People v. Ng

IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
CHARLES CHITAT NG,
Defendant and Appellant.
S080276
Orange County Superior Court
94ZF0195
July 28, 2022
Justice Groban authored the opinion of the Court, in which
Justices Corrigan, Liu, Kruger, Jenkins, Guerrero, and Pollak*
concurred.
*
Presiding Justice of the Court of Appeal, First Appellate
District, Division Four, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
PEOPLE v. NG
S080276
Opinion of the Court by Groban, J.
A jury convicted defendant, Charles Chitat Ng, of 11
counts of first degree murder against Sean Dubs, Deborah Dubs,
Harvey Dubs, Clifford Peranteau, Jeffrey Gerald, Michael
Carroll, Kathleen Allen, Lonnie Bond, Sr., Lonnie Bond, Jr.,
Robin Scott Stapley, and Brenda O’Connor. (Pen. Code, § 187.)1
The jury found true the multiple-murder special circumstance.
(§ 190.2, subd. (a)(3).) The jury returned a death verdict, and
the trial court sentenced defendant to death in 1999. This
appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment
in its entirety.
I. FACTUAL BACKGROUND
Between July 1984 and April 1985, 12 people went
missing from Northern California. In July 1984, Harvey Dubs,
his wife Deborah, and their 16-month-old son Sean disappeared
from their San Francisco apartment. In November 1984, Paul
Cosner disappeared from San Francisco; he tried to sell his car
on his way home from work and was never seen again. In
January 1985, Clifford Peranteau failed to show up for work in
San Francisco and was never seen again. One month later, in
February, Jeffrey Gerald disappeared from San Francisco after
telling his roommate he was going to do a “side job” of helping
1
All further undesignated statutory references are to the
Penal Code.
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someone move. In April 1985, Kathleen Allen disappeared from
Milpitas after getting into a car with a stranger who was
supposed to take her to see her boyfriend, Michael Carroll, in
Lake Tahoe. Carroll also disappeared. Later that month,
Lonnie Bond, Sr. (Bond), his fiancée Brenda O’Connor, and their
infant son Lonnie Bond, Jr. (Lonnie), disappeared from the
house they rented in Wilseyville. Their friend Scott Stapley,
who often visited, also disappeared.2
These disappearances remained unsolved and seemingly
unrelated until defendant, along with accomplice Leonard Lake,
attempted to shoplift a vise from a lumber store in June 1985.
While Lake spoke with police officers, defendant walked away
from the scene. After officers searched his vehicle, Lake was
arrested for possession of a firearm and subsequently committed
suicide while in police custody. Officers then began searching
for defendant. This search led officers to Lake’s property in
Wilseyville, where they uncovered evidence that connected
defendant and Lake to the missing persons.
Shortly after Lake’s arrest, defendant fled to Canada. He
was arrested in a shoplifting incident a few weeks later.
Defendant was ultimately extradited in 1991, at which time
proceedings in the present case began. After resolving dozens of
motions filed by the defense, a venue change, and a competency
hearing, trial began in September 1998. The jury returned its
verdicts on February 24, 1999. The penalty phase began on
March 8, 1999; the jury returned a sentence of death on April
30, 1999.
2
Stapley’s full name is Robin Scott Stapley, but he
generally went by the name Scott Stapley.
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A. Guilt Phase
1. Prosecution Case
a. Lake’s Capture
On June 2, 1985, John Kallas visited South City Lumber
Company in South San Francisco. Kallas had been a reserve
police officer for the South San Francisco Police Department for
28 years. While at the lumber store, he saw an Asian man, later
identified as defendant, carrying a large vise that was sold at
the store. Suspicious that the man was shoplifting, Kallas
continued observing defendant as he walked past him,
continued to walk past the checkout counter, and exited the
store with the merchandise. After a salesclerk confirmed that
they had not sold that vise to defendant, Kallas and one of the
clerks walked outside. Approximately 50 feet away, he observed
the Asian man standing by the passenger door of a gold Honda.
The man then started walking toward the street and away from
the store. Kallas walked over to the vehicle and saw a box of
wrenches in the back seat but did not see the vise. He saw the
trunk was ajar, opened it, and saw the missing vise. Kallas
called the police department. While he was on the phone, a
bearded man, later identified as Lake, approached Kallas and
started talking to him. He asked if he could pay for the vise;
Kallas told him to speak to a clerk because he did not work
there.
South San Francisco Police Officer Daniel Wright
responded to the store. Wright ran the license plate for the
vehicle and found that it was registered to Bond. Wright looked
inside the open trunk and saw the vise, as well as a backpack.
He opened the backpack and found a semiautomatic gun and a
silencer. He ran the serial number for the gun through the
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computer system and found it was registered to R. Scott Stapley.
He put the gun and silencer back in the backpack as Lake
approached. Lake explained that he paid for the vise that his
friend took. When Wright asked for Lake’s name, Lake
identified himself as R. Scott Stapley and provided Wright with
a California driver’s license bearing the name Robin Scott
Stapley. Lake acknowledged that the vehicle belonged to Bond
and said that Bond was “up north.”
Wright arrested Lake for possession of a firearm that had
a silencer. At the police station, Lake ingested cyanide and
started convulsing. He was taken to the hospital where he died
a few days later. Before convulsing, Lake wrote a note to “Lyn”
that stated, in part, “I love you. I forgive you. Freedom is better
than all else. Tell Fern I’m sorry . . . I’m sorry for all the
trouble.”
Police officers subsequently ran the vehicle identification
number from the Honda and learned it was associated with a
missing person, Paul Cosner. After that, the South San
Francisco Police Department turned the vehicle over to
Inspector Irene Brunn of the San Francisco Police Department.
She worked in the missing persons unit and had been
investigating Cosner’s disappearance. Inside the vehicle,
Inspector Brunn found a Pacific Gas and Electric Company bill
addressed to Lake’s ex-wife Claralyn B. The envelope listed an
address in Wilseyville, a town in Calaveras County,
approximately three hours west of San Francisco.
b. Wilseyville Property
Inspector Brunn contacted Claralyn on June 3 hoping she
could help the police find defendant. Inspector Brunn and
Claralyn met at a local café and made arrangements to meet at
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the Wilseyville property the following day. Claralyn gave
Inspector Brunn a key and permission to search the premises.
Inside the living room, Inspector Brunn discovered two pieces of
equipment, including a VCR, that had been missing from the
Dubs residence; unrelated to the Cosner case, Inspector Brunn
had also been investigating the Dubs family disappearance. She
called her office, provided them the serial number for the VCR,
and confirmed it was from the Dubs residence.
At that point, Claralyn revoked her permission for the
officers to search the property. The officers left the house,
secured the premises, and obtained a search warrant.
An investigation of the Wilseyville property subsequently
commenced. The investigation lasted five weeks and involved
four law enforcement agencies. Investigators discovered
thousands of bone and tooth fragments buried throughout the
property. At least four dental specimens belonged to a child
under the age of three years old. After reviewing all the found
fragments, two forensic anthropologists concluded that they
belonged to at least four adults, one child, and one infant.
“Many hundreds” of the bone fragments showed various degrees
of burning. Investigators also found a child’s liver buried on the
property.
In addition to the main house, there was also a bunker on
the Wilseyville property. The bunker contained three rooms,
two of which were behind a hidden doorway. One of the hidden
rooms contained a bed, a desk, dressers, and some food. The
second room was approximately seven by three feet and enclosed
by a wooden door. Inside that room was a small bed with a foam
pad on it, a plastic bucket, a roll of toilet paper, and a small
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lamp. The door into the small room could only be opened from
the outside.
c. Search for Defendant
Police searched defendant’s San Francisco apartment on
June 7, five days after he walked away from the lumber store.
They found items belonging to Bond and Peranteau, as well as
a map of San Francisco on which the Dubses’ street had been
circled. The police also found two boxes of .22-caliber
ammunition, a pamphlet about how to make a silencer for a .22-
caliber gun, and photos of the bunker under construction.
Toward the end of June, a 14-year-old boy was playing in
a wildlife park in Calgary, Canada with a friend. He came
across a lean-to near some bushes and saw an Asian man lying
down inside. The man said that he was tired and asked the boy
to leave. The boy had seen a photograph of defendant in the
news and thought that might have been the person he saw in
the park. He told his parents about the man.
On July 6, defendant was arrested for shoplifting. Officers
seized a pair of handcuffs and a key, a .22-caliber handgun that
previously belonged to Lake, and ammunition.
The following day, a detective met with the young boy and
his father at the wildlife park. He asked the boy to show him
where the man had been camping. The detective found the lean-
to and approximately 30 meters away found a cleared area with
a sleeping bag. The sleeping bag lay on top of wood planks;
underneath the planks was a dugout big enough to fit a person.
The dugout contained a camera belonging to Stapley and a towel
from Peranteau’s apartment.
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d. Discovery of Bond’s and Stapley’s bodies
On July 8, back in Calaveras County, police officers were
patrolling the area near the Wilseyville property. The officers
observed some tufts of material and cloth scattered on the
ground approximately one quarter mile away from the property.
The material looked like it was insulation from a sleeping bag.
Upon further investigation, it appeared that animals had dug
up the material along with some bone. Investigators began
excavating the site and discovered bodies, later identified as
Bond and Stapley. The bodies were in separate sleeping bags,
one on top of the other.
Bond had been shot once in his head. His wrists were
handcuffed together. He had a plastic bag over his head. He
had a leather strap with a ball gag wrapped around his neck.
Stapley had been shot three times: in the front of his
mouth; above his right eyebrow; and in his right collarbone. He
had a plastic bag over his head and shoulders, and his hands
and ankles were bound with duct tape. A leather strap with a
ball gag was wrapped around his neck.
e. Evidence of the Murders
i. Dubs family
In July 1984, Harvey Dubs, his wife Deborah, and their
16-month-old son Sean lived in an apartment in San Francisco.
Harvey worked at Petrov Graphic Types World, also in San
Francisco. In addition to his day job, Harvey was trying to start
a new videotaping business that he ran out of their home.
On July 25, Harvey left work around 5:00 p.m., which was
earlier than usual. He told a coworker, Lauren Bradbury, that
he had put an ad in the newspaper to sell video equipment, and
he was meeting someone who had responded to his ad. Shortly
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after, around 5:45 p.m., Deborah spoke on the phone with her
friend Karen Tuck. Deborah told Tuck that she was expecting
someone to come over to talk to Harvey about his video
equipment. Someone either rang the bell or knocked on the
door, so Deborah terminated the phone conversation to go
answer the door. Tuck tried to call Deborah the following day,
but Deborah did not answer.
Dorice Murphy lived across the street from the Dubs
family. At approximately 5:45 p.m. on July 25, Murphy saw an
Asian man walking down the Dubses’ front steps struggling to
carry a suitcase. He approached a waiting car. A second man
walked out of the driver’s side and opened the trunk. The Asian
man put the suitcase in the trunk, entered the vehicle, and they
drove away.
Harvey did not show up for work the following day, nor did
he notify his boss in advance that he would not appear at work.
It was unusual and “totally out of character” for him to not notify
his boss that he would miss a day of work. Another man,
identifying himself as James Bright, did call Petrov Graphic
Types World and told Bradbury that Harvey was not coming
into work. The caller said that Harvey had to go to Washington
State for a family emergency. Bradbury found the conversation
to be odd because Harvey was from New York, did not have any
other relatives, and would never leave the company “stranded.”
Bradbury also knew that Deborah was from the Bay Area.
Bradbury asked the caller for his phone number, after which he
became very irritated and hung up. Deborah’s father filed a
missing persons report that evening, on July 26.
Barbara Speaker lived in an apartment directly below the
Dubs family. On July 27, she heard footsteps around 11:30 a.m.
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coming from the Dubses’ apartment. She stepped outside and
saw defendant closing the Dubses’ front door. He left the keys
in the door and then walked down the stairs carrying a “flight
bag” and a duffle bag. The bags appeared full and heavy.
Speaker followed defendant down the stairs and outside to the
street. She said, “Excuse me” to try to get his attention, but he
continued walking. When defendant reached the end of the
street, a car came around the corner quickly and pulled over.
Defendant entered the car, and it drove away. Speaker believed
the car was the Dubses’ car. While testifying, defendant
confirmed that the driver of the car was Lake.
Around half an hour later, Tuck’s husband George visited
the Dubses’ apartment to see if he could find out anything. He
recognized Deborah’s key ring in the front door. He went inside
and saw empty space on shelving in the bedroom where Harvey
usually kept his cassette tapes and VCR machines. George
believed items had recently gone missing in light of the fact that
there was dust on the shelf but no dust in the specific spots
where items had been removed.
Later that night, as Speaker arrived home, she saw a man
through the living room window of the Dubses’ apartment. Once
inside her apartment, she heard footsteps upstairs. She looked
out her window and saw the man walking down the stairs
carrying something large. The man resembled the man she had
seen walking out of the Dubses’ apartment that morning.
The Dubs family disappearance received extensive media
coverage, including in the newspaper and television press
conferences. Investigators had no leads on their disappearance
until Inspector Brunn discovered the family’s VCR in
Wilseyville the following summer.
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A few days after that discovery, officers showed Dorice
Murphy a photographic line up. She identified defendant as the
man she had seen walking out of the Dubses’ apartment the day
they disappeared. Speaker identified defendant in a
photographic line up as well.
ii. Paul Cosner
Paul Cosner lived in San Francisco with his girlfriend,
Marilyn Namba. On November 2, 1984, Cosner called his sister
and made plans to meet with her the next morning. Later that
evening, Namba called Cosner while she was at her work, and
they made plans to watch a movie on television when she got
home. Cosner seemed rushed on the phone. He told Namba that
he was going to deliver a car he was selling. The car was a gold
Honda Prelude and matched the vehicle Lake and defendant
were using when Lake was arrested at the lumber store seven
months later.
Cosner did not come home for his date with Namba. He
also failed to show up the following morning to meet his sister.
Neither Namba nor Cosner’s sister saw or heard from him again.
The following day, Cosner’s sister filed a missing persons
report.3
iii. Clifford Peranteau
Clifford Peranteau worked with defendant at Dennis
Moving Company in San Francisco. They were on the same crew
and worked together on a regular basis. Hector Salcedo also
worked at Dennis Moving Company and was close with
Peranteau. Salcedo and Peranteau often spent time at
3
The jury failed to reach a verdict on the murder charge
against Cosner.
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Peranteau’s house after work. One night in December 1984 or
January 1985, defendant arrived unexpectedly at Peranteau’s
home. At some point, he took out a bag of marijuana and showed
it to Salcedo and Peranteau. He told them he had a friend with
a plantation and if they wanted to help work on the plantation,
they could take some marijuana home for themselves.
One Friday night in January 1985, Salcedo and Peranteau
went out for drinks to celebrate the San Francisco 49ers making
it into the upcoming Super Bowl. Around midnight or 1:00 a.m.
early Saturday morning, Salcedo dropped off Peranteau at his
home and then went home himself. Peranteau did not appear
for work the following day. Salcedo, concerned, tried to reach
Peranteau on the telephone several times, but his friend did not
answer. After work, Salcedo went to Peranteau’s home, but
nobody answered the door. Salcedo returned to Peranteau’s
home several times to try to reach his friend. Around one week
after Peranteau went missing, he noticed that Peranteau’s
motorcycle was missing. The motorcycle had still been there
when Salcedo previously checked the house. Peranteau’s ex-
girlfriend also checked on the house after he was reported
missing. She noticed that “[m]ostly everything” was gone. She
had last been inside the home three to four weeks prior, and
nothing was missing at that time.
After Peranteau disappeared, Dennis Goza, the owner of
Dennis Moving Company, received a letter, purportedly from
Peranteau, explaining his absence. The letter read, “Dennis:
Sorry to leave you on such short notice but a new job, place to
live, and a honey all came together at once. Please send my
check for the last three days I worked and my W-2 to my new
address below. Thanks, Cliff.” The address provided was for a
post office box in Mokelumne Hill, a town about 20 miles from
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Wilseyville. The main body of the letter was typed, but the
signature and address were handwritten. The signature did not
look genuine. Subsequent analysis revealed that the letter had
been typed on a typewriter found at the Wilseyville property. A
police investigator testified that Lake had forged the letter.
In April 1985, about three months after Peranteau
disappeared, Lake sold Peranteau’s motorcycle to a man in
Wilseyville. Lake told the buyer that Peranteau was a friend in
San Francisco who had asked Lake to sell the motorcycle for
him.
In July, while investigating defendant’s hideout in
Calgary, officers found a striped towel that had been taken from
Peranteau’s home. In defendant’s San Francisco apartment,
officers found a pen and pencil set that belonged to Peranteau.
At the Wilseyville property, officers found additional items that
had been taken from Peranteau’s apartment.
iv. Jeffrey Gerald
Jeffrey Gerald also worked on a crew with defendant at
Dennis Moving Company. Gerald lived in an apartment in San
Francisco with his roommate Terry Kailer. Over the course of
six weeks, on 12 occasions, Kailer answered the phone to a caller
who identified himself as Charlie or Charlie Ng.
On the morning of February 24, 1985, Kailer answered
two calls from the same caller. Later that day, Gerald told
Kailer that it had been defendant on the phone and he was going
to meet him at a bus station to do “a side job” for a move. Gerald
told Kailer that he would be home by dinner and would bring
Chinese food. At the bus station, Gerald called his girlfriend,
Sandra Krumbein, and said he was going to help a friend move
for $100. They made plans for Krumbein, who lived in New
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Jersey, to come to San Francisco. Neither Krumbein nor Kailer
ever saw or heard from Gerald again.
Three days later, Kailer came home from work and found
Gerald’s bedroom door ajar. She noticed that some things had
been moved, and several things were missing, including his
clothes, bedding, guitar and amplifier, and pictures. Kailer filed
a missing persons report.
Investigators later found Gerald’s guitar at the Wilseyville
property. They found Gerald’s Social Security card buried on
the property.
v. Michael Carroll and Kathleen Allen
Michael Carroll lived with his foster brother, John
Gouveia, in Milpitas in 1984. Carroll and defendant were
acquainted, and sometime before Carroll disappeared, Gouveia
answered a phone call from someone who identified himself as
Chuck. The caller asked to speak with Carroll. Gouveia asked,
“Is this Charles Ng?” The caller laughed and said, “Yeah. Just
tell Mike I called.”
Kathleen Allen was Carroll’s girlfriend. Allen worked at
a Safeway store in Milpitas. On April 14, 1985, Allen received
a phone call at work. After the call, she told a coworker that
“Mike” had been shot and might be dead. She said that someone
was going to pick her up and take her to Lake Tahoe. That
evening, Allen called her friend James Baio. She told Baio that
Carroll had been gone for two days, and she had received a
phone call from him saying that “he had gotten into some
trouble” and was going to the Lake Tahoe Area. Carroll had told
her that he wanted her to meet him, and he was going to send
someone to pick her up. Telephone records indicate that at
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1:01 p.m. that afternoon, someone at the Wilseyville property
called the Safeway store.
Allen left work between 7:00 p.m. and 7:30 p.m. She
entered a gold Honda Prelude, later identified as Cosner’s car.
Inside the vehicle was a Caucasian male.
Allen spoke with Baio again; he called her at a Milpitas
hotel. She told him that she could not talk at that moment
because somebody else was in the room with her. Allen sounded
like she was in a hurry. She told him the person “was kind of a
weird guy” and that he wanted to take pictures of her. Baio
asked her to call him when she got to her destination, but he
never heard from her again.
The next day, on April 15, Allen called her manager at
Safeway and asked for four weeks off from work. She told her
manager that her boyfriend had found a job, or had a good lead
on a job, near Lake Tahoe and she wanted to go with him. Phone
records indicate that someone at the Wilseyville residence called
the Safeway store on the morning of April 15.
At some point, Lake gained possession of Carroll’s car. On
April 14, the same day that Allen left work to drive to Lake
Tahoe, Lake called George Blank, a friend in San Jose, and
asked for help with a car that had been stranded in Milpitas.
Lake said that the car belonged to some friends, and he would
send a man by the name of Charles to the bus depot with the car
keys. Blank arranged for his daughter, Debra Blank, to receive
the call from Charles.
On April 16, Debra received a call from someone who
identified himself as Charles and said he was a friend of Lake.
Debra went to the bus station to meet Charles, later identified
as defendant, to pick up the car keys. Defendant also gave her
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a letter which contained directions to the car’s location. Debra
gave the keys and letter to her father. Blank followed the
directions and found the car in the parking lot at the Milpitas
Safeway. The car, a Mercury Capri, belonged to Carroll. Blank
drove the car home. On April 26, Lake went to Blank’s house to
inspect the car and remove some items. Lake asked Blank to fix
the car and then try to sell it. On May 8 or 9, Blank received a
letter and paperwork from Lake. The letter told Blank that
after he sold the car and took his share for the repairs, he should
deposit the remaining balance into a specific account using the
enclosed deposit slip. The paperwork included a pink slip for
the Capri, a release of liability, and an insurance policy all
bearing Carroll’s name. Lake also sent a stamped, preaddressed
envelope from the Safeway Federal Credit Union and a bank
deposit slip bearing Allen’s name.
Investigators found a videotape titled “M Ladies, Kathi,
Brenda” buried on the Wilseyville property. The first scene of
the video shows Allen shackled in a chair. Lake and defendant
tell her that if she cooperates with them, 30 days later they will
drug her, blindfold her, and release her somewhere. If she does
not, they will shoot her and bury her in the same place they
buried Carroll. They told her to provide information on Carroll’s
bank accounts and “who we need to write to make things
correct.” Lake tells Allen that she will need to write letters to
explain that Carroll got a job and moved away because “we want
to phase Mike off, just sort of just move him over the horizon,
and, uh, let people know that, yea, Mike moved off to God knows
where, and we never heard from him again. That’s semi-
acceptable.” Lake tells Allen they will keep her busy, and she
must agree to cook, clean, and “fuck” for them. He continues,
“That’s your choice in a nutshell. It’s not much of a choice unless
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you’ve got a death wish.” Lake acknowledges that he and
defendant are being “selfish bastards” and tells Allen that if she
cooperates, they will be “as nice as we can to you within the
limits of keeping you prisoner.” If she did not cooperate, they
would tie her onto the bed, rape her, shoot her, and bury her.
After Allen agrees to cooperate, Lake unshackles her, and the
men force her to strip naked. Defendant tells Lake he wants to
take a shower with Allen, and defendant says it “won’t be the
last time.” When Allen appears nervous, Lake says they do not
want to have to make an example of her and requests that she
cooperate. Allen fully undresses and walks off camera with
defendant.
In the next scene, a nearly naked Allen massages a naked
defendant. In the last scene with Allen, she is lying face down
and shackled to a bed, wearing only shorts. Lake admonishes
Allen that she needs to cooperate with them while also taking
pictures of her. When Allen asks how she has not cooperated,
Lake tells her she tried to beat down the door. Lake tells Allen
he has cyanide pills and if he ever got caught, he would take
them. Lake threatens to hit and whip Allen if she tries to escape
again. Lake tells Allen that he normally does not confess his
“sadistic tendencies” to strangers, but that he could talk to Allen
because she was “going to go away, and I’m never going to have
to deal with you again, unfortunately for you.” Lake makes
Allen put on lingerie and then takes more photographs of her.
He tells her to get dressed because they are going outside.
Investigators found a two-gallon plastic barrel buried at
the Wilseyville property containing several items belonging to
Carroll and Allen. Inside the Wilseyville house, investigators
found books with Carroll’s name printed inside.
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Investigators obtained copies of Allen’s canceled checks
from April and May 1985. One of the checks was dated May 2,
1985, more than two weeks after Allen disappeared. The check
was made out to Randy Jacobson, whose body was found at the
Wilseyville property. A handwriting expert testified that Lake
wrote the “face detail” of the check and probably signed Allen’s
name.
vi. Lonnie Bond, Sr., Brenda O’Connor, Lonnie
Bond, Jr., and Scott Stapley
In January 1985, Lonnie Bond, Sr., rented the house,
known as the Carter house, next door to the Wilseyville
property. The two houses shared a common driveway. Bond
lived there with his fiancée, Brenda O’Connor, and their infant
son, Lonnie Bond, Jr.
Sometime after Bond moved in, the property manager for
the Carter house received a call from Lake. He complained to
the property manager that someone was firing gunshots from
the house and that Bond was failing to lock the gate to their
common driveway.
Stapley lived in San Diego with his girlfriend, Tori Doolin.
In February 1985, Stapley and Doolin visited Bond and
O’Connor in Wilseyville. Doolin met Lake when he came to the
Carter house to talk to Bond and Stapley.
Doolin last saw Stapley on the evening of April 19, 1985,
in San Diego. Stapley had retrieved Bond and O’Connor’s
belongings from a storage locker and loaded the items in his
truck. He was planning to drive O’Connor and the baby from
San Diego back to the Carter house.
A few days later, on April 23, defendant got into a traffic
accident in Kern County while driving Stapley’s truck. The
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following day, defendant and Lake appeared at Doolin’s
apartment in San Diego. Defendant waited in the car while
Lake and Doolin spoke. Lake told Doolin that he had found
Stapley, Bond, O’Connor, and the baby dead in the Carter house.
He said that he had burned their bodies in a type of funeral
ceremony, buried the bodies, and then cleaned the house. Lake
wanted to take Stapley’s belongings back to Wilseyville to make
it appear like Stapley had moved out. Doolin gave Lake his
bicycle, clothing, and other miscellaneous items. Doolin walked
outside with Lake, where defendant was still waiting. Lake
showed Doolin the damage to Stapley’s truck from the accident.
Doolin never saw Stapley again. O’Connor’s mother never
saw or heard from O’Connor or the baby again. In May, Lake
called the property manager for the Carter house and said that
he thought her tenants had left town. He also told her that Bond
had left his car for Lake because he owed Lake money.
O’Connor was also featured in the M Ladies video. The
first scene with O’Connor shows her sitting in the same chair
where Allen sat, with her hands bound. O’Connor is asking
what Lake and defendant did to her family. They tell her they
did not kill Bond or Lonnie, but when she asks if they are going
to let her family go, they respond “probably not.” Lake tells
O’Connor that they hate her, and that the neighborhood hated
her family after they moved into the Carter house. He says that
they were going to give Lonnie to a family in Fresno that did not
have kids. O’Connor repeatedly pleads for her baby. Lake tells
O’Connor she must work, clean, and “fuck” for them or they will
tie her to the bed, rape her, and shoot her. O’Connor agrees to
cooperate.
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Defendant cuts off O’Connor’s T-shirt and bra with a knife
and tells her that she is “totally ours.” He says, “You can cry
and stuff like the rest of them, but it won’t do you no good. We
are pretty, ha, cold-hearted, so to speak.” They ask if she is
ready for a shower. When Lake says she will shower with
defendant, he replies, “Yep. I always do that. It’s luckier.” Lake
says defendant has his heart set on showering with O’Connor,
and he does not want to turn defendant down. O’Connor strips
and repeatedly tells Lake and defendant that she is dizzy, hot,
and does not feel well. They tell her to “suffer” but eventually
get her some water. She tells the men she does not need to take
a shower, but defendant responds that it is a “house rule” that
she be clean before he and Lake “fuck” her. The scene ends with
O’Connor and defendant going to take a shower, and Lake tells
defendant to be careful with her.
When Lake was arrested at the lumber store, he had a gun
registered to Stapley as well as credit cards and a bank card in
Stapley’s name. As mentioned earlier, police discovered Bond’s
and Stapley’s bodies buried near the Wilseyville property.
f. Maurice Laberge
Maurice Laberge met defendant in 1986 while they were
both imprisoned in Canada. 4 They had neighboring cells and
passed items back and forth. They exercised together in the
yard every day between March and June or July 1986.
Laberge kept notes of the conversations he had with
defendant on the exercise yard. Defendant shared cartoons
related to what they discussed in the yard, and he gave them to
4
Laberge died in a car accident before trial. His testimony
from defendant’s extradition hearing was read into evidence.
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Laberge. Laberge sent the cartoons defendant shared, and his
notes, to his lawyer.
During one of Laberge’s conversations with defendant,
defendant seemed “very worried” that the police would watch a
videotape found on the Wilseyville property. He told Laberge
that the videotape featured Kathi Allen and Brenda O’Connor,
two women whom he and Lake had kept in a cell for some time.
Defendant described scenes from the video to Laberge. He also
shared cartoons depicting scenes from the video, some in graphic
detail. They are discussed in more detail below in section II.E.1.
In addition to the cartoons, Laberge testified at the
extradition hearing that defendant admitted his involvement in
several of the murders. Defendant told Laberge that killing
Sean Dubs, the baby, was “not easy, but it was just business, a
part of the operation.” Defendant told him that they took video
equipment from the Dubs residence. Regarding Cosner,
defendant told Laberge that he did not want to kill “that punk,
but Lake wanted his fucking Honda, a cheap fucking Honda.”
He also described the sounds that Cosner made after defendant
shot him. Regarding Peranteau, defendant told Laberge that he
made a mistake in keeping Peranteau’s pen set after killing him.
He believed he could say that Lake gave him the pens as a
defense. He described for Laberge the process of shooting
Peranteau while Peranteau pleaded for his life. Defendant
further said that authorities would not find Peranteau or Gerald
because he burned their bodies after he and Lake killed them.
Defendant told Laberge that he killed Gerald so he could move
up in seniority at the moving company.
Regarding Allen, defendant told Laberge that he killed her
“quicker” because she tried to break out of her cell. He said that
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he put his gun inside her vagina and made her call Safeway to
ask for time off. Finally, he admitted shooting Stapley and Bond
and then burying the bodies.
g. Defendant’s Relationship with Lake
The prosecution introduced evidence of defendant’s
relationship with Lake. Lake’s sister, Fern Ebeling, testified
that in 1984, she acted as an intermediary between defendant
and Lake, receiving mail from Lake and forwarding it to
defendant, and receiving mail from defendant and forwarding it
to Lake. That same year, defendant attended Thanksgiving
dinner at Lake’s mother’s house. He was the only nonfamily
member present. The following month, in December 1984,
defendant introduced Lake to a coworker who needed work done
on his house.
2. Defense Case
a. Leonard Lake
The defense presented evidence of Lake’s involvement in
several uncharged murders, including his brother, Donald, and
his best friend, Charles Gunnar. Several witnesses, including
defendant, testified that Lake frequently went by the name
Charles Gunnar.
The defense presented evidence of Lake’s controlling and
abusive relationships with women. Witnesses also testified
about Lake’s interest in photographing women nude and in
sexually provocative positions, including girls as young as 10
years old. Some women testified about their personal
experiences being photographed by Lake, including one who was
coerced into being photographed and was subsequently raped by
Lake when she was 16 years old.
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Lake carried cyanide in his pocket and told several
witnesses that he would take it if he were ever captured. Lake
also told witnesses about wanting to build a bunker to use in a
nuclear war. Lake had fantasies of keeping women hostage in
the bunker.
While he was posted in Hawaii with the United States
Marine Corps, defendant met a man who was posted there while
serving in the Army. In the summer of 1981, the man told
defendant about Lake and provided defendant with Lake’s
address at the time. During part of 1982, defendant lived with
Lake and Claralyn in Philo, a town in Mendocino County.
Lake’s neighbor, Ernie Pardini, testified that Lake frequently
reprimanded defendant and spoke to him in a degrading and
domineering manner. Pardini believed Lake was verbally
abusive toward defendant. He testified that defendant seemed
very timid around Lake and behaved like he was trying to win
Lake’s approval.
b. Charged Offenses
The defense presented evidence that Lake was the
dominant or sole offender in the charged offenses. A few days
before Cosner disappeared, a neighbor saw him speaking with
Lake in the building’s garage. One of Lake’s neighbors in
Wilseyville testified that the day after Gerald disappeared, he
saw Lake with a bloody sheet wrapped around his body. That
same day, a local doctor treated Lake for a gunshot wound in his
hand.
Lake told another neighbor in Wilseyville that he thought
the Bond family were “pests” and that he believed it was okay
to kill someone if they were bugging you.
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c. Defendant’s Testimony
After the defense rested and the prosecution finished its
closing argument, the defense moved to reopen its case to allow
defendant to testify. The court granted the motion.
