holding that a prosecutor’s statement that the defendant had a presumption of innocence “when we started this case,” but “[n]ow that the evidence is here, now that you heard it all, it is gone,” was not misconduct and was a permissible argument
How later courts described this case
- holding that a prosecutor’s statement that the defendant had a presumption of innocence “when we started this case,” but “[n]ow that the evidence is here, now that you heard it all, it is gone,” was not misconduct and was a permissible argument
Written by the judges who cited it.
The opinion
IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
KERRY LYN DALTON,
Defendant and Appellant.
S046848
San Diego County Superior Court
135002
May 16, 2019
Justice Liu authored the opinion of the court, in which Chief
Justice Cantil-Sakauye and Justices Chin, Corrigan, Cuéllar,
Kruger, and Groban concurred.
PEOPLE v. DALTON
S046848
Opinion of the Court by Liu, J.
Defendant Kerry Lyn Dalton was convicted of conspiracy
to commit murder and the first degree murder of Irene Melanie
May. (Pen. Code former § 182, subd. (a)(1), § 187, subd. (a),
former § 189 (all further undesignated statutory references are
to this code).) The jury also found true lying in wait and torture-
murder special-circumstance allegations and an allegation that
Dalton personally used a deadly weapon in committing the
murder. (Former §§ 190.2, subd. (a)(15), (a)(18), 12022,
subd. (b).) In a separate proceeding, Dalton admitted a prior
serious felony conviction for burglary and a prior prison term.
(Former §§ 459, 667, subd. (a), 667.5, subd. (b), 1192.7,
subd. (c)(18).) At the penalty phase, 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 below, we vacate as unauthorized the
death sentence imposed (and stayed) on the conspiracy to
commit murder count (Count I). We further vacate the lying in
wait special-circumstance true finding. We remand and direct
the trial court to state on an amended abstract of judgment a
sentence of imprisonment for 25 years to life, stayed pursuant
to section 654, on the conspiracy count (Count I), and to strike
the lying in wait special-circumstance true finding. We affirm
the judgment, as modified, in all other respects.
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PEOPLE v. DALTON
Opinion of the Court by Liu, J.
I. FACTS
A. Guilt Phase
On June 26, 1988, Dalton, her boyfriend Mark “TK”
Tompkins, and Sheryl Ann “John Boy” Baker murdered 23-year-
old Irene Melanie May in Joanne Fedor’s trailer located in the
Live Oak Springs Trailer Park in Boulevard, California. Her
body was never found.
Dalton and her coperpetrators were jointly charged, but
Dalton’s trial was severed. Tompkins pled guilty to first degree
murder. Baker pled guilty to second degree murder in exchange
for testifying at the 1995 trial against Dalton. The prosecutor
also agreed to other terms, including notifying the Department
of Corrections or Board of Prison Terms of Baker’s cooperation
and her level of culpability in Dalton’s case, requesting she serve
her prison time out of state, and transporting her to and from
court separately from Dalton. Baker had not yet been sentenced
at the time of her testimony.
Because Dalton challenges the sufficiency of the evidence
for every charged count and special circumstance allegation, we
review in detail the evidence in support of the prosecution’s case.
1. Prosecution evidence
a. Events before the murder
1) Events before arriving at Fedor’s trailer
Sheryl Baker, who had been previously convicted of grand
theft auto, and in 1988 used crystal methamphetamine several
times a day, testified that in June 1988, she was living in
Lakeside and had known Irene Melanie May (May) for about two
months.
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PEOPLE v. DALTON
Opinion of the Court by Liu, J.
May was married to Bobby May and had three children.
On Saturday, June 25, 1988, May had been evicted from her
Lakeside apartment, and she and Baker were shooting
methamphetamine and moving May’s belongings into storage.
Bobby May was incarcerated at the time, and a man named
George, whom Baker met for the first time that day, and several
other individuals helped them. Dalton, whom Baker had known
since 1986, and who other testimony established had previously
lived with May and Bobby May, also arrived with two women,
Patricia Collins and Pamela McGee. Dalton angrily told Baker
much of the furniture in the apartment was hers and she wanted
it, and she was looking for certain pieces of jewelry. Baker told
Dalton she would look for her property, and Dalton left. Collins
testified she bought a dresser from May. Collins had not met
May before and described her as a “[s]kinny little speed freak.”
At about 5:00 p.m., Baker, May, and George went to a
convenience store to meet May’s connection to obtain drugs.
While waiting at the store, Baker called Dalton and told her she
had not found her jewelry. Dalton, who lived nearby, arrived at
the store a few minutes later with Mark Tompkins in a small
yellow pickup truck.
Baker, Dalton, and Tompkins decided to locate and steal
a Trans Am that belonged to an individual they knew, and May
and George accompanied Baker because they were “partying
with” her. May expressed concern about going because she was
afraid of Dalton. About 6:00 p.m., the group left the store in two
trucks; Dalton and Tompkins were in their truck, and Baker,
George, and May followed in George’s truck. No plan had been
discussed other than to steal the car. They drove for hours, and
eventually happened to come upon Dalton’s acquaintance
Joanne Fedor.
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PEOPLE v. DALTON
Opinion of the Court by Liu, J.
Fedor, who was accompanied by her three- and four-year-
old children, testified she had pulled her truck over to the side
of the road because of an electrical fire. She encountered Dalton
and her group about 11:30 p.m. Dalton offered to drive Fedor’s
children to Fedor’s home in case the fire resumed. Fedor agreed
and left, followed by the two trucks. According to Baker, the
group following Fedor then lost their way, and the truck
carrying Dalton and Tompkins broke down. Dalton, Tompkins,
and Fedor’s children joined Baker, May, and George in George’s
truck.
2) Events at Fedor’s trailer the night and
morning of June 26, 1988
Fedor testified that about 2:30 a.m. on the morning of
June 26, 1988, Dalton and her companions arrived at Fedor’s
trailer. Baker recalled Fedor was “freaking out” and thought
her children had been kidnapped.
Baker testified that the group and Fedor stayed up all
night and some individuals used drugs. Baker used about a
gram of methamphetamine “throughout the time of this.” By
the following morning Baker had been up at least 24 hours.
At some point during the night or the following morning,
Dalton and Baker searched through papers in George’s truck
because they did not know him, and Dalton wanted to be sure
he was not connected to law enforcement. Also at some point
Dalton emptied May’s purse and “found some of her jewelry.”
Dalton was upset, and “started making [May] her slave and
making her clean [Fedor’s] trailer,” performing chores such as
washing dishes and cleaning the kitchen. May told Baker she
was “very scared.”
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PEOPLE v. DALTON
Opinion of the Court by Liu, J.
Fedor testified she asked her guests several times during
the night “to please be quiet, that my neighbor next door was
nosey, I didn’t need no problems. At one point . . . the neighbor
sent somebody over to complain.” During the night, Fedor heard
Dalton and May arguing, and someone said May was a “snitch,
ratting her old man off.” Fedor also heard Dalton say that while
May thought Dalton was in jail, May had held a yard sale that
included Dalton’s belongings. During this discussion, Dalton
sounded angry, and May sounded “scared to death.” At some
other point that night, Fedor heard Dalton, Baker, and May
using drugs in the bathroom. Dalton and Baker became angry
with May when they learned they had all shared a needle and
May had hepatitis.
Later that morning, Fedor, like Baker, observed Dalton
treat May “like a slave,” “[c]ommanding her” to wash dishes,
clean the house, and make breakfast for and dress Fedor’s
children. At one point when Fedor was drying dishes with May,
May “had a knife” and “wanted to use it on [Dalton], because she
was scared.” May asked Fedor “how she could get out.” Fedor
replied, “if you are afraid, go outside because there [are] mobile
homes on both sides, scream,” and gave May directions to the
freeway. Fedor also, at May’s request, left a message for Nina
Tucker, the child protective services worker assigned to May’s
family, that May would be unable to attend a scheduled meeting
with Tucker.
Fedor did not see May alone in the trailer. Dalton
appeared to tell the others what to do, and Fedor did not observe
Baker or Tompkins refusing to do anything Dalton told them to
do.
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PEOPLE v. DALTON
Opinion of the Court by Liu, J.
Baker testified that sometime that morning, she,
Tompkins, and George left the trailer for about an hour to repair
and return with the truck that had broken down.
3) Emergency medical technicians
Lona Agnew testified that in June 1988 she was a
volunteer emergency medical technician for the Boulevard Fire
and Rescue Department and lived in the same trailer park as,
and knew of, Joanne Fedor. Early on the morning of June 26,
1988, she responded to a page regarding a person having
difficulty breathing and a possible asthma attack at Fedor’s
trailer. A woman who was not Fedor and a short white man
were outside, and the man took Agnew into the trailer.
The trailer was very dirty, and there were clothes and
other items “all over.” A tall man with long hair appeared and
asked Agnew what she was doing there. Agnew said she was
from the fire department and they had received a medical call.
The man said, “No, there is no problem here.” Agnew showed
the man the report of an asthma attack. The man again said,
“No, there is no problem here.” He seemed angry Agnew was
there, and instructed the other man to “[g]et her out of here.”
Once outside, and as Agnew began walking back to her
trailer, Fedor leaned out a window and asked if Agnew had a
bronchial inhaler, explaining her son had asthma and was
having difficulty breathing. Agnew said no, and that there was
nothing she could do unless Fedor let her in to see the patient.
Fedor would not let her in, and said, “No, I just need one of those
inhal[ers].”
A short time later, Agnew and her supervisor, Lou
Faulkner, returned to Fedor’s trailer in a marked fire and rescue
truck. As Faulkner exited the truck, he was met by three
6
PEOPLE v. DALTON
Opinion of the Court by Liu, J.
persons, the man and woman who had been outside earlier, and
the tall man who had been inside the trailer. Agnew did not see
Fedor. The tall man asked what was going on, and Faulkner
said they had “received a report of medical aid.” The tall man
said, “No, there is no problem here.” Agnew and Faulkner left.
Fedor testified that at some point on the morning of
June 26, May was having difficulty breathing. Baker and
Tompkins went to a nearby convenience store to get May a
product that would help her breathe. Afterward, Agnew arrived
at Fedor’s trailer. Dalton and Tompkins were upset that “911”
had been called, and blamed Fedor. Tompkins said: “[W]hen
they come here everybody stays inside. I’ll go out, tell them it
was me that called, that I’m okay.” When Agnew arrived,
Tompkins went outside. Tompkins told Agnew that the medical
report concerned him, but he was all right and she could go.
Fedor then asked Agnew for an inhaler.
4) Trip to La Cima Honor Camp and Lakeside
Fedor testified that at about 11:30 a.m., just after the
emergency medical technicians left, Baker, Tompkins, and
George drove Fedor and her two children to visit Fedor’s
boyfriend, who was incarcerated at La Cima Honor Camp,
located about 45 minutes away. Baker, in her testimony and
statement to police, said that only Baker and Tompkins — not
George — gave Fedor and her two children a ride to the camp.
Fedor testified that Dalton and May stayed in the trailer.
Before Fedor left, she had tried to reenter the trailer, but Dalton
and May did not let her in. Once Fedor arrived at the camp, the
others left. Fedor understood they would pick her up when
visitation ended at 3:30 p.m. They did not do so, and so after
waiting until about 4:00 p.m., Fedor and her young children
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PEOPLE v. DALTON
Opinion of the Court by Liu, J.
hitchhiked home. Fedor did not tell sheriffs at the camp there
was a problem at her trailer because “[t]here was no problem at
my trailer as far as I was concerned.”
Baker testified that after dropping Fedor off at the camp,
she and Tompkins went to a home in Lakeside. They left
immediately after learning that the police had been there the
night before because Fedor had been looking for her children.
Baker and Tompkins then went to the home of Baker’s dealer so
Baker could obtain drugs. Tompkins left the home for about
10 minutes to use a telephone. When he returned, he was “in a
panic.” He told Baker to get in the truck, “we have to go,
something happened. We have to get back up there.” Baker was
disinclined to go because “[i]t was very boring” at the trailer, but
Tompkins was insistent. They drove “[d]irectly back to” Fedor’s
trailer, which was a “long drive.” On the way, Tompkins said
“things happen for a reason,” and “things just happen and to go
with the flow.”
Baker agreed with defense counsel that from the time she
left the Lakeside area until they reached Fedor’s trailer “there
was no discussion between [her] and George and [Tompkins]
and Kerry Dalton about doing anything to” May. She also
agreed she had “no discussions” or “plan to do anything” to May
“at any time” from the time that Baker left Lakeside on
Saturday, June 25, 1988, all through the time when she left to
go to the honor camp with Fedor on Sunday, June 26, 1988.
b. Events during the murder
Baker and Tompkins arrived at the trailer at about
3:30 p.m. George was outside and Dalton was inside the trailer.
Baker and Tompkins had been gone from the trailer at least
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PEOPLE v. DALTON
Opinion of the Court by Liu, J.
three hours. Dalton asked Tompkins why he had brought Baker
with him.
A person completely covered by a sheet was seated in a
chair in the kitchen. Rope encircled the sheet and tied the
person to the chair. Dalton was upset, and told Baker that
Baker did not “know what happened when [she] was gone, and
something had happened, and that they were going to kill” May.
Dalton also said that “[y]ou don’t know what we went through”
and that May “tried to get away or something.” Dalton led this
discussion for 10 to 15 minutes, and Tompkins “was going along
with” Dalton. Baker testified she did not know and was never
told what had happened at the trailer while she and Tompkins
were gone.
Tompkins joined George outside. Dalton took Baker to the
“back bathroom where there [were] . . . four or five syringes
filled with what she told [Baker] was” battery acid. The content
of the syringes resembled methamphetamine or water. Dalton
said, “[W]e were going to shoot her up with battery acid; it would
be really quick and easy, that it would be over with.” Dalton
also said the battery acid would “kill her instantly.” Dalton told
Baker that Baker “had to be a part of it” because Tompkins
wanted to kill Baker, and “in order for him not to” kill her, “if
[she] helped, that [she] would be guilty, too” and would not “tell
on them.”
Dalton and Baker returned to the kitchen, and Dalton told
May she was going to give her a sedative to calm her. Dalton
asked Baker to try to inject May with a hypodermic needle, but
apparently because of May’s drug use, Baker could not find a
vein. Dalton was angry, took the syringe, and depressed it once
9
PEOPLE v. DALTON
Opinion of the Court by Liu, J.
into May’s leg. There was no blood in the syringe, which
indicated to Baker that Dalton had not penetrated a vein.
Dalton told Baker that May was not dead and was
suffering and that they “had to do something about it.” Dalton
handed Baker a cast iron frying pan from the stove and told
Baker to hit May with the pan. Baker hit May once in the head
with the pan. May did not bleed, but the pan broke. Dalton said
they were “going to have to get” Tompkins because “[t]his isn’t
working.” Baker told police Dalton “couldn’t do it and she didn’t
wanna tell” Tompkins. When Tompkins came back inside, he
“was mad, [and] called us stupid bitches that couldn’t handle
nothing.” Tompkins and Dalton decided to stab May, and
Tompkins stabbed May twice. Tompkins may have also hit May
with a breaker bar. Baker did not see an extension cord with
“bare” ends, nor was such an extension cord used against the
person in the chair.
There was no blood on the sheet, but there was a small
amount on the floor that Dalton cleaned up. Tompkins and
George wrapped May in a carpet, placed her body in the back of
George’s truck, and left to dispose of May’s body. About half an
hour passed between the time Baker and Tompkins returned to
the trailer and when Tompkins stabbed May.
On cross-examination, Baker testified she never saw the
face of the person under the sheet, and the person made no
sound or movement. She could not tell if the person was injured
in any way. She did not know if the person was alive when she
and Tompkins returned to the trailer. On redirect, she agreed
that in March 1992 she had told officers May had said, “I don’t
wanna die,” and, “[p]lease don’t kill me, I’m sorry.” On recross-
examination, Baker agreed with defense counsel that in July
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PEOPLE v. DALTON
Opinion of the Court by Liu, J.
1994, during her second interview with law enforcement, she
had told officers she had given “the wrong answers” in her first
interview in March 1992, not because she had lied but because
she did not want to remember what happened. Baker told
officers in July 1994 that she did not know whether May was
alive when Baker returned to the trailer, and testified at trial
that this was the truth.
