People v. Homick

Filed 12/3/12

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S044592

v. )

)

STEVEN HOMICK, )

) Los Angeles County

Defendant and Appellant. ) Super. Ct. No. A973541

____________________________________)

Defendant Steven Homick was convicted by a jury of one count of

conspiracy to commit murder (Pen. Code, §§ 182, 187)1 and two counts of first

degree murder (§ 187), as to which the jury found true financial-gain, multiple-

murder, and lying-in-wait special-circumstance allegations (§ 190.2, subd. (a)(1),

(3), (15)).2 Following the penalty phase trial, the jury returned death verdicts on

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

2 Six individuals were arrested for the murders of Vera and Gerald

Woodman: defendant; his brother, Robert Homick; the victims‟ sons, Neil

Woodman and Stewart Woodman; Anthony Majoy; and Michael Dominguez.

Dominguez pleaded guilty to two counts of first degree murder. Stewart

Woodman and Anthony Majoy were tried together and then defendant, Robert

Homick, and Neil Woodman were tried together. Stewart Woodman and Anthony

Majoy were convicted of two counts of first degree murder with special

circumstances and conspiracy. Stewart Woodman agreed to testify against the

remaining defendants in exchange for avoiding the death penalty. Majoy was

sentenced to life without the possibility of parole. Robert Homick was convicted

of two counts of murder, the multiple-murder special circumstance was found true,

(footnote continued on next page)

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the murder counts. Defendant‟s motions for a new trial and for a reduction of

sentence (§ 190.4, subd. (e)) were denied. The trial court sentenced him to death

on the murder counts and 25 years to life on the conspiracy count, which it stayed

pursuant to section 654.

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

subd. (b).) We affirm.

FACTS

I. GUILT PHASE

A. The Prosecution Case

1. The Woodman family and Manchester Products

In 1975, Gerald Woodman founded Manchester Products, which made

plastic panels used in ceiling lighting. He ran the company, but ownership was

divided among his two older sons, Neil and Stewart, each of whom had a 25

percent interest, and his wife, Vera, who held the remaining 50 percent interest.3

Neil worked in production, and Stewart worked in sales. Initially, Stewart had a

good relationship with Gerald, but Gerald and Neil‟s relationship was always

acrimonious.

When the youngest son, Wayne, joined the company in 1978 after

graduating from college, he was given half of Vera‟s ownership interest and a job

overseeing accounts and credit. Neil and Stewart resented the manner in which

Wayne was brought into the company. That Gerald favored Wayne over his

(footnote continued from previous page)

and he was sentenced to life without the possibility of parole. The jury was unable

to reach a verdict as to Neil Woodman, and a mistrial was declared.

3 To avoid confusion, the Woodmans are referred to by their first names.

2

brothers increased familial tension. In late 1978, Gerald suffered a serious heart

attack. While he was recuperating, Neil and Stewart ran the company, to their

father‟s displeasure. Stewart testified that Gerald created problems at the

company to force his sons to seek his help.

In April 1981, Stewart sought his mother‟s reassurance that she would

support him and Neil in any conflict with Gerald. Vera said she would. A few

months later, however, Vera told Stewart there was to be a meeting of the board of

directors. She said Gerald had decided that Stewart would go back on the road as

a salesman, Neil would be sent back to the factory floor, and Wayne and Gerald

would run the company. She said if Stewart did not agree to Gerald‟s plan, Gerald

would liquidate the business. Stewart felt betrayed by his mother.

Preemptively, Neil and Stewart issued extra shares of stock to give

themselves a controlling interest in the company and then fired Gerald and Wayne.

The brothers tried to buy Vera‟s and Wayne‟s interests in the company for $2.2

million to be paid over time, but the offer was rejected. A lawsuit ensued that

resulted in a judgment of $675,000 to be paid by the brothers to Vera and Wayne.

Neil and Stewart borrowed the money to pay the judgment owing.

The brothers also became involved in a bitter dispute involving a $500,000

life insurance policy Manchester Products had taken out on Vera to protect the

interests of the family‟s two daughters. Vera communicated through her sister,

Muriel Jackson, that she wanted the policy cancelled. When Jackson demanded

they cancel the policy, the brothers refused. Neil said, “Look at the odds,” and

laughed.

After taking over the company, the brothers freely expressed their anger

toward and hatred of their parents. Stewart testified that they would make these

comments “on a daily basis” to “anybody that would listen.” Former employees

and business associates of the brothers confirmed that the brothers constantly

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made derogatory remarks about their parents. These included wishing their parents

were dead.

Between 1981 and 1985, Manchester Products‟s financial condition

deteriorated. Servicing the loan from Union Bank to pay the judgment owed to

Vera and Wayne was one factor. Another factor was the purchase of a new plant.

The brothers were also forced to compete against a rival company,

Woodman Industries, set up by Gerald and Wayne. The ensuing price war

reduced Manchester Products‟s earnings. Eventually, Woodman Industries went

bankrupt, as did both Gerald and Wayne, and each of them lost their residences as

a result. Neil and Stewart expressed satisfaction at having driven their parents into

bankruptcy.

In response to Manchester Products‟s poor financial picture, the brothers

engaged in an elaborate scheme to misrepresent the value of their accounts

receivable to Union Bank, which financed the company‟s operations with a credit

line secured by those accounts. Neil and Stewart instructed the company‟s

controller, Steven Strawn, to manipulate the accounts receivable to make it appear

that some past due invoices were still current, preventing them from being

excluded from the collateral that secured the credit line. Union Bank discovered

the ploy and audited the company‟s accounts receivable statements. Its auditors

discovered $1.7 million in ineligible collateral.

2. Neil and Stewart turn to defendant, their longtime acquaintance,

to kill Vera and Gerald

Neil and Stewart met defendant around 1980 in Las Vegas through a

mutual friend, Joey Gambino. Stewart was an inveterate gambler who bet on

“everything there was to gamble on,” including football games. Defendant told

Stewart that his brother, Robert Homick, who lived in Los Angeles, also bet on

football games. He asked for Stewart‟s phone number to pass along to his brother.

4

Robert Homick and Stewart struck up a friendship based on their shared love of

gambling. Robert Homick was a frequent visitor to Manchester Products.

Defendant, who lived in Las Vegas, was also a regular visitor to the company and

became friends with Neil.

Between 1980 and 1985, Neil and Stewart employed defendant and Robert

Homick in various capacities. According to Richard Wilson, the company‟s one-

time national sales manager, the brothers hired defendant to sweep the plant for a

bugging device they feared Gerald had installed. In the summer of 1984, Neil

hired defendant, as well as two former Los Angeles police officers, Jean Scherrer

and John O‟Grady, to act as security at his son‟s bar mitzvah, specifically to keep

Gerald and Vera out.4 According to Scherrer, defendant said that if Gerald and

Vera appeared, “If necessary, I will waste them.”5 In May 1985, defendant

enlisted Scherrer to plant a listening device in the office at Manchester Products

where the Union Bank auditors would be conducting their audit. Scherrer testified

the work was done when the plant was empty; defendant had keys with which they

entered the building.

Stewart used Robert Homick to commit insurance fraud on two occasions.

Both times, he had Robert Homick take a vehicle—the first time, a Monte Carlo

belonging to Manchester Products, and the second time, Stewart‟s personal Rolls

Royce—which Stewart then reported as stolen to collect the insurance money.

Stewart also used Robert Homick to do collections for Manchester Products,

4 Defendant himself had briefly been with the Los Angeles Police

Department in the 1960‟s.

5 Scherrer received a $25,000 reward offered for information relating to

Vera‟s and Gerald‟s murders. O‟Grady was deceased at the time of defendant‟s

trial.

5

including from a company called Soft Lite. The daughter of Soft Lite‟s owner

testified that Robert Homick had threatened to “ break [the owner‟s] legs, or snuff

out his life” unless he paid what he owed to Manchester Products.

Stewart testified that in the summer of 1983, while Joey Gambino was

staying at Stewart‟s house, Gambino heard Stewart “screaming” and “yelling” at

his parents. Gambino told him, “Stewart, you are going to kill yourself. Why

don‟t you let me handle this, and we will put an end to it.” Gambino put Stewart

in touch with defendant, and the two of them, together with Neil, met at

Manchester Products. Defendant told Stewart, “Joey told me there were a lot of

problems going on with your mother and father. . . . You are crazy to go through

it. You are not well. [¶] . . . Let‟s put an end to it.”6 Defendant told the brothers

he would be returning to Los Angeles in a couple of weeks and suggested they

“think about it” and meet again.

The second meeting took place in the first part of November 1983. At that

meeting, the brothers told defendant they had decided to go through with killing

their parents and asked him what information he would need. Defendant wanted

information about Gerald‟s and Vera‟s “traits,” including when they were

together, when they were apart, where they went, and where they got together with

other people. Stewart and Neil provided defendant with such information as

Gerald‟s habit of walking the dog every night, and events like birthdays and

Jewish holidays when their parents got together with the rest of the family.

Stewart also provided defendant with his brother Wayne‟s address where, at the

time, Gerald and Vera were also living. Defendant told them that killing their

6 Stewart suffered from high blood pressure and a heart problem, and had

had a stroke in January 1981. He had spoken to defendant about his health issues.

6

parents would cost $40,000 or $50,000.7 After the second meeting, Neil told

Stewart that Vera as well as Gerald would have to be killed. He said if it was just

their father, they would be suspected of it but, because Stewart had been close to

his mother, if she were also killed the authorities “would never believe” Stewart

was involved. Stewart agreed.

3. Actions taken between April 1984 and June 1985 in

furtherance of the conspiracy

Defendant habitually made notes in a series of “daily reminder” books.

Police seized a number of these books for 1984 and 1985 when they searched his

Las Vegas residence. Defendant stipulated at trial that the books were his, as was

the writing in them. Defendant‟s notes were typically somewhat cryptic,

consistent with testimony that he used codes and jargon.8 However, a note on

April 29, 1984, included Wayne Woodman‟s street address, “2311 Roscomare

Road, number 8.” Wayne‟s parents were living with him at the time. Entries for

May 3, June 4, July 1, August 4, August 5, October 1, November 1, and

December 2, 1984, contained Wayne‟s building and unit numbers—“2311” and

“8.”

In late December 1984 or early January 1985, Wayne moved from

Roscomare Road to 8420 Blackburn Avenue. Gerald and Vera moved to an

apartment at 11939 Gorham Avenue. An entry in defendant‟s daily reminder for

January 23, 1985, had Wayne‟s name and the notation “gas on.” An entry for

7 Stewart and Neil ultimately paid defendant $50,000 to kill their parents.

8 Art Wilson, a longtime associate of defendant, testified that defendant gave

people nicknames and also used codes. Joey Gambino, who testified for the

defense, said defendant was “always speaking in jargon,” and Gambino did not

always know what defendant was saying.

7

February 12, 1985, had Wayne‟s name and the Blackburn Avenue address. An

entry for February 22, 1985, noted Gerald and Vera‟s new address on Gorham

Avenue.

Entries for August 5, September 4, October 1, November 1, and

December 12, 1984, contained the notes “Ed,” “Ed Bern,” “grape” and “Dino.”

These references were deciphered for the jury through the testimony of several

witnesses. Wayne Woodman testified that his father habitually carried a comb in

his shirt pocket and identified a photograph of his father doing so. Leith Adams,

an archivist at Warner Brothers studios, testified that in the 1950‟s television

series 77 Sunset Strip, an actor named Edd Byrnes played a character called

“Kookie,” whose trademark was that he always combed his hair with a comb he

kept in the left breast pocket of his jacket. Adams testified that the character‟s

actual first name was “Gerald,” and “Dino” was the name of a restaurant on the

television series.

As for the “grape” reference, the prosecution called one-time restaurateur

Francis O‟Brien, who in 1984 owned a restaurant in Los Angeles that served

Greek food. O‟Brien testified that defendant was a patron and had a particular

fondness for the restaurant‟s stuffed grape leaves. An entry in defendant‟s daily

reminder for September 24, 1985—the day before the murders—contained the

words “Fran O” and what appeared to O‟Brien to have been the phone number of

his restaurant.

An entry in defendant‟s daily reminder for February 24, 1985, contained

references to a real estate agent named Sharon Armitage, who had an exclusive

listing at 11939 Gorham Avenue, Gerald and Vera‟s building. Defendant told his

confederate Michael Dominguez that he had tried to “acquire a room . . . an

apartment . . . up in the same building as the man and the lady lived with the dog”

(i.e., Vera and Gerald). In June 1987, Armitage was shown a photo lineup by

8

police and picked the photographs of a man and a woman who looked familiar to

her. The man was defendant.

In March or April 1984, Robert Homick told Stewart there had been an

unsuccessful attempt on Gerald‟s and Vera‟s lives over Passover. Stewart was

concerned because he considered Robert Homick to be a “klutz” and had

specifically requested that he not be involved in the conspiracy. Robert Homick

wanted $5,000 or $6,000 for expense money. Neil—who had been dealing with

defendant—told Stewart to pay Robert the money. Stewart delivered the money to

Robert Homick in cash at a grocery store. Stewart began to feel that defendant

and his brother were simply trying to get money from them and shared his concern

with Neil. Both Neil and defendant told Stewart to be patient.

June 22, 1985, was Gerald and Vera‟s 45th wedding anniversary. As was

their custom, they went out to celebrate with other family members. Earlier in the

day, two male residents of Gorham Avenue observed Robert Homick sitting in his

car at different locations on the street. One of the men wrote down the vehicle

license number and called the police. The police came, spoke to Robert Homick,

filled out a field interview card, and left.

4. Actions taken in preparation for the murders in September 1985

Defendant recruited Anthony Majoy and Michael Dominguez as

accomplices. He told Dominguez he was “going to rob . . . this olderly [sic]

couple” and that “he had been after them a few times. Missed.”

Sometime between September 10 and September 12, 1985, defendant

purchased three walkie-talkies from his friend Art Taylor, who operated Art‟s CB

Shop in Las Vegas. The walkie-talkies were for short-range communications with

a five-mile maximum range and required line-of-sight contact. Defendant told

Taylor he needed the walkie-talkies for surveillance work in Los Angeles.

9

Sometime in mid-September, Robert Homick and Michael Dominguez

bought a boltcutter at Rae‟s Hardware Store in West Los Angeles. The sales clerk

who made the sale identified the men from a photo lineup. On September 23, in a

call to his aunt, Sybil Michelson, Stewart confirmed information he had received

from Michelson‟s daughter Linda that his parents would be breaking the Yom

Kippur fast at the home of Muriel Jackson. Shortly after talking to Michelson,

Stewart received a call from Robert Homick. Stewart told him his parents would

be at Jackson‟s residence.

On September 24, in Las Vegas, Art Taylor saw defendant‟s other brother,

William Homick, give defendant a brown bag, saying, “[T]his is the ammo that

you had requested.” That morning, defendant and Dominguez flew from Las

Vegas to Burbank on an 11:50 a.m. flight.9 At the Burbank airport, defendant,

accompanied by Dominguez, rented a car.

Later that day, according to Dominguez, he and defendant went to the

office of a lawyer named Max Herman. Dominguez waited while defendant met

with Herman. Defendant emerged from the meeting carrying a gun case. The

next day, Dominguez saw the case again; it contained a revolver. Dominguez said

that he, defendant, and Robert Homick tested the walkie-talkies to determine over

what distance they could be used. They drove to the entrance of a gated

community where Muriel Jackson lived, three or four miles from the apartment

building where Gerald and Vera lived.

Defendant called Art Taylor in Las Vegas and complained he was having a

problem with the walkie-talkies and wanted to know where he could buy a battery.

9 The prosecution presented records for PSA airlines showing that two tickets

issued for defendant and “M. Dome” were used on flight 119; defendant and

Dominguez were also identified by a fellow passenger.

10

Taylor referred him to Henry Radio. A notation appears in defendant‟s daily

reminder for September 24, with the name “Henry Radio.” A sales clerk at the

store identified Robert Homick in a photo lineup as the man to whom he had sold

a walkie-talkie battery. The sales receipt recording the sale had Robert Homick‟s

address on it. Defendant returned to Las Vegas on the evening of September 24.

Dominguez stayed overnight in Los Angeles at the Westwood Inn, where Robert

Homick, using the alias “Robert Gilroy,” paid for Dominguez‟s room.