Defendant was born in Hong Kong and moved to the
United States when he was 18 years old. He met Lake when he
was 22 or 23 years old. Defendant looked up to Lake and trusted
and respected him. Defendant appreciated that Lake accepted
him as a friend even though he was not a United States citizen,
could not drive, did not have a job, and had a criminal record.
He knew that Lake was a survivalist and was preparing for the
end of the world by building survival shelters and stockpiling
supplies. When defendant was court-martialed, Lake sent him
photos of construction on the bunker. Defendant did not know
that Lake was building a place to keep sex slaves.
Sometimes Lake would stay with defendant in San
Francisco. Lake kept bedding, a change of clothing, tools,
ammunition, and marijuana in defendant’s apartment.
Defendant denied being involved in Gerald’s
disappearance. He never met Gerald at a bus station nor did he
ever call Gerald’s number and ask to meet at a bus station. He
was not in Wilseyville the day that Gerald disappeared because
he was scheduled to work an eight-hour shift at Dennis Moving
Company the following day. He also worked the day that
Gerald’s apartment was burglarized.
Defendant denied being involved in the disappearance of
the Dubs family. Defendant denied being the person that
neighbor Dorice Murphy saw walking out of the Dubses’
apartment the day they disappeared. He admitted being the
person that neighbor Barbara Speaker saw leaving the
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apartment two days later, but asserted he did so after Lake
asked him for help with a “job.” Defendant denied making any
comments to Laberge about his involvement in the Dubs
murders and did not know how the map with their residence
circled ended up in his apartment. He acknowledged that a VCR
without a serial number was found in his apartment but said it
belonged to Lake and he did not know where Lake got the VCR
from.
Defendant testified that he had nothing to do with the
disappearance of Cosner and did not enter into any sort of
agreement with Lake to kill Cosner. Lake had told defendant
that Cosner’s Honda was a “hot car,” and he obtained it from
drug dealers. Defendant denied telling Laberge that Lake killed
Cosner because he wanted the Honda. He also denied telling
Laberge that Cosner was “a hard operation because he wouldn’t
cooperate” and that Cosner made strange noises when
defendant shot him.
Defendant denied having anything to do with Peranteau’s
disappearance. He denied ever visiting Peranteau’s apartment
and testified that he did not know where Peranteau lived. He
claimed he had no involvement in taking Peranteau’s property
to Wilseyville and did not know how it got there. He denied
telling Laberge that he had shot Peranteau in the head and
burned the body.
Defendant testified that the M Ladies video was Lake’s
idea. Allen was the first woman he helped Lake imprison. He
knew that Allen was not there willingly and believed that Lake
was trying to modify Allen’s behavior to turn her into a willing
sex slave. They did not agree nor plan to kill Allen. Defendant
acknowledged his participation in the video but asserted that he
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could not confront Lake or ask not to be involved. He stated that
he did not have sexual intercourse or oral sex with Allen. When
defendant left Wilseyville to go back to San Francisco, Allen was
still alive. Defendant did not know anything about Carroll’s
death. He acknowledged that on the video, Lake told Allen to
cooperate or else they would bury her in the same place that
they buried Carroll. He claimed, however, that he was not
paying attention when Lake said that and he did not actually
help Lake kill or bury Carroll. Defendant denied making any
statements about Allen to Laberge.
Defendant testified that the first time he saw O’Connor
was when they started filming her in the M Ladies video. He
knew that Lake hated O’Connor for several reasons. He assisted
Lake in threatening O’Connor to comply but did not intend to
physically hurt her or kill her. He helped Lake by projecting
solidarity so that O’Connor knew two people were involved and
she would be more likely to comply. Defendant testified that he
was not present when Bond and Stapley were killed. Sometime
after they recorded the video with O’Connor, Lake showed
defendant two bodies under the porch: Bond and Stapley.
Defendant bound Bond’s body, put a gag in his mouth, and put
the body in a sleeping bag. Lake did the same thing to Stapley’s
body. Lake wanted it to appear like they had been killed by rival
drug dealers.
Defendant said he regretted his actions in the M Ladies
video. He said he was “young and adventurous” and did not
exercise independent judgment.
The day that Lake was arrested, defendant thought
someone saw him take the vise and he panicked. He was
worried the police would discover Cosner’s car, the M Ladies
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video, and the buried bodies. He was also worried that he would
be deported back to Hong Kong. He met up with Claralyn and
together they drove back to the lumber store to check on Lake.
Defendant crouched down in the backseat as Claralyn drove by
and saw Lake standing in the lot with police. Later that night,
he bought a one-way plane ticket to Chicago and eventually
made his way into Canada.
B. Penalty Phase
1. Prosecution Case
The prosecution presented evidence that on July 15, 1982,
defendant was convicted by military court for conspiracy to
commit larceny of government property valued at more than
$100; larceny of government property valued at more than $100;
and unlawful entry with intent to commit larceny of government
property. On November 14, 1981, after arrest for the larceny
offenses, defendant escaped from confinement in a military
facility until he was captured on April 29, 1982. Lake and
Claralyn were present in the apartment that officers searched
after defendant’s April arrest.
The prosecution presented evidence of defendant’s arrest
for shoplifting in Canada and the discovery of the lean-to in the
wildlife park, described above.
Several people testified about the victims and the impact
of their deaths. Sharon O’Connor, Brenda O’Connor’s mother,
testified that she was very close with her daughter and loved her
very much. O’Connor’s death was very difficult for her and tore
the family apart. Her grandson, Lonnie, was “the sweetest little
guy.” The absence of remains was very hard for the family
because they could not have a funeral. Sandra Bond testified
that she was O’Connor’s sister and was also married to Bond’s
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brother, so she was “getting it from both sides.” She explained
that her mother was grieving O’Connor while her mother-in-law
was grieving Bond, which was hard on her and her husband.
She “kind of lost [her] identity” after O’Connor died.
Robert McCourt, Clifford Peranteau’s brother, testified
that Peranteau “was a nice guy” who “liked anybody and
everybody.” They had 10 other siblings, and they all had a hard
childhood, but Peranteau tried to keep all the siblings connected
to each other. Their mother had been hospitalized five times
“because of this mess” and refused to accept that Peranteau had
died.
Jeffrey Nourse testified that Deborah Dubs was his
cousin, but they were very close and she was more like a sister
to him. Deborah was very artistic and “always had a zest for life
and [was] just a joy to be around.” Harvey Dubs was a “very
quiet, very loving, very caring human being.” Nourse said that
he thought about Deborah, Harvey, and their son Sean every
day. Their family had still not gotten used to the Dubs family’s
absence at family gatherings, especially holidays like
Thanksgiving.
Roger Gerald, Jeffrey Gerald’s father, testified that his son
was fun-loving, humorous, and nonviolent. He was very close
with his son. Gerald’s death had been very difficult on the
family and left an unexplainable void in their everyday lives. He
continued to ask himself why this had happened but knew he
would never get an answer. Denise Gerald, Gerald’s sister,
testified that her brother “was and still is probably the finest
person I have ever been able to spend time with; funny, passive,
life loving, comical, [and] warm. He was a very wonderful
person.” She testified that Gerald’s death “has taken [my]
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mother from me. She is alive but part of her died with that one
phone call. I lost my father that I knew.”
Diane Allen, Kathleen Allen’s sister, testified that
Kathleen “was a very strong, intelligent person” who always
made her laugh and always had the answer to a problem. Her
sister’s death “destroyed” her family; her mother could not
handle losing her daughter. Diane missed her sister very much,
and she felt it was not fair that Kathleen missed out on so much
in life.
Dwight Stapley, Scott Stapley’s father, testified that
Stapley played a lot of sports growing up and was very active.
While Stapley was in community college, his parents lived in
separate houses due to their jobs and Stapley lived with his dad.
During that time, they “went from being father and son to
roommates, buddies,” and it was “quite a wonderful experience.”
His wife learned of their son’s death when a news anchor phoned
their home and left a message asking to talk. The way they
learned of his death was difficult for the family. Dwight
explained that he and his wife carefully followed defendant’s
case and went to court proceedings in Canada, Calaveras
County, and Orange County. They had spent their life savings
traveling to court hearings. Their other children were just
starting to deal with the impact of losing their brother. Lola
Stapley, Stapley’s mother, testified that her son was “a great big
overgrown teddy bear. Everybody loved him.” His death left her
“absolutely devasted.” Stapley’s sister was pregnant when
Stapley was murdered and named her son after her brother.
The family keeps an empty chair at the table when they get
together for dinners to signify that Stapley was with them
spiritually.
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2. Defense Case
Several of defendant’s family members testified on his
behalf. Alice Shum, defendant’s aunt, testified that she lived
with defendant’s family during part of his childhood in Hong
Kong. Shum saw defendant’s father beat him with a stick for
getting poor grades in school or failing to complete his
homework. Defendant was a quiet child and did not talk to other
people very often. Shum moved to the United States in 1973;
defendant moved to the United States in 1979 to attend college.
Defendant visited Shum and played with her young sons.
Defendant sent Shum Mother’s Day cards and holiday cards
while he was in prison. Shum’s son, Hubert, testified that he
was eight years old when he last saw defendant and was 23
years old at the time of trial. He talked to defendant
occasionally when defendant called Shum. Hubert said that
defendant means a lot to him, and he thought that they would
have been close if not for this case.
Defendant’s sisters, Alice and Betty, did not testify but
their statements made to a psychologist were introduced by way
of stipulation. Alice explained that they had a sheltered and
protective upbringing, and she believed the three siblings
tended to be naïve, easily influenced, gullible, and overly
trusting of others. She described defendant as “curious and
naughty” and said he liked to play pranks on other people. Alice
related that their father punished defendant for his
transgressions by hitting him with a feather duster cane. Betty
explained that during his teenage years, defendant appeared
sad most of the time, would sleep in the afternoon after coming
home from school, appeared withdrawn and lonely, and did not
speak to other family members very much. She opined that
their protective upbringing resulted in her, Alice, and defendant
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being dependent on others to make decisions for them. Betty
believed defendant was kind at heart.
Defendant’s father, Kenneth Ng, testified. Education was
very important to Ng, and he worked hard to have his children
accepted into private schools. He admitted punishing defendant
for not doing his homework or for not getting good grades. He
would beat defendant “very hard” with a stick. Ng
acknowledged that, looking back, there might have been a better
way to discipline and teach his children. Defendant’s mom, Oi
Ping Ng, also testified. She explained that defendant was very
shy as a child and did not talk much. She knew that Ng beat
defendant, but she was unable to stop him.
Several witnesses testified about defendant’s time in the
Marines. Ray Guzman explained that he and defendant would
go to dinner or to the movies. They would sometimes stop at a
martial arts school and watch students practicing. He never
saw defendant involved in a fight with anyone. Hugh Daugherty
explained that defendant always followed orders and did
everything Daugherty asked him to do. Defendant was very
quiet and “did his own thing.” He had observed defendant
practicing martial arts. David Burns testified that he was
surprised to learn of defendant’s involvement with the armory
theft and said it was out of character. He occasionally observed
defendant practicing martial arts but never saw him fighting
with anyone. Bradley Chapline testified that defendant was
quiet, well spoken, and appeared to be well educated.
The defense presented expert testimony regarding
defendant’s character and mental state. Psychologist Abraham
Nievod conducted psychological testing on defendant in 1993,
1996, and 1998. Dr. Nievod also reviewed the reports from two
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court appointed experts who had also evaluated defendant. Dr.
Nievod explained that defendant scored very high on schizoid,
avoidant, and dependent personality disorders. Schizoid people
do not relate well with other people or know how to have long-
term relationships, which Dr. Nievod explained was consistent
with defendant’s history as a “loner.” People with avoidant
personality disorder avoid groups of people and forming close
relationships with people because they are afraid of being
rejected or failing. If they find one person they can trust, they
will model behavior after that person and will do almost
anything to maintain that relationship. Dr. Nievod opined that
defendant latched onto Lake as a sort of caregiver and as
someone who would teach him how to operate in the world.
Psychiatrist Stuart Grassian testified that in the previous
12 to 13 years, defendant had spent 10 years in solitary
confinement. After meeting with defendant, he observed
“terribly, very profound, very pronounced obsessional thinking.”
Dr. Grassian said that defendant was preoccupied with constant
hunger and smells, and “the enormous overriding preoccupation
with his desperate need to have Michael Burt reassigned to his
case.” Dr. Grassian testified that solitary confinement can affect
a person’s ability to think, concentrate, remember, and to
cooperate in their own defense. He described defendant as a
docile, passive, and compliant person. Dr. Grassian reviewed
Dr. Nievod’s reports and agreed that defendant suffered from
dependent personality disorder.
Psychiatrist Paul Leung specialized in Asian family
structure and culture. He explained that in a traditional Hong
Kong family at the time defendant grew up, the father is an
authoritative figure in the family, and children are expected to
do what their parents tell them to do. The father is sometimes
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viewed as a person for children to fear and the disciplinarian of
the family. Beating one’s children was not uncommon, but
defendant’s father was “a bit more harsh” than fathers in the
typical family. Parents generally have high expectations for
their sons, especially when there is only one son in the family.
Dr. Leung explained that defendant’s father had very high
expectations for him and disciplined him more because of those
expectations.
II. GUILT PHASE ISSUES
A. Right to Representation
Defendant raises several contentions regarding his right
to representation. First, he asserts the trial court deprived him
of his constitutional rights when it appointed the Orange
County Public Defender as standby counsel while he
represented himself. Second, defendant contends the trial court
erroneously revoked his right to represent himself without
justification. Third, he asserts the trial court abused its
discretion when it denied one of his motions to substitute
counsel, made during jury selection. Finally, defendant
contends the trial court abused its discretion when it declined to
appoint his preferred attorney as counsel.
1. Factual Background
Defendant’s representation in this case involved several
attorneys, 37 Marsden motions, and a brief period of
representing himself.
Proceedings began on June 8, 1985, when the Calaveras
County Justice Court issued a warrant for defendant’s arrest.
On July 15, 1985, the court appointed the Calaveras County
Public Defender to represent defendant, who at the time was in
custody in Canada. On December 10, 1985, the court appointed
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Garrick Lew, who had previous experience working with
defendant, to represent him. On January 14, 1987, the court
appointed Michael Burt as second counsel. Burt represented
defendant in San Francisco and worked for the San Francisco
Public Defender (SFPD), but the court appointed him as an
independent contractor. Shortly after, the United States asked
Canada to extradite defendant. On September 20, 1988, while
defendant was still in Canada, the court ruled that it lacked
jurisdiction to appoint counsel and removed Burt and Lew from
the case.
Defendant made his first appearance in Calaveras County
for arraignment on September 27, 1991. On October 4, 1991,
Burt and Lew filed a motion requesting appointment as counsel.
The motion included a declaration from defendant stating a
desire for Burt and Lew to represent him and to appoint the
entire SFPD’s office. At a hearing on the matter, Burt explained
that his current caseload included preparing two other capital
cases for trial. If SFPD were appointed to defendant’s case, a
second lawyer would get caught up on the case while Burt would
supervise the new attorney and Lew. He acknowledged that it
was possible sometime in the future he would have a scheduling
conflict, but if that were to happen, the second lawyer would be
able to handle the matter.
When the court asked Burt if he could give “adequate
representation to all three of these cases,” Burt admitted that
SFPD was “not excluding the possibility” of having a third
lawyer work on the case as well. Burt requested the court
appoint SFPD generally, rather than him personally, to the
case, because he did not believe he could adequately represent
defendant alone while also working on the other two cases. The
prosecutor argued that if Burt was not personally representing
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Opinion of the Court by Groban, J.
defendant, “it takes him outside the grounds for Harris, where
a client imposes a certain trust and confidence in a particular
attorney, and that particular attorney has a superior
understanding of the facts of the case.”5 He further expressed
concern that if Burt’s other cases took too much time, the
defense would request further continuances on defendant’s case.
The court noted that in a declaration submitted by Lew,
Lew stated that his practice would be in “jeopardy of financial
ruin” if he were appointed counsel in defendant’s case. Lew said
he had been with defendant for seven years and that “was not
something that you walk away from over money,” but he would
need “sufficient time” to tend to other clients and cases. Lew
stated that his estimates on how long it would take to prepare
the case for trial were dependent on whether Burt and SFPD
were also appointed.
The court denied defendant’s motion to have Lew and Burt
appointed based on concerns over Burt’s availability. The court
appointed Thomas Marovich and James Webster, both of whom
had capital case experience.
Defendant made his first appearance with Webster and
Marovich on November 1, 1991. Defendant filed a Marsden
motion and stated it was “imperative” that Burt and Lew
represent him. The court denied the motion. Three weeks later,
defendant filed a second Marsden motion again requesting Burt
and Lew as counsel. The court denied the motion. Between
January 10, 1992, and October 2, 1992, defendant filed nine
5
Harris v. Superior Court (1977) 19 Cal.3d 786 (Harris). In
Harris, we held that a trial court has the discretion to appoint
an indigent defendant’s counsel of choice in certain
circumstances. (Id. at p. 799.)
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more Marsden motions, again requesting appointment of Burt
and Lew, all of which the court denied. At each hearing, the
trial court addressed defendant’s concerns and allowed counsel
an opportunity to respond.
The preliminary hearing began on October 6, 1992, and
ended on November 12, 1992. Between October 6 and October
16, defendant filed five Marsden motions again requesting
appointment of Burt and Lew; the court denied each one on the
day each motion was filed.
On October 28, Webster and Marovich informed the court
that defendant was suing them for malpractice. Counsel argued
that the lawsuit created a conflict and continuing with the
preliminary hearing would violate State Bar rules. After
holding a recess to review relevant materials, the court declined
to continue the preliminary hearing or find that the lawsuit
created a conflict. The court noted that with two exceptions, the
lawsuit contained allegations previously addressed in Marsden
motions. The court stated that if it allowed the lawsuit to create
a conflict, then anytime a defendant was denied a Marsden
motion, the defendant would simply need to file a lawsuit
against counsel. Defendant filed three more Marsden motions
on November 3, 5, and 12, respectively.
On November 20, 1992, the Calaveras County District
Attorney filed an information charging defendant with the
current offenses, and the case moved from the Calaveras County
Justice Court to the Calaveras County Superior Court. On
December 2, 1992, the court temporarily reappointed Webster
and Marovich. The attorneys objected, arguing that defendant’s
lawsuit created a conflict of interest. The court declined to
dismiss them.
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On January 12, 1993, Marovich and Webster filed a
motion to set aside their appointment. They also asked the court
to designate separate counsel to prepare a motion seeking
appointment of defendant’s preferred counsel pursuant to
Harris. The court appointed Ephraim Margolin and Eric
Multhaup to prepare the Harris motion. The court denied
defendant’s 21st Marsden motion on June 9, 1993.
On July 26, 1993, Margolin and Multhaup filed a
combined Marsden and Harris motion requesting the court
discharge Webster and Marovich and appoint Burt and Lew. On
September 1, Webster and Marovich filed a motion to withdraw.
On December 8, 1993, the judge who had been handling
the case recused himself. The Judicial Council appointed
Donald McCartin, a retired judge from Orange County, to the
case. McCartin took the bench for the first time on January 21,
1994. He believed it was appropriate to grant the Marsden
motion but stated the venue change should precede
appointment of counsel. McCartin conditionally relieved
Marovich and Webster pending the appointment of new counsel
after the venue change.
The parties made their first appearance in Orange County
on September 30, 1994. The court noted that Burt and the SFPD
consented to appointment conditionally but certain of those
conditions could not be met, most notably trying the case in San
Francisco. The court further noted that even if it appointed
SFPD, according to its paperwork, the San Francisco Board of
Supervisors and the San Francisco Mayor could abrogate the
appointment. The court stated the case had already faced
significant delay and a review by the board of supervisors could
take years. The court denied defendant’s motion to appoint
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SFPD as counsel and instead appointed the Orange County
Public Defender (OCPD).
On July 29, 1996, defendant made his 23d Marsden
motion. The court granted the motion, relieved OCPD, and
appointed two attorneys from the court’s list of available capital
case counsel, Gary Pohlson and George Peters as counsel. On
August 9, defendant filed another Marsden motion seeking to
relieve Pohlson and Peters and reappoint OCPD. The court
denied the motion. Defendant filed a petition for writ of
mandate challenging the court’s decision, and on February 14,
1997, the Court of Appeal granted the petition. The appellate
court held that the trial court abused its discretion in relieving
OCPD and therefore erred in denying defendant’s subsequent
request to have OCPD reinstated. (Ng v. Superior Court (1997)
52 Cal.App.4th 1010, 1023–1024 (Ng).) The appellate court
ordered the trial court to reinstate OCPD and reassign the case
to a different judge. (Id. at p. 1024.) The case was reassigned
on February 24.
Defendant filed his 25th Marsden motion on May 27, 1997.
The trial court denied his request for separate counsel to handle
the Marsden claim and denied the motion. Defendant filed
another Marsden motion requesting Burt be appointed on
August 13, 1997, and again asked the court to appoint counsel
to assist him with the motion. On September 12, the court heard
argument on appointing Burt as counsel. Burt stated that his
office was available to accept appointment “depending upon the
circumstances of appointment and specifically issues of where
the case gets tried and when it gets tried and issues such as
funding.” On October 10, the court agreed to appoint Burt as
cocounsel if Burt and the presiding judge could agree on Burt’s
compensation. Defendant withdrew his pending Marsden and
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Harris motions. To accommodate Burt’s schedule, the parties
agreed to a trial date of September 1, 1998.
On January 16, 1998, defendant filed his 27th Marsden
motion and said he was reviving all related motions.
Additionally, Burt announced he could not accept the
appointment because he was not satisfied with the
compensation offered by the court. The court denied the
Marsden motion on February 6. Defendant filed his 28th
Marsden motion less than two weeks later, which the court
denied on March 20.
On March 31, 1998, defendant filed a motion to represent
himself, and on April 17, he filed his 29th Marsden motion. The
court denied the Marsden motion and deferred ruling on the
Faretta motion until the conclusion of defendant’s competency
hearing. After finding defendant mentally competent on April
20, the court denied the Faretta motion. The court ruled that
defendant did not want to represent himself, and his real
purpose was to obstruct justice and delay proceedings.
On May 8, 1998, defendant filed another Faretta motion.
At a hearing on the matter, he requested advisory counsel and
an investigative team not associated with OCPD. The court
again found the motion was made to obstruct justice and denied
defendant’s request. One week later, on May 15, defendant filed
another Faretta motion and stated he was willing to accept
anyone as his advisory counsel. The court granted the motion
and appointed OCPD as advisory and standby counsel.
On May 26, 1998, OCPD filed a motion to withdraw as
advisory and standby counsel. The court denied the motion. In
written comments on the motion, the court noted that it did its
best to try to have Burt appointed as counsel per defendant’s
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wishes. A few days later, defendant filed a motion to discharge
the OCPD as advisory and standby counsel. The court denied
the motion.
On August 5, 1998, defendant filed a motion to continue
the trial six months, to March 1, 1999. At a hearing on the
motion, the court reminded defendant that he had stated that
he would be ready to proceed on the scheduled trial date. The
court asked defendant if he wanted to continue representing
himself; defendant confirmed that he did. The court then asked
defendant why he specifically asked for six months. Defendant
said that if he was not ready to proceed in six months, then
counsel would take over to not cause any further delay. The
court stated that it was considering revoking defendant’s pro se
status and if, at the time trial started, he was ready to represent
himself, the court would reconsider a renewed Faretta motion.
The court ruled that defendant was not willing to cooperate with
OCPD in preparation for trial, was not actively preparing for
trial, and was “doing everything to avoid trial in the near
future.” The court revoked defendant’s pro se status and stated
that if he was able to comply with the rules of the court, it would
revisit the issue. The court reappointed OCPD and agreed with
OCPD’s assessment that the continuance motion was now moot.
On August 26, the defense moved for a six-month
continuance. The court denied the motion and instead granted
a two-week continuance. Defendant filed his 30th Marsden
motion on August 28, 1998, which the court denied.
Jury selection began on September 14, 1998. Defendant
filed his 31st Marsden motion the following day. The court
found that defendant was attempting to manufacture a conflict
and create a delay and denied the motion.
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Defendant filed two more Marsden motions during the
remainder of jury selection, both of which the court denied.
Defendant filed his 34th Marsden motion during the
prosecution’s case-in-chief, and his 35th motion during the
defense case. The court denied both motions. Defendant filed
his 36th Marsden motion after the prosecution finished its
closing argument; the court denied the motion.
After the jury returned its guilty verdicts, the court
learned that defendant had filed a malpractice lawsuit against
the OCPD. The lawsuit named defendant’s lead attorney and
one other deputy public defender as codefendants.
On June 3, 1999, after the conclusion of the penalty phase,
defendant filed his 37th Marsden motion. The court denied the
motion on June 30.
2. Public Defender’s Role
After granting defendant’s motion to represent himself,
the trial court appointed OCPD as standby counsel and
instructed OCPD to continue preparing for trial. Defendant now
contends the manner in which OCPD prepared for trial
conflicted with his own trial strategies. This conflict, he asserts,
interfered with his right to represent himself and thus violated
his rights pursuant to Faretta. Defendant specifically argues
that the instructions provided to a mental health expert by
OCPD conflicted with his own instructions, which caused the
expert to resign. He does not, however, explain what conflicting
instructions were provided to the expert and, as discussed
below, the record does not support his contention.
As previously noted, the trial court granted defendant’s
Faretta motion on May 15, 1998. The court appointed OCPD as
advisory and standby counsel. Counsel William Kelley opined
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that this put OCPD in conflicting positions. He said, “The
advisory counsel role, that we do just that, we advise Mr. Ng.
He is making the decisions on the case. We may say we think
that is a bad decision, but he can say, ‘Too bad. That is what we
are going to do,’ and then he is going to do what he is going to
do. Whereas, my role or our role as standby counsel would be to
go ahead and independently proceed and prepare as if we are
still the attorney of record, and that is that. My question to you
is what happens when those two roles clash? We say as attorney
of record in a standby role we think we need to go down this road
and as an advisory counsel we are advising Mr. Ng we have to
go down this road. He goes, ‘Nope. I am the attorney of record
on this case. We go down that road.’ ” The court replied, “Go
down both roads.” The court acknowledged the possibility of
problems but told Kelley, “I want you to do exactly what you
have been doing, and that is putting all your resources towards
trying this case in Mr. Ng’s best interest, and you are going to
do that as standby counsel. As advisory counsel, you are there
to advise Mr. Ng.” The court clarified that the government had
invested a lot of money in OCPD to represent defendant, and the
office had put in significant time and effort into preparing his
defense. The court explained it “is not a willy-nilly thing that I
am appointing your office over your objection to assist”
defendant as advisory counsel. The court warned that if
defendant made any attempt to disrupt proceedings or delay
trial, OCPD would be reinstated as counsel.
Just two weeks later, on May 26, 1998, OCPD filed a
motion to withdraw as advisory and standby counsel. Carl
Holmes, the Orange County Public Defender, explained that he
brought the motion “with great reluctance,” but his office
reached a point where acting as advisory and standby counsel to
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defendant would “compromise [their] ethical duty” to provide a
meaningful defense. Holmes continued that he could not,
without divulging confidence of defendant, reveal “how deep and
serious his mistrust of the Public Defender’s Office is.” The
court opined that defendant did not simply mistrust OCPD; he
mistrusted anyone who was not Burt. Holmes agreed with the
court’s assessment. The court stated that it had recently asked
defendant for an example of a true conflict between himself and
Kelley, and defendant could not provide one. The court
continued, “Appointing a different . . . advisory counsel will not
help at all. We will hear exactly the same thing we have been
hearing since day one. And that is why I asked you for examples
in camera, and those are the same problems you are going to
have with any attorney.” The court also stated that defendant
created a breakdown in his relationship with counsel, rather
than counsel’s actions or inactions causing a breakdown, and his
distrust of OCPD was because he did not want to trust OCPD.
The court denied the motion, finding no conflict, but stated that
if a true conflict arose the court would address it.
On June 8, defendant filed his own motion to discharge
OCPD as standby counsel. The court denied the motion,
reminding defendant that he had been willing to accept OCPD
as standby counsel when he filed his Faretta motion a few weeks
prior.
On July 21, both OCPD and defendant were directed by
the judge assigned to handle section 987.9 matters 6 to share
6
Section 987.9 authorizes a capital defendant to “request
the court for funds for the specific payment of investigators,
experts, and others for the preparation or presentation of the
defense.” (Id., subd. (a).)
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previously retained experts and separately apply for their own
funding for each expert, in lieu of requiring defendant to locate
and retain his own experts now that he represented himself.
The court explained that the experts had been in place for quite
a while, and it would be impossible for defendant to find new
qualified experts, get them caught up on his case, and conduct
testing and interviews by the September 1 trial date. The court
further explained that the defense had already retained top
caliber experts, and requiring defendant to select new experts
would, in essence, punish him by excluding those experts from
his defense. The court acknowledged the plan was not perfect
but believed that using the existing defense experts would best
facilitate defendant’s preparations for trial.
Kelley noted that using the same experts would require
him to know what the experts were working on for defendant,
but defendant told the experts not to disclose that information
to Kelley. He explained that this put him in a difficult position
and that the experts were “still giving [him] some general ideas
because they are uncomfortable with their role. Four experts
have called me up independently and said so.” Kelley agreed,
however, with the court’s statement that it would be a “real
gross violation” of defendant’s due process rights, given all of the
experts the defense had lined up, to suddenly require he find his
own experts. He argued that nonetheless, the experts were
“having difficulty with the position this puts them in.” The court
again acknowledged that “it’s not a perfect world” and that
Kelley was in an unusual position, and said that defendant could
get separate funding for his use of the experts without Kelley’s
assistance to avoid defendant needing to tell Kelley what he
uses the experts for. When the court asked defendant if he had
any concerns with the arrangement, he said not at that time.
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Approximately one month later, the court revoked defendant’s
pro se status and reappointed OCPD as counsel.
On August 25, after Kelly was reinstated as counsel, he
filed a motion to continue. He explained that a key expert
witness had resigned as a result of the different directives she
received from him and from defendant, and she could not
perform antithetical tasks. Kelley explained to the trial court,
“When [defendant] was given his pro. per. status, she was
having problems because, you know, I would want her — I am
interested in her developing information that I believe to be
pertinent to the defense of the substantive case, and [defendant]
was having her go in a different direction, and she was in a bit
of a dilemma because the direction he was having her go in was
going to put her in direct conflict with me. And she called me
up one day very disturbed and distraught about it and couldn’t
deal with it and felt she had a conflict of interest and told me
she had to resign from the case.”
Defendant now argues that there was significant conflict
between himself and OCPD regarding the strategy for
developing evidence. He asserts that the trial court’s insistence
that OCPD continue preparing for trial with strategies that
conflicted with his own violated his Faretta rights. But he points
to nothing specific in the record except for one example:
defendant asserts that his and OCPD’s conflicting instructions
to mental health expert Dr. Kaser-Boyd, and her subsequent
resignation interfered with his ability to represent himself.
Aside from vaguely asserting that he and OCPD instructed her
to prepare for trial in a “conflicted manner,” defendant does not
provide any additional information regarding how they each
provided conflicting instructions.
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The Attorney General asserts that defendant abandoned
his right to self-representation by failing to renew his request to
represent himself and thus acquiesced in subsequent
representation. Because defendant waived his Sixth
Amendment claim by failing to renew his request, the Attorney
General argues, defendant cannot claim on appeal that the trial
court violated his rights pursuant to Faretta by appointing
OCPD as standby counsel. After the trial court revoked
defendant’s pro se status, the court stated that if, at the time
trial started, he was ready to represent himself, the court would
reconsider a renewed Faretta motion. (See People v. Dunkle
(2005) 36 Cal.4th 861, 909 [the 6th Amend. self-representation
right may be waived or abandoned when a defendant prior to or
during trial acquiesces in the assignment or participation of
counsel in the defense].) Defendant counters that renewing his
request would have been futile because self-representation
would have been accompanied by the same allegedly
unconstitutional conditions the trial court had previously
imposed, namely requiring OCPD to remain as standby counsel.
We need not decide whether defendant waived his claim,
because there was no Sixth Amendment violation regardless.