Donald McNeely testified that for three months, from
June to August of 1992, he had shared a cell at the San Diego
County jail with Tompkins. During this time, Tompkins told
McNeely he was “in on a murder charge” and called it a “torture
slaying.” Tompkins said the victim was “Melanie May,” and the
murder occurred in June of 1988 in a “house trailer” in the “Live
Oak Springs, Boulevard area.” Tompkins said that he was
“really into violence,” that he “tortured the hell out of her,” and
that “pain was the name of the game.” In McNeely’s view,
Tompkins “seemed to enjoy it.” Tompkins said the “original plan
was to give Miss May a hotshot” and that Tompkins did so.
Tompkins also mentioned a screwdriver, knife, and a
heavy kitchen skillet, saying “they work wonders on the knees.”
Tompkins “got tired of it” and “just wanted it to end,” so he
stabbed May with a knife.
c. Events after the murder
Tompkins told McNeely he put May’s body into a vehicle
and took it to a nearby Indian reservation. He then
dismembered the body so it would be more difficult to locate.
Baker testified that Dalton said Tompkins and George
were going to burn the body. Dalton and Baker took showers
and cleaned the trailer. Baker collected a breaker bar,
screwdriver, and the frying pan; Baker and the others took these
11
PEOPLE v. DALTON
Opinion of the Court by Liu, J.
items with them when they left Fodor’s trailer. Tompkins had
the knife. Baker did not see a bloody pillow, pillow case, or bar
of soap, or notice any blood outside the kitchen.
When Fedor returned, Baker was in the yard picking up
items. Dalton told Fedor that she and May “got in a fight,” and
May had left. Dalton also told Fedor they were going to the
store, and Dalton, Baker, Tompkins, and George left in George’s
truck.
After leaving Fedor’s trailer, the group stopped at an
Alpine gas station to get “rid of the stuff that we had with us”;
Baker threw away the screwdriver, frying pan, and breaker bar.
The group then went to El Cajon where Dalton sold a leather
jacket.
Patricia Collins testified she saw Dalton “a couple of days”
after the two had attended the yard sale. Dalton tried to sell her
a black leather jacket. Dalton seemed scared and nervous
because “she kept saying that she needed money, she needed a
place to stay.”
Baker testified that she, Dalton, George, and Tompkins
checked into a hotel in El Cajon. Dalton and Tompkins argued.
Tompkins wanted to blow up Fedor’s trailer, but Dalton said “he
couldn’t do that because children were there.” George drove
Baker to her parents’ home for the night. As she was getting
out of George’s truck she saw in the truck Dalton’s knife that
Tompkins used to stab May. It was an “old kind of buck knife”
with a fixed brown handle.
Sherri Fisher testified that about three days after she saw
May leave Fisher’s home with Baker, she saw Baker, who was
hysterical and crying, and said she had to leave. Baker
described a murder, saying the victim had died slowly and
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PEOPLE v. DALTON
Opinion of the Court by Liu, J.
“wouldn’t die.” Baker left with Fisher’s mother. A couple of
hours after they left, Dalton came to Fisher’s home and asked
for May’s belongings; Fisher gave her a purse and some papers.
Fisher’s mother, Marsha Watson, testified that on
June 30, 1988, she traveled with Baker to Watson’s home in
Yucca Valley. Baker had a purse with papers including May’s
birth certificate and birth certificates for “[s]ome boys.” Baker
left the papers at Watson’s house when she departed. Watson
described Baker as “spun,” or someone who had “taken too
much” methamphetamine. At this time, Watson was a heroin
addict who also used crystal methamphetamine.
Dalton made several statements to Baker at various times
after the murder. Dalton told Baker that Tompkins and George
had burned May’s body and it “would never be found.” Dalton
observed, “There was no body, there was no case,” and said that
“if we kill [Tompkins], then if this case ever came up, that we
could blame him.” Dalton said Baker “should never talk about
it,” but Baker did speak to several individuals because she was
“scared that they were going to kill” her.
On October 31, 1991, Fedor identified Dalton, Tompkins,
and Baker from photographic lineups as individuals who had
been at her trailer. In 1992, Fedor identified Tompkins in a live
lineup.
In 1988, Fedor was using a quarter gram of
methamphetamine two or three times a day by injecting it with
a syringe, snorting it, or eating it. On June 25, 1988, Fedor used
methamphetamine “[p]robably at least two or three” times, and
she used this drug at about 8:30 a.m. on June 26, 1988.
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PEOPLE v. DALTON
Opinion of the Court by Liu, J.
d. Physical evidence
1) Fedor’s testimony
Fedor testified that when she returned to the trailer
between 5:00 and 5:30 p.m. on the afternoon of June 26, 1988, it
was in disarray. A recliner, bedding, and clothes were missing,
and her bed had been moved. The kitchen trash can had been
dumped on the children’s bedroom floor. Baker was washing the
kitchen floor with shampoo.
Dalton was in Fedor’s bedroom and asked to borrow
clothes so she could take a shower. Fedor noticed clothes,
sheets, towels, and blankets she had thrown on her bed were
missing. She asked Dalton where these items were, and Dalton
explained she had accidentally cut herself, “got blood all over,”
and the items were taken to be washed. Dalton also said
Tompkins and George had taken May back to Lakeside.
After Dalton showered, the soap bar was bloody. The
trash can outside of the trailer contained a “dripping wet” bloody
pillow. Fedor asked Baker about the pillow, and Baker and
Dalton had a discussion in which Dalton became angry.
Tompkins and George arrived at the trailer; Tompkins
had white dust on him. Dalton, Baker, Tompkins, and George
left in George’s truck between 8:00 and 9:00 p.m., when it was
starting to get dark, leaving behind their second truck.
Immediately after Dalton and her companions left, Fedor
called the Sheriff’s Department. Fedor then found a screwdriver
with what appeared to be blood, hair, and scalp material on it
and a bloody pocketknife. A standup heater was “full of blood
spatters.” A substance like blood had splattered on her kitchen
paneling. Fedor placed the screwdriver, the trash can
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PEOPLE v. DALTON
Opinion of the Court by Liu, J.
containing the bloody pillow, and the bloody knife and soap in
her truck.
San Diego County Deputy Sheriff David Wilson responded
at about 9:00 p.m. Fedor tried to show him the screwdriver and
bloody knife that she had placed in her truck, but he would not
let her go outside because it was too dark, and said he would get
them in the morning. She did not mention the bloody soap, did
not give him the heater, and could not recall whether she
mentioned the bloody pillow or the truck her guests had left
behind. While they spoke, Dalton and Tompkins called and
Tompkins heard the officer’s walkie-talkie. Tompkins told
Fedor “not to bother the blue truck” and “not to talk to anybody
or tell anybody.” After this call, Deputy Wilson asked Fedor if
she wanted to file burglary charges, and she said no. Deputy
Wilson said he would return the following day but “never came
back.” A day or two later her guests’ second truck was gone.
After Deputy Wilson left, Fedor found her bedroom
chandelier was gone. One end of the cord to the chandelier had
been cut, and the other end was still “plugged in,” apparently to
an outlet. On the cut end of the cord, part of the plastic
protective covering was melted, exposing the electrical wire.
Although the record is not entirely clear, Fedor also found at
least one extension cord in the shape of a figure eight. Another
extension cord was tied in the shape of two figure eights with a
different cord connecting the two figure eights. She did not
contact law enforcement to inform them of this discovery.
Fedor did not stay in her house for four to six weeks after
“things happened” because she was “in fear of [her] life.” In July
1988, Fedor gave the heater to Darlene Burns, her child
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PEOPLE v. DALTON
Opinion of the Court by Liu, J.
protective services worker, to help Fedor “find out what
happened at my house.”
At some point Mike Hissom, an acquaintance of Fedor’s,
as a joke took the screwdriver and knife from her truck and
placed them in a freezer. Fedor never saw them again. The
bloody pillow at some point disappeared, and the extension
cords and bloody soap were “lost in the shuffle.”
On cross-examination, Fedor testified that in September
1988, law enforcement took samples from her bedroom, kitchen,
family room, “pop-out” room, and living room. These included
samples from the carpet, carpet pad, and kitchen floor. In
November 1988, law enforcement officers returned to the trailer
and took samples from both inside and outside the trailer. In
early 1989, Fedor moved out of the trailer. (Further testimony
about the 1988 forensic searches was adduced in the defense
case. (See post, pt. I.A.2.a.))
2) Deputy Wilson’s testimony
Deputy Wilson testified that on June 26, 1988, at 8:55 p.m.
he received a telephone call to go to Fedor’s trailer in the Live
Oak Springs Trailer Park to investigate a burglary report.
There were approximately 30 trailers in the park, and the park
was situated in a retirement community “like a little village”
that also included homes, A-frame motel units, a store, a
restaurant, and a gas station.
Deputy Wilson arrived at Fedor’s trailer at 9:02 p.m.
Fedor appeared to be under the influence of methamphetamine.
She was “very excited,” did not “complete her sentences,” and
seemed “very paranoid.” When Deputy Wilson tried to ascertain
what Fedor was afraid of, she would speak rapidly, ramble, and
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PEOPLE v. DALTON
Opinion of the Court by Liu, J.
not answer his questions. Deputy Wilson testified, “[I]t was like
trying to talk to somebody who was mentally ill.”
The lighting inside the trailer was dim, so Wilson also
used his flashlight to examine the kitchen, living room, and
master bedroom. He saw a stack of dirty clothes in the doorway
to the bedroom and dirty clothes piled on the bathroom floor. On
a chair were car parts.
Deputy Wilson asked Fedor what had been taken from the
house, and she said a yellow trash can and a chair slipcover.
Fedor also said she had found a blood-soaked pillowcase on her
bed. Deputy Wilson did not observe such an item or any blood
on Fedor’s bed. Fedor then said “they put it in a box” and it was
under the trailer. Deputy Wilson looked under the trailer with
his flashlight from five different positions, but did not see a box
or pillowcase. Fedor suggested Deputy Wilson look in the trash
that was in her pickup truck. Deputy Wilson looked briefly in
the back of the truck, but did not see a bloody pillowcase or other
bloody item, and the bags of trash and boxes looked undisturbed.
Deputy Wilson did not see any blood in the kitchen, living
room, or master bedroom, nor did Fedor point out any blood in
the trailer or ask him to look at her heater, carpet, or walls. Nor
did Fedor tell him there was a screwdriver with blood and hair
on it in the back of her truck or give him a screwdriver, knife, or
bar of soap.
At one point Fedor received a telephone call. She asked
Deputy Wilson to turn off his portable radio because she did not
want “them to hear.” Fedor seemed afraid and was crying. She
refused to tell Deputy Wilson who “they” were because she was
concerned for either her safety or that of a friend who had been
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Opinion of the Court by Liu, J.
there earlier. Fedor refused to tell Deputy Wilson the name of
the friend.
Deputy Wilson did not see any evidence that a burglary
had occurred, and therefore did not write a report about the
incident until several months later, on September 15, 1988. On
that day, he happened to see Sheriff’s Department detectives
from the violent crimes team at the trailer park, and they
requested he write the report. Fedor did not call Deputy Wilson
after June 26, 1988.
3) 1991 forensic testing
Gary Dorsett, an evidence technician with the San Diego
Police Department Crime Laboratory, testified that on
August 12, 1991, at about 6:00 p.m., he and Annette Peer, a
DNA criminalist at the same laboratory, went to a trailer (that
had previously been Fedor’s trailer) in the Live Oak Springs
Trailer Park in Boulevard. The trailer was occupied. Dorsett
observed “very small” spots on the living room and master
bedroom walls, floors, and ceiling that tested positive for the
presumptive presence of blood. On August 24, 1991, at about
noon, Dorsett returned to the trailer with two law enforcement
officers and performed additional testing. He then marked,
photographed, and took samples for further testing of the areas
of the living room, master bedroom, and “pop-out” room that
tested positive for the presumptive presence of blood.
Gary Harmor, a forensic serologist at the Serological
Research Institute in Richmond, California, testified that in
April 1992 he tested six samples from Fedor’s trailer to
determine ABO blood type and species origin. He obtained
readings of type O on some samples and type A on other
samples. Both type A and type O were found on one sample, and
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Opinion of the Court by Liu, J.
Harmor was of the view that different donors had deposited
blood on the sample, although he could not tell if they had done
so at the same time. The sample might also have consisted of
only type A blood because type A blood contains type O blood.
Harmor was unable to determine the age of the samples or
whether the six samples were of human or animal origin.
The parties stipulated that May and Tompkins had type A
blood, and Dalton and Baker had type O blood. Harmor testified
that 50 percent of whites and blacks, 65 percent of Hispanics,
and 32 percent of Asians had type O blood. Thirty-six percent
of whites, 26 percent of blacks, 31 percent of Hispanics, and
38 percent of Asians had type A blood. Animals, including dogs,
rodents, squirrels, and mosquitos carrying blood, also have ABO
blood types.
Jennifer Mihalovich, a criminalist at Forensic Science
Associates in Richmond, California, testified that the size of
most of the samples she examined was about one millimeter or
the size of a pinhead. She was unable to obtain DNA results
from tested samples because the amount of DNA present was
insufficient. Mihalovich also examined a heater received from
Investigator Cooksey and did not detect the presence of blood on
the heater.
Investigator Cooksey, who was assigned to the case of
May’s disappearance in July 1991, testified he conducted two
unsuccessful searches for her. Both searches involved about
20 individuals and several dogs trained to locate human bodies.
One search lasted nearly a day and was conducted north of
Fedor’s trailer. Another search was performed on the Viejas
Indian reservation.
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Opinion of the Court by Liu, J.
4) Fedor “corroboration”
The prosecution presented numerous witnesses in an
effort to corroborate Fedor’s testimony.
San Diego County Deputy Sheriff Richard Baumann
testified that during the night of June 25 to June 26, 1988, he
received a call to investigate a kidnapping. He was told to look
for Dalton at a house in Lakeside. When he arrived at the house,
the dispatcher told him the reporting person had her children.
Alisha Fedor, Joanne Fedor’s daughter, testified she was
about 12 years old on June 26, 1988, and spent that weekend
away from home. When she returned on Monday, she noticed a
recliner was missing from the living room, and much of the
remaining furniture in the trailer had been moved outside. One
corner of the wall-to-wall living room carpet had been pulled up
and flipped over. White powder was on the living room windows.
The heater appeared to have blood on it. In her bedroom, trash
had been “dumped everywhere.” In her mother’s bedroom, the
cord to a hanging lamp had been cut, and the wire was exposed.
The cord appeared to have been burned, and the room “smelled.”
She did not recall seeing bedding on her mother’s bed. Small
dark brown or reddish-brown spots were on her mother’s
bedroom carpet, and similar spots were on the floor and wall of
the pop-out room. Outside, a large screwdriver with hair and
what appeared to be blood, was lying in a space underneath an
open truck bed.
Kathy Eckstein testified she knew Joanne Fedor and had
visited her trailer. One Sunday between 2:00 p.m. and
3:00 p.m., her son Fred and his friend Mike Howard were
dropped off at Fedor’s trailer. About a half hour later, Fred
called home and asked to be picked up. When Eckstein arrived
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Opinion of the Court by Liu, J.
at Fedor’s trailer about 5:00 p.m., it was dark outside. The
trailer was “a mess,” and clearly visible nickel and dime sized
red spots that appeared to be dried blood were “all over the
place,” including the carpeting, walls, and blankets on the bed
in Fedor’s bedroom. Fedor showed Eckstein a bar of soap with
teeth marks and a cut extension cord with two loops.
Eckstein did not call law enforcement to report seeing
blood in Fedor’s bedroom. Eckstein was using
methamphetamine occasionally during this time period, but not
on the weekend addressed in her testimony. Eckstein was not
sure of the year, month, or time of year these events had
occurred, but was certain they had occurred on a Sunday. She
said it started to get dark in June at about 5:00 p.m., and noted
that at the time of her testimony in February it got dark “later
around 6:30” p.m.
Fred Eckstein, Kathy Eckstein’s son, who in June 1988
was about 14 years old, testified he would stay at Fedor’s trailer
for several days at a time and often babysat for her. Fedor drove
Fred to her trailer “that evening, after it happened.” Fedor
pointed out spots on the living room carpet and walls that
appeared to be blood. Fedor also showed him a rusty
screwdriver. Fred saw extension cords on the living room floor
that were tied in a knot “like something was bound in them and
cut,” and a telephone cord. Fedor’s bedroom had a pungent odor
“like fish after being out all day.” About two days later, Fred
replaced Fedor’s living room carpet and padding and took the
old carpet outside.
Fred did not recall the date, month, or the day of the week
these events occurred. He did not think it was in June. School
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was still in session, although Fred was suspended at the time.
“It had to be summer” because the days were long.
