosecution‘s theory of the case from the testimony
presented at the preliminary hearing or at the indictment proceedings.‘ ‖ (Hughes,
supra, at pp. 369-370.) We reject his further argument that we should reexamine
our precedents because he presents no persuasive reason to do so.
2. Consideration of Other Crimes Evidence
Defendant argues the instruction addressed to the jury‘s consideration of
other charged crimes requires reversal because it was ―awkward,‖ ―hopelessly
confusing‖ and ―deeply flawed,‖ largely because of the many victims and the
interlocking nature of the evidence. We reject the argument. The instruction was
essentially consistent with CALJIC No. 2.50, and, contrary to defendant‘s
argument, it was not erroneous for failing to mention the prosecution‘s burden of
proof. Nor was the instruction flawed for failing to guide the jury on how to use
evidence of the other charged crimes to prove intent and motive. In addition to
giving the basic instruction, the court instructed the jury that ―[y]ou may also
consider other counts‘ evidence together with the count under consideration to
determine whether there existed in the mind of the perpetrator an intent which is a
necessary element of the count under consideration, or a relevant motive. You
should consider whether any intent or motive is the same, different, or absent in
some or all of the offenses considered.‖ Due to the similarity of the other charged
crimes and the Sweets and Glover crimes, the jury, considering the instructions as
a whole, would have understood how to weigh the former crimes in proving
motive and intent in the latter crimes. To the extent the instruction was
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incomplete, defendant may not be now heard to complain because he did not
request clarifying language. ―A party may not complain on appeal that an
instruction correct in law and responsive to the evidence was too general or
incomplete unless the party has requested appropriate clarifying or amplifying
language.‖ (People v. Andrews (1989) 49 Cal. 3d 200, 218, quoted with approval
in People v. Hart (1999) 20 Cal. 4th 546, 622.)
Defendant also complains about the further instruction that ―[i]f you should
find a unique or highly distinctive method, plan, or scheme shared among other
counts and the count under consideration, such that an inference of a single
perpetrator for all offenses may be drawn, then you should consider whether it
may be logically concluded that if the defendant committed one or more of the
other crimes, he also committed the crime under consideration. Or, conversely, if
he did not commit one or more of the other crimes, then it may be logically
concluded that he did not commit the crime under consideration.‖ This instruction
was erroneous, he contends, because, as we stated in People v. Ewoldt, supra, 7
Cal.4th at page 394, ―[e]vidence of a common design or plan, therefore, is not
used to prove the defendant‘s intent or identity but rather to prove that the
defendant engaged in the conduct alleged to constitute the charged offense.‖ That
he reads Ewoldt out of context is clear, for we go on in that case to explain:
―Evidence of identity is admissible where it is conceded or assumed that the
charged offense was committed by someone, in order to prove that the defendant
was the perpetrator.‖ (Id., at p. 394, fn. 2.) There having been evidence Sweets
and Glover were sexually assaulted and murdered, the jury could consider
evidence of other crimes demonstrating the existence of a common plan or
scheme, such as defendant‘s crimes against Maria R. and Karen M., and the trial
court did not err in so instructing.
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Defendant next argues the jury instructions impermissibly allowed the jury
to aggregate the evidence, finding him guilty of just one crime and then parlaying
that finding to find him guilty of the remaining crimes without consideration of
any other evidence. ―For example, the instruction meant that if the jury found that
[he] attempted the murder of Maria [R.] or Karen [M.], it could logically conclude
from this finding alone that [he] committed the first degree murders of Sophia
Glover and JoAnn Sweets.‖ We disagree, for the court specifically instructed the
jury on the need to find beyond a reasonable doubt that defendant had committed
each individual crime. The jury showed it understood this instruction by its
inability to reach a verdict on the Tara Simpson and Trina Carpenter counts.21
Finally, we reject defendant‘s contention that the jury instructions ―would
have permitted the jury to find [he] committed a murder based on evidence short
of proof beyond a reasonable doubt.‖ Because the jury was also instructed that
―[e]ach fact which is essential to complete a set of circumstances necessary to
establish the defendant‘s guilt or a special circumstance must be proved beyond a
reasonable doubt,‖ we are confident the jury applied the reasonable doubt standard
before returning a guilty verdict.
3. CALJIC. No. 2.03 (Consciousness of Guilt)
The trial court instructed the jury with CALJIC No. 2.03, the standard
instruction informing the jury it may infer a consciousness of guilt from
21 Defendant further argues that the ―jurors who did not vote guilty on the
Carpenter and Simpson murder counts could have used those counts to determine
identity in the Glover and Sweets [charges] without first finding that the
prosecution had proved the Carpenter and Simpson counts by a preponderance of
the evidence.‖ That any jurors did so, however, is mere speculation. To the extent
the instruction, which was otherwise correct, was vague, defendant cannot now
complain as he did not ask the court to modify the instruction. (People v.
Holloway (2004) 33 Cal. 4th 96, 154.)