The United States Supreme Court examined the role of
standby counsel in McKaskle v. Wiggins (1984) 465 U.S. 168. “In
determining whether a defendant’s Faretta rights have been
respected, the primary focus must be on whether the defendant
had a fair chance to present his case in his own
way. Faretta itself dealt with the defendant’s affirmative right
to participate, not with the limits on standby counsel’s
additional involvement.” (Id. at p. 177.) Standby counsel
unconstitutionally violates a defendant’s Faretta right if
counsel’s “participation over the defendant’s objection
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effectively allows counsel to make or substantially interfere with
any significant tactical decisions, or to control the questioning
of witnesses, or to speak instead of the defendant on any matter
of importance.” (Id. at p. 178.) Counsel also violates a
defendant’s right if, without the defendant’s consent, counsel
destroys the jury’s perception that the defendant is representing
himself. (Ibid.)
Because defendant did not represent himself by the time
voir dire began, we assess whether his Faretta rights were
vindicated with regard to proceedings occurring outside the
presence of the jury only. “Faretta rights are adequately
vindicated in proceedings outside the presence of the jury if
the pro se defendant is allowed to address the court freely on his
own behalf and if disagreements between counsel and the pro
se defendant are resolved in the defendant’s favor whenever the
matter is one that would normally be left to the discretion of
counsel.” (McKaskle v. Wiggins, supra, 465 U.S. at p. 179.)
Defendant contends the court’s insistence that he and
OCPD continue trial preparations irrespective of any conflict
“virtually guaranteed” that OCPD would substantially interfere
with his ability to make tactical decisions, but he cites only the
resignation of Dr. Kaser-Boyd as an example of how OCPD
allegedly interfered with his ability to prepare his defense.
Defendant contends he lost Dr. Kaser-Boyd as an expert witness
because she found it untenable to work for him and OCPD at the
same time, due to receiving conflicting instructions on how to
prepare for trial. Defendant, however, misapprehends the
reason Dr. Kaser-Boyd resigned from his case. Importantly, Dr.
Kaser-Boyd initially expressed concern about assisting
defendant before the court ruled that he and OCPD must share
experts. Dr. Kaser-Boyd wrote two letters to defendant. The
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first letter was written on July 15, 1998, two weeks before the
court ordered defendant and OCPD to share experts. The
second letter was written on July 30, shortly after the court’s
order. Together, these letters support a finding that, even before
the court issued the order that defendant claims resulted in Dr.
Kaser-Boyd’s resignation, she informed defendant of her desire
to resign for two different reasons: (1) she sought to resign
because of defendant’s desire to have her assist him in having
OCPD removed as advisory counsel, and (2) she sought to resign
due to defendant’s generalized distrust of her and OCPD.
In her first letter, Dr. Kaser-Boyd explained that
defendant’s request that she actively assist him in having OCPD
removed as advisory counsel likely created a conflict of interest.
She explained that because she was working with OCPD on
other matters, she could not also litigate against OCPD. Thus,
the dispute Dr. Kaser-Boyd described was not about receiving
conflicting tactical instructions from OCPD and defendant with
respect to her anticipated trial testimony. Instead, the issue
was that because she was working with OCPD on other matters,
she could not also assist defendant in litigating against OCPD.
This issue was not occasioned by the sharing of experts but,
instead, was created by the fact that, as Dr. Kaser-Boyd
explained in the letter, she “believe[d] that it likely would be a
conflict of interest for me to carry several open cases with
[OCPD] at the same time that I support your motion to have
[OCPD] removed as legal advisor for you.”
Dr. Kaser-Boyd also expressed concern in her first letter
that defendant “will never be sure that I am in your camp and
therefore supporting your best interests, and that this will
seriously undermine your trust of me.” She continued, “The
relationships are further contaminated by the fact that I was
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Opinion of the Court by Groban, J.
originally retained by [Kelley], against whom you now struggle.”
Dr. Kaser-Boyd concluded it would be better for defendant to
retain an expert that did not have any ongoing work with OCPD
and offered to help him find one. Thus, the record does not
compel defendant’s interpretation that he lost Dr. Kaser-Boyd
as an expert because he and OCPD were giving her conflicting
instructions.
Dr. Kaser-Boyd emphasized these same two reasons for
wanting to end the retention in a second letter on July 30, 1998.
She again explained that “after careful deliberation and
consultation with psychology and legal experts,” it would create
a conflict of interest for her to help defendant litigate to have
OCPD removed and also work with OCPD on other matters. She
again referenced defendant’s profound distrust of her and
OCPD. (“I regret that you feel that failing to help you on this
issue would mean that you would not speak to me on the main
issues of your case for which [Kelley] hired me”; see also the July
15, 1998 letter stating, “[You] will never be sure that I am in
your camp and therefore supporting your best interests, and
that this will seriously undermine your trust of me.”) Defendant
highlights the fact that Dr. Kaser-Boyd’s second letter also
referenced that the court’s recent ruling on sharing experts put
her in an “untenable position,” and she could not “serve two
masters.” It is clear from the letters, however, that Dr. Kaser-
Boyd expressed a desire to resign before the court issued its
ruling. Although she does indicate in her second letter that the
court’s ruling was another “reason” for her decision to resign,
she had already articulated in her first letter that she needed to
withdraw because defendant simply did not trust her or OCPD.
As the court explained to the public defender, “It is not his
mistrust of your office. It is his mistrust of anybody except
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Opinion of the Court by Groban, J.
Michael Burt.” During the hearing on OCPD’s motion to
withdraw as advisory counsel, the trial court further
underscored defendant’s distrust, stating, “It doesn’t matter
who is here [as advisory counsel], we are still going to have this
conflict because [defendant] is going to say, ‘Unless it comes
from Mr. Michael Burt, I disagree.’ That is what is going to
happen.” The record thus supports the finding that Dr. Kaser-
Boyd had decided to withdraw before the court issued its ruling
for reasons completely independent of that ruling.
Finally, even if Dr. Kaser-Boyd did ultimately resign in
part because of the directive to work on different tasks for
defendant and for OCPD, defendant has not shown that the trial
court’s order to share experts violated his constitutional rights
by preventing him from presenting his defense in his own way.
Specifically, defendant does not show that even if the defense
intended to call her as a witness and could not, the defense was
unable to introduce similar testimony from another expert. In
her July 15 letter, Dr. Kaser-Boyd opined that Dr. Nievod would
be a suitable alternate expert. Indeed, Dr. Nievod, who had
initially been appointed by OCPD, continued working with
defendant while defendant represented himself, including
evaluating defendant one day after the court’s order to share
experts and writing a declaration on defendant’s behalf nearly
two weeks later. The declaration, submitted along with
defendant’s motion for a renewed competency hearing, suggests
that Dr. Nievod planned to continue working with him despite
the court’s order to share experts, had the court granted
defendant’s motion for a competency hearing. Dr. Nievod
continued working with the defense once OCPD was reinstated
as counsel; the defense introduced his testimony on defendant’s
mental health during the penalty phase.
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In addition to arguing that OCPD’s interference with
experts led to defendant’s inability to represent himself,
defendant further argues that OCPD interfered with his rights
by interviewing witnesses on topics that were unlike those that
he sought to develop. Defendant does not cite anything in the
record to support his contentions. He does not identify specific
witnesses OCPD interviewed, and he does not identify on which
topics they were interviewed. Further, he does not identify how
OCPD possibly doing these things affected his ability to
represent himself or develop a defense.
In McKaskle v. Wiggins, supra, 465 U.S. 168, as in this
case, most of the incidents the defendant complained of occurred
outside of the presence of the jury. The high court noted that on
several occasions, the defendant adopted standby counsel’s
initiatives, and on several other occasions the defendant
opposed counsel’s initiatives. (Id. at p. 180.) The high court
found that standby counsel’s actions did not violate the
defendant’s Faretta rights because the defendant “was given
ample opportunity to present his own position to the court on
every matter discussed. He was given time to think matters
over, to explain his problems and concerns informally, and to
speak to the judge off the record. Standby counsel participated
actively, but for the most part in an orderly manner.” (Id. at
p. 181.) Importantly, at no point did the trial court adopt
standby counsel’s position over the defendant’s “on a matter that
would normally be left to the defense’s discretion.” (Ibid.)
Like in McKaskle v. Wiggins, supra, 465 U.S. 168, the trial
court here gave defendant ample opportunity to present his
positions on every matter discussed. Moreover, at no point here
did the trial court resolve a disagreement in OCPD’s favor,
rather than defendant’s favor. Although defendant opposed the
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order to share retained witnesses, OCPD strongly opposed the
court’s order as well. Defendant remained free to pursue his
defense in his own way and to address the court freely. Because
OCPD acting as standby counsel did not violate defendant’s
Sixth Amendment rights, the trial court did not err in
appointing OCPD and ordering counsel to continue to prepare
for trial.
3. Revocation of Self-Representation
Defendant contends the trial court erroneously revoked
his right to represent himself without justification.
As previously noted, the trial court granted defendant’s
Faretta motion on May 15, 1998. When the court asked
defendant if he would be ready for the scheduled trial date of
September 1, defendant replied that he would try his best. On
August 5, less than one month before the scheduled trial date,
defendant filed his motion to continue the trial for six months.
Two weeks later, on August 19, defendant filed a motion
for a new competency trial under section 1368. The court held
a hearing on the motion two days later. Defendant argued he
was not competent to proceed and requested the court call Dr.
Nievod to the stand. When the court asked what Dr. Nievod
would testify about, defendant said he did not sleep well the
previous night, was “real tired and confused,” and was unable to
concentrate on the hearings scheduled for that day. The
prosecution questioned whether the issue was competency or
whether defendant was fatigued that day; the court did not
know, either. When the court again asked defendant what Dr.
Nievod would testify to, defendant responded that he did not
know exactly and just wanted to establish for the court that he
had been up late the previous night and was tired. The
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prosecution argued that defendant was trying to delay and
manipulate proceedings. She 7 pointed out that the court had
four hearings scheduled for that day, and they had witnesses
who traveled great distances to be present. When the court
asked defendant if he wished to be heard on anything else,
defendant continued questioning the court’s decision to not have
Dr. Nievod testify and did not present any additional
information. The court stated that it had been watching and
listening to defendant, and there was nothing wrong with his
mental ability. The court found that defendant’s competency
motion was related to his motion to continue, that he was not
preparing for trial, and he was instead spending time and money
trying to delay trial. The court denied defendant’s competency
motion.
The court then turned to the continuance motion. The
court repeatedly asked defendant if he wanted to continue to
represent himself; he did not answer. The court asked
defendant when he expected to finish writing and filing his
pretrial motions, but he could not give an estimate. The court
asked defendant if he could estimate how long trial would take,
and he replied that he was “not thinking clearly right now” and
was “emotionally upset.” The court ordered a recess to allow
defendant a chance to gather his thoughts and present an
argument.
When proceedings resumed, the court again asked
defendant if he wanted to continue representing himself, and he
said that he did. The court asked defendant when he would be
7
The prosecution team consisted of one female prosecutor
and one male prosecutor. “She” and “he” are therefore both used
when referencing the prosecution.
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Opinion of the Court by Groban, J.
ready to go to trial, and he replied that he would be ready in six
months, as his motion for continuance indicated. Defendant
said that if he were not ready within that time frame, OCPD
would take over as counsel. The court again asked defendant
how long it would take to complete pretrial motions. When
defendant said he did not know, the court reminded defendant
that trial was scheduled to begin only 10 days later.
The court said that it was considering revoking
defendant’s pro se status, but if he was ready to represent
himself at the start of jury selection, the court would reconsider.
The court opined that defendant had not put any thought or
effort into getting ready for trial. The court commented that
defendant engaged in “games within games within games.” The
court found that defendant had not been sincere at his Faretta
hearing and was not willing to cooperate with OCPD in the
preparation of his trial. The court noted that defendant made
“unfavorable comments” every time a ruling was not in his favor,
and while it could not revoke defendant’s status because he
refused to prepare for trial, it could when defendant was
unwilling to abide by the rules of procedure and courtroom
protocol. The court noted that they were on the eve of trial, and
defendant was trying to obstruct and delay proceedings.
The court revoked defendant’s pro se status. The court
ordered the sheriff to permit defendant to retain his pro se
materials at the county jail, noting that it gave defendant the
option to make a renewed Faretta motion at or after the
beginning of his trial if he could do so in good faith and was
ready to proceed immediately.
A defendant’s Faretta right is subject to termination
whenever he engages in “ ‘deliberate dilatory or obstructive
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behavior’ [that] threatens to subvert ‘the core concept of a
trial.’ ” (People v. Carson (2005) 35 Cal.4th 1, 10 (Carson).)
“When determining whether termination is necessary and
appropriate, the trial court should consider several factors in
addition to the nature of the misconduct and its impact on the
trial proceedings,” including: (1) “the availability and suitability
of alternative sanctions,” (2) “whether the defendant has been
warned that particular misconduct will result in termination of
in propria persona status,” and (3) “whether the defendant has
‘intentionally sought to disrupt and delay his trial.’ ” (Ibid.) The
intention to disrupt and delay trial is, in many instances,
sufficient to order termination. (Ibid.)
The trial court must make a thorough record establishing
the basis for termination. The record must include “the precise
misconduct on which the trial court based the decision to
terminate. [Citation.] The court should also explain how the
misconduct threatened to impair the core integrity of the trial.
Did the court also rely on antecedent misconduct and, if so, what
and why? Did any of the misconduct occur while the defendant
was represented by counsel? If so, what is the relation to
the defendant’s self-representation? Additionally, was the
defendant warned such misconduct might forfeit his
Faretta rights? Were other sanctions available? If so, why were
they inadequate? In most cases, no one consideration will be
dispositive; rather, the totality of the circumstances should
inform the court’s exercise of its discretion.” (Carson, supra,35 Cal.4th at pp. 11–12, fn. omitted.) The trial court has
considerable discretion in determining whether termination of
Faretta rights is necessary to maintain the integrity and
fairness of proceedings. (People v. Becerra (2016) 63 Cal.4th 511,
518.) A court’s decision will not be disturbed absent a strong
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showing of clear abuse. (Ibid.; see People v. Welch (1999) 20
Cal.4th 701, 735.)
Defendant contends the trial court revoked his pro se
status on two grounds — he engaged in dilatory tactics and he
failed to abide by courtroom protocol — and that neither are
supported by the record. Defendant is mistaken. Substantial
evidence in the record supports the trial court’s decision that
defendant was engaging in dilatory tactics with the intent to
delay trial. After his extradition in 1991, defendant’s dozens of
motions continued proceedings until trial finally began in 1998.
Defendant filed a total of 37 Marsden motions, several of which
contained allegations that suggest the motions were not made
in good faith: counsel forgot information due to their old age and
“possibly their alcohol and drug use”; counsel were allied with
the prosecution; and counsel were participating in a conspiracy
to deprive him of his constitutional rights.
After the trial court granted his 23d Marsden hearing and
relieved OCPD as counsel, the prosecution filed a motion asking
the court to reconsider. The motion included a declaration from
Deputy Sheriff Dean Weckerle. Weckerle heard defendant tell
another inmate that when his case got close to trial date, the
inmate could file a Marsden motion so that his case would have
to start all over again. Defendant told the inmate that this
would stretch his trial into the following year, at which time the
inmate could make another Marsden motion and start the
process again with new lawyers. The court acknowledged that
it “had not fully appreciated all the things that have gone on
before” but denied the prosecution’s motion to reconsider.
One week after the court granted the Marsden motion,
defendant filed a motion requesting the court reinstate OCPD.
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The court denied the motion, and the subsequent litigation led
to a nearly six-month delay. Three months after the Court of
Appeal ordered the trial court to reinstate OCPD, defendant
filed yet another Marsden motion.
When counsel filed a motion declaring a doubt as to
defendant’s competency, defendant argued they were doing so
over his objection. After the court granted his request to
represent himself, he filed a motion arguing he was not
competent after all and requested a renewed competency
hearing along with his motion to continue.
Before the court granted defendant’s Faretta motion,
defendant assured the court he would accept OCPD as advisory
counsel. Just three weeks later, he moved to discharge OCPD
as advisory counsel, ostensibly as a dilatory tactic, knowing that
it would take new counsel several months to get caught up on
his case. The length of time needed for any attorney other than
OCPD to review the case was well known to the parties and
defendant; when the court granted the Faretta motion and
contemplated the appointment of advisory counsel, it opined
that it would take at least six months for an attorney to simply
review the case to determine if they could advise him. The
prosecution opined it could take an attorney up to one year.
Defendant’s request for a renewed competency hearing
further supports a finding that he engaged in dilatory tactics.
When OCPD filed a competency motion in early 1998, defendant
made clear that counsel was doing so over his objection. Indeed,
he accused counsel of using the competency proceedings to
“discredit [his] colorable claims against them and to falsely
project the possibility of reconciliation.” Two weeks after
defendant began to represent himself, in mid-May, he requested
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funding to employ a psychologist to evaluate his mental state
and subsequently filed a motion for a new competency trial.
Defendant argued he had a substantial change in circumstances
to warrant a new hearing, without providing evidentiary
support for his position. The court concluded defendant was
trying to delay proceedings when it denied his request, and the
record supports the court’s finding.
Defendant asserts that he worked diligently in the jail to
prepare and that jail personnel could attest to his hard work.
Although that may be true, the trial court acted well within its
discretion when it found, based on the record before it, that
defendant was using his pro se status to disrupt and delay trial.
The court did not abuse its discretion when it revoked his self-
representation on that ground.
Defendant further contends the trial court erroneously
revoked his pro se status because he was unable to abide by
courtroom protocol. The record, however, does not suggest the
trial court relied on this basis for terminating defendant’s
status. The trial court talked at length regarding defendant’s
many Marsden motions and the long delay preceding trial. The
court reminded defendant that when he refused to cooperate
with OCPD and had counsel relieved, he then requested OCPD
and Kelley be reappointed “after another tremendous amount of
time and money.” After defendant began to represent himself,
he again refused to cooperate with OCPD as standby counsel,
was not preparing for trial, and was “doing everything to avoid
trial in the near future.” The court further stated that the case
was “at the eve of trial,” and that defendant was “just trying to
obstruct” and “just trying to delay. And that is not allowed.”
Although the trial court also noted that defendant made
inappropriate remarks when a ruling was made not in his favor,
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as described above, it does not appear that the court relied on
that as a basis for revoking his status. Defendant argues
nonetheless that the trial court failed to warn him that his pro
se status could be revoked. The record does not support this
assertion. When the trial court granted his Faretta motion, it
warned defendant that if he attempted to delay or disrupt trial,
OCPD would be reinstated as counsel. On the day the court
terminated his pro se status, the court explained it was
considering revoking defendant’s status and ordered a break to
allow defendant to gather his thoughts and make an argument.
Finally, defendant contends the court failed to consider
alternative sanctions. Defendant points to his own suggested
sanction — that if he was not ready to proceed with trial in six
months, after his continuance, he would relinquish his pro se
status and proceed with OCPD as counsel. Based on defendant’s
frequent change of position regarding representation, however,
the record supports the trial court doubting defendant’s
assertion that he would step aside after six months and allow
OCPD to represent him. As previously noted, two weeks after
the trial court granted a Marsden motion to relieve OCPD in
1996, defendant sought to have OCPD reappointed. A few
months after OCPD’s reappointment, he filed another motion to
have them relieved. Defendant promised the trial court he
would accept OCPD as advisory counsel, and the court granted
his Faretta motion; just 12 days later, defendant filed a motion
to discharge OCPD as counsel. It was reasonable for the trial
court to believe that defendant would refuse to have OCPD
appointed six months later and demand new attorneys, further
delaying his trial.
Moreover, the trial court was not required to consider any
alternative sanctions. In Carson, we explained that when
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determining whether termination is necessary, the trial court
should consider, among several factors, the “availability and
suitability of alternative sanctions.” (Carson, supra, 35 Cal.4th
at p. 10.) Unlike in defendant’s case, the trial court in Carson
terminated the defendant’s self-representation because of out-
of-court conduct. When misconduct “is more removed from the
trial proceedings” or “otherwise less likely to affect the fairness
of the trial,” a complete termination of the defendant’s pro se
status may not be justified. (Ibid.) Out -of -court misconduct,
such as that in custody, for example, may not warrant revoking
a defendant’s status. (People v. Butler (2009) 47 Cal.4th 814,
826.) Here, defendant’s misconduct was not removed from the
proceedings; rather, his disruptions and attempt to delay were
central to them. We stated in Carson that intentionally
disrupting or delaying trial would often suffice as a reason to
terminate a defendant’s self-representation. (Carson, at p. 10.)
Thus, the trial court did not abuse its discretion under Carson
when it revoked defendant’s self-representation.
4. Denial of Marsden Motion
Defendant contends the trial court deprived him of his
constitutional rights when it denied his 31st Marsden motion,
made just after jury selection began. 8 He specifically contends
the court erroneously denied his request to call witnesses to
testify at the Marsden hearing, and the court should have
ordered OCPD to dismiss Kelley as his lead attorney.
8
Defendant claims the denial of some of his earlier Marsden
motions may have been error but notes that any error was likely
purged by the court’s grant of his Faretta motion in May 1998.
He is challenging the denial of his Marsden motion brought after
the court revoked his pro se status.
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Defendant filed his 31st Marsden motion on September
15, 1998, the day after jury selection began. In his motion, he
asked to call one of his attorneys, Deputy Public Defender Lewis
Clapp, as a witness at the Marsden hearing. In defendant’s offer
of proof, he explained that Clapp would testify that he tried to
cooperate with Kelley, he was not using his Marsden motions to
delay proceedings, he could trust other members of the defense
team but not if they worked under Kelley, and substantial
impairments to his representation had already occurred.
A few days later, on September 21, defendant filed a
request to also call Allyn Jaffrey, a deputy public defender with
OCPD, and Dr. Nievod to testify as witnesses at the Marsden
hearing. In his offer of proof, defendant explained that Jaffrey
observed his interactions with Kelley and personally witnessed
Kelley mistreating and provoking him, as well as undermining
his confidence. He stated that Jaffrey was willing to testify in
support of his motion to dismiss OCPD as counsel. In his offer
of proof regarding Dr. Nievod, defendant explained that the
psychologist would testify that his breakdown with Kelley
resulted from his mental state and that Kelley contacted Dr.
Nievod to dissuade him from testifying, threatening to rescind
his expert witness retainer.
The court held a hearing on September 21. Defendant told
the court that the witnesses would testify that there was an
irremediable breakdown between Kelley and himself, “and the
breakdown has permeated the rest of the defense case. And the
cause of the breakdown is not Michael Burt, but it is Mr. Kelley.”
Defendant complained that he was unfairly viewed as an escape
risk, and his attorneys did little to fight that assumption. Kelley
explained that he was struggling to find penalty phase evidence
to evoke sympathy and noted that defendant’s family was not
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cooperating. Because defendant’s family lived in Canada and
Hong Kong, Kelley could not subpoena them. Defendant argued
that Kelley was trying to place blame by insinuating that his
family was choosing not to cooperate, but rather they too just
did not trust Kelley. He told the court that Kelley was engaging
in “deception” because he did not want to relinquish control of
the case. Kelley responded that defendant “speaks very
generally” which makes it hard for him to respond and that
defendant could not cite to anything specific he had done that
suggested he was not working toward preparing the case.
The court asked defendant if he believed Kelley could “just
step down” from the case. Defendant opined that Kelley could
step down. The court asked defendant if he believed Carl
Holmes, the public defender, could override the court’s decision.
Defendant said no, but he thought Holmes could be more
truthful about the situation rather than “acting like there is no
conflict.” The court reminded defendant that Holmes never
denied a conflict existed between defendant and OCPD.
The court denied defendant’s request to call Dr. Nievod,
Clapp, or Jaffrey to the stand. The court stated that most of
what defendant wanted Clapp to testify about “are opinions that
he cannot make.” The court also noted that it was already aware
of most of the information contained in Jaffrey’s offer of proof.
The court further stated that it was “not going to take part in
creating a conflict between attorneys representing you,” which
it opined was what defendant was trying to do. The court later
continued, “I just think it is poor policy for the court to say,
‘Okay. You have three attorneys on your team. We are going to
divide them up. Put one on after another to see what they have
to say about your relationship with one of them.’ I am not going
to do that. In other words, Mr. Ng, I am willing to agree that
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there is a problem between you and Mr. Kelley, and you don’t
need Mr. Clapp or Miss Allyn Jaffrey to corroborate that.”
The court found that defendant was attempting to
manufacture a conflict and create a delay. The court denied the
Marsden motion.
“When a defendant seeks substitution of appointed
counsel pursuant to People v. Marsden [(1970)] 2 Cal.3d
118, ‘the trial court must permit the defendant to explain the
basis of his contention and to relate specific instances of
inadequate performance. A defendant is entitled to relief if the
record clearly shows that the appointed counsel is not providing
adequate representation or that defendant and counsel have
become embroiled in such an irreconcilable conflict that
ineffective representation is likely to result.’ ” (People v. Taylor
(2010) 48 Cal.4th 574, 599.) We review a trial court’s denial of
a Marsden motion for abuse of discretion. (Ibid.) “Denial is not
an abuse of discretion ‘unless the defendant has shown that a
failure to replace counsel would substantially impair the
defendant’s right to assistance of counsel.’ ” (Ibid.)
Defendant first contends the trial court erred when it
denied his request to have Clapp, Jaffrey, and Dr. Nievod testify
at the Marsden hearing. The trial court, however, was not
required to call witnesses to adequately evaluate defendant’s
Marsden motion. Defendant cites several cases arguing
otherwise, but we do not understand these cases to stand for the
proposition, as he suggests, that a defendant must be permitted
to call live witnesses in a Marsden hearing. Rather, we read
these cases only to require that a trial court make an adequate
inquiry into the defendant’s motion, which in some instances
may include the calling of witnesses. (See U. S. v. Nguyen (9th
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Cir. 2001) 262 F.3d 998, 1005, 1003 [trial court did not conduct
a hearing, did not hear from available witnesses, and asked
“only a few cursory questions” before denying motion for new
counsel “without explanation”]; Schell v. Witek (9th Cir. 2000)
218 F.3d 1017 [court failed to hold a hearing or rule on the
defendant’s motion]; U. S. v. Gonzalez (9th Cir. 1997) 113 F.3d
1026 [court refused to hold a hearing after the defendant
accused his attorney of physically intimidating and coercing him
into accepting a plea deal; Ninth Circuit held the trial court
abused its discretion by not holding an evidentiary hearing
because a witness had allegedly seen the altercation between
the defendant and his attorney]; People v. Stankewitz (1982) 32
Cal.3d 80 [court acknowledged that the defendant could not
cooperate in a rational manner with his attorney but refused to
hold a competency hearing or grant a request to substitute
counsel].) The cases on which defendant relies, particularly
Nguyen and Gonzalez, are very different from the facts here.
Importantly, the trial courts in those cases failed to conduct a
hearing to determine the bases for the defendants’ motions.
Here, the trial court held a hearing on defendant’s motion and
inquired into the nature of the witnesses’ proffered testimony
before denying defendant’s request to call them. Additionally,
the trial court was well-versed in the conflict between defendant
and OCPD, and the proffered witnesses’ testimony offered no
information that the court did not already know.
The trial court had substantial information before it on
which to rule on the motion without needing to hear from
additional witnesses. This was defendant’s 31st Marsden
motion in which he largely repeated previous allegations. The
hearing on the motion lasted nearly three hours, during which
defendant detailed his complaints against counsel, and Kelley
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gave extensive responses. More importantly, defendant points
to no information that Clapp, Jaffrey, or Dr. Nievod would have
provided as witnesses that the court did not already have in
other forms.
Defendant also asserts the trial court erroneously failed to
direct OCPD to remove Kelley from the case and appoint
alternative trial counsel. Defendant argues that OCPD
reassigning a different deputy public defender to the case
“would have conserved much if not all of the prior work that the
[previous attorneys] had put into the case.” Defendant ignores
the fact that it would still take a new attorney a significant
amount of time to get caught up on the case and be ready to
proceed with trial. The trial court denied defendant’s motion
because it found he was attempting to create a delay; appointing
new counsel, even within OCPD, would have created a delay
regardless. (See People v. Smith (2003) 30 Cal.4th 581, 607 [“ ‘It
is within the trial court’s discretion to deny a motion to
substitute made on the eve of trial where substitution would
require a continuance’ ”].) Furthermore, based on the
proceedings before it, the trial court had reason to believe
defendant would refuse to cooperate with any counsel, and thus,
replacing Kelley would be fruitless.
The trial court did not abuse its discretion when it denied
defendant’s Marsden motion.
5. Refusal To Appoint Counsel
Defendant contends the trial court abused its discretion
when it declined to appoint the SFPD and Michael Burt to
represent him in 1994 and again in 1998.
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a. 1994 Request
As previously discussed, Burt and Lew were appointed to
represent defendant prior to his extradition from Canada and
then subsequently removed when the Calaveras County Justice
Court determined it lacked jurisdiction to appoint counsel.
Defendant made his first appearance in Calaveras County for
arraignment on September 27, 1991. On October 4, 1991, Burt
and Lew filed a motion requesting appointment as counsel. The
court denied the request due to concerns regarding Burt’s
availability and appointed attorneys Webster and Marovich.
Defendant subsequently spent several years attempting to get
Burt reappointed as counsel.
On January 21, 1994, the Calaveras County Superior
Court conditionally relieved Marovich and Webster pending the
appointment of new counsel after the venue transfer. After the
transfer to Orange County, on September 19, 1994, defendant
and the SFPD jointly filed a notice of conditional intent to
represent defendant and requested a hearing for “confirmation
of representation.” The pleading noted that seven of the charges
had vicinage in San Francisco, and it was “highly likely” that all
counts would ultimately be transferred to San Francisco. The
pleading included a declaration from Holmes, the Chief Deputy
Public Defender for Orange County. Holmes agreed that SFPD
should be appointed as counsel.
On September 20, SFPD sent the court a letter
enumerating its conditions for accepting appointment. SFPD
required an advanced approval of sufficient funding, a
“guarantee of the full amount of time which we will require” to
effectively represent defendant, and a “forum convenient to this
office trying the case.” SFPD suggested San Francisco as the
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appropriate forum. SFPD further explained that any tentative
agreement required approval by the SFPD, the San Francisco
Board of Supervisors, and the Mayor of the City and County of
San Francisco.
On September 28, SFPD filed a status report, noting that
they had been “making every effort to resolve administrative
and logistical issues affecting their ability to provide effective
representation” on the charges. SFPD identified three issues
that required resolution prior to appointment: the procedure for
providing compensation, the procedure for providing ancillary
defense funds pursuant to section 987.9, and an “assurance” of
at least two years to prepare for trial. SFPD requested the trial
court continue the hearing regarding representation for 30 days
to allow time to finalize the necessary arrangements.
The parties made their first appearance in Orange County
on September 30, 1994. The prosecution objected to the
continuance and requested the court appoint counsel at the
hearing. The court stated that counsel’s monthly bills had been
reviewed and paid until that point, and it did not understand
why SFPD needed another 30 days to determine payment on
ancillary funds. The court noted SFPD’s estimate that it would
need two years to prepare for trial and that new counsel would
need three years, along with SFPD’s request for a guarantee
that trial would not start for at least two years. The court found
it “absolutely unbelievable” that it would take Burt “or any other
competent defense death penalty counsel” two years to begin the
case. The court stated that “thirty days won’t help resolve these
issues” and denied the motion to continue.
The court moved on to the issue of representation.
Defense Counsel Multhaup explained that under section 987.05,
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both the defense and the prosecution had the right to present
evidence regarding the time necessary to prepare for trial, and
the court should then appoint counsel based on the ability of the
prospective defense attorneys to meet that reasonable date. The
prosecution responded that the Calaveras County court had
given Burt “a considerable amount of time” to make a reasonable
estimate of when he could be ready for the preliminary hearing,
that the defense had provided no documentation justifying why
it needed the time requested, and that new counsel would need
eight months to prepare. Multhaup requested a hearing to
determine the time required to prepare.