At this time, Fred was using methamphetamine two or
three times a day. He obtained it from Fedor, and had been
using it for “quite awhile.” He had used methamphetamine on
the day he saw the unusual things in her trailer.
Jeanette Bench testified that one day in the summer of
1988, Bench was speaking with her friend Lacy Grote outside of
Grote’s home in Santee. Fedor, who was hysterical, walked up
the driveway carrying a screwdriver about 12 inches long with
what appeared to be skin, hair, and dried blood on the metal
part, but not the tip, of the screwdriver. Bench had suffered five
prior felony convictions, had used a number of aliases, and in
1988 was injecting methamphetamine “quite a bit.”
Patrick Woods testified that in June 1988 his girlfriend
was Lacy Grote. Woods recalled at some point — he did not
know the year or month — throwing out an “old, odd-ball
screwdriver” he found in his garage freezer. The screwdriver
was in a dirty paper bag, had grease or blood and lint or dog hair
on it, and was “chipped up” and looked old. At this time in his
life, Woods was regularly injecting methamphetamine.
Darlene Burns testified that in 1988 she was Joanne
Fedor’s San Diego County social worker. On August 17, 1988,
Burns visited Fedor’s trailer. Fedor was distraught and
nervous, and showed Burns areas of her carpet. Burns observed
dark spots that looked like blood on the living room carpet, and
advised Fedor to contact the sheriff. On September 7, 1988,
Burns again visited Fedor’s home. Fedor gave her a knife and a
heater that Burns took to the local sheriff’s station.
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e. Dalton’s admissions
Laurie Carlyle testified that in 1992 she had been
incarcerated with Dalton. On one occasion, Carlyle told Dalton
their mutual acquaintance Patricia Collins had said hello.
Dalton said she did not want to be associated with Collins
because Collins could get her in trouble by “run[ning] her
mouth.” Dalton asked Carlyle not to mention Dalton in any
letters to Collins because “it could cause [Dalton] problems.”
Dalton also spoke to Carlyle about Sheryl Baker, whom
Dalton called “John-Boy,” saying Baker also could cause Dalton
problems. Dalton said she, Baker, and Mark Tompkins were
involved in the murder of Melanie May in the “Live Oaks” area.
May had been killed by battery acid, and her body was at the
bottom of a well on an Indian reservation. Carlyle exchanged
correspondence with Baker in 1993, and at one point told Baker
that she, Carlyle, had never met Dalton. Carlyle did not speak
to either Baker or Patricia Collins about the case that she was
testifying about, but she did hear “a few things” in 1992 from
fellow inmate Sue Aguilar. Carlyle had suffered prior felony
convictions, including a California forgery conviction, a 1993
New Mexico theft conviction, and three or four 1993 New York
grand larceny convictions.
Patricia Collins testified that a “couple of months” after
Dalton tried to sell Collins the leather jacket, the two were in
jail together. Collins asked Dalton why she killed May, and
Dalton said because May “was a rat” who “deserved to die.”
Dalton gave Collins no details about the murder. On another
occasion, when Dalton visited Collins in jail, she told Collins
that if it appeared Collins was going to be “blamed for the
murder that [Dalton] would turn herself in.” In a third
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Opinion of the Court by Liu, J.
conversation — Collins did not recall when — Dalton was upset
Tompkins was taking credit for “killing somebody that he didn’t
kill.” Dalton also said that she “didn’t think that there would be
a case because there wasn’t a body” and that she wanted to leave
town because she did not want to be caught. On cross-
examination, Collins recalled Dalton also said that May must be
alive and that May was not dead but had left with her boyfriend.
On redirect, Collins said Dalton “flopped back and forth all of
the time” or apparently gave inconsistent explanations for May’s
disappearance.
To avoid being blamed for May’s murder, and because it
was a “sick crime,” Collins agreed to cooperate with law
enforcement. In November 1988 she engaged in taped telephone
conversations with Baker. Collins was released from jail
15 days early as a benefit for this cooperation.
Collins had used methamphetamine intravenously from
1988 to 1991. She had suffered a 1986 felony conviction for
conspiracy to manufacture methamphetamine.
Jeanette Bench testified she had been incarcerated with
Dalton at Las Colinas Women’s Detention Facility (Las Colinas).
In 1992, Bench called Dalton a “tramp” or other name, and
Dalton “came at” Bench but was stopped by a deputy. This
occurred after Bench told authorities about seeing Fedor with
the screwdriver. In December 1994, Dalton called Bench a
“lying bitch” and said either “I ought to have you killed” or “I
ought to kill you.” Bench was frightened, contacted law
enforcement, and was moved.
On another occasion, Dalton walked by and spat on
Bench’s window. Investigator Cooksey testified Bench said
during an interview that before Dalton spat, she told Bench,
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Opinion of the Court by Liu, J.
“You don’t know anything about this case and that she was dead.
She is a dead woman.”
At some point, Sherri Fisher was interviewed by
Investigator Cooksey about May’s disappearance. Immediately
after the interview, Fisher went to a park and saw Dalton, who
told Fisher “to say I don’t know . . . [May], [May] never lived
with me, never say the names [sic] again.” Fisher had sold and
occasionally intravenously used methamphetamine in the past,
but was not a methamphetamine user when she spoke to
Investigator Cooksey.
The prosecution introduced a handwritten note the parties
stipulated was written between July 9, 1988, and December 7,
1988, that said: “Look Bud — don’t worry, . . . they’ve got
Nothing and will NEVER have anything — dig? I get out
February 2, we’ve got to leave bud — work on that for me, . . .
try to find me a place to hide out till you get out and we’ll
split . . . I’m scared they’re not gonna cut me loose — so if they
do — I’ve Got to DISAP[P]EAR! [¶] Help ME — [¶] I Love You,
[¶] Lots.” Sheryl Baker and Patricia Collins identified the
handwriting as Dalton’s. David Oleksow, a forensic document
examiner, testified he had compared the note to Dalton’s known
handwriting exemplars and was of the view that Dalton was
“probably responsible” for the handwriting on the note.
Judy Brakewood, a drug dealer, testified that in 1988 she
was living in El Cajon and knew Dalton. Late one night in May
or June 1988, she brought methamphetamine to Steven Nottoli,
also known as “Streaker,” who was in a green van parked at a
7-Eleven store in Spring Valley. In the van with Nottoli was a
woman Brakewood did not recognize. Dalton was about 10 to
15 feet away from the van speaking on a pay telephone. While
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Opinion of the Court by Liu, J.
Dalton was away from the van and Brakewood was in the van
with Nottoli and the unidentified woman, Nottoli told
Brakewood “they had shot up this girl with battery acid” and
“burned her.” When Dalton returned to the van at the “tail end
of a conversation,” she said, “Yep, we really fucked that girl up.”
Brakewood described Dalton as “exuberant.”
f. Evidence May was dead
Although May’s body was never found, there were several
indications she was dead. Bobby May, May’s husband, testified
May had a daughter from a prior relationship and the couple
had two sons. At one point their children were placed in
protective custody. May and Bobby attended a parenting class
and made great efforts to be reunited with their children. Kandy
Koliwer, May’s attorney, testified May attended all of the court
hearings held before June 30, 1988. Nina Tucker testified that
in December 1987, she was the San Diego County Child
Protective Services worker assigned to the May family. At that
time, May and Bobby had custody of their three minor children
under a reunification plan. May made about three court
appearances, was present when Tucker visited the May’s home,
and telephoned Tucker about three times. During a home visit
in March or April 1988, May appeared very lethargic and
undernourished, and Tucker recommended she seek medical
treatment.
On June 10, 1988, Tucker, a social worker, and a law
enforcement officer again removed the children from May’s
home. May subsequently admitted to Tucker she had been
abusing drugs and neglecting her children. May appeared with
Koliwer at a hearing on June 15, 1988. On June 24, May called
Tucker and said she wanted to get her children back, was tired
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Opinion of the Court by Liu, J.
of being on the street, and wanted to make changes in her
lifestyle. Tucker asked May to call her so they could meet at
9:00 a.m. the following Monday (June 27). May seemed pleased,
but Tucker did not see or hear from her again. May also failed
to appear with Koliwer at a hearing on June 30, 1988, and
Koliwer had not seen her since that time.
In Koliwer’s view, May’s children were the “most
important people in [May’s] life.” May did not indicate she was
interested in leaving or abandoning her children, and did not
appear to be suicidal. Tucker similarly believed that May loved
and was responsive to her children, and gave no indication she
would abandon them.
Bobby testified he had not seen May since June 17, 1988,
when Bobby was arrested. Bobby also testified, however, that
he had seen May after he was released from jail in July 1988.
Phyllis Cross testified that she met Bobby May at some
point after May disappeared, and was his girlfriend at times for
about three years. Bobby was “very serious” in his efforts to find
May. At some point Tompkins told Bobby to stop looking for his
wife. Dalton told Cross she thought May was dead; Cross noted,
“[T]hat is just what everybody thought.”
Sherri Fisher testified that around June 1988, she met
May, who was homeless, and invited May to live with her. The
last time Fisher saw May, May was leaving the apartment with
Sheryl Baker.
Marsha Watson, Sherri Fisher’s mother, met Bobby May
“months” after she traveled with Sheryl Baker to Yucca Valley
in June 1988. He asked for the papers Baker had left at the
home. He told Watson he could not find his wife and would like
to do so to put her to rest.
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Howard Simmons, a document custodian for the San
Diego County Department of Social Services (DSS), testified
that May and Bobby May received $859 in Aid to Families with
Dependent Children (AFDC) and $166 in food stamps each
month from April 1986 to June 1987, and from October 1987 to
June 1988. May received DSS checks on June 1, 1988, and
June 15, 1988, that were cashed by her. The checks stopped in
June 1988 because May had not filed the required monthly
paperwork by the June deadline. May did not reapply for
assistance, and DSS had no further contact with her.
Marla Tottress testified that she was a teletype operator
for the San Diego County District Attorney’s Office, and in June
1994 and February 1995 she ran a complete records check on
the names Irene Louise Clair (May’s maiden name), Irene May,
Melanie May, and Irene Miller in 50 states and Puerto Rico. In
particular, Tottress looked for persons with one of these names
on a driver’s license or identification card, vehicle registration,
arrest warrant, restraining order, “missing persons” report,
“criminal history” (meaning if any such individual had been
fingerprinted or arrested), and whether such an individual
owned real property in San Diego. Tottress found Irene Melanie
May had been arrested on June 2, 1988, in San Diego and the
case had been dismissed, but Tottress did not otherwise locate a
person by any of these names.
g. Expert testimony
Dr. Brian Blackbourne, a pathologist, testified as an
expert on the effect of battery acid and electricity on the human
body. He explained battery acid is sulfuric acid mixed with
water. Sulfuric acid is a corrosive acid that kills “local cells
where [it] is placed.” The process begins immediately when the
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Opinion of the Court by Liu, J.
acid contacts the cells. If pain fibers are present, they sense pain
until they are destroyed by the acid. If battery or sulfuric acid
were injected into a muscle, it would cause a “Charl[ey]-horse
type of pain” in that muscle. If the acid were injected into a vein,
it would be “much more painful,” causing pain for a “short time,
seconds” until it was “neutralized by the tissue.” Battery acid
that had only a local effect would not be lethal. If enough acid
were injected to “get into the blood stream to cause the whole
body acid base balance to be affected” and “go into acidosis, that
could be serious,” and would probably take several hours to
occur. On cross-examination, Dr. Blackbourne agreed with
defense counsel that persons can also die from natural causes,
asthma attacks, hepatitis, or methamphetamine overdoses.
The hypodermic syringe generally used by drug users was
one cubic centimeter. This amount of acid would have
predominantly local effects and not cause death, but
Dr. Blackbourne would expect the person to scream and jerk
around.
Electricity has “two effects,” the first of which effect is
local. Skin “has a fairly high resistance to electricity,” so as
electricity passes through the skin it “causes intense heat to be
produced just at that local place.” If the voltage is 110V, or
normal household current, and the current is sustained for
minutes, the electricity would cause a burn. The second effect
is electrocution, which occurs when “electricity goes through the
body,” and “in so doing goes through either the heart or the
brain.” Combining an injection of battery acid with an electrical
contact would result in two sources of pain that were additive.
Only “awfully severe” pain causes unconsciousness. A
severe enough blow from a pan could cause unconsciousness. It
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Opinion of the Court by Liu, J.
was “usually quite certain” that if a person were going to become
unconscious as the result of a blow, he or she would “utter some
sort of sound.”
2. Defense evidence
a. Physical evidence
Investigator Cooksey testified that the folding knife
Joanne Fedor gave Darlene Burns tested negative for the
presence of blood. On September 15, 1988, and November 16,
1988, law enforcement forensic teams unsuccessfully searched
Fedor’s trailer for the presence of blood.
Randolph Robinson, the supervising criminalist for the
San Diego Sheriff’s Crime Lab, testified that on September 15,
1988, he and several law enforcement officers searched Fedor’s
trailer in Live Oak Springs for three hours for the presence of
blood. Robinson checked the carpets, baseboards, walls, and
ceilings in every room in the trailer, as well as appliances and
other items, and did not detect the presence of blood.
Criminalist Walter Fung, who in 1988 worked for the San
Diego County Sheriff’s Department, testified that on November
16, 1988, he and two law enforcement officers searched Fedor’s
trailer for two and a half to three hours. Fung visually searched
the carpets, ceilings, and walls of the master bedroom and
bathroom, living room, and parts of the kitchen and pop-out
room for blood. He took three pieces of the carpet pad under a
bed in the master bedroom, a piece of carpet from the kitchen
and the living room threshold area, and a piece of tile from
under the refrigerator in the kitchen back to the Sheriff’s
Department laboratory for testing. None of the items tested
positive for the presence of blood.
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Lauren Najor testified her husband was one of the owners
of the trailer park in Live Oak Springs, and they lived in
space 23. In June 1988, Fedor lived in space 25. Between the
time Fedor moved out of the trailer and the 1991 forensic
testing, the trailer was occupied by a series of at least three
different renters.
b. Second Baker interview
In its case-in-chief, the prosecution played for the jury the
redacted tape of Sheryl Baker’s March 4, 1992 interview with
law enforcement in which she told officers that May had said, “I
don’t wanna die,” and “[p]lease don’t kill me, I’m sorry.” The
defense played for the jury the tape of Baker’s July 5, 1994
interview with law enforcement in which she told police she did
not think May was alive when Baker and Tompkins returned to
the trailer because May made no sound during the attack, and
Baker was not sure whether she had moved. Baker also said
she did not recall seeing a bloody pillow or any other bloody
object. Baker fell asleep on the way to the honor camp and
apparently woke up when Tompkins was dropping Fedor off. At
that time, Fedor did not tell them when her visit would end or
ask them to pick her up.
c. Impeachment of prosecution witnesses
As explained more fully in part II.A.1.c., the defense
theorized that Mark Tompkins made no statements concerning
the murder to his cellmate Donald McNeely, but rather McNeely
surreptitiously read materials regarding the case that
Tompkins possessed in the cell. Alan Fenton, a defense
attorney, testified that in May 1992 he had been appointed to
represent Mark Tompkins. By June 1992, Fenton had received
two to three thousand pages of case reports related to the
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Opinion of the Court by Liu, J.
charges against Tompkins. Fenton gave Tompkins
documentation of his statements to others regarding his alleged
involvement, copies of his codefendants’ interviews, and press
releases relating to his case. These materials included
references to giving someone a “hotshot,” placing a body into a
car, and cutting up a body, as well as references to the location
of the alleged homicide, a skillet, an Indian reservation, and the
phrase “to help her out of her misery.” They also included
references to other locations where the body or parts of the body
could be found, as well as conflicting stories as to whether the
body had been burned or cut up.
Investigator Cooksey testified that when he interviewed
Alisha Fedor on September 12, 1991, she was not sure whether
she had seen a screwdriver.
Pamela Aitchison testified that Patricia Collins had a
reputation in the community as a dishonest person and a thief.
d. Expert testimony
Apparently to impeach those prosecution witnesses who
used methamphetamine and to support a defense theory that
May could have died from natural causes, the defense called
Dr. Clark Smith, a psychiatrist who served as the medical
director of Vista Pacifica, a drug and alcohol treatment hospital,
and the clinical director for the drug and alcohol treatment
programs at Mesa Vista Hospital and Vista Hill Foundation.
Dr. Smith testified as an expert on the effects of
methamphetamine use.
Intravenous use of methamphetamine was the most
severe form of addiction and had the greatest effect on the
person using the drug. Methamphetamine is a type of
amphetamine. A quarter of a gram or 250 milligrams of
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methamphetamine was 50 times the amount of amphetamine in
a typical diet pill and a “dangerous amount” for a person to use.