5. The murders of Vera and Gerald on September 25, 1985,

and the aftermath

About 10:00 a.m. on September 25, defendant appeared at Art Taylor‟s

shop with the walkie-talkies. He wanted different walkie-talkies that would work

in Los Angeles. Taylor said he did not know anyone who had such items,

whereupon defendant decided to keep the walkie-talkies he had. He asked Taylor

to call Robert Homick and tell him to pick defendant up at the airport at 1:00 p.m.

Defendant flew to Los Angeles on the same 11:50 a.m. flight he had flown the

previous day; he was identified by another passenger. He was met at the Burbank

airport by Robert Homick and Dominguez about 1:00 p.m.

Sometime around 2:15 p.m., Gerald and Vera arrived at Jackson‟s

residence to break the Yom Kippur fast. The meal was planned for around 6:00 or

6:30 p.m.

According to Dominguez, he, defendant, and Robert Homick went back

and forth between the gates outside the Jackson residence and Vera and Gerald‟s

residence, testing the range of the walkie-talkies. Defendant drove to an alley

behind Vera and Gerald‟s Gorham Avenue apartment building and told

Dominguez to go ring their doorbell to see whether anyone was home. No one

answered when he pushed the buzzer. Dominguez went back to the car, reported

11

to defendant, and waited while defendant went to check for himself. Defendant

returned after a few minutes and said, “the people were not home.”

According to Dominguez, he and defendant drove to Gorham Avenue to

meet Robert Homick. Anthony Majoy was with Robert, wearing “like a black

hood sweatshirt.” In his car, defendant was carrying walkie-talkies, a handgun, a

shotgun, boltcutters, and his and Dominguez‟s luggage. Defendant gave

Dominguez a walkie-talkie and dropped him off at a nearby intersection.

Defendant told him to look for an elderly couple in a tan, two-door Mercedes and

to let defendant know as soon as he saw them. Gerald and Vera left Jackson‟s

house sometime between 10:00 and 10:15 p.m. in their tan, two-door Mercedes.

Dominguez radioed defendant when he saw the victims‟ car.

On the night of September 25, Rodger Backman was visiting his mother,

who lived on the third floor of 11959 Gorham Avenue, the apartment building

adjacent to 11939 Gorham Avenue, where Gerald and Vera lived. Backman heard

five gunshots and ran out to the balcony. A retaining wall separated the two

buildings, and there was ivy along the wall on the 11939 Gorham side. Backman

heard rustling in the ivy and then saw a man jump over the wall from 11939

Gorham and land on the walkway below him. Backman shouted, “Hey, I see

you,” and the man looked up at him. The man was wearing “some type of martial

arts . . . uniform” that was completely black. It included a hood that covered his

entire face except “approximately half an inch above the eyebrows down to a line

about even with the bottom of his nose.” The man appeared to be about five and a

half feet tall, weighing about 160 pounds, with olive-toned skin. He did not

appear to have anything in his hands. The man ran toward the back of the building

into the alley. Backman went in pursuit but did not see the man again.

Just as he observed the man jump over the wall between the two apartment

buildings, Backman heard more rustling in the ivy on the 11939 Gorham side of

12

the wall, but he was unable to see who was making the noise. That person was

running in the opposite direction of the first man. Backman testified that the man

who jumped the wall “would not have been” the person making these other noises

in the ivy because those noises were in “the opposite direction . . . and this

particular sound I heard was running towards the street in the opposite direction

south into Gorham.” Backman was “absolutely sure . . . that [he] heard two

different individuals down in these ivy plants,” the man who jumped the wall and

landed on the sidewalk beneath Backman, and a second person running in the

opposite direction on the other side of the wall.

Backman went downstairs and got up on the wall separating the two

apartment buildings. One of the gates into the subterranean garage at 11939

Gorham Avenue was open. He entered the garage and found Gerald slumped over

in the driver‟s seat of his car with a gunshot wound. Backman noticed some

neighbors had come out, and he yelled for a doctor and for someone to call the

police.

Sometime after 10:05 p.m., Robert Kelly, who lived at 11959 Gorham

Avenue with his roommate, Jeff Carolan, heard five gunshots and a woman

screaming. The gunshots were coming from outside and were nearby. A few

seconds later, someone yelled, “Call the police,” and then “Call an ambulance.”

Kelly, who was an emergency medical technician, picked up his stethoscope and a

pen light, and he and Carolan went downstairs. They met up with Backman, who

directed them to the garage. They gained entry through a window that Kelly knew

was always closed because he passed it every day.

Kelly found Gerald and Vera inside their Mercedes. Gerald was sitting up

in the driver‟s seat, bleeding from his neck and chest. Vera was partly out of the

car and appeared to have been shot in the upper torso. After examining them,

13

Kelly decided Vera was in worse condition. He got her out of the car, opened her

airways, raised her feet, and then went back to help Gerald, who was still alive.

Los Angeles Police Officers Horan and Kane arrived about 10:30 p.m.

They ordered Kelly, Backman, and Carolan out of the garage, made a “sweep,”

and secured the crime scene. Horan observed that a bicycle chain that secured

security bars on the west side of the garage had been cut. Paramedics arrived and

pronounced Vera dead at the scene. Gerald was still alive. He was transported to

the UCLA Medical Center, where he was pronounced dead. Gerald had been shot

below the skull with an exit wound at the bottom of his chin. There was a second

grazing wound across his chest. Powder burn marks were indicative of a close-

range gunshot. Vera had been shot three times on the left side of her body.

Detectives Richard Crotsley and Jack Holder arrived at the scene about

3:00 a.m. Crotsley observed that Vera was wearing various items of jewelry, that

her unopened purse was inside the Mercedes, and that near her foot was a check

for $2,000 made out to Gerald from his daughter Maxine. Crotsley concluded that

robbery was not the motive for the attack on the victims. While inspecting the

security features of the garage, Crotsley noticed that a chain securing gates on the

east side of the garage had been cut, leaving the gates open. A chain link and

green plastic tubing were discovered outside a gate on the west side of the garage;

that gate was also open.

On the morning of September 26, 1985, defendant and Dominguez returned

defendant‟s rental car. Defendant flew back to Las Vegas on PSA flight 446; he

was identified by a fellow passenger who also saw a man fitting Dominguez‟s

description, but was unable to positively identify him.

That same day, Neil told Stewart their parents had been murdered. He told

Stewart “to stay strong [because] . . . [they] were going to be investigated.” The

Monday or Tuesday after Yom Kippur, Stewart came into Neil‟s office while Neil

14

was talking by telephone to Lew Jackson, Muriel Jackson‟s husband. After he

finished the call, Neil told Stewart, “That‟s going to be our problem. He says he‟s

absolutely convinced that we were involved.” Shortly after that conversation,

Stewart delivered $15,000 to Robert Homick at the same grocery store where he

had previously delivered expense money. On January 9, 1986, Neil wired $28,000

into Robert Homick‟s bank account, which Neil told Stewart was the balance due

for the murder of their parents. The following day, Robert Homick wired $25,000

into Anthony Majoy‟s bank account. Dominguez was paid $5,000 for his part in

the murders.

On September 30, 1985, a claim was made on Vera‟s life insurance policy.

The insurance company ultimately paid the claim in the amount of $506,855.94.

Stewart endorsed the check.

The police determined that the bullets used to kill Gerald and Vera were

from a .38 Special or .357 Magnum handgun, but the murder weapon was never

recovered. In January 1986, police surveillance put defendant, Robert Homick,

and Anthony Majoy together in Hollywood. On March 11, 1986, search warrants

were executed in Las Vegas and Los Angeles, and defendant, Robert Homick,

Neil Woodman, Stewart Woodman, and Anthony Majoy were arrested.

Dominguez had been arrested March 2 in Las Vegas on a parole violation. A

boltcutter seized from Robert Homick‟s apartment was determined to be the tool

that had cut the chain found outside the garage where Gerald and Vera were

murdered. After he was arrested, Neil called Steven Strawn at Manchester

Products and asked him to destroy some papers located beneath Neil‟s desk;

among them were defendant‟s business cards.

15

B. The Defense Case

Defendant attempted to establish an alibi, presenting witnesses who

testified he had a court appearance in Las Vegas in connection with his divorce on

the morning of September 25 before flying to Los Angeles for a doctor‟s

appointment. Two other witnesses who worked at a Los Angeles clinic where

defendant had been a patient testified he had shown up at the clinic sometime

around lunchtime on September 25 without an appointment, but his doctor was not

there.

Joey Gambino testified he had never referred defendant to Stewart for the

purpose of eliminating Stewart‟s parents or had anything to do with the murders.

Other witnesses sought to impeach the credibility of Michael Dominguez and Art

Taylor.

C. Robert Homick’s Evidence 10

Robert Homick called two witnesses to testify about his relationship with

defendant. Helen Copitka is the sister of defendant and Robert Homick.

Defendant is the eldest child, having been born in 1940; Copitka, the second

eldest. There were four other children. Defendant was Robert‟s main caretaker.

He was outgoing, while Robert was shy and withdrawn. Copitka viewed

defendant as a leader and Robert as a follower.

The second witness, and her husband, had been close friends of defendant

and his wife in the 1960‟s when they all lived in Los Angeles. She met Robert

Homick around 1967 or 1968 when he moved in with defendant. It was not

unusual for her to see defendant tell Robert Homick what to do and how to do it.

10 Neil Woodman called a single witness, his and Stewart‟s rabbi, whose

testimony was aimed at impeaching Stewart‟s credibility.

16

Clarence Stromwall, a retired Los Angeles Superior Court judge, had

served for many years in the Los Angeles Police Department with Max Herman,

the attorney from whom Dominguez testified defendant had obtained a gun the

day before the murders. Stromwall testified that Herman would never have given

a gun to defendant to use in a crime and that Herman was a good judge of

character who could not have been easily manipulated.

Joseph Gersky, an FBI agent, testified that in an interview with Michael

Dominguez on March 18, 1986, Dominguez told him he did not know who was

involved in the Woodman murders, other than defendant. Later, Dominguez told

Gersky that defendant‟s other brother, William Homick, and Anthony Majoy were

involved.

II. PENALTY PHASE

A. The Prosecution Case

The prosecution‟s penalty phase case consisted of the circumstances of the

current crime and evidence that defendant had committed a triple murder in Las

Vegas for which he had been convicted after the Woodman murders.11 On the

morning of December 11, 1985, Bobbie Jean Tipton, a wealthy Las Vegas woman,

her maid, Marie Bullock, and a deliveryman, James Myers, were shot to death at

Tipton‟s residence. Inside Tipton‟s bedroom, police found drawers pulled open,

jewelry boxes on the bed, and jewelry strewn about. A floor safe in the closet had

also been opened.

Defendant had been in charge of security at a small chain of jewelry stores,

Tower of Jewels, where Tipton had had her jewelry cleaned several months before

11 Thus, the court admitted the evidence under section 190.3, factor (b) (other

involvement in violent criminal activity) rather than factor (c) (prior felony

conviction).

17

her murder. Defendant was convicted of the murders based largely on the

testimony of Timothy Catt, who managed one of the branches of Tower of Jewels.

According to Catt, defendant had asked him several times about the value of

Tipton‟s jewelry while Catt was cleaning and repairing it. Later, after the

murders, defendant brought Catt jewelry that had belonged to Tipton and admitted

he had killed her and the other two victims.12

B. The Defense Case

Defendant‟s witnesses attempted to establish an alibi for his whereabouts at

the time of the Tipton murders and to impeach Timothy Catt‟s credibility.

Additional defense witnesses sought to blame the Tipton murders on Michael

Dominguez and another man, Kelly Danielson.

DISCUSSION

I. PRETRIAL AND GUILT PHASE ISSUES

A. Section 656

Defendant contends that under section 656, his 1991 conviction in federal

court of interstate murder for hire (18 U.S.C. former § 1952A)13 barred his

subsequent California convictions for the Woodman murders. At the time of

defendant‟s trial, section 656 provided: “Whenever on the trial of an accused

person it appears that upon a criminal prosecution under the laws of another State,

12 Further evidence regarding the Tipton murders is discussed where relevant

to an issue raised by defendant.

13 The interstate murder-for-hire statute has since been renumbered from title

18 United States Code section 1952A to section 1958. Defendant was charged

under the former section, to which this opinion will therefore refer.

18

Government, or country, founded upon the act or omission in respect to which he

is on trial, he has been acquitted or convicted, it is a sufficient defense.”14

Section 656 provides “greater double jeopardy protection than the United

States Supreme Court has determined to be available under the Fifth Amendment

of the United States Constitution,” as the Constitution does not bar “prosecution

and conviction for the same act by both state and federal governments.” (People

v. Belcher (1974) 11 Cal.3d 91, 96-97 (Belcher).) We conclude, however, that the

statute does not apply under the circumstances of this case. Because the California

special circumstance charge of murder by means of lying in wait (§ 190.2, subd.

(a)(15)) required proof of conduct that was not necessary for proof of the prior

federal murder-for-hire charge, the prior conviction provided no defense under

section 656 to the state murder charges.

1. Background

A federal indictment filed on March 16, 1989, charged defendant, along

with Robert Homick, Neil Woodman, Stewart Woodman, and other defendants

with various combinations of 11 counts.

Count XI of the federal indictment alleged a violation of the federal

murder-for-hire statute in that, “[f]rom or about September 23 through

September 25, 1985, in the District of Nevada and elsewhere,” defendant and his

14 A later amendment to section 656 (Stats. 2004, ch. 511, § 1, p. 4109)

removed from its scope prior proceedings in a foreign country and replaced

“founded upon the act or omission” with “based upon the act or omission,” giving

the statute its present form: “Whenever on the trial of an accused person it

appears that upon a criminal prosecution under the laws of the United States, or of

another state or territory of the United States based upon the act or omission in

respect to which he or she is on trial, he or she has been acquitted or convicted, it

is a sufficient defense.”

19

codefendants “did travel and cause travel in interstate commerce, that is travel

between the State of Nevada and the State of California, by STEVEN MICHAEL

HOMICK and Michael Dominguez with the intent that a murder be committed in

violation of the Penal Code of California, said murder to be committed in

consideration for the receipt of and for a promise and agreement of money; which

travel resulted in the deaths of Vera and Gerald Woodman.”

The federal jury was instructed, largely in language drawn from the

statute,15 as follows: “Whoever travels in or causes another (including the

intended victim) to travel in interstate commerce or uses or causes another

(including the intended victim) to use the mail or any facility in interstate or

foreign commerce, with the intent that a murder be committed in violation of the

laws of any State or the United States as consideration for the receipt of, or as

consideration for a promise or agreement to pay, anything of pecuniary value, if

death results . . . [¶] shall be guilty of an offense against the United States.”

Defendant was convicted on count XI and sentenced to life imprisonment; his

conviction was later affirmed in an unpublished decision. (United States v.

Woodman (9th Cir. 1992) 980 F.2d 740 (table) [1992 WL 357106].)

15 At the time of the offense, title 18 United States Code former section

1952A provided: “Whoever travels in or causes another (including the intended

victim) to travel in interstate or foreign commerce, or uses or causes another

(including the intended victim) to use the mail or any facility in interstate or

foreign commerce, with intent that a murder be committed in violation of the laws

of any State or the United States as consideration for the receipt of, or as

consideration for a promise or agreement to pay, anything of pecuniary value,

shall be fined not more than $10,000 or imprisoned for not more than five years,

or both; and if personal injury results, shall be fined not more than $20,000 or

imprisoned for not more than twenty years, or both; and if death results, shall be

subject to imprisonment for any term of years or for life, or shall be fined not more

than $50,000, or both.” (Added Pub.L. No. 98-473, tit. II, § 1002(a) (Oct. 12,

1984) 98 Stat. 2136; see now 18 U.S.C. § 1958.)

20

In the present California case, defendant orally joined Neil Woodman‟s

motion to dismiss based on his federal conviction. The trial court denied the

motion.

2. Analysis

“[P]rosecution and conviction for the same act by both state and federal

governments are not barred by the Fifth Amendment guarantee against double

jeopardy. (Abbate v. United States (1959) 359 U.S. 187, 194-195 [3 L.Ed.2d 729,

733-735, 79 S.Ct. 666]; Bartkus v. Illinois (1959) 359 U.S. 121, 136 [3 L.Ed.2d

684, 694, 79 S.Ct. 676]; United States v. Lanza (1922) 260 U.S. 377, 382 [67

L.Ed. 314, 317, 43 S.Ct. 141].) This rule, however, does not preclude a state from

providing greater double jeopardy protection than is provided by the federal

Constitution under decisions of the United States Supreme Court. [Citations.]”