The court acknowledged that defendant had developed a
rapport with Burt but noted that Burt had only appeared for
defendant at one evidentiary hearing in 1991. The court stated
that the “interests of justice just can’t handle another delay of
two or more years which is required” and opined that any
competent attorney should be prepared to try the case in a
significantly shorter time. The court noted that regardless of
the amount of time required, SFPD has not consented to
appointment; consent was conditional, and the condition of
requiring a forum convenient to SFPD could not be met. The
court acknowledged that SFPD had “good reasons” for wanting
the case to be tried in San Francisco, but “that decision has been
decided adversely to their position.”
The court further noted that even if SFPD and Burt
consented to the appointment, it could be abrogated by the San
Francisco Board of Supervisors and the mayor, “so literally the
decision to accept is out of their control.” The court stated that
“it would be reasonable to assume that a political governing
body would have to take a close look at lending one of their most
experienced attorneys to another county for two to three or more
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years. They would have to look at it. There has been far too
much delay in this case, it’s time to get it moving.” The court
denied the motion and appointed OCPD.
Defendant asserts the trial court erred in several ways
when it declined to appoint Burt and SFPD as counsel: (1) the
court misinterpreted SFPD’s request to try the case in San
Francisco and abused its discretion in determining that SFPD
had not consented within the meaning of section 987.2,
subdivision (g); (2) the court ignored the requirements of section
987.05 when it appointed OCPD without conducting a hearing
as to readiness; and (3) the court failed to properly apply the
factors provided in Harris, supra, 19 Cal.3d 786. We conclude
none of these arguments are meritorious.
Section 987.2, subdivision (g), states that when an
indigent defendant is charged in one county and establishes a
relationship with the public defender and is subsequently
charged in a second county, the trial court in the second county
may appoint the public defender from the first county to
represent the defendant in both counties as long as three
conditions are met: (1) the offense charged in the second county
could be joined for trial with the offense charged in the first
county if it took place in the same county or involves evidence
which would be cross-admissible; (2) the trial court finds that
the interests of justice and economy will be best served by
unitary representation; and (3) counsel appointed in the first
county consents to the appointment.
“The appointment of counsel for indigent defendants
under section 987.2 rests within the sound discretion of the trial
court.” (People v. Horton (1995) 11 Cal.4th 1068, 1098; see
Drumgo v. Superior Court (1973) 8 Cal.3d 930, 934–935.) “An
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abuse of discretion is not demonstrated, however, simply by the
failure of a trial court to appoint a particular counsel whom the
defendant has requested and who is willing to undertake the
appointment.” (Horton, at p. 1098.)
Section 987.05 states that a trial court shall appoint an
attorney who represents, on the record, that he or she will be
ready to proceed with the preliminary hearing or trial within the
statutory time or, in unusual circumstances, by a reasonable
time as determined by the court.
Taking each of defendant’s arguments in turn, first, the
trial court did not misinterpret SFPD’s request to try the case
in San Francisco. SFPD clearly informed the trial court that it
had three terms which the office “required” prior to accepting
appointment. One of those terms was a “forum convenient to
this office trying the case.” Defendant asserts that SFPD did
not demand the trial be held in San Francisco; they merely noted
it would be most convenient, and therefore SFPD did consent to
appointment. The trial court, however, did not abuse its
discretion when it determined that SFPD was requesting a
different forum. If SFPD considered Orange County a
convenient forum to try the case, they would not have had a
reason to include that as a condition of appointment. And as the
trial court noted, the venue for the case had already been
decided and there was no expectation that it would be
transferred again.
Second, defendant cannot establish prejudice from the
trial court’s refusal to conduct a readiness hearing pursuant to
section 987.05 regarding SFPD’s request for at least two years
to prepare for trial. Defendant argues that if the court had held
a readiness hearing prior to appointing OCPD as counsel, OCPD
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would “presumably” have presented evidence in support of a
trial two years more in advance of the date of appointment, after
which the trial court “would have been forced to reconsider its
refusal to appoint [SFPD] on that basis.” Defendant’s multiple
presumptions — that OCPD would have required at least two
years to prepare for trial and that the trial court would have
thus reconsidered its ruling regarding SFPD — are simply too
speculative to establish that he was prejudiced by the court’s
denial of his request to hold a hearing.
Third, the trial court did not fail to properly apply the
factors provided in Harris, supra, 19 Cal.3d 786. In Harris, we
held the trial court abused its discretion when it refused to
appoint requested counsel for two indigent defendants. A
complaint was initially filed in the municipal court, and after
the public defender declared a conflict, the municipal court
appointed counsel requested by the defendants. (Id. at p. 789.)
After an indictment was filed in the superior court on the same
matter, the People moved to dismiss the complaint in the
municipal court. The defendants requested the same attorneys
be appointed in the superior court, but the court denied the
request and appointed alternate counsel. (Id. at p. 790.) The
appointed attorneys joined with the defendants and the original
attorneys in a request to have the original attorneys represent
them. The court declined the request, stating that it had
considered the reputations of the appointed counsel among the
local bench and bar, their experience in proceedings of similarly
serious cases, and their certifications as criminal law specialists.
On appeal, we held the trial court’s refusal to appoint the
original attorneys was an abuse of discretion. (Harris, supra, 19
Cal.3d at p. 799.) We found significant that the requested
counsel had previously represented the defendants in related
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matters, during which the attorneys had established a close
working relationship with the defendants. (Id. at pp. 797–798.)
We further held that this relationship provided counsel with an
extensive background in factual and legal matters that might
become relevant in the current proceedings. The newly
appointed attorneys had acknowledged to the trial court that it
would take substantial amounts of effort and time to attain the
necessary background already possessed by the original
attorneys. (Id. at p. 798.) We also found significant that the
appointed attorneys vigorously supported the defendants’
requests for the original attorneys to be appointed, emphasizing
their unfamiliarity with the facts and legal issues involved. (Id.
at pp. 798–799.)
In People v. Daniels (1991) 52 Cal.3d 815, “we
acknowledged that uncertainty existed on the question
whether Harris, which permits discretionary appointment of
counsel for indigent criminal defendants, was applicable to
situations where the public defender was available for
appointment. Ultimately, however, we declined to address the
question because the facts presented in Daniels were factually
distinguishable both from Harris and from the situation where
a defendant is unable to cooperate with the available public
defender.” (People v. Cole (2004) 33 Cal.4th 1158, 1186.) We
again declined to address this question in Cole, noting that the
record in that case did not demonstrate that the relationship
between the defendant and the requested counsel ever
approached the depth of the relationship between the attorneys
and defendants in Harris. (Id. at p. 1187.) We further noted
that in Cole, unlike in Harris, the appointed attorney did not
seek to withdraw or actively support the other attorney’s
appointment.
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We need not now determine whether Harris applies when
the public defender is available because regardless, the trial
court did not abuse its discretion here. Like in Cole, the record
here does not suggest that defendant and Burt had formed the
relationship that existed between the attorneys and defendants
in Harris. The defendants in Harris, a husband and wife,
requested the appointment of Leonard Weinglass and Susan
Jordan, respectively, for the proceedings in 1976. Prior to that,
Weinglass had represented Mrs. Harris between October 1975
and August 1976 in proceedings brought on by an 11-count
indictment, including numerous pretrial motions and a six-week
trial. At the time of the Harris proceedings, he represented both
defendants on appeal from the prior judgment. (Harris, supra,
19 Cal.3d at p. 757, fn. 10.) In connection with that defense, he
coordinated facts and trial strategies with eight other people
also subject to criminal proceedings for activities in connection
with the so-called Symbionese Liberation Army; representation
in the current proceedings would require familiarity with
hundreds of pages of overlapping materials and many common
witnesses. Jordan had represented Mrs. Harris in federal
proceedings and consulted with her during the previous
proceedings with Weinglass.
In the present case, Burt had represented defendant on
September 27, 1991, at defendant’s first appearance after being
extradited from Canada. His prior representation had been
terminated in 1988 when the Calaveras County Justice Court
determined it lacked jurisdiction over defendant while awaiting
extradition. There is nothing in the record to support a finding
that Burt had devised defense strategies, researched legal
issues, or interviewed witnesses. Quite the opposite, in a
declaration to the court dated October 23, 1991, Burt
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acknowledged that he had conducted only a preliminary review
of minimal discovery materials and had yet to meet with
defendant since his return to California.
It is true that here, unlike in Cole, OCPD agreed to
withdraw from representation and supported defendant’s
motion to appoint Burt and SFPD. However, we find the lack of
depth in the relationship between SFPD and defendant to be
more significant here, and notably, unlike in Harris and in Cole,
SFPD did not fully consent to appointment. SFPD conditioned
its acceptance as counsel on specific terms that the trial court
could not meet; neither counsel in Harris, nor in Cole, presented
conditions to the court when requesting appointment.
The trial court did not abuse its discretion when it denied
defendant’s request to appoint SFPD in 1994.
b. 1998 Request
Following defendant’s 26th Marsden motion in August
1997, Burt told the trial court that his office was available to
accept appointment “depending upon the circumstances of
appointment and specifically issues of where the case gets tried
and when it gets tried and issues such as funding.” On October
10, the court agreed to appoint Burt as cocounsel if Burt and the
presiding judge could agree on Burt’s compensation. To
accommodate Burt’s schedule, the court set a trial date of
September 1, 1998. On January 16, 1998, Burt told the trial
court that “there has been discussion, various proposals, counter
proposals . . . we are at a point where I don’t think there is going
to be a resolution of this issue. I believe I have made my best
proposal. That has been rejected, and I don’t think there is any
further room to move at this point.” The court had offered to
pay Burt a salary, but he insisted on hourly compensation.
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On March 20, 1998, Burt told the trial court that he was
willing to pursue the option of replacing Kelley as lead counsel.
The court pointed out that it had previously been willing to
appoint Burt but that the financial arrangement did not work
out. Burt told the court that when they had previously discussed
his appointment, the plan was for him to join the existing team
with Kelley as lead counsel, and he would assist defendant and
Kelley in resolving their problems. When he previously told the
court that the financial arrangement did not work out, he also
believed “that the larger problem” was joining an existing team,
and he wanted to be lead counsel with a new team. Burt
explained that he was now willing to replace Kelley and keep
the rest of the OCPD team in place.
Burt noted that such an appointment would require
additional conversations with another judge about
compensation. Burt further stated that if he replaced Kelley, he
did not believe he would be ready by the trial date of September
1. He asked for the opportunity to take some time and then
report back to the court if he could be ready by September 1.
The prosecution did not oppose the appointment of Burt
but opposed a further delay in trial. She acknowledged that
defendant’s lack of cooperation made preparation difficult for
his attorneys but opined that the prosecution “should not be
penalized by delay of the trial.” In response, Burt explained that
he had not been connected to the case since 1991, and he needed
to review more than 100,000 pages of discovery. The court told
Burt that it was “not going to play that game,” and Burt should
not accept appointment unless he could be ready by September.
Burt replied that he could not commit to the September 1 trial
date without taking additional time to consider its feasibility.
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The court noted that Burt was still representing defendant
on separate San Francisco charges, which “has to include every
bit of what is going on” in Orange County. The court was,
therefore, surprised that Burt said he had not been involved in
the case since 1991. The court continued, “If you can make a
good faith representation that you could be ready, again
understanding that things do change, but a good faith
representation that you could be ready by September 1, fine;
come aboard. But just to get another delay, that won’t work.”
The court pointed out that it had “tried very hard” to have Burt
join defendant’s team, and it had previously set a trial date of
September 1 per Burt’s request. Burt declined to meet with the
presiding judge to discuss compensation, and the case proceeded
with Kelley as lead counsel.
Defendant contends the trial court’s refusal to appoint
Burt was “arbitrary on its face, and contrary to the spirit of
Penal Code section 987.05.” Defendant does not assert the trial
court actually committed legal error when it declined to appoint
Burt as counsel. To the extent we construe defendant’s claim as
one asserting error, we conclude the trial court did not abuse its
discretion. Burt had been seriously considering appointment for
several months prior to March 1998, and thus had ample time
to determine if he could be ready by September 1. When he
requested more time to decide, he did not provide the trial court
with a set date for when he would know if he could proceed, nor
did he provide the court with an estimate for how long a review
of the case would take. The trial court was not obligated to
provide Burt with more time, and defendant does not cite any
law suggesting otherwise. As the court explained at length on
the record, the court did not want to delay the case any further
and did not understand why Burt did not have enough
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information about the case to make a determination regarding
timing; when the court expressed confusion on this, Burt did not
offer an explanation. Additionally, Burt would not consent to
appointment on the date of the hearing. The trial court did not
abuse its discretion in refusing to appoint him as counsel.
B. Venue Change Proceedings
Proceedings in this case began in Calaveras County before
they were moved to Orange County, following a venue change
motion. Defendant contends the trial court made multiple
erroneous rulings and engaged in misconduct during venue-
related proceedings in both counties. He further contends the
trial court erroneously failed to transfer six counts from Orange
County to the City and County of San Francisco.
1. Procedural History
On April 24, 1991, while the case was still in the Calaveras
County Justice Court, defendant filed a motion to exclude the
public from the preliminary hearing. At a hearing on the
motion, defendant presented evidence that an “unusually high”
percentage of the public in Calaveras and Contra Costa
Counties had already prejudged defendant, as compared to
other high-profile cases.
In July 1993, defendant filed a motion to dismiss the
information pursuant to section 995, in which he argued that
Calaveras County lacked territorial jurisdiction over counts 2
through 7 — the Dubses, Cosner, Peranteau, and Gerald
murders — and instead, San Francisco was the proper venue.
Defendant further argued that trying those charges in
Calaveras County would violate his right to a jury drawn from
the vicinage where the crimes occurred, but a trial in San
Francisco would satisfy that requirement. The prosecution
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argued that Calaveras County did have territorial jurisdiction
and that the vicinage issue was unripe because defendant had
indicated he would waive vicinage by moving for a venue
change.
On December 8, 1993, the Calaveras County Superior
Court judge who had been overseeing proceedings recused
himself from the case. The presiding judge of the Calaveras
County Superior Court, who had previously been disqualified
from the case, asked the Judicial Council to assign a new judge.
In a letter to the Judicial Council, the prosecution stated that
all parties assumed venue would be transferred to another
county. The prosecution expressed a preference for Southern
California because of a reduced amount of publicity surrounding
the case. On December 30, 1993, the Judicial Council assigned
Judge Donald McCartin, a retired judge from Orange County, to
the case.
Judge McCartin held a status conference on January 21,
1994. Several issues were pending at the time, including
defendant’s motion to discharge Webster and Marovich, his
court-appointed attorneys, and replace them with Burt and
Lew. Webster and Marovich had also filed a motion to withdraw
from the case. At the hearing, defense counsel explained that
both parties stipulated that venue would be transferred out of
Calaveras County and that a change of venue was “a necessity.”
The prosecution agreed that a change of venue was needed but
did not believe that the City and County of San Francisco “has
any more right to the case than any other county in the state.”
The prosecution also noted that when the defense moved to close
the preliminary hearing, they presented opinion surveys done in
Contra Costa County, and defense experts testified that
defendant could not receive a fair trial in Contra Costa County.
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The prosecutor argued that San Francisco received the same
media as Contra Costa.
Judge McCartin stated that he wanted to take care of the
Marsden matter first. He indicated that it was appropriate to
grant the Marsden motion but wanted to wait to appoint new
counsel until the new venue had been selected. He opined that
wherever the case was assigned, it would be in a county large
enough to have qualified death penalty attorneys to handle the
case.
Defense counsel asked the court to address the vicinage
issue before venue, because if vicinage belonged in San
Francisco, it could affect the decision regarding venue. The
prosecution asked the court to rule on venue first. Judge
McCartin suggested the parties first stipulate to a venue
change, then refer the matter to the Judicial Council to select a
venue, and then raise any vicinage concerns after the case had
been transferred. He noted that publicity might be a concern in
San Francisco, but he had not read anything about the case in
Los Angeles or Orange Counties. Defense counsel agreed to
transfer the matter to the Judicial Council for a venue change
but stressed that any stipulation to a venue transfer would not
waive the vicinage issue. Judge McCartin told the parties to
submit documents for the court to forward to the Judicial
Council. Judge McCartin conditionally relieved defense counsel
pending the appointment of new counsel after the venue
transfer.
The parties stipulated to having the change of venue
matter referred to the Judicial Council. Defense counsel again
clarified that defendant reserved the right to challenge vicinage
for counts 2 through 7. Judge McCartin told the parties that
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they could submit additional materials to the court to be
forwarded to the Judicial Council for consideration.
Six days later, on January 27, Judge McCartin issued a
supplemental minute order informing the parties that he had
been mistaken about the procedure for changing the venue. He
explained that the Judicial Council would identify which
counties would accept the case, after which the court would
conduct an evidentiary hearing pursuant to McGown v. Superior
Court (1977) 75 Cal.App.3d 648 (McGown) to select a new
venue.9 Judge McCartin reappointed defense counsel to
represent defendant at the McGown hearing.
Both parties submitted letters to the court, to forward to
the Judicial Council, explaining their positions on venue and
vicinage. On February 1, 1994, the court forwarded to the
Judicial Council a set of relevant documents, including the
letters submitted by the parties.
On March 3, 1994, the Judicial Council informed the court
that Orange County and Sacramento County were willing to
accept the case. John Toker, an attorney for the Judicial
Council, explained that he had contacted the San Francisco
Superior Court, and they were not willing to accept the case. A
few days later, Toker sent a letter to the court stating that his
office received the documents sent by the parties in early
February, but they had been misplaced and he did not receive
9
McGown, supra, 75 Cal.App.3d 648 held that after a
motion to change venue is granted, the court must hold an
evidentiary hearing before determining where the case should
be transferred. (Id at p. 652.) Especially when the parties
disagree as to where the case should be transferred, a hearing
allows the court to resolve any factual issues contested by the
parties. (Ibid.)
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them until March 4. Toker explained, however, that the Judicial
Council’s role in the venue change matter was “ministerial,” and
it would not review any papers submitted “for legal or judicial
purposes.” Rather, the Judicial Council would rely on
information from the court based on its own review of any
pertinent evidence.
The court set a McGown hearing for April 8, 1994.
Because Judge McCartin was from Orange County, one of the
possible trial sites, the Judicial Council assigned a retired judge
from Siskiyou County to preside over the McGown hearing.
On March 14, 1994, defendant filed a motion requesting
the appointment of the SFPD — specifically, Burt — for the
limited purpose of the McGown hearing. The court denied the
motion, stating that Burt could seek appointment as counsel
after the selection of a new venue and transfer of the case. The
court acknowledged Toker’s note that the Judicial Council
would not consider the parties’ letters and explained that it had
“specifically advised” Toker that defendant requested San
Francisco while the prosecution preferred Southern California.
The court said that it had spoken with Toker, who had indicated
he was having difficulty finding counties that would accept the
case and that “San Francisco County specifically refused and
stated it cannot handle this particular case under any
circumstances.” The court concluded that it “has been obvious
from the beginning, and both parties have repeatedly stated,
that trial cannot be conducted in Calaveras County, and the
defendant’s statement that he cannot accept a choice of counties
that does not include San Francisco as a possible trial site is
beyond the power of this court to attempt to remedy.”
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On April 5, 1994, defendant filed a motion attempting to
revoke his agreement to have counts 2 through 7 transferred to
an alternate county unless that county was San Francisco. He
argued that those counts had vicinage in San Francisco and
must be tried there under the federal Constitution, and the
remaining counts should be tried in San Francisco as well to
further the interests of justice. He acknowledged that he had
previously agreed to have all the counts transferred to the
Judicial Council for assignment but asserted this was only on
the condition that he could submit materials for the Judicial
Council to consider.
That same day, defense counsel filed a motion for a
hearing “to correct miscommunications” regarding San
Francisco’s availability and to continue the McGown hearing.
Submitted with the motion was a declaration from Defense
Counsel Margolin, in which he described a conversation he had
with Judge Raymond Arata, the presiding judge of the San
Francisco Superior Court. Judge Arata confirmed that he had
spoken with the Judicial Council regarding defendant’s case but
had not been told that there was a related pending case against
defendant in San Francisco, had not been informed that
defendant had asserted vicinage rights in San Francisco on six
counts, had not been informed that a substantial number of
witnesses were located in San Francisco, had not been told about
defendant’s desire to be represented by SFPD, and had not been
informed that the parties estimated that trial would still be two
or three years away from that date. Judge Arata further stated
that he had not categorically refused for the San Francisco
Superior Court to take on the case under any circumstance.
Two days later, Webster and Marovich filed a motion to
suspend all venue-related proceedings. They asserted that
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defense counsel never stipulated to a change of venue for counts
2 through 7 and that the January 21, 1994, minute order
incorrectly reflected that defendant had agreed to do so. They
requested the minute order be corrected and that all venue
change proceedings be suspended because no stipulation had
taken place.
The parties met again on April 8 for the McGown hearing.
Before turning to the hearing, the court addressed the venue
change agreement and asked for the prosecution’s position on
the defense motion to suspend proceedings. The prosecution
opined that the defense motion operated as a severance motion
and suggested the court exercise its discretion and sever counts
2 through 7 for the remainder of the case. The court stated that
it had reviewed all of the materials submitted and most of the
record thus far and thought the parties all did “an outstanding
job” briefing the vicinage issue, and it was prepared to rule on
the vicinage issue if the parties wanted a ruling at that time.
Defense counsel again emphasized that defendant was not
waiving any rights regarding vicinage or the ability to challenge
vicinage at any time in proceedings. After pausing the venue
discussion to address press coverage, proceedings resumed at
which time defense counsel argued their motion that Burt be
appointed for purposes of the McGown hearing. The court
reiterated that counsel would be appointed after the case was
transferred to a new venue.
Defense counsel argued that the court could send counts 2
through 7 to San Francisco based on vicinage. He asserted that
San Francisco would have to take those counts, and the SFPD
and Burt would then be appointed. Then, he argued, the county
would likely have the rest of the counts transferred to San
Francisco as well. Counsel asserted that this was their “package
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solution, which seems to cut through the heart of the matter.”
Counsel explained that Burt recently had a “once-in-a-lifetime
leave of absence” to work on a high-profile murder trial in Los
Angeles, and he would not be able to travel to Southern
California “and make a Harris pitch” on defendant’s behalf.
Webster acknowledged that defendant had four attorneys
representing him in Calaveras County and Burt present in the
courtroom, but no one was prepared to move forward with the
McGown hearing and although he and Marovich were most
familiar with the case, they did not have defendant’s
cooperation. He asked the court to appoint Burt for the limited
purpose of advising defendant on the venue change matter and
the McGown hearing. The court addressed that request,
explaining it was inclined to deny it because defendant had four
competent attorneys present for the previous venue discussions
and the case needed to move forward. The court opined that “all
the hue and cry has arisen because San Francisco didn’t end up
as one of the trial sites.”
As to the Judicial Council’s selection of counties available
to hear the case, the court explained that, according to Toker,
the Judicial Council’s sole job was to determine which counties
would not be unduly burdened by the trial. The Judicial Council
did not consider vicinage “and all these other factors,” and it was
the trial court’s responsibility to hold an evidentiary hearing to
best serve the interests of justice. The court denied defendant’s
motion to refer the matter back to the Judicial Council, noting
that the council would not consider any additional information
regardless.
The court turned to the motion to continue the McGown
hearing. When Judge McCartin asked the defense why it
needed 60 to 90 days, counsel responded that they wanted to
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determine the levels of publicity in Sacramento and Orange
Counties and wanted to determine the racial compositions of the
potential jury pool in each county. The court stated it did not
know what the publicity was like in Northern California, but in
Southern California, the publicity was “nil.” The court denied
defendant’s motion to continue the McGown hearing, subject to
reconsideration by the judge presiding over the McGown
hearing. Judge McCartin noted that the parties could submit
additional materials within 30 days of the hearing if new data
warranted submission.
The court also ruled that it was clear from the record that
defendant did not waive any vicinage claims regarding counts 2
through 7, and the prosecution was estopped from raising any
waiver arguments on those counts resulting from defendant’s
stipulation to a venue change.
Lastly, the court denied the defense’s motion to correct the
“miscommunication” regarding San Francisco’s availability.
When Judge Kleaver took the bench later that same day
for the McGown hearing, he stated that the court would not
review any decisions made by Judge McCartin that morning.
Judge Kleaver noted that all parties agreed a venue change was
necessary due to pretrial publicity in Calaveras County. Judge
Kleaver stated that under McGown, and pursuant to California
Rule of Court, former rule 842 (rule 842), he did not have the
authority to order the venue be transferred to an undesignated
county and was limited to the two options that the Judicial
Council had presented. 10
10
Former rule 842 was amended and renumbered to
California Rules of Court, rule 4.152 in 2001.
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The court stated that “there are a number of matters on
the record” between Sacramento County and Orange County,
that “would make it a rather easy conclusion which of the two is
the more suitable site for any transfer.” The court noted that
two or three Sacramento television station trucks were parked
outside the courthouse, while the record indicated that interest
in Orange County was rather minimal. Defense counsel
responded that the court did not hear any arguments as to why
Orange County was inappropriate, and it needed more time to
determine why Orange County might not be a proper venue.
The prosecution argued that, based on the record, it was not
necessary for the defense to have a pretrial survey done. He
further argued that the defense’s conclusions about what may
be found in the survey “are completely speculative” and based
on the record, the court could order a change of venue to Orange
County.
Judge Kleaver questioned the defense why nothing had
been done since January, aside from requesting funding for the
pretrial survey. Defense counsel responded that it was “not true
that nothing was done.” He explained that the defense had
“raised the issue” with the National Jury Project, applied for
funding, and done the preparatory work. Counsel found out on
March 7 that they needed to be prepared for the McGown
hearing on April 8. They had conversations with the director of
the National Jury Project and “boiled down the issues to
publicity, one; number two, prejudgment, which is a separate
issue from publicity; and number three, the demographics.” The
director told him it would take 60 to 90 days to complete the
survey, and they simply did not have enough time.
The prosecution argued that if the case would be further
delayed by appeals on the court’s ruling, “and it appears obvious
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that it is, we should have as many rulings in as possible, and the
People would ask for the venue order.” The court agreed.
Defense counsel argued that it had never actually
stipulated to a venue change for counts 2 through 7. The court
responded that it would include all counts in the transfer order.
The court denied the request to continue the hearing for the
purpose of conducting a pretrial survey, denied the request to
consider the City and County of San Francisco as being beyond
the scope of the McGown hearing and former rule 842, and
ordered all counts be transferred to Orange County.
One month later, the defense filed a motion in Calaveras
County to set aside the venue transfer agreement on January
21, 1994. On June 30, 1994, Judge Curtin with the Calaveras
County Superior Court denied the motion.
On January 13, 1995, in the Orange County Superior
Court, defendant filed a motion to have the case transferred to
San Francisco. The court denied the motion on March 24.
Two years later, on April 22, 1997, the defense filed a
motion to transfer counts 2 through 7 to San Francisco on the
ground that San Francisco had territorial vicinage to try the
counts. At a hearing on the motion, the trial court stated that
Calaveras County had vicinage for every count because there
was a high likelihood that every victim had been killed in
Calaveras County. The court denied the motion.
Defendant raised venue and vicinage challenges several
more times, including in his motion for a new trial at the
conclusion of the penalty phase.
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2. Venue Errors
Defendant contends the courts in Calaveras and Orange
Counties made multiple erroneous venue-related rulings that
deprived him of due process. As an initial matter, we conclude
that all of defendant’s claims fail based on a lack of prejudice.
Defendant’s primary goal in the trial court was not simply to
change venue, but to specifically transfer the case to San
Francisco. As defendant himself acknowledges, from the
beginning of trial site selection proceedings, he “proceeded on
the basis that if administrative or judicial authorities
considered the merits of a transfer to San Francisco, the
overwhelming array of factors favoring San Francisco would
make the result a virtual foregone conclusion.” When defendant
was proven wrong and the City and County of San Francisco
was not a viable option, he sought to delay proceedings to find a
way to have San Francisco nonetheless considered. When
proceedings were instead transferred to Orange County, he
refused to accept the trial court’s decision.
A defendant seeking a change of venue is not entitled to
choose the venue; the court makes that decision. (People v.
Cooper (1991) 53 Cal.3d 771, 804 (Cooper); former rule 842.)
When a trial court denies a defendant’s motion to change venue,
as the court did once the case moved to Orange County, “the
defendant must show both that the court erred in denying the
change of venue motion, i.e., that at the time of the motion it
was reasonably likely that a fair trial could not be had in the
current county, and that the error was prejudicial, i.e., that a
fair trial was not in fact had.” (Cooper, at pp. 805–806.) The
record does not support a finding that defendant could not
receive a fair trial in Orange County at the time he made the
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motion, nor does it support a finding that he did not ultimately
receive a fair trial.
Defendant provides statistics comparing the Chinese
American and Vietnamese American populations in Orange
County and in the City and County of San Francisco. Regardless
of the fact that an appellate court does not review information
outside of the trial record (see Haworth v. Superior Court (2010)
50 Cal.4th 372, 379, fn. 2), this information is irrelevant to the
determination of a venue between Sacramento and Orange
Counties. Defendant contends that if the case had been in the
City and County of San Francisco, his jury would have included
more Chinese Americans. He further contends that Chinese
Americans would have evaluated the evidence differently than
other jurors. These assertions, however, are impermissible
speculation. Furthermore, had the defense presented the above
statistics regarding Orange County to the trial court, the
alternative would have been Sacramento County, not San
Francisco, because San Francisco was not under consideration.
Defendant further contends that he was prejudiced
because Orange County lacked jurisdiction over his case. His
contention lacks merit. We have previously stated that “it is
beyond dispute that a change of venue may be ordered in a
criminal case under appropriate circumstances, and also beyond
dispute that any superior court to which a felony proceeding has
been transferred has subject matter jurisdiction over the
proceeding . . . .” (People v. Simon (2001) 25 Cal.4th 1082, 1097
(Simon).)
Thus, his claims fail. Nonetheless, we address each claim
in turn.
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a. Trial Site Agreement
Defendant first contends the trial court deprived him of
due process by abrogating the terms of the venue change
agreement. Specifically, he asserts that his initial consent to
refer the matter to the Judicial Council was vitiated by (1) the
Judicial Council’s refusal to consider the documents he
submitted; (2) the subsequent failure to inform him that the
Judicial Council knew the prosecution wanted the case tried in
Orange County; and (3) the failure of Judge McCartin to
recognize his revocation of consent.
Defendant likens his agreement to change venue to that of
a plea bargain and asserts that the principles of due process that
govern judicial review of plea bargains must guide review of his
“venue bargain.” An agreement to change venues, however, is
not comparable to a plea agreement. “Plea negotiations and
agreements are an accepted and ‘integral component of the
criminal justice system and essential to the expeditious and fair
administration of our courts.’ ” (People v. Segura (2008) 44
Cal.4th 921, 929.) During the process of negotiating a plea, a
defendant pleads guilty in order to obtain a reciprocal benefit
from the prosecution, generally consisting of a less severe
punishment. (Id. at p. 930.) A trial court may decide not to
approve the terms of a negotiated plea agreement. (Id. at
p. 931.)
“ ‘Several federal constitutional rights are involved in a
waiver that takes place when a plea of guilty is entered in a state
criminal trial.’ ” (People v. Farwell (2018) 5 Cal.5th 295, 299,
quoting Boykin v. Alabama (1969) 395 U.S. 238, 243.) These
rights include the right to a trial by jury, the privilege against
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self-incrimination, and the right to confrontation. (Farwell, at
p. 299.)
The agreement between the parties was not the product of
bargaining between the defense and the prosecution. Both
parties agreed that none of the counts should be tried in
Calaveras County due to pretrial publicity, and as a result, the
trial court advised the matter be referred to the Judicial Council
to select a venue. Furthermore, the agreement to transfer venue
did not require defendant to waive any constitutional rights.
The agreement did not serve as an admission of defendant’s
guilt nor did it relieve the prosecution of its burden of proof.
Defendant contends the court violated the terms of the
venue change agreement when the Judicial Council failed to
review the materials he submitted for consideration. To
compare the venue change agreement to a plea bargain would
mean that defendant agreed to change venue only on the
condition that the Judicial Council review his materials, and no
such promise was made here. The trial court told the parties to
submit materials to the court that it would forward to the
Judicial Council for review, but nothing was promised and no
bargain was made dependent on the Judicial Council’s review.
Thus, under defendant’s own analogy, his claim fails.
