The People v. Edwards

Filed 8/22/13

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S073316

v. )

)

ROBERT MARK EDWARDS, )

) Orange County

Defendant and Appellant. ) Super. Ct. No. 93WF1180

_______________________________)

Defendant Robert Mark Edwards was convicted of the first degree murder of

Marjorie Deeble. (Pen. Code,1 §§ 187, subd. (a), 189.) The jury also found true

the special circumstance allegations of burglary-murder and torture-murder.2

(§§ 190.2, subd. (a)(17), (18).) The jury was unable to reach a penalty verdict, and

the trial court declared a mistrial. At the second penalty phase trial, the jury

returned a death verdict, and the trial court entered a judgment of death. This

appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); § 1239, subd. (b).) For

the reasons that follow, we affirm the judgment.

1 All further undesignated statutory references are to the Penal Code.

2 Before trial, the trial court dismissed a prior-murder special-circumstance

allegation because of insufficient evidence, and a burglary count because it was

barred by the statute of limitations.

1

I. FACTUAL BACKGROUND

A. Guilt Phase

1. Prosecution Evidence

a. Murder of Marjorie Deeble

1) The crime scene and condition of the victim’s body

In the late afternoon of Thursday, May 15, 1986, Marjorie Deeble was found

dead in her single story apartment on Green Street in Los Alamitos, California.

The front screen door was closed but unlocked, and the wooden front door was

open approximately four inches. There was no sign of forced entry. The screen

from a window next to the door had been removed, and was leaning against the

building.

Inside the home, loud music was playing in the southeast bedroom. Deeble

was discovered in this bedroom. She was lying face-down on the floor between

the bed and a dresser. She was wearing a long nightgown that had been pushed up

around her waist and no panties. The bottom of the nightgown had been either cut

or ripped. Her hands were tied behind her back with material from the nightgown,

and with torn telephone cord.

Deeble‘s neck was in a noose made from a thin belt. The end of the belt was

tied to the top drawer handle of the dresser, so that her neck was suspended about

eight inches above the floor. The drawer was open about six to eight inches.

Blood had run out of her left ear and mouth, and there was blood around her nose.

There were two wounds on her neck, one underneath the belt and one just below.

Her left leg was bent and leaning against the bed. Her right leg was fully extended

and underneath the bed. Inside Deeble‘s thigh was a stain that could have been

dried semen. She was barefoot, and her ankles bore marks that might have been

ligature marks.

2

A cylindrical mousse can was found in a bed covering on top of the bed. A

substance underneath the ridge around the top of the can appeared to be blood, and

gave a positive response to a presumptive test for blood. A cap found on the

ground next to Deeble appeared to be one that could fit the mousse can. A

substance that appeared to be blood was observed just inside the opening of the

cap ―in a position that if the cap had been placed upon the mousse can, it might

have transferred.‖

On the floor, a pillowcase, a dress, and a scarf were wrapped together with

adhesive tape. The dress was bloodstained. The pillowcase was also

bloodstained. It was tied to resemble a hood, and appeared to have been cut with

pinking shears. More blood was inside the pillowcase than was on the outside.

A sheet was found on the floor. A strip approximately 66 inches long and 15

inches wide had been cut and torn from the left side of the sheet. The irregular

cutting was possibly made by the use of pinking shears. A telephone cord and an

electrical cord were found tied together either on the floor or on the bed.

The bedroom had been ransacked. Garments lay in the middle of the room,

items were knocked over on the credenza, dresser drawers were open, and the

contents of a purse were strewn on the floor. A telephone that appeared to have its

cord ripped off was against the wall.

Dr. Robert Richards, a pathologist, performed Deeble‘s autopsy. Because

Dr. Richards had retired by the time of trial, his partner, Dr. Richard Fukumoto,

testified regarding the autopsy findings. In light of defendant‘s appellate claims

that this testimony violated his confrontation clause rights (see post, at pt. II.B.2.),

that the trial court erred in admitting evidence of the uncharged murder of Muriel

Delbecq (see post, at pt. II.B.3.), that the evidence is insufficient to support the

murder conviction on a theory of torture murder or burglary murder, and that the

evidence is insufficient to support the jury‘s true findings on the torture-murder

3

and burglary-murder special-circumstance allegations (see post, at pts. II.B.4.,

II.B.5.), we recount the autopsy findings in detail.

Deeble had bruises in her vaginal area, primarily on the labia and vaginal

vault. There was bruising and tearing just inside the opening to the vagina, and a

tear and hemorrhaging in the area of the posterior fourchette, or the bottom of the

opening to the vagina. On one microscopic slide, Dr. Richards had noted an

―underlying submucosal hemorrhage.‖ Dr. Fukumoto testified that the ―lining of

the vaginal wall is called the mucosa, so a submucosa means the area below that

lining of the surface.‖ A ―submucosal hemorrhage‖ means that ―there is bleeding

beneath the surface lining of the mucus membrane.‖ No tissue response was

noted, which Dr. Fukumoto said meant that the injury to the vaginal area was

probably less than eight hours old. Deeble‘s anus was dilated, and bruising and

small mucosal lacerations were observed just inside the anus. Dr. Fukumoto

opined that the dilation of the anus could have been caused by a finger, penis, or

any number of other objects.

Dr. Fukumoto agreed with the prosecutor that the vaginal and rectal areas are

―full of lots of nerve endings,‖ and so trauma to those areas is ―highly painful.‖

He opined the injuries were caused by an object that did not have sharp edges, and

that exhibit No. 16, the mousse can found in Deeble‘s bed, was consistent with an

object that could have caused the injuries. From the microscopic examination,

Dr. Fukumoto opined that the injuries to the vaginal and rectal areas were inflicted

before death.3

3 The prosecutor asked Dr. Fukumoto if ―[f]rom the microscopic examination‖ he

could determine whether the injuries to the vaginal and rectal area ―were caused

before or after death,‖ and Dr. Fukumoto replied ―Yes,‖ and subsequently stated

without elaboration his opinion that the injuries occurred before death. The

―microscopic examination‖ presumably refers to Dr. Fukumoto‘s examination of

―microscopic slides,‖ which he defined as ―slide preparations of tissues from

4

There was bleeding in the tissues near the tail of Deeble‘s pancreas.

Dr. Fukumoto testified that the pancreas is an organ located deep within the body,

and it requires a ―tremendous amount of . . . localized‖ blunt force to the area to

damage the pancreas. In the stomach area, Dr. Richards had observed food that

was virtually untouched by digestion. Dr. Fukumoto opined that such a finding

would indicate that Deeble died within an hour after eating.

Blood was coming out of Deeble‘s left ear, and there was extensive

hemorrhaging in the middle ears which extended from the middle ear into the bone

of the skull. The right ear drum was torn, and the left ear drum had a break that

according to the autopsy report was ―incisional.‖ Dr. Fukumoto explained: ―[A]n

incision to a forensic pathologist . . . . is not a tear. It is something that is caused

by a sharp instrument or an instrument that has a point.‖ Dr. Fukumoto said that

―if the ear drums are torn, associated with massive bleeding in the middle ears, this

could be due to a massive increase in pressure as a result of the struggle of the

victim in his or her attempt to get a breath.‖ Dr. Fukumoto opined that an amount

of pressure that would tear an ear drum, and the infliction of an incisional injury to

an ear drum would, in each case, be extremely painful.

Dr. Richards‘s most prominent finding from the neck up was ―marked

engorgement‖ — which occurs when blood vessels are dilated and filled with

blood — in the neck, upper neck, and face area. Dr. Fukumoto testified that

strangling can have this effect, and when there is venous but not carotid

compression, the face becomes red and eventually bluish or purplish as well as

(footnote continued from previous page)

various organs which the pathologist has taken . . . for pathologists to look at in

case somebody has to review the case.‖ In addition, the prosecutor asked Dr.

Fukumoto about the ―microscopic examination that Dr. Richards did as well that

you yourself did . . . on the area of the vagina.‖

5

engorged.4 The whites of Deeble‘s eyes had conjunctival hemorrhages, or

bleeding, and there was a marked swelling of the eyelids. There were abraded

lacerations in the left chin area. There was a crescent in the bridge area of the

nose that was consistent to Dr. Richards with ―fracturing of the bridge.‖

Dr. Richards palpated Deeble‘s nose and believed that it was broken, but no

fracture was visible to him on an x-ray. Dr. Fukumoto reviewed x-rays of the nose

and testified that one showed ―somewhat flattening‖ that ―may reflect fracturing at

the bridge of [the] nose.‖ An internal examination revealed numerous pinpoint

hemorrhages in the scalp and muscle tissue which were evidence of trauma, and

subarachnoid hemorrhaging inside the skull. Dr. Fukumoto opined that the

injuries above the neck were the result of blunt force trauma, and that Deeble had

suffered at least one significant blow to her face. A substance that appeared to be

the residue of adhesive tape was observed in an area extending from the mouth

over to the lower left cheek.

An autopsy photograph showed a deep furrow created by the ligature around

Deeble‘s neck. Dr. Fukumoto opined that features of the furrow indicated that

there was an ―abrasive sideways movement‖ either by the victim in an attempt to

loosen the ligature, or by the perpetrator as he moved the ligature back and forth,

and that the ligature and struggling against it would be extremely painful.

Dr. Fukumoto stated that when one is strangled, it takes five to six minutes

for the brain to die, and the individual may lose consciousness well before then; in

an extreme ligature or manual strangulation, loss of consciousness can occur in

4 Dr. Fukumoto testified that engorgement differs from swelling, which is when

there is fluid outside the blood vessels that makes tissue swell up, and has nothing

to do with the presence of blood inside the blood vessels. Swelling indicates that

trauma has been inflicted, especially if it is associated with hemorrhaging.

6

less than a minute. He opined that the cause of death was ―asphyxiation due to

ligature strangulation.‖ This opinion was consistent with that of Dr. Richards.

2) Circumstances surrounding the Deeble murder

Deeble was a real estate agent, and Rebecca Brown was the manager of the

office at which Deeble worked. On Monday May 12, 1986, Deeble mentioned to

Brown that she was leaving for an appointment scheduled for about 5:00 p.m.

Brown understood that Deeble never arrived at the appointment, and she never

saw Deeble alive again. Deeble did not contact Brown on May 13, 14, or 15,

which was highly unusual because Deeble was a top agent and the most active

agent in the office. Brown recalled that during this time period the real estate

market was ―[h]ot, hot.‖

Kathryn Deeble Valentine, Deeble‘s daughter, testified she met defendant in

about March 1986. They began dating shortly thereafter.5 For about two months

before her mother‘s death, Valentine saw defendant every evening, but only

witnessed him drinking once, and once saw him inject cocaine. She never saw

him passed out or ―blacked out‖ on alcohol or drugs.

Valentine saw her mother for the last time on the morning of Monday

May 12, 1986, between 7:00 and 7:30 a.m. Valentine called Deeble several times

between Monday and Thursday of that week and left messages on her answering

machine, but never spoke with her.

In May 1986 Valentine owned a pickup truck to which only she and

defendant had keys. In early May 1986, defendant borrowed the truck for the

weekend, and when the time came to return it, said it was not drivable. Deeble

became upset, and arranged for defendant to take the truck in for repair.

5 At the time she was dating defendant, Deeble‘s daughter shared her last name.

At the time of trial, Deeble‘s daughter‘s last name was Valentine.

7

Deeble would at times leave an apartment key out in a drain pipe in front of

the apartment. Defendant knew the key was there. Valentine also told defendant

that one could access the apartment through a screen window. Defendant had

been inside Deeble‘s home on at least two occasions, once when Valentine

introduced defendant to her mother (the only time they met), and once with

Valentine while Deeble was away.

When Valentine met defendant, his leg was in a cast. During the week of

May 11, 1986, his leg was no longer in a cast, and he could run with a limp, and

―move fast if he needed to.‖

Valentine generally parked her truck in her driveway, positioning the truck so

that it was either before or beyond some juniper bushes so that she could avoid

standing in the bushes when entering or exiting the vehicle. On the night of

May 12, 1986, Valentine parked the truck before the juniper bushes. The

following morning, she had to stand in the juniper bushes to enter her truck,

indicating that someone had moved the truck. Valentine had not given defendant

permission to use the truck the night before.

Valentine and defendant continued to date for about a week after Deeble‘s

body was discovered. Valentine asked defendant to attend Deeble‘s funeral, but

he declined.

Valentine identified — by looking at photographs of Deeble while she was

alive — certain jewelry that Deeble owned but that Valentine never saw again

after Deeble‘s death.

b. Murder of Muriel Delbecq

The prosecutor relied on the other crimes evidence of Muriel Delbecq‘s 1993

murder to demonstrate the identity, common design or plan, and intent of the killer

of Marjorie Deeble.

8

On the evening of January 25, 1993, Peggy Ventura dropped off her 67-year-

old mother, Muriel Delbecq, at Delbecq‘s first floor condominium on Kanoe

Street in Kihei, Maui, Hawaii. The following morning, about 7:30 a.m., Ventura

knocked at Delbecq‘s door and received no response. The front door was closed

and locked, and Ventura used a key to enter. She observed blood on the carpet,

and the living room telephone was missing. Delbecq‘s bedroom door was closed

and locked. Ventura ran outside, alerted neighbors to call 911, and entered her

mother‘s bedroom through a window. There was a comforter over the window,

making the bedroom ―pitch black.‖ The light switch did not work, and Ventura

opened the bedroom door to let in light.

Ventura discovered Delbecq on the bed under a pile of blankets. She was

lying on her back, completely nude. Responding officers testified that Delbecq‘s

legs were spread, and her hands and feet were not bound. Defendant‘s palm prints

were found on the wall, and his bloody right footprint was found on a white

T-shirt. Delbecq‘s bedroom was ransacked, and the carpet appeared soaked with

blood. Cigarette butts were found on the floor of the bedroom and in the

bathroom.

Ventura testified that Delbecq always wore her wedding ring. Maui County

Police Lieutenant Lenie Lawrence, who examined Delbecq at the murder scene,

did not observe any jewelry on Delbecq, but did see a white mark around her left

ring finger indicating a ring had been there.

After being locked out in December 1992, Delbecq told Ventura she was

going to hide a key under a rock outside her condominium. Ventura testified,

apparently based on a photograph, that a window screen in the living room was

9

bowed, and more damaged than she recalled.6 A responding officer testified that a

corner of the window screen in the living room was slightly bent; it appeared the

screen had been taken out and put back improperly. Pieces of dried grass were on

the window sill and on the floor under the window sill.

In a dumpster near Delbecq‘s residence, police found a bloody pillowcase

with a pattern that was consistent with Delbecq‘s bedding. In the pillowcase,

police found a variety of items, including a check for an account held by Muriel

Delbecq and Peggy Ventura, traveler‘s checks, two telephones Ventura identified

as being her mother‘s, two pieces of telephone cord tied together, cut clothing, a

flashlight, a wine bottle, two beer cans, a Seattle Seahawks game schedule, a golf

tag, golf tees, dishwashing liquid, stain remover, shampoo, lotion, disposable

razors, and scissors.

Ventura testified that Delbecq, wearing her swimsuit, walked to the beach

about four blocks away nearly every morning. Lieutenant Lawrence searched

defendant‘s apartment several days after the murder. He found binoculars on a

small table located directly beneath a bedroom window that faced Delbecq‘s

residence. Using the binoculars, he could clearly see what type of vehicle was

entering and leaving the parking lot of Delbecq‘s building.

Dr. Alvin Omori, who conducted the autopsy on Delbecq, testified that her

head and right ear were bruised. There was bruising to the scalp caused by blunt

trauma. Her nose was fractured. There were bruises to her lips, and tears to the

inner portion of her lips, indicating force or pressure was placed over the mouth

area. Her neck was bruised, and her hyoid bone, or the bone located right above

6 Ventura testified that before ―we realized how the screens go in‖ and how to

remove them, ―we had used a knife to kind of pry open the side and lift them out .

. . so there was one corner [where] . . . you could see . . . . it was kind of bent.‖

10

the voice box, was broken. The skin over the voice box had an ―incised type of

abrasion,‖ caused by a sharpened or pointed object being scraped horizontally

across the skin. Similar abrasions appeared on the lower portion of the left neck,

the left anterior chest about the breast, and the breast area, including the nipples of

both breasts. Both breasts were bruised. There was a puncture wound on the left

lower chest. Ligature marks on her wrists and ankles indicated she had been

bound.

The genital area had a pattern of abrasions or scraping of the skin consistent

with fingernail marks. The entrance to the vaginal cavity was bruised, and there

were internal injuries to both the vaginal and rectal areas. There were two

perforations in the vaginal cavity. The first perforation extended into the rectal

cavity. The second perforation was to the right upper portion of the vaginal

cavity, and extended into the abdominal cavity. This perforation was caused by a

mousse can that was found protruding into the abdominal cavity. The rectum was

torn, and the bowel was perforated ―into the abdominal cavity.‖ There was visible

bleeding in both the vaginal and rectal orifices, and approximately 100 cc‘s, or

three and one-third ounces, of blood was in the perforated area of the rectum and

the vaginal cavity. The injuries to the rectal and vaginal area appeared to have

been inflicted before Delbecq‘s death.