(People v. Comingore (1977) 20 Cal.3d 142, 145 (Comingore).) Like many other

states (see fn. 17, post), California bars certain such “dual sovereign” prosecutions

by statute.

As noted, section 656 provides: “Whenever on the trial of an accused

person it appears that upon a criminal prosecution under the laws of the United

States, or of another state or territory of the United States based upon the act or

omission in respect to which he or she is on trial, he or she has been acquitted or

convicted, it is a sufficient defense.”16 The section was enacted in 1872 as part of

our first Penal Code and has been amended only once, in 2004, as earlier described

16 Defendant also cites section 793, which provides: “When an act charged as

a public offense is within the jurisdiction of the United States, or of another state

or territory of the United States, as well as of this state, a conviction or acquittal

thereof in that other jurisdiction is a bar to the prosecution or indictment in this

state.”

21

(see fn. 14, ante). A note by the 1872 code commissioners explains that the statute

focuses on acts and omissions, and does not require identity of charges: “This

section is intended to apply in cases where the foreign acquittal or conviction took

place in respect to the particular act or omission charged against the accused upon

the trial in this State, and is not restricted to cases where the accused was tried

abroad under the same charge.” (Code commrs. note foll. Ann. Pen. Code, § 656

(1st ed. 1872, Haymond & Burch, commrs. annotators) p. 241.) In accord with

this intent, as well as the statute‟s plain language, we have held section 656 applies

when the physical conduct required for the California charges has previously been

the subject of an acquittal or conviction in another jurisdiction, regardless of

whether the two charges have different requirements as to intent or other nonact

elements. (Comingore, supra, 20 Cal.3d at pp. 146-148; Belcher, supra, 11 Cal.3d

at pp. 99-100.)17

17 Sections 656 and 793 (also enacted in 1872) are drawn from the New York

codes associated with David Dudley Field. (See Hagburg, Statutory Bars to Dual

Sovereign Prosecutions: The Minnesota and North Dakota Approaches

Compared (1996) 72 N.D. L.Rev. 583, 592-593 [giving texts of the Field code

provisions].) Several other states, mostly in the West, have similar laws

comparing the acts or omissions required for conviction under the first and second

prosecutions. (See, e.g., Idaho Code, § 19-315; Mont. Code Ann., § 46-11-504;

Nev. Rev. Stat. Ann., § 171.070; N.D. Cent. Code, § 29-03-13; Okla. Stat. Ann.,

tit. 22, § 130; Va. Code Ann., § 19.2-294; Wn. Rev. Code, § 10.43.040.)

The Model Penal Code and states following it take a seemingly narrower

approach, focusing on proof of different facts in the two proceedings and on the

purposes of the first and second statutes. (Model Pen. Code, § 1.10 [prosecution

barred by former conviction or acquittal in another jurisdiction if based on the

same conduct, unless “each [offense] requires proof of a fact not required by the

other and the law defining each of such offenses is intended to prevent a

substantially different harm or evil . . .”]; see, e.g., Ark. Code Ann., § 5-1-114;

Del. Code Ann., tit. 11, § 209; Hawaii Rev. Stat., § 701-112; N.J. Stat. Ann.,

§ 2C:1-11; 18 Pa. Cons. Stat. Ann., § 111.)

(footnote continued on next page)

22

This court has construed and applied sections 656 and 793 in only two

cases, Belcher and Comingore.

In Belcher, the defendant and a companion had robbed at gunpoint two

undercover officers—one a federal agent, the other a local policeman—who had

arranged a narcotics purchase. We held that section 656, coupled with the

defendant‟s prior acquittal in federal court of assault with a deadly weapon on a

federal officer, provided a defense to conviction in California court for assault

with a deadly weapon based on the same conduct, but not to two counts of robbery

arising out of the same incident. (Belcher, supra, 11 Cal.3d at pp. 99-101.)

Construing section 656 for the first time in Belcher, we distinguished its

prohibition on multiple prosecutions from that in section 654, which, in addition to

prohibiting multiple punishment when an act or omission is punishable under

multiple California penal provisions, further provides that “[a]n acquittal or

conviction and sentence under any one [provision] bars a prosecution for the same

act or omission under any other.” (§ 654, subd. (a).) Despite the statutes‟ similar

language, we determined section 656 did not apply as broadly as section 654.

(Belcher, supra, 11 Cal.3d at pp. 97-98.) In Kellett v. Superior Court (1966) 63

Cal.2d 822, 827, we had construed section 654‟s multiple prosecutions bar to

apply whenever “the same act or course of conduct plays a significant part” in two

or more offenses, assuming the prosecution in the first case was or should have

been aware of all the offenses. In Belcher, we observed that the Kellett rule

(footnote continued from previous page)

Other states, more strictly still, require the two prosecution to be for the

same offense, or for two offenses substantially identical in all their elements. (See,

e.g., Minn. Stat. Ann., § 609.045; N.Y. Crim. Proc. Law, § 40.20, subd. 2(a), (b);

Utah Code Ann., § 76-1-404.)

23

assumes “the state has the opportunity to charge all offenses that may arise out of

a single course of criminal conduct,” an assumption that “cannot be made where,

as here, one of the prosecutions occurred in another jurisdiction.” (Belcher, at

p. 98.) Section 656 thus demands a narrower construction than section 654.

Turning to the critical question of when a prior conviction or acquittal in

another jurisdiction is considered to have been “founded upon the act or omission”

for which the defendant is being tried in California, within the meaning of former

section 656 (see fn. 14, ante), we reviewed in Belcher a pair of appellate decisions

dealing with a single defendant, People v. Candelaria (1956) 139 Cal.App.2d 432

(Candelaria I) and People v. Candelaria (1957) 153 Cal.App.2d 879 (Candelaria

II). As we explained, in Candelaria I the “defendant asserted that under section

656 his prior conviction in federal court of robbery of a national bank was a bar to

his subsequent state conviction for robbery of the same bank. The Court of

Appeal agreed. „The physical act or conduct of defendant in taking the money

was the same whether the robbery be considered as a federal offense or a state

offense. All the acts constituting the state offense were included in the federal

offense and were necessary to constitute the federal offense. It is clear that, within

the meaning of said section 656, the federal conviction was “founded upon the

act” in respect to which the defendant was tried in the present case. It appears, as

a matter of law, that the previous federal conviction is a sufficient defense in the

present case.‟ ” (Belcher, supra, 11 Cal.3d at pp. 98-99, quoting Candelaria I, at

p. 440.)

In Candelaria II, the same defendant again cited section 656 to challenge a

California conviction, in this case for burglary arising out of the same transaction

as the prior federal robbery charges. This time, we noted in Belcher, the Court of

Appeal rejected his argument because the act required for burglary, “ „the entering

of the building with the intent to commit a theft, is not the same act complained of

24

in the federal court, namely, that he pointed a gun at the teller and by force and

fear compelled her to deliver over to him certain monies.‟ ” (Belcher, supra, 11

Cal.3d at p. 99, quoting Candelaria II, supra, 153 Cal.App.2d at p. 884.)

Approving the Candelaria decisions, Belcher drew from them the

following test for application of section 656: “Under this section, a defendant may

not be convicted after a prior acquittal or conviction in another jurisdiction if all

the acts constituting the offense in this state were necessary to prove the offense in

the prior prosecution [citation]; however, a conviction in this state is not barred

where the offense committed is not the same act but involves an element not

present in the prior prosecution. [Citation.]” (Belcher, supra, 11 Cal.3d at p. 99.)

Applying that rule to the facts of Belcher, we held that the defendant,

having been acquitted in federal court of assault upon a federal officer, could not

be convicted in state court “for the same assault upon the same person.” (Belcher,

supra, 11 Cal.3d at p. 99.) As to the two state robbery convictions, however, the

rule led to the opposite result. “A conviction for each of these offenses requires at

the very least proof of an important additional act by defendant—the „taking of

personal property in the possession of another‟ (§ 211)—that need not be proved

to establish the federal offense of assault with a deadly weapon upon a federal

officer. Accordingly, the convictions of first degree robbery under the first two

counts are not convictions founded upon the same act or omission for which

defendant was acquitted in federal court, and these convictions must stand.”

(Belcher, at pp. 100-101.)

In Comingore, supra, 20 Cal.3d 142, we held section 793, which defendant

also cites, barred the defendant‟s prosecution in California for grand theft auto and

unlawful driving of a vehicle, where he had previously been convicted of an

offense in Oregon arising out of the same act (taking a car in California without

permission and driving it to Oregon). (Comingore, at p. 144.) We determined that

25

section 793‟s protective scope was the same as that of section 656, though the

former provision acted to bar prosecution and the latter as a defense against

conviction. (Comingore, at p. 148.) Quoting and applying the Belcher test for

application of section 656, we held that although the charged California offenses

required the intent to deprive the owner temporarily or permanently of possession

of her vehicle, an element assertedly not required for the Oregon conviction,

section 656 (and hence § 793) applied because the intent required for an offense is

distinct from the act on which the offense is based. The People having conceded

the Oregon conviction was based on “the same physical conduct” giving rise to the

California prosecution (Comingore, at p. 146), the latter prosecution was barred

even though it called for proof of an additional intent element (id. at pp. 146-149).

The Courts of Appeal have addressed section 656 in several published

decisions since Comingore but, with the exception of People v. Friedman (2003)

111 Cal.App.4th 824, discussed below, none involved facts similar to the present

case.18 We look, therefore, to the language and purposes of the statute, as well as

18 See People v. Bellacosa (2007) 147 Cal.App.4th 868, 877 (Nevada

conviction for driving under the influence and evading a peace officer did not bar

California prosecutions for corresponding offenses, where charges in each state

rested solely on driving within that state); People v. Gofman (2002) 97

Cal.App.4th 965, 973-976 (federal convictions for conspiracy and mail fraud

barred state prosecution for conspiracy, insurance fraud, and grand theft based on

same staged automobile accident scheme); People v. Lazarevich (2001) 95

Cal.App.4th 416, 424-426 (conviction in Republic of Serbia for kidnapping a child

did not bar later conviction in California for concealing the same child, where

convictions were based on conduct during distinct time periods); People v. Brown

(1988) 204 Cal.App.3d 1444, 1450-1451 (conviction in federal court for

conspiring to transport stolen goods in interstate commerce, based on a

Nevada-formed scheme to burglarize a California jewelry store, did not bar later

prosecution in California for burglary of the same store); People v. Walker (1981)

123 Cal.App.3d 981, 986-987 (Nevada conviction for possession of stolen

(footnote continued on next page)

26

our prior decisions, to decide whether section 656 applies in the circumstances of

this case.

According to its terms, section 656 provides a defense to a California

prosecution only if the prior foreign prosecution was based upon “the act or

omission” for which the defendant is “on trial” in California. In accord with that

language, we held in Belcher that a California conviction is barred if all the acts

necessary to the California charges were also necessary to prove the prior charges,

but is not barred “where the offense committed is not the same act but involves an

element not present in the prior prosecution.” (Belcher, supra, 11 Cal.3d at p. 99.)

In Comingore, we clarified that “element” in this formulation refers only to

conduct required to prove the charges, not to criminal intent or other nonact

elements. (Comingore, supra, 20 Cal.3d at pp. 146-148.)

The application of section 656 thus turns on whether the California charges

against defendant required proof of conduct that was not required for conviction of

the earlier federal charges. We conclude that at least in the special circumstance

allegation of murder by lying in wait, they did.

The lying-in-wait special circumstance (§ 190.2, subd. (a)(15)) requires

proof the killer concealed his or her purpose, watched and waited a substantial

time for the opportunity to act, and thereafter launched a surprise attack on the

victim from a position of advantage. (People v. Bonilla (2007) 41 Cal.4th 313,

330.) No such conduct was required under title 18 United States Code former

(footnote continued from previous page)

traveler‟s checks did not bar California prosecution for robbery in which the

checks were taken).

27

section 1952A, which was satisfied by proof defendant traveled between states in

order to commit a murder for hire, and death resulted.19

Nor did the federal indictment against defendant charge any of the conduct

constituting lying in wait. The indictment alleged only that defendant and

Dominguez traveled between Nevada and California with the intent that a murder

be committed in exchange for compensation, and that the travel resulted in the

Woodmans‟ deaths. That the federal prosecutor, like the state prosecutor

19 At oral argument, the Attorney General maintained that, lying in wait aside,

the Woodmans‟ killing itself was conduct not required to prove the earlier federal

charge of interstate travel for the purpose of murder for hire (18 U.S.C. former

§ 1952A), which required proof that “death result[ed]” from defendant‟s interstate

travel only in order to obtain the greatest punishment allowed under the statute,

then life imprisonment. In somewhat similar circumstances, comparing a

California murder prosecution with a prior federal prosecution for interstate travel

in aid of racketeering (18 U.S.C. § 1952, known as the Travel Act), the court in

People v. Friedman, supra, 111 Cal.App.4th at page 836, asserted, “There was no

requirement in the federal prosecution that the defendants commit a murder.” (But

see United States v. Friedman (2d Cir. 2002) 300 F.3d 111, 127-128 [death of a

victim resulting from a crime of violence (the target offense of interstate travel) is

an element of a Travel Act offense when a life sentence is sought, though the

defendant need not have personally participated in murder]; see also Jones v.

United States (1999) 526 U.S. 227, 252 [federal carjacking statute establishes a set

of separate offenses with differing punishments, the most severe requiring proof

that death resulted from the carjacking].) Because we determine the lying-in-wait

special-circumstance allegation prevented the application of section 656 here, we

need not decide whether killing the Woodmans was conduct required for

defendant‟s conviction and life sentence under title 18 United States Code former

section 1952A.

As an alternative rationale, the court in People v. Friedman, supra, 111

Cal.App.4th at page 837, relied on People v. Brown, supra, 204 Cal.App.3d 1444,

for the theory that the federal offense‟s inclusion of a requirement not present in

the state charges (interstate travel, in Friedman) precluded the application of

section 656. The Attorney General makes the same argument here as to title 18

United States Code former section 1952A. Again, we need not decide whether the

interpretation given section 656 in Brown is correct, as the special circumstance

allegation made section 656 inapplicable in any event.

28

afterward, proved defendant ambushed and killed the Woodmans in their garage

(see United States v. Woodman, supra, 1992 WL 357106, *1) is of no import, as

proof of an ambush was not “necessary to prove the offense in the prior

prosecution” (Belcher, supra, 11 Cal.3d at p. 99, italics added). A prior

prosecution is not “founded” or “based,” within the meaning of section 656, on

every piece of conduct shown by the evidence at the earlier trial. Were that the

rule, the entire course of criminal conduct that led to the earlier charges would be

effectively protected from prosecution in California, an interpretation we expressly

rejected for section 656 (in contrast to § 654) in Belcher, supra, 11 Cal.3d at page

98. (See also id. at p. 101, fn. 10 [noting that Belcher‟s California robbery

convictions, which we held were not barred under § 656 by his prior federal

conviction for assault on a federal officer, would likely have been barred under a

§ 654 course-of-conduct analysis had the two prosecutions been brought

sequentially in California courts].)

That the allegation of murder by means of lying in wait was contained in a

special circumstance allegation attached to the murder charge, rather than in a

separate count charging an offense, does not mandate the application of section

656. Although Belcher refers to “the acts constituting the offense in this state”

(Belcher, supra, 11 Cal.3d at p. 99, italics added), we did not have before us in

Belcher the issue of conduct charged in a special circumstance or similar

allegation. The language of section 656 itself is not restricted to offenses. Instead,

it refers to “the act or omission in respect to which [the defendant] is on trial”

(italics added), implying the potentially relevant charges against the defendant are

not limited to those specifying offenses. Defendant here was indisputably “on

trial” for murder by means of lying in wait; indeed, lying in wait was at issue both

29

as a theory of first degree murder (§ 189)20 and as a special circumstance making

defendant eligible for a sentence of death or life without the possibility of parole

(§ 190.2, subd. (a)(15)).

Moreover, factual sentencing allegations that make the defendant eligible

for a death sentence have, for constitutional purposes including double jeopardy,

been viewed as functionally equivalent to elements of a greater offense. (See

Sattazahn v. Pennsylvania (2003) 537 U.S. 101, 111-112; Ring v. Arizona (2002)

536 U.S. 584, 609.) The allegations against defendant of first degree murder with

a special circumstance of murder by lying in wait can be conceptualized, for

double jeopardy purposes, as a greater offense (inclusive of first degree murder) of

first degree murder by means of lying in wait, with lying in wait as one necessary

element making up that offense. And while section 656 provides double jeopardy

protection in the dual-sovereign situation to which the constitutional protection

does not extend (Belcher, supra, 11 Cal.3d at p. 97), the constitutional and

statutory protections serve the same general purposes. No reason appears for the

treatment of special circumstance allegations to differ under the two regimes.