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defendant‘s willfully false or misleading statements. Defendant contends this
instruction was duplicative, argumentative, ―unfairly partisan,‖ and permitted the
jury to draw unwarranted or even irrational inferences about his state of mind. He
also contends these alleged state-law violations transgressed several of his state
and federal constitutional rights. Assuming without deciding defendant preserved
this issue for appellate review, we conclude the claim lacks merit. We have
rejected defendant‘s exact claims many times (see, e.g., People v. Moore, supra,
51 Cal.4th at pp. 413-414), as defendant concedes. Although he urges this court to
reconsider these past decisions, arguing they are based on the mistaken analysis
first set forth in People v. Crandell (1988) 46 Cal. 3d 833, we have rejected that
precise claim as well. (People v. Page (2008) 44 Cal. 4th 1, 51.) We thus have no
reason to disavow Crandell‘s assessment that a reasonable juror instructed with
CALJIC No. 2.03 ―would understand ‗consciousness of guilt‘ to mean
‗consciousness of some wrongdoing‘ rather than ‗consciousness of having
committed the specific offense charged.‘ ‖ (Crandell, at p. 871.) As defendant
fails to persuade us that a reexamination of these precedents is warranted, we
reject his state law and constitutional claims of error.
4. CALJIC No. 2.51 (Motive)
Defendant argues the standard jury instruction on motive, CALJIC No.
2.51, which states that motive is not an element of the crime but is a circumstance
the jury can consider, violated his state and federal constitutional rights by
allowing the jury to determine his guilt based on proof of motive alone, by
improperly lightening the prosecution‘s burden of proof, and by shifting the
burden of proof such that defendant was required to prove his innocence. We
have many times rejected these exact claims (see, e.g., People v. Whalen (2013) 56
Cal. 4th 1, 71; People v. Kelly (2007) 42 Cal. 4th 763, 792), and we find no reason
to reexamine those prior decisions.
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5. Reasonable Doubt
Defendant argues various instructions addressing the concept of reasonable
doubt (CALJIC Nos. 2.90, 2.01, 2.02, 8.83, 8.83.1) violated his state and federal
constitutional rights to due process, trial by jury, and a reliable penalty
determination, both by (a) allowing the jury to convict him ―using a standard [of
proof] lower than proof beyond a reasonable doubt‖ by stating the jury ―must‖
draw an incriminatory inference if it appeared reasonable, and by (b) creating an
impermissible mandatory presumption ―that required the jury to accept any
reasonable incriminatory interpretation of the circumstantial evidence.‖
We reject the argument. As we have explained: ―Examination of the full
instructions shows defendant‘s concern to be groundless. Two of the instructions
defendant complains of (CALJIC Nos. 2.01, 8.83) explicitly told the jury that
every fact necessary to circumstantial proof of an offense or a special
circumstance must be shown beyond a reasonable doubt. All the instructions
complained of explicitly told the jury that if two possible inferences, both
reasonable, could be drawn from the circumstantial evidence, the jury was
required to reject the inference pointing to guilt or the presence of a required
mental state and accept only the inference pointing to innocence or the lack of a
required mental state. The instructions told the jurors they must accept a
reasonable inference pointing to guilt only where any other inference that could be
drawn from the evidence was unreasonable. That direction is entirely consistent
with the rule of proof beyond a reasonable doubt, because an unreasonable
inference pointing to innocence is, by definition, not grounds for a reasonable
doubt. The circumstantial evidence instructions are thus correct.‖ (People v.
Brasure (2008) 42 Cal. 4th 1037, 1058.)
Defendant further argues seven other jury instructions (CALJIC Nos. 1.00,
2.21.1, 2.21.2, 2.22, 2.27, 2.51, and 2.52) ―individually and collectively diluted the
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constitutionally mandated reasonable doubt standard.‖ According to defendant,
―[e]ach of these instructions, in one way or another, urged the jury to decide
material issues by determining which side had presented relatively stronger
evidence,‖ thereby reducing the prosecution‘s high burden of proof beyond a
reasonable doubt. As defendant concedes, we have previously rejected these
claims in other cases, but he argues this court should reexamine our prior
precedents because they are ―fundamentally flawed,‖ in that prior cases have
relied on the plain meaning of an instruction‘s language rather than considered
how a reasonable juror would have applied the instruction. (Estelle v. McGuire
(1991) 502 U.S. 62, 72 [―in reviewing an ambiguous instruction . . . , we inquire
‗whether there is a reasonable likelihood that the jury has applied the challenged
instruction in a way‘ that violates the Constitution‖]; People v. Lewis (2009) 46
Cal. 4th 1255, 1298 [same].)
Defendant‘s argument is untenable. For example, we explained in People
v. Jennings (1991) 53 Cal. 3d 334, 386, that ―[t]he plain meaning of these
instructions merely informs the jury to reject unreasonable interpretations of the
evidence and to give the defendant the benefit of any reasonable doubt. No
reasonable juror would have interpreted these instructions to permit a criminal
conviction where the evidence shows defendant was ‗apparently‘ guilty, yet not
guilty beyond a reasonable doubt.‖ (Italics added.) Accordingly, we conclude,
consistent with past authority (People v. Watkins (2012) 55 Cal. 4th 999, 1030),
that none of the identified pattern jury instructions violated defendant‘s
constitutional rights.