Defendant argues the venue change agreement was
further vitiated by the fact that at the time the parties made the
agreement, Judge McCartin knew that the Judicial Council was
aware the prosecution favored Orange County. He further
argues that the trial court affirmatively recommended Orange
County to the Judicial Council. He asserts that the court did
not disclose this information, and if it had done so, he would not
have agreed to change venue.
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Defendant cites the hearing on the defense’s motion to
withdraw the venue change stipulation as support for his
argument. At the hearing, Judge McCartin testified about his
conversation with Chris Hoffman, a secretary for the Judicial
Council’s Judicial Assignment Commission. Hoffman knew that
the prosecution preferred Southern California, and the defense
preferred San Francisco. John Toker, the Judicial Council
attorney, testified at the hearing that Hoffman told him Orange
County was available but did not direct him to push the case
toward Southern California.
The record does support a finding that the Judicial Council
knew the prosecution preferred Southern California, but
defendant ignores that the record also shows that the Judicial
Council knew that defendant preferred San Francisco. Aside
from asserting he would not have entered the agreement
otherwise, defendant does not establish what was improper
about the Judicial Council knowing each party’s preference nor
does he establish why he would not have entered the agreement
had he known.
Finally, he asserts the agreement was vitiated by Judge
McCartin’s failure to recognize defendant’s revocation of consent
after he learned that the Judicial Council would not review the
materials he had submitted. Defendant’s argument is based on
the premise that he was entitled to withdraw his consent
similarly to a defendant whose consideration was nullified
following a broken plea bargain. Because defendant’s venue
change stipulation is not equivalent to a plea bargain and his
request to revoke his consent is not equivalent to a broken plea
bargain, his claim fails.
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In any event, defendant’s argument that the venue change
agreement was vitiated ignores the basic fact that the Judicial
Council did consider San Francisco as a venue despite the lack
of materials from defendant. It also ignores that the trial court,
not the Judicial Council, was ultimately responsible for choosing
the proper venue. The Judicial Council’s role was to identify all
available counties, and that included inquiring with San
Francisco. Defendant was not misled into believing that his case
would end up in San Francisco; his only reason for believing San
Francisco would be chosen was his own insistence that the case
be tried in San Francisco, not because the prosecution, the court,
or the Judicial Council had so indicated.
b. McGown Hearing
Defendant next contends the trial court deprived him of
due process when it refused to continue the McGown hearing
and denied him the opportunity to present evidence regarding
the unsuitability of Orange County.
On January 27, 1994, six days after the parties stipulated
to a venue change, Judge McCartin informed the parties that he
had been mistaken about the procedure for changing venue. He
explained that the court would conduct an evidentiary hearing
to select a new venue after the Judicial Council reported its
findings regarding availability. The court scheduled the
McGown hearing for April 8, 1994.
On April 5, defendant filed a motion to continue the
McGown hearing. He argued he needed further proceedings to
determine the availability of San Francisco as a venue and more
time to conduct jury surveys regarding the suitability of
Sacramento and Orange Counties. Judge McCartin had
previously directed the parties to conduct the jury surveys by
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April 8, but after applying for necessary funding, defendant said
it could not reasonably have been done in the time set by the
court. The defense also asked for more time so the court could
refer the case back to the Judicial Council to again inquire
whether San Francisco would accept the case.
Judge McCartin declined to refer the case back to the
Judicial Council to reconsider San Francisco’s availability. He
stated that the factors the defense wanted the Judicial Council
to consider, such as pretrial publicity and witness hardship,
were matters for the court to consider following the McGown
hearing, not the Judicial Council. Judge McCartin asked the
defense what information it wanted to obtain through jury
polling. Counsel explained that the defense wanted to
determine the publicity and prejudgment levels in the
prospective counties and also wanted to “get an idea of the
County’s position as far as racial factors which might adversely
affect the fairness of the trial.”
Defense counsel further argued that under former rule
842, the court could transfer the case to a county that the
Judicial Council had not designated. Judge McCartin told the
parties that, based on his conversation with Toker, San
Francisco “wasn’t available, period.” According to Toker, San
Francisco had accepted another high-profile case, had a case
transferred from Contra Costa County, and had several capital
cases “coming down the lane.” Regarding a continuance to
conduct polling, Judge McCartin said that he was
knowledgeable about the media coverage in Southern California
and did not remember seeing anything about the case except for
perhaps one article. He stated that he did not know the level of
publicity in Northern California but believed that information
could be obtained within 30 days and offered the parties the
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opportunity to submit publicity information within 30 days of
the hearing. Neither party submitted additional information.
Later that afternoon at the McGown hearing, the
prosecutor argued that a continuance should be denied because
the record contained sufficient information for choosing a new
venue. He said that the case had attracted substantial publicity
in Sacramento, and the defense had previously submitted
“numerous news articles from Sacramento, as well as television
media accounts from Sacramento.” Defense counsel conceded
that there was no reason to doubt Judge McCartin’s statements
concerning the lack of publicity in Orange County and conceded
there was a high level of publicity in Sacramento. Judge
Kleaver denied the motion to continue the hearing and
transferred the case to Orange County.
Defendant contends the McGown hearing was a “sham”
and fell “woefully short” of what California law requires.
Defendant is mistaken.
At a McGown hearing to determine the proper venue to
transfer a case, “the court should consider such factual issues as
the ‘presence or absence of prejudicial publicity’ in a possible
new county, and the ‘relative hardship involved in trying the
case in various locations.’ [Citation.] The decision of where to
transfer the case lies within the discretion of the court, which
must consider the ‘interest of justice.’ ” (Cooper, supra, 53
Cal.3d at p. 804.) The record in this case included information
regarding pretrial publicity, and the court did not abuse its
discretion in considering the pretrial publicity in both
Sacramento County and Orange County. Although the parties
did not discuss any potential hardship of moving the case to
Orange County, defendant does not assert on appeal that
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counsel would have provided such information to the court if it
had more time. Nor does defendant assert that counsel would
have presented evidence of pretrial publicity that contradicted
the trial court’s understanding. Rather, defendant now argues
that he wanted a continuance to reexamine San Francisco’s
availability. However, he again ignores that the court was only
choosing between Sacramento and Orange Counties. The
Judicial Council followed a process set out by the rules of court,
and pursuant to that process, San Francisco was not an option.
Defendant thus cannot establish the court abused its discretion
when it denied his motion for a continuance. (See People v.
Rhoades (2019) 8 Cal.5th 393, 451 [a trial court’s denial of a
motion to continue is reviewed for abuse of discretion].)
c. Consideration of San Francisco
Defendant contends the trial court deprived him of due
process when it erroneously and arbitrarily interpreted former
rule 842 as prohibiting its consideration of San Francisco as a
venue at the McGown hearing.
Former rule 842 provided that after a trial court grants a
motion to change venue, “ ‘it shall advise the Administrative
Director of the Courts of the pending transfer.’ ” (Cooper, supra,
53 Cal.3d at p. 803.) “The director shall, ‘in order to expedite
judicial business and equalize the work of the judges, suggest a
court or courts that would not be unduly burdened by the trial
of the case.’ [Citation.] Thereafter, the court shall ‘transfer the
case to a proper court as it determines to be in the interest of
justice.’ ” (Id. at p. 804.) Former rule 842 is “consistent with the
purpose behind a change of venue, which is to ensure the
defendant a fair trial [citation], not to encourage forum
shopping.” (Cooper, at p. 804.)
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During the McGown hearing, Judge Kleaver
acknowledged defendant’s argument that the court was not
bound by the counties designated by the Judicial Council. The
judge disagreed, noting that if the court were permitted to send
the case to any county it wanted, there would be no need for
former rule 842 in the first place. “There would be no purpose
to [the rule]. It would, in effect, open up a McGown hearing to
57 California counties as being prospective counties to which
venue could be transferred. And I suggest that leads to
foolishness, looking at the other side of the coin.”
As Judge Kleaver noted, defendant’s argument conflicts
with the purpose of former rule 842. Moreover, San Francisco
explicitly told Toker that it could not handle defendant’s case.
Transferring the case to San Francisco would further defeat the
rule’s purpose in ensuring the chosen venue was not unduly
burdened. (See Cal. Rules of Court, rule 4.152(1) [after receiving
notice of a motion for a venue change, the Administrative
Director “must advise the transferring court which courts would
not be unduly burdened by the trial of the case”].) Forcing
defendant’s case on a county that did not want it when two
counties were readily available would not have been in the
interests of justice. Under former rule 842, once a trial court
grants a change of venue motion, it cannot transfer the case
unless the receiving county is identified as available to take the
case by the Judicial Council. The trial court’s proper
interpretation of former rule 842 to prohibit it from transferring
the case to counties not presented did not violate defendant’s
due process rights.
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d. Appointment of Counsel
Defendant asserts the trial court’s refusal to appoint Burt
as counsel prior to the McGown hearing deprived him of due
process and the effective assistance of counsel.
As previously discussed, the Calaveras County Justice
Court appointed attorneys Marovich and Webster to represent
defendant in October 1991. In January 1993, the court
appointed Margolin to represent defendant for the limited
purposes of preparing Marsden and Harris motions, and
subsequently appointed Multhaup to assist Margolin. One year
later, in January 1994, the court conditionally relieved
Marovich and Webster pending the appointment of new counsel
after the venue change. The court relieved Margolin and
Multhaup except for their work on the Harris motion.
When Judge McCartin learned that the court would need
to conduct a McGown hearing prior to changing venue, he
reappointed Margolin and Multhaup for the limited purpose of
representing defendant at the hearing. On March 14, 1994, the
defense filed a motion asking to have SFPD appointed to
represent defendant at the McGown hearing. The court denied
the motion and told the defense that Burt could seek
appointment after the transfer.
The trial court’s refusal to appoint Burt and SFPD before
the McGown hearing did not deprive defendant of due process.
Defendant contends that his case was “highly unusual because
of the interrelationship between appointment of counsel and
trial site selection,” and the court violated his due process rights
by “forcing a trial site selection without a trial attorney able to
evaluate the defense case strategy with respect to the choice of
county.” Defendant’s argument is essentially that if Burt had
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been appointed, he might have had more success in having his
case transferred to San Francisco. As previously discussed,
however, defendant has no constitutional right to the venue of
his choice. And more importantly, San Francisco was off the
table as a possible venue regardless of who represented
defendant at the McGown proceeding because San Francisco
would not accept the case.
Further, the court’s refusal did not deprive defendant of
the effective assistance of counsel. To demonstrate counsel’s
inadequacy, “the defendant must first show counsel’s
performance was deficient, in that it fell below an objective
standard of reasonableness under prevailing professional
norms. Second, the defendant must show resulting prejudice,
i.e., a reasonable probability that, but for counsel’s deficient
performance, the outcome of the proceeding would have been
different.” (People v. Mai (2013) 57 Cal.4th 986, 1009.)
Defendant does neither of these. He does not establish that
OCPD was performing inadequately and that SFPD was better
situated to handle the matter. Nor does defendant cite to any
location in the record that suggests Burt was familiar with his
case at that time; Burt had not been counsel of record in several
years. Finally, even if OCPD had rendered ineffective
assistance, defendant cannot establish prejudice. He does not
identify any incompetent acts or omissions on behalf of counsel
that, but for their performance, the outcome of the proceeding
would have been different. (See ibid.) The trial court repeatedly
told defendant that San Francisco was not an option, and a
different attorney would not have changed that.
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e. Referral Back to Judicial Council
Defendant contends the trial court deprived him of due
process when it denied his motion to set aside the venue change.
Defendant asserts that Judge McCartin made several errors
during the process of initially referring the case to the Judicial
Council, and referring the case back would have remedied these
errors.
After Judge Kleaver ordered the case be transferred to
Orange County, the defense filed a motion to set aside the venue
change agreement. Judge McCartin recused himself for
purposes of hearing that motion only and was replaced by Judge
Curtin. Judge McCartin, John Toker, and Mary Beth Todd, the
superior court clerk, testified at the hearing.
Judge McCartin testified that he primarily spoke with
Toker but he also had “an initial conversation” with Hoffman,
the Judicial Council’s Judicial Assignment Commission
secretary, about selecting a new venue. Hoffman opined it
would likely end up in Southern California because of publicity
but did not specify which county. She also acknowledged that
the defense wanted San Francisco while the prosecution wanted
Southern California because of publicity. Judge McCartin told
Hoffman that he would stay on as trial judge regardless of which
county accepted the case. Judge McCartin did not accept the
case on the belief that it would end up in Southern California.
He testified that it was “obvious” that defendant was only
interested in the case moving to San Francisco, and he
emphasized to Toker that the defense wanted the case in San
Francisco. Judge McCartin was surprised when San Francisco
was not an option and asked Toker if “he did all he could to get
it in San Francisco.”
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Toker explained that the Judicial Council could not review
the parties’ materials because they were for the court to review;
if the council reviewed them, venue change proceedings would
be before the council and not the court. Todd had asked Toker
to exclude Downtown Los Angeles, and he was not asked to
exclude any other county. When discussing what counties
should be considered, Todd told Toker that the judge would like
Orange as well as the preferred counties of the prosecution and
the defense. Toker confirmed that he spoke with someone in
San Francisco, who, after speaking with the presiding judge,
stated that they would not take defendant’s case. Toker knew
that defendant had other charges pending in San Francisco and
may have discussed that with San Francisco, but he did not
recall for certain. He confirmed that convenience of witnesses,
along with publicity, are factors “greatly considered” when
determining possible venue sites. Toker opined that most, if not
all, of the counties in Northern California would have been
affected by publicity in defendant’s case. On cross-examination,
Toker confirmed he had never been directed to try to send the
case to Orange County. San Francisco explicitly declined to take
the case, and no one from the county ever contacted him to say
they were now available to take the case.
After hearing the witness’ testimony, Judge Curtin stated
he did “not find that there was any sham” or that the matter was
intended to be sent to Southern California upon the
appointment of Judge McCartin. He found that there was no
fraud involved to induce the parties to sign a stipulation to
change venue as alleged by the defense. The court did not find
that the defense met its burden of proof in showing that the
agreement should be set aside for fraud or that the Judicial
Council acted in an inappropriate manner. Judge Curtin
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concluded that Judge McCartin and the Judicial Council acted
in good faith and defendant’s due process was not violated in the
venue change proceedings.
Defendant contends the evidence at the hearing
established that Judge McCartin sabotaged his efforts to have
the case transferred to San Francisco and instead orchestrated
a transfer to Orange County. Aside from summarizing Judge
McCartin’s testimony, defendant does not cite the record to
support his allegation of fraud.
Substantial evidence supported Judge Curtin’s finding
that Judge McCartin arranged the venue transfer agreement in
good faith, did not use fraud to induce the stipulation, and did
not know in advance where the case would be transferred.
Judge McCartin testified that he did not express a desire to the
Judicial Council for the case to go to a specific county, and Toker
testified that no one tried to steer the case toward Orange
County. Todd told Toker which counties were preferred by both
the defense and the prosecution. Toker knew the defense
wanted the case transferred to San Francisco and investigated
whether that county would be available to take the case; when
Toker revealed that San Francisco would not take the case,
Judge McCartin inquired whether enough had been done to
have the case sent to San Francisco. Although Orange County
as a possible venue did come up in conversation between Judge
McCartin and Toker, several other counties did as well.
Substantial evidence in the record supports Judge Curtin’s
finding of no wrongdoing and the subsequent denial of
defendant’s motion. The court, therefore, did not deprive
defendant of due process when it denied his motion.
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f. Counts 2 Through 7
Finally, defendant contends the court deprived him of due
process when it transferred counts 2 through 7 because he did
not stipulate to a venue change on those counts. When viewed
in its entirety, the record supports a finding that defendant
requested a venue change on all counts but maintained his right
to challenge vicinage on counts 2 through 7 after the venue
change had been decided. And, as addressed more fully below,
defendant continually raised the vicinage argument after the
venue change; the court repeatedly considered and ruled on
vicinage through the middle of trial in November 1998. The
court did not deprive defendant of his due process on this
matter.
3. Vicinage Errors
Defendant contends the transfer of counts 2 through 7 to
Orange County, as opposed to the City and County of San
Francisco, violated his right to vicinage under the state and
federal Constitutions.
While venue concerns the location where the trial is held,
vicinage concerns the area from which the jury pool is drawn.
(People v. Clark (2016) 63 Cal.4th 522, 553 (Clark).) We have
previously held that “[t]he vicinage clause of the Sixth
Amendment has not been incorporated by the Fourteenth
Amendment to apply in a state criminal trial.” (Id. at pp. 554–
555, fn. omitted; see Price v. Superior Court (2001) 25 Cal.4th
1046, 1063–1069.) We decline defendant’s invitation to revisit
this holding now.
“For vicinage rights under the state Constitution, ‘the
vicinage right implied in article I, section 16 of the California
Constitution . . . constitutes simply the right of an accused to a
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trial by an impartial jury drawn from a place bearing some
reasonable relationship to the crime in question.’ ” (Clark,
supra, 63 Cal.4th at p. 555.)
Defendant’s vicinage claim fails. When a trial court grants
a motion to change venue, the Judicial Council must notify the
transferring court which counties would not be unduly burdened
by the case. (See Cal. Rules of Court, rule 4.152(1) [after
receiving notice of a motion for a venue change, the
Administrative Director “must advise the transferring court
which courts would not be unduly burdened by the trial of the
case”].) The City and County of San Francisco explicitly told the
Judicial Council it was unavailable. As discussed, pursuant to
former rule 842, the trial court did not have the authority to
transfer the case to San Francisco once the Judicial Council
confirmed that San Francisco could not accept the case.
Defendant speculates that San Francisco might have
accepted the transfer of six counts only, but there is no reason
to think that is true. San Francisco had clearly indicated it was
unavailable to accept the case and a trial ostensibly limited to
counts 2 through 7, which concerned the Dubses, Cosner,
Peranteau, and Gerald murders, would nonetheless have
involved much of the same evidence, and similar burdens, as a
unitary trial of all the charged murders. In addition, multiple
trials in this case would have been highly inefficient. In light of
San Francisco’s inability to accept the case, defendant has not
demonstrated error based upon the purported failure to inquire
whether San Francisco would have accepted the transfer of
some rather than all of the relevant counts.
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C. Competency Hearing
Defendant contends the trial court deprived him of due
process by its adjudication of competency proceedings.
1. Procedural History
At some point prior to trial, Defense Counsel Kelley and
James Merwin filed a motion doubting defendant’s competency
pursuant to section 1368. On October 10, 1997, counsel
informed the court that it wanted to withdraw the motion. Burt,
who was still participating in the defense at that time, explained
that the motion had been focused on representation problems
that had since been resolved, and it would be premature to
proceed on the motion.
On January 16, 1998, the court held an in camera hearing
to allow defendant to argue his 27th Marsden motion. During
the hearing, Kelley explained to the court that defendant’s
refusal to cooperate with him, or any attorney who was not Burt,
led him to believe that defendant was not competent to proceed.
Merwin told the court that he and Kelley believed they had
an ethical obligation to present the section 1368 motion, but it
was over defendant’s objection. Kelley agreed that they were
“driven ethically” to declare a doubt and were “setting the whole
case up for a fall on appeal” if they did not file the motion. He
continued, “Even though [defendant] is concerned and disagrees
with us . . . we have to proceed in a 1368 hearing, and in a jury
trial hearing.”
Kelley told the court that if they moved forward with a
competency hearing, he believed defendant needed independent
counsel appointed for the proceedings. He explained that he
would need to testify regarding defendant’s lack of cooperation,
and it would be difficult for him to litigate the proceedings while
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also being a witness. Merwin believed that if independent
counsel were appointed, defendant would cooperate in the
proceedings. The court opined that his cooperation “would be a
first.” The court reminded the parties that independent counsel
had been appointed previously in a Marsden setting, and
“nothing has ever been achieved by” such an appointment.
On February 6, 1998, the trial court heard two motions
filed by the defense: a motion to appoint independent counsel
for competency proceedings, and a motion for the OCPD to
withdraw for purposes of the competency proceedings. The
court stated its belief that Kelley and Merwin did not actually
want defendant to be found incompetent but just wanted
defendant to cooperate with them. The court opined that
independent counsel could do nothing differently except ask for
more time to prepare and ultimately present the same
information that Kelley and Merwin would present. The court
denied the motion for independent counsel and OCPD’s motion
to withdraw. The trial court suspended proceedings and
appointed two mental health experts for purposes of the section
1368 hearing.
Doctors Paul Blair and Kaushal Sharma filed their reports
on March 18 and 19, 1998. On April 17, Kelley filed a
declaration explaining that defendant had refused to meet with
three defense experts retained for purposes of the competency
proceedings “without the approval of Michael Burt.” As a result,
Kelley explained, the defense was unable to submit evidence
regarding defendant’s “obsession” with Burt and that defendant
was suffering from the effects of isolation.
At a hearing on April 20, 1998, the defense submitted
without argument, relying on the reports of Drs. Blair and
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Sharma, declarations from Kelley and Merwin, and a
declaration from Dr. Seawright Anderson, a psychiatrist who
had also evaluated defendant and opined in a two-page
declaration that he was mentally incompetent. The prosecution
submitted on the reports of Drs. Blair and Sharma.
The court stated that Dr. Anderson was the only expert
who believed defendant had a mental disorder. Dr. Anderson
had opined that defendant had bipolar disorder, a mixed history
of major depression, recurrent episodes, and associated
obsessive-compulsive disorder. He further opined that
defendant’s problems would disappear if Burt were appointed,
and if Burt was not appointed, defendant may become psychotic.
In his report, Dr. Blair found defendant to be competent,
but the court acknowledged that Dr. Blair “probably didn’t get a
real good shot at evaluating [defendant] because [defendant]
controlled the nature of the discussion and limited what Dr.
Blair could get in to.” Dr. Sharma was able to examine
defendant twice, and the court found his report to be “the most
telling.” Dr. Sharma concluded “with a strong level of
confidence” that defendant was competent, and his lack of
cooperation with counsel did not stem from mental illness. Dr.
Sharma acknowledged that defendant was “obsessed” with Burt
and wanted Burt as his attorney, but did not indicate that
defendant provided any specific details as to why he was not
pleased with the representation received from Kelley and
Merwin. Defendant simply kept repeating that he would not
accept any lawyer other than Burt as his attorney.
The court found defendant was not mentally incompetent,
did not have a mental disorder, and was capable of assisting
counsel in a meaningful way if he chose to do so. Two weeks
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later, defendant accused his attorneys of using the competency
proceedings to “intimidate” him so he would not disclose
privileged attorney-client communications. On May 15,
defendant made another Faretta motion which the court
subsequently granted.
On June 11, 1998, defendant requested funding to employ
Dr. Nievod to evaluate his mental state. The court approved the
request.
On August 19, 1998, while defendant still represented
himself, he filed a motion for a new competency trial and for the
appointment of separate counsel for the proceeding. Defendant
argued he was incompetent to proceed and relied on Dr. Nievod’s
accompanying declaration. Dr. Nievod explained that he had
interviewed defendant in 1994 and 1996, as well as four times
the previous month. He opined that defendant suffered from
dependent personality disorder, anxiety, and depression, and
that his conditions had deteriorated from previous levels. Dr.
Nievod believed that defendant’s rejection of Kelley was the
product of his mental condition.
At a hearing on the motion on August 21, defendant
argued that the prior competency hearing was “flawed” because
Kelley “didn’t give certain information” to the mental health
experts. He also argued that circumstances had changed in the
prior four months, and he was no longer competent to proceed.
The trial court denied the request for a second competency
hearing. The court repeatedly told defendant that nothing had
changed; defendant only wanted Burt to represent him and the
only purpose of the renewed section 1368 motion was to try to
have Burt appointed as counsel and to delay proceedings.
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On October 8, 1998, after jury selection had begun, Kelley,
who had since been reappointed, moved for a renewed
competency trial. In support, Kelley cited a “recent report” from
Dr. Nievod that had been filed with the court in August. Kelley
argued that Dr. Nievod’s declaration analyzed and explained
defendant’s mental state in much greater detail than Dr.
Anderson had, which constituted a “significant change” in
defendant’s condition. The trial court responded that the report
did not present anything new, and “if you read between the
lines, it is just telling us all that [defendant] on purpose will not
cooperate with you and that is not a mental illness.” The court
denied the motion and stated it had “no doubt, no question at
all” that defendant was competent to proceed.
2. Refusal To Appoint Independent Counsel
Defendant raises two claims related to the trial court’s
adjudication of his competency. First, he contends the trial
court erred when it refused to appoint independent counsel for
the April 1998 competency hearing. He argues that Kelley
framed the issue in terms of defendant being incompetent
because of his obsession with Burt. He asserts that independent
counsel “could have framed the issue in a distinctly different
manner” that reflected defendant’s position: specifically, that
defendant and Kelley “had reached an irremediable breakdown
in their relationship, likely attributable to personality traits and
conduct on both their parts, but that the breakdown was
independent of [defendant’s] preference for Michael Burt.”
Defendant asserts the disagreement between Kelley and himself
created a conflict of interest.
“A criminal defendant is guaranteed the right to the
assistance of counsel by the Sixth Amendment to the United
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States Constitution and article I, section 15 of the California
Constitution. This constitutional right includes the correlative
right to representation free from any conflict of interest that
undermines counsel’s loyalty to his or her client. [Citations.] ‘It
has long been held that under both Constitutions, a defendant
is deprived of his or her constitutional right to the assistance of
counsel in certain circumstances when, despite the physical
presence of a defense attorney at trial, that attorney labored
under a conflict of interest that compromised his or her loyalty
to the defendant.’ [Citation.] ‘As a general proposition, such
conflicts “embrace all situations in which an attorney’s loyalty
to, or efforts on behalf of, a client are threatened by his
responsibilities to another client or a third person or his own
interests.” ’ ” (People v. Doolin (2009) 45 Cal.4th 390, 417
(Doolin).)
“Under the federal Constitution, prejudice is presumed
when counsel suffers from an actual conflict of
interest. [Citation.] This presumption arises, however, ‘only if
the defendant demonstrates that counsel “actively represented
conflicting interests” and that “an actual conflict of interest
adversely affected his lawyer’s performance.” ’ (Strickland v.
Washington (1984) 466 U.S. 668, 692 . . . .) An actual conflict of
interest means ‘a conflict that affected counsel’s performance —
as opposed to a mere theoretical division of loyalties.’ [Citation.]
Under the federal precedents, which we have also applied to
claims of conflict of interest under the California Constitution,
a defendant is required to show that counsel performed
deficiently and a reasonable probability exists that, but
for counsel’s deficiencies, the result of the proceeding would
have been different.” (People v. Gonzales and Soliz (2011) 52
Cal.4th 254, 309–310 [citation omitted].)
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The decision to grant or deny a motion to discharge
appointed counsel is left to the discretion of the trial judge.
(People v. Jones (2003) 29 Cal.4th 1229, 1245; see People v. Clark
(2011) 52 Cal.4th 856, 917 [a trial court is not required to
appoint independent counsel to assist a defendant in preparing
a Marsden motion but has the discretion whether to do so].) A
trial court may, but is not required to, appoint independent
counsel when the defendant and defense counsel disagree on the
defendant’s competency. (People v. Blacksher (2011) 52 Cal.4th
769, 853 (Blacksher).)
To succeed on his claim, defendant must establish an
actual conflict, deficient performance, and prejudice. Defendant
can demonstrate none of these. Defendant argues Kelley had a
conflict of interest because he refused to acknowledge his own
role in the breakdown of their relationship. Regardless of
whether Kelley played a role in the alleged breakdown of their
relationship, Kelley did not have a personal interest in having
defendant found incompetent. Further, “counsel does not act
against a defendant’s interest in pursuing a finding of
incompetency even if it is against the defendant’s wishes.”
(Blacksher, supra, 52 Cal.4th at p. 853.) There was no conflict
of interest between defendant and Kelley.
There was likewise no deficient performance. When a
conflict of interest causes an attorney to not do something, we
examine the record to determine whether the omitted
arguments would likely have been made by counsel who did not
have a conflict of interest. (People v. Rices (2017) 4 Cal.5th 49,
65.) We further determine whether counsel may have had a
tactical reason, other than the asserted conflict, that might have
caused any omission. (Ibid.) The record does not support a
conclusion that independent counsel would have presented
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different arguments. As the trial court noted when it denied
defendant’s request, independent counsel would not have
presented any new information that Kelley had not presented
already, and defendant did not indicate otherwise to the court.
The trial court did not abuse its discretion in denying
defendant’s motion for independent counsel.
Finally, defendant cannot establish prejudice. He
contends that Kelley argued defendant’s obsession with Burt
rendered him incompetent to proceed, but independent counsel
would have presented the argument that Kelley was equally to
blame for a breakdown in their relationship. Defendant argues
that independent counsel would have done a better job
presenting his position of competency to the court, but he
ignores the fact that the outcome of the competency proceedings
resulted in what defendant wanted: a finding of competency.
Defendant presents no evidence to establish that having Burt
represent him, and thus having evidence presented that Kelley
was to blame for the breakdown in their relationship, would
have made it more likely that he would have been found
incompetent. Further, he does not explain with any specificity
what evidence he would have wanted presented but for the fact
that Kelley purportedly contributed to the breakdown in the
relationship. Defendant can establish neither a conflict of
interest from Kelley, nor any prejudice resulting from an
asserted conflict.
3. Renewed Competency Hearings in August and
October 1998
Secondly, defendant contends the trial court abused its
discretion when it refused to order a renewed competency
hearing in August 1998. Defendant contends the court again
abused its discretion when it declined to order a renewed
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competency hearing in October 1998, following the guilt phase,
based on Dr. Nievod’s August declaration. Defendant again
asserts the more recent psychological evaluations provided
sufficient basis to require further competency proceedings.
“ ‘ “When a competency hearing has already been held and
defendant has been found competent to stand trial . . . . a trial
court need not suspend proceedings to conduct a second
competency hearing unless it ‘is presented with a substantial
change of circumstances or with new evidence’ casting a serious
doubt on the validity of that finding.” ’ ” (People v.
Lawley (2002) 27 Cal.4th 102, 136.) “A trial court may
appropriately take into account its own observations in
determining whether the defendant’s mental state has
significantly changed during the course of trial.” (Ibid.) We
review a trial court’s determination concerning whether a new
competency hearing must be held for substantial evidence.
(People v. Huggins (2006) 38 Cal.4th 175, 220.)
Defendant failed to show a substantial change in
circumstances when he submitted Dr. Nievod’s declaration on
August 19, 1998. Dr. Nievod had interviewed defendant in 1993,
1994, 1996, and in July 1998. Dr. Nievod did not interview
defendant between 1996 and July 1998. Because he did not
evaluate defendant before the competency hearing in April
1998, he could not speak to how defendant’s circumstances had
changed between the previous competency hearing and the
request for a new one. Moreover, although Dr. Nievod did opine
that defendant’s conditions had “deteriorated markedly from
previous levels,” he also stated that when comparing his 1998
findings with his 1994 and 1996 findings, the test results and
results of his clinical interviews “have been consistent
throughout.” Furthermore, he did not interview defendant at
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the same time as Drs. Sharma and Blair before the April
competency hearing. Dr. Nievod, therefore, could not actually
speak to whether defendant’s condition had deteriorated during
the relevant time period, i.e., in the months since the
competency hearing in April 1998, thus warranting the need for
a renewed hearing.
For the same reasons, the court did not err when it denied
defendant’s request for a renewed competency hearing in
October 1998.
D. Use of Restraints
Defendant contends the trial court deprived him of due
process when it subjected him to physical constraints.
Defendant first appeared in Orange County Superior
Court on September 30, 1994. He wore a stun belt, a waist
chain, and ankle chains. His right hand was released from the
waist chain upon arrival to the courtroom to allow him to write.
The court ordered the ankle chains to be removed and suggested
a future hearing to determine whether the stun belt was
necessary. At a hearing on October 21, 1994, defense counsel
indicated that defendant’s restraints “have been somewhat
reduced” and he was not wearing the stun belt.
On April 22, 1997, the defense filed a motion to remove all
restraints from defendant. At a hearing on the motion, Burt and
Marovich testified that they had never seen defendant create a
disturbance in the courtroom or in custody. Marovich testified
that defendant appeared preoccupied with his restraints and
had trouble focusing on proceedings.