Double jeopardy protection vindicates principles of fairness and finality by

preventing the government from making repeated efforts to convict the defendant

or adding to his or her punishment for the same offense. (United States v. Wilson

(1975) 420 U.S. 332, 343.) But where two different sovereign governments are

involved, the interest of each in punishing criminal conduct as it finds fitting also

comes into play. Constitutionally, this consideration motivates the dual

sovereignty doctrine, under which double jeopardy protection is withdrawn

20 The jury was instructed on both lying in wait and premeditation as theories

of first degree murder.

30

entirely from the second prosecution. (See Abbate v. United States, supra, 359

U.S. at p. 195; Bartkus v. Illinois, supra, 359 U.S. at p. 137.) Section 656 restores

some of that protection, but applies only when the conduct charged in California

has already been the subject of a completed federal or sister-state prosecution; in

other situations, the statute does not prevent the state from pursuing its interest in

punishing criminal conduct.

Where California charges the defendant with conduct that makes him or her

eligible for the state‟s most severe punishments, death and life in prison without

the possibility of parole, and that particular conduct has not been the subject of a

prior federal or sister-state prosecution, the state‟s interest in a separate

prosecution is particularly strong, while the protective purposes of section 656 are

not implicated. California‟s prosecution of defendant for murder by means of

lying in wait was not unfair to him, as he had not previously been prosecuted for

that conduct, nor did it impugn the finality of a prior judgment, as the federal court

verdict did not adjudicate the lying-in-wait issue. The state, moreover, has a

substantial interest in enforcing its laws differentiating between noncapital

murders and murders that are so heinous as to merit either of our law‟s greatest

punishments, an interest the prior federal prosecution could not and did not serve.

Neither the federal Constitution nor section 656 restricts California, as a sovereign

government separate from that of the United States, from pursuing its own interest

in punishing murder where the acts comprising the special circumstance have not

previously been the subject of a federal prosecution.

In the heading of his section 656 claim, but without making any argument on

the point, defendant also contends his federal conviction for violation of the

Racketeer Influenced and Corrupt Organizations Act (RICO) statutes, title 18

United States Code section 1961 et seq., barred the murder convictions under

section 656. In the interest of completeness, we note that the reasoning used

31

above would also apply to defendant‟s RICO conviction. Although the federal

RICO count charged the Woodmans‟ murders as two of five alleged crimes

establishing a pattern of racketeering activity (see 18 U.S.C. § 1961(5)), neither

RICO itself nor the indictment‟s RICO count required proof those murders were

committed by means of lying in wait. Under section 656, therefore, the prior

RICO conviction provided no defense to the California charges of murder by

means of lying in wait.

B. Severance

Defendant contends that the trial court abused its discretion when it denied

his various severance motions.

1. Background

The five defendants tried for the Woodman murders were divided into two

groups for trial. Stewart Woodman and Anthony Majoy were tried first, and then

defendant, Neil Woodman, and Robert Homick were tried together in the

proceeding before us. Defendant filed a pretrial motion to sever his trial from that

of his brother Robert Homick and Neil Woodman. Neil Woodman also sought to

sever the cases.

In the trial court, defendant contended that severance was required because

the earlier severance of Stewart‟s trial from Neil‟s trial because they are brothers

was “law of the case,” also prohibiting the joint trial of himself and his brother; a

joint penalty phase trial would deny each Homick individual consideration; there

was a danger of inconsistent defenses; and the prosecution intended to introduce a

jailhouse letter from Neil to Stewart implicating defendant. Additionally, he

argued that, at a joint penalty phase trial, he would suffer in comparison to his

brother because most of the penalty phase evidence would be introduced only

against defendant. In a supplemental memorandum of points and authorities,

32

defendant argued that any Aranda/Bruton issues should be resolved at the hearing

on the severance motion because they were relevant to whether the cases should

be severed. (People v. Aranda (1965) 63 Cal.2d 518; Bruton v. United States

(1968) 391 U.S. 123 [a nontestifying codefendant‟s extrajudicial statement that

incriminates the other defendant is inadmissible].)

At the hearing, the trial court indicated it would impanel two juries, one to

hear defendant‟s case and the other to hear the case against Neil Woodman and

Robert Homick. Its decision was based on its concern about the fairness of having

one jury decide the penalty for both Homicks. At that point, the prosecutor

informed the court that he would not seek the death penalty against Robert

Homick, thus “eliminat[ing] the need for two juries.” Nonetheless, both defendant

and Neil Woodman pressed for severance. The trial court denied the motion.

During the trial, defendant renewed his motion for severance following the

opening statement by Robert Homick‟s counsel, on the “grounds of conflicting

defenses”; after the trial court ruled that Robert Homick‟s counsel could question

Art Taylor about his status as an FBI informant; after the trial court ruled that the

prosecution could ask FBI Agent Joseph Gersky whether he believed Michael

Dominguez was being truthful after a second interrogation where Dominguez

contradicted statements he had made in an earlier interrogation; and after the trial

court excluded evidence defendant wanted to present that Robert Homick had

threatened violence against a former employee of Stewart and Neil‟s.21

21 In his opening brief, defendant lists 16 evidentiary rulings that he asserts

demonstrate severance was warranted. As the Attorney General points out,

however, defendant did not renew his severance motions on 12 of these occasions.

Thus, to the extent he now claims that severance was warranted by these rulings,

he has forfeited the claims. (People v. Tafoya (2007) 42 Cal.4th 147, 163

[“[D]efendant has forfeited this issue on appeal because he failed to assert this

(footnote continued on next page)

33

Finally, defendant argued as a ground in his motion for a new trial the

court‟s denial of his pretrial severance motion. The motion was denied.

2. Analysis

“Our Legislature has expressed a preference for joint trials. [Citation.]

Section 1098 provides in pertinent part: „When two or more defendants are jointly

charged with any public offense, whether felony or misdemeanor, they must be

tried jointly, unless the court order[s] separate trials.‟ The court may, in its

discretion, order separate trials if, among other reasons, there is an incriminating

confession by one defendant that implicates a codefendant, or if the defendants

will present conflicting defenses. [Citations.] Additionally, severance may be

called for when „there is a serious risk that a joint trial would compromise a

specific trial right of one of the defendants, or prevent the jury from making a

reliable judgment about guilt or innocence.‟ [Citations.] [¶] We review a trial

court‟s denial of a severance motion for abuse of discretion based on the facts as

they appeared when the court ruled on the motion. [Citation.] If we conclude the

trial court abused its discretion, reversal is required only if it is reasonably

probable that the defendant would have obtained a more favorable result at a

separate trial. [Citations.] If the court‟s joinder ruling was proper when it was

made, however, we may reverse a judgment only on a showing that joinder

„ “resulted in „gross unfairness‟ amounting to a denial of due process.” ‟

[Citation.]” (People v. Lewis (2008) 43 Cal.4th 415, 452.) Severance motions in

(footnote continued from previous page)

ground at the time his severance motion was heard by the trial court.”]; People v.

Ervin (2000) 22 Cal.4th 48, 68 [“If further developments occur during trial that a

defendant believes justify severance, he must renew his motion to sever.”].)

Defendant‟s assertion that further motions were futile is belied by the fact that he

did make further motions.

34

capital cases generally receive heightened scrutiny for potential prejudice.

(People v. Coffman and Marlow (2004) 34 Cal.4th 1, 43-44.)

Defendant and his codefendants were “charged with having committed

„common crimes involving common events and victims,‟ ” presenting a

“ „ “classic case” ‟ for a joint trial.” (People v. Coffman and Marlow, supra, 34

Cal.4th at p. 40.) Nonetheless, defendant contends that severance was required.

Defendant fails to adequately distinguish between his pretrial, trial, and

posttrial motions and his due process analysis. As distinct standards of review

apply to his various severance motions, however, we must parse his claim into its

distinct components.

Two of the grounds in defendant‟s pretrial severance motion related to a

possible joint penalty-phase trial with his brother, Robert Homick, but once the

prosecution decided not to seek the death penalty against Robert, those arguments

were mooted. Defendant does not renew a third ground he advanced in his pretrial

motion—that an earlier ruling severing the trials of Stewart Woodman and Neil

Woodman was “law of the case” for purposes of the Homick brothers—and we do

not consider it. A fourth ground involving defendant‟s claim that the prosecution

intended to introduce a jailhouse letter from Neil to Stewart implicating defendant

is moot because the letter was not introduced at trial.

Therefore, the only ground supporting defendant‟s pretrial motion still

viable is his claim of conflicting defenses. The premise of this claim was that his

codefendants, and particularly Robert Homick, would seek to introduce evidence

in support of their defenses that was prejudicial to him and would have been

inadmissible if he were tried separately. His pretrial motion did not point to any

specific evidence except the letter from Neil to Stewart, which was not ultimately

introduced. As to Robert Homick, he asserted only that Robert‟s counsel “will be

obligated to bring forth any evidence from prosecution witnesses that [defendant]

35

planned and carried out the murder on his own. He will support this in part by

evidence which, if presented by the prosecution would constitute Aranda-Bruton

error.”

In response, the prosecutor argued that, while he would seek admission of

statements that either came within the hearsay exception for coconspirator

statements or were not hearsay, he did so with the understanding that if “it‟s an

Aranda violation, then it will not be admissible . . . .” Defendant insisted that the

“Aranda-Bruton issues” be litigated before and not during trial. The trial court,

while expressing its preference for pretrial resolution of those issues, also

remarked “we don‟t have to resolve that today . . . .” The trial court failed to

explicitly rule on defendant‟s motion, and defendant did not press for a ruling or

make any further argument.

Evidently, the trial court did not consider the possible introduction of the

defendants‟ extrajudicial statements implicating each other in the offenses a

sufficient ground for granting defendant‟s pretrial severance motion. Rather, the

trial court believed those issues could be litigated as they arose. The defense did

not demonstrate otherwise during the hearing. On this record, we conclude the

trial court did not abuse its discretion when it denied the pretrial motion.

Defendant renewed his motion for severance on four occasions during the

trial. We review each ruling for abuse of discretion “on the facts as they appeared

at the time of the ruling.” (People v. Coffman and Marlow, supra, 34 Cal.4th at

p. 41.)

Following the opening statement by Robert Homick‟s attorney, defendant

renewed his motion on the grounds of “conflicting defenses,” but made no further

comment or argument. The trial court responded: “ I did listen to all 37

statements [sic], and I heard nothing in them that is different than the court was

aware of before, and the motion is denied.” Defendant now contends the

36

“unmistakable implication” of the opening statement was “that [defendant] was

guilty of conspiring with the Woodman brothers to murder their parents, and

anything Robert did that furthered the plot was done without knowledge of the

goal of the conspirators.” He cites specific remarks in the opening statement,

including counsel‟s statement that the jury should be careful to consider the

Homick brothers separately; that only defendant, and not Robert Homick, was

hired to provide security at the bar mitzvah of Neil Woodman‟s son and to bug the

office at Manchester Products; that statements by Stewart and Neil about their

“people in Las Vegas” applied only to defendant; and when Stewart and Neil

wanted their parents killed they turned to defendant, not Robert Homick.

Severance is not required simply because one defendant in a joint trial

points the finger of blame at another. “ „ “Rather, to obtain severance on the

ground of conflicting defenses, it must be demonstrated that the conflict is so

prejudicial that [the] defenses are irreconcilable, and the jury will unjustifiably

infer that this conflict alone demonstrates that both are guilty.” ‟ [Citation.]

When, however, there exists sufficient independent evidence against the moving

defendant, it is not the conflict alone that demonstrates his or her guilt, and

antagonistic defenses do not compel severance.” (People v. Coffman and Marlow,

supra, 34 Cal.4th at p. 41.) The opening statement by Robert Homick‟s attorney

pointed out the difference between Robert‟s and defendant‟s ties to Stewart and

Neil but did not, in and of itself, rise to the level of antagonistic defenses requiring

separate trials. Moreover, as shown below, there was more than “sufficient

independent evidence” (ibid.) against defendant to make clear any conflict alone

did not demonstrate his guilt.

Defendant next renewed his severance motion after the trial court ruled that

Robert Homick‟s attorney could question Art Taylor about the reason Taylor

became an FBI informant: Taylor believed defendant was using him to help

37

distribute drugs. Acknowledging the possible prejudice to defendant, the court

instructed the jury that it “may not consider the testimony about [defendant‟s]

involvement in drugs, if they believe it, as character evidence or as evidence

indicating that he was a person likely to commit a crime.” Presuming, as we must,

that the jury followed the instruction, we conclude the trial court did not abuse its

discretion when it denied defendant‟s severance motion. (See People v. Avila

(2006) 38 Cal.4th 491, 575 [“[A]ssuming [codefendant‟s] extrajudicial statement

about defendant incriminated defendant, it did not prejudice defendant because the

court admonished the jury not to consider it for any purpose against defendant, and

we presume the jury followed the instruction.”].)

Defendant next renewed his motion to sever during the testimony of FBI

Agent Joseph Gersky. Gersky was called by Robert Homick to testify that when

Gersky initially interviewed Michael Dominguez, Dominguez told him he did not

know who else had participated in the Woodman murders other than defendant.

Gersky disbelieved him. During a second interview, Dominguez told Gersky that

two other men had assisted defendant: Anthony Majoy and defendant‟s brother,

William Homick, also known as “Moke.” On cross-examination, the prosecutor

elicited testimony from Gersky that what Dominguez had actually told him during

the second interview was that Majoy and “Steve‟s brother” had participated in the

murders, without specifying whether it was William or Robert. The prosecutor,

over defendant‟s objection, was also permitted to ask Gersky whether he believed

Dominguez during the second interview; Gersky said he did.

Defendant objected that the latter question allowed Gersky to vouch for

Dominguez‟s credibility not only on the specific subject of which brother assisted

defendant, but as to all of Dominguez‟s statements about defendant‟s participation

in the murders. Therefore, he “move[d] to sever.” Ultimately, the trial court

38

restricted the prosecution to asking only whether Gersky believed Dominguez with

respect to his “Steve‟s brother” statement.

On this record, we fail to see an abuse of discretion. The issue here was not

so much a conflict in defenses between the Homick brothers as it was an

evidentiary question about the extent to which the prosecution could elicit from a

defense witness testimony damaging to defendant. It was a minor dispute in a

lengthy trial that the trial court reasonably resolved by limiting the scope of the

prosecutor‟s questioning of Gersky.

Finally, defendant renewed his motion to sever after the trial court excluded

evidence he wished to present that Robert Homick had, on Stewart Woodman‟s

behalf, threatened violence against a former employee of Stewart and Neil‟s,

Robert Richardson, who lived in Missouri. Defendant attempted to introduce this

evidence to rebut evidence that Robert Homick was subservient to his brother and

operated only at his direction. Defense counsel explained the Missouri evidence

would show “Robert had a mind of his own and would do things at the direction of

somebody else . . . specifically . . . Stewart Woodman.” When the trial court

excluded the evidence, defendant renewed his motion to sever. Defense counsel

argued that defendant was being denied the ability to present evidence that would

have been admissible at a separate trial. The trial court denied the motion.

Defendant contends the denial of his severance motion constituted a denial

of his right to present a complete defense under the Sixth Amendment to the

United States Constitution.22 We find no abuse of the trial court‟s discretion. As

22 Below, we discuss in detail his claim that exclusion of this evidence was

error. The reasons we give for rejecting that claim—because, for example, the

proposed evidence was cumulative and would have lead to a minitrial on a

collateral issue—might well have applied even at a separate trial. (See pt. I.E.,

(footnote continued on next page)

39

the trial court noted, there was other evidence that Robert Homick had engaged in

unlawful activities at the sole behest of Stewart Woodman, including committing

insurance fraud and threatening Jack Swartz, one of Manchester Products‟s

debtors. (See pt. I.F.1., post.)

Defendant contends that, whether or not the trial court abused its discretion

in ruling on his motions at the time they were made, denial of severance resulted

in gross unfairness sufficient to constitute a denial of due process. (People v.

Letner and Tobin (2010) 50 Cal.4th 99, 150.)