The most probable cause of death was ―asphyxia or lack of oxygen due to

strangulation and/or suffocation.‖ The injuries to the vaginal area as well as the

rectal tear were a contributing factor, but were not life threatening by themselves

at the time she was asphyxiated.

11

2. Defense Evidence

a. Testimony of defendant and defendant’s family and friends

Laura McFarland, defendant‘s mother, testified that she married William

Edwards, Sr., in July 1959. Defendant was born in 1961, and had an older brother

William, and a younger sister Elena. The family lived primarily in Florida until

defendant was about nine years old. They then moved to Puerto Rico for about 11

months. Laura left defendant‘s father in July 1974, and she and the children

returned to California. The couple divorced in 1975, and Laura remarried in about

1984. Defendant‘s father died in December 1992.

William, Sr., suspected that defendant was not his child. He first hit

defendant when defendant was about six months old. When defendant was a

child, his father hit or beat him almost daily. He nicknamed defendant and his

brother ―SFB-1‖ and ―SFB-2,‖ which stood for ―shit for brains one and two.‖

William, Sr., was also violent towards Laura.

When defendant was born, his father worked as a bartender and had an

alcohol problem. Laura, who was a registered nurse, also had an alcohol problem,

and in 1972 received a prescription for Valium. She continued to use prescription

Valium off and on until about the late 1970‘s. When defendant was about 11,

Laura was run over by a car while she was intoxicated.

Laura first saw defendant under the influence of drugs when he was 14 years

old, in February 1975. Defendant continued using drugs and alcohol. He

performed poorly in school, and he and his brother committed burglaries to

support their habit.

Laura saw defendant‘s brother William drunk for the first time when he was

14 years of age. Many years later, defendant‘s sister Elena began to have

problems with drugs and alcohol. Defendant‘s paternal grandmother was addicted

to Ativan, and Laura‘s mother was addicted to prescription drugs such as Valium

12

and Percodan. All four of Laura‘s siblings had problems with alcohol, and one of

her sisters was also addicted to Valium.

Defendant testified. He was born in 1961 in Long Beach, California, and

was 35 years old at the time of trial. He dropped out of school when he was in the

eighth grade, and earned money doing day labor and odd jobs. When defendant

was in his late teens and early 20‘s, he and his brother William made money by

selling what appeared to be paper LSD, but was actually nothing but paper with a

design on it. Defendant testified, ―it was a safe way to make money without

committing a crime.‖

Defendant recalled drinking a small amount of beer when he was about eight

or nine years old and enjoying the effect of the alcohol. Defendant had other

experiences with alcohol after that. Defendant moved back to California from

Puerto Rico when he was 12 or 13. His alcohol use ―increased drastically‖ and he

―drank continuously.‖ He started smoking cigarettes when he was 12 years old,

continued to smoke through the mid-1980‘s, and had only recently quit at the time

of trial.

Defendant‘s first experience with drugs was using marijuana when he was 11

or 12 years old. He tried hashish and cannabinol when he was about 12 years old.

He then tried LSD, cocaine, peyote, methamphetamine, amphetamines,

barbiturates, and heroin. When defendant was about 14 years old, he began

injecting drugs. His drug and alcohol use increased throughout his teenage years.

Defendant frequently used a technique called ―jacking off‖ when injecting

drugs. After injecting the drug, he would draw blood into the syringe, and then

reinject it into his arm. He also used a technique called ―shooting water,‖ which

involved attempting to collect and use any residue of a drug that might be left in a

bag. When he was about 18, he injected an unknown drug, and ―thought [he] was

going to die.‖

13

Defendant experienced his first alcoholic blackout when he was about 16

years old. Defendant described various situations in which he had blacked out,

such as being with friends and making plans to go somewhere, and suddenly

finding himself walking apparently alone on the street in Long Beach at 5:00 a.m.

and not knowing how he got there. On another occasion he found himself under a

kitchen table in an unfamiliar residence. There was never a time when defendant

became aware of his surroundings after blacking out and he never had reason to

suspect he had been involved in a violent crime.

In December 1985, defendant was involved in a motorcycle accident, and had

surgery on his right leg. As a result, his leg was in a cast. In the spring of 1986,

defendant met Kathryn Valentine while he was selling fake LSD at a Long Beach

bus stop. Valentine drove by in her pickup truck, saw defendant had a cast, and

offered him a ride. The two began dating shortly thereafter. Valentine gave

defendant a key to her truck, and told him that there was a spare key in a magnetic

box hidden on the truck.

Valentine introduced defendant to her mother, Marjorie Deeble, at Deeble‘s

house. He also saw Deeble when he helped her and Valentine load Deeble‘s car

for a weekend trip to Palm Springs. Both meetings were cordial. Defendant

borrowed Valentine‘s truck while she and her mother were in Palm Springs, and

the generator died. When Valentine and Deeble returned from Palm Springs,

defendant and Deeble discussed on the telephone what had happened to the truck,

and Deeble told defendant to take it to the dealership for repair. During this

conversation, Deeble did not raise her voice, and was firm and assertive, but not

angry. Defendant was not bothered by the incident, nor did he have any ill will or

hostile feelings toward Deeble or Valentine because of it. Defendant subsequently

received a blank check from Deeble for the repair, and took the truck to the

dealership.

14

Defendant and Valentine once went to Deeble‘s residence when she was not

home. He and Valentine were intimate. Defendant was not aware of a key hidden

outside Deeble‘s residence, and never had possession of a key to her home.

Defendant continued to use drugs and alcohol during the time he dated

Valentine. Valentine did not know anything about drugs, and at her request,

defendant once let her watch him inject cocaine.

When defendant learned of Deeble‘s death, he and Valentine were visiting

his aunt and uncle. Valentine was told she had to go to the Los Alamitos Police

Department because something had happened to her mother. Valentine and

defendant drove to the police station. Defendant waited in the lobby, and after a

few minutes he heard Valentine crying. Valentine and defendant continued to date

for a ―couple of weeks‖ after Deeble‘s death. They then ―drifted apart,‖ but

remained on good terms. Defendant refused police requests for blood, urine, and

hair samples.

Defendant denied killing Marjorie Deeble. In May of 1986, defendant had

little mobility, could bend his right knee only a small amount, could not put his

full weight on his leg, and could not run. On the night of May 12, 1986, defendant

and his brother sold fake LSD outside a Judas Priest concert in Los Angeles. They

left for the concert about 4:00 p.m., and returned home between 11:00 and 11:30

p.m. He drank alcohol throughout the concert. They then obtained drugs, and

defendant went home to inject cocaine and heroin and to drink. At no time that

week, including May 12, did defendant go to Deeble‘s residence.

Defendant testified he had been convicted of murder and burglary in Hawaii

in 1994. He was also convicted of second degree burglary in California in 1984.

Janice Hunt testified that she dated defendant in Hawaii. Around December

1992, defendant moved in with Hunt and her 12-year-old daughter. That same

month, defendant‘s father was killed in an airplane crash. Defendant‘s demeanor

15

changed, and he became quiet and depressed. He drank more heavily than before.

At times, defendant became so intoxicated he had alcoholic blackouts. Hunt

described two incidents, one when defendant left in his work truck at night, and

the next morning she and defendant searched for the truck, and another when he

apparently left a bag of groceries outside all night. She did not believe he was

using drugs during the time he was living with her.

Hunt kept binoculars in her bedroom so that she could watch whales. She

had a partial ocean view from her bedroom window. Hunt had difficulty focusing

the binoculars, and never saw defendant look through or touch them.

On the evening of January 25, 1993, the night Delbecq was murdered, Hunt

was at home with her daughter and defendant. Between 8:00 and 8:30 p.m., an

acquaintance informed defendant that his dog had been killed. Defendant found

the dog on the road, held it, and sobbed. They buried the dog at sea. Hunt

returned home, and when she went to bed between 11:00 and 11:30 p.m.,

defendant was not yet home. Defendant returned home before morning. The next

day Hunt learned of a murder that had occurred nearby and informed defendant;

he seemed surprised.

David Long testified that he knew defendant for about a year before January

1993. He observed defendant ingest drugs and alcohol nearly every time he saw

him. On the night of January 25, 1993, sometime between 8:30 and 11:00 p.m.,

defendant came to Long‘s apartment, talked about his dog, and injected half a

gram to a gram of cocaine. When defendant left, he was more intoxicated with

drugs and alcohol than Long had ever seen him.

Carl Stevens knew defendant in junior high school in Long Beach. He saw

defendant outside of school approximately 10 to 25 times, and on each occasion

defendant was drinking alcohol or using drugs. Stevens had had no contact with

defendant for the last 13 years.

16

Vincent Portillo, defendant‘s cousin, lived in Maui for a month in 1991-1992.

One night he, defendant, and defendant‘s girlfriend Brenda drank heavily. They

got into a vehicle with defendant driving and Brenda in the passenger seat.

Brenda and defendant argued, and Brenda hit defendant several times. Defendant

did not hit her back, but blocked her hits to maintain control of the vehicle. The

following day, defendant did not appear to be upset with Brenda over her behavior

the night before.

b. Testimony of other witnesses

Orange County Sheriff supervising forensic specialist Sharon Krenz testified

that on May 15, 1986, she observed baggies of pills on the dresser and the floor of

Deeble‘s bedroom. She entered a different room and observed a TV Guide that

was open to Monday May 12. She also observed pinking shears on the floor of the

bathroom. She did not observe any cigarette butts in the apartment. None of the

fingerprints lifted from Deeble‘s apartment matched defendant‘s.

Richard Brown, a criminalist with the Orange County Sheriff‘s Office crime

lab, testified that comparison of defendant‘s pubic hair to pubic hair found at the

crime scene eliminated defendant as a source of the crime scene hair. Brown was

unable to compare the crime scene hair to that of seven men other than defendant

because the hair standards submitted for those individuals contained too few hairs

to make a comparison. He sent a report to the Los Alamitos Police Department

stating that the hair standards were inadequate. He was never provided with

adequate hair samples.

Sergeant James Jessen of the Los Alamitos Police Department testified that

he was the lead investigator of Deeble‘s murder. He interviewed Deeble‘s

daughter Kathryn Valentine on May 15, 1986. Valentine told Jessen that on

Monday night (presumably Monday May 12, 1986), her brother had borrowed her

17

truck for a short period of time. Valentine also told Jessen that she kept a spare

key in a magnetic lock box on the vehicle. Although Jessen had looked inside

Valentine‘s truck, to his knowledge the truck had never been searched, nor had he

requested it be photographed or processed for fingerprints or trace evidence. The

parties stipulated that Sergeant Jessen‘s report did not state that Valentine had told

him she had ―shown [defendant] a hidden key, he knew where one was‖ at her

mother‘s residence. When Jessen met with defendant on May 20, 1986, he

observed defendant walked with a noticeable limp and appeared to have difficulty

standing on his right leg for a long period of time. There was no indication in

Jessen‘s report that he asked defendant for permission to search his living quarters.

On approximately October 21, 1987, Sergeant Jessen spoke with Maggie

Black of the Orange County Sheriff‘s Office crime lab regarding elimination

prints. Black was dissatisfied with the quality of the prints taken of five

individuals other than defendant and said they would have to be redone.

Gloria Dangerfield, an employee of the facility manager for the Los Angeles

Sports Arena and Coliseum, testified that on May 12, 1986, Judas Priest

performed at a concert at the sports arena between about 8:00 and 11:00 p.m.

Paul Roy dated Deeble at some point after August 1985.7 On May 12 or 13,

1986, Roy called Deeble at her home at 8:20 p.m. One or two days later, Roy

went to Deeble‘s apartment and knocked on her door. When no one answered, he

placed a greeting card for Deeble between the screen door and the closed wooden

door. He did not recall a window screen leaning up against the wall of the house.

7 Roy was a reluctant witness, and the parties agreed that Sergeant Jessen and

Robert Courtney, the senior investigator for the Orange County Public Defender‘s

Office, could testify as to his statements.

18

Alden Olson testified that he dated Marjorie Deeble during the eight weeks

before her death. He saw her do her laundry, including her sheets, three or four

times. Deeble always locked the doors to her apartment — including her front

screen door — before going to bed.

Leonard Hirsch, who dated Deeble on a regular basis from about 1980 to

1983, and less frequently after that, testified that Deeble‘s sheets were generally

fresh and clean. She also vacuumed once a week, and often more than once a

week.

Vivian Camp, who sold Avon products, went to Deeble‘s home on Thursday

May 15, 1986 between 11:00 and 11:15 a.m. The door to Deeble‘s residence was

open about a foot, and Camp could see inside the residence. She did not notice a

screen off of the window that was facing the walkway.

c. Expert testimony

Defense expert Dr. Paul Wolf, a clinical professor of pathology, and a trauma

and transplant pathologist at the University of California Medical Center in San

Diego, and director of autopsy at the Veteran‘s Administration Medical Center in

La Jolla, testified as an expert on pathology. He had reviewed Deeble‘s autopsy

report. According to the report, Deeble had hemorrhaged from both ears.

Dr. Wolf stated this is a common finding after ligature strangulation because the

blood vessels in the ears are engorged, and the ear drums are perforated and bleed.

There can also be tears in the middle ear that are either sharp or jagged.

Strangulation, which causes asphyxia, creates pressure on the veins so great that

small blood vessels in the nose, mouth, and ears will rupture. Because

Dr. Richards, the pathologist who performed Deeble‘s autopsy, had not taken any

microscopic sections of the ears, there was no way to ascertain whether the

damage to the right eardrum was caused by a sharp object or by the increased

19

pressure that followed the ligature strangulation. Moreover, ―incisional‖ was not a

term of art, and its use in an autopsy report did not ineluctably mean that the

damage had been caused by a sharp object.

Dr. Wolf further testified that when an individual is strangled, he or she can

lose consciousness within 15 to 30 seconds, and it takes about four minutes of lack

of oxygen for the heart and ―respiratory center‖ to die. Dr. Wolf agreed with

Dr. Fukumoto that an incision, which Dr. Richards did not perform, ―would have

been the best procedure to confirm or disprove that there was a fracture‖ of the

nose. He also agreed that the possible fracture was more likely from a blow rather

than a fall. A blow to the head of sufficient force to break a nose could cause

immediate unconsciousness. A person unconscious from either strangulation or a

blow would not feel pain. Ligature strangulation and bleeding from the ears as a

result of ligature strangulation were not necessarily consistent with extreme or

prolonged pain. Nor were the ligature marks on Deeble‘s ankles consistent with

extreme or prolonged pain.

Dr. Wolf stated that a ―laceration‖ and a ―hemorrhage‖ can be microscopic in

size. He described the injuries to Deeble‘s vagina and rectum as microscopic and

―[e]xtremely minor.‖ He opined they could have been caused by a finger or a

penis. Deeble was menopausal, and Dr. Wolf opined that was the reason the

vaginal mucosa (or lining of the vaginal wall) was so thin. When the mucosa is

thin, any kind of manipulation by a finger, penis, or other foreign object is more

likely to cause microscopic lacerations. Although Dr. Richards reported

lacerations and tears, he did not measure them. Dr. Wolf noted that there are

―ruga folds‖ in the vagina that can be mistaken for a laceration, and that the only

slide from the vagina showed ―a very minor removal of a mucosa.‖ Dr. Richards

had reported submucosal hemorrhage (or bleeding beneath the surface of the

lining of the vaginal wall) in the vagina, and Dr. Wolf confirmed this in his

20

examination of a slide of a vaginal tissue section. It was ―such a small amount

that it wouldn‘t be too visible,‖ and Dr. Richards did not report seeing any blood

in the vagina. For a criminalist to see a visible substance all the way around the

top of a can that he thought might be blood was inconsistent with the microscopic

quantity of blood that was reported in the vagina. Moreover, because no blood

was observed in the rectum, there was not enough blood to go around the edge of a

cap area.

Dr. Alex Stalcup testified as a specialist in addiction medicine. He did not

interview defendant and had not diagnosed him, although he had interviewed

members of defendant‘s family.8 He had also received a record of defendant‘s

contacts with police, and transcripts of interviews with family members and

individuals familiar with defendant‘s drug use in the 1980‘s. He was not given

any information about the Deeble and Delbecq murders.

Dr. Stalcup testified that alcoholism and drug addiction are illnesses. Signs

of the disease of addiction include inability to control intake of the drug or alcohol

and continued drug or alcohol use despite adverse consequences. He opined that

predisposition based on genetics or child abuse, early drug experiences and the

circumstances of the first experience, and whether the individual is in an enabling

environment in which drugs are easily available, widely used, and not

discouraged, are factors that contribute to certain individuals becoming addicts

while others do not. Genetics were the most, and child abuse was the second

most, prevalent risk factor for addiction or alcoholism. Considering defendant‘s

hypothetical risk factors of genetic background, horrific childhood abuse, lack of

8 The jury was instructed that Dr. Stalcup‘s testimony regarding statements by

individuals such as defendant‘s family members was not admissible to prove the

facts in the statements, but was admitted only to provide the basis for his opinion.