6. Unanimity
The jury was instructed on two theories of first degree murder:
premeditated murder and felony murder. Defendant argues the trial court erred by
instructing the jury that it need not conclude either theory was true by a unanimous
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vote, so long as it was unanimous in concluding defendant was guilty of first
degree murder on some theory.22 Again claiming that malice murder and felony
murder are different crimes with different elements, he argues the trial court‘s
failure to require the jury unanimously to support a single theory of first degree
murder is structural error requiring reversal.
We have rejected this precise claim in previous cases (People v. McKinzie
(2012) 54 Cal. 4th 1302, 1354; People v. Benavides (2005) 35 Cal. 4th 69, 100-
101), and defendant presents no persuasive reason to reexamine our precedents.
We thus reject the claim.
II. PENALTY PHASE
A. Facts
1. Aggravation
The prosecution called four witnesses who presented aggravating evidence.
The first, defendant‘s sister L.A., testified that when defendant was 11 or 12 years
old, he several times forced her to have sex against her will.
Tracy Davison testified that she met defendant when they both attended the
Job Corps in San Diego. She was 15 years old and he was 17, and she eventually
became pregnant by him. She thereafter lived with him and his mother on 51st
Street for three years but never married him. Once, when he was jealous, he
placed both his hands on her neck and choked her until she passed out. She left
him and eventually married another man. She related an incident that occurred on
October 1, 1985, which was about one month after police found Tara Simpson‘s
22 The jury was instructed: ―A finding of guilt of first degree murder in
counts three and five may be based upon either one or both of the proposed
theories. The jury does not have to agree unanimously as to which theory has
been proved, but all twelve jurors must be convinced beyond a reasonable doubt
that defendant is guilty under one or the other, or both theories.‖
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burned body, in which her then husband, David Entzminger, and defendant got
into a fight. Defendant picked Entzminger up by the neck and threw him against a
van. Davison estimated her husband was five feet seven inches tall and weighed
130 or 140 pounds. By contrast, she estimated defendant was six feet six inches
tall and weighed about 300 pounds. Her husband later obtained a restraining order
against defendant. On another occasion, defendant assaulted Davison and chipped
her tooth. She admitted she worked as a prostitute.
Sometime between September 1985 and July 1986, Davison saw defendant
with a prostitute near the 51st Street apartment. He told the woman in a ―[v]ery
hostile and aggressive‖ voice: ―Bitch, get my money.‖ She identified the
prostitute as murder victim Trina Carpenter.
Aida L. testified she worked as a prostitute in San Diego in 1986 and
admitted she had a prior felony conviction for theft. She was also addicted to
heroin at the time. On February 13, 1986, two days after police found Trina
Carpenter‘s body in a dumpster, the witness testified she was walking alone late at
night on El Cajon Boulevard when defendant attacked her. He grabbed her arm,
took her down an alley and into an underground parking lot, and forced her to
orally copulate him. He then raped her, and after he was finished he grabbed her
neck and choked her. He told her: ― ‗You better not say anything. You better not
scream. You better not tell the police or I am going to kill you.‘ ‖ She reported
the crime but police did not believe her.
Bertha R. testified to the effect of her victimization by defendant. She said
that after defendant sexually assaulted her, she starting drinking heavily and
abusing cocaine and crystal methamphetamine. Her boyfriend showed little
compassion towards her and began treating her differently. When she told him she
did not want to have sex, he cruelly replied that she deserved to be raped. She
began secluding herself in her room to drink, and she sent her son to her sister‘s
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home ―so I wouldn‘t have to be bothered with him.‖ She lost her job and began
working the streets as a prostitute to make money for alcohol and drugs. Although
she had been seeing a therapist, she stopped therapy because she ―was too
ashamed of what I was doing.‖ At the time of trial, more than seven years after
defendant assaulted her, she had turned her life around and was again employed
and no longer abused alcohol and drugs, although her son was now living ―on the
streets.‖
2. Mitigation
Defendant presented several witnesses who testified as to his character and
background. His mother, Ann Jones, related defendant‘s upbringing near Barstow
and how he did not do well in school and spent two weeks in juvenile hall after
being caught burglarizing homes when he was 13 years old. When her husband
returned from Okinawa after a tour of duty with the Marines, family life changed.
Her husband was a changed man, suspicious of everything she did. Once, when
she refused to give him any money, he tried to kill her by choking her until
defendant intervened. Her husband also beat her daughter, L.A., and once broke
defendant‘s arm. When her husband gambled away their savings, she sold the
house and moved to San Diego. Jones was unaware of defendant‘s arrests or that
he had been convicted of crimes against Bertha R. She believed him when he told
her he had been falsely accused and did not believe defendant ever molested his
sister because he denied it.
Tracy Davison‘s older sister, Linda Tate, testified defendant was a good
father. His son, now being raised by Jones, testified that he loved his father, who
encourages him by phone and in letters to do well in school and practice sports
and music. He would feel ―horrible‖ and ―really sad‖ if his father was not around
to speak with him.