Defendant claims he was prejudiced by statements admitted against his

codefendants that would have been inadmissible against him in a separate trial; he

was prejudicially associated with his codefendants; there was a danger the jurors

were confused because of the amount of evidence admitted against his

codefendant, Neil Woodman, that would not have been admitted in a separate trial;

there were conflicting defenses; the existence of “complex evidentiary issues”

engendered by the joint trial consumed scarce judicial resources; and he was

denied specific trial rights, including his Sixth Amendment rights to present a

defense and to confront the witnesses against him. (People v. Boyde (1988) 46

Cal.3d 212, 232 [grounds justifying severance include (1) extrajudicial statement

by a codefendant; (2) prejudicial association; (3) likely confusion from evidence

on multiple counts; (4) conflicting defenses; (5) possibility of exonerating

testimony from a codefendant in a separate trial].)

Defendant lists nine extrajudicial statements made by codefendants and

admitted by the trial court which he claims prejudiced him and amount to a

(footnote continued from previous page)

post.) The trial court acknowledged as much in comments it made after denying

the motion to sever.

40

showing of gross unfairness. Three of the nine statements made no mention of

defendant at all but were admitted against Robert Homick or Neil Woodman.

Furthermore, the trial court gave a limiting instruction with respect to two of these

statements, specifically admonishing the jury the statements could not be

considered against defendant. We presume the jury understood and followed this

instruction. (People v. Avila, supra, 38 Cal.4th at p. 575.)

Four of the statements were made by either Stewart or Neil about their

relationship with defendant: that he did collection work for them; that he was their

“man in Las Vegas” and “tougher” than the Mafia; that he could get anything of

an illegal nature done; and that he was a “heavy guy.” The first statement was

admitted under the coconspirator exception to the rule against hearsay (Evid.

Code, § 1223) against defendant as well as Neil Woodman, while the second

statement came in against all defendants as evidence of a conspiracy to murder

Gerald and Vera. As such, their admission would have been sought against

defendant in a separate trial where he would have faced the same conspiracy

charges.23

The third statement came up in cross-examination as an example of how

Stewart mocked Neil‟s relationship with defendant. The fourth statement, as we

explain below (see pt. I.F.6., post), was clearly not intended to be a

characterization of defendant, but a comment on Neil‟s desire to be associated

with a “tough guy.” In any event, it does not amount to gross unfairness

constituting a due process violation.

23 Our conclusion is not dependent upon whether the statements were or were

not properly admitted—a question we take up below (see pt. I.F., post.) We are

here concerned simply with whether admission of the statements, whether

justifiably or in error, resulted in a due process violation.

41

Defendant also complains about the admission of another statement—

Robert Homick‟s statement that it was coincidental that he happened to be outside

on the Woodmans‟ street on their anniversary. Defendant asserts it undercut his

defense, which was to point the finger of blame at his brother, because otherwise

the evidence would have suggested Robert Homick was stalking the Woodmans

on that date. Any such effect was, at most, marginal (see pt. I.G., post), and it

does not rise to the level of conflict that would create a due process violation.

Defendant contends he was prejudicially associated with his brother Robert

Homick, against whom the evidence was stronger, and with Neil Woodman,

because of the amount of evidence regarding Neil‟s hatred of his parents. “A

prejudicial association justifying severance will involve circumstances in which

the evidence regarding one defendant might make it likely the jury would convict

that defendant of the charges and, further, more likely find a codefendant guilty

based upon the relationship between the two rather than upon the evidence

separately implicating the codefendant.” (People v. Letner and Tobin, supra, 50

Cal.4th at p. 152.)

Contrary to defendant‟s assertion, the evidence of his involvement in the

Woodman murders was much stronger than that implicating his brother, Robert

Homick. Evidence regarding Neil Woodman‟s hatred of his parents provided the

context and motive for defendant‟s participation and, as defendant concedes,

would have been admitted had defendant been tried alone. That it may have been,

as defendant contends, “less extensive” at a separate trial does not show defendant

was prejudiced as it was clear it was Neil Woodman who hated his parents and

wished them dead, not defendant.

Defendant contends the joint trial created a danger of confusion from

evidence on multiple counts. (People v. Boyde, supra, 46 Cal.3d at p. 232.) As

defendant concedes, however, the counts would have been the same in a separate

42

trial. He asserts the trial would have been shorter because the evidence presented

about Neil Woodman‟s hatred of his parents would have been less extensive. This

is speculative. In any event, defendant points to no authority that supports the

proposition that the length of a joint trial is a factor in a due process analysis.

Defendant contends that severance was required because of conflicting

defenses presented by Robert Homick and himself.24 To justify severance “the

conflict between the defendants alone will demonstrate to the jury that they are

guilty. If, instead „there exists sufficient independent evidence against the moving

defendant, it is not the conflict alone that demonstrates his or her guilt, and

antagonistic defenses do not compel severance.‟ [Citations].” (People v. Letner

and Tobin, supra, 50 Cal.4th at p. 150.)

Defendant put forth an alibi defense—that he was in Los Angeles to consult

a physician and not to kill the Woodmans—along with the suggestion Robert

Homick was more deeply involved with Stewart and Neil and thus the likelier

candidate for them to enlist to kill their parents. Robert Homick‟s defense was

that his participation in the murders was the result of defendant‟s lifelong

dominance over him and he did not necessary understand he was abetting murder.

Whatever degree of conflict existed between these defenses, the strength of the

independent evidence against defendant belies his claim that conflict alone

compelled severance.

The independent evidence against defendant includes Stewart‟s testimony

that he and Neil hired defendant to kill their parents after defendant was

24 Although defendant also refers, in passing, to the possibility the jury was

“distracted with the need to simultaneously resolve the very different cases against

Neil Woodman and Robert Homick,” he does not demonstrate any conflict

between his defense and Neil Woodman‟s.

43

recommended to Stewart by Joey Gambino; defendant‟s prior relationship with

Stewart and Neil; the fact that defendant was the common denominator with

respect to virtually every person who had any connection, however incidental, to

the crime; the extensive notes in defendant‟s own hand documenting his

connection to his codefendants and his lengthy surveillance of the victims; his

recruitment of his codefendants; his acquisition of walkie-talkies, ammunition, and

a weapon shortly before the murders; his trip to Los Angeles with Michael

Dominguez the day before the murder; his flight back to Las Vegas and his

attempt to obtain better walkie-talkies from Art Taylor; Dominguez‟s testimony

that defendant dropped him off near the victims‟ residence and told him to be on

the lookout for them; Rodger Backman‟s testimony that there were two men in the

ivy after the shooting; and defendant‟s departure with Dominguez from Los

Angeles the day after the murder. It was the weight of the evidence against

defendant, as to which he offered only weak and implausible defenses, and not

conflict with his brother‟s defense, that proved defendant‟s guilt. Accordingly, the

trial court‟s denial of his severance motions did not amount to a due process

violation.

Defendant argues that the lengthy joint trial consumed “scarce judicial

resources.” But two or three separate trials, each one requiring many of the same

witnesses and the same exhibits would not have been more efficient. Defendant

also asserts that he was denied his Sixth Amendment right to present a complete

defense because of the exclusion of evidence of an incident where, allegedly,

Robert Homick threatened a former employee of Manchester Products at Stewart

Woodman‟s behest, and his right of confrontation due to the extrajudicial

statements of his codefendants. For reasons already set forth, we reject these

claims. In summary, in full recognition of the high degree of scrutiny required in

44

a capital case (Williams v. Superior Court (1984) 36 Cal.3d 441, 454), our review

of the record leads us to reject defendant‟s due process claim.

C. Impeachment of Michael Dominguez with Prior Inconsistent

Statements

The prosecution called defendant‟s confederate, Michael Dominguez, to

testify against him. Dominguez claimed that his prior statements admitting his

participation in the murders were lies he had been coerced into making by police

or prosecutors; asserted his lack of memory; spewed irrelevant information,

including information he had been admonished not to disclose; refused to answer

questions; and generally behaved in an uncooperative and childish manner.

Eventually, the trial court instructed the jury that Dominguez‟s silence was to be

deemed a negative answer to whatever question he had been asked, opening the

door to impeachment under the prior inconsistent statement exception to the rule

against hearsay. (Evid. Code, § 1235.) Dominguez was impeached by the

prosecutor, as well as by counsel for Robert Homick and for defendant, with

statements he had made in earlier court proceedings and to police. Defendant

complains that the trial court‟s handling of this difficult and defiant witness

violated various constitutional rights.25

25 We have recognized exceptions to the forfeiture doctrine with respect to

certain constitutional claims raised for the first time on appeal. (See People v.

Boyer (2006) 38 Cal.4th 412, 441, fn. 17; People v. Partida (2005) 37 Cal.4th 428,

433-439.) We entertain such claims only to the extent “the new arguments do not

invoke facts or legal standards different from those the trial court itself was asked

to apply, but merely assert that the trial court‟s act or omission, insofar as wrong

for the reasons actually presented to that court, had the additional legal

consequence of violating the Constitution. . . . [¶] In [this] instance, of course,

rejection, on the merits, of a claim that the trial court erred on the issue actually

before that court necessarily leads to rejection of the newly applied constitutional

„gloss‟ as well. No separate constitutional discussion is required in such cases,

and we therefore provide none.” (Boyer, at p. 441, fn. 17.)

45

1. Background

Michael Dominguez was already in custody in Nevada on unrelated charges

when defendant and the other codefendants were arrested. In this case,

Dominguez pleaded guilty to two counts of first degree murder and admitted the

special allegation that a principal was armed with a handgun. In exchange, the

prosecution dismissed two conspiracy counts against him and all special

circumstance allegations. Dominguez admitted he had been recruited by

defendant to take part in the killings; went through extensive planning and

preparation with defendant, Robert Homick, and Anthony Majoy; and received

$5,000 in payment for his participation. He agreed to testify against his

codefendants. He was advised that the prosecution expected his testimony to be

“truthful and honest and accurate.” He was warned that if the prosecutor

determined he had “lied in any material way or that [he] committ[ed] perjury when

[he testified], then all of our agreements will be declared null and void.” The

prosecution agreed that Dominguez would be sentenced on his Nevada charges

and on certain federal charges concurrently to whatever sentence he received in

this case. It was also represented that, after Dominguez had cleared up this case

and his federal cases, he would be housed “in an institution of [his] choice” to

keep him separate from his codefendants. Dominguez was ultimately sentenced to

two concurrent terms of 25 years to life on the murder counts.

There were three preliminary hearings in this case. Dominguez testified at

the first, involving all defendants, and all defendants were held to answer.

However, the Court of Appeal ordered the trial court to grant defendant‟s motion

to dismiss the indictments under section 995 because the trial court had conducted

an in camera hearing outside the presence of the defense. Dominguez testified at

the second preliminary hearing, but defendant was not a part of that proceeding

because he was in custody in Nevada on unrelated charges. A third preliminary

46

hearing was conducted, involving defendant alone, but Dominguez refused to

testify at this proceeding. His testimony from the first preliminary hearing was

read into evidence. Previously, Dominguez had refused to testify at the federal

trial of defendant and his codefendants. Subsequently, he refused to testify at the

separate state trial of Stewart Woodman and Anthony Majoy.

On November 3, 1992, shortly after trial began, defendant filed a motion to

preclude the use of Dominguez‟s testimony from the first preliminary hearing. At

the hearing on that motion, Robert Homick‟s counsel argued that Dominguez‟s

testimony should be excluded because the terms of Dominguez‟s plea agreement

compelled him to testify he was not the shooter, whether or not that was true, in

violation of People v. Medina (1974) 41 Cal.App.3d 438. Defendant joined in this

argument. The court denied the motion.

Dominguez was called to the stand by the prosecution on Friday,

November 13, 1992. The prosecutor began by asking Dominguez whether his plea

was free and voluntary. Dominguez responded, “[T]hat was nothing but lies.”

The prosecutor was permitted to impeach Dominguez with the plea transcript.

The prosecutor then turned to Dominguez‟s statement to police and asked him

whether he remembered talking to the investigators on this case, Detectives Holder

and Crotsley. Dominguez replied, “I was physically forced into it, that‟s right.”

Over defendant‟s objection, the prosecutor was permitted to impeach Dominguez

with the transcript of Dominguez‟s videotaped statement to police.

As the prosecutor‟s examination continued, Dominguez claimed

forgetfulness and asserted that his prior statements about the murders had been

coerced and that they were lies or mere repetitions of what he had been told to say

by police, prosecutors, or his former attorney. The prosecutor continued to

impeach Dominguez with the transcripts of the preliminary hearings and his

statement to police.

47

To impeach Dominguez‟s claim that the police had coerced his statement,

the prosecutor asked to play for the jury the videotape of the interrogation. The

tape of the police interview was played for jury at the conclusion of the

prosecutor‟s examination of Dominguez. The court instructed the jury that the

purpose of playing the tape was to determine whether Dominguez had been

coerced and if it impeached Dominguez “in any respect.”

Notwithstanding Dominguez‟s refusal to answer questions, the trial court

declined to find him unavailable. The court explained: “He‟s not unwilling to

speak. He is just refusing to answer questions that are put to him on the subject

that the People want to talk about. [¶] But he has a good deal to say. He is

present, sworn and available. I can‟t find him unavailable under these

circumstances.”

Under questioning by the prosecutor, Dominguez continued to refuse to

answer questions. On questioning by Robert Homick‟s lawyer, Dominguez stated

the prosecution had not lived up to its part of the plea agreement, but when asked

for details provided none, except to say he had believed he would get out of prison

on parole in about 12 years and was unhappy with the plea agreement. He also

volunteered information about a series of polygraph examinations he claimed he

had been forced to take until he produced answers acceptable to the prosecution,

despite having been admonished by the court not to mention such tests.

Later, Dominguez again referred to polygraph tests, leading the court to

instruct the jury that there was no issue of polygraph tests in the case and to

disregard any such references. Outside the presence of the jury, the court told

Dominguez he had no right to refuse to answer questions and would be held in

contempt for every question he refused to answer. The court instructed the jury

that Dominguez had no privilege to refuse to answer questions, that his “refusal to

answer questions is tantamount to answering, „No‟ . . . and that Mr. Dominguez

48

may be impeached then, by his prior testimony.” The court repeated its instruction

that any reference to polygraph tests was to be disregarded.

The prosecutor continued his direct examination, followed by cross-

examination by counsel for Robert Homick and for defendant. Dominguez

continued his disruptive pattern of interjecting irrelevancies, referring to polygraph

tests, claiming lack of memory, sitting mute, and once in a while providing a

responsive answer.

2. Analysis

Defendant argues that the trial court abused its discretion when it allowed

Dominguez to be impeached with prior inconsistent statements under Evidence

Code section 1235 upon his refusal to answer questions. The Attorney General

argues that defendant forfeited this issue because he failed to object on grounds

that Evidence Code section 1235 does not apply to a witness who responds to

questioning by remaining silent. It appears the Attorney General is correct. This

specific objection was not made at trial.

Defendant argues such an objection would have been futile in view of the

trial court‟s denial of other defense objections and mistrial motions made during

Dominguez‟s testimony. The argument is unpersuasive. We cannot presume that,

because the court denied some other objections made on different grounds, it

would necessarily have denied the specific objection at issue here. Defendant also

maintains that the constitutional claims he presents on appeal incorporate the

objection he failed to make below. But he did not raise most of those

constitutional objections either, and he cannot bootstrap the current claim on their

backs simply because, in some limited circumstances, we might entertain

constitutional claims not raised below. Finally, he directs us to a page in the

transcript involving discussion of a jury instruction regarding Dominguez‟s refusal

49

to testify, but defense counsel‟s only comment was to renew a motion for a

mistrial on grounds he does not explain. Thus, the claim is forfeited.

The argument also lacks merit. “We review the trial court‟s rulings on the

admission of evidence for abuse of discretion. . . . [¶] „A statement by a witness

that is inconsistent with his or her trial testimony is admissible to establish the

truth of the matter asserted in the statement under the conditions set forth in

Evidence Code sections 1235 and 770.‟ [Citation.] „The “fundamental

requirement” of section 1235 is that the statement in fact be inconsistent with the

witness‟s trial testimony.‟ [Citation.] „ “Inconsistency in effect, rather than

contradiction in express terms, is the test for admitting a witness‟[s] prior

statement . . . .” ‟ [Citation.]” (People v. Cowan (2010) 50 Cal.4th 401, 462, fn.

omitted.)26 Thus, for example, “ „[w]hen a witness‟s claim of lack of memory

amounts to deliberate evasion, inconsistency is implied. [Citation.] As long as

there is a reasonable basis in the record for concluding that the witness‟s “I don‟t

remember” statements are evasive and untruthful, admission of his or her prior

statements is proper. [Citation.]‟ ” (People v. Ledesma (2006) 39 Cal.4th 641,

711.) Similarly, under the circumstances of a particular case, a witness‟s refusal to

answer may be materially inconsistent with prior statements, exposing the witness

26 Evidence Code section 1235 provides: “Evidence of a statement made by a

witness is not made inadmissible by the hearsay rule if the statement is

inconsistent with his testimony at the hearing and is offered in compliance with

Section 770.” Evidence Code section 770 provides: “Unless the interests of

justice otherwise require, extrinsic evidence of a statement made by a witness that

is inconsistent with any part of his testimony at the hearing shall be excluded

unless: [¶] (a) The witness was so examined while testifying as to give him an

opportunity to explain or to deny the statement; or [¶] (b) The witness has not been

excused from giving further testimony in the action.”