21

supervision, and an environment in which drugs were available, Dr. Stalcup

opined: ―I frankly don‘t see how he escaped being an addict. This fellow didn‘t

have a chance.‖

Dr. Stalcup testified that one study indicated that individuals with a history

on both sides of the family of alcoholism or drug addiction had half of the normal

amount of endorphin. This meant ―they are very different in their ability to feel

normal. . . . Pleasure is hard to get. . . For them pleasure is b[l]unted.‖ ―[T]he term

for the way they feel is called chronic dysphoria. Dysphoria is the opposite of

euphoria. . . . A lot of these kids from a very young age feel off.‖ ―Once these

kids discover alcohol and drugs, unless there is early intervention, it is all over.

Because they feel pleasure, they feel satisfaction, they feel normal for the first

time in their life.‖ ―[N]ow for the first time [they] don‘t feel dysphoria.‖

When drugs such as amphetamines are injected, they reach the brain

instantly, and ―there is such an explosive release [of] dopamine and endorphin that

it damages the pleasure centers. It literally damages or overwhelms the part of the

brain responsible for feeling normal pleasure. . . . [I]ndividuals who use drugs . . .

will progressively injure their ability to feel normal pleasure.‖ This explained why

many individuals do not stay sober, and instead relapse.

Dr. Stalcup found use of alcohol and drugs at a young age significant. He

also found it significant that defendant did not have a drug of choice, and that once

he was exposed to alcohol and drugs, he immediately lost control. ―[H]e is telling

us that something was wrong with sobriety. Something was wrong with how he

felt.‖ Dr. Stalcup also noted that injecting drugs by the age of 13 or 14 was ―quite

unusual,‖ and ―indicative of extremely rapid progression of addiction.‖ He said:

―What I interpret when I hear these stories is . . . that something is really wrong

with this kid. Something is really intolerable for him or her. That something is

either happening in their home or as we mentioned earlier, they are chronically

22

dysphoric. They feel really bad.‖ Based on these factors, Dr. Stalcup opined that

defendant would fall in the 1 or 2 percent of the most severely affected drug

addicts. Dr. Stalcup agreed with the prosecutor that he was ―not saying that a

person who is addicted to drugs or alcohol [was] not responsible for the violent

crimes they commit.‖

Dr. Stalcup testified that anyone who drinks can have an alcoholic blackout.

Such an individual has had enough alcohol that an average person can tell he or

she is intoxicated because of slurred speech and unsteadiness on his or her feet.

An individual who uses alcohol with cocaine is ―far, far, far more likely to go into

an alcoholic blackout.‖ Sixteen is an early age for an individual to experience his

first alcoholic blackout.

3. Rebuttal Evidence

Sergeant Jessen agreed with the prosecutor that he began to focus on

defendant to the exclusion of individuals mentioned by the defense because

defendant refused to supply the police with hair, saliva, and blood samples, and

because in his mind, based on information he had received from laboratory

personnel, the individuals who had provided inadequate hair and fingerprint

samples were eliminated as donors of semen and fluids at the crime scene. It was

not until Jessen learned of a 1993 murder in Hawaii that he felt he had enough

evidence to arrest defendant.

B. Second Penalty Phase9

1. Prosecution evidence

At the penalty retrial, the prosecution introduced much of the evidence from

the guilt phase. The prosecution also introduced evidence that defendant had

9 As noted above, defendant‘s first penalty trial ended in a hung jury and mistrial.

23

suffered murder and sexual assault convictions in Hawaii and a burglary

conviction in California.

N.T., a former girlfriend of defendant‘s, testified that she met defendant on

Maui. One night in 1990, after their romantic relationship had ended, defendant,

who sounded drunk, called N.T. and asked to come over. N.T. said no. She later

awoke to find defendant trying to insert a bottle into her vaginal and rectal areas.

She ordered defendant out of the house.

Orange County Sheriff‘s Deputy Timothy Martin testified that on July 8,

1997, in the Orange County Men‘s Central Jail, he observed defendant sharpen a

shank and hand it to another inmate.

Kathryn Valentine testified regarding the friendship with her mother that she

had lost when Deeble was murdered, and the guilt she felt for bringing defendant

into her family. She also testified regarding several family photographs. Lorraine

Johnston, Deeble‘s sister, testified that she was eight years older than Deeble, and

like a mother to Deeble when she was an infant. They were close as adults, spoke

often on the telephone, and visited each other. Because of Deeble‘s murder,

Johnston had been physically ill, had been through counseling, and had seen a

trauma therapist.

2. Defense evidence

Fifty witnesses, including defendant, testified for the defense or their

testimony was read into the record. Much of the evidence from the defense

portion of the guilt phase was introduced.

a. Testimony of defendant and other character witnesses

Defendant testified that in 1983, he was convicted of second degree burglary

in Los Angeles County after breaking into a vehicle. Around November 1988, he

was convicted of taking or driving an automobile without the consent of the

24

owner. In 1993, he was convicted of the second degree murder and sexual assault

of Muriel Delbecq in Hawaii, and was currently serving five consecutive life

sentences in that case. He had never been sentenced for a violent act before his

Hawaii sentence. In about September 1996, defendant was written up for heroin

use in the Orange County jail.

At times, defendant feared for his life at the jail. The ―worst time‖ was the

summer of 1997 when racial tensions were exacerbated. Defendant saw an

individual who had received medical treatment after his face was slashed. After

that incident, defendant tried to make the shank described by Deputy Martin.

Defendant reasoned that if an aggressor knew he was armed, he would be less

likely to attack defendant. He did not plan to be an aggressor and assault anyone

with the weapon. In defendant‘s approximately nine years of incarceration, he had

never been written up for weapon possession before.

Defendant‘s father was a pilot in the Army, and served two tours of duty in

Vietnam. Defendant moved frequently as a child – living in California, Florida,

Georgia, and Puerto Rico – because of his father‘s work. When defendant was

young, his father would strike him with his fist. He once knocked defendant out

of his chair and drew blood because defendant had missed a number while

counting. Defendant‘s father drank heavily, and became increasingly abusive as

he drank more.

Defendant first got drunk when he was about eight years old. Defendant‘s

parents separated when he was about 11 or 12 while the family was living in

Puerto Rico. Defendant, his mother, and his siblings returned to Long Beach,

where they had close relatives. Defendant‘s mother worked and attended night

school. Defendant began to skip school, and dropped out of school in the eighth

grade. He abused alcohol and drugs.

25

After his parents‘ separation, defendant had no contact with his father for

several years. In about the summer of 1992, the two began communicating. In

December 1992, defendant‘s father sent him a Christmas card, and signed it

―Love, Dad,‖ something he had not done for years. Defendant‘s father died on

December 19, 1992, in a plane crash. Defendant subsequently suffered bouts of

depression.

Defendant had experienced alcoholic blackouts, and described some of those

experiences. At the time of Deeble‘s death, defendant was heavily abusing drugs

and alcohol. Defendant was not in an alcoholic blackout when he committed

burglary in 1983, or when he made the shank.

In about November 1989, defendant moved to Maui, Hawaii to be with his

sister Elena and to stop his drug abuse. He attended Narcotics Anonymous (NA)

and Alcoholics Anonymous (AA) meetings, remained drug and alcohol free for

seven or eight months, and worked for a roofing company. He then began to use

drugs again and became homeless.

Defendant‘s son, Robert Mark Edwards, Jr. (―Robbie‖), was born on January

23, 1985. Defendant described his efforts since 1985 to visit with his son and to

communicate with him by telephone and letters. Defendant had counseled his son

to refrain from using drugs, and was proud that his son had refused offers to try

them. Robbie had also sought his father‘s advice in other matters, and shared his

achievements with his father. Defendant did not want Robbie to testify on his

behalf in part because he did not want him to feel ―maybe he said the wrong thing

or something like that.‖

Defendant enjoyed reading while incarcerated, including books on parenting

and spirituality. He had also written several short stories for Robbie. While

incarcerated in Hawaii, he had attended GED classes and assisted other inmates

with their schoolwork. Defendant also enjoyed art, and some of his work was

26

shown to the jury. He had participated in NA and AA meetings while in custody,

and encouraged others who were not in custody to stay sober. Defendant could

not guarantee that he would not be under the influence of drugs or alcohol while in

prison, but said, ―My sobriety I take one day at a time.‖

Defendant testified that he now believed he had killed Deeble and Delbecq,

although he had no recollection of their murders. Defendant felt ―horrible,‖

fasted, meditated, and prayed on the dates of the murders, and ―always pray[ed]

for the families.‖

Laura McFarland, defendant‘s mother, testified to many of the details in her

guilt phase testimony. In addition, she testified she married defendant‘s father,

William Edwards, Sr., when she was 19 years old and had known him three

months. At the time, Edwards was in the Marines. When defendant was born

Edwards was a bartender and did not live at home. When defendant was about

one, Edwards joined the Army. Edwards was gone nearly all of the time from

defendant‘s birth until he was about 3 and a half years old.

After Edwards returned from being stationed abroad, his family joined him

while he attended officers‘ candidate school in Georgia. Edwards was cruel to

defendant, who was about four, and struck him at least once or twice a week.

McFarland did not protect him from this abuse. Once, when defendant had a

bowel movement during a bath, Edwards called him a ―filthy little boy,‖ and made

defendant pick up the stool and rub it over defendant‘s chest. Defendant began to

have night terrors. He said a puppet was trying to attack him, and described the

puppet as wearing a sport coat similar to one his father had. Defendant had a G.I.

Joe doll, and would leave it in the street and wait for cars to run over it. In

December 1966, when defendant was about five and a half, Edwards left for

Vietnam.

27

When defendant was six, after his father returned from his first tour of duty

in Vietnam, defendant regressed in his development. He would have bowel

movements in his pants, and if Edwards became aware of it, he would whip

defendant, and make him wash out his shorts in the bathtub. If Edwards

disapproved of a child‘s manners at the table, he would stab his or her hand with a

fork. Once, when defendant was about 10 and had braces, Edwards punched him

in the mouth, causing defendant‘s mouth to bleed and swell. Defendant frequently

observed his father physically abusing McFarland. McFarland never observed

Edwards praise defendant for anything he had done, or be nurturing in any way.

Edwards was unfaithful, and would drive by the house with a girlfriend and

wave to his children. He once introduced defendant‘s little sister Elena to a

woman he said was going to be her next mother.

After McFarland and Edwards divorced, Edwards told his children, ―[N]ow

you‘re out of my life and I‘ve never been so happy. Don‘t bother me.‖ After

McFarland left Edwards, she took defendant to a psychiatric clinic in Long Beach

―off and on‖ for a ―long time.‖ At one point defendant went to live with his

father. Edwards was dissatisfied with everything defendant did, and sent him back

to live with his mother. Defendant continued to try to establish a relationship with

his father until his father died, and was ―[a]bsolutely devastated‖ by his death.

McFarland described several incidents in which defendant had been kind to

individuals less fortunate than himself, and to stray animals.

McFarland testified that for some period of time she received substantial

child support. When Edwards married his second wife, he reduced McFarland‘s

child support so that she could no longer afford to stay at home, and she began to

work for a construction company. McFarland later married her current husband,

Jack McFarland, who assisted her in attending nursing school.

28

At the time of trial, McFarland had cared for defendant‘s son, Robbie, for

about four years. Once defendant was returned to California, he saw his son

nearly every week, spoke to him on the telephone, and corresponded with him.

Defendant took an active role in helping Robbie make decisions about his life, and

was nurturing, loving, and very proud of his son.

McFarland testified that if defendant were to be given a sentence of life

imprisonment without the possibility of parole, his life would have value to her.

She begged the jury to spare her son‘s life.

Elena Edwards, defendant‘s sister, testified that their father was ―very scary,‖

and would hit her brothers and was often verbally abusive to them. Their father

struck defendant about five times more than he struck defendant‘s brother. In

Elena‘s opinion, their father‘s behavior ―broke [defendant‘s] being before his

being was established.‖

Elena had once been a substance abuser, but at the time of trial had been

clean and sober for eight years. She found a new way of life at NA in Hawaii, and

encouraged defendant to move there. Defendant did so, and began attending NA

and AA meetings. After defendant was arrested in Hawaii, Elena visited him in

jail every weekend. During one visit, defendant looked down and told Elena, ―[I]f

I did do this, I don‘t ever want to get out.‖ Elena and defendant were still close at

the time of trial.

Ana Guthridge, defendant‘s aunt, knew defendant as a child. Defendant was

a sweet little boy, very quiet and gentle, who was often overlooked because he was

well-behaved.

Scott Deeble, Marjorie Deeble‘s son, testified that at the time of his mother‘s

death, he was a pilot in the Marine Corps. His mother‘s death was a huge loss.

Deeble felt compassion for defendant, and said that in the nearly 12 years since his

29

mother‘s death, he had learned, ―I cannot appreciate the ecstasy of my joy if I do

not embrace the depth of my grief. I have learned the big lesson in forgiveness.‖

Bridget Briggs testified she was a childhood friend of defendant‘s sister

Elena, and met defendant when she was about 11 years old and defendant was

about 18 years old. When defendant arrived at the Orange County jail in 1994, he

told Briggs that he ―didn‘t remember doing any of the things that they were saying

that he did. But if he did, . . . he should be punished accordingly.‖

Linda Lauer testified that she met defendant in late 1989 or early 1990 while

she was working on a research project for the Hawaii Department of Health.

Lauer was a community health outreach worker trying to prevent the spread of

AIDS by educating and assessing intravenous drug users and their sexual partners.

Getting intravenous drug users to answer a lengthy questionnaire was difficult

because ―of the nature of I.V. drug users and the illegal things they do.‖

Defendant was the first person to agree to be interviewed. Lauer interviewed

defendant at his apartment one evening, and did not feel threatened or vulnerable.

Defendant appeared to be clean and sober, and responded thoughtfully to deeply

personal questions. He then encouraged others to participate, and ―it opened up

the project for us on Maui.‖

Craig Furtado, a roofing contractor on Maui, met defendant when Furtado

lost his briefcase containing valuables at an airport on Maui. Defendant found the

briefcase, and called Furtado to return it to him. When the two met, nothing was

missing from the briefcase, and defendant refused a reward. Furtado subsequently

hired defendant in his business for about five months. Defendant worked hard,

was prompt and honest, and got along with everyone. Despite his two murder

convictions, Furtado would hire defendant again if he had the opportunity.

Geraldine Jakeway testified she met defendant on Maui in about 1992.

Jakeway was in a wheelchair, and often swam at the beach. On one occasion,

30

when no lifeguards were present to carry her into the water, she asked a group of

individuals if anyone could assist her. Defendant immediately volunteered, and

also assisted Jakeway out of the water when she was done swimming. Jakeway

saw defendant on other occasions at the beach when he again assisted her in and

out of the water.

William Farmer testified he met defendant in 1989 on Maui at an NA dance.

They immediately became friends, and Farmer hired defendant to perform

construction. Defendant was a religious person, and a loyal and hard worker. For

six to 12 months in 1992, defendant lived in Farmer‘s home. Farmer asked

defendant to leave one night when he came home drunk, which was against the

house rules. Defendant did not appear to be the same person, and Farmer felt

threatened. The following morning, defendant returned to the house in a sober

state, and had no recollection of the night before. He appeared surprised when

Farmer informed him he was not welcome in the home.

Albert Terry met and became close friends with defendant in 1989 while

participating in AA and NA programs. Defendant was a loving, caring, and

respectful person. Terry visited the Maui Community Correctional Center to assist

in AA meetings while defendant was incarcerated there. Defendant participated in

the meetings, and appeared to be sincere in his comments about drug and alcohol

abuse. Terry believed defendant would be of benefit to other recovering addicts in

a custodial setting.

Orange County Sheriff‘s Deputy Robert Taft testified he worked at the

Orange County jail. On two different occasions he was assigned to the

administrative segregation area in which defendant was housed. He never saw

defendant act disrespectfully to any deputies or have problems with any inmates.

Orange County Sheriff‘s Deputy Matthew Johnson testified he worked at the

Orange County jail while defendant was incarcerated there. He wrote up

31

defendant once for possession of contraband, which consisted of extra clothing

and pictures on the wall. Johnson otherwise observed that defendant followed the

jail rules, was respectful toward and communicated well with Johnson, and got

along with the other inmates.

Sergeant Robert Morris worked at the Maui Community Correctional Center,

and testified that defendant was an ―ideal inmate‖ who was respectful to guards,

never gave ―anybody problems,‖ kept his cell clean and neat, and was helpful to

new inmates. Defendant had no ―write-ups‖ on Morris‘s watch, which was

unusual for an inmate. During the time defendant was there, there were two

escape attempts. Both times the individuals who escaped were in defendant‘s

housing area, but he did not go with them. Defendant enjoyed drawing, and

attended NA and AA meetings and church services while incarcerated.

