Petition for Writ of Certiorari — Lester Ochoa, Petitioner v. Ron Davis, Warden

APPENDIX D

OPINION OF THE CALIFORNIA SUPREME COURT

DATED NOVEMBER 5, 1998

People v. Ochoa, 19 Cal. 4th 353

Supreme Court of California

November 5, 1998, Decided

No. S009522.

Reporter

19 Cal. 4th 353 * | 966 P.2d 442 ** | 79 Cal. Rptr. 2d 408 *** | 1998 Cal. LEXIS 6882 ****

THE PEOPLE, Plaintiff and Respondent, v. LESTER ROBERT OCHOA, Defendant and

Appellant.

Counsel: Russell S. Babcock and Nancy J. King, under appointments by the Supreme Court, for

Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General,

Carol Wendelin Pollack, Assistant Attorney General, Marc E. Turchin, Susan D. Martynec,

Susan Lee Frierson, Robert S. Henry, Carol A. Greenwald and Arthur H. Auerbach, Deputy

Attorneys General, for Plaintiff and Respondent.

Judges: Opinion by Mosk, J., expressing the unanimous view of the court.

Opinion by: MOSK

Opinion

[*380] [**458] [***424] MOSK, J.

Defendant was convicted of murdering Lacy Corrin Chandler and awaits execution of a resulting

death sentence.

Following the consolidation of two cases against him, an information filed by the Los Angeles

County District Attorney on April 25, 1988, charged defendant with murdering Chandler. And it

alleged two felony-murder special circumstances in connection with her murder: that she was

[****2] murdered during the commission of a forcible rape and a kidnapping. It also alleged

[*381] that he personally used a knife to kill her. It alleged that these events took place on or

about June 18, 1987.

In separate counts, the information charged defendant with forcibly raping and kidnapping

Chandler. And in further counts, it charged him with the kidnapping for robbery, simple

kidnapping, robbery, forcible rape, forcible rape in concert, forcible oral copulation, forcible oral

copulation in concert, rape by means of a foreign object (namely, fingers), attempted forcible

sodomy, and attempted forcible sodomy in concert, of Charlotte J. It alleged that these events

D001

occurred on or about January 28, 1987.

The information also charged defendant with attempting to murder Yolanda A., and alleged that

he personally used a knife and personally inflicted great bodily injury during that crime. It also

charged him with assault with a deadly weapon and causing great bodily injury, assault with

intent to rape, and residential burglary in the attack on Yolanda A. It alleged that these events

took place on or about May 23, 1987.

The jury found defendant not guilty of attempting to murder [****3] Yolanda A. It also found

not true the allegations that he personally inflicted great bodily injury on her. Instead it found him

guilty of assaulting Yolanda A. with a deadly weapon or by means of force likely to cause great

bodily injury. It found him guilty of all other offenses charged, and found true all other

allegations. The foreperson wrote on the verdict form "[b]urglary of the first degree" regarding

the residence of Yolanda A. After a penalty trial the jury returned a verdict of death, and the trial

court refused to modify it. We affirm the resulting judgment.

THE GUILT PHASE

Facts

Defendant was charged with involvement in three criminal incidents, culminating in Chandler's

murder. We describe them in chronological order.

The Victimization of Charlotte J.

Charlotte J. testified that she was returning to her apartment shortly before midnight on January

28, 1987, when defendant grabbed her from behind, knocking her glasses off. He told her to hand

him her purse, which she did. Rather than release her, he forcibly took her behind a garbage

dumpster, handed her purse back to her and told her to give him money. Again she complied. At

that point Edward Ramage [****4] joined them.

[*382] Defendant tried to keep Charlotte J. from seeing him, and she is nearsighted, but at one

point during her abduction the headlights of a passing car enabled her, or helped enable her in

conjunction with other lighting, to observe his left profile from less than a foot away. At the time

they were kneeling to avoid being seen. She never saw his face. Throughout the incident he

would push her head down when she looked in his direction.

Defendant and Ramage took her over a wall, past the rear of a liquor store and down a street.

Finally they climbed one perimeter fence and passed through another, entering the grounds of the

Florence Flanner School a few blocks away. On the school ground he forced her to remove her

clothes and to get down on hands and knees, and she was blindfolded. Defendant had her orally

copulate him while Ramage engaged in vaginal intercourse. Then the two assailants switched

positions. At some point defendant took her wedding ring. Defendant also attempted to engage in

anal intercourse but was unable to [***425] penetrate the victim, despite inserting his fingers in

her rectum and trying again. Ramage also tried but could not engage in [****5] anal intercourse

D002

(although he would later testify that he did do so). Charlotte J. testified [**459] that defendant

appeared to be in charge, and she noticed that Ramage was shaking when he would touch her.

She heard Ramage ask defendant not to hurt her, and they allowed her to re-dress. She asked

defendant for her wedding ring back, but he did not respond. The incident ended after about three

hours, when they released her.

Defendant cross-examined Charlotte J. about the accuracy of her identification of him. He

elicited from her that she is five feet five and one-half inches tall and had previously believed

that she, defendant and Ramage were all the same height. She told a responding police officer

that she could envision defendant's appearance but not describe him verbally. He elicited other

failures of memory regarding details of the crimes against her. The responding police officer

testified that she told him she did not see her attackers.

On redirect examination, Charlotte J. explained that she never saw defendant standing so as to be

able to give an accurate description of his height.

An emergency room doctor testified that Charlotte J. showed physical evidence of [****6] oral

copulation in the form of bruising of the hard palate, and of attempted sodomy in the form of

trauma above the rectum.

Ramage testified that he and defendant raped Charlotte J. on the date in question. Ramage had

seen but did not know defendant before the day of the rape, when they met on the street.

Defendant asked Ramage to obtain [*383] cocaine for him; he obtained a quarter of a gram and

the two consumed it. They parted ways, but a few minutes later Ramage encountered defendant

detaining Charlotte J. between two trash bins. He was rummaging through her purse and telling

her that he would harm her if she screamed. He also took her wedding ring. Ramage wanted to

leave but defendant told him not to and lifted up his shirt, revealing a small gun.