The court took a recess to review the documents submitted
by both parties. When proceedings resumed, Kelley explained
that defendant’s waist chain was “causing him some pretty
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grave discomfort” and “cutting into his waist.” The court asked
to see the restraints and acknowledged that defendant was in
discomfort. Deputy County Counsel James Turner, on behalf of
the sheriff’s department, stated that a stun belt was an
alternative option if the court did not want to keep defendant
shackled. The court opined that the belt was a viable option.
Kelley objected, arguing that the prosecution did not meet its
burden of showing a manifest need for defendant to be
restrained in any manner. Kelley noted that defendant had
been in court for 12 years without incident. The court responded
that defendant had been restrained at every appearance and
therefore an incident was “highly unlikely.” The court
continued, “Now, I’m not saying there is no risk. I just think
that the risk is not as high as the People would want me to find,
and certainly not as low as you want me to find.”
The prosecution argued that defendant “is not one that
would do an outburst in the courtroom. The concern is whether
or not he poses an escape threat.” The prosecution explained
that defendant had been found with an item that could be used
as a handcuff key on multiple occasions while in custody. The
prosecution argued it was also relevant that when defendant
was arrested in Canada for shoplifting, he “went to pretty
desperate measures” to escape by pulling a gun on the security
guards.
The court stated, “There are an awful lot of people very
concerned about [defendant] and escapes, and there has to be
some reason for that. . . . He has been found with contraband
relevant to a possible escape. Now, I can’t ignore that. And right
now I find there is a manifest need. If you can produce evidence
to show that there isn’t any, fine. But I don’t see why the belt,
which is available and effective, and I don’t think is
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uncomfortable as you are making it sound, I don’t see why it is
not an effective restraint, and not visible to anybody.” The court
acknowledged it did not want defendant shackled unless
necessary and believed the belt would be effective. The court
denied defendant’s motion.
On October 14, 1998, after jury selection commenced,
defendant filed a motion to have the stun belt removed. At a
hearing on the motion on October 23, psychiatrist Stuart
Grassian testified that defendant “becomes very preoccupied”
with the belt when sitting in court. Dr. Grassian explained that
defendant has “a tendency towards obsessional thinking,” and
once he gets a thought in his mind, it becomes extremely difficult
for him to focus on anything else. He further explained that
when the stimulus or thought is “noxious, upsetting,
unpleasant,” defendant’s ability to shift his attention away from
the stimulus is extremely difficult. Dr. Grassian testified that
when defendant wears the stun belt he feels “an enormous sense
of shame, of degradation of already being condemned as
dangerous and bad.” On cross-examination, Dr. Grassian
admitted that before the hearing, he had not had the
opportunity to observe defendant in court.
In a written ruling, the court denied the motion. The court
found that Dr. Grassian’s opinion was inconsistent with its
observations of defendant, and Dr. Grassian failed to
distinguish between restraint by chains and restraint by a
hidden stun belt. The court stated that the evidence from the
1997 hearing supported the need for a stun belt: defendant’s
escape from military custody in Hawaii; his flight to Canada
after Lake’s arrest; his fight with Canadian security guards who
tried to arrest him for shoplifting; the fact that he shot one of
the guards during the struggle; and it appeared defendant was
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proficient in martial arts. Further, when defendant was
imprisoned in Canada, he discussed escaping with Laberge and
discussed “busting another inmate out” after defendant was
released. Finally, a coworker at the moving company saw
defendant climb an elevator shaft. The court noted that these
“are some of the reasons” why the court believed defendant
should remain restrained.
“In general, the ‘court has broad power to maintain
courtroom security and orderly proceedings’ [citation], and its
decisions on these matters are reviewed for abuse of discretion.
[Citation.] However, the court’s discretion to impose physical
restraints is constrained by constitutional principles. Under
California law, ‘a defendant cannot be subjected to physical
restraints of any kind in the courtroom while in the jury’s
presence, unless there is a showing of a manifest need for such
restraints.’ [Citation.] Similarly, the federal ‘Constitution
forbids the use of visible shackles . . . unless that use is “justified
by an essential state interest” — such as the interest in
courtroom security — specific to the defendant on trial.’
[Citation.] We have held that these principles also apply to the
use of an electronic ‘stun belt,’ even if this device is not visible
to the jury.” (People v. Lomax (2010) 49 Cal.4th 530, 558–559
(Lomax).)
“ ‘In deciding whether restraints are justified, the trial
court may “take into account the factors that courts have
traditionally relied on in gauging potential security problems
and the risk of escape at trial.” [Citation.] These factors include
evidence establishing that a defendant poses a safety risk, a
flight risk, or is likely to disrupt the proceedings or otherwise
engage in nonconforming behavior.’ [Citation.] Although the
court need not hold a formal hearing before imposing restraints,
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‘the record must show the court based its determination on facts,
not rumor and innuendo.’ [Citation.] The imposition of physical
restraints without evidence of violence, a threat of violence, or
other nonconforming conduct is an abuse of discretion.” (Lomax,
supra, 49 Cal.4th at p. 559.)
The trial court did not abuse its discretion when it ordered
defendant to wear the stun belt in 1997 nor when it denied the
motion to remove the belt in 1998. We need not parse every
reason relied on by the prosecutor and the trial court to justify
restraints because there is enough evidence in the record to
support the court’s finding of a manifest need for restraints.
Ample evidence showed that defendant had a history of escape
or attempted escape. He had escaped from military custody in
Hawaii after he was arrested for breaking into the Marine
armory and evaded capture on the mainland for approximately
five months. While being transported from the scene following
his arrest in Canada, defendant was seen “fooling” with the
upper portion of his jeans. Officers located a handcuff key in
defendant’s pocket, and Canadian authorities concluded he was
trying to retrieve the key in order to break out of his handcuffs.
At the extradition hearing in Canada, while in a holding
facility before entering the courtroom, security personnel saw
defendant manipulating his shackles. They discovered that he
had spread the side of the handcuffs, and with more time, he
would have been able to free the locking device and break out of
his handcuffs. The police were required to replace the damaged
handcuffs with a new pair. A police sergeant testified that in 22
years of law enforcement, he had never heard of anyone
“fidgeting” with handcuffs to the point of needing to be replaced.
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At Folsom Prison, defendant secreted a metal envelope
clasp. At a hearing on the matter, the court did not determine
what purpose defendant might use the clasp for but found “the
fact that it was secreted to be a factor indicating its possible use
as for escape. That is, there is no reason to secrete something
that you do not feel is useful or something that you desire to hide
for some purpose.” A former San Quentin warden testified that
the clasp could be used as a handcuff key, and a prosecution
investigator was able to use the same kind of clasp to unlock a
pair of standard-issue handcuffs.
Finally, defendant exhibited behavior toward his handlers
that supported a need for restraints. In Canada, he would
“always brush up next to his plain clothes handlers to determine
whether or not they were armed.” In Calaveras County, a
detective observed that defendant maintained “a constant vigil
as to what’s going on around him” and would “always observe
and take in where security personnel are, what they are armed
with, and distances between himself and them.” The detective
found defendant to be “very manipulative” and that he would
attempt to get acquainted with his immediate handlers.
Canadian prison authorities replaced his handlers with new
personnel when they became too familiar with defendant, and
the Calaveras County authorities continued this practice.
Defendant argues that People v. Burnett (1980) 111
Cal.App.3d 661 compels a different conclusion, but he is
mistaken. In Burnett, the trial court ordered the defendant to
be restrained based on one escape conviction seven years prior
to the current trial. (Id. at pp. 667–669.) The appellate court
held that the trial court abused its discretion. Defendant now
argues that in his case, “all of the information” relied on by the
trial court was older than the seven-year-old information relied
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on by the court in Burnett. That case, however, is easily
distinguished from defendant’s case. The trial court in Burnett
relied on one single escape conviction; here, the trial court relied
on a sustained pattern of escape attempts pre- and postcustody.
Importantly, in this case, the trial court attributed the lack of
recent incidents from defendant to the fact that he was
continuously restrained, and therefore any escape attempt was
“highly unlikely.”
Defendant argues the trial court’s ruling nonetheless
violates People v. Mar (2002) 28 Cal.4th 1201. In Mar, we
extended previous case law regarding a manifest need
determination for visible shackles to the use of a nonvisible stun
belt. (Id. at pp. 1218–1220.) We further determined that “a
trial court must take into consideration the potential adverse
psychological consequences that may accompany the compelled
use of a stun belt and should give considerable weight to the
defendant’s perspective in determining whether traditional
security measures — such as chains or leg braces — or instead
a stun belt constitutes the less intrusive or restrictive
alternative . . . .” (Id. at p. 1228.) In cases where the trial
predated Mar, however, we have not faulted the trial court for
failing to consider the physical or psychological impacts of the
belt when making its determination. (People v. Jackson (2014)
58 Cal.4th 724, 739; see People v. Virgil (2011) 51 Cal.4th 1210,
1271; Lomax, supra, 49 Cal.4th at p. 562.)
Defendant asserts that despite his trial predating Mar,
the court still erred when it called the belt “a painless thing” and
stated that it was “not uncomfortable like the chains.” Mar,
however, states that courts should not always presume that the
stun belt is less onerous or less restrictive than traditional
security measures and instead must weigh all available options.
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(Mar, supra, 28 Cal.4th at p. 1228.) The trial court here made
no such presumptions. Defendant complained of pain from the
chains, marks they left on his waist, and his inability to write
notes while wearing them. Recognizing defendant’s discomfort
with the chains, the trial court did not abuse its discretion when
it chose the stun belt as a viable alternative. Even if our holding
in Mar applied retroactively, the court did not violate its ruling
here.
E. Extradition Testimony
Defendant contends the trial court erroneously admitted
the prior testimony of Maurice Laberge from his extradition
hearing.
1. Procedural History
On September 24, 1998, before the prosecution began
introducing evidence, the defense filed a motion to exclude the
prior testimony of Laberge, a Canadian jailhouse informant.
Laberge had testified at defendant’s extradition hearing but had
since died in an automobile accident. In its motion, the defense
argued that Laberge’s testimony was inadmissible under
Evidence Code section 1291 and that his testimony would
violate defendant’s right to cross-examine witnesses under the
Sixth Amendment. 11
11
Evidence Code section 1291 states: “(a) Evidence of former
testimony is not made inadmissible by the hearsay rule if the
declarant is unavailable as a witness and: [⁋] (1) The former
testimony is offered against a person who offered it in evidence
in his own behalf on the former occasion or against the successor
in interest of such person; or [⁋] (2) The party against whom the
former testimony is offered was a party to the action or
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In its response, the prosecution argued that it sought to
introduce a small portion of Laberge’s testimony regarding four
cartoon drawings defendant gave him and Laberge’s own
criminal record. The prosecution offered to stipulate to
admission of evidence that he had received benefits in exchange
for cooperating in this case and another case. The prosecution
argued that Laberge’s testimony was admissible under state
and federal law.
At a hearing on the motion, the court stated that the
extradition hearing appeared very similar to a preliminary
hearing. The court further stated that the cross-examination of
Laberge was “very extensive.” The court ruled the testimony
was admissible under the hearsay exception for former
testimony and that it satisfied the Sixth Amendment right to
confrontation.
At trial, Sergeant Raymond Munro with the Royal
Canadian Mounted Police read portions of Laberge’s testimony
for the jury. As previously noted, defendant and Laberge met in
1986 in a Canadian prison. They exercised together every day
for a period of four or five months. Following their meetups on
proceeding in which the testimony was given and had the right
and opportunity to cross-examine the declarant with an interest
and motive similar to that which he has at the hearing. [⁋] (b)
The admissibility of former testimony under this section is
subject to the same limitations and objections as though the
declarant were testifying at the hearing, except that former
testimony offered under this section is not subject to: [⁋] (1)
Objections to the form of the question which were not made at
the time the former testimony was given. [⁋] (2) Objections
based on competency or privilege which did not exist at the time
the former testimony was given.”
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the exercise yard, defendant would give Laberge cartoons
related to their discussions. Laberge testified about four
cartoons and the discussions he had with defendant regarding
each cartoon.
One of the cartoons that defendant gave Laberge depicted
a scene from the M Ladies video. Defendant told Laberge that
he was “very worried” about a videotape that police found
involving Allen and O’Connor. Defendant said that in the
videotape, one of the women complained about being warm, so
he used a butterfly knife to cut her T-shirt. Defendant told
Laberge that at one point while filming Allen, he stopped and
made some food and then returned to see Lake “carrying on”
with her. Defendant gave Laberge a cartoon of Lake holding a
whip in his right hand, standing over a woman who was naked
and bound on top of a table in front of Lake. The woman is
saying, “Ouch!” Lake is fondling himself with his left hand while
saying, “Oh, I love you, Kathi, I really do.” Defendant is
standing behind a video camera while eating, and saying, “Rice
is ready! Dinner time!” A handwriting expert confirmed that
defendant had written the words on the cartoon.
Another cartoon that defendant drew bore the words
“Calaveras County Remains Claiming Section.” The cartoon
featured a man labeled Boyd Stephens, who was a coroner
involved in the investigation, handing a large bag bearing the
name “Dubs” to another man. The coroner says, “[A]nd this bag
I think is yours.” On a table is another bag labeled “Bond.” A
lady dressed in mourning is leaving the room carrying a small
bag labeled “Allen.” A handwriting expert confirmed that
defendant wrote the words on the cartoon.
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Defendant gave Laberge a cartoon featuring two men, one
labeled “Lake” and the other labeled “Slant,” Laberge’s
nickname for defendant. The two men are carrying a person on
a stretcher between them; “zzzz” is written above the person.
Next to this drawing, the two men are shown holding the
stretcher above a fire. Next to that, the body is shown burning
in the fire with the words “Ah! You mother fuckers!” above the
fire. Lake is shown laughing while defendant leans against the
stretcher, watching the fire. Defendant gave Laberge this
cartoon after discussing the procedure that he and Lake used to
kill and burn their victims. A handwriting expert again
confirmed that defendant wrote the words on the cartoon.
The final cartoon that Laberge described was labeled “San
Quentin . . . Years Later.” In the cartoon, defendant is sitting
on a bed in a prison cell. The words “no kill no thrill!” and “no
gun no fun” are written on the wall behind him. Pictures of the
victims are taped on the wall next to him. One picture, labeled
“Bond’s,” showed a man, woman, and baby. Another picture,
labeled “Dubs,” also showed a man, woman, and baby. Pictures
of individuals were labeled “Carroll,” “Cosner,” “Pearenteau
[sic],” “Gerald,” and “Allen.” Defendant drew this cartoon to
demonstrate what his life would be like once he was extradited
to the United States. The words were confirmed to be written
by defendant.
Sergeant Munro testified that after the extradition
hearing, Laberge was placed in a witness protection program.
As part of the program, he received $36,000 in Canadian dollars.
His participation in the program was based on his assistance in
defendant’s case and in an unrelated murder investigation. The
prosecutor in the unrelated investigation requested Laberge be
placed in witness protection.
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Sergeant Munro testified that Laberge had 42 prior
convictions. When he testified at the extradition hearing,
Laberge was serving a 25-year sentence for two counts of armed
robbery, two counts of kidnapping, and the use of a firearm to
commit an indictable offense.
Defendant raises three arguments regarding the
admission of Laberge’s prior testimony. First, he contends
Laberge’s testimony from the extradition hearing did not qualify
as a hearsay exception because Evidence Code section 1291 does
not encompass testimony given in a foreign country. Second, he
contends that Laberge’s testimony was inadmissible as former
testimony because the extradition hearing served a manifestly
different purpose than the trial. Finally, he contends that
Laberge’s testimony violated his Sixth Amendment right to
confront witnesses.
2. Foreign Testimony Under Evidence Code Section
1291
Defendant first argues that Laberge’s testimony was
inadmissible because Evidence Code section 1291 does not
encompass testimony given in a foreign country. As discussed
below, his claim has no merit.
Hearsay is “evidence of a statement that was made other
than by a witness while testifying at the hearing and that is
offered to prove the truth of the matter stated.” (Evid. Code,
§ 1200, subd. (a).) Hearsay is inadmissible unless it falls under
an exception. (Id., subd. (b).) Evidence Code section 1291
provides one such exception by allowing the admission of former
testimony if the declarant is unavailable, the party against
whom the evidence is offered was a party in the prior
proceeding, and that party had the opportunity to cross-examine
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the declarant with an interest and motive similar to that of the
trial. (Id., subd. (a).) When these requirements are met, the
admission of former testimony does not violate a defendant’s
constitutional right of confrontation. (People v. Herrera (2010)
49 Cal.4th 613, 621.)
“ ‘Former testimony’ ” is defined in section 1290 of the
Evidence Code as testimony given under oath in “[a]nother
action or in a former hearing or trial of the same action,” or a
“proceeding to determine a controversy conducted by or under
the supervision of an agency that has the power to determine
such a controversy and is an agency of the United States or a
public entity in the United States,” or a “deposition taken in
compliance with law in another action,” or an “arbitration
proceeding if the evidence of such former testimony is a
verbatim transcript thereof.” (Id., subds. (a)–(d).) Evidence
Code section 105 states that the term action “includes a civil
action and a criminal action.”
Defendant contends the trial court erred by permitting the
introduction of Laberge’s testimony under Evidence Code
section 1291 because the legislature limited the scope of that
statute to proceedings occurring only within the United States.
He asserts Evidence Code sections 1290–1292 contain no
language conveying an intent that the sections should apply to
foreign proceedings. He further asserts that extradition
hearings in a foreign country are not “actions” within the
meaning of Evidence Code section 105. We review a trial court’s
ruling on the admissibility of evidence for abuse of discretion.
(People v. Waidla (2000) 22 Cal.4th 690, 725.)
As an initial matter, we reject defendant’s argument that
an extradition hearing is not an “action” within the meaning of
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Evidence Code section 105. An “ ‘[a]ction’ includes a civil action
and a criminal action.” (Evid. Code, § 105.) This definition does
not exclude any proceeding not strictly criminal or civil.
“ ‘Includes’ is ‘ordinarily a term of enlargement rather than
limitation.’ [Citation.] The ‘statutory definition of a thing as
“including” certain things does not necessarily place thereon a
meaning limited to the inclusions.’ ” (Flanagan v. Flanagan
(2002) 27 Cal.4th 766, 774.)
There is no California authority on whether a foreign
extradition hearing is admissible under Evidence Code section
1291, but a review of federal case law is instructive here. In
U.S. v. Salim (2d Cir. 1988) 855 F.2d 944 (Salim), the Second
Circuit held that foreign testimony is admissible as prior
testimony under the Federal Rules of Evidence without running
afoul of the confrontation clause. Bebe Soraia Rouhani was
arrested in Paris, France, on a stopover to New York City to
deliver heroin to the defendant. (Id. at p. 947.) Federal
prosecutors sought the district court’s permission to take
Rouhani’s deposition in France, where she was being held in
custody awaiting her own trial. The deposition was taken
according to French law and procedures with a French
magistrate presiding. (Id. at pp. 947–948.) Defendant was in
custody in the United States and unable to attend the
deposition. French law prohibited defendant’s counsel from
being in the room while Rouhani testified, and the Assistant
United States Attorney voluntarily agreed to be absent from the
room to avoid the appearance of an unfair advantage. Attorneys
on both sides were permitted to submit written questions to the
magistrate. Various portions of Rouhani’s deposition testimony
were read into the record at defendant’s trial. (Id. at p. 948.)
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On appeal, the defendant challenged the admission of
Rouhani’s testimony under rule 804(b)(1) of the Federal Rules
(28 U.S.C.). Notably, the operative language of rule 804(b)(1) is
similar to Evidence Code section 1291. 12 The Second Circuit
rejected his argument, holding that the French government’s
procedures were “consistent with principles of comity in
international relations, which instruct us ‘to demonstrate due
respect . . . for any sovereign interest expressed by a foreign
state.’ ” (Salim, supra, 855 F.2d at p. 953.) The court continued,
“In short, unless the manner of examination required by the law
of the host nation is so incompatible with our fundamental
principles of fairness or so prone to inaccuracy or bias as to
render the testimony inherently unreliable (or, in the words of
the advisory notes to Rule 28 [of the Federal Rules of Evidence
(28 U.S.C.)], are ‘so devoid of substance or probative value as to
warrant its exclusion altogether’), a deposition taken pursuant
to letter rogatory in accordance with the law of the host nation
12
Rule 804(b)(1) of the Federal Rules of Evidence (28 U.S.C.)
provides that the admission of former testimony does not violate
the rule against hearsay if the declarant is unavailable as a
witness and the former testimony “was given as a witness at a
trial, hearing, or lawful deposition, whether given during the
current proceeding or a different one” and “is now offered
against a party who had — or, in a civil case, whose predecessor
in interest had — an opportunity and similar motive to develop
it by direct, cross-, or redirect examination.” (Id., rule
804(b)(1)(A), (B).) There are minor differences in wording
between rule 804(b)(1) and Evidence Code section 1291. These
minor differences — e.g., rule 804(b)(1)(B) says “similar motive”
while Evidence Code section 1291, subdivision (a)(2) says
“motive similar” — are not substantial in way that is relevant
here nor have any bearing on the admissibility of foreign
testimony.
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is taken ‘in compliance with law’ for purposes of Rule 804(b)(1).”
(Ibid.)
The Second Circuit acknowledged that “foreign laws do
not always permit witnesses to be deposed in the manner to
which American courts and lawyers are accustomed. In certain
cases, the use of unconventional foreign methods of examination
may exceed the limits of accepted American standards of
fairness and reliability, such as underlie the confrontation
clause and the rule against hearsay. Concerns of this type are
addressed best on a case-by-case basis.” (Salim, supra, 855 F.2d
at p. 946.)
The First Circuit agreed with the Salim court in U.S. v.
McKeeve (1st Cir. 1997) 131 F.3d 1. In McKeeve, a British
magistrate took the deposition of a key witness in accordance
with British law and procedures. (Id. at p. 7.) Over the
defendant’s objection, the district court permitted the
prosecution to read the deposition into evidence at trial. (Id. at
pp. 7–8.) The First Circuit acknowledged that the deposition did
not comport in all respects with American practice, but
nonetheless held that the proceedings substantially conformed
to our practice and thus satisfied rule 804(b)(1) of the Federal
Rules of Evidence (28 U.S.C.).
The Eleventh Circuit likewise found a British deposition
to be admissible under rule 804(b)(1) of the Federal Rules of
Evidence (28 U.S.C.). (U.S. v. Mueller (11th Cir. 1996) 74 F.3d
1152, 1156–1157.) The court noted that the defendant was able
to consult with his lawyer on the telephone during the
deposition proceedings, the procedures used followed those in
the United States, and there were no language barriers.
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Thus, while rule 804(b)(1) of the Federal Rules of Evidence
(28 U.S.C.) does not explicitly permit the introduction of foreign
testimony, federal courts have held foreign testimony may be
admissible regardless. By extension, with respect to California’s
analogous rule, the fact that the statutory language does not
explicitly address foreign testimony does not signify that it must
be excluded.
Defendant further contends that the California
Legislature intended to exclude foreign testimony from
Evidence Code section 1291 because foreign matters are
explicitly referenced in other sections in the Evidence Code.
Defendant cites three statutes — Evidence Code sections 200
and 452 and Penal Code section 668 — that include reference to
foreign matters, none of which supports his assertion that
Evidence Code section 1291 precludes introduction of foreign
testimony. Evidence Code section 200 defines the term “ ‘public
entity,’ ” which “includes a nation, state, county, city and county,
city, district, public authority, public agency, or any other
political subdivision or public corporation, whether foreign or
domestic.” Evidence Code section 452 details matters which
may be judicially noticed and includes the “law of an
organization of nations and of foreign nations and public entities
in foreign nations.” (Id., subd. (f).) Defendant also cites Penal
Code section 668, which permits a prior foreign conviction to be
used for enhancement if it would constitute a felony in
California.
Defendant’s contention is not persuasive. He fails to cite
any authority to support his argument that two references to
foreign matters in the Evidence Code — neither of which have
anything to do with prior testimony — indicate the Legislature
intended to exclude foreign matters from all other sections in
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the Evidence Code. Moreover, his argument cuts against
persuasive reasoning about an analogous federal rule by the
federal courts of appeal. For example, Federal Rules of Evidence
rule 902 (28 U.S.C.) explicitly includes foreign matters. (See
ibid. [foreign public documents are self-authenticating].) This
has not precluded the federal courts from concluding that
foreign testimony is admissible under Federal Rules of
Evidence, rule 804 (28 U.S.C.).
For these reasons, we are not persuaded that Evidence
Code section 1291 categorically excludes foreign testimony.
Because defendant has not attempted to show that the
Canadian extradition proceedings were so unconventional as to
violate American standards of fairness and reliability (see
Salim, supra, 855 F.2d at p. 946), we need not consider whether
the testimony was inadmissible for this reason.
3. Purpose of the Extradition Hearing
Second, defendant contends that even if Evidence Code
section 1291 permits the introduction of foreign testimony,
Laberge’s testimony was nonetheless inadmissible as former
testimony. Evidence Code section 1291, subdivision (a)(1),
requires that the party against whom the former testimony is
offered have the “opportunity to cross-examine the declarant
with an interest and motive similar to that” of the trial.
Defendant asserts that Laberge’s testimony violates this
requirement because the extradition hearing served a
manifestly different purpose than the trial. Defendant argues
that the purpose of the extradition hearing was to show that if
he were extradited, he would likely face the death penalty, and
therefore the interest and motive was to resist extradition, not
to try to rebut guilt. He further asserts that defense counsel had
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no reason to impeach Laberge’s credibility at the extradition
hearing.
Defendant raised a somewhat different argument in the
trial court. In his motion to exclude Laberge’s testimony, he
submitted a declaration by his Canadian extradition attorney.
The attorney stated that defendant’s guilt was a “secondary”
issue at the extradition hearing to the death penalty question
but acknowledged that guilt was an issue. Importantly, one
motive need not be mutually exclusive with the other. Defense
counsel could have been motivated to challenge defendant’s
guilt and establish that if the evidence did suggest guilt,
defendant would face the death penalty upon extradition.
Testimony from the extradition hearing contradicts
defendant’s assertion that his attorney had no reason to
impeach Laberge’s credibility. Cross-examination consumed
approximately 165 pages of transcript. Defense counsel asked
Laberge about his criminal history, his prior history as an
informant, how he came into contact with defendant and his
note-taking of defendant’s statements, his access to documents
that defendant received from his attorneys, his contact with law
enforcement to report information about defendant’s case, and
his access to newspapers and periodicals in prison. The record
suggests defense counsel had a significant motive and interest
in attacking Laberge’s credibility. Additionally, counsel’s
vigorous and extensive cross-examination of Laberge further
supports a finding that counsel’s motivation would have been to
challenge the evidence implicating defendant in the California
murders (and thus was not solely concerned with the fact that
defendant would be subject to the death penalty upon
extradition).
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Evidence Code section 1291 does not require that the
motive and interest in cross-examining former testimony be
identical to the current interest in examining the unavailable
witness, it only requires that they be similar. On this record, it
is clear that defendant’s motive to defend against the charges at
the extradition hearing was similar enough to that at a
preliminary hearing. Much as in a preliminary hearing in
California, Canada requires the party seeking extradition to
present a prima facie case establishing the person committed
acts that would be criminal if done in Canada. We have
previously held that preliminary hearing testimony is
admissible under Evidence Code section 1291 “ ‘not because the
opportunity to cross-examine the witness at the preliminary
hearing is considered an exact substitute for the right of
confrontation at trial [citation], but because the interests of
justice are deemed served by a balancing of the defendant’s right
to effective cross-examination against the public’s interest in
effective prosecution.’ ” (People v. Samayoa (1997) 15 Cal.4th
795, 850; see People v. Carter (2005) 36 Cal.4th 1114, 1173.)
Although “a defendant’s motive in cross-examining a witness at
a preliminary hearing may differ somewhat from the motive at
trial, . . . nevertheless the earlier testimony may be admissible
at the trial under section 1291 because the ‘motives need not be
identical, only “similar.” ’ ” (Samayoa, at p. 850, quoting People
v. Zapien (1993) 4 Cal.4th 929, 975.) Although defendant’s
motive in cross-examining Laberge at the extradition hearing
differed somewhat from that of a trial, the record here supports
a finding that the motives were similar enough. Therefore, the
admission of Laberge’s testimony did not violate Evidence Code
section 1291.
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Finally, defendant contends that Laberge’s testimony
violated his Sixth Amendment right to confront witnesses.
“[W]hat is significant for the purpose of analyzing whether prior
testimony is admissible under the Sixth Amendment to the
United States Constitution is whether the party against whom
the prior testimony is offered had an appropriate opportunity for
cross-examination at the prior hearing.” (People v. Williams
(2008) 43 Cal.4th 584, 627.) As discussed, defendant had
sufficient opportunity to cross-examine Laberge at the
extradition hearing and, indeed, did so at length. Admission of
Laberge’s testimony did not violate his right to confrontation
under the federal Constitution.
4. Prejudice
Even if the admission of Laberge’s testimony had been
error, the error was harmless beyond a reasonable doubt.
(People v. Lopez (2012) 55 Cal.4th 569, 585 [the standard of
review for a confrontation clause violation is whether the
admission of evidence was harmless beyond a reasonable
doubt].) During a hearing on admissibility of the testimony, the
trial court expressed the view that even without Laberge’s
testimony, the four cartoon drawings would have been
admissible under Evidence Code section 1220 as a hearsay
exception for admissions of a party. Although Laberge’s
testimony was helpful in providing context of the drawings to
the jury, the cartoon drawings without any explanation were
sufficiently inculpatory. The cartoons clearly depicted Lake
beating Allen while defendant ate rice and watched, a coroner
handing remains of the victims to grieving family members, and
defendant and Lake burning the bodies of victims.
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Defendant contends the cartoons are not admissible as a
party admission because the only evidence he actually drew the
cartoons came from Laberge’s testimony. Sufficient evidence,
however, supports a finding that defendant drew the cartoons
himself. As the trial court noted at the hearing, defendant and
Laberge were in one-man neighboring cells, suggesting quite
plausibly that there was no other way for defendant to possess
the drawings if he had not drawn them himself. In addition, the
handwriting expert testified that defendant wrote the words on
the cartoons. A sufficient foundation was laid for the cartoons
to be admitted under Evidence Code section 1220 without
Laberge’s testimony.
Finally, the overwhelming evidence of guilt, including
defendant’s own testimony, the M Ladies videotape, and the
physical evidence found in Wilseyville, further supports a
finding that even if admission of Laberge’s testimony was error,
any possible error was harmless.
F. Evidentiary Issues
Defendant contends the trial court deprived him of his
right to due process when it admitted prejudicial evidence and
excluded proposed defense evidence.
1. Admission of Evidence
a. Defendant’s Call to Michael Carroll
John Gouveia testified that he was Michael Carroll’s foster
brother. After Carroll was discharged from the military in the
early 1980s, he moved in with Gouveia in Milpitas. On direct
examination, the prosecution asked Gouveia if Carroll had ever
mentioned knowing someone by the name of Charles Ng. The
court sustained defendant’s hearsay objection. The prosecution
asked Gouveia if he ever received a phone call from someone who
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identified himself as Charles Ng. Defendant again objected on
hearsay grounds; the trial court overruled the objection without
explaining the basis for its ruling. Gouveia stated that he had
received such a phone call, and the caller asked to speak to
Carroll. On cross-examination, Gouveia acknowledged he had
never personally met defendant. Gouveia explained that the
caller identified himself as “Chuck,” but then he clarified with
the caller, “Is this Charles Ng?” The caller laughed and said,
“Yeah. Just tell Mike I called.”
Defendant now argues, as he did in the trial court, that
Gouveia’s testimony that defendant had called Carroll’s house
was inadmissible hearsay. The People respond that the
testimony was admissible under the hearsay exception set forth
by Evidence Code section 1220, which provides that “[e]vidence
of a statement is not made inadmissible by the hearsay rule
when offered against the declarant in an action to which he is a
party . . . .” Defendant counters that this section is inapplicable
because the prosecution failed to establish one of the exception’s
requirements: “prima facie proof that [the statement] was made
by him or by some person whose statements may legally affect
him.” (Lewis v. Western Truck Line (1941) 44 Cal.App.2d 455,
465.) According to defendant, the prima facie proof “must be
independent of the hearsay [statement] itself,” and the fact that
the caller identified himself as Charles Ng does not suffice.