Intravenous methamphetamine use commonly causes
psychosis or “truly believ[ing]” one sees or hears something that
is not really there. The possibility of psychosis, including
psychotic delusions and visual or tactile hallucinations,
increases as the individual uses more amphetamine.
Hallucinations are common with methamphetamine abuse,
occurring in close to 90 percent of users. Seeing blood that is not
in fact present is a common visual hallucination reported by
individuals Dr. Smith had treated. If impurities are present in
the methamphetamine used, it can cause hallucinations “for
protracted periods of time with unexpected severity using what
seems to be a small amount of the drug.” Psychotic delusions,
such as believing that “the police . . . are after you” or persons
on the street are discussing you, are also common. Individuals
might contact law enforcement because they believe they are
victims of a crime that has no basis in fact. Distortion of a
person’s perception of time and reality is exacerbated by the
extreme sleep deprivation that results from methamphetamine
abuse.
When a person has used methamphetamine over a period
of time and injects a quarter of a gram, eight to 10 hours later
the drug remains in the brain and bloodstream, the user is still
under its influence, and the user can experience psychosis,
paranoia, hypervigilance, and delusions that someone is
attacking him or her. Hallucinations and delusions generally
cease after a person completely stops using methamphetamine
and the drug is cleaned out of his or her system. Dr. Smith had
repeatedly observed individuals who were clean of
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Opinion of the Court by Liu, J.
methamphetamine but “still believe[d] the psychotic delusions”
they had experienced because the delusions had been “so vivid.”
Methamphetamine use changes the physiology and
chemical balance of the brain, often depriving the brain of its
“normal neurotransmitter, such as the normal adrenalin that’s
in the brain.” Methamphetamine also constricts vessels and
cuts off the blood supply to the brain causing “microscopic
strokes” or small portions of the brain to die.
Impurities in methamphetamine can damage the heart,
liver, and kidneys. For those who suffer from asthma,
impurities can cause a pulmonary embolism and can trigger
severe asthma attacks that may result in death. Combining
asthma medication and methamphetamine can cause heart
attacks or heart fibrillation. If a user has decreased liver
function due to hepatitis, a usual dose of methamphetamine can
be lethal.
On cross-examination, Dr. Smith testified that if a person
were under the influence of methamphetamine and hence more
likely to be dehydrated, have poor nutrition, and be in a
generally weakened state, electricity “would probably hurt the
person.”
B. Prior Convictions
In a separate proceeding outside the presence of the jury,
Dalton admitted that in March 1984 she had suffered felony
convictions for credit card forgery and petty theft with a prior
conviction (former §§ 484, 666), she had served a prison term for
these offenses, and she had not remained free of prison and the
commission of an offense resulting in a felony conviction for five
years after her release from prison. (Former § 667.5, subd. (b).)
She also admitted that on June 4, 1985, she suffered a prior
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serious felony conviction for burglary. (Former §§ 459, 667,
subd. (a), 1192.7, subd. (c)(18).)
C. Penalty Phase
1. Prosecution Case
Cynthia Johnson testified that in February 1992, she was
living with her husband in a recreational vehicle in Jamul.
Johnson was caring for her mother, who lived in a house on the
property and was dying of cancer. Johnson’s mother was taking
large doses of morphine. About 11:30 on the morning of
February 3, 1992, Johnson was alone in the trailer. A man with
a white hockey mask and a woman in a ski mask entered
through her unlocked screen door. The man hit Johnson
repeatedly in the head with a flashlight. While he did so, the
woman took Johnson’s purse and jewelry case and her mother’s
medication, and left. Johnson bit the man, and he fled. Johnson
ran after them. The man removed his mask, and the woman got
into a car. Johnson wrote down the license plate number and
called 911. About 15 minutes later, Johnson identified the man,
the woman, who was Dalton, and Johnson’s purse to police.
Johnson suffered a slight concussion and continued to get
headaches at the time of her testimony. Two months after the
attack, her mother died and Johnson suffered a nervous
breakdown. The parties stipulated that Dalton pled guilty to
robbery for this offense.
Dawn Crawford testified that in October or November of
1994, she was incarcerated at Las Colinas in room 169 of the B-
1 housing area. Each room had a door rather than bars in front.
At some point during this time period Dalton was housed next
door to Crawford in room 168. Through an emergency call box
on the wall, Crawford could hear voices in the next room.
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Opinion of the Court by Liu, J.
On one occasion, when the doors to both room 168 and
room 169 were closed, Crawford heard Dalton speaking with
inmate Terry Carbaugh. Dalton said she had participated in a
murder. She referred to the victim as “the bitch” and said the
victim had owed Dalton $80. The victim was tied and injected
with battery acid. Dalton said that “hearing her scream was the
greatest high that she has ever experienced.” The victim was
stabbed in the head and “cut up and mutilated.” Dalton
mentioned an Indian reservation. Dalton also mentioned a
woman named “John-Boy” and said “John-Boy better keep
quiet.” During the conversation, Dalton was “laughing . . . like
it was no big deal.”
On cross-examination, Crawford testified it was common
knowledge at Las Colinas that conversations could be heard
between the rooms through the call boxes. She had taken notes
of the conversation when it occurred, but she could not find
them. At some point Crawford was housed in the same area as
Sheryl Baker and spoke to her. Crawford had “received a lot of
death threats from inmates about this case” and was “very
concerned about [her] safety.”
In October or November of 1994, Crawford was facing an
assault with a deadly weapon charge and a weapon
enhancement allegation. On November 30, 1994, she pled guilty
to assault by means of force likely to produce great bodily injury,
and the weapon allegation was dismissed.
Pamela Johnson testified that on September 13, 1993, she
was incarcerated at Las Colinas and had been subpoenaed to
appear in court regarding Dalton’s case. Johnson had
previously participated in a taped interview about Dalton’s case
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Opinion of the Court by Liu, J.
with Investigator Cooksey. Apparently as a result, the two
women were to be kept separate from one another.
On September 13, Johnson was sitting in the Las Colinas
visiting area, a “holding area for inmates going to court,”
speaking to another inmate. Dalton approached and told the
other inmate to leave. Dalton said that Johnson “was a snitch,
and that if I snitched out on her I would pay for it.” Dalton also
said, “[N]o matter where I was, whether I was in jail or out of
jail, she could get to me; if I snitch[ed] on her that I would die.”
Dalton also asked Johnson how it felt “having a son of a junkie,
just like me.” When Johnson started to get up, Dalton said
Johnson could not get away from her, and Dalton elbowed
Johnson in her right rib area, bruising her. Dalton said Johnson
was going to die, and asked Johnson if she had heard from her
husband or son lately. Johnson yelled for Dalton “to get out of
my face.” Deputies intervened and separated the women.
Johnson and Dalton were subsequently placed on a bus to
the courthouse. Dalton told the inmate to whom she was
handcuffed that Johnson was a “snitch” and causing Dalton “to
serve lots of time.” To be called a “snitch” in custody meant
“you’re turning on your own kind,” and “that you have to pay for
it.” Johnson had suffered prior convictions for welfare fraud and
credit card forgery.
The parties stipulated to Dalton’s prior convictions and
the dates on which she was in custody in state prison.
2. Defense Case
Victoria Perez, Dalton’s sister, testified that Dalton’s 12-
year-old daughter Hannah had been adopted by Perez. Hannah
had lived with Dalton until she was two and a half years old.
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Opinion of the Court by Liu, J.
Perez had moved to Washington State about a year before
her 1995 testimony. Before then, she had lived in San Diego and
had visited Dalton at the Las Colinas jail weekly. Perez also
wrote to and spoke on the telephone with Dalton and had
continued to do so after her move to Washington. Hannah and
Perez’s other children loved Dalton.
Perez was religiously devout, and her visits with Dalton
often were about their shared faith. Perez was impressed by the
depth of Dalton’s knowledge of scripture and her understanding
of Christianity. Dalton was repentant and understood “she
hadn’t walked the way [the] Lord wants her to.” Dalton was
enrolled in a theology school and hoped to minister to others in
prison, help them to know they were loved by God, and break
the cycle of being incarcerated. Dalton had been a blessing to
Perez and her family the past three years, and Perez did not
want her to die.
Todd Thorpe, Dalton’s brother, testified that Dalton had
“turned her life around” and was trying to “do good for herself
and others.” Thorpe loved Dalton and wanted her to live. He
believed she could touch other lives in prison and “lead them to
make the right decisions in their life and turn things around.”
Rosalie Thorpe, Dalton’s mother, testified Dalton was born
on January 24, 1960. She had two sisters and a brother. Dalton
had five children, three girls and two boys, who were six to 16
years old. Two of Dalton’s daughters, Brianne and Christiana,
lived with and had been adopted by Rosalie. Brianne stopped
living with Dalton when she was two months old, and
Christiana had gone home with Rosalie after she was born.
Dalton’s oldest child, David, lived with his father and had not
lived with Dalton since he was four and a half years old because
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PEOPLE v. DALTON
Opinion of the Court by Liu, J.
of Dalton’s drug use. Her other son, Jason, who was 10, lived
with Dalton for about eight months, before living with Dalton’s
sister Laurie.
Rosalie, Brianne, and Christiana had started visiting
Dalton about five months before Rosalie’s March 1995
testimony. Rosalie had heard from other family members and
Dalton’s chaplain that Dalton had changed long before then, but
Rosalie could not “comprehend it.” Brianne and Christiana
loved Dalton “very much.” During the visits, the girls sang
songs to Dalton over the phone, longed to touch her, and blew
her kisses and said “I love you” as they left. At night Christiana,
who was six years old, prayed Dalton could rejoin her family.
Rosalie believed Dalton had “completely changed” and
knew in her heart, “as her mother, that she is different.” In
Rosalie’s view, “drugs took [Dalton] from our family,” “[s]he is
now back,” and it was “a miracle.” Rosalie and the rest of
Dalton’s family “pray[ed] that she lives.” Rosalie did not believe
Dalton had “killed anybody.”
Keith LaChance, Dalton’s father, testified that he left the
family in 1966 when Dalton was six years old. He next had
contact with Dalton when she was 15 years old, and she came to
live with LaChance for a few months in Fairbanks, Alaska.
Dalton was well-behaved, and did not use drugs or alcohol. The
next time he saw Dalton was in August of 1992 when she was
32 years old and had been arrested for murder. Since 1992, he
had become close to Dalton, saw her on a regular basis, and
wrote to her when he needed to travel. He had sacrificed “just
about everything to have this relationship, and I hope I get to
continue it.”
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Opinion of the Court by Liu, J.
Reverend Romie Cervantes, who supervised the chaplains
at Las Colinas, testified that she had known Dalton since 1992.
At first, Dalton was “mean,” profane, and argumentative.
Reverend Cervantes met weekly with Dalton, and had watched
her “grow into a beautiful Christian woman.” Dalton
“soak[ed] . . . up” “everything that we’ve taught her,” and
Reverend Cervantes believed her religious commitment was
genuine. Because Reverend Cervantes was a volunteer, she
considered her time valuable and thus spent it with people who
“are hungry and [who] really want God, not just . . . somebody
that’s playing church in jail.” Although Dalton had not shared
the details of her past, she told Reverend Cervantes she had
“done awful things” and had expressed remorse for “everything
that she’s done.” Reverend Cervantes did not want Dalton to
receive the death penalty because she had witnessed the
difference Dalton made in other inmates’ lives.
Charlene Gill, a church ministry volunteer, testified she
led a Bible Study twice a month at Las Colinas. She had known
Dalton since October 1992, or nearly two and a half years.
Dalton had been faithful in her attendance, paid attention, and
asked questions. She related well, often “lovingly,” to her
classmates. Dalton was strongly “committed to the Lord, and
she’s trying to live her life for him now.”
Duetta Bellamy testified that she had been a Bible study
teacher at Las Colinas for about 15 months. During that time
Dalton had actively participated in the group and was kind and
supportive to other members. Once when another inmate had a
seizure, Dalton immediately comforted and prayed for her until
the guards arrived. Dalton’s cell mates who were in the group
thought “very highly of her and look[ed] up to her as a . . .
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PEOPLE v. DALTON
Opinion of the Court by Liu, J.
witness of the Lord.” Bellamy believed Dalton would be of
assistance to other inmates as a lay minister.
In response to Dawn Crawford’s testimony, on
February 28 and March 2, 1995, Marion Pasas and Allan
Cotten, licensed private investigators, conducted an experiment
at Las Colinas. They were unable to locate rooms 168 and 169
in the B−1 housing area (the rooms testified to by Dawn
Crawford) but did locate rooms 268 and 269.
Cotten entered room 268 and Pasas entered room 269, and
the doors to each room were closed. Cotten spoke in a
conversational tone in room 268. Pasas stood in different parts
of room 269 but could not hear him. The two then switched
rooms and repeated the experiment with the same result. Pasas
then put her ear to the vent in room 268, which was not
physically possible for her to do in room 269, and heard muffled
voices and a woman yelling. Except for the woman who was
yelling, Pasas could not distinguish any voice or understand
their conversation. Pasas heard no sound through the call box.
The call box in room 269 was located higher on the wall than the
call box in room 268. Pasas and Allan did not bring a tape
recorder.
Theresa Carbaugh, who had suffered a prior felony
conviction for drug possession for sale, testified that in the fall
of 1994 she had been incarcerated in the B−1 housing area at
Las Colinas and shared a room with Dalton. Dalton was
religiously devout, sensitive, caring, and thoughtful to others.
The two studied scripture together, and Dalton encouraged
Carbaugh to attend church and not to judge others.
Dalton never discussed her case with Carbaugh and, in
particular, did not describe cutting up or mutilating a woman,
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Opinion of the Court by Liu, J.
refer to anyone in her case as a “bitch,” tell her that the victim
was tied up and injected with acid, say that hearing someone
scream was the greatest high she had ever experienced, mention
an Indian reservation, or say that John-Boy should keep quiet.
On the wall of the room Carbaugh and Dalton shared,
there was a small box through which inmates could contact
deputies and deputies could at all times listen to inmates. The
box was not used to listen to other inmates’ conversations, and
it was not possible to understand a conversation in the next
room.
Dawn Crawford was incarcerated in the room next to
Carbaugh and Dalton. In Carbaugh’s opinion, Crawford was “a
liar” and had a reputation for being a dishonest person.
Robin Wilson testified she was incarcerated in housing
area B−2 at Las Colinas. She had suffered prior felony
convictions for attempted robbery and grand theft, and had used
various aliases, birth dates, and social security numbers. She
testified that persons who spoke into the intercom speakers on
the walls of the rooms in housing area B−2 could be heard by
deputies in the coffee shop if the deputies’ switch was on. The
intercom did not need to be activated to be used, but a button
could be pushed by an inmate to alert deputies that the inmate
wanted to speak with them. Wilson also said that if she was in
her room with the door locked, she could not hear normal
conversation in a room next door through the intercom.
Gwyndolyn Coleman testified she had been incarcerated
at Las Colinas since July 1994 and had suffered felony
convictions for assault on a cohabitant, assault with a deadly
weapon, robbery, and forgery. Coleman was the lead trustee for
the B−1 housing area and also had access to the B−2 housing
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Opinion of the Court by Liu, J.
area. Coleman believed Dalton to be compassionate because she
regularly gave food items from the jail store to needy inmates,
and she described Dalton as one who “mostly reads her Bible”
and “minds her own business.” Dalton had never spoken with
Coleman about her case. Crawford had been housed in both the
B−1 and B−2 housing areas, and had a reputation for being
“deceitful, evil and a liar.”
Judith Reeves testified that in 1994 she had managed an
apartment building in which Crawford was a tenant for about
three and a half months. At no time was Crawford honest with
Reeves — “everything was upside down, wrong, a lie.” Crawford
also had a reputation for dishonesty in the community.
Jeannie Shim lived at the same apartment complex as
Reeves and had met Dawn Crawford about one and a half years
before her testimony. “[J]ust about everything [Crawford had]
ever told [Shim] ha[d] turned out to be a lie.” Crawford had also
stabbed Shim and pled guilty to the crime, and had stolen from
her.
Cameo Brooks testified that in September 1993, while
incarcerated at Las Colinas, she was in the jail visiting room
with Pamela Johnson waiting to be taken to court. Dalton
entered the room and conversed with Brooks. While they spoke,
Johnson “got hysterical,” screamed for the deputies, and said,
“I’m not supposed to be in the same room with this lady.”
Deputies removed Dalton. Dalton had neither threatened nor
struck Johnson.