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People who knew defendant in the Job Corps testified he did well in that
structured environment, posed no behavioral problems, and in fact helped to
defuse problems. He completed the welding program and was considered a good
welder with marketable skills. People who knew defendant in county jail and in
prison testified to his positive qualities and diligence in work programs.
B. Issues
1. Victim Impact Evidence
Defendant raises several arguments against the admission of Bertha R.‘s
penalty phase testimony, but none has merit. Although defendant‘s crimes against
Bertha R. were committed at a time when victim impact evidence was
inadmissible (Booth v. Maryland (1987) 482 U.S. 496), the law had changed by
the time he was tried in 1994 (Payne v. Tennessee (1991) 501 U.S. 808).
Defendant contends application of Payne to his case violates the ex post facto
clauses of both the state and federal Constitutions and is unconstitutionally vague.
We disagree. ―We have rejected claims that section 190.3, factor (a), is
unconstitutionally vague insofar as it permits introduction of victim impact
evidence as a circumstance of the crime [citations], and that use of victim impact
evidence in trials for capital crimes committed before the United States Supreme
Court‘s decision in Payne v. Tennessee, supra, 501 U.S. 808, violates federal
constitutional principles of ex post facto and due process [citation]. Defendant
does not persuade us to reconsider these decisions.‖ (People v. Jurado (2006) 38
Cal. 4th 72, 132.) We have reached the same result concerning the state
constitutional claim. (People v. Hamilton (2009) 45 Cal. 4th 863, 926.)
Defendant also contends the trial court erred by overruling his objection to
the admission of Bertha R.‘s testimony on grounds it was not related to the
circumstances of the capital crimes. We reject the argument, for the evidence of
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prior violent acts admitted under section 190.3, factor (b), may include the effect
of noncapital crimes on the surviving victim. ―At the penalty phase, the
prosecution may introduce evidence of the emotional effect of defendant‘s prior
violent criminal acts on the victims of those acts.‖ (People v. Price (1991) 1
Cal. 4th 324, 479.) ―The foreseeable effects of defendant‘s prior violent sexual
assaults upon the victims — ongoing pain, depression, and fear — were thus
admissible as circumstances of the prior crimes bearing on defendant‘s
culpability.‖ (People v. Mickle (1991) 54 Cal. 3d 140, 187.) We recently cited
Mickle with approval and declined an opportunity to reconsider it. (People v.
Jones (2012) 54 Cal. 4th 1, 73; see People v. Demetrulias (2006) 39 Cal. 4th 1, 39.)
Defendant next contends that even if some of Bertha R.‘s evidence was
admissible as victim impact evidence, it was much too extensive to withstand
constitutional scrutiny. Even assuming he preserved this issue, it lacks merit, for
the trial court acted well within its discretion in admitting the evidence, which was
extremely brief, comprising but seven pages in the trial transcript.
Defendant next contends the prosecutor ―exceeded the boundaries of
permissible victim impact argument to the jury in commenting on victims not
directly related to JoAnn Sweets and Sophia Glover.‖ Defendant did not object to
this argument and thus forfeited the issue for appeal. (People v. Brown (2004) 33
Cal. 4th 382, 398-399.) In any event, it was permissible to reference Bertha R.‘s
penalty phase testimony in closing argument. (People v. Gamache (2010) 48
Cal. 4th 347, 390 [prosecutor has wide latitude in closing argument].)
2. Incest Evidence
Defendant argues the trial court erred by permitting his sister, L.A., to
testify that when he was 11 and 12 years old he forced her to have sex with him.
Analogizing to Thompson v. Oklahoma (1988) 487 U.S. 815, wherein the high
99
court found the Eighth Amendment prohibits imposing the death penalty on those
who committed their capital crimes when they were less than 16 years old,
defendant argues that allowing the jury to consider, as aggravating evidence,
events that occurred before he attained the age of majority similarly violates his
constitutional rights.
Although defendant moved to exclude L.A.‘s testimony, he did not raise
this specific ground for exclusion. ―Evidence Code section 353, subdivision (a)
requires that an objection to evidence be ‗timely made and so stated as to make
clear the specific ground of the objection or motion . . . .‘ As we have explained:
‗ ―Specificity is required both to enable the court to make an informed ruling on
the . . . objection and to enable the party proffering the evidence to cure the defect
in the evidence.‖ ‘ ‖ (People v. Mills, supra, 48 Cal.4th at p. 207.) Under the
circumstances, we agree with respondent that defendant forfeited this issue for
appeal.
Were we to conclude defendant properly preserved this claim for our
review, we would find it meritless. As defendant recognizes, we rejected this
precise claim in People v. Raley (1992) 2 Cal. 4th 870. In Raley, the defendant,
also relying on Thompson v. Oklahoma, supra, 487 U.S. 815, argued, ―the
admission of evidence of juvenile misconduct violates the Eighth Amendment of
the United States Constitution because it permits aggravation of sentence for the
capital crime for conduct not considered criminal when it occurred.‖ (Raley,
p. 909.) We rejected the argument because the analogy to Thompson was inapt:
the defendant‘s death penalty sentence ― ‗is attributable to [his] current conduct,
i.e., murder with a special circumstance finding, not his past [juvenile] criminal
activity.‘ ‖ (Ibid., quoting People v. Cox (1991) 53 Cal. 3d 618, 690.) As
defendant was not a minor when he committed his crimes against JoAnn Sweets,
Sophia Glover, Maria R. and Karen M., Thompson is inapplicable.