Sergeant Herbert Aguiar, who worked at the Maui Community Correctional

Center, testified that when defendant first came to the facility, he was dirty, very

thin, had long hair, and his eyes were always moving like he was trapped

somewhere. Aguiar was leery of him, and his first impression was ―dirt bag.‖

Defendant then started cleaning himself up, got a haircut, and started filling out.

Aguilar described defendant as a ―model inmate,‖ whom he had never seen be

disrespectful to anyone. Defendant engaged in many activities at the facility,

including beginning work on his GED.

Reverend Diane Winter, a ministerial counselor, met defendant while

conducting classes and counseling inmates in the Maui Community Correctional

Center. Defendant took classes with Winter, and was respectful, kind, and

interested in learning. Winters perceived defendant as genuine and not

manipulative in class. Winters had observed defendant with his girlfriend, Janice

Hunt, and he was kind, respectful, and loving. Winters said that defendant had

cried sometimes and been very depressed. There were numerous occasions on

32

which defendant felt a lot of pain, and sometimes he would break down and cry

because he said he did not remember what he had done. Defendant said that if he

had killed Delbecq, he was a ―monster.‖ He also said, ―if I had done that . . . it is

horrible, I shouldn‘t be allowed to live in society.‖ Defendant would ask Winter

―to pray for the family,‖ and ―we would pray together, and he would cry.‖

Defendant took full responsibility for his addiction, and did not offer drugs and

alcohol as an excuse for his situation. Defendant was respectful and kind to

guards and staff at the jail, and helpful to other inmates. During her years working

in a jail setting, Winters had been asked 80-90 times to testify on a prisoner‘s

behalf. She had only testified about four or five times, including once before for

defendant.

Karen Phaneuf, an adult educator, testified she taught defendant in GED

classes at the Maui Community Correctional Center. Defendant was friendly and

helpful. He had a ―great mind,‖ and was interested in reading at a much higher

level than a GED. Most of the students other than defendant were working at a

very remedial level, and defendant would assist Phaneuf with those students so

that they could pass their GED exam. Defendant was not shackled or handcuffed

during class, but Phaneuf had no fear of him. Defendant was always cordial to

other inmates, as well as to custodial officers who would walk though the

classroom, and was a calming influence in the classroom. Phaneuf had

corresponded with defendant since he left Maui, and assisted him on several

stories defendant had written. She described defendant as a ―gifted writer.‖

Dominic Bagarozzi testified he met defendant while they were both

incarcerated at the Orange County jail in about August 1994. Bagarozzi agreed

with counsel that at that time Bagarozzi was ―a bad guy who had given up,‖ and

who had a drug problem. Bagarozzi and defendant were day room partners in

administrative segregation, and knowing defendant made Bagarozzi a better

33

person and changed his outlook on life. Bagarozzi had appeared on television and

in film as a child, and wanted to return to that profession, but did not think it was

―cool.‖ Defendant told him he could do anything he wanted to do, and while he

could be a convict and stay in prison for the rest of his life, ―it would be more of a

challenge to try to achieve my goals.‖ Bagarozzi was now out of jail, and in the

past few months had appeared on Ally McBeal, a television pilot with Sam Elliott,

and in a television commercial. Jean Bagarozzi, Dominic‘s mother, testified that

when her son went to jail, he was a drug addicted, angry, and immature person.

After he was placed in administrative segregation and met defendant, he began to

―talk sense,‖ and Jean heard about defendant and the advice he gave her son.

Dominic followed defendant‘s advice, and was now an employed, mature, and

drug-free person.

Charles Quesnel testified he met defendant in February 1993 while

incarcerated in Hawaii. Quesnel had a history of drug and alcohol abuse, and

defendant encouraged him to attend AA and NA meetings, and a self-awareness

class. As a result of defendant‘s influence, Quesnel, who had previously been in

and out of custody apparently because of his drug usage, had been clean for over

five years.

Jimmy Ekstrom testified he met defendant in March 1993 while serving six

months for vehicular manslaughter in the Maui Community Correctional Center.

Ekstrom had never been in custody before, and was frightened. Defendant talked

to him about how to get along with other inmates and the guards, and had his sister

Elena give Ekstrom money so that he could purchase items at the jail store.

Defendant also encouraged Ekstrom to attend GED classes, and helped him with

the assignments.

Mark White testified that he met defendant while he was incarcerated on

Maui pending trial on a robbery charge. When White arrived, he went through

34

withdrawal from heroin and cocaine. After he was brought to the general

population he was still sick, and defendant would talk to him, bring him sweets

which White craved, and share cigarettes. Defendant also helped White get along

with the other inmates. White never saw defendant argue with anyone, and he

once was able to calm an aggressive inmate who was upset at White. Defendant

encouraged White to attend NA and AA meetings. White was struck at the

meetings by how defendant shared from his heart his experiences, and White

subsequently continued his involvement in the NA and AA programs when he

went to prison.

Lynn Pendzik, a retired schoolteacher, testified she began to correspond with

defendant while he was incarcerated in the Maui Community Correctional Center.

After several months, defendant asked her to visit, and the two became friends.

Once while defendant was on trial in Hawaii he refused a visit with Pendzik.

Defendant subsequently wrote to her: ―Remember during the trial when it was at

the most horrible testimony? You came up that weekend and I refused your visit.

Do you know why I did that? I did it because I was utterly appalled by what they

had shown in court and that I was responsible for it. And I hated myself, and I felt

that you certainly must hate me. I was ashamed and I did not want to face you.‖

b. Expert testimony

Dr. Roberta Falke, a clinical psychologist, testified that she was asked to

observe the nature of the relationship between defendant and his son Robbie, and

defendant‘s ability to parent effectively while incarcerated. Falke had visited

defendant in jail about every other week for two years. She had spent about 70

hours with defendant, and 50 hours with Robbie. On four occasions Falke had

also taken Robbie to visit defendant and observed their interaction. Defendant and

Robbie were separated by glass and spoke to each other on the telephone. In

35

addition, Falke met with Laura and Jack McFarland, Robbie‘s grandmother and

her husband and Robbie‘s custodians, defendant‘s sister Elena, Robbie‘s

biological mother Gina Stevens, and Gina‘s mother Bernice.

Dr. Falke believed defendant and Robbie had a strong relationship.

Defendant knew a great deal about what Robbie was studying in school, what

problems he was having in school, and what his special needs were. Robbie had

been attending the Sylvan Learning Center before Falke was hired, and defendant

requested that she meet with individuals there and take notes about what Robbie

was working on. Defendant then requested Falke facilitate contact between the

Sylvan tutors and Robbie‘s school teachers so they could coordinate their efforts.

Falke became defendant‘s arms and legs in the community, and he ―constantly‖

kept her running on issues concerning Robbie‘s academics.

Defendant was also concerned about Robbie‘s low self-esteem. He sought

Dr. Falke‘s advice as to what to say to Robbie when he made self-deprecating

remarks, and Falke advised defendant about techniques for speaking with Robbie

in other situations.

Dr. Falke opined that defendant was a ―remarkable‖ parent because of his

―unflagging devotion.‖ ―[T]hat man put me to work for his son, and I barely got a

break.‖ In her view, defendant was at the top of the list of individuals who were

important to Robbie in terms of support systems, and it was essential their

relationship continue.

Dr. Kara Cross, a clinical psychologist and Robbie‘s therapist, testified that

when she began to treat Robbie about three years earlier, when he was about 10,

he was very depressed, had learning disabilities, and had an adjustment disorder.

The treatment plan was to incorporate Robbie‘s relationship with defendant, which

was the ―strength‖ in Robbie‘s life that affected him the most, and use that

relationship to help Robbie overcome depression and learn better coping skills.

36

Cross gave Robbie assignments to complete with defendant from workbooks

designed to improve psychosocial communication within a family. Defendant

would frequently telephone Cross and tell her how he had addressed a particular

assignment and ask if he had done it correctly and how he could do it better next

time. Although contact visits were generally not allowed, Cross was able to

arrange a 30-minute contact visit between defendant and Robbie. After that visit,

Robbie was a changed child; he was animated and would reach out and touch

others in a teasing manner. Cross opined that defendant‘s relationship with

Robbie was the ―bedrock of Robbie‘s emotional stability,‖ and that it was vital

that the relationship continue.

Father John McAndrew, a Roman Catholic priest, testified that he was a

recovering alcoholic, and about a third of his ministerial time was devoted to

working with individuals in recovery. McAndrew testified that blackouts are often

symptomatic of the disease of addiction. McAndrew had experienced alcoholic

blackouts, and was ashamed of things he was told he had done during them.

Father McAndrew knew defendant, and had visited him many times at the

Orange County jail. McAndrew gave defendant assignments to complete with

regard to a 12-step program, and was defendant‘s only regular contact for an

alcohol or drug recovery program. McAndrew was aware that about a year and a

half earlier defendant had been found to be under the influence of heroin in jail. It

is much harder to return to a recovery program after a relapse, and so when an

individual returned, that told McAndrew ―there is a willingness there.‖

McAndrew found defendant inspirational, and believed he had ―an awful lot to

offer to other people in recovery.‖

Dr. Stalcup testified as a specialist in addiction medicine in a manner similar

to his testimony at the guilt phase. In addition, he testified that a blackout is

referred to as ―anterograde amnesia,‖ which means that ―from the time of onset of

37

the drug until the time the drug effect wears off, there is no recording in memory

of the events that happened during that time.‖ ―[T]here‘s immediate memory,‖

and ―[t]hen you have long-term memory, which is where thing are stored. There is

a transfer step, and alcohol and tranquilizers and barbiturates block the transfer

step. So immediate memory is happening, but it‘s not written down in permanent

memory.‖ Acts performed during a blackout are immediately remembered and

intentionally done, such as walking down a beach, seeing the waves, and hearing a

seal bark, but are not recorded. In mild blackouts, individuals have brief images in

their mind of what they were doing. In moderate blackouts, individuals wake up

the next day and cannot remember what they did the previous day. In severe

blackouts, individuals cannot remember what they are doing now. Generally, to

have a blackout, one has to drink enough to appear and know one is intoxicated.

Dr. Stalcup also agreed with the prosecutor that there are individuals who would

try to counter dysphoria by sexually causing suffering in others.

3. Rebuttal evidence

Dr. Park Dietz, a clinical professor of psychiatry and biobehavioral sciences

at the University of California at Los Angeles School of Medicine, testified. He

had reviewed defendant‘s testimony in this case, crime scene and witness reports

of the crimes, witness and background statements, and crime scene and autopsy

photographs from the Deeble and Delbecq homicides. An alcohol blackout is the

term ―used to refer to loss of memory during periods of intense drinking,

especially among people who are very heavy chronic alcohol users. A blackout is

a period of time ―for which an individual no longer has the memory because while

they were doing what they were doing, their brain did not permanently record the

information into‖ long-term memory. Assuming defendant committed both

murders, and that he now had no memory of either homicide because of the effect

38

of alcohol, this would mean that he ―is now in a blackout for both homicides.‖

Dr. Dietz added, ―But it doesn‘t tell us anything about his mental state at the time

of the homicides except that he was drunk.‖ He also opined, ―looking at what

happened in each homicide, . . . that shows if intoxicated he wasn‘t too intoxicated

to engage in a very orderly sequence of complicated behaviors.‖ These included

the ―things done to gain access to each victim, to do things to the victims and their

property and to leave the scene.‖ Dr. Dietz agreed with the prosecutor that ―the

blackout does not affect his mental state while he was perpetuating the acts,‖

noting that the ―blackout doesn‘t begin until later.‖ The blackout ―begins at least

seconds after each action, maybe minutes, but the blackout is what he is later in. It

is not something he is in while he is doing it.‖ Dr. Dietz agreed with the

prosecutor that ―the blackout simply means that short-term memory has not been

recorded into long-term memory.‖ Dr. Dietz stated: ―[A]s he is committing the

homicides, . . . he is behaving intentionally [and] voluntarily. He knows where he

is, what he is doing, who he is with, why he is engaging in each action, what he

wants to do next, which things please him and which things don‘t. . . . Now, he

may not know what he did five minutes ago or ten minutes ago. He may be in a

blackout already for those. But for what he just did and what he is going to do

next, he is not in any blackout at all. He is right there in the present tense in the

moment doing as he pleases.‖ Dr. Dietz agreed with the prosecutor that the

circumstance that defendant placed a comforter over Delbecq‘s window

demonstrated that ―at that moment he knows what he is doing is wrong. He is

trying to hide it from the outside world.‖

39

II. DISCUSSION

A. Pretrial Issues

1. Asserted Wheeler error

Defendant contends that the prosecutor exercised a peremptory challenge in a

discriminatory manner to exclude a Black prospective juror in violation of his

rights under the Sixth, Eighth, and Fourteenth Amendments of the federal

Constitution, and article I, section 16 of the state Constitution. (Batson v.

Kentucky (1986) 476 U.S. 79, 89; People v. Wheeler (1978) 22 Cal.3d 258, 272,

276-277.) We agree with the trial court that defendant made no prima facie

showing that Prospective Juror M.M. was challenged because of her race.

a. Factual background

On Prospective Juror M.M.‘s questionnaire, when asked her general feelings

about the death penalty, she responded: ―I‘ve thought about it on a personal level

without coming to a conclusion as to whether society should or should not have

the death penalty. As the law now states we have it so therefore I am prepared to

obey the law of the land. On a personal level I will continue to ponder.‖ On voir

dire, the prosecutor read part of this response, and asked M.M., ―Have you

resolved that issue in your own mind since you [have] been here the last few

days?‖ She responded, ―Not really.‖ The prosecutor asked no other questions and

passed M.M. for cause. The defense accepted the panel, and the prosecutor

exercised a peremptory challenge against M.M.

Defense counsel made a Wheeler motion. Counsel stated that Prospective

Juror M.M. was Black, there appeared to be only two Black prospective jurors in

the panel, and only one Black woman, who was Prospective Juror M.M. He also

observed that M.M. ―clearly passed for cause.‖ The court found no prima facie

40

case of discrimination, stating that it had not seen anything to indicate the

prosecutor excused the prospective juror because of her race.

b. Analysis

The use of peremptory challenges to exclude prospective jurors based on race

violates both the federal and state Constitutions. (People v. Bonilla (2007) 41

Cal.4th 313, 341 (Bonilla).) ―There is a rebuttable presumption that a peremptory

challenge is being exercised properly, and the burden is on the opposing party to

demonstrate impermissible discrimination.‖ (Ibid.) To do so, the following

procedure applies: ―First, the defendant must make out a prima facie case ‗by

showing that the totality of the relevant facts gives rise to an inference of

discriminatory purpose.‘ [Citations.] Second, once the defendant has made out a

prima facie case, the ‗burden shifts to the State to explain adequately the racial

exclusion‘ by offering permissible race-neutral justifications for the strikes.

[Citations.] Third, ‗[i]f a race-neutral explanation is tendered, the trial court must

then decide . . . whether the opponent of the strike has proved purposeful racial

discrimination.‘ ‖ (Johnson v. California (2005) 545 U.S. 162, 168.) Although

the trial court here used the since disapproved ―strong likelihood‖ standard,

―[r]egardless of the standard employed by the trial court,‖ we independently

review the record and determine whether it ―supports an inference that the

prosecutor excused a juror on the basis of race.‖ (People v. Cornwell (2005) 37

Cal.4th 50, 73.)

Here, to establish a prima facie case, defense counsel merely asserted that

Prospective Juror M.M. was Black, and that there appeared to be only one other

41

Black prospective juror.10 That is insufficient. (People v. Box (2000) 23 Cal.4th

1153, 1188-1189; see People v. Bell (2007) 40 Cal.4th 582, 598, fn. 3 (Bell).)

On appeal, defendant asserts that the prosecutor asked Prospective Juror

M.M. a single question. Under certain circumstances perfunctory voir dire can be

indicative of hidden bias. (Bell, supra, 40 Cal.4th at p. 598.) Here, however, the

prosecutor‘s question focused on M.M.‘s ambivalence about the death penalty,

which she confirmed on voir dire remained unresolved. Contrary to defendant‘s

assertion, this inquiry does not constitute ―powerful circumstantial evidence that

the challenge was exercised upon a prohibited race basis.‖ Moreover, before voir

dire, M.M. had completed a 14-page questionnaire containing 38 questions with

subparts. (People v. Dement (2011) 53 Cal.4th 1, 20-21 (Dement) [relying on

circumstance that before voir dire, the prosecutor had reviewed a 21-page

questionnaire containing 87 questions with subparts filled out by each prospective

juror to reject claim that the prosecutor‘s limited or no individual questioning of

challenged prospective jurors created an inference of discrimination]; Bell, supra,

40 Cal.4th at pp. 598-599, fn. 5 [noting the trial court‘s comment that ― ‗when you

have a questionnaire, it can never be a perfunctory examination‘ ‖].) ―Under these

circumstances, we place little weight on the prosecutor‘s failure to . . . more

thoroughly question a prospective juror before exercising a peremptory

challenge.‖ (Dement, at p. 21.)