Brooks, Dalton, and Johnson were then taken on the bus
to court. Dalton did not speak of Johnson while they rode and,
in particular, did not threaten her or call her a “rat.” Brooks
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Opinion of the Court by Liu, J.
had previously suffered convictions for possession of a stolen
vehicle and second degree burglary.
Michele Pease testified that she was incarcerated at Las
Colinas. She had previously suffered convictions for grand theft
and possession of a check with intent to defraud. Pease had
lived in the same housing area as Dalton from October 1994 to
February 1995, and the two had studied the Bible together
nearly every day. When Pease spoke with Dalton in Dalton’s
room, the two did not discuss their cases but rather their
children and the difficulties of being incarcerated. Although it
was possible to hear voices in the room next door, it was not
possible to discern what was being said.
The parties stipulated that Dalton had appeared in court
43 times between October 26, 1992, and February 6, 1995, when
evidence was first introduced at trial.
3. Rebuttal
San Diego County Probation Officer Carol Roberts
testified that in February 1987, she interviewed Dalton while
preparing a probation report for her. Dalton denied having a
substance abuse problem and said she had been attending
Narcotics Anonymous meetings. In Dalton’s written statement
submitted to Roberts, Dalton “talked about making some life
changes,” said she had been “talking with a Christian drug
program leader for Victory Outreach,” a Christian residential
treatment program, and wondered, “If God cannot show me . . .
I wonder if it’s possible for anyone or anything to help[?]” On
March 7, 1987, Dalton was admitted to a substance abuse
program called New Entra Casa.
The parties stipulated that between December 1992 and
January 1995, Dalton had committed 12 rule violations at Las
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Opinion of the Court by Liu, J.
Colinas that had resulted in disciplinary action. No criminal
charges had been filed.
San Diego County District Attorney’s Office Investigator
David Decker testified that on March 2, 1995, he and
Investigator Cooksey visited rooms 268 and 269 in the
B−1 housing area at Las Colinas. One investigator went into
room 268 and the other into room 269, and the doors to each
room were closed. Although not aligned, the speaker boxes in
each room were mounted back to back on the same six-inch thick
cinder block wall. The speaker boxes were also used to monitor
the room electronically. Investigators Decker and Cooksey were
able to communicate through the “air space in the speaker.”
On March 4, 1995, Investigators Decker and Cooksey
returned to the rooms and successfully repeated their
experiment while using a tape recorder. Decker started a foot
from the speaker box, moved away and then back toward the
box. The investigators also removed the speaker grills and
observed a four-inch long hollow electrical conduit that
connected the speaker boxes and conducted the sound. The tape
made during this visit was played for the jury.
Investigator Cooksey also testified regarding the speaker
experiment. On cross-examination, he said he had placed the
tape recorder about one to two inches from the speaker box.
When he interviewed Dawn Crawford on February 3, 1995, she
had “referred to the device that she heard the conversation
through as the vent.”
Athena Shudde testified she was an attorney who had
previously represented Mark Tompkins. On October 1, 1993, at
a pretrial hearing attended by Tompkins and Dalton, Dalton
spat in the direction of Tompkins.
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Opinion of the Court by Liu, J.
II. DISCUSSION
A. Guilt Phase Issues
1. Jailhouse informant
Dalton contends the trial court erred in admitting the
hearsay statements of Mark Tompkins through the testimony of
jailhouse informant Donald McNeely and in limiting her cross-
examination of McNeely. We reject the claim.
Before trial Dalton filed a motion to preclude admission of
Tompkins’s statements to McNeely on the grounds that they
were inadmissible under Evidence Code section 1230 and
violated her right to confrontation. Dalton also asserted that
because Baker would be testifying, the prosecution no longer
needed “codefendants’ hearsay statements in order to establish
corpus.” The trial court admitted the statements under
Evidence Code section 1230 (as statements against interest),
redacted the statements, including changing all plural personal
pronouns to singular personal pronouns, and allowed the
statements to be used to “establish that events occurred in the
trailer,” or “corpus,” such as the use of electric shock, the “hot
shot,” and a knife, but not to implicate Dalton.
Before McNeely testified, Dalton again unsuccessfully
objected, as relevant here, on the grounds raised before trial.
McNeely, who had suffered 12 California burglary
convictions and four Missouri felony convictions, testified that
for three months, from June to August of 1992, he had shared a
cell at the San Diego County jail with Tompkins. As noted,
McNeely testified that during their time as cellmates, Tompkins
told McNeely he was “in on a murder charge” and called it a
“torture slaying.” (See ante, p. 11.) Tompkins said the victim
was “Melanie May,” and the murder occurred in June of 1988 in
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Opinion of the Court by Liu, J.
a “house trailer” in the “Live Oak Springs, Boulevard area.”
Tompkins said that he was “really into violence,” that he
“tortured the hell out of her,” and that “pain was the name of
the game.” In McNeely’s view, Tompkins “seemed to enjoy it.”
Tompkins said the “original plan was to give Miss May a
hotshot” and that Tompkins did so. Tompkins also said he had
given May a “shock treatment,” and McNeely believed he
mentioned an electrical cord. Tompkins also mentioned a
screwdriver, knife, and a heavy kitchen skillet, saying “they
work wonders on the knees.” Tompkins “got tired of it” and “just
wanted it to end,” so he stabbed May with a knife. Tompkins
told McNeely he put May’s body into a vehicle and took it to a
nearby Indian reservation. He then dismembered the body so it
would be more difficult to locate.
After cross-examining McNeely, Dalton unsuccessfully
moved for a mistrial based on his testimony.
Investigator Cooksey testified that McNeely did not
request, and he was not promised and did not receive, any
benefit for testifying. On cross-examination, Investigator
Cooksey agreed with defense counsel that Investigator Cooksey
told McNeely that in exchange for his cooperation, a letter might
be written by the district attorney’s office to the sentencing
judge advising the judge of McNeely’s cooperation.
The trial court instructed the jury that McNeely was an
“in-custody informant” and that his testimony “should be viewed
with caution and close scrutiny.”
a. Statement against interest
Dalton asserts that “[i]ntroduction of Tompkins’
unreliable hearsay statements . . . violated the state hearsay
rule.” We reject the contention.
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Evidence Code section 1230 provides in relevant part:
“Evidence of a statement by a declarant having sufficient
knowledge of the subject is not made inadmissible by the
hearsay rule if the declarant is unavailable as a witness and the
statement, when made, . . . so far subjected him to the risk of . . .
criminal liability . . . that a reasonable man in his position
would not have made the statement unless he believed it to be
true.” “To demonstrate that an out-of-court declaration is
admissible as a declaration against interest, ‘[t]he proponent of
such evidence must show that the declarant is unavailable, that
the declaration was against the declarant’s penal interest when
made and that the declaration was sufficiently reliable to
warrant admission despite its hearsay character.’ [Citation.] ‘In
determining whether a statement is truly against interest
within the meaning of Evidence Code section 1230, and hence is
sufficiently trustworthy to be admissible, the court may take
into account not just the words but the circumstances under
which they were uttered, the possible motivation of the
declarant, and the declarant’s relationship to the defendant.’ ”
(People v. Grimes (2016) 1 Cal.5th 698, 711 (Grimes).) The
determination of whether a statement was against the
declarant’s interest when made is reviewed for abuse of
discretion. (People v. Valdez (2012) 55 Cal.4th 82, 143 (Valdez).)
Here, the trial court could reasonably have concluded that
Tompkins’s statement to his cellmate describing his torture and
murder of May “so far subjected [Tompkins] to the risk of . . .
criminal liability . . . that a reasonable man in [Tompkins’s]
position would not have made the statement unless he believed
it to be true.” (Evid. Code, § 1230.)
Dalton claims that Tompkins’s statements were
unreliable because McNeely and Tompkins both lacked
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credibility. As to McNeely, “[w]e have previously rejected the
argument that ‘in considering the admissibility of evidence
offered under’ Evidence Code section 1230 ‘the trial court could
properly consider the credibility of the in-court witness,’ and
observed that ‘[n]either the hearsay rule nor its exceptions are
concerned with the credibility of witnesses who testify directly
to the jury.’ ” (People v. Rangel (2016) 62 Cal.4th 1192, 1219
(Rangel).)
As to Tompkins, Dalton asserts that a “statement of one
inmate bragging to another inmate about crimes committed is
not necessarily against penal interest at the time or under the
circumstances it was made.” In her view, “[i]t appears that . . . .
Tompkins was not confiding in McNeely so much as bragging or
puffing” and that Tompkins “was in custody and wanted to be
perceived of as tough.” But Dalton’s argument shows “ ‘only that
a court might perhaps have been able to arrive at the conclusion
that [Tompkins’s] statement did not so far subject him to the
risk of criminal liability that a reasonable person in his position
would not have made it unless he believed it to be true. [It]
simply do[es] not show that a court was unable to arrive at the
opposite conclusion. Therefore, [it does] not establish an abuse
of discretion.’ ” (Valdez, supra, 55 Cal.4th at p. 144.)
As to this and other claims, Dalton alleges for the first
time that the error complained of violated her federal
constitutional rights. To the extent that in doing so she has
“raised only a new constitutional ‘gloss’ ” on a claim preserved
below, that new aspect of the claim is not forfeited. (People v.
Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 364 (Bryant,
Smith and Wheeler).) At the same time, “ ‘[n]o separate
constitutional discussion is required, or provided, when
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rejection of a claim on the merits necessarily leads to rejection
of [the] constitutional theory . . . .’ ” (Ibid.)
b. Reliability
Dalton contends that Tompkins’s statements were
unreliable and hence their admission was improper under Ohio
v. Roberts (1980) 448 U.S. 56 (Roberts) and violated her right to
due process. In Crawford v. Washington (2004) 541 U.S. 36
(Crawford), the United States Supreme Court overruled
Roberts, “which had held that the confrontation right does not
bar admission of the out-of-court statements of an unavailable
witness if the statements ‘bear[] adequate “indicia of
reliability.” ’ Rejecting this approach, Crawford held that, in
general, 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. (Crawford, at pp. 59−60,
68.)” (Rangel, supra, 62 Cal.4th at p. 1214.)
Contrary to Dalton’s assertion, the high court “ ‘has made
clear that Roberts, supra, 448 U.S. 56, and its progeny are
overruled for all purposes, and retain no relevance to a
determination whether a particular hearsay statement is
admissible under the confrontation clause.’ ” (Rangel, supra,
62 Cal.4th at pp. 1217−1218.) Rather, “a statement cannot fall
within the Confrontation Clause unless its primary purpose was
testimonial.” (Ohio v. Clark (2015) 576 U.S. __, __-__ [135 S.Ct.
2173, 2179-2180]; People v. Cortez (2016) 63 Cal.4th 101, 129
(Cortez).) It “ ‘is the testimonial character of the statement that
separates it from other hearsay that, while subject to traditional
limitations upon hearsay evidence, is not subject to the
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Confrontation Clause.’ ” (Rangel, at p. 1217, italics omitted,
quoting Davis v. Washington (2006) 547 U.S. 813, 821.)
Here, Tompkins’s statements to his cellmate “were not
made to law enforcement officers, nor were they otherwise made
under circumstances suggesting a primary purpose of creating
evidence” for Dalton’s prosecution. (Rangel, supra, 62 Cal.4th
at p. 1217.) The statements therefore were not testimonial.
(Ibid.; cf. Ohio v. Clark, supra, __ U.S. at pp. __−__ [135 S.Ct.
2173, 2181−2183] [three-year-old’s statements to his preschool
teachers not testimonial because they “clearly were not made
with the primary purpose of creating evidence for [the
defendant’s] prosecution”].)
In her reply brief, Dalton appears to acknowledge that
Davis v. Washington, supra, 547 U.S. 813, filed six months
before her opening brief, foreclosed her claim that
nontestimonial statements continue to be subject to the test in
Roberts, supra, 448 U.S. 56. She therefore attempts to recast
her confrontation clause claim as one under the due process
clause, asserting: “While the full scope of Davis is not clear, it
is wholly inconsistent with due process to admit into evidence at
a capital trial the unreliable hearsay statement of a declarant
who lacks credibility and is not available for cross-examination,
through the testimony of a skilled con artist-informant.”
We have rejected above Dalton’s claim that Tompkins’s
statements were so unreliable they failed to satisfy the
requirements of Evidence Code section 1230. (See ante,
pt. II.A.1.a.) Dalton cites no additional compelling basis for
concluding these statements were nonetheless so unreliable
that their admission violated the due process clause.
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Nor does Dalton cite any persuasive basis for concluding
that McNeely’s testimony recounting Tompkins’s statements
was so unreliable as to violate the due process clause. We
conclude below that the challenged limitations on McNeely’s
cross-examination were either not erroneous or not prejudicial.
(See post, pt. II.A.1.c.) Moreover, “ ‘ “[a]lthough an appellate
court will not uphold a judgment or verdict based upon evidence
inherently improbable, testimony which merely discloses
unusual circumstances does not come within that category.
[Citation.] To warrant the rejection of the statements given by
a witness who has been believed by a trial court, there must
exist either a physical impossibility that they are true, or their
falsity must be apparent without resorting to inferences or
deductions. [Citations.] Conflicts and even testimony which is
subject to justifiable suspicion do not justify the reversal of a
judgment, for it is the exclusive province of the trial judge or
jury to determine the credibility of a witness and the truth or
falsity of the facts upon which a determination depends.” ’ ”
(People v. Maciel (2013) 57 Cal.4th 482, 519 (Maciel).) Here,
nothing about McNeely’s testimony was inherently unbelievable
or implausible.
c. Restricted impeachment
Dalton asserts that the trial court prejudicially precluded
impeachment of McNeely with the prosecutor’s characterization
of him in a different case as a “manipulator” and with the
circumstances underlying his prior felony and misdemeanor
convictions. We reject the claim.
1) Factual background
Before McNeely’s testimony in Dalton’s case, he had
previously been prosecuted for 12 counts of burglary by Deputy
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PEOPLE v. DALTON
Opinion of the Court by Liu, J.
District Attorney Jeff Dusek, the prosecutor in Dalton’s case,
and Deputy District Attorney Robert Phillips. In the
prosecution’s 1989 statement in aggravation in eight of
McNeely’s burglary cases, Deputy District Attorney Dusek
described how McNeely dressed as an exterminator to gain
entry to one of his wealthy victims’ homes, went to the home
when only a housekeeper was present, and stole jewelry worth
$65,000. Deputy District Attorney Dusek stated: “This is
perhaps one of the most sophisticated burglary series [of crimes]
to come through this court,” and although McNeely’s “outward
appearance[] and lifestyle[]” was not that of a “typical burglar,”
examination of his “soul and conscience” reveal a “confirmed
thief and conman.” He continued: “The only difference between
this burglar and the vast majority is that this defendant is not
satisfied with a ‘nickel and dime haul,’ ” and “has the looks,
brains, and wherewithal to make the big score. In fact, he scored
big eight separate times.”
McNeely pled guilty. In January 1990, he moved to
withdraw his plea, attaching a supporting declaration by his
mother. McNeely’s mother stated that at the preliminary
hearing, she had seen Deputy District Attorney Dusek showing
what appeared to be photographs to individuals who appeared
to be witnesses entering the courtroom, heard the witnesses say,
“That is him,” and therefore believed the prosecutor was
showing the witnesses photographs of McNeely and “verifying
that . . . this was the person who they were going to see in
Court.” In the prosecution’s opposition to McNeely’s motion to
withdraw his plea, Deputy District Attorney Dusek described
McNeely as a “manipulator” and a “desperate man” whose “day
of judgment is near and [who] will resort to any tactic to
postpone a lengthy prison sentence.”
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Opinion of the Court by Liu, J.
Before trial in this case, Dalton subpoenaed Deputy
District Attorneys Dusek and Phillips as defense witnesses. The
San Diego County District Attorney’s Office moved to quash the
subpoenas, and the trial court granted the motion. As to Deputy
District Attorney Dusek, the court stated that no attorney
involved in a case should be called as a witness without an
“absolute compelling need,” and no such need was demonstrated
here because McNeely could be impeached with his prior
convictions. Dusek’s testimony would therefore be cumulative.
The court also found Dusek had not stated an opinion as to
McNeely’s veracity in the statement in aggravation and that the
statement in aggravation was inadmissible hearsay.
At trial, during his testimony on direct, McNeely testified
he had previously suffered 12 California burglary convictions
and four Missouri felony convictions for burglary and firearm
theft. He also said he had come forward about Tompkins’s
statements because “I’m not a violent person myself, and . . .
after hearing it over the course of days and weeks . . . it really
got to me after awhile; and . . . you start the [sic] feel for
this — .” Dalton’s objection was sustained, but the court
declined her request to strike the answer, stating, “The answer
will stand.”