100
Defendant argues Roper v. Simmons (2005) 543 U.S. 551, in which the high
court found the Eighth Amendment prohibited imposing the death penalty on
those under 18 years old at the time of their crimes, supports reconsideration of
Raley. We disagree. Although Roper increased the minimum age for the ultimate
penalty under the Eighth Amendment, it does not undermine our reasoning in
Raley that a capital offender‘s penalty is attributable to his present capital crimes,
not his past criminal activity.
3. Instruction to Disregard Guilt Phase Instructions
As is usual in capital cases, upon reaching the penalty phase the trial court
instructed the jury with CALJIC No. 8.84.1 (1989 rev.), which in part instructs the
jury it ―must determine what the facts are from the evidence received during the
entire trial unless you are instructed otherwise. You must accept and follow the
law that I shall state to you. Disregard all other instructions given to you in other
phases of this trial.‖ (Italics added.) Defendant contends the last sentence of this
instruction, and the failure to reinstruct the jury with approximately 40 different
guilt phase instructions, was constitutional error requiring reversal because it was
reasonably likely the omission of these instructions precluded the jury from
considering relevant mitigating evidence. Defendant is correct that the challenged
instruction presupposes the court will, at the penalty phase, reinstruct the jury with
the guilt phase instructions applicable to the penalty phase. ―As we have held, if
the court tells the jury to disregard the guilt phase instructions, ‗it must later
provide it with those instructions applicable to the penalty phase.‘ (People v.
Moon[ (2005)] 37 Cal.4th [1,] 37.) We reiterate that trial courts should take pains
to ensure that penalty phase juries are fully and properly instructed. (See People v.
Carter (2003) 30 Cal. 4th 1166, 1222; Moon, at p. 37, fn. 7.)‖ (People v. Harris
(2008) 43 Cal. 4th 1269, 1319.)
101
To the extent defendant argues the trial court committed reversible error,
however, he is incorrect because the trial court was not remiss in this area. It
reinstructed the jury at the penalty phase with numerous guilt phase instructions
dealing with how to consider the evidence, thereby satisfying the rule set forth in
People v. Moon, supra, 37 Cal. 4th 1, and subsequent decisions. To the extent
defendant simply lists dozens of guilt phase instructions without explaining how
they were pertinent to the penalty phase deliberations, his argument fails to
persuade. For example, it is unclear how an instruction on corpus delicti was
pertinent to the penalty determination. Although the jury may have benefited from
reinstruction with some of the listed instructions, we can see no prejudice from the
omission.
Defendant also contends that because one juror was excused after the guilt
phase and an alternate inserted into the jury at the beginning of the penalty phase,
the court‘s failure to reinstruct with all prior guilt phase instructions, and to further
instruct the jury to set aside any previous discussion about defendant‘s guilt and to
deliberate the issue of guilt anew, was prejudicial error. He is mistaken. The
obligation to instruct the jury to begin deliberations anew following replacement
of a juror with an alternate does not apply when the alternate joins the jury before
the start of penalty phase deliberations. ―Neither does the United States
Constitution demand such an instruction in the present situation.‖ (People v.
Ashmus (1991) 54 Cal. 3d 932, 1005.)
Defendant argues the court‘s failure to reinstruct with all the guilt
instructions prevented the jury from considering any lingering doubt it may have
had regarding his guilt for murdering and sodomizing JoAnn Sweets and Sophia
Glover. We reject the claim because the jury was specifically instructed that ―[i]f
you have any residual doubts about the circumstances attending the crimes as
found in the guilt phase, you may consider such doubts in mitigation under factor
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‗a‘ of the penalty phase factors. [¶] Residual doubt is defined as that state of mind
between ‗beyond a reasonable doubt‘ and ‗beyond all possible doubt.‘ ‖ His
additional claim the failure to reinstruct precluded the jury from questioning his
guilt for killing Trina Carpenter and Tara Simpson is similarly misguided because
the jury was also instructed that ―[b]efore a juror may consider any such criminal
act as an aggravating circumstance in this case, he or she must first be satisfied
beyond a reasonable doubt that the defendant did, in fact, commit such criminal
act and that the act involved the express or implied use of force or violence or the
threat of force or violence.‖ (Italics added.) We find no error.