After they raped Charlotte J., defendant called Ramage to one side and said, " 'I can't take no

chances[;] I'm going to have to kill her.' " Ramage insisted that he not. Instead Ramage gave her

his sweater to shield her from the cold and told defendant that he did not want any part in a

murder and that defendant would have to kill him too. Defendant took out "a knife from his sock

and he starts switching it back and forth and [****7] I just said, 'Come on,' you know, kept

pleading with her [sic], just let her go." (In her own testimony, Charlotte J. described hearing a

clicking sound a few times as she heard Ramage asking defendant not to harm her.) Defendant

relented and Ramage told Charlotte J. to run as soon as she got over the fence.

Ramage admitted that he would converse and smoke marijuana with defendant on occasions after

the incident. And on cross-examination, defendant tried to undermine Ramage's account of

events. He asked why Ramage had not fled when he had opportunities to do so during the rape,

and why he did not search for the gun while defendant was committing sexual crimes against the

victim. Ramage replied that because he felt panicked, he was already implicated in a rape, and it

benefitted Charlotte J. for him to stay (he had testified that he feared defendant would kill both of

them if he made a false step), he felt he could not leave. Defendant also elicited prior inconsistent

statements by Ramage, a discrepancy in statements regarding his whereabouts on the night of the

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murder of Lacy Chandler, and other discrepancies in the accounts given by him and others at

trial. On redirect examination, [****8] Ramage explained that he was assuming that the murder

occurred on a particular night when questioned by the police and he gave them his whereabouts

on the basis of his assumption.

Detective John Aquino, then an officer of the Baldwin Park Police Department, testified that

when he arrested Ramage for the crimes against Charlotte J. he blurted out, "Lester [defendant]

made me do it. I didn't want to do anything." Ramage gave a confession that conformed to his

in-court testimony. The confession was not coerced; [***426] rather, Ramage was eager to tell

the story from the time of his arrest. Aquino also testified to the lineup procedure (described

further post, at pp. 411-412): he showed Charlotte [**460] J. two 6-photograph lineups, one

containing defendant and the other Ramage. She identified Ramage with 80 percent certainty.

She identified defendant [*384] from the other six-photograph lineup, but apparently was not

positive until Aquino produced, at her request, a photograph of defendant's profile.

Defendant called an experimental psychologist, Dr. Kathy Pezdek, to testify about the possible

effects of the traumatic events on Charlotte J.'s memory as an eyewitness. [****9] She opined

that Charlotte J.'s ability to identify defendant may have been diminished by the fact that she was

missing her glasses, that she saw only his profile and only for a short time, that she and defendant

belong to different ethnic groups, that the situation was stressful, that she did not see a

photograph of him until months after the assault, and that in-court identifications contain a risk

of suggestiveness. She cited research that concluded time of exposure to a face and delay in

identifying it were the most important factors affecting the accuracy of memory. She testified that

the six-month delay in Charlotte J.'s identifying defendant alone would cause a low probability of

an accurate identification, and that repeated viewings of him in lineups and hearings would

influence her to believe that the man she identified in court, i.e., defendant, was her assailant. She

explained that Charlotte J.'s statement that she was positive in her identification could not be

trusted under the circumstances.

The Attack on Yolanda A.

Defendant is Yolanda A.'s brother-in-law. On May 23, 1987, Yolanda A. entered her house and

found defendant lying in wait for her behind the front [****10] door. He grabbed her and held a

knife to her throat. He told her that he wanted to discuss problems he was having with his wife,

Yolanda A.'s sister, Elva Ochoa. They argued for a few minutes. He then escorted her at knife

point to the bedroom and told her to lie down. She resisted and the two struggled. He choked her

into unconsciousness, but his assault was interrupted: Yolanda A. awoke to find her cousin

Faviola Ambriz, who lived in the house, standing in the bedroom doorway. She told her in

Spanish to call the police. When defendant saw Ambriz he stopped the attack, then resumed

struggling with Yolanda A., finally apologized, and told her not to tell anyone about it. She went

to the hospital and had difficulty swallowing for a week afterward. Her neck and eyes remained

sore for a longer time and the corner of her right eye exhibited what she thought was blood. A

doctor testified that an eye injury of that type could arise from strangulation.

On direct examination Yolanda A. testified that defendant did not have permission to be in the

D004

house. On cross-examination defendant elicited testimony that he had once lived in the house

with his family and still had possessions in the bedroom [****11] in which he assaulted her. He

also elicited that she did not require treatment at the hospital and suffered no permanent physical

harm.

[*385] Ambriz testified through an interpreter that she opened the bedroom door to find

defendant with his hands around Yolanda A.'s neck.

The Rape and Murder of Lacy Chandler

The amateur detective work of Saundra Jean Baxter, the conscience of Edward Ramage, and the

chance encounter of the two all combined to help solve the case of the rape and murder of

sixteen-year-old Lacy Chandler.

A forensic pathologist testified that Chandler died of stab wounds. There were 23 of them,

averaging approximately 4 inches deep. She exhibited no genital or rectal trauma.

Baxter, Chandler's housemate, testified that about two and one-half weeks before Chandler's

murder, she moved into a room with her boyfriend Juan Carlos Alvarado. Baxter and her

boyfriend shared another room in the same house. Baxter described Chandler and Alvarado as

having a very close relationship; Chandler was not interested in other men.

[***427] Chandler planned to take Alvarado to work at 3:00 a.m. on June 18, 1987, and then

return with his car so she and Baxter could [****12] visit Chandler's mother later that day.

About 7:00 a.m. Alvarado phoned the house [**461] looking for Chandler, but Baxter could not

locate her in the house or the grounds, though she saw Alvarado's car parked and locked outside.

She called Alvarado back to report that Chandler was missing. He returned from work at 3:00

p.m., and the man who drove him home noticed an unopened five-pound bag of sugar next to

Alvarado's car. This alarmed her--she had not noticed the sugar at 7:00 a.m.--and she saw a

startled look on Alvarado's face as well when the sugar was discovered. He called the police and

she walked to a neighborhood liquor store to buy some cigarettes.