Defendant also asserts that the prosecutor‘s single question to Prospective

Juror M.M. must be contrasted with the prosecutor‘s more detailed questions to

10 As defendant acknowledges, neither the racial composition of the jury as sworn

nor the exact number of Black prospective jurors is in the record. Indeed, the day

after defendant‘s Wheeler motion, the trial court observed that there were ―at least

four, maybe more‖ Black prospective jurors, and told defense counsel, ―I don‘t

know where you got two from.‖

42

Caucasian prospective jurors. The racial identity of each prospective juror is not

in the record. Moreover, although it is true that the prosecutor questioned some

prospective jurors at greater length than he did M.M., he also engaged in

perfunctory questioning of other prospective jurors, and at times declined to ask

any questions at all. The record therefore provides no indication that there was

any discernible racial pattern to the prosecutor‘s questioning.

2. Denial of motion to dismiss the panel

Defendant contends the trial court erroneously denied his motion to dismiss

the panel in violation of his rights under the Fifth, Sixth, Eighth and Fourteenth

Amendments to the federal Constitution, and article I, sections 15-17 of the state

Constitution.11 We disagree.

a. Factual background

At the outset of Prospective Juror R.B.‘s voir dire, which was conducted in

front of other prospective jurors, the trial court observed that R.B. was a peace

officer, and asked, ―[C]an you be an objective juror in this type of case?‖ R.B.

answered: ―I am very fair. I can be objective, but . . . I am a correctional peace

officer, so . . . I know a lot of murderers. I have dealt with a lot of people who

have been convicted of murders, and I have seen a lot of people who are there . . .

11 In this and certain other appellate claims defendant contends the asserted error

infringed upon his constitutional rights. ―In those instances where he did not

present constitutional theories below, it appears that either (1) the appellate claim

is one that required no objection to preserve it, or (2) the new arguments are based

on factual or legal standards no different from those the trial court was asked to

apply, but raise the additional legal consequence of violating the Constitution. ‗To

that extent, defendant‘s new constitutional arguments are not forfeited on appeal.‘

(People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17.) No separate constitutional

discussion is required, or provided, when rejection of a claim on the merits

necessarily leads to rejection of any constitutional theory or ‗gloss‘ raised for the

first time here.‖ (People v. Loker (2008) 44 Cal.4th 691, 704, fn. 7.)

43

for death or 25 to life. And since I think I filled the questionnaire out . . . I sit at

nighttime thinking about it. I deal with all these people, and . . . they are hard to

deal with if they just have life, you know, because they are still affecting

people. . . . [T]here are still victims inside correctional institutes . . . and prisons.

But I see there are some people that can be in for life and they are fine, you know.

It is hard because I have to deal with it. The thing we just had a few weeks ago

someone in for 25 to life that beat one of us officers to death.‖

The trial court asked if the incident happened inside the California Youth

Authority (CYA), and Prospective Juror R.B. responded: ―Yeah, out there in

Chino. So that is hard to deal with because I think that gentleman, young man, he

is 24, 25, he . . . beat someone to death. So there is another victim he created

while he was in. So it is hard to say, but I could make that decision. . . . I don‘t

know what else to really say. I would have to listen to everything, hear

everything. And if . . . he is found guilty, then it would be hard not to go for the

death penalty, very hard because again I see the people that are locked up. I deal

with hundreds of them that are in for life, and I know what it is like in there. And

I know that it is a lot easier than these people know . . . it is not as bad as what

these people think it is.‖

The trial court said, ―[T]hat is a different view.‖ Prospective Juror R.B.

continued, ―See, I am in there. I am locked up every day with them, and what

society sees and what people. . . .‖ The trial court then cut R.B. off and said,

―Let‘s stay to the bottom line. Can you be an objective juror in this case if you get

to a penalty phase?‖ R.B. answered that he would have to listen to everything.

When asked if he could conceive of voting for life imprisonment without the

possibility of parole in this case, R.B. assured the court, ―I would have to listen to

the attorneys. I wouldn‘t say I would automatically jump to [a] conclusion. I

don‘t jump to conclusions.‖ The trial court said: ―There is another problem. One,

44

we‘re not talking about the California Youth Authority here. We are talking about

other places. And it wouldn‘t be proper for you to educate the jurors in the jury

room what it is like to be incarcerated in a state prison. I know what the Youth

Authority is, okay? I am not educating the jury either. [B]ut do you understand

what I am saying? You would have to keep those thoughts to yourself?‖ R.B.

said, ―Exactly.‖

Subsequently, outside the presence of the prospective jurors, defense counsel

moved to excuse the entire jury venire based on Prospective Juror R.B.‘s

statements regarding experiences in the CYA, and ―what he knows about life

without the possibility of parole.‖ He asserted, ―He basically said to them that

LWOP isn‘t what these people think; I know it is not that hard.‖ The trial court

said: ―First of all, you have no basis upon which to base your conclusion that

anybody has been tainted or even that anybody understood. I knew where he was

going, and I shut him off. And then I told him that we‘re not talking about C.Y.A.

We are talking about other places. And that would be a quantum leap for jurors to

think that prison is like C.Y.A. Now, it is, but they don‘t know that. They would

assume that C.Y.A. is for the kids, and that state prison is for the bad guys, and

there is harsher treatment in prison, I think your conclusion is wrong. And absent

some showing, which means if you want to bring it up, I will probably permit

some limit[ed] question[ing] in that regard and we can even do it one on one. I

don‘t see a problem. I would be afraid about bringing attention to it —‖ Defense

counsel said, ―That is our concern, too.‖ The court responded, ―So that is a big

concern.‖ The trial court denied the motion to excuse the entire panel. Defense

counsel then moved to excuse Prospective Juror R.B., and the court granted the

motion.

That afternoon, the defense submitted a proposed admonition. Defense

counsel requested that any questioning of prospective jurors would be done in

45

private, and the court agreed. The proposed admonition was modified by the court

after discussion with counsel. The following admonition was given to the panel:

―This morning you may recall hearing a prospective juror [R.B.], who was sitting

in seat No. 3 . . . express some of his opinions and experiences as a counselor at

the California Youth Authority. The custodial facilities for minors are far

different than those for adults. [R.B.] has no experience as a custodial officer in

the adult state prison system or with adult life without possibility of parole

prisoners. The purpose of incarceration in a state prison for crime is punishment.

Do any of you have any question regarding [R.B.‘s] statement? If so, please raise

your hand? Anybody with a hand. Do any of you wish to comment on [R.B.‘s]

statement, please raise your hand. How many of you don‘t recall what he said,

please raise your hand. Okay. Several . . . hands went up, and no hand went up

for the questions.‖ Prospective Juror J.D. indicated that she had a comment. The

court told her: ―We are going to talk to you. We are going to do it in private.‖

The court then told the entire panel: ―Anybody else? If anything comes to mind,

just let me know when you are called forward and we‘ll talk about it, but I want to

talk about it in private. That makes sense, doesn‘t it ladies and gentlemen? In any

event, for those of you who may recall what [R.B.] said, you are to disregard his

statement regarding his personal experiences.‖

b. Discussion

Defendant contends he was prejudiced by Prospective Juror R.B.‘s remarks

because he in effect ―predicted that [defendant] might continue to pose a danger to

others if he was sentenced to life imprisonment‖ without the possibility of parole,

and the remarks ―created a substantial danger that jurors would select the death

penalty.‖ However, R.B.‘s comments occurred before the guilt phase, and a

different jury was impaneled for the second penalty phase. No prejudice at the

46

second penalty phase was possible. Defendant further summarily contends that

―the assumptions inherent in [R.B.‘s] remarks struck at the heart of the

presumption of innocence and [the] prosecution‘s burden of proof.‖ It is not

apparent – and defendant does not explain – how R.B.‘s challenged remarks

related to any issue at the guilt phase.

Defendant further contends the court erred in failing to ask the venire

whether ―there was a question or comment about its instruction or whether they

could disregard [Prospective Juror R.B.‘s] comments.‖ Defense counsel proposed

the instruction, and the trial court worked with both counsel at length in modifying

it. At the end of the hearing, the trial court inquired, ―Any further comments on

any requested admonition as modified?‖ Defense counsel responded, ―No, your

honor.‖ Defendant has therefore forfeited any claim that the instruction was

incomplete. (See People v. Wilson (2008) 43 Cal.4th 1, 22.)

Defendant further contends the trial court erred in failing to ―conduct a

hearing to exclude those jurors who overheard [Prospective Juror R.B.‘s] improper

remarks and could not promise to ignore them during their deliberations.‖ The

trial court offered to allow limited questioning ―one on one‖ regarding R.B.‘s

comments, but noted it was concerned ―about bringing attention to it.‖ Defense

counsel responded, ―That is our concern, too.‖ Defense counsel subsequently

requested that prospective jurors with questions or comments be questioned in

private. Defendant thus chose not to question every prospective juror regarding

R.B.‘s remarks, and agreed to private examination of those who had comments or

questions. This claim is therefore forfeited.

Moreover, the trial court instructed the panel that Prospective Juror R.B‘s

experience was in a facility for minors that was ―far different than those for

adults,‖ and that he had ―no experience as a custodial officer in the adult state

prison system or with adult life without possibility of parole prisoners.‖ It further

47

instructed the jury to disregard R.B.‘s comments, solicited any comments or

questions the prospective jurors might have about R.B.‘s remarks, and said ―[i]f

anything comes to mind, just let me know when you are called forward and we‘ll

talk about it, but I want to talk about it in private.‖ This inquiry was sufficient to

ascertain whether the prospective jurors were free from bias after R.B.‘s remarks.

Finally, as noted above, a different jury determined penalty.

Defendant also contends that the record does not reflect that Prospective

Juror J.D. was ever questioned in camera. However, J.D. did not serve on the jury,

so any comment she may have had could not have affected the verdict.

B. Guilt Phase Issues

1. Denial of mistrial motion

Defendant contends the trial court erred in denying defendant‘s motion for

mistrial. We disagree.

During his opening statement, while discussing the Delbecq murder, the

prosecutor said, ―In fact, when [defendant] was ultimately arrested for this —

when [defendant] was found to be involved,‖ the police found certain evidence.

After the prosecutor completed his opening statement, defendant moved for a

mistrial outside the presence of the jury. Defense counsel stated, ―Not 10 minutes

before [the prosecutor] delivered his opening statement I asked him if he was

going to mention the fact of the defendant‘s arrest in Hawaii . . . and [the

prosecutor] said no . . . because [he did not] think that that is relevant to anything

in this case. And as we all know, arrest is just one step away from conviction.

And this jury is not going to hear about the conviction. And during the opening

statement what does [the prosecutor] do? He mentions that the defendant was

arrested.‖ The court asked, ―How would this jury not figure that out sooner or

later?‖ Defense counsel replied that even if the jury figured it out, that was ―a far

48

cry from someone telling them that.‖ The prosecutor said that he had in good faith

told defense counsel he would not bring up defendant‘s arrest, and that his

comment was inadvertent. The court denied the mistrial motion.

― ‗A mistrial should be granted if the court is apprised of prejudice that it

judges incurable by admonition or instruction. [Citation.] Whether a particular

incident is incurably prejudicial is by its nature a speculative matter, and the trial

court is vested with considerable discretion in ruling on mistrial motions.

[Citation.]‘ [Citation.] A motion for a mistrial should be granted when ‗ ― ‗a

[defendant‘s] chances of receiving a fair trial have been irreparably damaged.‘ ‖ ‘

‖ (People v. Collins (2010) 49 Cal.4th 175, 198.) We conclude here that the

prosecutor‘s use of the word ―arrest‖ — even if erroneous — was not ―so

incurably prejudicial that a new trial was required.‖ (People v. Ledesma (2006)

39 Cal.4th 641, 683.)

The prosecutor reference to defendant‘s arrest was brief and isolated. Indeed,

the prosecutor corrected himself midsentence and changed ―arrested‖ to

―involved.‖ Moreover, the prosecutor contended during his opening statement that

defendant was linked to Delbecq‘s murder by the circumstance that his bloody

footprint and palm prints were found inside her bedroom. Hence, as the trial court

observed, the jury would already surmise defendant had been arrested for that

offense. (See Dement, supra, 53 Cal.4th at p. 40 [witness‘s improper comment

―largely duplicative of evidence the jury properly received‖].) In addition, the jury

had already been instructed that statements by the attorneys during the trial were

not evidence. Hence the trial court did not abuse its broad discretion in denying

the mistrial motion.

49

2. Challenge to pathologist’s testimony

Defendant contends the trial court prejudicially erred in allowing Dr. Richard

Fukumoto, a pathologist who did not perform Marjorie Deeble‘s autopsy, to testify

at the guilt and second penalty phase regarding the autopsy report and his opinions

based on that report in violation of defendant‘s confrontation rights under the

Sixth and Fourteenth Amendments to the federal Constitution. (See ante, at pp. 3-

7.) He further contends that even if Dr. Fukumoto‘s testimony was not wholly

inadmissible, his opinions lacked foundation, and were unduly prejudicial. (Evid.

Code, § 352.) We conclude these claims are without merit.

a. Factual background

Dr. Fukumoto worked at Richards, Fisher, Fukumoto Medical Group, Inc.

The medical group had a contract with the Orange County Sheriff‘s Department to

perform autopsies in Orange County. Dr. Richards, who had performed Deeble‘s

1986 autopsy and written an autopsy report, had since retired. The autopsy report

was signed, but not sworn or certified. The report itself was not admitted into

evidence. Dwight Reed, a criminalist who worked for Orange County Sheriff-

Coroner Forensic Sciences Services, attended the autopsy. In addition to

reviewing the report, Dr. Fukumoto reviewed about 100 photographs of Deeble‘s

body, X-rays, and microscopic slides of organ tissues, generated as part of the

autopsy.

b. Analysis

1) Asserted Confrontation Clause Violation

The Attorney General asserts that defendant has forfeited his confrontation

clause claim because he failed to object on this ground at trial. We recently

rejected a similar forfeiture claim, and for similar reasons do so again here.

(People v. Pearson (2013) 56 Cal.4th 393, 461-462 [concluding that a defendant

who failed at a 1996 trial to challenge as a violation of the confrontation clause the

50

testimony of a substitute pathologist did not forfeit the claim on appeal].) In

People v. Clark (1992) 3 Cal.4th 41 (Clark), this court rejected a confrontation

clause challenge to the testimony of one pathologist based on the autopsy report of

a deceased pathologist. We held that the contents of the report ―were admitted

under a ‗firmly rooted‘ exception to the hearsay rule that carries sufficient indicia

of reliability to satisfy the requirements of the confrontation clause.‖ (Id. at

p. 159; People v. Beeler (1995) 9 Cal.4th 953, 978-980 [same] (Beeler).) In light

of Clark and Beeler, defendant‘s failure to object during his 1996 trial ―was

excusable, since governing law at the time . . . afforded scant grounds for

objection.‖ (People v. Johnson (2004) 121 Cal.App.4th 1409, 1411, fn. 2.)

― ‗[W]e have excused a failure to object where to require defense counsel to raise

an objection ―would place an unreasonable burden on defendants to anticipate

unforeseen changes in the law and encourage fruitless objections in other

situations where defendants might hope that an established rule of evidence would

be changed on appeal.‖ ‘ ‖ (People v. Williams (1976) 16 Cal.3d 663, 667, fn. 4

(Williams).) We therefore consider defendant‘s claim on the merits.

Since our decisions in Clark, supra, 3 Cal.4th 41 and Beeler, supra, 9 Cal.4th

953, the United States Supreme Court held in Crawford v. Washington (2004) 541

U.S. 36, 59-60 that admission of testimonial statements of a witness who was not

subject to cross-examination at trial violates a defendant‘s Sixth Amendment right

of confrontation, unless the witness is unavailable and the defendant had a prior

opportunity for cross-examination. More recently, in Williams v. Illinois (2012)

__ U.S. __ [132 S.Ct. 2221], the high court in a fractured decision held the

confrontation clause is not violated when an expert witness testifies about the

results of DNA testing performed by nontestifying analysts whom the defendant

has had no opportunity to confront.

51

Following Williams v. Illinois, we held that the confrontation clause was not

violated when a testifying pathologist expressed forensic opinions on the basis of

objective medical observations derived from a nontestifying pathologist‘s autopsy

report and its accompanying photographs. (People v. Dungo (2012) 55 Cal.4th

608, 621 (Dungo).) In Dungo, neither the autopsy report nor its accompanying

photographs were admitted into evidence. (Id. at p. 612.) We therefore concluded

we need not decide whether the entire report was testimonial, but could focus on

the testimonial nature of particular statements in the report, as described by the

testifying pathologist. (Id. at pp. 618-619.)