4. Challenges to the Death Penalty Law
Defendant raises several facial challenges to the constitutionality of this
state‘s death penalty law, all of which this court has previously rejected in
numerous decisions. As he presents no persuasive reason to reconsider our
precedents, we reject his arguments:
a. ― ‗Comparative intercase proportionality review of death sentences is not
constitutionally required. [Citations.] ―Because capital and noncapital defendants
are not similarly situated in the pertinent respects, equal protection principles do
not mandate that capital sentencing and sentence-review procedures parallel those
used in noncapital sentencing.‖ ‘ ‖ (People v. Lightsey (2012) 54 Cal. 4th 668,
732.)
b. Nothing in the state or federal Constitutions ― ‗ ―require[s] that the
prosecution carry the burden of proof or persuasion at the penalty phase, . . . or
that the jury find beyond a reasonable doubt that (1) the aggravating factors have
been proved, (2) the aggravating factors outweigh the mitigating factors, or
(3) death is the appropriate sentence.‖ ‘ ‗The United States Supreme Court‘s
recent decisions interpreting the Sixth Amendment‘s jury trial guarantee
103
(Cunningham v. California (2007) 549 U.S. 270; United States v. Booker (2005)
543 U.S. 220; Blakely v. Washington (2004) 542 U.S. 296; Ring v. Arizona (2002)
536 U.S. 584; Apprendi v. New Jersey [(2000)] 530 U.S. 466) have not altered our
conclusions in this regard.‘ [Citation.]‖ (People v. Bivert, supra, 52 Cal.4th at pp.
123-124.)
c. CALJIC No. 8.88 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. (People v.
McDowell, supra, 54 Cal.4th at p. 444.) 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. (McDowell, at p. 444.)
―Nor is the instruction defective because it fails to convey to jurors that defendant
has no burden to persuade them that death is inappropriate.‖ (People v. Taylor
(2010) 48 Cal. 4th 574, 658.)
d. The death penalty law is not unconstitutional ―[d]ue to the asserted
overbreadth of section 190.3, factor (a), which permits the jury to consider the
circumstances of the crime as an aggravating factor [citation].‖ (People v. Vines,
supra, 51 Cal.4th at p. 891.)
e. ―The jury may properly consider evidence of unadjudicated criminal
activity under section 190.3, factor (b)‖ (People v. Gonzales and Soliz (2011) 52
Cal. 4th 254, 334), and need not first decide the prior criminal activity was true
beyond a reasonable doubt by unanimous vote (People v. Abilez, supra, 41 Cal.4th
at p. 534). Further, permitting the jury to consider prior unadjudicated criminal
activity as aggravating evidence did not unconstitutionally allow it to impose the
death penalty on unreliable, undiscussed, or undebated evidence, especially
because the jury was instructed that no juror could consider such evidence unless
104
he or she found beyond a reasonable doubt that defendant had committed the
crime or crimes. (People v. Avena, supra, 13 Cal.4th at p. 429.)
f. No rule of constitutional law requires the jury instructions to delete
inapplicable sentencing factors or to state that some factors are mitigating only.
(People v. Mills, supra, 48 Cal.4th at p. 210.)
g. The jury instructions for section 190.3, factors (d) and (g) are not
unconstitutional for including the adjectives ―extreme‖ and ―substantial.‖ (People
v. Lightsey, supra, 54 Cal.4th at pp. 731-732.)
h. The jury instructions‘ failure to require specific written findings
regarding which aggravating factors were found and considered in returning a
death sentence did not violate defendant‘s constitutional rights to meaningful
appellate review and equal protection of the law. (People v. Homick (2012) 55
Cal. 4th 816, 903.)
i. Assertedly denying some procedural protections to capital defendants
that would apply to noncapital defendants does not violate equal protection.
(People v. Bivert, supra, 52 Cal.4th at p. 124.)
5. International Law
Defendant contends the death penalty law in California contravenes
―international treaties and fundamental precepts of international human rights . . .
as incorporated into the Eighth Amendment.‖ In particular, he cites the
International Covenant on Civil and Political Rights, ratified by the United States
in 1992. We have rejected this precise claim (People v. Brasure, supra, 42 Cal.4th
at p. 1072) and decline to reconsider it here.
6. Cumulative Error
Having found no legal error, we reject defendant‘s claim that the
cumulative effect of all errors requires reversal.
105
III. CONCLUSION
The judgment is affirmed in its entirety.
WERDEGAR, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
KENNARD, J.
BAXTER, J.
CHIN, J.
CORRIGAN, J.
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CONCURRING OPINION BY LIU, J.
I write separately to offer brief comments on two issues in this case. First,
consistent with the views I recently expressed in People v. Harris (Aug. 26, 2013,
S081700) __ Cal.4th __, __ (Harris) (conc. opn. of Liu, J.), People v. Mai (Aug.
26, 2013, S089478) __ Cal.4th __, __ (Mai) (conc. opn. of Liu, J.), and People v.
Williams (2013) 56 Cal. 4th 630, 699 (Williams) (dis. opn. of Liu, J.), I would
analyze defendant‘s claim under Batson v. Kentucky (1986) 476 U.S. 79 and
People v. Wheeler (1978) 22 Cal. 3d 258 as follows.