50

to impeachment under Evidence Code section 1235. (In re Deon D. (1989) 208

Cal.App.3d 953, 961.)

In Deon, the witness “selectively answered” some questions regarding his

participation in a gang rape “and blatantly refused to answer any question he did

not want to answer.” (In re Deon D., supra, 208 Cal.App.3d at p. 959.) The Court

of Appeal, citing People v. Green (1971) 3 Cal.3d 981, held: “[W]e see no reason

to treat Tyrone‟s blatant refusal to answer specific questions posed by the

prosecutor any differently than the Green court treated Porter‟s evasive answers

and supposed lapses of memory which stemmed from a desire not to testify. We

conclude that under the circumstances of this case the trial court properly

concluded that Tyrone‟s in-court testimony, as well as his refusal to answer

questions, was materially inconsistent with his statement” to police incriminating

the defendant. (Deon, at p. 962.)

Deon applies here. This is not a case where a witness took the stand and

refused to testify at all, thus providing no basis for the trial court to find

inconsistency in effect. (See, e.g., People v. Rios (1985) 163 Cal.App.3d 852,

860-861, 864 [Where one witness testified only to his name and the other to his

name and age “there is no „express testimony‟ at all from which to infer or deduce

implied inconsistency.”].) Nor, as defendant maintains, is this a case where

“nothing specific could be implied from [Dominguez‟s] silence.” From the very

outset of his testimony, Dominguez repudiated earlier statements in which he had

incriminated himself and defendant in the murders. It soon became obvious that

his lapses of memory were feigned, particularly given his repeated refusal to

refresh his recollection by examining the relevant document where he had made

51

the statement he claimed not to recall. His refusal to answer questions was simply

another tactic in his strategy of denying his prior statements about the crimes.27

In these circumstance, we conclude (1) Dominguez‟s refusal to answer

questions was part of his pattern of either repudiating his prior statements as lies or

as coerced, or pretending not to remember them, and (2) the trial court did not

abuse its discretion by deeming his intermittent refusal to answer questions to be

inconsistent in effect with prior statements.28

Defendant asserts that even if the trial court did not err by permitting the

prosecutor to impeach Dominguez with prior inconsistent statements, it should

have stricken all of Dominguez‟s testimony after he repeatedly refused to answer

questions during cross-examination by defendant‟s attorney, because Dominguez‟s

silence violated defendant‟s confrontation rights.

“[T]he federal Constitution guarantees an opportunity for effective cross-

examination, not a cross-examination that is as effective as a defendant might

prefer.” (People v. Carter (2005) 36 Cal.4th 1114, 1172, citing United States v.

27 Defendant maintains that Dominguez‟s motive in remaining silent was self-

serving rather than to benefit defendant. His motive is irrelevant. The question is

simply whether his silence was inconsistent in effect with his earlier statements.

28 Finding no error, we need not address defendant‟s contention that there was

no basis for finding Dominguez unavailable for purposes of admitting his prior

testimony, since this argument goes to defendant‟s prejudice analysis. We also

reject defendant‟s claim that, by making the implied finding Dominguez‟s silence

was inconsistent in effect with his prior statements, thus permitting impeachment

under Evidence Code section 1235, the trial court usurped the jury‟s factfinding

function. Admission of inconsistent statements under Evidence Code section 1235

necessarily requires a trial court to make a preliminary finding of inconsistency,

otherwise such statements would never be admissible. This case is no more an

invasion of the jury‟s ultimate factfinding function than a case where the trial

court determines an “I don‟t remember” answer is sufficiently inconsistent in

effect to permit impeachment with a prior inconsistent statement.

52

Owens (1988) 484 U.S. 554, 559.) As was true of the witness in People v. Perez

(2000) 82 Cal.App.4th 760, 766, who feigned forgetfulness and was impeached

with her statements to the police, Dominguez “testified at length at trial and was

subjected to lengthy cross-examination” by both defendant‟s counsel and Robert

Homick‟s counsel. While his refusal to answer defendant‟s counsel‟s questions

“narrowed the practical scope of cross-examination, [his] presence at trial as a

testifying witness gave the jury the opportunity to assess [his] demeanor and

whether any credibility should be given to [his] testimony or [his] prior

statements. This was all the constitutional right to confrontation required.” (Ibid.)

Moreover, Dominguez was called by the prosecution and, notwithstanding

defendant‟s assertion to the contrary, to the extent that his behavior on the stand

reflected poorly on his credibility, it benefited defendant. Finally, defendant does

not persuasively explain how Dominguez‟s silence during cross-examination

specifically prejudiced his defense. His general claim—“cross-examination was

thwarted in any meaningful sense”—falls short of providing a basis for reversible

error. (Vaughn v. Jonas (1948) 31 Cal.2d 586, 601 [“The burden is on the

appellant in every case affirmatively to show error and to show further that the

error is prejudicial . . .”].)

Next, defendant asserts the trial court‟s error of permitting impeachment of

Dominguez in the face of his silence was exacerbated by Dominguez‟s repeated

references to polygraph tests. First, as there was no error, there was no

exacerbation of it. Moreover, it is evident from the transcript that these references

were simply more of Dominguez‟s childish antics. We doubt the jury would have

given the references any weight even had the trial court not specifically instructed

the jury to disregard them. The jury was so instructed, and we presume that it

understood and followed that instruction. (People v. Avila, supra, 38 Cal.4th at

p. 575.)

53

Defendant also contends that the trial court‟s error was exacerbated when

the prosecutor was permitted to play the videotape of Dominguez‟s police

statement to the jury. Defendant concedes that he failed to object on this ground,

forfeiting his claim. In any event, the court did not err in permitting the prosecutor

to play the videotape to refute Dominguez‟s claim that he was coerced into

making the statement or for its impeachment value as an inconsistent statement, in

light of his denials, evasions, feigned forgetfulness, and calculated refusal to

answer questions.

Defendant asserts the court erred in allowing the playing of the entire tape

because Dominguez did not deny everything he had said during the interview.

Dominguez‟s claim that he was coerced was not limited to certain portions of his

police statement and justified playing the entire tape. Additionally, the trial court

instructed the jury to “determine whether, if at all, it impeaches Mr. Dominguez in

any respect,” thus allowing the jury to determine which parts, if any, of the

videotaped statement were inconsistent with Dominguez‟s trial testimony.

Finally, defendant complains that the trial court erred by allowing the prosecutor

to play the tape during his closing argument. Once again, defendant did not

object, thus forfeiting the issue. In any event, as the Attorney General points out,

the prosecutor is entitled to refer to the evidence in his summation.

D. Conditions of Michael Dominguez’s Plea Agreement with

Respect to His Testimony

Defendant contends that Dominguez‟s testimony was tainted because his

plea agreement required him to testify in a manner consistent with his statements

to police, whether or not those statements were true.

“ „[A] defendant is denied a fair trial if the prosecution‟s case depends

substantially upon accomplice testimony and the accomplice witness is placed,

either by the prosecution or the court, under a strong compulsion to testify in a

54

particular fashion.‟ (People v. Medina[, supra,] 41 Cal.App.3d 438, 455 [116

Cal.Rptr. 133].) Thus, when the accomplice is granted immunity subject to the

condition that his testimony substantially conform to an earlier statement given to

police [citation], or that his testimony result in the defendant‟s conviction (People

v. Green (1951) 102 Cal.App.2d 831, 837-839 [228 P.2d 867]), the accomplice‟s

testimony is „tainted beyond redemption‟ [citation] and its admission denies the

defendant a fair trial. On the other hand, although there is a certain degree of

compulsion inherent in any plea agreement or grant of immunity, it is clear that an

agreement requiring only that the witness testify fully and truthfully is valid.”

(People v. Allen (1986) 42 Cal.3d 1222, 1251-1252, fn. omitted.) “[U]nless the

bargain is expressly contingent on the witness sticking to a particular version, the

principles of Medina, supra, 41 Cal.[App.]3d 438, and Green, supra, 102

Cal.App.[2d] 831, are not violated.” (People v. Garrison (1989) 47 Cal.3d 746,

771; see People v. Reyes (2008) 165 Cal.App.4th 426, 435 [“an agreement that

binds the witness only to testify truthfully, and not in a prearranged fashion,

cannot be deemed invalid.”].) These principles are violated only when the

agreement requires the witness to testify to prior statements “regardless of their

truth,” but not when the truthfulness of those statements is the mutually shared

understanding of the witness and the prosecution as the basis for the plea bargain.

(People v. Boyer, supra, 38 Cal.4th at p. 456.)

Dominguez‟s plea agreement did not require he testify in conformity with

his statement to police, but only that he testify in a “truthful and honest and

accurate” manner. Defendant focuses on the condition that if Dominguez was

discovered to have lied or committed perjury the agreement would be void.

Defendant claims this condition was Medina error because any material deviation

would necessarily violate one or the other of these possible abrogating conditions.

The language defendant cites from the agreement simply spells out the

55

consequences present in every plea agreement conditioned on the witness

testifying truthfully; it does not amount to Medina error.29

Defendant claims that Dominguez‟s agreement was conditioned on his not

being the shooter. No such condition was put on the record in the plea agreement

proceedings. Rather, prior to his second interview with Las Vegas police,

Dominguez‟s then lawyer stated it was “the understanding between” the attorney

and representatives from the Las Vegas police department and the district

attorney‟s office that Dominguez‟s possible release on parole “assume[s] he is

completely honest, forth right [sic],” testified in California and Nevada, “and is

not in fact the shooter in any of those murders. That is not a binding agreement,

that is just an understanding we have.” This preliminary understanding,

nonbinding even at the time it was expressed, does not supplant or supplement the

actual terms of the later agreement. (People v. Badgett (1995) 10 Cal.4th 330, 358

[preliminary discussion of consistency of witness‟s testimony was not contained in

the later immunity agreement: “It is the latter agreement, of course, that is

determinative of defendants‟ claim.”].) In any event, even if there were an

understanding by the prosecution that Dominguez was not the shooter, this would

not have invalidated the agreement.30 (People v. Gurule (2002) 28 Cal.4th 557,

615-616.)

29 Of course, we should also point out that Dominguez did not feel

constrained by this agreement when he repudiated his statement to police and his

prior testimony. Under these circumstances, what possible injury defendant could

be asserting as a result of the alleged error is difficult to see.

30 Defendant apparently assumes that the prosecution could not, in good faith,

have believed Dominguez was not the shooter. He bases this assumption on

evidence that Rodger Backman‟s description of the person he saw fleeing the

garage where the shooting occurred matched Dominguez. Defendant ignores

Backman‟s further, adamant testimony that he was “absolutely sure” there were

(footnote continued on next page)

56

E. Evidentiary Claims Involving Robert Homick’s Defense

Robert Homick‟s defense to the charges against him was succinctly

summarized by his attorney in his closing argument: “Robert Homick did certain

things at the request of his brother [defendant] but he did not know that those

things were ultimately going to help in a murder” because “Steven Homick was

the leader, Bob was the follower. Steven Homick ordered, and Bob complied

without challenge.” Defendant advances a series of claims in which he contends

that the trial court‟s evidentiary rulings with respect to Robert Homick‟s defense

prejudiced him.

1. The “Missouri incident”

Stewart Woodman testified he specifically told defendant he did not want

Robert Homick involved in the plot to kill his parents because he believed Robert

Homick was a “klutz” and “I didn‟t want anything [that could] jeopardize my life

in Bob‟s hands.” To counter this testimony and show that Stewart had used

Robert Homick for illegal activities, defendant repeatedly sought to introduce

evidence of what the parties called the “Missouri incident.”

In 1983, Robert Homick, at the behest of Stewart Woodman, allegedly

threw a can of oil through the window of a residence in which Robert Richardson,

a former employee of Manchester Industries, was living in Missouri. He allegedly

followed that up with a phone call threatening Richardson that the next object

thrown through his window would be a bomb.

(footnote continued from previous page)

two people running from the garage—the person he saw and another person he

heard but could not see. Given this and the weight of the evidence indicating that

defendant was the ringleader in the conspiracy to kill Gerald and Vera Woodman,

the prosecutors could have reasonably believed that Dominguez was not the

shooter.

57

Defendant sought to use this evidence during the defense‟s cross-

examination of Stewart Woodman to impeach Stewart‟s testimony that he did not

want Robert Homick involved in the murder conspiracy because of his ineptitude.

The court rejected the argument, ruling the Missouri incident was inadmissible

character evidence against Robert Homick and that this outweighed any

impeachment value as to Stewart‟s credibility and would divert the trial to a

collateral issue. The court cited evidence that Robert Homick had conspired with

Stewart Woodman to commit insurance fraud by taking and destroying two

vehicles for which Stewart then filed insurance claims and that Robert had made a

threat of violence against the owner of a business called Soft Lite, remarking that

the Missouri evidence would be cumulative.

Although the trial court did not specifically cite Evidence Code section 352,

its ruling clearly rested on that provision. The court weighed the “marginal” or

“slim” relevance of the evidence against its prejudicial effect as impermissible

character evidence against Robert Homick; found it was cumulative on the point

for which defendant wished to introduce it, to impeach Stewart Woodman‟s

testimony that he did not want Robert Homick involved in the murders because of

his ineptitude; and also concluded that admission of the evidence would lead to an

undue consumption of time on a collateral issue—whether the threat to Richardson

was made by Robert Homick or a third party.

Evidence Code section 352 “is not limited by its terms to disputes by

opposing parties; it may become applicable to parties on the same side of an action

when their interests are adverse to each other.” (People v. Ainsworth (1988) 45

Cal.3d 984, 1007, fn. 10.) “Although we recognize that a criminal defendant has a

constitutional right to present all relevant evidence of significant probative value

in his favor [citations], „[t]his does not mean that an unlimited inquiry may be

made into collateral matters; the proffered evidence must have more than “slight-

58

relevancy” to the issues presented.‟ [Citation.]” (People v. Jennings (1991) 53

Cal.3d 334, 372.) “Moreover, this court will not disturb a trial court‟s exercise of

discretion under Evidence Code section 352 unless it is shown the trial court

exercised its discretion „ “in an arbitrary, capricious or patently absurd manner.” ‟

[Citations.]” (People v. Frye (1998) 18 Cal.4th 894, 948.)

We find no abuse of discretion here. Contrary to defendant‟s claim, the

trial court never found the Missouri incident to be of significant probative value.

It characterized the incident‟s relevance as “marginal” and “slim,”

characterizations it never repudiated even when it briefly considered admitting the

evidence. The trial court‟s concern that the evidence would be viewed as evidence

of the bad character of Robert Homick, reflecting a propensity to commit crimes,

was well founded; such evidence is ordinarily inadmissible because it is

prejudicial. (Evid. Code, § 1101, subd. (a); People v. Falsetta (1999) 21 Cal.4th

903, 916.) The court also reasonably concluded that the evidence was also

cumulative in light of the evidence of the Soft Lite incident and the insurance

fraud schemes. In this connection, we reject defendant‟s assertion that the

Missouri incident evidence was substantially more probative of the point he was

trying to make about the relationship between Stewart Woodman and Robert

Homick than evidence of these other incidents because, unlike them, evidence of

the Missouri incident was “indisputable.”31 The Missouri incident evidence was

subject to questions about whether Robert Homick or a third party committed the

31 Thus, the case before us is distinguishable from People v. Reeder (1978) 82

Cal.App.3d 543, where the defendant‟s evidence of the codefendant‟s misconduct

against the defendant and his family would have shown that the defendant disliked

the codefendant and would not have sold drugs with him. That evidence was

significantly probative on the issue on which the defendant sought to introduce it.

(Id. at pp. 550, 553.) The circumstances of the case before us are quite different.