We noted in Dungo that ―[a]lthough the high court has not agreed on a

definition of ‗testimonial,‘ testimonial out-of-court statements have two critical

components. First, to be testimonial the statement must be made with some

degree of formality or solemnity. Second, the statement is testimonial only if its

primary purpose pertains in some fashion to a criminal prosecution.‖ (Dungo,

supra, 55 Cal.4th at p. 619.)

Applying these standards to the autopsy evidence in Dungo, we noted that

autopsy reports typically contain two types of statements, those that ―describ[e]

the [autopsy] pathologist‘s anatomical and physiological observations about the

condition of the body,‖ and those that ―set[ ] forth the [autopsy] pathologist‘s

conclusions as to the cause of the victim‘s death.‖ (Dungo, supra, 55 Cal.4th at p.

619.) The testifying pathologist in Dungo, we stressed, had described only

autopsy statements in the first category, and had then supplied, on the basis of

those statements and his own examination of autopsy photos, his independent

forensic opinions about the cause of the victim‘s death. (Id. at pp. 618-619.) He

had not described the conclusions in the autopsy report as to the cause of death.

Thus, we had no occasion to ―determine whether such testimony, if it had been

52

given, would have violated defendant‘s right to confront‖ the autopsy

pathologist.12 (Id. at p. 619.)

Autopsy statements that simply record anatomical and physiological

observations, we indicated, are ―less formal‖ than statements of the autopsy

physician‘s expert forensic conclusion as to the cause of death. (Dungo, supra,

55 Cal.4th at p. 619.) Statements in the former category, we observed, are

―comparable to observations of objective fact in a report by a physician who, after

examining a patient, diagnoses a particular injury or ailment and determines the

appropriate treatment. Such observations are not testimonial in nature.

[Citation.]‖ (Id. at pp. 619-620.) A majority in Dungo further pointed out that the

autopsy statements at issue were neither sworn nor certified for accuracy, and for

this additional reason they ―lacked the solemnity and formality that characterize

statements the high court deems testimonial.‖ (Id. at p. 623 (conc. opn. of

Werdegar, J.).)

We also found the anatomical observations in the Dungo autopsy report to be

nontestimonial under the ―primary purpose‖ test. (Dungo, supra, 55 Cal.4th at

p. 621, italics omitted.) We noted that California statutes require an autopsy in

certain types of death, only some of which are related to suspected criminal

activity. (Id. at p. 620.) Regardless of the circumstances, we explained, ―the

scope of the coroner‘s statutory duty to investigate is the same‖ (ibid.), and the

report serves both forensic and nonforensic uses (id. at pp. 620-621). Hence, we

concluded, ―criminal investigation was not the primary purpose for the . . .

report‘s description of the condition of [the victim‘s] body; it was only one of

12 Thus, although the concurring and dissenting opinion states that ―[t]here is no

debate that admission of testimony as to medical conclusions reached by a

nontestifying expert would violate the confrontation clause,‖ we have never

decided this issue. (Conc. & dis. opn. of Corrigan, J., post, at p. 2.)

53

several purposes.‖ (Id. at p. 621.) We pointed out that the report itself was, in

essence, ―simply an official explanation of an unusual death, and such official

records are ordinarily not testimonial. [Citation.]‖ (Ibid.)

Here, as in Dungo, Dr. Fukumoto recounted objective medical observations

derived from Dr. Richards‘s autopsy report and its accompanying photographs,

microscopic slides, and X-rays, and expressed opinions based on those

observations. Defendant implicitly concedes any confrontation clause challenge to

this portion of Dr. Fukumoto‘s testimony is foreclosed by Dungo, and offers no

persuasive reason for us to revisit our conclusion in that case.13

Defendant contends, however, that his rights under the confrontation clause

were violated when Dr. Fukumoto recounted forensic opinions expressed by

Dr. Richards in the autopsy report. At the guilt phase Dr. Fukumoto opined that

the cause of Deeble‘s death was ―asphyxiation due to ligature strangulation,‖ and

agreed with the prosecutor that this was consistent with Dr. Richards‘s opinion.

Dr. Fukumoto also agreed with the prosecutor that an autopsy photograph

appeared to show ligature marks on Deeble‘s ankles (Deeble‘s legs were not

bound when her body was discovered), and said that Dr. Richards described

nearby lacerations on the right ankle also visible in the photograph ―as being

caused by the wires probably coming together and inflicting the injury.‖ The

prosecutor asked if Dr. Fukumoto ―personally disagree[d] with that at all,‖ and Dr.

Fukumoto replied: ―No. It is consistent with that.‖ At the second penalty phase,

Dr. Fukumoto again opined that Deeble ―died as a result of asphyxiation due to a

13 The author of the concurring and dissenting opinion, who also dissented in

Dungo, 55 Cal.4th at pages 633-649 (dis. opn. of Corrigan, J.), continues to urge

here that Dungo was wrongly decided. (Conc. & dis. opn. of Corrigan, J., post, at

pp. 1, 5, 10.) As indicated above, we are not persuaded to reconsider that recent

case.

54

ligature strangulation,‖ and agreed with the prosecutor this was consistent with Dr.

Richards‘s opinion and that Dr. Fukumoto had formed his opinion independently.

Thus, even assuming these statements violated the confrontation clause, an

issue we need not decide, no prejudice was possible under any standard. As can

be seen, Dr. Fukumoto independently agreed with Dr. Richards‘s opinions, and

neither the cause of death nor the source of the lacerations on Deeble‘s ankle was

in dispute at trial.14

Defendant contends that at the guilt phase Dr. Fukumoto also erroneously

recounted Dr. Richards‘s ―opinions‖ that the injury to Deeble‘s left ear was

―incisional,‖ residue from adhesive tape was observed in an area from the mouth

to the lower cheek, and Deeble‘s nose was fractured, and at the second penalty

phase made similar statements regarding Dr. Richards‘s opinions of injury to

Deeble‘s ear and the presence of adhesive tape. This testimony by Dr. Fukumoto

did not, however, recount Dr. Richards‘s forensic opinions as to the cause of

Deeble‘s injury or death, but rather his medical observations of objective fact.

That a break appears ―incisional,‖ a nose appears to be broken, or residue appears

14 The concurring and dissenting opinion asserts that Dr. Fukumoto also testified

regarding Dr. Richards‘s forensic opinion that Deeble ―had suffered an incisional

tear in her left eardrum, suggesting it had been caused by a sharp instrument.‖

(Conc. & dis. opn. of Corrigan, J., post, at pp. 2-3, underlining in original.) In

fact, Dr. Fukumoto testified that Dr. Richards had described ―a break on the left

ear drum . . . as incisional in type.‖ Dr. Fukumoto then explained: ―[A]n incision

to a forensic pathologist . . . . is not a tear. It is something that is caused by a sharp

instrument or an instrument that has a point.‖

The concurring and dissenting opinion suggests generally that Dungo’s distinction

between an autopsy examiner‘s medical observations and the examiner‘s forensic

conclusions is too indistinct to be workable. (Conc. & dis. opn. of Corrigan, J.,

post, at pp. 1-2, 10.) For the reasons stated in Dungo, and demonstrated here, we

disagree.

55

to be from adhesive tape, are expert medical observations of the body‘s condition

– assessments like those a doctor would make to determine the proper treatment of

a live patient. (See Dungo, supra, 55 Cal.4th at p. 619.) Such testimony was no

different than, for example, Dr. Fukumoto‘s testimony regarding statements in the

autopsy report that Deeble‘s stomach contained food that was virtually untouched

by digestion, and that there was bruising and tearing just inside the opening to the

vagina. Moreover, Dr. Fukumoto independently reviewed X-rays of Deeble‘s

nose and testified that one X-ray showed ―somewhat flattening‖ that ―may reflect

fracturing at the bridge of [the] nose,‖ and Dwight Reed, who attended the

autopsy, testified that during the autopsy white adhesive material was observed on

Deeble‘s left cheek.

2) Claim Dr. Fukumoto’s testimony lacked foundation and

was unduly prejudicial

Defendant contends that even if Dr. Fukumoto‘s testimony was not wholly

inadmissible, his opinions that Deeble‘s injuries were extremely painful and

occurred before death lacked foundation, were irrelevant, and were unduly

prejudicial. (Evid. Code, §§ 352, 801.) This claim lacks merit.

Dr. Fukumoto opined that the ligature and struggling against it, the incisional

injury to Deeble‘s ear, and an amount of pressure sufficient to tear the ear drums

would all be extremely painful. He also agreed with the prosecutor that trauma to

the vaginal and rectal areas is ―highly painful,‖ and opined that the injuries to the

vaginal and rectal areas occurred before death.

Adequate foundation for Dr. Fukumoto‘s opinions was provided by

Dr. Richards‘s autopsy report, photographs, and slides, as well as Dr. Fukumoto‘s

more than 30 years‘ experience as a forensic pathologist. (See People v. Taylor

(2010) 48 Cal.4th 574, 588 [recounting testimony by deputy medical examiner and

treating cardiologist that elderly victim died from the extreme fear, pain, and stress

56

caused by the sexual assault]; People v. Linkenauger (1995) 32 Cal.App.4th 1603,

1606 [noting medical examiner had opined that strangulation victim ―was acutely

aware of the pain before her death‖].) Contrary to defendant‘s assertion, Dr.

Fukumoto was not required to be the pathologist who performed the autopsy or

possess a neurology background in order to testify regarding the painfulness of

Deeble‘s injuries. Moreover, the jury was instructed that it was not bound to

accept Dr. Fukumoto‘s opinions as conclusive, but was free to determine the

weight to which they were entitled and to disregard the opinions if the jury found

them to be unreasonable. (§ 1127b.)

Defendant contends that Dr. Fukumoto‘s testimony was irrelevant because

the jury could draw its own conclusions about the painfulness of Deeble‘s injuries,

and received ―no appreciable help from Dr. Fukumoto‘s opinion testimony.‖ He

did not object on this ground below, and the claim is therefore forfeited.

(Williams, supra, 16 Cal.3d at p. 667, fn. 4 [―It is the general rule, of course, that

questions relating to the admissibility of evidence will not be reviewed on appeal

absent a specific and timely objection at trial on the ground sought to be urged on

appeal.‖].) It also lacks merit. ―Evidence Code section 801 qualifies a matter as

the proper subject for expert testimony if it is ‗sufficiently beyond common

experience that the opinion of an expert would assist the trier of fact.‘ That is not

to say, however, that the jury need be wholly ignorant of the subject matter of the

expert opinion in order for it to be admissible. [Citation.] Rather, expert opinion

testimony ‗ ―will be excluded only when it would add nothing at all to the jury‘s

common fund of information, i.e., when ‗the subject of inquiry is one of such

common knowledge that men of ordinary education could reach a conclusion as

intelligently as the witness‘ ‖ [citation]. ‘ ‖ (People v. Jones (2012) 54 Cal.4th 1,

60 (Jones).) Here, Dr. Fukumoto‘s medical expertise provided additional insight

57

above and beyond the jury‘s general knowledge in the areas of whether the genital

injuries occurred before death, and whether these and other injuries were painful.

Defendant further asserts that the probative value of Dr. Fukumoto‘s

opinions was substantially outweighed by their prejudice or, phrased another way,

that his opinions posed an intolerable risk to the fairness of the proceedings or the

reliability of the outcome. (People v. Riggs (2008) 44 Cal.4th 248, 290 (Riggs).)

Defendant has forfeited these claims by failing to raise them below. (Williams,

supra, 16 Cal.3d at p. 667, fn. 4.) They are also meritless. As delineated below,

Dr. Fukumoto‘s opinions were highly probative on the issues of identity, torture

murder, and the torture-murder special-circumstance, as well as burglary murder

and the burglary-murder special-circumstance based on entry with intent to

penetrate with a foreign object. (See post, at pts. II.B.3., II.B.4., II.B.5.)

Defendant does not even attempt to demonstrate how their admission

―necessitate[d] undue consumption of time‖ or ―create[d] [a] substantial danger of

undue prejudice, of confusing the issues, or of misleading the jury.‖ (Evid. Code,

§ 352.)

3. Admission of evidence regarding Muriel Delbecq’s murder

Defendant contends the trial court erred in admitting evidence about

Delbecq‘s murder on the issues of identity, common plan, and intent in violation

of Evidence Code sections 352 and 110115 and his rights under the Fifth, Eighth,

15 Evidence Code section 1101 provides:

―(a) Except as provided in this section and in [other sections], evidence of

a person‘s character or a trait of his or her character (whether in the form of an

opinion, evidence of reputation, or evidence of specific instances of his or her

conduct) is inadmissible when offered to prove his or her conduct on a specified

occasion.

―(b) Nothing in this section prohibits the admission of evidence that a

person committed a crime, civil wrong, or other act when relevant to prove some

58

and Fourteenth Amendments to the federal Constitution. We conclude there was

no error.

Before trial, the prosecutor sought the admission of evidence regarding

Delbecq‘s murder. The trial court ruled that evidence of the Delbecq murder was

admissible on the issues of identification, common plan and scheme, and intent,

and that admission of the evidence did not violate Evidence Code section 352.16

(footnote continued from previous page)

fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity,

absence of mistake or accident. . .) other than his or her disposition to commit such

an act.

―(c) Nothing in this section affects the admissibility of evidence offered to

support or attack the credibility of a witness.‖

16 The jury was instructed: ―Evidence has been introduced for the purpose of

showing that the defendant committed a crime other than that for which he is on

trial. Such evidence, if believed, was not received and may not be considered by

you to prove that defendant is a person of bad character or that he has a disposition

to commit crimes. Such evidence was received and may be considered by you

only for the limited purpose of determining if it tends to show:

―[T]he identity of the person who committed the crime, if any, of which the

defendant is accused.

―A characteristic design or plan in the commission of criminal acts similar

to the design or plan or scheme used in the commission of the offense in this case.

―The existence of the intent which is a necessary element of the crime

charged.

―For the limited purpose for which you may consider such evidence you

must weigh it in the same manner as you do all other evidence in the case. You

are not permitted to consider such evidence for any other purpose.

―For identity to be established, the uncharged misconduct and the charged

offense must share common features which are sufficiently distinctive so as to

support the inference that the same person committed both acts.

59

The court excluded evidence that Deeble and Delbecq shared the same three

initials because Delbecq went by the nickname ―Stevie Delbecq‖ in Hawaii, and

there was no evidence defendant knew her real name. It also excluded evidence

that both Deeble and Delbecq were real estate agents because Delbecq did not

engage in that occupation when she visited Hawaii, and there was no evidence that

defendant knew her occupation in Alaska. Finally, the court ruled that evidence

Delbecq‘s pubic hair was cut would not be admissible absent a further showing of

relevance.

―Subdivision (a) of [Evidence Code] section 1101prohibits admission of

evidence of a person‘s character, including evidence of character in the form of

specific instances of uncharged misconduct, to prove the conduct of that person on

a specified occasion. Subdivision (b) of section 1101 clarifies, however, that this

rule does not prohibit admission of evidence of uncharged misconduct when such

evidence is relevant to establish some fact other than the person‘s character or

disposition,‖ such as identity, common plan, or intent. (People v. Ewoldt (1994)

7 Cal.4th 380, 393, fn. omitted (Ewoldt).)‖ Evidence of uncharged crimes is

admissible to prove identity, common plan, and intent ―only if the charged and

uncharged crimes are sufficiently similar to support a rational inference‖ on these

issues. (People v. Kipp (1998) 18 Cal.4th 349, 369 (Kipp).) We review the trial

(footnote continued from previous page)

―Within the meaning of the preceding instruction, such other crime

purportedly committed by defendant must be proved by a preponderance of the

evidence. You must not consider such evidence for any other purpose unless you

are satisfied that the defendant committed such other crime.

―The prosecution has the burden of proving these facts by a preponderance

of the evidence.‖

60

court‘s determination for abuse of discretion, and view the evidence in the light

most favorable to the trial court‘s ruling. (Id. at pp. 369-370.)

The ―highest degree of similarity is required to prove identity.‖ (People v.

Soper (2009) 45 Cal.4th 759, 776, fn. omitted.) ― ‗For identity to be established,

the uncharged misconduct and the charged offense must share common features

that are sufficiently distinctive so as to support the inference that the same person

committed both acts. [Citation.] ―The pattern and characteristics of the crimes

must be so unusual and distinctive as to be like a signature.‖ ‘ ‖ (People v. Lynch

(2010) 50 Cal.4th 693, 736 (Lynch).) ―The strength of the inference in any case

depends upon two factors: (1) the degree of distinctiveness of individual shared

marks, and (2) the number of minimally distinctive shared marks.‖ (People v.

Thornton (1974) 11 Cal.3d 738, 756.) ―The inference of identity, however, ‗need

not depend on one or more unique or nearly unique common features; features of

substantial but lesser distinctiveness may yield a distinctive combination when

considered together.‘ ‖ (Lynch, at p. 736.)