Even assuming arguendo that admission of the statement was
error, defendant cannot establish prejudice. Sufficient evidence
linked him to Carroll without Gouveia’s testimony: defendant
assisted Lake in selling Carroll’s car after he went missing,
Carroll’s girlfriend is featured in the M Ladies video, and several
items belonging to Carroll were found at the Wilseyville
property.
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b. Evidence of Workplace Conduct
Outside the presence of the jury, the defense moved to
exclude certain testimony from Kenneth Bruce, defendant’s
coworker at Dennis Moving Company. The defense objected to
the prosecution’s proffer of Bruce’s testimony that defendant
had said, “No gun, no fun,” “No kill, no thrill,” and “Daddy dies,
mommy cries, baby fries.” The defense also objected to possible
testimony that defendant brought a butterfly knife and stun gun
to work and bragged to his coworkers about owning guns.
The trial court told the defense that its argument under
Evidence Code section 352 was “almost specious. There is
nothing prejudicial about it. . . . These things are relevant.” The
court stated that the challenged statements “were said. They
can be used as circumstantial evidence. They can be used as
corroborating evidence as to the drawings and as to the
statements up in Canada. ‘Daddy dies, momma cries, baby
fries,’ you don’t have much of an imagination, Mr. Kelley, to
show why that is relevant and it is not prejudicial. These are
words. And guns were found in evidence and evidence of guns
found in his house. That is more corroborating evidence
bragging about having guns. So there will be, you know, it is
just stronger evidence that the guns were his.”
At trial, Bruce testified that he heard defendant use
phrases such as, “No gun, no fun,” “No thrill, no kill,” and
“Daddy die, mommy cry, baby fries.” He heard defendant use
those phrases more than once around himself and other
coworkers. Bruce said that defendant mentioned he owned guns
and had brought a butterfly knife to work.
Defendant argues that Bruce’s testimony regarding
defendant’s statements and the weapons “individually and
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cumulatively were prejudicial because of the likelihood that the
jury would view [defendant’s] possession of weapons and his
coarse rhymes as a proclivity to violence.”
The trial court did not abuse its discretion when it
admitted Bruce’s testimony. (See People v. Mora and Rangel
(2018) 5 Cal.5th 442, 480 (Mora and Rangel) [ “ ‘We will not
disturb a trial court’s exercise of discretion under Evidence Code
section 352 “ ‘except on a showing that the court exercised its
discretion in an arbitrary, capricious or patently absurd manner
that resulted in a manifest miscarriage of justice’ ” ’ ”].) As the
court noted, defendant’s statements were corroborating
evidence that defendant participated in the killings and owned
the guns found in his home. His statement, “Daddy dies,
mommy cries, baby fries,” was relevant and a compelling
admission that defendant participated in the Dubs and
Bond/O’Connor murders, both of which involved killing a father,
mother, and infant.
Further, Bruce’s testimony was not unduly prejudicial.
Defendant used a knife in the M Ladies video to cut off
O’Connor’s shirt and bra; in comparison, his bringing a knife to
work and bragging to a coworker about possessing guns was not
likely to inflame the emotions of the jury. (See Doolin, supra, 45
Cal.4th at p. 439 [“evidence should be excluded as unduly
prejudicial when it is of such nature as to inflame the emotions
of the jury”].) Similarly, his statements to Bruce, “No gun, no
fun” and “No thrill, no kill,” were unlikely to inflame the
emotions of jury given that the jury had seen those same words
written out in one of the cartoons that defendant shared with
Laberge.
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c. Evidence of Seized VCR
After the Dubs family disappeared, the police determined
that a VCR was missing from their apartment. At trial, the
prosecution proffered evidence that police had found two VCRs
in defendant’s apartment of the same model and type as the
VCR missing from the Dubses’ apartment, one of which had the
serial number removed. Defendant argued the evidence was
irrelevant and prejudicial under Evidence Code section 352. He
argued that authorities never linked the VCRs found in
defendant’s apartment to the Dubs family, and the evidence
“doesn’t prove anything.”
The trial court stated, “If the D.A. in good faith can look at
the jury and say, ‘We believe that is the VCR taken from Dubs,’
how can you prevent them from doing that?” Kelley responded,
“Because ‘We believe’ is not proof, your honor, ‘we believe’ is just
opinion.” The court said, “But it is the same type and model.”
Kelley replied, “But it is not an unusual thing. What if the
Dubs — ” The trial court interrupted and stated that it was
unusual to have a serial number removed unless an item is
stolen. Kelley said, “Stolen from where is the question.” The
court responded, “Well, that is what they want to argue to the
jury, that it was taken from the Dubs. So there is relevance. I
don’t see that it is prejudicial.” The court overruled defendant’s
objection.
Defendant argues the trial court erred in admitting
evidence of the VCRs. He asserts there was no “foundation to
establish [the evidence’s] relevance to the charged crimes” — i.e.
“some independent confirmation that” one of them “was the VCR
player missing from the Dubs” — and that admission of the
evidence therefore “permitted a spurious inference that [he] had
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somehow come into possession of at least one item taken from
the Dubs[] at the time of their disappearance.”
We reject defendant’s claim. Where “the relevance of
evidence depends on the existence of a preliminary fact,” a trial
court “should exclude the proffered evidence only if the ‘showing
of [the] preliminary fact[] 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.) Here, the court did not abuse its discretion in finding
that the evidence — i.e., the VCR found in defendant’s
apartment was the same make and model of the Dubses’ missing
VCR and its serial number had been removed — was not too
weak to support a conclusion that the VCR belonged to the
Dubses. Nor was the admission of this evidence unduly
prejudicial. (Doolin, supra, 45 Cal.4th at p. 439.)
d. Evidence of Marijuana
The prosecution proffered evidence that police had seized
four bags of marijuana from defendant’s apartment that were
packaged similarly to marijuana found at the Wilseyville
property. The defense argued the evidence was irrelevant to the
murder charges. The prosecution stated that the evidence was
“relevant because of the conspiracy, the overall method of
operation, the fact that the two defendants, the two men were
engaged in this common criminal plan. And it’s the People’s
position that the plan involved not just the murder of the 12
victims but also profiting from various activities.” The court
agreed with the defense: “I understand why [the prosecution]
think[s] it’s relevant but it’s so watered down. How much of a
connection do you want to make? So under [Evidence Code
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section] 352 grounds, as the evidence is right now, the objection
is sustained.”
Shortly after, the defense objected to defendant’s former
coworker Hector Salcedo’s testimony that defendant had invited
Peranteau to come “up to the hills to help him harvest a weed
field.” The defense argued the evidence was irrelevant because
they did not know the time frame of when the conversation
occurred and how the timing related to when Peranteau
disappeared. The court found Salcedo’s testimony to be relevant
and continued, “I don’t find it prejudicial at all in the sense that
we use the word ‘prejudice.’ And it is highly relevant. You have
somebody who disappears. They have an accusation who helped
cause that, and now you have a direct statement made before
the disappearance. It is relevant.”
Salcedo testified that one afternoon in December 1984 or
January 1985, while he was with Peranteau at his apartment,
defendant showed up unannounced. Salcedo did not recall what
defendant and Peranteau initially discussed but remembered
defendant “eventually taking a bag of marijuana, showing it to
us and telling us that he had[,] or a friend had[,] a plantation
and if we would go help him, we could get some. We would be
able to take some home or keep some.” Salcedo testified that
Peranteau sometimes smoked marijuana.
On cross-examination, the defense elicited that Salcedo
had initially told officers that Peranteau had told him about the
marijuana conversation with defendant, and he was not actually
present for that discussion. On redirect, Salcedo clarified that
there were two separate incidents with defendant regarding
marijuana. At one point Peranteau told him that defendant
offered to take him up to the hills to harvest marijuana.
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Sometime later, he was at Peranteau’s apartment when
defendant appeared and again discussed harvesting marijuana.
After the defense rested its case, but before defendant took
the stand, the prosecution again sought to introduce evidence of
the marijuana found in defendant’s apartment as rebuttal
evidence. The prosecution explained that the defense
introduced evidence that Lake may have murdered the victims
for financial gain and grew marijuana as a way to lure people to
Calaveras County. The court ruled the evidence admissible to
rebut the defense theory that “whatever Lake did, he did it on
his own.” The court noted that the jury heard testimony that
defendant never smoked marijuana, and the jury could infer
why he would have marijuana at his home if he did not use it.
The parties stipulated that authorities found four bags of
marijuana in defendant’s San Francisco apartment. The bags
were admitted into evidence.
Defendant argues the court abused its discretion when it
admitted testimony from Salcedo that defendant showed him
and Peranteau marijuana and when it admitted evidence of the
marijuana bags found in defendant’s apartment. He contends
the marijuana evidence “had negligible, if any, probative value,
but served to portray [defendant] as a criminally-oriented
character.” Although the prosecution did not establish at
exactly what point in time defendant invited Peranteau to
harvest marijuana as it relates to Peranteau’s disappearance,
Salcedo testified it happened sometime in December 1984 or
January 1985, and Peranteau disappeared on January 19, 1985,
supporting an inference that defendant may have tried to lure
Peranteau to Wilseyville and may have been connected to his
disappearance. As the trial court noted when it admitted the
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evidence, defendant’s statement inviting Peranteau to
Wilseyville connected defendant to the victim at around the time
of the victim’s disappearance. Further, Salcedo’s testimony was
not unduly prejudicial because defendant’s invitation to
Peranteau to help harvest marijuana was not especially
inflammatory. The trial court did not abuse its discretion when
it found defendant’s invitation to Peranteau was relevant to his
disappearance.
The trial court likewise did not abuse its discretion when
it admitted evidence of the marijuana bags found in defendant’s
home. The evidence corroborated Salcedo’s testimony that
defendant showed him and Peranteau a bag of marijuana. The
jury heard considerable evidence that Lake sold marijuana: one
witness saw marijuana drying on the floor of the Wilseyville
property; another witness saw Lake at the Bond/O’Connor
house dividing up three pounds of marijuana with someone; a
third witness testified that Lake invited her to his ranch to pick
marijuana; and a fourth witness testified that Lake dropped off
a bag of marijuana through her window and said, “There is more
where that came from.” Evidence that defendant possessed
marijuana was relevant to further connect him to Lake and
show that they were participating in a common enterprise,
particularly in light of testimony that defendant did not smoke
marijuana himself, making it more likely that he possessed
marijuana for another purpose. For the same reasons, as the
court ruled, the marijuana rebutted the defense theory that
Lake acted on his own and defendant did not participate. The
court ruled that the jury could reasonably infer that defendant
possessed the marijuana because he was actively working with
Lake.
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Furthermore, the evidence was not unduly prejudicial.
Officers found items in defendant’s home that linked him to
several victims. Combined with the evidence admitted
regarding the 12 murders and the M Ladies video, defendant
cannot establish how evidence that he possessed marijuana
inflamed the jurors’ emotions and caused them to punish
defendant based on that emotional reaction. (See People v.
Dalton (2019) 7 Cal.5th 166, 220.)
2. Exclusion of Defense Evidence
Defendant contends the trial court deprived him of his
federal due process rights and Sixth Amendment right to
present a defense when it curtailed cross-examination and
excluded defense evidence regarding Lake.
Defendant first claims the court erred by excluding
testimony from Lake’s sister that their mother preferred his
brother over Lake. At trial, the prosecutor objected on hearsay
grounds, and the court sustained the objection. Defendant
never offered a nonhearsay basis for admitting Lake’s sister’s
testimony about what her mother said. Nor can he assert on
appeal new reasons why the evidence should have been
admitted. (See People v. Marks (2003) 31 Cal.4th 197, 228 [“A
general objection to the admission or exclusion of evidence, or
one based on a different ground from that advanced at trial, does
not preserve the claim for appeal”].) Defendant’s claim thus
fails.
Defendant next claims the court erred by excluding
testimony from Lake’s ex-wife. During direct examination,
counsel asked her if she thought that Lake had a “God complex.”
The prosecutor objected based on relevance, and the court
sustained the objection and also ruled that the question was
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vague. On appeal, defendant argues the testimony would have
“highlighted that Lake . . . viewed himself in a grandiose
manner as controlling and manipulative of others,” which
“would have emphasized” that defendant “was not necessarily
any kind of partner to Lake” or “a knowing aider and abettor to
Lake’s crimes, but was merely an acolyte who followed
directions without knowing of Lake’s homicidal mania.”
We need not decide whether the trial court erred because
its ruling could not have prejudiced the defense. Although
defendant’s ex-wife was not allowed to say whether she thought
Lake had a “God complex,” she did testify that he “was
controlling” of her in ways she “didn’t like” and “was able to
control,” “convince . . . or influence” her without her “realiz[ing]”
what “was happening.” Several other defense witnesses
testified that Lake was “very controlling” and “manipulative.”
Ernie Pardini, who was Lake’s neighbor for a period of time,
testified as follows: Lake “spoke to” defendant “in a very
degrading and domineering manner, like rode him hard” and
“ordered [him] around like a slave.” Defendant “seemed very
timid around” Lake and had “kind of a hurt look in his eyes,”
“[l]ike he was trying to win [Lake’s] approval and wasn’t quite
successful.” Defendant “seemed to sort of follow [Lake] around,”
“always . . . seemed very subservient and willing to do whatever
Lake said,” and “never” ignored or talked back to Lake. In light
of this testimony, and the claimed relevance of the excluded
testimony in question, the court’s ruling could not have
prejudiced defendant.
This discussion likewise disposes of defendant’s next
claim: the trial court erred by striking Pardini’s testimony that
defendant “seemed like a lost child trying to win his father’s
approval.” The prosecution objected that Pardini’s testimony
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lacked foundation and was “improper opinion.” Commenting
that the testimony was “also vague,” the court sustained the
objection, ordered the testimony stricken, and directed the jury
to disregard it. On appeal, defendant argues this testimony was
“important to demonstrate that [he] was manipulated into a role
in which he felt obligated to assist Lake in Lake’s ventures.”
However, as explained above, Pardini provided ample evidence
on this point, testifying that defendant “seemed very timid
around” Lake and had “kind of a hurt look in his eyes,” “[l]ike he
was trying to win [Lake’s] approval,” that defendant “always . . .
seemed very subservient and willing to do whatever Lake said,”
and that he “never” ignored or talked back to Lake. In light of
this testimony, even were defendant correct that the court erred
by excluding Pardini’s statement that defendant “seemed like a
lost child trying to win his father’s approval,” the error could not
have prejudiced the defense.
Defendant next contends the court erroneously excluded
testimony that Stapley distributed methamphetamine in San
Diego and that he and Bond had an antagonistic relationship
with Lake unrelated to defendant. The prosecutor argued that
Stapley’s drug activities in San Diego were irrelevant, and noted
that the court had admitted an abundance of evidence that Bond
and Stapley manufactured methamphetamine in Wilseyville.
The court agreed that the evidence was irrelevant and told the
defense it would sustain an objection if the defense tried to
present testimony about Stapley’s activities in San Diego. On
appeal, defendant argues this evidence was relevant to establish
that Lake had an antagonistic relationship with Stapley and
Bond, and a motive to kill them unrelated to defendant.
Defendant is mistaken. As the trial court noted, ample evidence
was admitted demonstrating Stapley and Bond’s drug activities
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in Wilseyville, and a juror could reasonably infer that Stapley
had experience selling drugs prior to arriving in Wilseyville.
Evidence of Stapley’s drug sales in San Diego was thus
cumulative and the trial court did not abuse its discretion when
it excluded this evidence.
Relatedly, defendant argues that the trial court “excluded
virtually all testimony” from a witness regarding Bond stating
that he was taking a pistol to Wilseyville to confront Lake. He
further argues the trial court erred when it excluded testimony
from another witness that Bond stated he was going to
Wilseyville to confront Lake and to “finish it.” Defendant
contends this evidence was relevant to establish that Lake killed
Bond and Stapley because of a personal feud over drug activity.
The jury, however, did hear evidence that Bond had plans to go
to Lake’s house to “confront him and settle a score” and that he
was armed at the time he left for Wilseyville. Even if the trial
court had abused its discretion, defendant cannot establish
prejudice because the evidence defendant now challenges was
admitted through another witness.
Next, defendant contends the trial court erred when it
excluded testimony that Lake fit the profile of a serial killer.
The trial court sustained the prosecution’s relevance objection,
stating that “we don’t need an expert to come in . . . and tell
these jurors that” Lake was a serial killer. Defendant argues on
appeal that this testimony was necessary to establish that Lake
fit the profile of a serial killer while defendant did not. At no
point during counsel’s offer of proof, however, did counsel argue
that this evidence was relevant to distinguish between Lake and
defendant. Moreover, as the trial court noted, whether or not
Lake was a serial killer was not a disputed fact at issue. The
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trial court did not abuse its discretion when it excluded this
testimony.
Defendant next challenges the trial court’s exclusion of
selected excerpts from Lake’s journal. The defense sought to
introduce a limited number of entries from the journal to show
Lake’s state of mind and that he murdered many individuals
without any knowledge or participation from defendant,
suggesting he likewise could have murdered the current victims
without defendant’s assistance. The prosecution argued that if
the court admitted the defense’s proffered excerpts, additional
journal entries should be admitted into evidence, including
entries that implicated defendant, in order to have a complete
picture of what was going through Lake’s mind. The court
agreed that admitting only edited portions of the journal would
be misleading. The court explained that the defense wanted to
admit portions of the diary that suggested Lake killed the 12
victims without any assistance from defendant. The court
pointed out that these selected portions were therefore
misleading because many of the victims in this case were
strangers to Lake; their connection to him was through
defendant. Additionally, “we know based upon the evidence that
Mr. Ng was available to assist in those homicides.” The court
ruled that the proffered sections of the journal were
inadmissible under Evidence Code section 356.
Defense counsel asked if the court would admit the entire
diary. The trial court excluded admission of the entire diary
under Evidence Code section 352, ruling that the diary as a
whole was “hard to read,” largely “pure junk,” “too time
consuming, too confusing, and literally not very relevant.” The
court offered to reconsider the matter if defense counsel
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presented a reedited version of the diary or proffered different
excerpts.
Two weeks later, the defense proffered one new, edited
excerpt of Lake’s journal. The prosecution again objected,
arguing the proffered excerpts were misleading because they
removed all references to defendant. The trial court agreed,
stating, “I’m not going to let you put in a partial statement when
the next statement clearly implicates Mr. Ng.” The court stated,
“If you can’t get over [relevance grounds], how do you get over
anything else?” Counsel argued that the entries were relevant
because the defense theory was that Lake had a plan and a
motive that did not involve defendant; the court noted it was not
relevant because Lake’s motive and plan were uncontested. The
court further explained that the evidence the defense wanted to
raise by way of the journal entries — that Lake engaged in
criminality without defendant’s involvement and that he had
fantasies of keeping women hostage in a bunker — were already
before the jury via other evidence.
The trial court again noted that excerpts proposed by the
defense focused exclusively on Lake acting alone while omitting
many references to contact between Lake and defendant.
In addition to excluding the entire diary under relevance
grounds and Evidence Code section 352, the court also sustained
the prosecution’s objection to the proffered entries under
Evidence Code section 356. The court ultimately allowed the
defense to reference one journal entry regarding Lake’s long-
held bunker fantasies “to show that he did really write a diary
and he did have this fantasy for some 20-odd years before all
this started.” On appeal, defendant argues that the journal
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reflected Lake’s 20-year criminal scheme and was crucial to the
defense.
Evidence Code section 352 states that a trial court has the
discretion to “exclude evidence if its probative value is
substantially outweighed by the probability that its admission
will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues,
or of misleading the jury.” Evidence Code section 356 states:
“Where part of an act, declaration, conversation, or writing is
given in evidence by one party, the whole on the same subject
may be inquired into by an adverse party; when a letter is read,
the answer may be given; and when a detached act, declaration,
conversation, or writing is given in evidence, any other act,
declaration, conversation, or writing which is necessary to make
it understood may also be given in evidence.” “The purpose of
Evidence Code section 356 is ‘to prevent the use of selected
aspects of a conversation, act, declaration, or writing, so as to
create a misleading impression on the subjects addressed.’ ”
(Clark, supra, 63 Cal.4th at p. 600.)
The trial court did not abuse its discretion when it
excluded the journal entries offered by defendant under
Evidence Code section 356. The defense sought to introduce
excerpts from the journal suggesting that Lake committed the
murders alone while excluding excerpts concerning defendant.
The trial court did not abuse its discretion in determining that
defendant’s proposal to include only selected aspects of the diary
would create a misleading impression in violation of Evidence
Code section 356. Defendant’s offer to admit the entire diary
may have appeased the court’s concern under Evidence Code
356, but the trial court did not abuse its discretion in concluding
that the entire diary was nonetheless inadmissible under
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Evidence Code section 352. (See Mora and Rangel, supra, 5
Cal.5th at p. 480.) The trial court acted within its discretion
when it determined that the diary would create an undue
consumption of time and confuse the jury. As the court noted,
the diary as a whole was hard to read and largely irrelevant.
The court properly determined that the proffered entries were
cumulative because many of the issues, such as Lake’s plan to
murder and to keep women hostage in his bunker, were already
before the jury.
In sum, the trial court did not abuse its discretion when it
excluded the proffered journal entries on relevance and
Evidence Code sections 356 and 352 grounds.
Next, defendant argues the trial court erroneously
excluded a video of Lake and Claralyn having sex while talking
about capturing other women and children. The prosecution
objected based on relevance, hearsay, and Evidence Code section
352. After reading the transcript of the video, the trial court
agreed. The court stated that there was no “relevance to any of
the things” in the video, there were no plans made to do
anything, it was hard to tell why Lake said what he said or why
Claralyn said what she said, and that the discussion “appears to
. . . have been an S and M exercise.” Additionally, the tape was
recorded prior to defendant’s involvement with Lake.
Defendant now argues on appeal that the evidence would have
established that Lake engaged in criminal conduct with the
assistance of other people. Contrary to his own argument,
however, defendant acknowledges elsewhere in his briefing that
the video suggests Claralyn did not take Lake seriously because
she believed that she was “merely a character in his fantasy.”
The court agreed when it found the comments between Lake and
Claralyn to be fantasies discussed during a sexual encounter.
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The conversation does not prove anything regarding Lake and
defendant’s relationship, nor does it prove anything regarding
defendant’s involvement in the charged offenses. The trial court
did not abuse its discretion.
Finally, defendant challenges the court’s refusal to permit
the defense to recall Claralyn. During her initial testimony, the
defense introduced, by stipulation, the terms of her immunity
agreement with the prosecution. Neither party asked her any
questions. After defendant testified, the defense requested to
recall Claralyn. Counsel argued that after defendant’s
testimony, they needed to “put a different light on the defense”
and while Claralyn’s testimony was not newly discovered, it was
necessary for their new strategy. The trial court denied the
request to recall her because she had previously been on the
stand and the defense “just asked no questions.” The court
further noted that Claralyn was not available to testify that day.
On appeal, defendant argues that the need to corroborate
important parts of his testimony outweighed potential damage
Claralyn could have caused.
We review a trial court’s decision on whether to reopen a
criminal case to present additional evidence for an abuse of
discretion. (People v. Marshall (1996) 13 Cal.4th 799, 836.)
“[W]e have directed reviewing courts to consider ‘the following
factors: “(1) the stage the proceedings had reached when the
motion was made; (2) the defendant’s diligence (or lack thereof)
in presenting the new evidence; (3) the prospect that the jury
would accord the new evidence undue emphasis; and (4) the
significance of the evidence.” ’ ” (In re Freeman (2006)
38 Cal.4th 630, 650.) These factors support the trial court’s
ruling here. The prosecution had already given its closing
argument when defendant requested to testify; the court
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allowed the defense to reopen its case at that time for
defendant’s testimony. As the prosecution argued in trial,
allowing the defense to recall Claralyn would unduly emphasize
her testimony because it would directly follow defendant’s
testimony, and their testimony would stand out from the rest of
the evidence. Lastly, the defense did not have any new evidence
to present; indeed, the defense declined to make an offer of proof
regarding the content of Claralyn’s testimony. As such, the
defense cannot establish the significance of her testimony. The
trial court did not abuse its discretion when it declined to allow
Claralyn to testify.
Defendant asserts the cumulative effect of the court’s
exclusionary rulings prevented the defense from adequately
demonstrating to the jury that Lake was “a highly secretive and
diabolical psychopath who manipulated people without their
realizing it.” Defendant, however, cannot establish any
prejudice from the exclusion of the challenged testimony.
Significant evidence was presented to the jury that Lake was
manipulative and displayed psychopathic tendencies: evidence
of uncharged murders, his controlling and abusive relationships
with women, his fantasies of keeping women hostage in the
bunker, his alleged control over defendant, and his belief that it
was okay to kill people.
G. Instructional Error
Defendant contends the trial court deprived him of his
right to due process and a fair trial when it denied several of the
defense’s proposed jury instructions.
Defendant first challenges the court’s failure to instruct
on unanimity. While discussing jury instructions, defense
counsel noted that the court would be instructing on three
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theories of liability: direct perpetrator, coconspirator, and
aiding and abetting. Counsel requested the court instruct the
jury that it must unanimously agree on the theory of liability.
The court denied the request, stating that the law does not
require a jury to unanimously agree on the theory of liability.
Defendant contends the trial court erred because a unanimity
instruction was required. We have repeatedly held jury
unanimity regarding the theory of first degree murder is not
required. (Mora and Rangel, supra, 5 Cal.5th at pp. 496–497.)
Defendant provides no persuasive reason to revisit our
precedent now.
Defendant next challenges the trial court’s refusal to
instruct on what he described as lesser-related offenses.
Specifically, defendant asked the court to instruct the jury that,
if it rejected the murder charges, it could still find defendant
guilty of accessory after the fact as to all 12 counts; kidnapping,
false imprisonment by menace, and sexual battery as to Allen
and O’Connor; robbery as to O’Connor; and burglary as to each
member of the Dubs family. The prosecutor objected to the
instructions. Relying on People v. Birks (1998) 19 Cal.4th 108(Birks), the trial court denied defendant’s request.
In Birks, we held that a trial court cannot instruct the jury
on lesser related offenses requested by the defendant over the
prosecution’s objection. (Birks, supra, 19 Cal.4th at p. 136.)
Defendant acknowledges this holding but argues a contrary
conclusion is compelled by the Ninth Circuit’s decision in Conde
v. Henry (9th Cir. 1999) 198 F.3d 734. That case is inapposite.
As we have previously pointed out, Conde “involved a trial
court’s failure to instruct on a lesser included, not a
lesser related, offense.” (People v. Taylor, supra, 48 Cal.4th at
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p. 622.) The trial court thus correctly denied defendant’s
request.
Finally, defendant challenges the trial court’s denial of his
request to instruct the jury on proper vicinage. Defendant’s
proposed instruction stated that the Dubs, Peranteau, Gerald,
and Cosner charges could not be tried in Orange County — and
the jury must find defendant not guilty — unless the
prosecution proved by a preponderance of the evidence that
vicinage requirements were satisfied. The trial court denied
defendant’s request, explaining that proper vicinage was “a
legal issue decided several times already.” Defendant contends
that the court erred by rejecting his instruction because the
court lacked subject matter jurisdiction over his case unless
vicinage was satisfied. However, “it is beyond dispute that a
change of venue may be ordered in a criminal case under
appropriate circumstances, and also beyond dispute that any
superior court to which a felony proceeding has been transferred
has subject matter jurisdiction over the proceeding . . . .”
(Simon, supra, 25 Cal.4th at p. 1097.)
Moreover, as determined by the trial court, vicinage is a
legal question for the court, not the jury. Defendant argues that
People v. Posey (2004) 32 Cal.4th 193 holds otherwise. Posey
held that venue is a question of law, to be determined by the
court and not a question of fact for the jury. (Id. at p. 210.) The
reasoning appears to rest in part on the fact that venue (unlike
vicinage) is statutory rather than constitutional. (Id. at p. 209
[noting that venue is a statutory right and vicinage a
constitutional one].) Defendant argues that under Posey, vicinage
is an issue of fact, rather than a legal issue, about which the jury
should have been instructed. Defendant is mistaken. The core of
Posey’s reasoning about venue — that it is not related to guilt, and
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is better determined prior to trial — applies equally to vicinage
and suggests it is likewise a question of law to be decided by the
court. (Id. at pp. 209–212.) The trial court did not err.
III. PENALTY PHASE ISSUES
A. Motion for a Mistrial
Defendant contends the trial court erred in denying his
motion for a mistrial after an investigator for the prosecution
spoke with a juror.
On April 14, 1999, Kelley informed the trial court that
earlier that morning he and members of his staff observed
Calaveras County Investigator Mitch Hrdlicka “having a nice,
friendly chat” with Juror No. 174. Kelley continued, “He was
standing there. They were laughing and talked. He had his cup
of coffee. It was all very friendly. And I looked at him quite
startled. I said, ‘Mitch, that is one of our jurors you are talking
to.’ And his response was, and I quote, ‘I am very well aware of
that.’ ” Kelley requested the court inquire with Hrdlicka
regarding the subject matter of his conversation with the juror,
and the prosecutor agreed.
The court called Hrdlicka to the stand and asked him the
nature of his conversation. Hrdlicka immediately apologized for
his behavior. He noted that “as probably everyone is aware,” he
wears a unique tie to court every day. That morning, Juror No.
174 commented on his tie, mentioned that her fiancé would like
it, and asked where she can buy similar ties. He knew that the
juror had an operation scheduled for the following week and
asked her what her surgery was for. She told him it was a
shoulder surgery and because he had just had a shoulder
replacement, they started talking about shoulder surgery. At
that point, Kelley appeared, and the conversation ceased.
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Kelley asked Hrdlicka why he spoke to the juror. Hrdlicka
again apologized and stated that he had no excuse. He knew
that he should never have a conversation with a juror, and it
was “poor judgment” on his behalf. The prosecutor asked
Hrdlicka how long the conversation lasted; he replied three
minutes. Hrdlicka confirmed that they only discussed ties and
shoulder surgery and did not discuss the case.
The court excused Hrdlicka and called Juror No. 174. She
explained that Hrdlicka wore unusual ties, and several jurors
like to see what tie he would wear every day. She noted that the
day before he wore a light bulb tie with a pull string on it, and
she told him the tie was “neat.” The juror also confirmed that
she discussed her upcoming surgery with Hrdlicka. She said
that Hrdlicka also told her that Stapley’s dad had two hips and
a knee replaced and that it can take time to recover. She told
the court that the conversation lasted a few minutes and they
did not discuss the case.
Kelley asked the juror to expand on her comment about
other jurors discussing Hrdlicka’s ties. The juror explained, “We
talked about different people. We have been here so long we talk
about how different people dress. And he has very unusual,
distinctive ties. And so we usually look to see what type of tie
he has on.” Kelley asked if she was aware of any conversations
between other jurors and Hrdlicka. She replied, “A couple said,
you know, ‘Let me see your tie.’ ” The juror said that Hrdlicka
will usually show them his tie, and the previous day he
mentioned that his light bulb tie “has an actual chain.” When
asked how many times Hrdlicka had shown the jurors his tie,
she guessed around 10 to 12 times.
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Juror No. 174 explained that early on in the case, during
the guilt phase, some of the ladies would look at his tie. They
would catch Hrdlicka as he was walking off the elevator while
they were waiting to enter the courtroom. The jurors did not
initially know that he was an investigator, but after he testified,
they realized he worked for the prosecution.
Kelley requested an inquiry of all 12 jurors to determine if
their interactions with Hrdlicka may have influenced them, to
which the court agreed. Three additional jurors, and one
alternate juror who later got seated, stated that they had told
Hrdlicka that they liked his tie on one or more occasion.
A few of the jurors noticed Hrdlicka’s ties but did not have
any conversations with Hrdlicka regarding his ties. Some jurors
acknowledged hearing other jurors comment about the ties to
Hrdlicka or to each other. A few of the jurors did not notice
Hrdlicka’s ties or hear any comments or conversations about the
ties. When asked, none of the jurors said that Hrdlicka’s ties
were discussed during deliberations or affected their ability to
remain impartial about the case.