Unknown to them at the time, a school district police officer had discovered Chandler's body on

the grounds of Florence Flanner School about 7:30 that morning. It was bloody, was pierced with

knife wounds, and was supine. Drag marks suggested that it had been dragged back and forth

about 10 feet before being deposited near an incinerator. An investigator took casts of shoe prints

located about 20 feet from the body. He could only find one kind of fairly clear shoe print in the

area, though on cross-examination he acknowledged [****13] that there was other evidence of

foot traffic that could not be identified. He also found false fingernails that lay scattered about in

the nearby grass.

On her way back from the liquor store, Baxter took a circuitous route in search of Chandler.

Instead she encountered Edward Ramage, and although [*386] she did not know him and had

seen him only once before, she told him that Chandler was missing. Ramage said he had not seen

her. Baxter saw that the police had arrived at her house and told him she had to go.

D005

About two days later Baxter again saw Ramage, this time at a neighborhood fast-food restaurant.

She asked him to join them, saying " 'I want to talk to you,' " and he obliged. They discussed

Chandler's murder. "[H]e seemed pretty streetwise, really, and I asked him, I says, 'Do you know

anybody in the neighborhood or in the near vicinity who would know or who you might have

heard or anything that might have done something like that to somebody.' He says, 'Well, yeah,'

you know."

Ramage proceeded to tell Baxter a self-serving version of the still-unsolved assault on Charlotte

J., in which he interrupted another person's rape of her. He told her the rape had occurred

[****14] a few weeks before. Evidently Ramage said he knew the rapist's identity. Giving him a

pen and paper, she asked for the individual's name and address and the license number of any

automobile belonging to him. Five minutes later and out of breath, Ramage ran back into the

restaurant and gave her a piece of paper with the name "Mike" (the record is unclear whether

Ramage in fact wrote down an incorrect name; he only knew defendant as "Lester") and an

address. Baxter called Los Angeles County Sheriff's Detective Douglas Oberholtzer with

Ramage's information.

The police testified before the jury in conformity with their testimony at the in limine hearing on

the admissibility of defendant's confession (set forth in detail post, at pp. 392-396). Aquino

described an interview with Ramage, the subsequent questioning of defendant, his initial

confession, and the retrieval of a knife where he said he had hidden it. Stanley White, then a Los

Angeles County Sheriff's Department homicide detective, testified that a tape contained

defendant's later, recorded confession, and the prosecution played it for the jury.

Defendant gave his 12-minute-long taped confession at 11:40 p.m. on June 25, 1987, in [****15]

the presence of White, Aguino, and Downey Police Officer Edgar Compton. In answer to White's

questions, he said that he was walking down a street at 3:00 a.m. on June 18 by himself and

spotted a blonde girl wearing white pants and a sweatshirt and standing by a car. He approached

her and told her to be quiet. She saw that he had a knife. He took her to Florence Flanner School,

where they climbed a fence simultaneously. He took her over to an incinerator by the auditorium.

He asked her--but did not tell her--to take off [***428] her pants, and she complied. She lay

down atop her pants on the grass and they engaged in intercourse. She asked if she could [*387]

put her pants back on, and he gave permission. He then described [**462] stabbing her to death

because he was scared that she might lead to his apprehension:

"Q. After she put her pants on, then what happened?

"A. Uh, I stood there a little while, and--and then uh, I got scared--I mean I was there for a little

while, quite a long time so, I thought I'd get caught or something, I don't know what was going

through my mind, I was so high.

"Q. But you were frightened?

"A. Yes, I was frightened and I'd done probably [****16] about a hundred dollars worth of

'coke.'

D006

"Q. Uh-huh.

"A. More than ever I had done before, and uh, I stabbed her.

"Q. You stabbed her.

"A. And then she told me to leave and I felt sorry for her and then I got scared because you

always think, you know you see it in the movies--girls would scream and yell and-"Q. Yeah.

"A. She seemed like she was concerned about me--to get away and leave.

"Q. This was after you stabbed her?

"A. Yes. And I felt [unintelligible] her--seemed like she was worried about me--at the same time

scared for herself, and I was scared for me and her--I guess I killed her.

"Q. You stabbed her some more times?

"A. Think so. I don't know how many."

Defendant stated that he thought he had stabbed Chandler three times in the chest and also in the

neck. White asked if he had dragged her body. He replied that he thought he had.

"Q. And why did you do that?

[*388] "A. Just like--I don't think I hid her--uh, way behind the incinerator.

"Q. What--you were trying to hide her, is that it?

"A. "Yeah, and I don't think I really did a good job of it, uh, but I did drag her.

"Q. Okay.

"A. Scared."

Defendant gave equivocal statements [****17] on whether he and Chandler had struggled at any

point, at first saying she did not fight him at all and then that "when we were walking to the

school she didn't."

Defendant returned home and washed his tennis shoes, which were greasy, in the kitchen sink.

When the police came to visit him later, the murder knife was in his house, hidden above a false

ceiling. He decided to rehide it where the police later recovered it.

D007

He denied any involvement in the assault on Charlotte J. Asked whether he had "raped other girls

before," he said no.

Ramage testified that on the morning of June 18, 1987, he heard about a murder at the Florence

Flanner School grounds, quickly concluded that defendant was capable of having committed it

because he had been willing to kill Charlotte J., and relayed his suspicion to several others. When

Baxter brought up the subject at the fast-food restaurant, he felt that he had to do something and

immediately obtained defendant's address for her. He denied any involvement in Chandler's

murder.

Ramage described the circumstances of his plea bargain arising from the assault on Charlotte J.

He was sentenced to eight years in prison and agreed to testify against [****18] defendant. He

stated that the agreement called for him to tell only the truth in testifying.

During the cross-examination described ante, at page 383, defendant tried to raise a question in

the jurors' minds whether Ramage might have killed Chandler. He asked Ramage whether he told

Danny Foster two or three days after Chandler's murder that he had seen a girl stabbed to death

on the school grounds. Ramage denied having told him so. He also denied having told Rosie

Cerna that he had been present at the murder, or having described Chandler's stab wounds to her.