With respect to Prospective Juror Y.J., the trial court said it was
―completely satisfied . . . that [the prosecutor‘s] reasons [were] independent of
color,‖ with no other findings or analysis. Although today‘s opinion gives the trial
court‘s ruling the ―usual deference‖ (maj. opn., ante, at p. 15), deference to an
unexplained Batson ruling is unwarranted. (See Mai, supra, __ Cal.4th at p. __ [at
p. 2] (conc. opn. of Liu, J.); Williams, supra, 56 Cal.4th at pp. 710–713, 715 (dis.
opn. of Liu, J.).) But an independent examination of the record confirms that
defendant failed to establish purposeful discrimination with respect to the
prosecutor‘s strike of Y.J. The prosecutor said he excused Y.J. because, among
other reasons, she worked at the Job Corps defendant had attended nine years
earlier. The prosecutor explained that he anticipated the defense might introduce
information about defendant‘s history at Job Corps during the penalty phase, and
he didn‘t want to ―take the chance that . . . [Y.J.] will have a link to [defendant]
1
because of her employment and his connection to Job Corps.‖ There is no
indication that any of the seated or alternate jurors had a similar connection to
defendant. I conclude from the record that defendant has not shown it is more
likely than not that the prosecutor‘s reference to Y.J.‘s employment at Job Corps
was pretextual.
Prospective Juror C.G. said during voir dire that she was seeing a therapist
for depression: ―The past four years have been pretty rough. I don‘t have — I
don‘t have a husband. I don‘t have children. So I had a dog that was like a child
to me. I had the dog for six years. In the past four years I have had to get rid of
the dog of six years, I have lost a boyfriend of ten years, and I have had a stroke.
So the past four years have been kind of depressing.‖ In explaining his reasons for
excusing C.G., the prosecutor said: ―And the — a big factor is that she‘s seeing a
therapist now regarding depression. No matter what she says, this will be a
depressing case. I don‘t want the responsibility of harming this woman. I think
she‘s going to be harmed based on what she has to hear in this case and what she
has to do in this case. And I don‘t want that or someone with that background,
that current background, sitting on a case of this magnitude.‖ The trial court
declared itself ―very satisfied that the reasons stated are substantial and do not
relate to color whatsoever.‖ It then said: ―I will indicate that I noticed
[Prospective Juror C.G.] almost looked like she was in tears when she was
explaining the tragedies she has personally gone through over the last few years
and it‘s pretty heart-breaking.‖ This on-the-record finding makes it appropriate
for us to ―defer . . . to the trial court‘s assessment of the prosecutor‘s reasons as
being subjectively genuine.‖ (Maj. opn., ante, at p. 16.)
With respect to N.S., the trial court ruled that defendant had failed to make
a prima facie showing of discrimination, stating: ―[I]t was very clear to me that
. . . [N.S.] was [not] going to get past a prosecution peremptory, and it wouldn‘t
2
have mattered what color [she was]. . . . [N.S.], of course, had the fact that she
had married an individual who was convicted of murder, that she had that
incredible experience behind her. . . . So, I — just in this case I am confident that
there is no prima facie case.‖ We can confidently conclude that the reason the
prosecutor struck N.S. was obvious: N.S. was married to a convicted murderer.
None of the seated or alternate jurors had anything remotely similar in their
backgrounds. This is a circumstance ―where the explanation for a prosecutor‘s
strike of a particular juror is so obvious that there is little or no reason to think
anything else could have motivated the strike.‖ (Harris, supra, __ Cal.4th at p. __
[at p. 14] (conc. opn. of Liu, J.).)
Second, I believe the trial court erred in admitting expert testimony derived
from dot intensity analysis. Dr. Edward Blake testified as an expert for the
prosecution and explained his conclusions regarding the genetic material found at
three of the crime scenes. (Maj. opn., ante, at pp. 43–44.) Before trial, defendant
moved to exclude Dr. Blake‘s intended testimony on the ground that his
conclusions were derived, at least in part, from his use of dot intensity analysis, a
method defendant claimed was not generally accepted in the scientific community.
(Id. at p. 47.) The trial court held a hearing pursuant to People v. Kelly (1976) 17
Cal. 3d 24 and determined from the evidence presented that that ―[Dr.] Blake‘s
procedures have been substantiated as correct scientific procedures.‖ (Maj. opn.,
ante, at p. 49.) Today‘s opinion declines to reach the merits of defendant‘s
argument, instead concluding that any error was harmless. (Id. at p. 51.) I agree
with the finding of harmlessness, but I would further conclude that the trial court,
in its crucial gatekeeping role, should not have admitted the portion of Dr. Blake‘s
testimony derived from dot intensity analysis.
The proponent of evidence derived from a new scientific technique must
establish, among other things, that ―the reliability of the new technique has gained
3
general acceptance in the relevant scientific community.‖ (People v. Doolin (2009)
45 Cal. 4th 390, 445 (Doolin).) ―Whether a new scientific technique has gained
general acceptance is a mixed question of law and fact. [Citation.] ‗[W]e review the
trial court‘s determination with deference to any and all supportable findings of
―historical‖ fact or credibility, and then decide as a matter of law, based on those
assumptions, whether there has been general acceptance.‘ ‖ (Id. at p. 447.)
In this case, the evidence does not support a conclusion that dot intensity
analysis had gained general acceptance in the scientific community at the time of trial.