Here, evidence of the Delbecq murder was relevant to prove identity because

the common features of that crime and Deeble‘s murder were ―sufficiently

distinctive so as to support the inference that the same person committed both

acts.‖ (Ewoldt, supra, 7 Cal.4th at p. 403.) At the time the court ruled before trial,

it was informed that there was evidence both Deeble and Delbecq were older17

Caucasian women who lived alone on the first floor of an apartment building.

Delbecq was murdered at night, and there was evidence Deeble was also murdered

at night given that when her body was discovered she was wearing a nightgown.

The cause of death for both women was strangulation. Delbecq had been

17 In his trial brief regarding this issue, the prosecutor asserted that Deeble was 55

years old at the time of her death.

61

penetrated by a mousse can, and the evidence strongly suggested Deeble had been

penetrated by a mousse can of similar diameter and length. It appeared that both

penetrations occurred while the victims were alive. Both women also suffered

broken noses and ligature marks on their wrists and ankles consistent with being

bound by telephone cord. Defendant knew Deeble, and his bloody palm prints

were found at the Delbecq murder scene. Both victims were found in their

ransacked bedrooms, and had jewelry taken, and the prosecutor asserted entry into

both homes was made by removing a window screen. Substantially similar

evidence was presented at trial.

Thus, at the time the Hawaii evidence was admitted, the trial court was aware

of numerous similarities between the Deeble and Delbecq murders. Most notably,

mousse cans of similar diameter and length were present at both crime scenes, and

there was evidence both victims had been sexually penetrated by the mousse cans.

Moreover, ―[t]o be highly distinctive, the charged and uncharged crimes need not

be mirror images of each other.‖ (People v. Carter (2005) 36 Cal.4th 1114, 1148.)

Rather, dissimilarities between the crimes ―went to the weight of the evidence and

did not preclude the prosecution from introducing the evidence‖ regarding

Delbecq‘s murder. (Ibid.)

The evidence of Delbecq‘s murder was also relevant to prove a common

design or plan. ―To establish the existence of a common design or plan, the

common features must indicate the existence of a plan rather than a series of

similar spontaneous acts, but the plan thus revealed need not be distinctive or

unusual‖; rather it ―need only exist to support the inference that the defendant

employed that plan in committing the charged offense.‖ (Ewoldt, supra, 7 Cal,4th

at p. 403.) Here, the common features noted above indicate that when defendant

committed the charged Deeble offenses and the uncharged Delbecq offenses he

62

was acting pursuant to a common design or plan to torture, murder, and rob the

older women he had chosen as victims. (Kipp, supra, 18 Cal.4th at p. 371.)

The evidence of Delbecq‘s murder was also relevant to prove intent, such as

defendant‘s entry with the intent to penetrate with a foreign object or steal as to

burglary murder, and possession of a willful, deliberate, and premeditated intent to

inflict extreme and prolonged pain on a person for a sadistic purpose as to torture

murder. (Ewoldt, supra, 7 Cal.4th at p. 402.) Here, as set forth above, the

evidence of Delbecq‘s murder was sufficiently similar to Deeble‘s murder to

support the inference that defendant ― ‗ ―probably harbor[ed] the same intent in

each instance.‖ ‘ ‖ (Ibid.)

For these reasons, the trial court did not abuse its discretion when it ruled that

evidence of the Delbecq murder was sufficiently similar to Deeble‘s murder to

support an inference that defendant committed both murders, and did so pursuant

to a common design or plan and while harboring the same intent. (Kipp, supra,

18 Cal.4th at pp. 370-371.)

Nor did evidence of Delbecq‘s murder contravene Evidence Code section

352.18 (Lynch, supra, 50 Cal.4th at p. 757; Ewoldt, supra, 7 Cal.4th at p. 404.)

―Under Evidence Code section 352, a trial court may exclude otherwise relevant

evidence when its probative value is substantially outweighed by concerns of

undue prejudice, confusion, or consumption of time. ‗Evidence is substantially

more prejudicial than probative [citation] if, broadly stated, it poses an intolerable

―risk to the fairness of the proceedings or the reliability of the outcome

18 Evidence Code section 352 provides: ―The court in its discretion may 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.‖

63

[citation].‖ ‘ ‖ (Riggs, supra, 44 Cal.4th at p. 290.) We conclude no such

intolerable risk was present here.

The tendency of the evidence to show identity, common design or plan, and

intent, as set forth above, was strong. (See Ewoldt, supra, 7 Cal.4th at p. 404.)

Moreover, the evidence regarding Delbecq‘s murder was independent of the

evidence of the charged crimes, involving witnesses and evidence from another

state and a decedent who had no connection to Deeble. (Id. at pp. 404-405.)

Nor did admission of the evidence of Delbecq‘s murder create a substantial

danger of undue prejudice. Although the jury could infer from the presence of

defendant‘s palm prints and footprint that defendant had killed Delbecq, it could

also infer from his testimony that he had been convicted of her 1993 murder.

Thus, ―the jury was not tempted to convict defendant of the charged offenses,

regardless of his guilt, in order to assure that he would be punished for‖ any other

murder. (People v. Balcom (1994) 7 Cal.4th 414, 427.) In addition, although the

Delbecq murder involved greater brutality to the victim‘s genital area, the jury

could reasonably infer that Deeble‘s genital area was also penetrated by a mousse

can while she was alive, and that she suffered an agonizing death as she attempted

to hold her head up so that she would not be strangled by the ligature. Thus, the

Delbecq murder was not more inflammatory than the Deeble murder. (Ewoldt,

supra, 7 Cal.4th at p. 405.) Moreover, the jury was properly instructed on the

limited purposes for which it could consider evidence of Delbecq‘s murder.

(Kipp, supra, 18 Cal.4th at p. 372.)

Defendant contends that ―the key foundational fact‖ that Deeble was

assaulted with a mousse can was not established at trial, and that the trial court

erred in failing to exclude evidence Delbecq was penetrated by a mousse can. As

we have observed, Dr. Fukumoto testified that Deeble suffered injury to her

vaginal and rectal areas, and that the mousse can found in her bed was consistent

64

with an object that could have caused these injuries. In addition, there was

circumstantial evidence that Deeble had been penetrated by the mousse can: A

substance that appeared to be blood was present underneath the ridge around the

top of the mousse can; this substance gave a positive response to a presumptive

test for blood; a cap found on the ground next to Deeble appeared to be one that

could fit the mousse can; a substance that appeared to be blood was observed on

the cap; and the position of Deeble‘s nightgown, which was pushed up around her

waist, the absence of panties, and the apparent semen stain on her thigh indicated a

sexual assault. Although defendant offered to stipulate that Delbecq was

penetrated by a mousse can without reference to the concomitant damage to her

abdomen, ― ‗[t]he general rule is that the prosecution in a criminal case cannot be

compelled to accept a stipulation if the effect would be to deprive the state‘s case

of its persuasiveness and forcefulness.‘ ‖ (People v. Scott (2011) 52 Cal.4th 452,

471.)

Defendant contends that the trial court‘s admission of evidence of Delbecq‘s

murder under the test in Ewoldt, supra, 7 Cal.4th 380, instead of the test under

People v. Tassell (1984) 36 Cal.3d 77, which he claims was in effect at the time of

the crimes, violated the prohibition against ex post facto laws. Defendant

challenges the trial court‘s application of Ewoldt, not Evidence Code section 1101

itself, and hence his claim is more properly characterized as one invoking due

process and not the ex post facto clause. (People v. Brown (2004) 33 Cal.4th 382,

394.) Defendant‘s claim is meritless under either provision. Ewoldt concerned the

circumstances under which certain evidence was admissible at trial. It did not

attach criminality to prior acts that were ―innocent when done,‖ provide for

―greater punishment‖ of a crime ―than was prescribed at the time of its

commission,‖ or ―alter the degree‖ or measure of proof necessary to convict from

that which was required at the time the crime was committed. (Brown, at p. 394

65

[applying the high court‘s analysis of ex post facto laws to a claim that admission

of victim impact evidence violated the due process clause].) Hence, Ewoldt’s

principles may be applied to a trial occurring after it was decided, regardless of

when the underlying crime was committed. (People v. Sandoval (2007) 41 Cal.4th

825, 845; Tapia v. Superior Court (1991) 53 Cal.3d 282, 288-289.)

In sum, the trial court did not abuse its discretion in admitting evidence of

Delbecq‘s murder to establish identity, common design or plan, and intent.

4) Asserted insufficiency of evidence in support of a first degree

murder conviction on a theory of torture murder, and of a torture-

murder special circumstance

The People advanced two theories of murder: murder by means of torture

and felony-murder burglary. The jury was also instructed on two special

circumstance allegations: murder involving the infliction of torture and murder

while defendant was engaged in the commission of burglary. The jury found

defendant guilty of first degree murder, but the verdict did not specify the theory

on which it rested its verdict. It also found true the torture-murder and burglary-

murder special-circumstance allegations.

Defendant contends that the evidence is insufficient to support the jury‘s

finding of first degree murder on a theory of torture murder and true finding as to

the torture-murder special-circumstance allegation. We disagree.

―When considering a challenge to the sufficiency of the evidence to support a

conviction, we review the entire record in the light most favorable to the judgment

to determine whether it contains substantial evidence — that is, evidence that is

reasonable, credible, and of solid value — from which a reasonable trier of fact

could find the defendant guilty beyond a reasonable doubt.‖ (People v. Lindberg

(2008) 45 Cal.4th 1, 27.) We determine ―whether, after viewing the evidence in

the light most favorable to the prosecution, any rational trier of fact could have

66

found the essential elements of the crime beyond a reasonable doubt.‖ (Jackson v.

Virginia (1979) 443 U.S. 307, 319.) In so doing, a reviewing court ―presumes in

support of the judgment the existence of every fact the trier could reasonably

deduce from the evidence.‖ (People v. Kraft (2000) 23 Cal.4th 978, 1053.) The

same standard of review applies to the sufficiency of the evidence supporting

special circumstance findings. (People v. Chatman (2006) 38 Cal.4th 344, 389

(Chatman).)

―All murder which is perpetrated by means of . . . torture . . . is murder of the

first degree.‖ (§ 189.) Murder by torture requires: 1) an act or acts causing death

that involve a high degree of probability of death, 2) a causal relationship between

the torturous act and death, 3) a willful, deliberate, and premeditated intent to

inflict extreme and prolonged pain on a person for the purpose of revenge,

extortion, persuasion, or for any other sadistic purpose, and 4) commission of the

act or acts with such intent. (Chatman, supra, 38 Cal.4th at pp. 389-390

(Chatman); People v. Davenport (1985) 41 Cal.3d 247, 267, 294 (Davenport).)

The circumstance that the murder is ―perpetrated by means of . . . torture‖ (§ 189)

indicates that a torturous act — that is, one done with a willful, deliberate, and

premeditated intent to inflict extreme and prolonged pain on a person for a sadistic

purpose — must occur before the victim dies. Thus, the perpetrator intends to

― ‗cause pain and suffering in addition to death,‘ ‖ and ― ‗in the course, or as a

result of inflicting pain and suffering, the victim dies.‘ ‖ (People v. Steger (1976)

16 Cal.3d 539, 543.) The ― ‗finding of murder-by-torture encompasses the totality

of the brutal acts and the circumstances which led to the victim‘s death.

[Citation.] The acts of torture may not be segregated into their constituent

elements in order to determine whether any single act by itself caused the death;

rather it is the continuum of sadistic violence that constitutes the torture.‘ ‖

(People v. Jennings (2010) 50 Cal.4th 616, 643.)

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―The jury may infer the intent to inflict extreme pain from the circumstances

of the crime, the nature of the killing, and the condition of the body.‖ (Chatman,

supra, 38 Cal.4th at p. 390.) A perpetrator need not have any intent to kill

(Davenport, supra, 41 Cal.3d at p. 267), and it need not be proven that the victim

actually suffered pain (Chatman, at p. 389).

We have held that ―[m]urder by strangulation indicates malice, but it does not

by itself indicate an intent to make the victim suffer.‖ (People v. Caldwell (1955)

43 Cal.2d 864, 865, 869 [no evidence that the defendant intended to make the

victim suffer when he inflicted a long laceration on his wife‘s scalp, and then

strangled her with two belts].) We have, however, considered evidence of an

―unusually forcible strangulation attempt‖ together with other violent acts to

conclude there was sufficient evidence of a premeditated intent to inflict extreme

and prolonged pain. (People v. Morales (1989) 48 Cal.3d 527, 541, 559-560

[evidence that defendant told his girlfriend he was going to ― ‗hurt‖ a girl by

strangling her with his belt,‖ and thereafter attempted to strangle the victim ―with

his belt until it broke, beat her repeatedly on the head with a hammer until she was

unconscious or dead, dragged her body into a field and completed an act of sexual

intercourse, and finally stabbed her four times in the chest to assure her death‖

sufficient to sustain jury‘s implied finding of intent to inflict extreme pain].)

Here, Dr. Fukumoto testified that before Deeble‘s death her vagina was

bruised and torn, there was bleeding beneath the surface lining of the vaginal wall,

and her anus was dilated, bruised, and lacerated. He also opined that the injuries

to Deeble‘s vaginal and rectal areas were consistent with penetration by the

mousse can found on her bed, and that trauma to the vaginal and rectal areas is

―highly painful.‖ As noted above, there was strong circumstantial evidence that

Deeble had been penetrated by the mousse can. (See ante, at p. 65.) The jury was

also aware that defendant subsequently penetrated Muriel Delbecq with a mousse

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can while she was alive, tearing the barrier between the vaginal and abdominal

cavities.

Deeble died from ligature strangulation, and was found with her neck in a

noose fashioned from a belt and suspended about eight inches above the floor.

Dr. Fukumoto testified that one mark on Deeble‘s neck, a deep furrow, had

features such as wrinkling and thickening that were consistent with Deeble

struggling against the ligature to loosen it. When Deeble was found, blood was

running out of her left ear and her mouth, and there was blood around her nose.

Dr. Fukumoto testified that Deeble‘s left eardrum had been cut by a sharp or

pointed instrument, her right ear drum was torn, and she had extensive

hemorrhaging in her middle ears. He opined, ―if the ear drums are torn, associated

with massive bleeding in the middle ears, this could be due to a massive increase

in pressure as a result of the struggle of the victim in his or her attempt to get a

breath.‖ He further testified that all of these injuries would have been extremely

painful. Moreover, defendant inflicted blunt trauma injury that caused bleeding

near Deeble‘s pancreas, an organ located deep within the body, and he also

inflicted blunt trauma to her head.

Although there was no testimony that the injuries other than those to the

genital area and the ligature were inflicted before death, there was evidence that

Deeble had been bound and gagged, and had a hood — which was fashioned from

a pillowcase — placed over her head. As noted above, these circumstances

suggest a methodical and prolonged attack rather than an explosion of violence,

and would be unnecessary measures if, as defendant suggests, the victim had

already been rendered senseless by the blow to her head. (People v. Bemore

(2000) 22 Cal.4th 809, 840 (Bemore) [―No restraint would have been necessary if

[the victim] had perished at the start of the attack in the manner defendant now

suggests.‖].) Moreover, because more blood was found inside the hood than

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outside, and when Deeble was discovered she was not wearing a hood, the jury

could reasonably infer that the cut to Deeble‘s eardrum, which Dr. Fukumoto

testified would have been extremely painful, and the injuries to her nose and

mouth, occurred while she was alive and either before or while she was wearing

the hood.

The jury could reasonably infer from this totality of facts that defendant

committed torturous acts before Deeble‘s death, these acts that had a high

probability of killing Deeble and did kill her, and that he did so with a willful,

deliberate, and premeditated intent to inflict extreme and prolonged pain on

Deeble for a sadistic purpose.

The evidence is also sufficient to support the jury‘s true finding of the

torture-murder special-circumstance allegation. The torture-murder special-

circumstance allegation requires an ― ‗intent to cause cruel or extreme pain and

suffering for the purpose of revenge, extortion, persuasion, or for any other

sadistic purpose.‘ ‖ (People v. Elliot (2005) 37 Cal.4th 453, 479.) Unlike torture

murder, it also requires an intent to kill and, at the time of Deeble‘s murder,

required ―proof of the infliction of extreme physical pain no matter how long its

duration‖ on a living victim. (§ 190.2, subd. (a)(18) as added by Prop. 7, § 6,

approved by the voters, Gen. Elec. (Nov. 7, 1978); see Chatman, supra, 38 Cal.4th

at p. 391; Davenport, supra, 41 Cal.3d at p. 271.) It does not require a

premeditated and deliberate intent to torture (People v. Cole (2004) 33 Cal.4th

1158, 1226), a causal relationship between the torturous act and death (People v.

Crittenden (1994) 9 Cal.4th 83, 141-142), or proof the victim subjectively

experienced pain (Davenport, supra, 41 Cal.3d at p. 271). ―Distilled, the statutory

language requires intent to kill, intent to torture, and infliction of an extremely

painful act upon a living victim.‖ (Bemore, supra, 22 Cal.4th at p. 839.)