59

actions against Richardson. For this reason, the trial court also reasonably

determined that the evidence would result in an undue consumption of time on a

collateral issue—whether the actions against Richardson were done by Robert

Homick or a third party.

2. Art Taylor’s FBI informant status

Over defendant‟s objection, counsel for Robert Homick was allowed to

question defendant‟s erstwhile friend, Art Taylor, about his work as a paid FBI

informant. Taylor testified he had gone to the FBI because he was upset that

defendant had been using him to help distribute drugs. Robert Homick‟s counsel

sought to impeach Taylor by suggesting his motivation for becoming an informant

was to enlist the FBI‟s help in removing tax liens from his business. The trial

court allowed the evidence but instructed the jury, both after Taylor‟s testimony

and at the close of the guilt phase, that evidence regarding defendant‟s alleged

drug dealing was to be considered only as it affected Taylor‟s credibility and not

as evidence of defendant‟s bad character.

Defendant contends the trial court erred by allowing Taylor to be

questioned about his motivation for becoming an FBI informant in a manner that

disclosed his belief that defendant was a drug dealer. He maintains the limiting

instructions were inadequate to dispel any prejudice.

We find no abuse of discretion. Taylor‟s status as a paid FBI informant

was relevant to his credibility, a point acknowledged by defendant‟s own trial

attorney, who simply wanted to avoid disclosure of the fact that Taylor was

informing on defendant. Equally relevant to Taylor‟s credibility was whether he

had become an informant because, as he claimed, he was upset that defendant had

involved him in drug distribution or for other reasons unrelated to defendant‟s

alleged drug dealing, e.g., to get tax liens removed from his business or to make

60

money. Taylor‟s motive, may, for the jury, have spelled the difference between

being civic minded and self-interested. Therefore, the court did not abuse its

discretion by allowing questioning on that point for the limited purpose of

providing information to the jury with which to fully assess Taylor‟s credibility.

The trial court‟s repeated admonitions to the jury that the evidence could be

used not as evidence of defendant‟s character or propensity, but only on the issue

of Taylor‟s credibility, cured any potential prejudice to defendant. We reject as

entirely speculative defendant‟s assertion that these limiting instructions were

inadequate. “Any prejudice that the challenged information may have threatened

must be deemed to have been prevented by the court‟s limiting instruction to the

jury. We presume that jurors comprehend and accept the court‟s directions.

[Citation.] We can, of course, do nothing else. The crucial assumption underlying

our constitutional system of trial by jury is that jurors generally understand and

faithfully follow instructions.” (People v. Mickey (1991) 54 Cal.3d 612, 689,

fn. 17.)

3. Judge Stromwall’s testimony

The prosecution presented evidence that the day before the murders,

defendant, accompanied by Michael Dominguez, visited a lawyer named Max

Herman, from whom defendant may have obtained a gun. To bolster his point that

defendant used people without disclosing his purpose, Robert Homick presented

the testimony of retired Superior Court Judge Clarence Stromwall, a longtime

friend of Herman with whom he had worked when they were both members of the

Los Angeles Police Department. Homick hoped to show that even Herman, who

Stromwall agreed was “a streetwise person,” could be duped by defendant into

helping him engage in illegal activity. Defendant‟s counsel objected. He argued

61

the evidence was being used to show defendant‟s bad character “for deception and

deceit.” The trial court overruled the objection.

Defendant contends the Stromwall testimony constituted impermissible

character evidence. (Evid. Code, § 1101, subd. (a).) Specifically, he asserts “it

was improper to admit Judge Stromwall‟s opinion of Max Herman‟s character trait

of honesty . . . to prove . . . that Max Herman did not give a gun to [defendant] . . .

with knowledge that the gun was going to be used in a crime.”

Defendant‟s objection to Stromwall‟s testimony in the trial court, however,

was not that it showed Herman‟s specific conduct in conformity to his character

trait for honesty, but that it showed defendant‟s bad character as deceitful and

manipulative. Therefore, defendant has forfeited the claim he now attempts to

advance on appeal. (Evid. Code, § 353; People v. Ramos (1997) 15 Cal.4th 1133,

1171.) In any event, the claim lacks merit. It is clear from the record that the

purpose of the evidence was to show defendant manipulated people for purposes

of which they might not have been entirely aware, and not to prove that Herman

acted in conformity with a particular character trait. To the extent defendant‟s

complaint is that the trial court abused its discretion by admitting the evidence

under Evidence Code section 352, we find no abuse where, as the court noted, the

evidence was strongly relevant to Robert Homick‟s defense as compared to any

prejudice to defendant.

4. Helen Copitka’s Testimony

Robert Homick called his and defendant‟s sister, Helen Copitka, to testify

about the childhood dynamics within their family and specifically defendant‟s

domineering relationship with his younger brother. Defendant objected that the

testimony was inadmissible character evidence and, because Copitka had had few

interactions with her brothers in adulthood, her testimony would be stale. The

62

court overruled the objections, finding, as to the latter contention, that Copitka‟s

lack of adult interactions with her brothers went to the weight, not the

admissibility, of her testimony. The trial court also rejected defendant‟s request to

impeach Copitka‟s testimony with evidence of the Missouri incident.

Defendant contends that Copitka‟s testimony was of little relevance

because of her limited interactions with her adult brothers; that it was more

prejudicial to defendant than probative; that Robert Homick‟s defense—that he

simply followed defendant‟s orders, unaware of defendant‟s purpose—was

without support in the evidence; and that, if testimony about the brothers‟

leader/follower relationship was relevant, the trial court should have allowed

defendant to present the Missouri incident evidence. His contentions are

meritless.

Copitka‟s testimony about defendant‟s dominance in his relationship with

his brother, established when both were children, was clearly relevant to Robert

Homick‟s defense that he carried out defendant‟s instructions in the instant case

without necessarily understanding their purpose. Her limited interaction with her

brothers as adults and, thus, her opportunity to observe their adult relationship,

went to the weight, not the admissibility, of her testimony. “Relevant evidence is

evidence „having any tendency in reason to prove or disprove any disputed fact

that is of consequence to the determination of the action.‟ (Evid. Code, § 210,

italics added.) The evidence need not be dispositive of the disputed fact.” (People

v. Richardson (2008) 43 Cal.4th 959, 1002.) Defendant‟s assertion that there was

no evidence to support Robert Homick‟s defense, and thus no basis for Copitka‟s

testimony, is puzzling, to say the least, given defendant‟s objections to some of the

evidence presented in support of that defense. That defendant found his brother‟s

defense implausible—as apparently did the jury—does not mean there was no

evidentiary basis for it. Finally, we have already concluded that the trial court

63

properly excluded the Missouri incident evidence under Evidence Code section

352.

5. References to Las Vegas triple murder investigation

During the presentation of Robert Homick‟s defense, Detective Holder, one

of the investigating officers in this case, testified that no deal had been made with

Michael Dominguez when he was interviewed in March 1986, first by Holder and

his partner Detective Crotsley and then by members of the Las Vegas police

department. Counsel for Robert Homick was then permitted to play the tape of the

Las Vegas police department interview, at which Holder was also present. A

comment was made at the beginning of the tape that the Las Vegas police were

investigating a triple murder. Dominguez‟s attorney then spoke of a tentative plea

agreement with the Los Angeles police department. Confronted with the tape,

Holder acknowledged his recollection about whether a deal had been reached was

incorrect. Subsequently, when the prosecutor cross-examined Holder, further

reference was made to a “triple homicide” the Las Vegas police had been

investigating at the time of the interviews.32

Defendant moved for a mistrial, arguing that the jury would have inferred

defendant had something to do with the triple murders. The court denied the

motion, remarking, “I see nothing in that that would even, under rank speculation,

tie that in to any defendant in this case.” Defendant argues the jury must

32 The triple murders at issue were the Tipton murders of which defendant

was convicted in Nevada. Before Robert Homick was allowed to question Holder

about the Dominguez interviews, the trial court explicitly directed the prosecution

not to refer to the homicides as the “Tipton murders” or to mention defendant in

connection with them.

64

inevitably have connected him to the triple murder investigation mentioned during

Holder‟s testimony. We agree with the trial court that the argument is speculative.

Finally, having rejected defendant‟s various individual claims of error, we

necessarily reject his claim that the cumulative prejudicial effect of the errors

requires reversal. (People v. Panah (2005) 35 Cal.4th 395, 479-480.)

F. Coconspirator Statements

Defendant contends that the trial court erroneously admitted statements by

his confederates under the coconspirator exception to the rule against hearsay.

(Evid. Code, § 1223 [“Evidence of a statement offered against a party is not made

inadmissible by the hearsay rule if: [¶] (a) The statement was made by the

declarant while participating in a conspiracy to commit a crime . . . and in

furtherance of the objective of that conspiracy; [and] [¶] (b) The statement was

made prior to or during the time that the party was participating in that conspiracy

. . .”].)

1. Soft Lite incident

The prosecution introduced evidence that, at Stewart Woodman‟s behest,

Robert Homick went to Soft Lite, a business owned by Jack Swartz, and

threatened him over money Soft Lite owed to Manchester Products. The evidence

came in through the testimony of Swartz‟s daughter, Tracy Swartz Hebard. Just

before she testified, defendant‟s counsel objected to her testimony because

“there‟s no showing that [the Soft Lite incident] is part of any conspiracy dealing

with the death[s] of Gerald and Vera Woodman.” The court rejected the

argument, ruling that the evidence was relevant to demonstrate the relationship

between the defendants “during the years leading up to the 1985 murder[s].”

Defendant‟s counsel asked for an instruction to limit the evidence to Robert

65

Homick. The court agreed to listen to the evidence and “if it is apparent that it

bears no relationship to [defendant] I will so instruct the jury.”

Defendant contends the evidence should have been excluded as irrelevant

and prejudicial. While he concedes the evidence was more harmful to his brother,

he argues he suffered “some prejudice” because there was “an inevitable

tendency” for evidence harmful to one of them to be “considered by the jury as

harmful to both.” He also complains that the court failed to give the limiting

instruction he had earlier requested, thus compounding any prejudice, although he

acknowledges such prejudice alone “may not have been sufficient to require

reversal of the judgment against” him.

Defendant has lumped this claim into his general claim that the trial court

misapplied the coconspirator hearsay exception, even though no party made a

hearsay objection to this particular evidence. Accordingly, any hearsay claim is

forfeited.

We reject on its merits defendant‟s claim that the evidence was irrelevant.

“Conspiracy requires two or more persons agreeing to commit a crime, along with

the commission of an overt act, by at least one of these parties, in furtherance of

the conspiracy. (People v. Swain (1996) 12 Cal.4th 593, 600 [49 Cal.Rptr.2d 390,

909 P.2d 994; see §§ 182, subd. (a)(1), 184.) A conspiracy requires (1) the intent

to agree, and (2) the intent to commit the underlying substantive offense.” (People

v. Bogan (2007) 152 Cal.App.4th 1070, 1074.) “ „The punishable act, or the very

crux, of a criminal conspiracy is the evil or corrupt agreement.‟ ” (People v.

Alleyne (2000) 82 Cal.App.4th 1256, 1262.)

If the agreement between the conspirators is the crux of criminal

conspiracy, then the existence and nature of the relationship among the

conspirators is undoubtedly relevant to whether such agreement was formed,

particularly since such agreement must often be proved circumstantially. “ „The

66

existence of a conspiracy may be inferred from the conduct, relationship, interests,

and activities of the alleged conspirators before and during the alleged

conspiracy.‟ ” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1135, italics added.)

Thus, the trial court did not abuse its discretion when it admitted Hebard‟s

testimony as relevant to establish the relationship between Robert Homick and

Stewart Woodman.

Nor did the trial court abuse its discretion when it found that the evidence

was more probative than prejudicial. The court characterized Robert Homick‟s

threat as “a lot like puffing” and unlikely to have been taken at face value by the

jury. If, for this reason, the testimony was minimally prejudicial to Robert

Homick, then, necessarily, it was not prejudicial at all to defendant who was not

involved in the incident and whose name did not surface during Hebard‟s

testimony. Regarding defendant‟s complaint about the court‟s failure to give a

limiting instruction, defendant‟s failure to press the court for a ruling once Hebard

gave her testimony forfeits any claim of error. (People v. Rhodes (1989) 212

Cal.App.3d 541, 554.) In any event, defendant was not prejudiced by the trial

court‟s failure to give such an instruction. The incident, on its face, simply had

nothing to do with him, which the jury would have understood even without an

instruction to that effect.

2. Statements made by Stewart and Neil about defendant

Over defendant‟s objection, the trial court permitted two former employees

of Manchester Products to testify to statements made by Stewart and Neil about

defendant on grounds they were made during a time the conspiracy was in

existence. Cathy Clemente testified that, sometime in March or April of 1983, the

brothers had a meeting with defendant after which Stewart described defendant as

“his man in Vegas” and added that, if anything needed doing, defendant “was the

67

man to do it.” Neil told her that defendant was “tougher” than the Mafia. Richard

Wilson testified that on many occasions Neil had told him defendant “could get

anything done of an illegal nature upon request.” In his in limine testimony,

though not in his trial testimony, Wilson identified the timeframe of these

statements as 1984 and 1985.

“Hearsay evidence is of course generally inadmissible. (Evid. Code,

§ 1200.) Hearsay statements by coconspirators, however, may nonetheless be

admitted against a party if, at the threshold, the offering party presents

„independent evidence to establish prima facie the existence of . . . [a] conspiracy.‟

[Citations.] Once independent proof of a conspiracy has been shown, three

preliminary facts must be established: „(1) that the declarant was participating in a

conspiracy at the time of the declaration; (2) that the declaration was in

furtherance of the objective of that conspiracy; and (3) that at the time of the

declaration the party against whom the evidence is offered was participating or

would later participate in the conspiracy.‟ [Citation.]” (People v. Hardy (1992) 2

Cal.4th 86, 139.)

Defendant contends, correctly, that Stewart‟s and Neil‟s statements to

Clemente took place before the conspiracy to kill Gerald and Vera was formed and

were therefore inadmissible under the coconspirator exception. The trial court

concluded the conspiracy was formed no earlier than the fall of 1983 when, as

Stewart testified at the federal trial, Joey Gambino suggested he speak to

defendant about Stewart‟s problem with his father, whereas Clemente testified the

statements to her were made in March or April 1983. Thus, the trial court erred

when it admitted Clemente‟s testimony under the coconspirator statement

exception because the foundational requirements—“[t]he statement was made by

the declarant while participating in a conspiracy to commit a crime . . . and in

furtherance of the objective of that conspiracy” (Evid. Code, § 1223, subd. (a))—

68

were not met. Nevertheless we conclude any error in the admission of Clemente‟s

brief testimony was harmless in light of the strong evidence of defendant‟s guilt.

(People v. Watson (1956) 46 Cal.2d 818.)

Defendant concedes Neil Woodman‟s comment to Richard Wilson was

made after the conspiracy came into existence, but argues it was not in furtherance

of that conspiracy. As the Attorney General asserts, the trial court found

otherwise; that finding binds us only if supported by substantial evidence. (People

v. Roberts (1992) 2 Cal.4th 271, 303-304.) The court cited no such evidence, and

we find none. There is no apparent connection between Neil‟s statement to

Wilson about defendant‟s ability to commit illegal acts and the specific objective

of the conspiracy to kill Gerald and Vera. Neil was not enlisting Wilson‟s

assistance nor attempting to procure his silence; he seems simply to have been

bragging about his connection to a dangerous man. (See id. at p. 304

[coconspirator‟s remark to third parties that he was going with defendant to the

prison yard the next morning to resolve a dispute with the victim was not in

furtherance of the conspiracy to assault the victim where “Menefield was not

asking Rooks or Long for help”].) Again, however, we find this fleeting comment

nonprejudicial in light of the strong evidence of defendant‟s guilt.

3. Neil Woodman’s comments on a magazine article about

hiring a hit man

Gloria Karns, Stewart and Neil‟s aunt, testified that while waiting for a

deposition at her attorney‟s office in connection with her lawsuit against the

brothers, Neil flipped through a magazine and came across an article entitled “This

Gun for Hire.” He remarked to his attorney, loudly enough for Karns to hear,

“When somebody annoys you, you can look in a magazine [and] find someone to

stop them annoying you.” At an in limine hearing, defendant argued that even if

the testimony was admissible against Neil, it was inadmissible against defendant

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and should be excluded. Alternatively, he argued the court should give an

instruction limiting the jury‟s consideration of the testimony to Neil. The

prosecutor opposed any limiting instruction on the ground that the statement, made

in 1984, constituted proof of the existence of the conspiracy to murder Gerald and

Vera. The trial court agreed and declined to give a limiting instruction. Defendant

maintains the trial court erred because the statement was not made in furtherance

of the conspiracy.