On cross-examination, defense counsel asked, “[D]o you
consider yourself to be a confirmed thief and con man?”
McNeely replied, “I would say at one time, yeah, that[] . . . would
have been appropriate. Prison has changed me somewhat.”
Counsel asked, “Would you agree with this statement about you,
that you’re a manipulator?” The trial court sustained the
prosecutor’s relevance objection. Counsel asked, “Mr. McNeely,
are you a manipulator?” McNeely said, “I don’t know. Some
people may say that. . . . I wouldn’t say it.” Counsel
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PEOPLE v. DALTON
Opinion of the Court by Liu, J.
subsequently asked if during the felonies McNeely “posed as an
exterminator.” The trial court sustained the prosecutor’s
relevance objection. At sidebar, defense counsel explained that
in their view McNeely was manipulating the court and had read
Tompkins’s documents and was simply testifying to what he
read. They sought to ask McNeely about his method of operation
in posing as an exterminator in eight of the burglaries and a
drapery cleaner in the four other burglaries to obtain trust and
access to money and jewelry, and to demonstrate “he is a
manipulator” and “an imposter.” The trial court denied the
request on the ground that “the law of impeachment of prior
felonies is you get to ask the nature of the felony and when it
occurred; and I’ve allowed you to do that.”
Dalton also sought to impeach McNeely with the
circumstances surrounding his misdemeanor convictions. The
trial court excluded the evidence, finding the convictions were
remote in time, and would involve undue consumption of time
given that McNeely could be impeached with at least 10 prior
felony convictions. (Evid. Code, § 352.)
2) Analysis
(a) Subpoena
Dalton asserts the trial court erred in quashing her
subpoena of Deputy District Attorney Dusek because his
statements in the statement in aggravation and opposition to
McNeely’s motion to withdraw his plea were admissible as
statements of a party-opponent under Evidence Code
section 1220. Evidence Code section 1220 provides: “Evidence
of a statement is not made inadmissible by the hearsay rule
when offered against the declarant in an action to which he is a
party in either his individual or representative capacity,
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Opinion of the Court by Liu, J.
regardless of whether the statement was made in his individual
or representative capacity.” Dalton did not raise this ground of
admissibility below, and it is therefore forfeited. (Evid. Code,
§ 354; People v. Ervine (2009) 47 Cal.4th 745, 779.)
Even if the issue was preserved, and assuming the
statements were admissible under Evidence Code section 1220,
Dalton fails to demonstrate that Deputy District Attorney
Dusek should have been called as a witness. “ ‘Only in
extraordinary circumstances should an attorney in an action be
called as a witness, and before the attorney is called, defendant
has an obligation to demonstrate that there is no other source
for the evidence he seeks.’ ” (People v. Linton (2013) 56 Cal.4th
1146, 1186 (Linton).) In this case there was another source for
the evidence Dalton sought, i.e., McNeely. That is, Dalton could
have simply asked McNeely who had been the prosecutor in his
burglary cases and what were the circumstances underlying
those convictions. We therefore turn to Dalton’s claim that her
cross-examination of McNeely was improperly limited because
she was precluded from eliciting the circumstances underlying
his burglary convictions.
(b) Imposter evidence
As noted, on cross-examination Dalton unsuccessfully
sought to impeach McNeely with the circumstances underlying
his 12 California burglary convictions. In particular, Dalton
sought to demonstrate McNeely’s insidious nature by eliciting
testimony that he had successfully posed as an exterminator or
drapery cleaner in order to gain entry to numerous homes of
wealthy persons and steal their money and property. The trial
court sustained objections to this line of questioning on the
ground that a party could only impeach a witness with the
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Opinion of the Court by Liu, J.
“nature of the felony and when it occurred,” presumably relying
on Evidence Code sections 787 and 788. Dalton contends this
was error that violated her rights to confrontation and cross-
examination, presentation of a defense, a fair trial, due process,
and a reliable determination of guilt and penalty. We conclude
any error in limiting the cross-examination was harmless.
(People v. Watson (1956) 46 Cal.2d 818, 837 (Watson).)
Contrary to the trial court’s ruling and to the Attorney
General’s position in this court, admission of relevant evidence
of the circumstances underlying a felony conviction is no longer
generally barred in criminal cases. It is true that Evidence Code
section 787 provides: “Subject to Section 788, evidence of
specific instances of his conduct relevant only as tending to
prove a trait of his character is inadmissible to attack or support
the credibility of a witness.” And section 788 generally provides:
“For the purpose of attacking the credibility of a witness, it may
be shown by the examination of the witness or by the record of
the judgment that he has been convicted of a felony.” Before
June 1982, these sections as well as former Code of Civil
Procedure section 2051, the predecessor of section 788, had been
interpreted to generally provide that although “the testimony of
a witness may be impeached by proof that he has suffered the
prior conviction of a felony,” the “details and circumstances
comprising the prior offenses are not admissible.” (People v.
David (1939) 12 Cal.2d 639, 646; see People v. Wagner (1975)
13 Cal.3d 612, 618; People v. Smith (1966) 63 Cal.2d 779, 790.)
In June 1982, the voters adopted Proposition 8, an
initiative that amended the California Constitution to effect
(among other things) criminal procedure reforms. (Ballot
Pamp., Primary Elec. (June 8, 1982) text of Prop. 8, p. 33.)
Proposition 8 added article I, former section 28, subdivision (d)
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Opinion of the Court by Liu, J.
(now § 28, subd. (f)(2) (§ 28(f)(2))), the “Truth-in-Evidence”
amendment, which provides in relevant part: “Except as
provided by statute hereafter enacted by a two-thirds vote of the
membership in each house of the Legislature, relevant evidence
shall not be excluded in any criminal proceeding, including
pretrial and post conviction motions and hearings, or in any trial
or hearing of a juvenile for a criminal offense, whether heard in
juvenile or adult court. Nothing in this section shall affect any
existing statutory rule of evidence relating to privilege or
hearsay, or Evidence Code Sections 352, 782 or 1103.”
“Proposition 8 applies only to prosecutions for crimes committed
on or after its effective date.” (People v. Smith (1983) 34 Cal.3d
251, 258.)
“By its plain terms, section 28[(f)(2)] requires the
admission in criminal cases of all ‘relevant’ proffered evidence
unless exclusion is allowed or required by an ‘existing statutory
rule of evidence relating to privilege or hearsay or Evidence
Code, [s]ections 352, 782 or 1103,’ or by new laws passed by two-
thirds of each house of the Legislature.” (People v.
Wheeler (1992) 4 Cal.4th 284, 292 (Wheeler), italics omitted.) We
have said it is “manifest” that the electorate intended to repeal
“both judicially created and statutory rules restricting
admission of relevant evidence in criminal cases . . . except
insofar as section 28[(f)(2)] expressly preserves them.” (People
v. Harris (1989) 47 Cal.3d 1047, 1081−1082; accord, In re
Freeman (2006) 38 Cal.4th 630, 640, fn. 5 [section 28(f)(2)
“ ‘supersedes all California restrictions on the admission of
relevant evidence except those preserved or permitted by the
express words of section 28[(f)(2)] itself’ ”].) We have also
observed that “section 28[(f)(2)] contains no . . . exception that
would preserve the exclusionary rule of Evidence Code
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PEOPLE v. DALTON
Opinion of the Court by Liu, J.
sections 786−790, when the evidence relates to a witness’s
conduct, but is offered to attack or support the credibility of the
witness.” (Harris, at p. 1081.)
Thus, section 28(f)(2) abrogates Evidence Code
section 787’s prohibition on admission of specific instances of
misconduct that are “relevant only as tending to prove a trait of
[a witness’s] character.” (Evid. Code, § 787.) Evidence of
circumstances underlying a conviction is admissible to impeach
credibility if the proponent demonstrates that the evidence has
“any tendency in reason” to disprove credibility. (Evid. Code,
§ 210; see ibid. [defining relevant evidence as “having any
tendency in reason to prove or disprove any disputed fact that is
of consequence to the determination of the action” including
“evidence relevant to the credibility of a witness”]; Evid. Code,
§ 780 [“the court or jury may consider in determining the
credibility of a witness any matter that has any tendency in
reason to prove or disprove the truthfulness of his [or her]
testimony at the hearing . . .”].) Trial courts retain discretion to
exclude such evidence under Evidence Code section 352 “if its
probative value is substantially outweighed by the probability
that its admission will . . . necessitate undue consumption of
time or . . . create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury.” We disapprove
of People v. Casares (2016) 62 Cal.4th 808, 830 (Casares)
[“Under California law, the right to cross-examine or impeach
the credibility of a witness concerning a felony conviction does
not extend to the facts underlying the offense.”]; People v.
Ardoin (2011) 196 Cal.App.4th 102, 120; People v.
Szadziewicz (2008) 161 Cal.App.4th 823, 842; People v.
Shea (1995) 39 Cal.App.4th 1257, 1267; People v. Santos (1994)
30 Cal.App.4th 169, 176−177; People v. Thomas (1988)
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Opinion of the Court by Liu, J.
206 Cal.App.3d 689, 700, fn. 6; and People v. Heckathorne (1988)
202 Cal.App.3d 458, 462, to the extent they are inconsistent
with our opinion.
Here, certain statements by the trial court suggest it may
have been unaware that it had discretion to admit the
circumstances underlying McNeely’s felony convictions. But
even assuming such an error, there is no reasonable probability
that a different outcome as to the conspiracy and murder counts
and the torture-murder special-circumstance allegation (the
matters to which McNeely’s testimony was arguably relevant)
would have resulted if the excluded line of questioning had been
presented. (Watson, supra, 46 Cal.2d at p. 837; see People v.
Prince (2007) 40 Cal.4th 1179, 1296−1297 (Prince).)
The defense theory was that McNeely had fabricated the
conversations to which he testified after surreptitiously
examining documents in Tompkins’s case, such as his
statements to others regarding his alleged involvement, copies
of his codefendants’ interviews, and press releases relating to
his case that were available to McNeely in the cell he shared
with Tompkins. According to Dalton, evidence that McNeely on
12 occasions had successfully impersonated an exterminator or
a drapery hanger in order to gain access to wealthy persons’
homes and steal their valuable property “suggest[ed] not only a
proclivity to lie, but also an ability to do so quite well.”
We do not agree that this evidence would have cast
McNeely’s credibility in a significantly different light. The jury
was aware that McNeely had suffered 12 California burglary
convictions and four Missouri felony convictions for burglary
and firearm theft, and McNeely testified he had committed
“probably a few more” burglaries. The specifics of McNeely’s
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Opinion of the Court by Liu, J.
burglaries might have illustrated more vividly his intelligence
and skill in deception, but would not have left the jury with a
materially different impression of his credibility. The mere
existence of these 16 felony convictions and additional
unadjudicated crimes cast doubt on McNeely’s veracity because
“ ‘it is undeniable that a witness’ moral depravity of any kind
has “some tendency in reason” [citation] to shake one’s
confidence in his honesty.’ ” (Wheeler, supra, 4 Cal.4th at
p. 295.) We have also recognized that the commission of
numerous crimes involving moral turpitude “may be more
probative of credibility than a single crime.” (People v. Clark
(2011) 52 Cal.4th 856, 932.) Moreover, McNeely agreed with
defense counsel that at one time he had been a “confirmed thief
and con man,” but believed prison had changed him “somewhat.”
He further conceded “[s]ome people” might describe him as a
“manipulator.”
In addition, when McNeely was asked if he had developed
“some sort of friendship or relationship” with Tompkins,
McNeely called him an “acquaintance” and said they shared not
“quite a friendship” but “kind of a bond.” McNeely agreed with
defense counsel that Tompkins “didn’t want to talk about his
case to other people” and apparently warned other inmates not
to discuss their cases. These circumstances tended to
undermine the probative value of McNeely’s testimony that
Tompkins had enthusiastically and repeatedly for three months
divulged to McNeely intimate details of his torture and murder
of May. As noted, the trial court instructed the jury that
McNeely was an “in-custody informant” and that his testimony
“should be viewed with caution and close scrutiny.”
Nor did McNeely’s testimony materially bear on the
charges of conspiracy and murder or on the torture-murder
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Opinion of the Court by Liu, J.
special-circumstance allegation. As to the charges of conspiracy
and murder, the comments by Tompkins that McNeely conveyed
did not refer to or implicate Dalton. Moreover, as to conspiracy,
although Tompkins referred to a “plan,” no details as to how or
when that plan was developed were provided by McNeely’s
testimony. As to murder, Dalton was connected to the crime by
evidence that she covered May in a sheet and bound her to a
chair and prepared four or five hypodermic needles of battery
acid for the purpose of killing her, told Laurie Carlyle that she
had been involved in May’s murder and that May had been
killed with battery acid, and told Patricia Collins that she had
killed May because May “was a rat” who “deserved to die” (ante,
pp. 9−10, 23−24).
As to the special circumstance allegation of torture
murder, we have said that torture is the infliction of “ ‘ “pain and
suffering in addition to death.” ’ ” (People v. Edwards (2013)
57 Cal.4th 658, 716 (Edwards).) “The torture-murder special-
circumstance allegation requires an ‘ “intent to cause cruel or
extreme pain and suffering for the purpose of revenge, extortion,
persuasion, or for any sadistic purpose.” ’ [Citation.] Unlike
torture murder, it also requires an intent to kill and, at the time
of [May’s] murder, required ‘proof of the infliction of extreme
physical pain no matter how long its duration’ on a living victim.
(Former § 190.2, subd. (a)(18), as added by Prop. 7, § 6,
approved by voters, Gen. Elec. (Nov. 7, 1978); [citations].) It
does not require a premeditated and deliberate intent to torture
[citation], a causal relationship between the torturous act and
death [citation], or proof the victim subjectively experienced
pain [citation]. ‘Distilled, the statutory language requires intent
to kill, intent to torture, and infliction of an extremely painful
act upon a living victim.’ ” (Edwards, at p. 718).
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PEOPLE v. DALTON
Opinion of the Court by Liu, J.
The statements by Tompkins that McNeely recounted did
not refer to Dalton, so they were not relevant to her intent to kill
or to her intent to cause cruel or extreme pain and suffering for
a sadistic purpose. Although the statements were relevant to
whether May had suffered the infliction of extreme physical
pain while alive, they were cumulative to other evidence of this
element. Dalton told Carlyle that May had been killed with
battery acid, and the prosecution expert testified that if battery
acid were injected into a person’s vein, it would be “much more
painful” than a Charley-horse. Baker testified that after Dalton
injected a syringe of battery acid into May’s leg, Dalton told
Baker that May was suffering. Baker further testified that she
(Baker) hit May on the head with a cast iron frying pan with
such force she broke the bottom of the pan. Tompkins stabbed
May twice to kill her and may have also hit her with a breaker
bar.
In addition, Fedor testified that the cord to her bedroom
chandelier had been cut and that part of the plastic protective
covering was melted, exposing the electrical wire, while the
other end was apparently still plugged into an outlet and several
extension cords had been either tied into shapes or together.
She also found a screwdriver with blood, hair, and scalp
material on it. The jury could reasonably infer based on Fedor’s
testimony that these objects were used in the attack on May.
Further, Baker testified that she saw a screwdriver but could
not recall what it was used for, and that she did not see an
extension cord with “bare” ends or see an extension cord used
against the person in the chair. From this testimony, the jury
could reasonably infer that the injuries from the cords and the
screwdriver were inflicted on May before Baker and Tompkins
returned home or at a time when May was alive. Finally, May
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Opinion of the Court by Liu, J.
was bound; although restraint of a victim is not dispositive, it is
one circumstance for the jury to consider in determining
whether a victim was tortured. (See People v. Elliot (2005)
37 Cal.4th 453, 468, fn. 4.) Thus, the statements by Tompkins
that McNeely recounted were cumulative to other evidence on
the issue of whether extreme physical pain was inflicted on May
while she was alive.
In sum, we conclude that any error in limiting McNeely’s
cross-examination was harmless as to the conspiracy and
murder charges and as to the torture-murder special-
circumstance allegation. (Watson, supra, 46 Cal.2d at p. 837.)