And he denied that a statement he made to [*389] [***429] the police about the precise

location of Chandler's body came from personal knowledge-- [**463] rather, it came from

information the police supplied during their interview of him.

Alvarado testified that Chandler drove him to work about 2:45 a.m. on the day she was killed.

They had engaged in sexual intercourse earlier that night. When he last saw her she was clean

and free of bruises, scratches, or scrapes. She was wearing a sweatshirt in normal fashion--i.e.,

with an emblem facing out. As she dropped him off he asked her to buy sugar. He called the

[****19] police after returning home and seeing the unopened sugar near his parked car.

A criminalist from the coroner's office testified that at the crime scene she found dirt underneath

Chandler's waistband. She believed that the dirt and debris on her body came from the crime

scene, suggesting that she was killed where the school district police officer discovered her. Her

pants were on backward and her sweatshirt was inside out.

White testified that holes in the inside-out sweatshirt correlated with the stab wounds. The loose

and leaf-strewn soil in the area made it easy to see that, as mentioned, Chandler's body had been

dragged in two directions about ten feet. Her socks were thick with burrs and leaves; no shoes

were found at the scene. Adding to the criminalist's testimony, White explained to the jury that

he found only "[o]ne type of shoe print but many prints in the area."

Another criminalist compared plaster shoe print casts and photographs taken from the crime

scene with the soles of shoes defendant gave the police after their initial visit to his house. He

testified that one of the shoes had sole patterns and a size consistent with a cast and a photograph

taken at the crime [****20] scene, although neither contained enough detail to yield an exact

match to the actual shoe.

D008

Blood evidence was inconclusive. A serologist testified that defendant is a nonsecretor and

therefore blood-type tests done on semen found on Chandler's pants and on rectal and vaginal

samples taken from her body could not identify it as his, although the semen found on the pants

could have come from her boyfriend Alvarado, assuming that only his semen was present there.

Moreover, there was too little semen on the vaginal and rectal samples to be able to be able to

classify it according to blood type, and therefore it could have come from Alvarado as well. She

also testified that a minute amount of blood from a larger primate--a taxonomic order that

includes human beings--was found on the knife defendant produced for the police. [*390] And

she testified that three false fingernails collected at the crime scene tested positive on a

presumptive test for blood, but because of a laboratory problem she could not determine whether

the substance was human blood.

Toxicological tests revealed no trace in Chandler's blood of cocaine or other commonly abused

drugs.

Defendant did not testify [****21] in his own behalf, nor did he make an opening statement. His

strategy was to suggest that Ramage was Chandler's killer. Accordingly, he called Ramage as his

first witness, and Ramage acknowledged that when Baxter approached him he was feeling that

others suspected him of involvement in the murder. But he denied telling Rosie Cerna that he

was present at the murder, or telling Adrian Cervantes that he and defendant met Chandler on the

street and she went with them willingly. And neither Cerna nor Cervantes could recall Ramage

having made such statements. Cerna's testimony was impeached by that of Aquino, called as

defendant's witness, who testified that Cerna told him that Ramage told her, in counsel's words,

"that [defendant] started stabbing [Chandler] and he Ramage freaked out," and that Cervantes

told him that Ramage said that he and defendant had met Chandler on the street and she went

with them willingly. On cross-examination, however, Aquino explained that each interviewee

was uncertain about what Ramage may have said.

Defendant also adduced damaging character evidence about Ramage: twelve-year-old Monica O.

testified that when she was eight or nine years old Ramage sexually [****22] assaulted her. A

month earlier he had exposed himself to her. And a neighbor testified that Ramage customarily

wore a buck knife.

[***430] Defendant also introduced evidence regarding his history of drug use and its effects.

Dr. David Gorelick, a psychiatrist [**464] with a doctorate in pharmacology, testified that

cocaine use can make an individual violent and that such violence might be an aberration. His

testimony did not pertain to defendant's own psychology or his mental state at the time of the

crimes, but rather on the possible effects of drug use generally. Allan Figueroa, a friend who had

known defendant for 14 years, since elementary school, testified that defendant started using

drugs at age 11 or 12 (marijuana and alcohol), graduated to phencyclidine in ninth grade, and

during high school was a heavy consumer of phencyclidine and marijuana. About age 20 he also

began to use heroin and cocaine. In recent years "[h]e was loaded most of the time." When

intoxicated "[h]e became belligerent, arrogant, violent, incohe[r]ent." When sober, he would be

"[p]assive, comical, witty, somewhat intelligent." "He didn't lose his temper when he wasn't on

drugs."

D009

At closing [****23] argument, defendant argued that even though he confessed to killing

Chandler, he did not commit first degree murder, but second degree [*391] murder. He

acknowledged that he killed her intentionally, but argued that the prosecution had not proved

beyond a reasonable doubt that he acted with premeditation and deliberation. In his view, the

evidence of multiple stab wounds showed that he killed in a frenzy, not with calculation. He also

asserted that his consumption of an unprecedented quantity of cocaine on the night of the murder

caused him to lose his faculties. In sum, he was not able to deliberate, and because of voluntary

intoxication he lacked the "ability to form the specific intent and mental framework" to commit a

premeditated and deliberated murder.

Defendant also argued that the prosecution did not establish the corpus delicti of kidnapping

Charlotte J. for robbery--i.e., "the evidence was . . . inadequate to prove . . . that anybody

committed" that crime. He maintained that her purse was rifled before she was moved. With

regard to the other charges involving Charlotte J., he asserted that the prosecution had not proved

he was the individual who committed those crimes [****24] alongside Ramage. Charlotte J.'s

own testimony was flawed because of failures of perception and memory and because the lineup

procedures were suggestive. Ramage's testimony was not to be believed, first because he

originally provided information about defendant's possible culpability to avoid being suspected

of murdering Chandler, and, second, because he wanted to avoid a long prison sentence for the

offenses he committed against Charlotte J. Finally, defendant queried why he would admit to

murdering Chandler but deny the attack on Charlotte J.

With regard to the attack on Yolanda A., defendant conceded that he was guilty of assault with a

deadly weapon or with force likely to produce great bodily injury, but that was all.