Assuming the testimony should have been excluded or a limiting

instruction given, defendant was not prejudiced. Neil‟s comment, made in the

midst of an acrimonious legal dispute with his aunt, was clearly directed at her,

was unrelated to the conspiracy to murder his parents, and did not name defendant,

expressly or by implication.

4. Stewart’s and Neil’s comments to Jack Ridout

Jack Ridout, a business associate of Stewart and Neil‟s, testified about two

conversations with the brothers. In one, Stewart told Ridout he used defendant for

collections. He said he had sent defendant to take care of someone in Florida with

whom the company was having problems getting paid and “they got paid right

away.” In the other, when Ridout complained about a custody dispute with his ex-

wife, Neil suggested that “he could have her hit, and all problems would be over

with.”

We need not resolve whether admission of Stewart‟s comment was error,

because any error was harmless. Other testimony established that Stewart and

Neil employed defendant for various jobs, including providing security and

installing listening devices. The additional testimony that defendant was also

employed to do collections was cumulative and insignificant in light of the strong

evidence of his guilt.

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As to Neil‟s statement, the trial court gave a limiting instruction expressly

informing the jury it was not to consider the statement against defendant. We

presume the jury understood and followed the instruction. (People v. Avila, supra,

38 Cal.4th at p. 575.) Defendant complains that the limiting instruction was given

long after the testimony and this diluted its effect. “[T]he trial court is not obliged

to give limiting instructions the moment they are requested or when the limited

evidence is presented; subsequent instruction can be sufficient in a proper case.”

(People v. Dennis (1998) 17 Cal.4th 468, 534.) We perceive no abuse of

discretion here. Defendant also suggests the instruction was inadequate.33 We

disagree and, in any event, defendant failed to suggest a different instruction be

given.

5. Neil Woodman’s postarrest call to Steven Strawn

Steven Strawn, Manchester Products‟s former controller, testified that after

his arrest Neil Woodman called him from jail and asked him to destroy business

cards located beneath Neil‟s desk; two of the cards belonged to defendant.

Defendant objected that Neil‟s statement inculpated him in violation of the

Aranda-Bruton rule. (People v. Aranda, supra, 63 Cal.2d 518; Bruton v. United

States, supra, 391 U.S. 123 [a nontestifying codefendant‟s extrajudicial statement

that incriminates himself or herself and the other defendant is inadmissible].) The

trial court concluded that any potential prejudice to defendant could be cured by a

33 The jury was instructed in pertinent part: “With respect to the 2 statements

that were testified to by Mr. Ridout, one statement that Neil Woodman could have

Mr. Ridout‟s ex-wife hit . . . these statements were admitted in evidence against

Neil Woodman only, and they are not admitted against Robert Homick, or Steven

Homick. [¶] Whether the statements were in fact made by Neil Woodman, and the

weight, if any, to be given them, are matters for the jury to decide. However, they

are not to be considered by you as evidence against Steven or Robert Homick.”

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limiting instruction. It instructed the jury: “[E]vidence concerning Neil

Woodman‟s telephone instructions to Steven Strawn, if believed by you, is to be

considered only as it applies to Neil Woodman. It may not be considered in any

fashion with respect to Steve Homick.” Defendant contends the limiting

instruction was inadequate.

“Aranda and Bruton stand for the proposition that a „nontestifying

codefendant‟s extrajudicial self-incriminating statement that inculpates the other

defendant is generally unreliable and hence inadmissible as violative of that

defendant‟s right of confrontation and cross-examination, even if a limiting

instruction is given.‟ [Citation].” (People v. Jennings (2010) 50 Cal.4th 616,

652.)34 The United States Supreme Court “limited the scope of the Bruton rule in

Richardson v. Marsh (1987) 481 U.S. 200 [95 L.Ed.2d 176, 107 S.Ct. 1702] . . . .

The court explained that Bruton recognized a narrow exception to the general rule

that juries are presumed to follow limiting instructions, and this narrow exception

should not apply to confessions that are not incriminating on their face, but

become so only when linked with other evidence introduced at trial. (Richardson,

supra, at pp. 206-207.) That is because, „[w]here the necessity of such linkage is

involved, it is a less valid generalization that the jury will not likely obey the

instruction to disregard the evidence.‟ (Id. at p. 208.)” (People v. Lewis, supra, 43

Cal.4th at p. 454; see People v. Fletcher, supra, 13 Cal.4th at pp. 463-464

[Richardson limits application of Bruton exception to facially incriminating

confessions of codefendant at a joint trial].)

34 To the extent Aranda “require[d] the exclusion of relevant evidence that

need not be excluded under federal constitutional law, it was abrogated in 1982 by

the „truth-in-evidence‟ provision of Proposition 8 (Cal. Const., art. I, § 28, subd.

(d)).” (People v. Fletcher (1996) 13 Cal.4th 451, 465.)

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Neil‟s statement to Strawn was not a confession, much less one that facially

incriminated defendant. Its incriminatory effect on defendant depended entirely

on its linkage to other evidence. As the trial court aptly noted, this was not a

Bruton/Aranda issue “in a true sense,” and any possible prejudice to defendant

could be dispelled by a limiting instruction. (Richardson v. Marsh, supra, 481

U.S. at p. 206 [“Ordinarily, a witness whose testimony is introduced at a joint trial

is not considered to be a witness „against‟ a defendant if the jury is instructed to

consider that testimony only against a codefendant.”].)

6. The “heavy guy” comment

During defense counsel‟s cross-examination of Steven Strawn, Strawn

testified that Stewart had ridiculed Neil‟s friendship with defendant. On redirect

examination, Strawn explained that Stewart thought “Neil seeing [defendant] as a,

quote, heavy guy went beyond the limits when Neil would use this in

conversations with other people . . . .” Defense counsel objected that the “heavy

guy” characterization violated the court‟s earlier ruling prohibiting the prosecutor

from eliciting such testimony from Strawn. The court observed the comment “just

sort of came out of left field.” Neil‟s counsel observed, “It came in as innocuously

as possible and it was gone.” Although he concedes the error was “relatively

minor,” defendant renews his objection to bolster his claim that the cumulative

prejudice from all the evidentiary errors raised in this part requires reversal. There

was no error here. The prosecutor did not solicit this testimony, nor did the court

permit it. It slipped out of the witness in passing. Defendant could have, but did

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not, request an admonition to the jury to disregard the phrase, probably because an

admonition would simply have called attention to the innocuous remark.35

G. Other Claims of Evidentiary Error

1. Art Taylor’s testimony that defendant habitually carried a revolver

The defense sought to preclude testimony by Art Taylor that he had seen

defendant carrying a revolver. The prosecutor argued Taylor‟s testimony would

be relevant to anticipated testimony by another witness, Robert Kelly. Kelly, who

heard the shooting, believed the weapon used was a revolver, based, apparently,

on his knowledge of firearms. The trial court overruled the objection. Taylor

testified briefly that defendant usually carried a briefcase and among its contents

was a silver revolver. Robert Kelly did not testify about the type of weapon he

thought was used in the shooting.

Later, however, evidence was presented that Michael Dominguez saw a

silver revolver in the gun case defendant had obtained from Max Herman. In

closing argument, the prosecutor suggested this revolver might have been the

35 Here, as elsewhere, defendant asserts the cumulative effect of prejudice

from the erroneous admission of the evidence requires reversal. Where we have

identified an error, we have concluded there was no prejudice. We conclude this

is true whether the claims of prejudice are viewed individually or in the aggregate.

This was not a close case. There was direct testimony from Stewart Woodman

that he and his brother hired defendant to kill their parents. This testimony was

corroborated by ample evidence that defendant personally stalked the victims and

gathered confederates to help him accomplish the crime. Against this

overwhelming evidence, defendant offered a weak alibi defense and attempted to

point the finger of blame at his brother, who the evidence strongly indicated was

defendant‟s pawn. The occasional evidentiary error defendant points to could not

have had a prejudicial impact sufficient to require reversal. (See Evid. Code,

§ 353, subd. (b) [no reversal for erroneous admission of evidence unless “[t]he

court which passes upon the effect of the error or errors is of the opinion . . . that

the error or errors complained of resulted in a miscarriage of justice.”].)

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murder weapon. When counsel for Robert Homick directly argued that it was the

murder weapon, the court interrupted his argument and instructed the jury that,

while it could draw reasonable inferences from the evidence, “I don‟t think there‟s

been evidence tying a particular weapon to being the murder weapon.”

Defendant contends the trial court erred by permitting Taylor to testify to

defendant‟s habitual possession of a weapon, citing People v. Riser (1956) 47

Cal.2d 566. In Riser, we held: “When the prosecution relies, . . . on a specific

type of weapon, it is error to admit evidence that other weapons were found in [the

defendant‟s] possession, for such evidence tends to show, not that he committed

the crime, but only that he is the sort of person who carries deadly weapons.” (Id.

at p. 577.) On the other hand, “[w]e have also held that when weapons are

otherwise relevant to the crime‟s commission, but are not the actual murder

weapons, they may still be admissible.” (People v. Cox (2003) 30 Cal.4th 916,

956.) For example, in People v. Carpenter (1999) 21 Cal.4th 1016, 1052, we held

the trial court did not abuse its discretion by allowing a witness to testify the

defendant had told her he kept a gun in his van. “Although the witnesses did not

establish the gun necessarily was the murder weapon, it might have been. . . . The

evidence was thus relevant and admissible as circumstantial evidence that [the

defendant] committed the charged offenses.” (Ibid.; see also People v. Neely

(1993) 6 Cal.4th 877, 896 [counsel not ineffective for failing to object to

admission of rifle and ammunition found in defendant‟s truck shortly after

commission of crime where “there was no direct evidence as to the fatal shooting

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that would render this evidence irrelevant to establish facts material to proof of the

charged offenses”].)36

Here, the prosecutor‟s offer of proof in support of Taylor‟s testimony was

that the weapon defendant habitually carried may have been the same type of

weapon used in the shooting. As the trial court observed, such evidence was

“circumstantial evidence the jury can use to determine whether the case is proven

that this defendant is connected to the murder.” The court acknowledged the

testimony was prejudicial but nonetheless, by overruling defendant‟s objection,

implicitly found the testimony was more probative than prejudicial. We cannot

conclude that the court abused its discretion in admitting the testimony. (People v.

Cox, supra, 30 Cal.4th at p. 955.)

Defendant maintains the prosecutor ultimately pointed to another

revolver—that obtained by defendant from Max Herman—as the murder weapon.

As noted, however, the prosecutor‟s argument was not so direct, and the trial court

specifically instructed the jury that no particular weapon had been identified as the

36 Defendant argues that defendants are held to a higher standard of relevance

when attempting to introduce reasonable doubt evidence than is the prosecution

when it offers weapons evidence. He cites People v. Hall (1986) 41 Cal.3d 826,

which involves a defendant‟s tender of third party culpability evidence. In Hall,

we overruled earlier authority that had held such evidence was inadmissible absent

a threshold showing of substantial proof of probability because that standard was

too onerous. (Id. at pp. 832-834.) While we acknowledged some outer limits to

guide the trial court‟s exercise of discretion—“direct or circumstantial evidence

linking the third person to the actual perpetration of the crime” (id. at p. 833)—we

also observed that whether such evidence was admissible “will always turn on the

facts of the case” (id. at p. 834). The same is true of weapons evidence because

(1) some degree of connection between the weapon and the crime must be shown

before it is admissible, but (2) this determination turns on the facts of the

individual case. Therefore, we reject defendant‟s suggestion that different rules

apply to the defense as opposed to the prosecution regarding the admission of this

evidence.

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murder weapon, while leaving the jury free to draw reasonable inferences. Even

had the prosecutor ultimately argued the gun obtained from Herman was the

murder weapon, the effect would have been to render Taylor‟s testimony

irrelevant; the trial court‟s ruling would still have been correct based on the offer

of proof made at the time of its ruling. Moreover, defendant could have, but did

not, request that Taylor‟s testimony be stricken or otherwise renew his objection.

2. Stewart Woodman’s testimony regarding Robert Homick’s

presence outside Gerald and Vera’s apartment building

Defendant sought to exclude testimony by Stewart Woodman that Robert

Homick had told him it was a coincidence he was parked outside Gerald and

Vera‟s apartment building for several hours on June 22, 1985, Gerald and Vera‟s

anniversary. While defendant‟s counsel conceded the statement was admissible

against Robert Homick, he argued it was harmful to defendant, who planned to

argue, in essence, that Robert was engaged in a plot to kill the victims on June 22,

when defendant was not in Los Angeles. The trial court declined to exclude the

testimony. Defense counsel again sought to exclude the testimony after Stewart

had taken the stand. In response, the prosecutor argued: “My position is this is

incriminating against Bob Homick because it shows there was a pattern of

surveilling the victims in this case.” Defense counsel offered to stipulate to Robert

Homick‟s statement he was at the scene on June 22, as well as before and after

that date. The trial court again overruled the objection to the testimony.

Defendant contends admission of the testimony was error. Not so. The

testimony was admissible against Robert Homick to show he had been surveilling

the victims. Robert Homick‟s claim to Stewart Woodman that it was simply a

coincidence he had been outside the building did not fatally undermine

defendant‟s assertion that his brother, and not he, was the designated hit man.

Defendant was free to attack Robert Homick‟s truthfulness on this point. Nor was

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the prosecution obligated to accept defendant‟s tender of a stipulation. “ „[T]he

general rule is that the prosecution in a criminal case cannot be compelled to

accept a stipulation if the effect would be to deprive the state‟s case of its

persuasiveness and forcefulness.‟ ” (People v. Arias (1996) 13 Cal.4th 92, 131.)

Defendant also complains that a limiting instruction was not given with respect to

this evidence but, as he did not request such an instruction, his complaint fails.

(See People v. Daniels (1991) 52 Cal.3d 815, 883-884.) Accordingly, we

conclude the trial court did not abuse its discretion in admitting this fleeting

testimony.

3. FBI Agent Joseph Gersky’s testimony that he believed Michael

Dominguez and Gersky’s characterization of defendant as

“notorious”

Robert Homick called FBI Agent Joseph Gersky to testify that when he

initially interviewed Michael Dominguez, Dominguez told him he did not know

who else had participated in the Woodman murders.37 Gersky testified that, an

hour or so later, he again interrogated Dominguez because he did not believe him.

In the second interview, Dominguez told Gersky two other men had assisted

defendant, Anthony Majoy and defendant‟s brother, William, also known as

“Moke.” On cross-examination, the prosecutor elicited testimony from Gersky

that what Dominguez had actually said during the second interview was that

Majoy and “Steve‟s brother” had participated in the murders, without specifying

which brother. Over defendant‟s objection, the prosecutor was also allowed to ask

Gersky if he believed Dominguez. Gersky said he did.

37 Gersky was also a polygraph examiner who evidently gave Dominguez a

polygraph test.

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Defendant contends the trial court erred by permitting Gersky to testify that

he believed Dominguez after the second interrogation. “Even assuming these

opinions were improperly admitted (see People v. Melton (1988) 44 Cal.3d 713,

744 [244 Cal.Rptr. 867, 750 P.2d 741] [opinion testimony from a witness with no

personal knowledge of the events regarding the veracity of another witness‟s

statements regarding those events is inadmissible because such testimony is

speculative]; but see People v. Padilla (1995) 11 Cal.4th 891, 946-947 [47

Cal.Rptr.2d 426, 906 P.2d 388] [declining to decide whether this aspect of Melton

survived Prop. 8]), we nonetheless conclude that any [error] . . . was not

prejudicial.” (People v. Riggs (2008) 44 Cal.4th 248, 300.) Gersky‟s brief

testimony involved a subject—defendant and his brother‟s participation in the

murders—as to which there was ample evidence.38 Neither the court nor the

prosecutor drew any further attention to Gersky‟s testimony, and the jury was

instructed that it alone was to determine witness credibility. We presume the jury

followed this instruction. (See Riggs, at pp. 300-301 [where the jury was

instructed it was to determine the credibility of witnesses, any error in an officer‟s

testimony about defendant‟s veracity was harmless].)

38 Defendant maintains that Gersky‟s opinion about Dominguez‟s credibility

was based on the polygraph examination Gersky administered to him. He

complains about not being a

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