After the court questioned each juror, Kelley moved for a
mistrial of the penalty phase. Kelley noted that Hrdlicka told
the court that he discussed ties and shoulder surgery with Juror
No. 174 and nothing else, but the juror told the court that
Hrdlicka also mentioned the Stapley family and a hip
replacement. Kelley expressed concern that Hrdlicka did not
tell the court the truth and argued that discussing a victim’s
family with a juror “could be incredibly influential on the issue
of whether or not [defendant] should receive the death penalty.”
The prosecution agreed that Hrdlicka’s conversation about the
Stapley family was “troubling” and requested the court recall
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Juror No. 174 to ask whether the conversation about the Stapley
family had any effect on her deliberation.
The court agreed that Hrdlicka committed misconduct, as
well as Juror No. 174 for not obeying the court’s order to not
converse with anyone involved in the case. The court
acknowledged that Hrdlicka wore unusual ties during the trial
that were “obvious” and “apparent to see.” The court did not find
it improper for the jurors to discuss Hrdlicka’s ties amongst
themselves but found it improper for a juror to comment to him
about his ties.
The court found that the misconduct fell “far short of what
is necessary for a mistrial” because there was “absolutely no
prejudice.” The court said, “The only prejudice, and it is
potential prejudice, is the conversations concerning the health
of the parents of Mr. Stapley.” Kelley continued to argue for a
mistrial and insisted that removing Juror No. 174, who he
believed to be defense prone, would cause defendant to suffer
the consequence of the prosecution’s mistake. Kelley requested
that if the court removed the juror, it also instruct the jury that
the juror was removed as a result of prosecutorial misconduct.
When proceedings resumed that afternoon, the
prosecution informed the court that a witness heard a voice from
a telephone kiosk in the hallway say the words “San Andreas
Investigator” and “mistrial.” The witness then saw Juror No.
174 walk out of the telephone kiosk area and believed it was the
juror who had been on the phone. The court questioned the
witness, who confirmed what the prosecution had said. The
court questioned the juror, who admitted to talking on the phone
but denied discussing the case. She admitted, however, to
discussing Stapley’s father’s hip surgery with other jurors
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during a lunch break. The court questioned the three jurors and
two alternate jurors who had eaten lunch with Juror No. 174
that day. None of them recalled discussing hip surgery or the
Stapley family.
With the parties’ consent, the court dismissed Juror No.
174. Although the court found it troubling, it ultimately did not
believe the other jurors committed misconduct by commenting
on Hrdlicka’s ties to him but did express concern with Hrdlicka
responding. Accordingly, the court banned Hrdlicka from the
courthouse for the remainder of trial.
When the jurors rejoined proceedings, the court read the
following statement: “After a thorough hearing into the matter,
the court has concluded that Mitch Hrdlicka, Calaveras County
District Attorney Investigator and witness in this case, has from
time to time committed prosecutorial misconduct by speaking to
jurors. I urge you to do your best to avoid any future contact
with all parties, witnesses and spectators in this case.” The
court asked the jurors if they understood and could assure him
they would avoid future contact. One juror asked, “Does that
include even saying ‘good morning’?” The court clarified that
polite greetings were not misconduct but also “not a great idea”
and that no juror engaged in misconduct by telling Hrdlicka that
he had an unusual tie.
Defendant contends the trial court erred when it denied
his motion for a mistrial. The denial of a mistrial motion is
reviewed for abuse of discretion. (People v. Harris (2013) 57
Cal.4th 804, 848.)
Unauthorized contact between a juror and a witness is
improper (People v. Cowan (2010) 50 Cal.4th 401, 507) and
raises a presumption of prejudice (People v. Gamache (2010) 48
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Cal.4th 347, 397). Such a presumption will be rebutted if the
entire record indicates there is no substantial likelihood that
one or more jurors were actually biased against the defendant.
(In re Hamilton (1999) 20 Cal.4th 273, 296.) Contact between a
juror and witness, however, can be nonprejudicial if there is no
showing that the contact related to the trial. (Cowan, at p. 507.)
Defendant contends the court erred because it failed to
apply a presumption of prejudice. Defendant, however, points
to no place in the record that suggests the trial court failed to
apply the law correctly. Quite the opposite: the trial court
clearly stated that it found both the investigator and the juror
committed misconduct and thoroughly questioned each juror
and Hrdlicka to determine the extent of the conversations and
interactions, and if there was the possibility of prejudice or bias
amongst each juror.
Defendant further contends the court abused its discretion
when it found there was no prejudice arising from the
interactions with Hrdlicka and denied defendant’s motion for a
mistrial. Defendant’s claim fails because there is no substantial
likelihood that the jurors’ encounters with Hrdlicka resulted in
any bias. Of the 12 seated jurors and three alternates, seven
had never spoken to or interacted with Hrdlicka. Three of those
seven jurors never spoke with Hrdlicka but heard other jurors
comment in passing that they liked his ties. Four jurors noticed
and liked Hrdlicka’s ties but never spoke to him.
Of those jurors who had some interaction with Hrdlicka,
five acknowledged commenting to Hrdlicka directly regarding
his ties, including Juror No. 174. Juror No. 287 said “unusual
tie” as Hrdlicka walked past him, but he did not recall if
Hrdlicka replied and did not even know Hrdlicka’s name. Juror
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No. 213 once asked Hrdlicka what was on his tie that day but
did not remember if or how Hrdlicka responded. Juror No. 263
commented once that Hrdlicka had on a “curious tie.” He
responded with “nothing more than ‘thank you’ or an
acknowledgment.” Alternate Juror No. 157, who was seated
after Juror No. 174’s dismissal, also told Hrdlicka that she liked
his light bulb tie. Hrdlicka did not respond. Every juror
confirmed that their interactions with Hrdlicka did not affect
their deliberations or ability to remain impartial about the case.
In People v. Loker (2008) 44 Cal.4th 691, a juror engaged
in conversation with the deceased victim’s father about both of
them serving in the United States Marine Corps and the father’s
upcoming surgery. (Id. at pp. 754–755.) We held that the
interaction, while misconduct, was harmless. In People v. Jones
(1998) 17 Cal.4th 279, a juror asked the victim’s mother if she
was related to the victim, and a second juror told the victim’s
husband that a former neighbor said hello. (Id. at p. 309.) We
held the communications were misconduct but not egregious,
and counsel was not ineffective for failing to challenge the
jurors’ continued service. (Id. at p. 310.) In People v. Stewart
(2004) 33 Cal.4th 425, a juror told the defendant’s ex-girlfriend
that she was beautiful. (Id. at p. 509.) We held the trial court
did not err in denying the defendant’s motion for a new trial on
the basis of the misconduct.
Although Hrdlicka’s engagement with Juror No. 174 was
misconduct, the conduct in the present case is no more egregious
than the conduct in these cases. The interactions between the
jurors and Hrdlicka were minimal and unrelated to the case,
with most of them focused on small talk around Hrdlicka’s
neckties, and the fairness of the trial was in no way affected by
the misconduct. (See People v. Miranda (1987) 44 Cal.3d 57,
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117–118 [verdict will not be disturbed when misconduct is of
such a trifling nature that it does not appear to affect the
fairness of the trial].) The trial court did not abuse its discretion
when it denied defendant’s motion for a mistrial based on lack
of prejudice.
B. Absence from Hearing
Defendant contends the trial court deprived him of his
right to due process, right of presence, and a fair penalty trial
by holding a hearing in his absence.
The jury began its penalty phase deliberations on Monday,
April 26, 1999. The following Monday, on May 3, the trial court
held a closed hearing. The court informed the parties that the
previous Friday, Juror No. 12 contacted the bailiff and told him
that she was contacted by an individual who identified himself
as defendant. Defendant was not present at the hearing. The
court expressed a concern for how the juror would feel if
defendant were in the courtroom, and the court wanted to hear
from her what exactly happened the previous Friday. Defense
counsel agreed that defendant should not be in the courtroom.
The court questioned Juror No. 12 regarding the phone
call. She explained that on Friday afternoon, she received a
phone call and the person asked, “Is this (Juror 12)?” She said,
“Who is this?” The caller said, “Well, I need to know if this is
(Juror 12). Then I know.” The juror said, “Well, this is.” The
called replied, “This is Charles.” At first the juror thought the
caller was her ex-husband, who was also named Charles, and
that maybe something was wrong. She said, “Well who is this?”
The caller again asked if she was Juror 12. She again said,
“Well, who is this?” And he again said, “This is Charles.” She
said, “Charles who? Who is this?” The caller replied, “Are you
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the (Juror 12) that is on the jury?” She asked the caller, “Is this
Charles Ng?” He said, “Oh, I am sorry. I just wanted to tell you,
you are very nice.” The juror asked how he got her phone
number, and he replied, “I had a friend help me.” The juror told
him that he could not call her and hung up. She called the bailiff
to report the incident.
Juror No. 12 did not recognize the voice of the caller. She
explained that she did not pay attention at first because she
thought the caller was someone else. She said the voice sounded
very quiet and like he had an accent, but she could not identify
what kind of accent. The court asked her opinion on her ability
to remain objective as a juror. She did not think it would be a
problem and explained that the call had nothing to do with
deliberations. She agreed not to tell the other jurors about the
phone call.
The prosecution asked the trial court what time the phone
call occurred. The bailiff said 3:30 p.m., and that he had
contacted the jail to determine if defendant had been on the
phone at that time. The sergeant he spoke with confirmed that
defendant used the phone for two hours until approximately
3:30 p.m. The court told the parties that after the bailiff
received the report from the juror, it ordered defendant not to
have access to the telephone through the remainder of
deliberations.
The court asked defense counsel if he wanted time to think
about his position and get back to the court later. Counsel said
he did not believe prejudice had been shown, and the jurors
should continue to deliberate. The prosecution agreed. The
court asked if they should bring defendant into the courtroom to
apprise him of what happened. Defense counsel stated that he
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would prefer to inform defendant himself, unless the court felt
like it needed to do so. The court said that if it needed to inform
defendant directly, it would have had defendant at the hearing
and reiterated that “it was appropriate to have this hearing
outside of his presence.”
The court called Juror No. 12 back into the courtroom. The
court told the juror that they did not know who exactly placed
the phone call to her and asked if she could “totally disregard”
the incident. The court reminded the juror that if at any point
she believed she could no longer abide by the court’s instructions
to please let them know. The juror said that she would be fine,
but if she did have a problem, she would let the court know.
The jury reached a verdict shortly after the hearing.
Before the jury entered the courtroom, the court confirmed that
defendant had been told about the closed hearing. Defense
counsel confirmed that he told defendant. The court said, “You
were not invited for several reasons. One is I was concerned
that you would react one way or another; that would create
problems which we avoided by not having you here. I didn’t
want to lose a juror without good cause. And all counsel agreed
to the proceeding.” Defendant replied, “Over my objection.”
That evening, investigators from the Orange County
Sheriff’s Department searched defendant’s cell and found Juror
No. 12’s home phone number. The investigation revealed that
defendant knew the jurors’ names, and Juror No. 12’s phone
number was listed in the phone book. Phone records showed
that on the day the juror received the call, at 3:23 p.m., someone
placed a three-minute call to her phone number from the
“Module J vestibule” phone at the Orange County jail. The jail’s
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logs confirmed that at the same time, defendant was using that
phone.
In defendant’s subsequent motion for a new trial, he
argued that the trial court violated his state and federal
constitutional rights by excluding him from the hearing. In its
opposition, the prosecution argued that defendant was barred
from benefitting from his own wrongdoing. The court denied
defendant’s claim, noting that defense counsel waived
defendant’s right to be present at the hearing and, as the
prosecution argued, he had no right to benefit from his own
misconduct.
“Under the Sixth Amendment’s confrontation clause, a
defendant has the right to be personally present at any
proceeding in which his appearance is necessary to prevent
‘interference with [his] opportunity for effective cross-
examination.’ [Citations.] The Fourteenth Amendment
guarantees the right to be present as a matter of due process at
any ‘stage . . . that is critical to [the] outcome’ and where the
defendant’s ‘presence would contribute to the fairness of the
procedure.’ ” (People v. Harris (2008) 43 Cal.4th 1269, 1306.)
We have previously held, however, that neither the state nor
federal Constitution, nor any statutory requirement, provides a
defendant with the right to be present at hearings or discussions
outside the jury’s presence “on questions of law or other matters
as to which his presence bears no reasonable, substantial
relation to his opportunity to defend the charges against him.”
(Ibid.; see People v. Rogers (2006) 39 Cal.4th 826, 855.)
Defendant had no right to be present at the hearing on his
phone call to Juror No. 12. It is well settled that the removal of
a juror is not a matter for which a defendant is entitled to be
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present. (People v. Harris, supra, 43 Cal.4th at p. 1310; see
United States v. Gagnon (1985) 470 U.S. 522, 527; People v.
Ochoa (2001) 26 Cal.4th 398, 435–436.) Defendant now argues
that if he had been present, he could have explained that he felt
alienated by his counsel and the trial court, and that he
responded to a smile from Juror No. 12 by reaching out to the
one sympathetic person he saw in the courtroom. He contends
he would have explained that he did not call to intimidate,
frighten, or influence the juror. Defendant’s reasons for calling
the juror are irrelevant, however, as any contact between
defendant and the juror was improper. (See People v. Harris, at
p. 1310.) Defendant’s absence from the hearing did not
constitute error.
C. Exclusion of Mitigating Evidence
1. Skipper Error
Defendant contends the trial court deprived him of his
rights to due process and a fair penalty trial when it excluded
mitigating evidence. Specifically, defendant attempted to elicit
testimony from correctional officers regarding the behavior of
other inmates as compared to defendant’s behavior in prison.
The defense called several witnesses to testify regarding
defendant’s good behavior in prison, including Correctional
Officers James Tinseth, Maurice Geddis, and Gerald Coleman.
Tinseth was one of defendant’s “handlers” at Folsom State
Prison, which meant he assisted with restraining defendant
during transports from the prison to the courthouse. Tinseth
described the type of restraints used on defendant, including a
“Martin chain,” which ran vertically down defendant’s back and
then hooked into the leg chain. The officers also used a leather
strap that pulled his arms toward his back and was secured by
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a padlock. Tinseth testified that defendant was always
compliant and courteous, and he never had any trouble with
defendant.
Geddis testified that he was also assigned to defendant’s
team of security escorts. Like Tinseth, Geddis testified that
defendant never refused a directive and was always compliant
and courteous. Defense counsel asked Geddis, “There had been
other inmates during your time that you did have trouble with;
is that correct?” Geddis confirmed it was correct. Counsel asked
if when another inmate wore the Martin chains, he would still
“act out.” The prosecution objected on relevance grounds, and
the trial court sustained the objection.
Coleman testified that he worked in the Folsom State
Prison library from 1991 through 1995, during which time he
came into contact with defendant. When defendant wanted to
use the library, two officers would escort him there. Sometimes
Coleman would be one of the officers to escort defendant.
Coleman testified that defendant never acted out or caused a
problem while walking to and from the library. He was always
polite and courteous. Defense counsel asked Coleman if he had
ever feared for his safety while escorting other inmates. The
prosecution objected on relevance grounds, and the trial court
sustained the objection.
Defendant contends the trial court deprived him of his
constitutional right to present mitigating evidence. He asserts
the excluded testimony was necessary to show that he behaved
well in prison because of his character, not because of the
restraints.
In Skipper v. South Carolina (1986) 476 U.S. 1, the United
States Supreme Court held that “evidence that the defendant
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would not pose a danger if spared (but incarcerated) must be
considered potentially mitigating. Under Eddings [v.
Oklahoma (1982) 455 U.S. 104], such evidence may not be
excluded from the sentencer’s consideration.” (Id. at p. 5, fn.
omitted.) The erroneous exclusion of evidence pursuant to
Skipper does not automatically require reversal, but instead is
reversible unless it is harmless beyond a reasonable doubt.
(People v. Fudge (1994) 7 Cal.4th 1075, 1117; see Chapman v.
California (1967) 386 U.S. 18.)
Defendant’s argument fails on the merits. As described
above, the defense presented extensive testimony from several
witnesses, including Tinseth, Geddis, and Coleman, that
defendant was a well-behaved inmate, listened to direction, and
never acted out. The trial court sustained the prosecution’s
objections to defense questions concerning the conduct of other
inmates in the officers’ custody. Other correctional officers
testified that defendant was a “class A inmate,” quiet and
respectful, and a model inmate. Without any obvious
comparison to defendant, evidence regarding other inmates in
prison was irrelevant to whether defendant would pose a threat
when incarcerated, and defendant cites no law suggesting
otherwise. The trial court did not exclude mitigating evidence
under Skipper and did not abuse its discretion when it excluded
the evidence that defendant now challenges.
2. Racial Discrimination
Defendant contends the trial court erred when it excluded
evidence that he encountered racial discrimination while
serving in the Marine Corps.
After defendant was arrested for breaking into the
military armory in Hawaii in 1981, he escaped custody and fled
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to California. Sergeant Bradley Chapline was in charge of
defendant’s guard detail once he was returned to custody in
Hawaii. Chapline testified that defendant was hospitalized
with a broken leg for several months at the army hospital before
he could be transferred to federal prison. Chapline explained
that he had several conversations with defendant while
guarding him in the hospital.
Defense counsel asked Chapline if he ever learned that
other guards had mistreated defendant while in the hospital.
The prosecutor objected on hearsay grounds, and the trial court
sustained the objection. He clarified that some nurses on duty
reported incidents to him, and he in turn admonished other
Marines that the incidents “better never happen again.” When
counsel asked if it was difficult for minorities to move up in rank
in the Marines, Chapline opined that it would be difficult.
Defendant had told Chapline that he believed his race prevented
him from becoming a Marine officer.
On redirect, counsel attempted to elicit testimony that
defendant may have experienced racism while serving in the
Marine Corps. Counsel asked Chapline about injuries
defendant sustained at the hands of other Marines when he was
in the hospital. The prosecution objected, arguing that the
question assumed facts in evidence, called for hearsay, and
lacked personal knowledge. The court sustained the objection.
Counsel asked Chapline if he had ever seen other Marines
stabbing defendant in the feet with needles while he lay in the
hospital. The prosecution objected because the question
assumed facts not in evidence, and the court sustained the
objection. Counsel asked Chapline if the Marines he
admonished regarding defendant were Caucasian; Chapline
confirmed that they were.
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Defense counsel then asked, “With regard to the actual
Marines that you had to admonish who had been guarding
[defendant], did you see those Marines stabbing [defendant’s]
feet with these pins?” The prosecution again objected due to the
question assuming facts not in evidence, and the court again
sustained the objection.
After Chapline finished testifying and the court excused
the jury for an afternoon recess, defense counsel sought further
clarification. The court explained that his question “assumes
that the latter part happened. You have to lay the foundation.
Were you there during the second shift? No. If yes, what did
you observe? Or, oh, I observed Marines sticking needles in his
foot. That is how you get it in. You know he wasn’t there or you
would have got it in. There is a way to do it properly.” Counsel
replied, “Perhaps you are right, Judge.”
Defendant argues that the trial court deprived him of due
process and a fair penalty trial by excluding Chapline’s
testimony regarding “racial harassment and tormenting” by
other Marines. He asserts this evidence was relevant to help
explain why defendant broke into the armory and, after facing
road blocks in the Marine Corps, why he may have attached
himself to Lake. Defendant’s argument is unavailing as the trial
court did not exclude the evidence on relevance grounds but did
so because counsel’s questions lacked a proper foundation and
assumed facts not in evidence.
Furthermore, the trial court did not err. As the court
noted, Chapline did not personally observe any mistreatment by
other Marines and only knew what had been reported to him by
nurses. (See Evid. Code, § 702, subd. (a) [“the testimony of a
witness concerning a particular matter is inadmissible unless
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he has personal knowledge of the matter”].) Chapline properly
testified regarding his admonitions to the other Marines but
could not testify regarding an incident he did not perceive
himself. Additionally, defendant was successful in admitting
some evidence of racial discrimination. Although the defense
was unable to introduce evidence of specific mistreatment,
Chapline did opine while testifying that it would be difficult for
minorities to move up in rank. Chapline also testified that
defendant believed his race prevented him from becoming an
officer and that the Marines he admonished for misbehaving
were all Caucasian. The trial court did not exclude competent
evidence of racial discrimination or possible discrimination.13
13
Defendant makes a series of arguments concerning the
exclusion of Chapline’s testimony for the first time in his reply
brief, asserting that: (1) the evidence was admissible under
Evidence Code section 1250, which provides that evidence is not
made inadmissible by the hearsay rule when it is offered to
prove the declarant’s state of mind; and (2) the Eighth
Amendment required the admission of the evidence (see Green
v. Georgia (1979) 442 U.S. 95 [holding that a defendant’s due
process rights at a penalty trial are violated when a trial court
excludes “highly relevant” hearsay testimony]; see also People v.
Eubanks (2011) 53 Cal.4th 110, 150 [under Green, the proffered
evidence must bear “ ‘special indicia of reliability’ ”]). “It is
axiomatic that arguments made for the first time in a reply brief
will not be entertained because of the unfairness to the other
party.” (People v. Tully (2012) 54 Cal.4th 952, 1075.) These
claims are thus forfeited. (See People v. Rangel (2016)
62 Cal.4th 1192, 1218–1219.) In any event, we note that
Evidence Code section 1250 and Green address the admissibility
of evidence that would otherwise be excluded by the hearsay
rule. However, the trial court here excluded Chapline’s
testimony not solely on hearsay grounds, but also because the
witness lacked personal knowledge and the questions assumed
facts not in evidence.
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D. Instructional Error
1. Lingering Doubt
During the penalty phase, the defense requested
instructions on lingering doubt as a mitigating factor. The
prosecution objected, arguing that such an instruction is not
required under the federal or state Constitutions and the
concept was adequately covered in other instructions. The trial
court agreed and denied the defense’s request but told counsel
that he could argue lingering doubt to the jury. During closing
argument, counsel argued that if the jurors had any lingering
doubt about whether defendant was actually the killer, that
should be given a substantial amount of weight when trying to
decide the appropriate penalty.
Defendant now contends the trial court erred when it
refused to instruct the jury on lingering doubt. We have
repeatedly held that neither state nor federal law requires the
trial court to instruct on lingering doubt and see no reason to
revisit this holding now. (See People v. Ramirez (2021) 10
Cal.5th 983, 1030; People v. Rivera (2019) 7 Cal.5th 306,
346; People v. Anderson (2018) 5 Cal.5th 372, 425; People v.
Boyce (2014) 59 Cal.4th 672, 708.)
2. Aggravating Factors
The defense asked the court to instruct the jury that it
could impose a life sentence even if the aggravating factors
outweighed the mitigating factors. The prosecution objected,
arguing this was a misstatement of law. The trial court agreed
that the defense’s request was inconsistent with controlling
authority. Defense counsel asked if the prosecutor would object,
and if the court in turn would sustain the objection, if he argued
to the jury that they could still return a verdict of life without
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the possibility of parole if they found the aggravating factors
substantially outweighed the mitigating factors. The court
confirmed that if counsel argued something inconsistent with
the law, it would sustain an objection. The court told counsel,
however, that he could correctly tell the jury that they are never
required to return a verdict of death.
Defendant acknowledges that he is not entitled to an
instruction that the jury can choose a life sentence when the
aggravating factors outweigh the mitigating factors, and thus,
his claim fails. (People v. Morgan (2007) 42 Cal.4th 593, 625–
626; People v. Kipp (1998) 18 Cal.4th 349, 381; People v.
Medina (1995) 11 Cal.4th 694, 781–782.) The trial court did not
err when it refused to allow counsel to make such an argument.
E. Judicial Bias
Defendant contends he was deprived of due process and
fair guilt and penalty trials because of pervasive judicial bias
and misconduct. Defendant asserts bias from three of the judges
who oversaw proceedings: Judge McMartin in Calaveras
County, Judge Fitzgerald in Orange County, and Judge Ryan in
Orange County.
Defendant’s claims lack merit. He fails to demonstrate the
presence of misconduct or bias, let alone that “any judicial
misconduct or bias was so prejudicial that it deprived defendant
of ‘ “a fair, as opposed to a perfect, trial.” ’ ” (People v. Guerra
(2006) 37 Cal.4th 1067, 1112 (Guerra); see People v. Maciel
(2013) 57 Cal.4th 482, 533.)
Defendant first asserts that Judge McMartin committed
misconduct by manipulating the selection process to send the
case to Orange County for trial and deliberately thwarted
defendant’s efforts for San Francisco to be considered as the
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venue. As previously discussed, the court in Calaveras County
did not err when it transferred the case to Orange County, nor
did the court deliberately prevent the case from being
transferred to San Francisco. Defendant, therefore, cannot
establish that Judge McMartin committed misconduct or
exhibited bias.
Defendant next asserts that Judge Fitzgerald was biased.
Judge Fitzgerald was assigned to the case in October 1994, after
it was transferred to Orange County. The Court of Appeal
ordered Judge Fitzgerald disqualified from the case in February
1997. (Ng, supra, 52 Cal.App.4th 1010.) The Court of Appeal
explicitly did not determine whether Judge Fitzgerald was
biased, but rather, found that the interests of justice required a
different judge to preside over defendant’s proceedings. (Id. at
p. 1024.)
The Court of Appeal’s opinion stemmed from Judge
Fitzgerald relieving Kelley and OCPD, following a Marsden
motion in August 1996. One week later, defendant moved to
reinstate OCPD as his counsel. The prosecution also filed a
motion to vacate the earlier order. The court denied the request.
Defendant sought a writ of mandate directing the trial court to
vacate its order denying his motion and reinstate the public
defender, which the Court of Appeal denied. We subsequently
granted his petition for review and transferred the matter back
to the Court of Appeal with directions to vacate the order
denying mandate and to issue an alternative writ. (Ng, supra,
52 Cal.App.4th at p. 1015.)
After the appellate court issued an alternative writ, Judge
Fitzgerald filed a return and a declaration explaining the
reasons for his decision. (Ng, supra, 52 Cal.App.4th at p. 1015.)
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The Court of Appeal held that with the exception of unusual
circumstances, “the requirement of neutrality prohibits judges
from having a stake in the outcome of the appellate decision in
‘their’ cases.” (Id. at p. 1020.) The court found it would be
inappropriate to consider the judge’s return and its
accompanying declaration. (Id. at pp. 1020–1021.)
The Court of Appeal held that the trial court abused its
discretion by relieving appointed counsel and compounded its
error by refusing to reinstate the public defender. (Ng, supra,
52 Cal.App.4th at p. 1023.)
In addressing previously filed petitions seeking review of
orders denying motions to disqualify the judge, the appellate
court noted that Judge Fitzgerald “had an unusual personal
interest in handling the case.” (Ng, supra, 52 Cal.App.4th at
p. 1023.) As an example, the appellate court noted that in
connection with a motion to change venue, Judge Fitzgerald
said, “ ‘Candidly, this court wants to try this case. My ego tells
me that I’m in a better posture than anybody around to do it
with the experience I have had.’ ” (Ibid.) This comment and
comments made by the judge in connection with Marsden
proceedings, combined with facts disclosed in previous petitions,
led the appellate court to conclude that Judge Fitzgerald should
be disqualified. (Ibid.) As noted above, however, the court did
not make a finding of actual bias but instead concluded, because
of a potential for a perceived appearance of impartiality, Judge
Fitzgerald should be disqualified. (Id. at p. 1024.)
The decision in Ng does not support a conclusion that
Judge Fitzgerald exhibited misconduct or bias. A judge should
be disqualified when “[a] person aware of the facts might
reasonably entertain a doubt that the judge would be able to be
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impartial.” (Code Civ. Proc., § 170.1, subd. (a)(6)(A)(iii).)
Disqualification, however, does not necessarily entail a finding
of bias. (See People v. Freeman (2010) 47 Cal.4th 993, 996 [“a
showing of actual bias is not required for judicial
disqualification under the due process clause”].) As detailed
above, the venue motions that Judge Fitzgerald presided over
were correctly decided. Defendant, therefore, can point to
nothing in the record to demonstrate that Judge Fitzgerald was
biased or that his trial was unfair.
Finally, defendant contends Judge Ryan’s evidentiary
rulings consistently favored the prosecution, supporting an
inference of judicial bias. His claim against Judge Ryan also
fails. “[A] trial court’s numerous rulings against a party — even
when erroneous — do not establish a charge of judicial bias,
especially when they are subject to review.” (Guerra, supra, 37
Cal.4th at p. 1112.) And, as previously discussed, Judge Ryan’s
evidentiary rulings were not erroneous nor did they indicate
bias against the defense.
IV. OTHER ISSUES
A. Challenges to Death Penalty Law
Defendant raises several challenges to California’s death
penalty law that we have considered and rejected. He provides
no persuasive reason for us to reexamine the following
conclusions:
The death penalty statute “is not invalid for failing to
require (1) written findings or unanimity as to aggravating
factors, (2) proof of all aggravating factors beyond a reasonable
doubt, (3) findings that aggravation outweighs mitigation
beyond a reasonable doubt, or (4) findings that death is the
appropriate penalty beyond a reasonable doubt.” (People v.
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Snow (2003) 30 Cal.4th 43, 126 (Snow).) These conclusions are
not altered by the United States Supreme Court’s decisions in
Apprendi v. New Jersey (2000) 530 U.S. 466 or Ring v. Arizona
(2002) 536 U.S. 584. (People v. Simon (2016) 1 Cal.5th 98, 149.)
The high court’s decision in Hurst v. Florida (2016) 577 U.S. 92,
which invalidated Florida’s capital sentencing scheme, does not
invalidate California’s law because our sentencing scheme is
“ ‘materially different from that in Florida.’ ” (People v.
Becerrada (2017) 2 Cal.5th 1009, 1038; People v. Rangel (2016)
62 Cal.4th 1192, 1235, fn. 16.)
“Allowing the jury to consider the circumstances of the
crime (§ 190.3, factor (a)) does not lead to the imposition of the
death penalty in an arbitrary or capricious manner.” (People v.
Kennedy (2005) 36 Cal.4th 595, 641.)
“Comparative intercase proportionality review by the trial
or appellate courts is not constitutionally required.” (Snow,
supra, 30 Cal.4th at p. 126.)
“California’s death penalty law ‘adequately narrows the
class of murderers subject to the death penalty’ and does not
violate the Eighth Amendment. [Citation.] Section 190.2,
which sets forth the circumstances in which the penalty of death
may be imposed, is not impermissibly broad in violation of the
Eighth Amendment.” (People v. Williams (2013) 58 Cal.4th 197,
294.)
California’s death penalty does not violate international
law or international norms of decency. (People v. Thomas (2012)
53 Cal.4th 771, 837.)
B. Cumulative Error
Defendant contends reversal is warranted because of the
cumulatively prejudicial effect of the guilt and penalty phase
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errors. We have assumed two errors — the court’s failure to
hold a hearing pursuant to section 987.05 and the admission of
Gouveia’s testimony — and found no prejudice from either; we
further conducted a harmless error analysis as an alternate
conclusion to two additional claims — the admission of
Laberge’s testimony and excluded defense testimony regarding
Lake — and concluded that defendant suffered no prejudice.
Thus, no cumulative effect warrants reversal.
V. CONCLUSION
The judgment is affirmed.
GROBAN, J.
We Concur:
CORRIGAN, J.
LIU, J.
KRUGER, J.
JENKINS, J.
GUERRERO, J.
POLLAK, J. *
*
Presiding Justice of the Court of Appeal, First Appellate
District, Division Four, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
178
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Ng
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal XX
Original Proceeding
Review Granted (published)
Review Granted (unpublished)
Rehearing Granted
__________________________________________________________
Opinion No. S080276
Date Filed: July 28, 2022
__________________________________________________________
Court: Superior
County: Orange
Judge: John J. Ryan
__________________________________________________________
Counsel:
Eric S. Multhaup, under appointment by the Supreme Court, for
Defendant and Appellant.
Kamala D. Harris and Rob Bonta, Attorneys General, Michael P.
Farrell, Assistant Attorney General, Ward A. Campbell and Kenneth
N. Sokoler, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Eric S. Multhaup
35 Miller Avenue, #229
Mill Valley, CA 94941
(415) 381-9311
Kenneth N. Sokoler
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 95814
(916) 210-7751