In sum, defendant sought to persuade the jury "not that [he] is not guilty of any crimes," but that

he was not guilty of many of the crimes charged.

Guilt Phase Issues

Motions Regarding Defendant's Inculpatory Extrajudicial Statements

The trial court held an in limine hearing ( Evid. Code, § 402) on defendant's motion to suppress,

as improperly obtained, his extrajudicial inculpatory statements--i.e., his confession [****25]

that he killed Chandler and hid the knife--and to exclude evidence of the knife as deriving from

the involuntary statements. It held another hearing to rule on his contention that the prosecution

had not established the corpus delicti of rape or kidnapping.

Confession-related Issues

Defendant challenged the admissibility of his statements under various legal theories. In the trial

below, he identified four bases for his challenge. [*392] First, police harassment of him and his

family coerced him into taking a polygraph examination. Second, he should have been advised of

his rights under Miranda v. Arizona (1966) 384 U.S. 436 [86 S. Ct. 1602, 16 L. Ed. 2d 694, 10

A.L.R.3d 974], before being given the examination. Third, when they did [***431] try to advise

D010

him of his Miranda right to counsel after giving the examination, he failed to understand the

admonition and [**465] therefore did not knowingly and intelligently waive the right. Fourth,

he confessed in exchange for false promises of lenity. He renews these contentions on appeal.

1Link to the text of the note

[****26] Facts

The prosecution presented witnesses at the in limine hearing who testified about the

circumstances surrounding defendant's confession.

As stated, John Aquino was a detective for the Baldwin Park Police Department. He testified that

he received a call on June 18, 1987, that Chandler's body had been found at Florence Flanner

School in that community. White and Oberholtzer were assigned to investigate. There was no

homicide suspect in the following days.

On receiving Saundra Baxter's information, White interviewed Edward Ramage, who told him

that "Mike" "lived down the street from him and was very strange . . . and possibly could be the

suspect in our murder case."

Aquino and the other detectives went to the address and found defendant outside. He identified

himself as Lester, not Mike, and invited them inside. As they walked in all three detectives tried

to see the bottom of his shoes to compare them to shoe prints at the crime scene. His soles were

"very similar" to the shoe prints.

The officers asked defendant if he would take a polygraph examination "so we could exclude him

as a possible suspect." At this point Aquino "didn't really feel he was involved"; [****27] he

thought the chances of his being the perpetrator were 25 to 30 percent. Defendant told the

officers that he was with a man named Tony Liaiono until 12:00 or 12:30 a.m. on the night of the

[*393] murder. (White later testified before the jury that defendant also said he came home

afterward and stayed home all night.) But Liaiono said he last saw defendant at 7:00 to 7:30 p.m.

Aquino and Baldwin Park Police Detective Barry Bazzell went to get defendant for his polygraph

examination on June 25, 1987. Bazzell is six feet two inches tall and weighs two hundred twenty

to two hundred thirty pounds. Defendant said he was not going with them and that his father

wanted to speak with them. His father told them that he had spoken to a lawyer and had decided

that defendant should not take the examination.

Bazzell immediately got into a shouting match with the father. It was "very heated." Seeing that

"[t]he situation was going downhill quickly," Aquino intervened and said there was no need for

an argument. He never heard Bazzell threaten to arrest defendant's father or to tear the house

apart if the father did not leave the room.

Once Aquino intervened, the situation calmed down [****28] quickly. He was on his way to

leave, along with the other officers, but went back to the living room to apologize to defendant's

father. He explained that " '[w]e had reason to believe that Lester [defendant] might possibly be

D011

involved. One way to clear him is with a polygraph. It's strictly voluntary, and sorry for the

disturbance . . . .' "

Defendant then asked, in Aquino's words, "if he passed the test would we leave him alone," and

Aquino responded, "Lester, if you're not our suspect, I'm not going to waste the investigation

time with you." Defendant changed his mind and agreed to take the test. He was searched for

safety reasons before being put in the patrol car, but was not handcuffed or told he was under

arrest.

[***432] Downey Police Department Detective Dwight Hooker testified that he administered a

polygraph examination to defendant. He put him in a public waiting room from [**466] which

he was free to leave until he could get information on the case and prepare the questions. He

came back 30 to 45 minutes later to take him to the examination room. Initially the two were in

the room alone. He explained that taking a polygraph test is voluntary and handed defendant

[****29] a waiver to sign. He appeared to read it. (The record shows that he signed it in two

places. For the waiver's text, see post, at p. 402.) Hooker read him the questions in advance and

had him answer before hooking him up to the machine.

Explaining the polygraph procedure required some 15 minutes. Hooker performs this explanation

so that the waiver will be "a little bit more [*394] intelligent . . .; they know what they're

signing." At no time did defendant ask for a lawyer or say that he did not wish to be present or to

take the test.

The test consisted of 10 or 11 questions on 3 different charts, for a total of 30 to 33 questions.

Administering it required about one and one-quarter to one and one-half hours, and it began at

6:15 p.m. Afterward Hooker reviewed the results and told defendant he thought he had failed the

questions regarding Chandler's death. He then read him his Miranda rights from a card. Asked if

he wanted to give up his right to counsel, defendant said he did not understand the question. "So I

better explained it to him by saying, 'This means do you want to have a lawyer right here, right

now while I talk to you about this case?' [P] At that time [****30] he says, 'No, I want to talk to

my mother. I need to talk to my mom.' " (Defendant was 26 years old at the time.) Hooker denied

that request and began to question him about the murder. He told defendant he thought he was

involved in it. Initially defendant denied it. The interrogation's tone was "a low-key interrogation,

more or less a discussion . . . . It was more or less almost a conversation." Hooker said several

times that "I truly believe now that you killed the girl."

At 8:30 p.m. Officer Compton, who was also a polygraph examiner, joined the two. He came in

to read the charts. Compton told defendant the polygraph showed he was involved in the murder.