For the same reasons, we reject Dalton’s further claim that the
trial court’s limitation of McNeely’s cross-examination violated
her constitutional right to confrontation. “ ‘ “[A] criminal
defendant states a violation of the Confrontation Clause by
showing that he was prohibited from engaging in otherwise
appropriate cross-examination designed to show a prototypical
form of bias on the part of the witness, and thereby, ‘to expose
to the jury the facts from which jurors . . . could appropriately
draw inferences relating to the reliability of the witness.’ ”
[Citation.] However, not every restriction on a defendant’s
desired method of cross-examination is a constitutional
violation. Within the confines of the confrontation clause, the
trial court retains wide latitude in restricting cross-examination
that is repetitive, prejudicial, confusing of the issues, or of
marginal relevance. . . . Thus, unless the defendant can show
that the prohibited cross-examination would have produced ‘a
significantly different impression of [the witnesses’] credibility’
[citation], the trial court’s exercise of its discretion in this regard
does not violate the Sixth Amendment. [Citation.]’ ” (Linton,
supra, 56 Cal.4th at p. 1188.) Even assuming the trial court had
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Opinion of the Court by Liu, J.
exercised its discretion to allow impeachment of McNeely with
the circumstances underlying his 12 California burglary
convictions, no significantly different impression of his
credibility would have resulted here.
(c). Misdemeanor convictions
Dalton further contends the trial court abused its
discretion in precluding cross-examination as to evidence of the
circumstances surrounding McNeely’s misdemeanor
convictions. She does not delineate what those underlying
circumstances were or why they were important. Thus, even
assuming that the trial court erred in precluding cross-
examination as to these circumstances, Dalton fails to
demonstrate that such cross-examination “ ‘would have
produced “a significantly different impression of [the witness’s]
credibility.” ’ ” (People v. Dement (2011) 53 Cal.4th 1, 52
(Dement).)
d. Corpus delicti
Dalton asserts the prosecutor improperly relied on
Tompkins’s out-of-court statements to prove the corpus delicti of
the charged crimes because hearsay statements of an accomplice
cannot be used to prove corpus. We conclude that the corpus
delicti of murder and torture was established by Fedor’s
testimony.
In the memorandum in support of Dalton’s motion to
exclude “confessions prior to proof of the corpus delicti,” she
asserted that “the corpus must be proven independently and
without consideration to defendant’s or codefendant’s
extrajudicial statements.” She also asserted that “[p]roof of the
corpus delicti includes both proof of the alleged homicide, . . .
[and] also proof of the special circumstances.” The trial court
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instructed the jury: “No person may be convicted of a criminal
offense unless there is some proof of each element of the crime
independent of any admission made by her outside of this trial.”
“To convict an accused of a criminal offense, the
prosecution must prove that . . . a crime actually occurred.”
(People v. Alvarez (2002) 27 Cal.4th 1161, 1164.) “[T]he corpus
delicti or body of the crime . . . cannot be proved by exclusive
reliance on the defendant’s extrajudicial statements.” (Id.,
p. 1165.) “The independent proof may be circumstantial and
need not be beyond a reasonable doubt, but is sufficient if it
permits an inference of criminal conduct, even if a noncriminal
explanation is also plausible. [Citations.] There is no
requirement of independent evidence ‘of every physical act
constituting an element of an offense,’ so long as there is some
slight or prima facie showing of injury, loss, or harm by a
criminal agency. [Citation.] In every case, once the necessary
quantum of independent evidence is present, the defendant’s
extrajudicial statements may then be considered for their full
value to strengthen the case on all issues.” (Id., p. 1171.)
Tompkins’s out-of-court statements, which referenced no
other perpetrator, were relevant to the charge of murder and to
the torture-murder special-circumstance allegation, but not to
the charge of conspiracy to commit murder. The Attorney
General contends that the “corpus delicti rule does not apply to
special circumstances” because in 1990, two years after May was
murdered, the voters passed Proposition 115, which provided in
part that the “corpus delicti of a felony-based special
circumstance enumerated in paragraph (17) of subdivision (a) of
Section 190.2 need not be proved independently of a defendant’s
extrajudicial statement.” (§ 190.41, added by Prop. 115, as
approved by voters, Primary Elec. (June 5, 1990) § 11.) Dalton
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was charged with torture-murder under section 190.2,
subdivision (a)(18), not a special circumstance under
subdivision (a)(17), and we have in any event held that
section 190.41 cannot constitutionally be applied to crimes
“committed before the measure’s effective date.” (Tapia v.
Superior Court (1991) 53 Cal.3d 282, 297–298.)
We have also held that the corpus delicti requirement
applies to special circumstance findings that “require proof of
some crime other than the murder in question.” (People v.
Hamilton (1989) 48 Cal.3d 1142, 1175.) Here that crime —
torture under section 206 — was also enacted by Proposition 115
in 1990, and so was not a separate crime when May was
murdered, although the torture-murder special-circumstance
allegation required proof of similar elements. (§ 206, added by
Prop. 115, as approved by voters, Primary Elec. (June 5, 1990)
§ 13; see Edwards, supra, 57 Cal.4th at p. 718 [delineating the
elements of torture-murder at the time of May’s murder].)
Even assuming the prosecutor was required to satisfy the
corpus delicti requirement for both murder and the torture-
murder special-circumstance allegation, the Attorney General
correctly asserts that Fedor’s testimony did so. Fedor testified
that when she returned to the trailer on the afternoon of
June 26, 1988, Dalton and Baker were present, but May was
not. The trailer was in disarray, Baker was washing the kitchen
floor with shampoo, and clothes, sheets, towels, and blankets
Fedor had thrown on her bed were missing. When Fedor asked
Dalton where these items were, Dalton explained she had
accidentally cut herself, “got blood all over,” and the items were
taken to be washed. Fedor found a “dripping wet” bloody pillow
in the trash can outside of the trailer, and after Dalton
showered, Fedor noticed the soap bar was bloody. Fedor
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subsequently found a screwdriver with what appeared to be
blood, hair, and scalp material on it. She also discovered that
the cord to her bedroom chandelier had been cut and that part
of the plastic protective covering was melted, exposing the
electrical wire, and the other end was apparently still plugged
into an outlet. In addition, several extension cords had been
either tied into shapes or together. (See ante, pp. 14–16.)
Thus, unlike Jones v. Superior Court (1979) 96 Cal.App.3d
390, 397, on which Dalton relies (and without addressing the
validity of that case), the corpus delicti of the crimes charged
here was not established solely by Tompkins’s out-of-court
statements. Fedor’s testimony was prima facie evidence that
May had been killed that was independent of Tompkins’s and
Dalton’s statements. Fedor’s testimony also permitted an
inference — independent of these statements — that May had
been tortured.
Dalton further claims the trial court erred in failing to
instruct the jury that Tompkins’s statements were admissible
only to establish the corpus or that the crime occurred, and that
its failure to do so allowed the prosecutor to rely on Tompkins’s
statements “to establish Dalton’s guilt.” We reject the claim.
Dalton did not request such an instruction, and the trial court
had no duty to so instruct on its own motion. (Valdez, supra,
55 Cal.4th at p. 139.) To the extent Dalton asserts admission of
Tompkins’s statements violated her Sixth Amendment right to
confront the witnesses against her, we have concluded above
that Tompkins’s statements were not testimonial. (See ante,
pt. II.A.1.b.)
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e. Undue prejudice
Dalton contends McNeely’s testimony was unduly
prejudicial under Evidence Code section 352. Assuming the
claim is preserved, we reject it.
Although Dalton asserts the probative value of McNeely’s
testimony was “slight,” she also asserts that Tompkins’s
statements “should have been excluded because they were ‘so
[rife] with condemning facts against [her] that they [were]
devastating or crucial to [her] case.’ ” We rejected a
substantially similar argument in Valdez: “[T]he test for
prejudice under Evidence Code section 352 is not whether the
evidence in question undermines the defense or helps
demonstrate guilt, but is whether the evidence inflames the
jurors’ emotions, motivating them to use the information, not to
evaluate logically the point upon which it is relevant, but to
reward or punish the defense because of the jurors’ emotional
reaction.” (Valdez, supra, 55 Cal.4th at p. 145.) Here, Dalton
does not suggest how Tompkins’s statements, which did not
mention Dalton, prejudiced her in this manner.
2. Further cross-examination issues
Dalton contends that the trial court improperly limited
her cross-examination of prosecution witnesses Joanne Fedor,
Sheryl Baker, Kandy Koliwer, Fred Eckstein, Jeanette Bench,
Judy Brakewood, Patricia Collins, Phyllis Cross, Laurie Carlyle,
and Pamela Johnson, in violation of her rights to confrontation,
to present a defense, a fair trial, due process of law, and a
reliable determination of guilt and penalty. We conclude there
was no prejudicial error.
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a. Joanne Fedor
Dalton asserts the trial court erroneously precluded
Dalton from cross-examining Fedor regarding her pending
charges of grand theft and forgery, and from impeaching Fedor
with the conduct underlying her four misdemeanor convictions.
Before Fedor’s testimony, the trial court ruled that Dalton
could not impeach Fedor with the conduct underlying her
1982 misdemeanor convictions for forgery, petty theft, and
possession of a hypodermic needle because they were too remote
and would require an undue consumption of time, or with the
conduct underlying her 1983 misdemeanor battery conviction
because the crime did not involve moral turpitude. The court
subsequently ruled that defense counsel could not impeach
Fedor with her pending charges of grand theft and forgery,
stating, “[I]t’s obviously not usable for impeachment, since it’s
pending and she may be found not guilty.” The charges had been
filed in August 1994, and the preliminary hearing was
scheduled to be held 10 days after Fedor’s February 1995
testimony in Dalton’s case. The prosecutor said he had not
“interceded on her behalf in any way . . . to affect the charges,
her custody status, any disposition, anything whatsoever.”
Dalton contends that cross-examination on the pending
charges would have demonstrated Fedor had a motivation to lie
in her testimony. The Attorney General agrees that a witness
may be impeached with pending charges but appears to contend
that the trial court exercised its discretion in limiting the cross-
examination as to the pending charges. The record appears
otherwise.
Even assuming that the trial court erred in summarily
precluding cross-examination on the pending charges, however,
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Dalton fails to demonstrate that cross-examination as to these
charges “ ‘would have produced “a significantly different
impression of [the witness’s] credibility.” ’ ” (Dement, supra,
53 Cal.4th at p. 52.) Fedor was impeached by the circumstance
that Deputy Wilson examined her trailer immediately after
Dalton and the others left, yet he saw no blood or cut electrical
cords and was not shown items she testified were in or near the
trailer, such as the bloody bar of soap. Two subsequent forensic
searches that same year revealed no evidence of blood in the
trailer, and the heater and knife Fedor deemed suspicious tested
negative for the presence of blood. Fedor was further impeached
by her methamphetamine use generally and on the day of May’s
murder, by evidence she regularly supplied her 14-year-old
babysitter with methamphetamine, and by Deputy Wilson’s
description of her on the night of the murder as akin to
“somebody who was mentally ill.” Although Fedor testified that
Dalton had spent the night a “couple weeks” before June 26,
1988, she acknowledged she had previously told law
enforcement that on June 26, 1988, she had not seen Dalton
since 1981. Indeed, Fedor was deemed so lacking in credibility
by the prosecutor that he called numerous witnesses to, in his
words, “corroborate[]” her testimony. For these same reasons,
Dalton fails to demonstrate the trial court abused its discretion
in denying impeachment of Fedor concerning the circumstances
underlying her misdemeanor convictions.
b. Sheryl Baker
Dalton asserts the trial court erroneously precluded
Dalton from cross-examining Baker regarding a prior juvenile
adjudication and certain prior convictions. We reject the claim.
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The trial court precluded cross-examination of Baker with
(1) the true finding in her 1980 juvenile adjudication for forgery
because it was not a serious or violent offense, (2) the conduct
underlying her 1983 misdemeanor conviction of receipt of stolen
property, 1984 misdemeanor conviction for weapon possession,
and 1986 or 1988 misdemeanor theft conviction because they
were too remote and their probative weight was outweighed by
the consumption of time, (3) her 1990 misdemeanor conviction
for possession of a controlled substance because it was not a
crime of moral turpitude, (4) her 1986, 1988, and 1989
misdemeanor convictions respectively for loitering, false
representation to a police officer, and possession of hypodermic
needles because they were not crimes of moral turpitude and
because their probative weight was outweighed by the
consumption of time, and (5) her 1989 misdemeanor conviction
for receipt of stolen property because the court had admitted her
1987 felony conviction for receipt of stolen property and hence
the misdemeanor conviction had little probative value and
would consume undue time.
At trial, Baker testified she had suffered a 1987 felony
conviction for grand theft auto. Moreover, Baker was impeached
by her admitted role in May’s murder and the favorable terms
of her second-degree murder guilty plea. She was further
impeached by the fact that she would not be sentenced until
after her testimony in Dalton’s case, by her failure to inform law
enforcement about the murder for nearly four years and then
only after she learned she had been apparently caught on tape
describing the murder to a friend, and by her testimony that she
used a significant amount of methamphetamine during the time
she observed the events to which she testified. Her cross-
examination consumes more than 40 pages of the reporter’s
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transcript. Dalton fails to demonstrate that cross-examination
as to the prior convictions and juvenile adjudication “ ‘would
have produced “a significantly different impression of [the
witness’s] credibility.” ’ ” (Dement, supra, 53 Cal.4th at p. 52.)
“Moreover, ‘[a]s a general matter, the ordinary rules of
evidence do not impermissibly infringe on the accused’s right to
present a defense.’ ” (Dement, supra, 53 Cal.4th at p. 52.)
Dalton was “given considerable leeway to challenge [Baker’s]
veracity and suggest [her] motivation to lie. [Dalton] was not
precluded from attempting to demonstrate that [Baker] was not
worthy of belief; [s]he was merely precluded from proving it with
time-consuming and remote evidence that was not obviously
probative on the question.” (Ibid.)
c. Patricia Collins
Dalton contends the trial court erred by precluding Dalton
from cross-examining Patricia Collins regarding her prior
convictions and limiting cross-examination regarding her role as
an informant. We reject the claim.
The trial court precluded cross-examination regarding
Collins’s 1987 and 1988 convictions for possession of a controlled
substance because they were not crimes of moral turpitude and
the 1987 offense was too remote. It also excluded her
1990 conviction for firearm possession because it was not an
offense involving moral turpitude. The trial court instructed the
jury that Collins was an “in-custody informant” and that her
testimony “should be viewed with caution and close scrutiny.”
At trial, Collins was impeached by her 1986 felony
conviction for conspiracy to manufacture methamphetamine.
She was also impeached by the fact that, in part to avoid being
blamed for May’s murder, she had agreed to cooperate with law
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enforcement. In November 1988, Collins engaged in secretly
taped telephone conversations with Baker, and Collins was
released from jail 15 days early as a benefit for this cooperation.
Collins was further impeached by her methamphetamine use
from 1988 to 1991 and her use of numerous aliases. Dalton fails
to demonstrate that cross-examination as to the circumstances
underlying her convictions “ ‘would have produced “a
significantly different impression of [the witness’s]
credibility.” ’ ” (Dement, supra, 53 Cal.4th at p. 52.)
Dalton further contends the trial court “improperly
restricted cross-examination of Collins regarding her possible
prior work as an informant in other cases, including work
with . . . [Police Officer] Lusardi, with whom she worked in this
case and for whom she tape-recorded telephone conversations
with Sheryl Baker.” The claim is not further elaborated, and to
support this assertion, Dalton simply cites to two pages of the
record. On the first page, defense counsel asked Collins on
cross-examination, “Miss Collins, before this date when you
made a phone call for Mr. Lusardi, you had a prior relationship
with him, is that correct?” The prosecutor’s objection on the
grounds of relevance, beyond the scope, and Evidence Code
section 352, was sustained. Defense counsel then asked, “Well,
you had worked with Mr. Lusardi before on cases; is that
correct?” Collins replied, “No.” Dalton does not explain in what
way she believes the cross-examination was curtailed.
On the second cited page, defense counsel asked,
“Miss Collins, you had an interview[] with a Detective
Wisniewski, Mr. Lusardi, and Mr. Samms; isn’t that correct?”
Collins replied, “I don’t recognize the names.” Counsel asked,
“[O]n March 15, 1989; isn’t that correct? Three law enforcement
officers up there?” Collins again replied, “I don’t recognize the
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names.” Counsel asked, “And if Detective Wisniewski indicated
that you were an informant for the Metropolitan Homicide Task
Force, would that be a truth or lie?” The prosecutor successfully
objected that the question misstated the evidence and that it
addressed a time period after Collins “did the phone calls.”
