# The People v. Edwards

> California Supreme Court · August 22, 2013 · 57 Cal. 4th 658

URL: https://www.frixlaw.com/law-library/cases/1038645

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. ROBERT MARK EDWARDS, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** August 22, 2013
- **Citations:** 57 Cal. 4th 658; 161 Cal. Rptr. 3d 191; 306 P.3d 1049; 2013 Cal. LEXIS 6897; 2013 WL 4464611
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Baxter, Corrigan
- **Cited by:** 498 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1038645

## Opinion text

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

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1038645. Public record. Not legal advice.