The police continued to talk to defendant about another hour. They told him, " 'Now's the time

for the truth to come out. It's something that's going to eat at you and eat you away.' "

At approximately 9:30 p.m. defendant "blurted out," in Hooker's words, " 'I didn't mean to kill

her,' [and] started to cry." "We comforted him a bit. Then he said, 'I didn't mean to kill her, I got

scared, I was loaded on cocaine.' "

D012

Hooker testified that there was no discussion of the consequences of failing to confess or about a

murder [****31] conviction. Nor was there any discussion about the penalty for murder. Nor did

defendant ask for any favor in exchange for a confession. Hooker did not threaten him or make

any promises to him.

Compton testified that he came into the polygraph room at 8:30 p.m. at Hooker's request to

examine the polygraph results. He told Hooker he thought defendant's answers were deceptive.

Defendant could hear this. Compton told him he thought he was involved in the homicide.

Hooker and Compton continued to talk to him for some time. He began to cry and said, "I didn't

mean to kill her." Neither Compton nor Hooker threatened defendant in any manner while

Compton was present.

[*395] White came in and readmonished defendant as to his Miranda rights from memory and

took a statement from him. He said "that he'd been out walking that evening; that he'd come

across a girl down the street from his house. He'd taken her at knife point over to Florence

Flanner School, had gone over by the incinerat[o]r, had intercourse with her, stabbed her to

death, and then later told me that he had hid the knife at some apartments not far from his house."

Defendant offered to produce the knife and said [****32] that he wanted to explain events to his

parents. White agreed. They went to an address on Puente Avenue. Defendant [***433] pointed

to a hole in a wall and White retrieved a knife from it.

Then they went to defendant's house. "I didn't take notes," Aquino testified, "but I remember

Lester saying to his family that, 'They're booking me for murder,' that he [**467] killed the girl

at the school, and his wife and his mother bec[a]me upset and were crying." Defendant accused

his family of culpability for the homicide because they hadn't gotten him help, evidently for

emotional problems. "There was another conversation . . . . [P] I remember his father was

standing like in a hallway facing the living room leaning against the doorjamb, and he said to

him, all I want--I only want to ask you one thing, did you do it, and he said he did, . . . and we

left."

They went back to the Baldwin Park police station, where defendant gave the taped statement

described ante, pages 386-388. White did not threaten him or offer him any promises of leniency.

Defendant had stated at the Downey police station that he needed help for his emotional

problems. White probably said briefly "We'll [****33] get you help." The only benefit defendant

affirmatively asked for was that the story not appear in the newspapers. They did not discuss the

penalty for homicide or a lesser prison sentence.

Defendant presented his own and his parents' testimony. His version of events differed

dramatically from that of the police.

In his own testimony on direct examination, defendant confirmed that on June 22, 1987, White

drove up in a black van and asked if he was "Mike." White also asked him for a physical form of

identification. Defendant said it was inside, and he went in, followed by White. Defendant turned

around and saw "a silver nickel-plated .45 automatic and I got shook up." The two were alone at

D013

the time. "I asked him, 'Why are you doing this?' He says, 'Walk right.' "

White and Oberholtzer questioned defendant about his activities on the evening of the homicide.

They asked to see the bottom of his shoes and [*396] Aquino said, "That's them." The police

officers confiscated the shoes without permission. They told him they were investigating a

schoolyard murder and asked if he knew anything about it. He said he had read about it in a

newspaper.

White asked defendant if he would [****34] take a polygraph examination. "His exact words to

me were, 'If you don't take the polygraph, we're not going to stop harassing you.' " But he either

refused to take the test or told him he wanted to talk to a lawyer or someone else first. He also

said he would let White or someone else know whether he would take the test. He denied having

a knife.

After talking to an attorney his mother had contacted, defendant decided not to take the

examination. He left two messages with Aquino at the Baldwin Park police station that he would

not undergo it.

On June 25, Aquino and a large-framed detective (presumably Bazzell) came to the house.

Aquino asked defendant if he was ready, and he said he was not going to take the test. Bazzell

and defendant's father started arguing. Bazzell said, "He's a grown boy. He can make his own

decisions." Bazzell also said, "We can tear this whole house apart." His father replied, "Go on

right ahead and you'll see what will happen." Bazzell said that if defendant didn't go, "we'll have

to do it the hard way." Aquino, by contrast, "was calm through the whole thing."

Defendant was concerned for his father's well-being. When defendant went to his bedroom

because [****35] he did not wish to participate in the argument further, Bazzell led him by the

forearm. He was debating whether to take the examination "just to satisfy them." He felt at that

point that he was a suspect. But he "went to take it [the examination] to get them off my father's

back, off my back and leave us alone."

At the Downey police station defendant was put in a room with an open door and waited one and

one-quarter to one and one-half hours for Hooker to return. It had a phone. A woman wearing

"rookie" clothing told him not to leave. She was working about 30 to 35 feet from him. As he

was moving around, she told him to " 'stay put,' and I asked where the detectives were at.

[***434] She didn't tell me where. Because they took a long time to get to me." "No one ever

told me I could leave [the Downey police station] any time I felt like it."

Asked why he signed the consent form for the test under such adverse circumstances, [**468]

defendant replied that there was no point in explaining it to [*397] Hooker, who already knew

that he was there involuntarily. But he conceded that in the polygraph room, Hooker told him that

he didn't have to take the examination. He [****36] took it anyway because "they wouldn't let

me go home" and he didn't feel free to leave the police station.

After telling defendant that he had failed the test, Hooker recited his Miranda rights to him.

D014

Defendant did not understand the part about having an attorney present prior to any questioning.

Hooker pulled out a Miranda card and read his rights to him more slowly, but he still did not

understand the right to counsel aspect. Again he asked to see his mother so she could get in touch

with his attorney. Hooker said it was too late for that.

Compton told him, "It's up to us if you go home." And then he stated, "It's up to us if you get 15

years." Then from 15 years he dropped down to 9. From nine years he dropped down to seven,

and then from seven years he dropped down to three. Compton also said, "It's up to us if you get

15 years because whatever we say in court goes. We're policemen." Eventually he promised him

a three-year sentence, or seven years at most.