70

As we have explained, the evidence is sufficient to support the element of

intent to inflict pain for a sadistic purpose. In addition, the nature of Deeble‘s

injuries supports the jury‘s conclusion that defendant intended to kill her and that

in doing so he inflicted extreme physical pain while she was alive.

5) Asserted insufficiency of the evidence in support of first degree

murder conviction on a theory of burglary murder and burglary-

murder special circumstance

The prosecutor proceeded on a theory of murder in the course of burglary

based both on entry with intent to commit theft, and entry with intent to penetrate

with a foreign object. Defendant asserts that the evidence in support of the

burglary theory of murder and the burglary-murder-special-circumstance

allegation was insufficient. We disagree.

―All murder which is . . . committed in the perpetration of, or attempt to

perpetrate, . . . burglary . . . is murder of the first degree.‖ (§ 189.) ― ‗The mental

state required is simply the specific intent to commit the underlying felony; neither

intent to kill, deliberation, premeditation, nor malice aforethought is needed.

[Citations.] There is no requirement of a strict ―causal‖ [citation] or ―temporal‖

[citation] relationship between the ―felony‖ and the ―murder.‖ All that is

demanded is that the two ―are parts of one continuous transaction.‖ ‘ ‖ (People v.

Gutierrez (2002) 28 Cal.4th 1083, 1140-1141.) When a defendant makes no

admissions and relies on an alibi defense, ―the jury [is] required to find his intent

upon entry circumstantially,‖ such as ―from his conduct and statements after

entry.‖ (People v. Failla (1966) 64 Cal.2d 560, 564-565; 2 Witkin & Epstein, Cal.

Criminal Law (4th ed. 2012) § 156, p. 203 [―Acts or conduct on the premises after

entry may be extremely persuasive as circumstantial evidence of intent to

commit . . . a felony.‖]; see People v. Abilez (2007) 41 Cal.4th 472, 508 [― ‗[t]here

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is no better proof that [defendant] entered the [victim‘s house] with intent to

commit robbery than a showing he did in fact commit robbery after his entry‘ ‖].)

We conclude the evidence of entry with the intent to commit theft or

penetration with a foreign object was sufficient. As to entry with the intent to

commit theft, the bedroom in which Deeble‘s body was found had been ransacked,

including dresser drawers that were open and the contents of a purse strewn on the

floor. Valentine, Deeble‘s daughter, testified that following Deeble‘s death,

Valentine never again saw certain identified pieces of Deeble‘s jewelry.

Moreover, there was evidence from which the jury could infer defendant had

subsequently stolen Delbecq‘s wedding ring. The jury could reasonably infer

from this evidence that defendant entered Deeble‘s home with the intent to commit

theft. (Lynch, supra, 50 Cal.4th at p. 764.)

As to entry with the intent to commit penetration with a foreign object,

Deeble suffered injuries to her vaginal and rectal areas consistent with penetration

by a mousse can found on her bed, and as recounted above, there was other

circumstantial evidence that Deeble had been penetrated by the mousse can. The

jury was also aware that defendant subsequently brutally penetrated Muriel

Delbecq with a mousse can. The jury could reasonably infer from these

circumstances that defendant entered Deeble‘s home with the intent to penetrate

her with a foreign object.

The evidence is also sufficient to support the jury‘s true finding of the

burglary-murder special-circumstance allegation. ―The felony-murder special

circumstance applies to a murder committed while the defendant was engaged in,

or was an accomplice in the commission of, the attempted commission of, or the

immediate flight after committing or attempting to commit, various enumerated

felonies, including, as relevant here, burglary. (§ 190.2, subd. (a)(17).) A strict

causal or temporal relationship between the felony and the murder is not required;

72

what is required is proof beyond a reasonable doubt that the defendant intended to

commit the felony at the time he killed the victim and that the killing and the

felony were part of one continuous transaction. [Citations.] Additionally, in this

Carlos-era case, the prosecution was required to prove that defendant[] intended to

kill the victim.‖ (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 87; see

Carlos v. Superior Court (1983) 35 Cal.3d 131, 135.) Here, as we have explained,

the nature of the victim‘s wounds and the circumstances surrounding the killing

support the conclusion that defendant intended to kill, and committed Deeble‘s

murder while engaged in burglary.

6) Challenge to testimony regarding key

Defendant contends that the trial court‘s admission of Peggy Ventura‘s

testimony regarding Muriel Delbecq‘s plans to hide a key outside her home

violated Evidence Code section 1200, as well as his rights under the Fifth, Sixth,

Seventh, and Fourteenth Amendments to the federal Constitution, and article I,

sections 7, 15, and 17 of the state Constitution. We disagree.

During direct examination, the prosecutor asked Ventura whether Delbecq

kept a key outside of the apartment. Ventura replied, ―Yes she did. She had been

locked out once, and she had to call me at work and ask me if I had my spare key.

And of course I did. And she went to the neighbor then who drove her up to go

get the spare key, and she said then that she was never going to let that happen

again because she hated bothering everybody. So she said she was going to hide a

key. And even though I never asked her —‖ The trial court overruled the defense

counsel‘s relevance objection. Ventura continued, ―Even though I hadn‘t asked

her the exact location, . . . there was a little planter area right at the front entrance

there on the right-hand corner where the bathroom is . . . . [a]nd she said that she

73

was just going to hide it under a rock there.‖ The prosecutor asked, ―Did you ever

find that key or see a key . . . afterwards?‖ Ventura replied, ―No.‖

During cross-examination, defense counsel asked Ventura when her mother

had locked herself out of the condominium, and Ventura replied December 1992.

Counsel then asked, ―Am I right that she commented on this to you, but . . . she

never showed you where she was going to keep the key?‖ Ventura replied,

―Right. She had said she was going to leave it under a rock.‖ Defense counsel

asked, ―And did you see the key that she obtained?‖ Ventura replied, ―No.‖

Defense counsel asked, ―All right. So if I have this right, you never saw the key,

and you never saw the rock where she was going to keep it; is that correct?‖

Ventura replied, ―No. We had talked about it, and I told her to be careful about

where she kept it, that it wasn‘t obvious, but — ‖ Defense counsel asked,

―Ma‘am, so if I have this right, the only thing you know about this as far as the

obtaining a key or putting it under a rock, that is nothing you ever saw yourself; it

is just something she stated to you; is that correct?‖ Ventura replied, ―. . . That is

correct.‖ Defense counsel then moved to strike on grounds of hearsay and lack of

personal knowledge. The trial court overruled the objection because counsel ―did

not object to the question or to the answer when it was given.‖ Defense counsel

continued to question Ventura about the key, establishing that she had never seen

Delbecq take a key out from under a rock and use it, and that she had no personal

knowledge whether Delbecq ever hid a key. Defendant subsequently filed, and the

trial court denied, a motion to strike Ventura‘s testimony regarding the key.

Even assuming the court erred in failing to strike Ventura‘s testimony that

her mother kept a key outside of the apartment, there was no prejudice under any

standard. Ventura‘s testimony was of limited probative value because it was

abundantly clear she had no personal knowledge whether there was a key outside

her mother‘s condominium. Moreover, defendant was connected to Delbecq‘s

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murder by the far more compelling evidence of his bloody palm prints and

footprint in her bedroom. In addition, the possibility that Delbecq had hidden a

key outside — as had Deeble — was only one minor of many more significant

similarities between the Delbecq and Deeble murders.

7) Challenge to impeachment evidence

Defendant contends the trial erred in allowing his testimony to be impeached

by his prior convictions in violation of Evidence Code section 352, and his rights

under Fifth, Sixth, Eight and Fourteenth Amendments of the federal Constitution.

Not so.

During cross-examination, the prosecutor asked defendant if on March 10,

1994 he had been convicted of the murder of Muriel Delbecq in Hawaii. Defense

counsel objected, and moved at sidebar to exclude reference to defendant‘s prior

convictions. In addition to the murder conviction, the prosecutor asserted, and

defendant did not dispute, that defendant had suffered March 1994 convictions for

kidnapping, sexual assault, robbery, and burglary, 1988 convictions for receiving

stolen property and vehicle theft, a 1987 conviction for weapon possession, and an

August 1984 vehicle burglary conviction. The prosecutor also sought to ask

defendant about the circumstances surrounding prior misdemeanors involving

moral turpitude.

The trial court ruled that evidence of defendant‘s 1994 convictions for

murder and burglary and his 1984 burglary conviction could be admitted. It stated

that nothing more than the fact of those convictions could be introduced, and

excluded evidence of defendant‘s other convictions. When cross-examination

resumed, the prosecutor asked defendant if on March 10, 1994 he had been

convicted in Hawaii of murder and felony burglary, and in August 1984 he had

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been convicted in California of the felony of second degree burglary. Defendant

responded affirmatively.

― ‗[T]he admissibility of any past misconduct for impeachment is limited at

the outset by the relevance requirement of moral turpitude.‘ ‖ (People v. Clark

(2011) 52 Cal.4th 856, 931.) Beyond this, the ― ‗trial courts have broad discretion

to admit or exclude prior convictions for impeachment purposes.‘ ‖ (People v.

Hinton (2006) 37 Cal.4th 839, 887 (Hinton).) ―When determining whether to

admit a prior conviction for impeachment purposes, the court should consider,

among other factors, whether it reflects on the witness‘s honesty or veracity,

whether it is near or remote in time, whether it is for the same or similar conduct

as the charged offense, and what effect its admission would have on the

defendant‘s decision to testify.‖ (Clark, at p. 931.) The impeaching offense may

postdate the charged offense. (Hinton, at p. 887.)

Here, the trial court did not abuse its discretion. Both murder and burglary

are crimes involving moral turpitude. (Hinton, supra, 37 Cal.4th at p. 888; People

v. Collins (1986) 42 Cal.3d 378, 395.) The 1994 murder and burglary convictions

were not remote in time to defendant‘s 1996 trial. Nor was defendant‘s 1984

second degree burglary conviction remote, because as the trial court observed,

defendant ―has continuously been in and out of trouble‖ based on the convictions

in 1984, 1987, 1988, and 1994. Defendant had already testified at the point

counsel moved to exclude evidence of the prior convictions, so the trial court‘s

ruling had no bearing on that decision.

―Although the similarity between the prior convictions and the charged

offenses is a factor for the court to consider when balancing probative value

against prejudice, it is not dispositive.‖ (People v. Clark, supra, 52 Cal.4th at

p. 932.) Here, defendant only testified that he had suffered 1994 Hawaii

convictions for murder and burglary, not that he had been convicted of murdering

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and burglarizing Delbecq. Thus, contrary to defendant‘s contention, the

convictions did not ―conclusively establish[] his guilt of those crimes.‖ Even if

the jury assumed that the 1994 convictions involved Delbecq‘s 1993 murder, it

had already properly heard evidence regarding this murder under Evidence Code

section 1101, subdivision (b), and the evidence that defendant committed the

Hawaii murder was strong. Moreover, as noted above (see ante, at p. 64), the

circumstance that defendant had been convicted of Delbecq‘s murder would serve

to decrease the prejudice of the Hawaii evidence because ―the jury was not

tempted to convict defendant of the charged offenses, regardless of his guilt, in

order to assure that he would be punished for‖ any subsequent murder. (Balcom,

supra, 7 Cal.4th at p. 427.)

We further reject defendant‘s contention that evidence he ―was guilty of the

Hawaii crimes was the de facto equivalent of a directed verdict on the present

charges, relieving the prosecution of its burden of proof and rendering the trial so

fundamentally unfair as to deny [defendant] due process of law.‖ As noted,

evidence of defendant‘s guilt of Delbecq‘s murder — properly introduced as

substantive evidence that he also killed Deeble (see ante, at pt. II.B.3.) — was

strong. To the extent the jury inferred that his 1994 murder and burglary

convictions were for the Delbecq killing, that circumstance operated to decrease,

not increase, the prejudice of their introduction for impeachment. Moreover, even

if the jury found by a preponderance of the evidence that defendant killed

Delbecq, it was still required to determine if the similarities between the Delbecq

and Deeble murders were sufficient to conclude defendant committed and

possessed the requisite intent for the Deeble murder.

Defendant similarly contends that although the jury was instructed that it

could only use the fact of defendant‘s conviction to assess his credibility, ―it was

undoubtedly used by the jury to . . . satisfy the prosecution‘s burden to prove

77

[defendant‘s] commission of the Delbecq murder by a preponderance of the

evidence before it could consider that evidence to establish identity or intent,‖19

and ―made it even more likely that the jury would ignore the limiting ‗similar acts‘

instruction and conclude that since he was convicted of one brutal murder, he must

also be guilty of the charged offense.‖ We presume the jury followed the trial

court‘s instructions. (Dement, supra, 53 Cal.4th at p. 36.) Moreover, once again,

the evidence of defendant‘s guilt of the Hawaii murder was strong.

Defendant contends, relying on People v. Rollo (1977) 20 Cal.3d 109, 118,

that ― ‗ ―[a]cts of violence . . . generally have little or no direct bearing on honesty

and veracity.‖ ‘ ‖ However, in 1982, ―section 28, subdivision (f) of article I of the

California Constitution . . . was added by Proposition 8, and . . . provides in

pertinent part that ‗[a]ny prior felony conviction . . . shall subsequently be used

without limitation for purposes of impeachment . . . in any criminal proceeding.‘ ‖

(Hinton, supra, 37 Cal.4th at pp. 887-888.) We subsequently held ― ‗that—always

subject to the trial court‘s discretion under [Evidence Code] section 352—

[Proposition 8] authorizes the use of any felony conviction which necessarily

involves moral turpitude, even if the immoral trait is one other than dishonesty.‘ ‖

(Id., at p. 888, quoting People v. Castro (1985) 38 Cal.3d 301, 306.)

19 The jury was instructed: ―The fact that a witness has been convicted of a

felony, if such be a fact, may be considered by you only for the purpose of

determining the believability of that witness. The fact of such a conviction does

not necessarily destroy or impair a witness‘s believability. It is one of the

circumstances that you may take into consideration in weighing the testimony of

such a witness.‖

The jury was also instructed: ―Certain evidence was admitted for a limited

purpose. At the time this evidence was admitted you were admonished that it

could not be considered by you for any purpose other than the limited purpose for

which it was admitted. Do not consider such evidence for any purpose except the

limited purpose for which it was admitted.‖

78

Defendant also contends that the trial court ―failed to engage in the weighing

process required under Evidence Code section 352,‖ and in particular admitted the

murder conviction without consideration of all relevant factors, and ―failed to

consider the availability for impeachment of other felony convictions that were

dissimilar to the murder charge and were more probative on the issue of

[defendant‘s] credibility.‖ ― ‗[A] court need not expressly weigh prejudice against

probative value or even expressly state that it has done so, if the record as a whole

shows the court was aware of and performed its balancing function under

Evidence Code section 352.‘ ‖ (People v. Lewis (2009) 46 Cal.4th 1255, 1285.)

Here, the trial court expressly referred to the ―weighing process,‖ was clearly

aware it had discretion to preclude admission of defendant‘s prior convictions, and

did preclude admission of several of them. It also precluded evidence regarding

defendant‘s misdemeanor convictions, observing that such evidence did not

―prove that much and tends to take too much time and could end up confusing the

jury.‖

As to the prior murder conviction, the court stated it was a ―crime of . . . the

worst type of moral turpitude,‖ and ―[h]ighly relevant on credibility.‖ Although

the Hawaii murder conviction was ―an identical crime,‖ the court stated that factor

was offset by the admission of the evidence under Evidence Code section 1101,

subdivision (b), and the strength of the evidence implicating defendant in the

Hawaii murder. The trial court was not required to further articulate all of its

considerations, such as the availability for impeachment of other prior felony

convictions that were dissimilar to the murder charge, before admitting evidence

of the murder conviction.

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8. Assertedly erroneous exclusion of exculpatory evidence

Defendant contends the trial court erred in excluding certain exculpatory

evidence in violation of his rights under the Fifth, Sixth, Eighth, and Fourteenth

Amendments of the federal Constitution, and article I, sections 7 and 15 of the

state Constitution. We conclude there was no prejudicial error.

a. Dr. Wolf’s testimony

Defendant first contends that the trial court erred in precluding defense expert

witness Dr. Wolf from answering a line of questions regarding whether Deeble‘s

injuries were consistent with consensual sexual intercourse after it allowed the

prosecution‘s expert, Dr. Fukumoto, to opine that the mousse can found on

Deeble‘s bed was consistent with an object that could have caused these injuries.

Even assuming the trial court erred in precluding this line of testimony, there was

no prejudice under any standard. Dr. Wolf described the injuries to Deeble‘s

vagina and rectum as ―[e]xtremely minor,‖ and opined they could have been

caused by a finger or a penis. He agreed with defense counsel that ―taking all the

references to the vaginal mucosa, labia and fourchette together, all of these can be

aptly characterized by a pathologist as being trivial and merely consistent with

sexual intercourse.‖ He also testified that Deeble‘s vaginal mucosa was thin

because she was menopausal, and that when the mucosa is thin, an

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