Defense counsel then asked, “Miss Collins, do you consider
yourself an informant?” She replied, “No.” Counsel asked, “You
gave information while you were in jail; is that correct?” Collins
replied, “Yes.” Defense counsel then said, “Nothing further,”
and the witness was excused. Again, it is not clear in what way
Dalton believes the cross-examination was improperly
restricted.
d. Kandy Koliwer
Kandy Koliwer had been appointed to represent May in
June 1987 after May and Bobby’s three children were removed
from the couple’s home. On cross-examination at trial, defense
counsel asked Koliwer, “You were certainly aware that . . . May
did have a methamphetamine drug problem, weren’t you.” The
trial court sustained the prosecutor’s objection on the grounds of
relevance and lack of personal knowledge. Defense counsel then
said, “I have no further questions.”
Dalton contends the trial court erroneously sustained the
prosecutor’s objection because Koliwer had testified about May’s
devotion to her children and, in Dalton’s view, believed that
“regular drug use was not an issue in the case she was handling
for May.” Dalton contends Koliwer’s “knowledge, or lack of
knowledge, regarding May’s drug use would certainly relate to
her credibility and reliability as a witness about May.”
But Koliwer testified on cross-examination that a
condition of May’s getting her children back in 1987 was that
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she remain drug-free. She further testified that according to
allegations in the petition filed in court by the Department of
Social Services, May’s children were again removed in June
1988 — the month May disappeared — from her home in part
because May had been arrested for possession of a controlled
substance and had been away from the home for three days
before the social worker’s visit. Furthermore, Koliwer testified
that May’s children were improperly supervised and that drug-
related activities appeared to be occurring at the home. Dalton
fails to demonstrate that cross-examination as to Koliwer’s
personal knowledge of May’s drug use “ ‘would have produced “a
significantly different impression of [the witness’s]
credibility.” ’ ” (Dement, supra, 53 Cal.4th at p. 52.)
e. Fred Eckstein
On cross-examination of Fred Eckstein, defense counsel
asked, “[W]ere your parents using methamphetamine?” The
trial court sustained the prosecutor’s objection on the grounds of
relevance and speculation. Dalton contends this ruling was
erroneous because Fred’s mother, Kathy Eckstein, had testified
about seeing small spots of dried blood, a soap bar with teeth
marks, and a knotted extension cord in Fedor’s trailer, and
hence Fred’s “observations of his mother’s use of
methamphetamine around the time of her alleged observations
would have been important impeaching evidence of Kathy’s
credibility and powers of observation.” No error appears. Kathy
Eckstein testified that she was using methamphetamine during
this period, but not on a regular basis. Kathy’s reliability as a
witness was further diminished by the circumstance that she
did not call law enforcement to report seeing blood in Fedor’s
trailer. Her reliability was also called into question by her
confusion about some basic facts: she was not sure of the year
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or month these events occurred, believed it started to get dark
in June at about 5:00 p.m., and noted that at the time of her
testimony in February it got dark “later around 6:30” p.m.
Dalton fails to demonstrate that cross-examination as to Fred’s
knowledge of his mother’s drug use “ ‘would have produced “a
significantly different impression of [his mother’s]
credibility.” ’ ” (Dement, supra, 53 Cal.4th at p. 52.)
f. Judy Brakewood
Dalton asserts that the trial court precluded cross-
examination regarding Brakewood’s 1989 concealed weapon
possession conviction because it was not a crime of moral
turpitude. Dalton makes no effort to explain why this was
erroneous. Moreover, Brakewood was impeached by the fact
that at the time of the events to which she testified, she had been
a methamphetamine dealer and was injecting three-quarters of
a gram to one gram of methamphetamine a day. She was
further impeached by her failure to come forward about the 1988
conversation until she read a 1992 newspaper article that
recounted Investigator Cooksey’s testimony, apparently at the
preliminary hearing, that “ ‘May was then injected with a hot
shot of battery acid’ ” and that Tompkins said he “ ‘took May’s
body to an Indian reservation.’ ”
Dalton further asserts without elaboration that
“[a]lthough counsel attempted to question [Brakewood] about
her sales of methamphetamine, the court cut [counsel] off.” She
cites two record pages, only one of which contains an objection.
On this page, Brakewood testified that she started selling
methamphetamine in 1987 and was selling this drug in 1988.
When defense counsel asked Brakewood how often she sold
methamphetamine, the trial court sustained the prosecutor’s
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objection under Evidence Code section 352. Dalton makes no
effort to explain how the frequency with which Brakewood sold
methamphetamine “ ‘would have produced “a significantly
different impression of [the witness’s] credibility.” ’ ” (Dement,
supra, 53 Cal.4th at p. 52.)
g. Bench, Cross, Carlyle, and Johnson
As to Jeanette Bench, Phyllis Cross, Laurie Carlyle, and
Pamela Johnson, Dalton simply lists the prior convictions on
which she sought to cross-examine the witnesses and notes the
trial court’s reasons for precluding admission of each one. She
makes no effort to demonstrate that the trial court’s rulings
regarding each of these prior convictions was an abuse of
discretion. Rather, she broadly asserts: “The court’s rulings
unduly restricted [Dalton’s] right to cross-examine witnesses,
violating her rights to confrontation and cross-examination, to a
fair trial, to due process of law, to present a defense, and to a
reliable determination of both guilt and penalty. [Citations.]
The perceived volume, breadth and recidivist nature of the
witnesses’ prior convictions and conduct was severely and
qualitatively diminished by the court’s rulings. There is a
reasonable probability that the suppressed impeachment
evidence would have affected the jurors’ assessment of each
individual witness’s credibility, which would have diminished
the strength of the prosecution’s case in general. The
suppression of the impeachment evidence was prejudicial, and
this Court must reverse the convictions, special circumstance
findings and death judgment.” Such general allegations fail to
demonstrate that “the ‘cross-examination would have produced
“a significantly different impression of [the witness’s]
credibility.” ’ ” (Dement, supra, 53 Cal.4th at p. 52.)
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h. Cumulative prejudice
Dalton asserts that even if any individual error in
restricting cross-examination of these witnesses was not
prejudicial, the errors were prejudicial as cumulated. We have
assumed error, but concluded there was no prejudice, in the
restriction of McNeely’s and Fedor’s cross-examination. Nor do
we conclude these assumed errors were cumulatively
prejudicial.
3. Nottoli statements
Dalton contends the trial court erred in admitting Judy
Brakewood’s testimony regarding Steven Nottoli’s statements
because they did not qualify as an adoptive admission, were
irrelevant, and were unduly prejudicial. (Evid. Code, § 1221.)
We conclude there was no error.
a. Factual background
Before Brakewood testified, Dalton unsuccessfully
objected to the testimony on the ground that it was irrelevant
because Brakewood was not certain whether the conversation
occurred in the spring of 1987 or 1988, and that it was unduly
prejudicial under Evidence Code section 352. In response, the
prosecutor said that the conversation occurred after the alleged
murder and that Brakewood would testify Dalton was “excited
about the murder, about having taken the body . . . to an Indian
reservation; that battery acid was used and it was fun torturing
the victim.”
Brakewood’s actual testimony diverged from the
prosecutor’s representation. Brakewood testified that in 1988,
she was living in El Cajon and knew Dalton. In 1992, she had
read a newspaper article about a case that caused her to recall
a conversation she had previously had with Dalton.
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Brakewood testified that after receiving a call from
Nottoli, also known as “Streaker,” she brought drugs to a green
van parked at a 7-Eleven store in Spring Valley. The van was
older, and the doors opened but did not slide. In the van were
two persons: Nottoli and a woman Brakewood did not recognize.
Nottoli was in the driver’s seat, and Brakewood and the
unidentified woman were sitting on the floor of the van because
there was no back seat. Dalton was “not in the van at this time”
because she was speaking on a telephone. Brakewood was
“making it up,” meaning preparing the drugs for use.
The prosecutor asked, “While Kerry Dalton was gone, did
you have a conversation?” Brakewood replied, “Yes, I did.” After
establishing that Dalton eventually returned to the van, the
prosecutor then asked, “[W]here did [Dalton] go in the van?”
Brakewood replied, “She went into the passenger seat,” and
confirmed that Brakewood was near Dalton and could hear her
when she spoke in the van. The prosecutor asked, “What did
she say?” Brakewood replied, “She came in on the . . . tail end
of a conversation; and she said, ‘Yep, we really fucked that girl
up.’ ” Brakewood described Dalton as “[e]xuberant, excited,
happy,” but said Dalton did not provide any details about what
she meant.
The prosecutor then asked, “Was [Dalton] there when
Mr. Nottoli said anything about what . . . really fucked her up,
then?” Brakewood replied, “I don’t think that she was in there
at the time.” The prosecutor asked, “When the two of them were
still there, was anything else said about the girl?” Brakewood
replied that while she was preparing the drugs, Nottoli “was
mentioning to me how . . . they had —” Defense counsel objected
on the ground of hearsay. The trial court overruled the
objection, stating, “It’s foundational.” Brakewood said,
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“[Nottoli] had told me how that — that they had shot up this girl
with battery acid and — and burned her.” Brakewood did not
recount any explanation by Nottoli of who “they” were. Defense
counsel objected, stating: “Your honor, I ask that it be stricken.
It’s hearsay. It’s not foundational.” The trial court said, “Let
me hear the next question first.” The prosecutor asked
Brakewood, “Did Miss Dalton acknowledge or say anything
about that conversation?” Brakewood replied, “And directly
after that, ‘Yeah, we really fucked that girl up.’ ” The trial court
then overruled the hearsay objection. When the prosecutor
subsequently asked whether Dalton was present when Nottoli
described the location of the body, Brakewood replied, “I don’t
believe so.”
On cross-examination, Brakewood testified that she
received Nottoli’s call late at night in the spring of 1988. While
Brakewood was with Nottoli in the green van, Dalton was
speaking on a telephone (presumably a pay phone) that was
located about 10 to 15 feet away from the van. Brakewood did
not recall whether the van windows were open. While Dalton
was away and on the phone, Brakewood and Nottoli had a
conversation in which he mentioned battery acid and an Indian
reservation. Dalton came in on the tail end of the conversation
and said, “ ‘We really fucked that girl up.’ ” Dalton provided no
details, and Brakewood did not know who they were talking
about or when the girl had been “fucked . . . up.”
Brakewood identified the 1992 newspaper article she had
read. The article mentioned Dalton, Tompkins, and Baker, and
recounted Investigator’s Cooksey’s testimony (apparently at the
preliminary hearing) that “ ‘May was then injected with a hot
shot of battery acid,’ ” and that Tompkins said he “ ‘took May’s
body to an Indian reservation.’ ”
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Brakewood and Nottoli met in the summer of 1987 and
had dated until the end of that year. In 1988, Brakewood was a
drug dealer who injected three-quarters of a gram to one gram
of methamphetamine a day.
On redirect, the prosecutor established that Brakewood’s
conversation with Nottoli had occurred in May or June of 1988.
At that time, her drug use did not prevent her from satisfying
her responsibilities in managing an attorney’s office.
No evidence was introduced at trial linking Nottoli to
May’s disappearance or murder. Nottoli was called by the
defense and denied making the statements, denied hearing
Dalton say, “Yep, we really fucked that girl up,” denied ever
driving a green van, and denied ever being in a white van (the
color van Nottoli possessed in February 1988) with Brakewood
and Dalton. Nottoli and Brakewood had been friends but had a
falling out in December 1987 after traveling to Boston together,
and Nottoli had not seen her since that time. Nottoli and Dalton
were friends and had been physically intimate, but Nottoli had
not seen her since 1988. Nottoli had suffered prior felony
convictions for grand theft auto, burglary, robbery, forgery, and
receiving stolen property. He became addicted to drugs while
serving in Vietnam, and in the late 1980’s he used
methamphetamine.
In closing argument, the prosecutor said: “Nottoli is
talking about the battery acid and burns” and “the defendant
says, ‘Yeah, we really fucked up that woman. We really got
her.’ ” The prosecutor also said: “Did [the torture] happen? Yes
it did. . . . Judy Brakewood told you how giddy [Dalton] was
when the discussion came up in that . . . van out in Spring
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Valley; happy, excited, exuberant. ‘Yeah, we really fucked up
that bitch.’ She was proud of it.”
b. Analysis
Evidence Code section 1221 provides: “Evidence of a
statement offered against a party is not made inadmissible by
the hearsay rule if the statement is one of which the party, with
knowledge of the content thereof, has by words or other conduct
manifested his adoption or his belief in its truth.” “In
determining whether a statement is admissible as
an adoptive admission, a trial court must first decide whether
there is evidence sufficient to sustain a finding that: (a) the
defendant heard and understood the statement under
circumstances that normally would call for a response; and
(b) by words or conduct, the defendant adopted the statement as
true.” (People v. Davis (2005) 36 Cal.4th 510, 535; Evid. Code,
§§ 403, 1221.) If so, the jury then determines whether these
preliminary facts actually occurred. (See Assem. Com. on
Judiciary com., 29B pt. 1B West’s Ann. Evid. Code (2011 ed.)
foll. § 403, p. 18 [“the jury must finally decide whether the
preliminary fact exists”].)
As an initial matter, we conclude that Dalton’s statement
on its own, “ ‘Yep, we really fucked that girl up,’ ” and her
accompanying exuberance were admissible as a party statement
under Evidence Code section 1220. We further conclude that
this statement by Dalton manifested her adoption of Nottoli’s
inculpatory statements.
Although the record fails to precisely reflect what the “tail
end” of the conversation was, that is, what portion of the
conversation Dalton heard, her statement upon entering the van
demonstrated awareness of the topic of conversation and, in
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particular, Nottoli’s statement that the victim had been burned
and injected with battery acid. Brakewood testified, “[Nottoli]
had told me . . . that they had shot up this girl with battery
acid . . . and burned her.” Defense counsel objected, and the
court said it would “hear the next question first” apparently
before ruling. The prosecutor asked, “Did [Dalton] acknowledge
or say anything about that conversation?” Brakewood replied,
“And directly after that, ‘Yeah, we really fucked that girl up.’ ”
The jury could reasonably infer that Brakewood used the
phrase “[a]nd directly after that” in reference to Nottoli’s
statement that “they” had injected a girl with battery acid and
burned her. This evidence is sufficient to “sustain a finding that:
(a) the defendant heard and understood the statement under
circumstances that normally would call for a response; and
(b) by words or conduct, the defendant adopted the statement as
true.” (People v. Davis, supra, 36 Cal.4th at p. 535; Evid. Code,
§§ 403, 1221.) We therefore conclude the court acted within its
discretion in implicitly admitting Nottoli’s statements as
Dalton’s adoptive admission, and their weight was for the jury
to decide in light of all the other evidence, including Nottoli’s
denial the conversation ever occurred.
Dalton further contends that Brakewood’s testimony was
irrelevant and unduly prejudicial under Evidence Code
section 352. At the time the trial court ruled, that is, before
Brakewood’s testimony, the evidence was relevant to the
torture-murder special-circumstance allegation given Baker’s
testimony that Dalton had injected the victim with battery acid.
Although Brakewood may have been uncertain of the date of her
conversation with Nottoli before her testimony, this uncertainty
went to the weight and not the admissibility of the evidence.
(People v. Merriman (2014) 60 Cal.4th 1, 57 (Merriman) [“the
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reliability of a witness’s testimony is a matter for the jury to
decide and therefore concerns the weight of the evidence, and
not its admissibility”].) Likewise, the circumstance that
Dalton’s statement “ ‘Yep, we really fucked that girl up’ ” could
have “meant many and various things” does not render it
irrelevant given one possible meaning was as a reference to
May’s murder. (See People v. Lewis (2008) 43 Cal.4th 415, 502
(Lewis) [rejecting argument that the amplifier found in the
defendant’s car should not have been admitted because a
witness testified only that it resembled the relevant amplifier,
“ ‘[m]illions of other amplifiers could also have looked like the
amplifier[] in question,’ ” and the prosecutor failed to compare
brand name, serial numbers, and wattage].)
Nor was the probative value of the evidence of
Brakewood’s testimony substantially outweighed by the
probability that its admission would “create substantial danger
of undue prejudice, of confusing the issues, or of misleading the
jury.” (Evid. Code, § 352.) The jury was required to decide if
May had been tortured, and the court’s ruling was within its
discretion at the time it was made.
4. State of mind evidence
Dalton contends that the trial court erred when it
permitted Nina Tucker to offer a lay opinion of May’s state of
mind based on hearsay. There was no error.
a. Factual background
As explained, Nina Tucker testified that in December
1987, she was the San Diego County Child Protective Services
worker assigned to the May family. (See ante, pp. 26−27.) At
that time, May and Bobby had custody of their three minor
children under a reunification plan. Ma
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