Defendant confessed that "I did it" ABOUT 9:30 that night. He confessed in hopes of getting a

three-year sentence. Compton told him he had to confess if he wanted to receive that term.

White was then brought [****37] into the examination room. He read defendant his Miranda

rights. Defendant confirmed to White that he had committed the homicide.

On cross-examination, defendant conceded that he did not tell White that he didn't understand

part of his Miranda rights. He felt it would be a waste of time to do so.

Defendant testified that the transcript of his taped confession accurately recites that he told White

he stabbed the victim. The police did not force him to make that statement, but they induced it:

they told him that if he gave it he would get what he wanted--a reduced sentence.

Defendant testified that he did not know whether he killed Chandler. Neither did he know what

the police were going to use the taped confession for or why they wanted it.

Asked why he failed to call the attorney to whom his mother had spoken before leaving the house

where he had been threatened, defendant replied: "Just because a cop threatens me or my family,

I'm supposed to run to a lawyer[?] He'd probably laugh at me."

[*398] On redirect examination, defendant explained that when he testified that he did not know

whether he killed Chandler, he was flustered; what he meant was that he did [****38] not kill

her. He related his version of events on the night of Chandler's killing. He saw her walk toward

the school with another person, a male. He followed about 12 to 13 houses behind. He did this

because the male had something that defendant had to get back because it belonged to somebody

else. Defendant followed them onto the school grounds. Defendant was intoxicated by beer and

some $ 200 worth of cocaine. Accordingly, his recollection of events at the school as he testified

was "vague." It was also vague when he spoke to the police on June 25.

When defendant entered the school grounds, he stood in a lighted area for two to three minutes

and injected cocaine into his arm. He was under the influence of the drug. Afterward he followed

the two individuals toward the incinerator. From 25 feet away he saw the male individual

"swinging in an upward motion," meaning a thrusting motion. He could not see the target of the

thrusts. Then defendant startled the male, who "came up to me, handed me that knife and said,

D015

'Help me.' " That was the knife defendant hid in the wall.

Defendant also interpreted the male's request as a request to help him hide the body. Under the

influence of drugs, [****39] he helped him drag and hide it. The male went one way and

defendant the other. He knew the other [***435] man had killed a girl. He didn't notify the

police because "where I come from . . . you don't snitch on people." He was uncertain whether he

would reveal the man's identity even now, because the jailhouse penalty for informing would be

death.

[**469] Defendant's memory was as vague on the day of the confession as it was as he testified.

He agreed that he stated on tape that he had stabbed a girl at Florence Flanner School, but

testified that when he talked to White, he had no memory of actually doing so. Although he had

also said on tape that the victim took her clothes off, he testified that he did not remember that

event either.

With his own memory uncertain, defendant began to believe Hooker's accusations, even if he did

not know the truth of them. The police tricked him into exaggerating his involvement with their

spurious offer of a three-year sentence.

On recross-examination, defendant denied killing Chandler. He did not take her to the school

grounds. He did not engage in sexual intercourse with her or see anybody else do so. His only

involvement was helping [****40] hide the [*399] body and not turning in the actual culprit.

He did not know if the victim was dead or alive at that time. The actual killer tried to help

defendant drag the body, but was in a hurry to leave.

Defendant conceded that the actual killer was never a good friend of his. And he knew that the

other man had killed the victim. Why, the prosecutor asked, did he agree to take the knife?

"When he handed me the knife, I didn't know anybody was murdered."

Defendant's parents buttressed certain aspects of his contradictory and convoluted story, while

calling other details into question. His father, Jim Ochoa, testified that the police came to their

house on June 25, 1987, to take defendant to be polygraphed. Although Aquino "conducted

himself like a professional" that day, his partner "just blew up." They "made body contact several

times. No blows were thrown. . . . He said was going to rip my house apart if my son didn't go,

and I told the man-- [P] . . . [P] . . . 'you're going to find out something different.' " The father

talked about getting his son a lawyer, and the partner replied, "What do you need a lawyer for[?]

It won't do you no good. All they want is your [****41] money."

Jim Ochoa did not see either detective brandish a gun. He weighs two hundred and five to two

hundred and ten pounds and is five feet nine inches to five feet nine and one-half inches tall.

When defendant returned with several officers after the polygraph examination his father saw

him talking to Velia Ochoa, defendant's mother, and Elva Ochoa, defendant's wife. He could not

remember him saying anything about a murder. As they were leaving again, he told his father "

'he tricked me.' "

D016

Defendant's mother testified that after the police came to the house the first time, she hired the

attorney, who said he would advise defendant not to take the polygraph test. Defendant told her

that the lawyer told him the same thing. When the police arrived, she heard shouting and arguing.

The "big one" (presumably Bazzell) told her that " 'if Lester doesn't go, we'll do it the hard way.

We'll rip this house apart.' " Aquino, by contrast, "never argued with us." Defendant's mother

testified that defendant was also shouting during the argument.

Later that night defendant and the police returned to the house. The prosecutor asked Velia

Ochoa whether defendant had told her he had murdered [****42] someone, and she replied, "He

said he did it."

On rebuttal for the prosecution, Compton testified that he did not discuss any kind of deal with

defendant in the polygraph room on June 25. He did [*400] not offer him a fifteen-, nine-,

seven-, or three-year sentence in exchange for confessing. White testified that he did not own a

nickel-plated .45-caliber automatic handgun. He did not draw a weapon on defendant.

Bazzell testified that he and defendant's father had an argument about whether defendant was

adult enough to make his own decision about the polygraph test. But he did not threaten to rip the

house apart or threaten anyone. The incident lasted only 10 seconds, when Aquino interceded. He

stopped yelling because he could tell that [***436] Aquino was upset with him for interfering

with the case's investigation.

The Trial Court's Ruling

The trial court denied defendant's motion to suppress his confession and exclude evidence

[**470] of the knife. In its ruling, given orally from the bench, the court found "beyond a

reasonable doubt that the defendant's statement to the police officers was voluntary. [P] I'm

finding that his taking of the polygraph was [****43] voluntary. I'm finding that he was advised

of his constitutional rights, that he understood the constitutional rights and that he waived them."