The Attorney General argues that Dr. Blake‘s testimony was supported by his own
opinion as well as two articles submitted to the trial court as exhibits. However, one
of the two articles, which was co-authored by Dr. Blake, included only a single page
of discussion (plus two images labeled ―Figs. 1 and 2‖) regarding the analysis of
mixed samples. (Blake et al., Polymerase Chain Reaction (PCR) Amplification and
Human Leukocyte Antigen (HLA)-DQα Oligonucleotide Typing on Biological
Evidence Samples: Casework Experience (1992) 37 J. Forensic Sci. 700, 706–707.)
That brief section of the article concluded that ―studies of experimental mixtures of
different DNA samples in known proportions indicate that mixtures in which the
concentration of the two components is sufficiently different can often be interpreted,
and the contributing genotypes identified.‖ (Id. at p. 706, italics added.) This
conclusion was apparently based on the authors‘ observation that when ―two purified
DNA samples of different genotypes‖ were mixed in known ratios, ―the dots
corresponding to the minor component [were] less intense than the C dot when that
component [was] approximately less than 1 part in 16.‖ (Ibid.) The authors did not
claim that dot intensity analysis had proven successful in typing mixed samples in
which the ratio of the contributing samples was not known to researchers in advance.
The second article, while somewhat more thorough, also failed to include a study in
which dot intensity analysis was successfully used to type mixed samples of unknown
4
proportions. (See Comey & Budowle, Validation Studies on the Analysis of the HLA
DQα Locus Using the Polymerase Chain Reaction (1991) J. Forensic Sci. 1633.)
Further, Dr. Blake‘s opinion was contradicted by a 1992 publication authored
by the National Research Council (NRC). (NRC, DNA Technology in Forensic
Science (1992).) The NRC advised that ―[m]ixed samples can be very difficult to
interpret, because the components can be present in different quantities and states of
degradation. . . . Typically, it will be impossible to distinguish the individual
genotypes of each contributor. If a suspect‘s pattern is found within the mixed
pattern, the appropriate frequency to assign such a ‗match‘ is the sum of the
frequencies of all genotypes that are contained within (i.e., that are a subset of) the
mixed pattern.‖ (Id. at p. 59.) The NRC explained that ―PCR can be qualitatively
faithful but quantitatively unfaithful, because some alleles amplify more efficiently
than others. A sample might contain a 50:50 mixture of two alleles and yield an
amplified product with a 90:10 ratio.‖ (Id. at p. 64.) Accordingly, the NRC
concluded that ―it is not possible to separate the DNA contributed by different persons
in mixed bloodstains or in sexual-assault samples that involve two or more
perpetrators. . . . Interpretations based on quantity can be particularly problematic —
e.g., if one saw two alleles of strong intensity and two of weak intensity, it would be
improper to assign the first pair to one contributor and the second pair to a second
contributor, unless it had been firmly established that the system was quantitatively
faithful under the conditions used.‖ (Id. at p. 66.) Although Dr. Blake opined that
certain of the NCR‘s findings were not applicable to PCR amplification involving
DQα, the report‘s conclusions were categorical and included no such qualification.
If our task were to determine whether the trial court‘s ruling was supported
by substantial evidence, I would conclude that Dr. Blake‘s testimony and the
accompanying articles were sufficient. However, the pertinent question is whether
dot intensity analysis ―ha[d] gained general acceptance in the relevant scientific
5
community.‖ (Doolin, supra, 45 Cal.4th at p. 445, italics added.) Even when the
trial court‘s ―findings of ‗historical‘ fact [and] credibility‖ are accorded deference
(id. at p. 447), the evidence presented was insufficient to establish general
scientific acceptance of the dot intensity technique.
The circumstances here provide an occasion to emphasize that trial courts
play a vital gatekeeping role when it comes to expert testimony whose underlying
conceptual or methodological basis has not been shown to be reliable. (See
Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal. 4th
747, 769–772; see also Tellabs, Inc. v. Makor Issues & Rights, Ltd. (2007) 551
U.S. 308, 327, fn. 8; Kumho Tire Co. v. Carmichael (1999) 526 U.S. 137, 141.)
Given the particularly persuasive power of DNA evidence, trial courts must be
vigilant to ensure that the proponent of such evidence has established its
reliability.
In all other respects, I join the court‘s opinion.
LIU, J.
6
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Jones
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S042346
Date Filed: August 26, 2013
__________________________________________________________________________________
Court: Superior
County: San Diego
Judge: Laura P. Hammes
__________________________________________________________________________________
Counsel:
Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, Joseph E. Chabot and
Nina Wilder, Deputy State Public Defenders, and Lisa Anne D‘Orazio for Defendant and Appellant.
Bill Lockyer and Kamala D. Harris, Attorneys General, Mary Jo Graves, Chief Assistant Attorney General,
Gary W. Schons, Assistant Attorney General, Holly D. Wilkens and Karl T. Terp, Deputy Attorneys
General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Joseph E. Chabot
Deputy State Public Defender
221 Main street, 10th Floor
San Francisco, CA 94105
(415) 904-5600
Karl T. Terp
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2194