The court mentioned that defendant's own testimony established that Hooker told him he did not

have to take the polygraph examination.

With regard to the purported offers of lenity in exchange for a confession, the trial court ruled

that "that did not occur." It based this ruling on Compton's testimony.

The trial court explicated its conclusion that defendant took the polygraph examination

voluntarily. Knowing "of his involvement and . . . that he was a suspect, and . . . that the

detectives had a shoe that is rather important evidence, it appears to the court that the defendant

was going to make an effort to extricate himself from involvement and that's why he agreed to

take the test."

The trial court also ruled that Miranda warnings require custody or significant limitations on

freedom of action and that defendant was not in custody because he "voluntarily accompanied the

police officers to take the polygraph test and [therefore] it wasn't necessary to Mirandize him

until [the examination results apparently showed] deceit by [****44] the defendant to certain

D017

key questions and at that time he was admonished by Detective Hooker."

With regard to the claim that defendant did not understand his right to counsel, the court, quoting

Hooker's testimony that defendant said he did not want to speak to a lawyer, but rather to his

mother, accepted that testimony [*401] as true, rejected the claim and ruled in sum that he

knowingly and intelligently waived his rights to counsel and to silence.

As described ante, at page 392, defendant's cognizable contentions are that evidence of his guilt

was inadmissible because the police harried him into taking a polygraph examination, failed to

read him his Miranda rights before giving it, failed to obtain a proper waiver when they did read

them to him, and improperly offered him lenity as an inducement to confess. On appeal,

defendant renews these contentions, arguing that his confession must be suppressed and the knife

excluded from evidence.

CA(1) (1) HN1 The prosecution bore the burden of establishing "the voluntariness of defendant's

waiver and confession . . . by a preponderance of the evidence." ( People v. Whitson (1998) 17

Cal. 4th 229, 248 [70 Cal. Rptr. 2d 321, 949 P.2d 18] [****45] [discussing Miranda claims];

accord, People v. Cahill (1994) 22 Cal. App. 4th 296, 310 [28 Cal. Rptr. 2d 1] [discussing

improper coercion or inducements].)

Discussion of Custody Claim

Defendant agrees that resolving his claim under Miranda v. Arizona, supra, 384 U.S. 436, in his

favor requires a conclusion that he was subject to custodial interrogation. He is correct. CA(2) (2)

"HN2 In applying Miranda . . . one normally begins by asking whether custodial interrogation has

taken place. 'The phrase "custodial interrogation" is crucial. The adjective [custodial]

encompasses any situation in which "a person has been taken into custody or otherwise deprived

of his freedom of action in any significant way." ' " ( People v. Mayfield (1997) 14 Cal. 4th 668,

732 [60 Cal. Rptr. 2d 1, 928 P.2d 485].) "Absent 'custodial interrogation,' Miranda simply does

not come into play." ( People v. Mickey (1991) 54 Cal. 3d 612, 648 [286 Cal. Rptr. 801, 818

P.2d 84].) The test for whether an individual is in custody is "OBJECTIVE . . .: '[was] there a

"formal arrest or restraint on freedom of movement" of the degree [****46] associated with a

formal arrest.' " ( Thompson v. Keohane (1995) 516 U.S. 99, 112 [116 S. Ct. 457, 465, 133 L.

Ed. 2d 383]; see also People v. Stansbury (1995) 9 Cal. 4th 824, 830 [38 Cal. Rptr. 2d 394, 889

P.2d 588].)

[***437] CA(3a) (3a) We conclude that defendant was not in custody, and therefore need not

and do not consider whether he was under interrogation.

CA(4) (4) HN3 The question whether defendant was in custody for Miranda purposes is a mixed

question of law and fact. ( Thompson [**471] v. Keohane, supra, 516 U.S. at pp. 112-113 [116

S. Ct. at pp. 465-466].) "Two discrete inquiries are essential to the determination: first, what

were the circumstances surrounding the interrogation; and second, given those circumstances,

would a reasonable person have felt he or she was not at liberty to terminate the [*402]

interrogation and leave. Once the scene is . . . reconstructed, the court must apply an objective

D018

test to resolve 'the ultimate inquiry': '[was] there a "formal arrest or restraint on freedom of

movement" of the degree associated with a formal arrest.' [Citations.] The first inquiry, all agree,

is distinctly [****47] factual. . . . The second inquiry, however, calls for application of the

controlling legal standard to the historical facts. This ultimate determination . . . presents a

'mixed question of law and fact' . . . ." (Ibid., fn. omitted.) Accordingly, HN4 we apply a

deferential substantial evidence standard ( People v. Memro (1995) 11 Cal. 4th 786, 826 [47 Cal.

Rptr. 2d 219, 905 P.2d 1305]) to the trial court's conclusions regarding " 'basic, primary, or

historical facts: facts "in the sense of recital of external events and the credibility of their

narrators . . . ." ' " ( Thompson v. Keohane, supra, 516 U.S. at p. 110 [116 S. Ct. at p. 464].)

Having determined the propriety of the court's findings under that standard, we independently

decide whether "a reasonable person [would] have felt he or she was not at liberty to terminate

the interrogation and leave." ( Id. at p. 112 [116 S. Ct. at p. 465].)

CA(3b) (3b) It is clear from the foregoing recitation of the testimony of the sheriff's and police

detectives that substantial evidence sustains each of the trial court's factual findings. We turn to

the question, which we must decide [****48] on independent review, whether a reasonable

person in defendant's position would have felt free to end the questioning and leave.

In our view, a reasonable person in defendant's position would have realized that he could end

the questioning and leave. Most important, defendant signed a statement that told him that the

interview was voluntary. It stated: "I, Lester R. Ochoa, do hereby agree to submit myself to an

instrumental detection of deception examination. The polygraph examiner in this case is D.R.

Hooker. [P] I am taking this examination freely and voluntarily, and without any promise of

reward or immunity, and without any force (mental or physical), or threat of any force. [P] I

clearly understand that I am not required to make any statements relative to this case." A

reasonable person in defendant's position, knowing that he or she need say nothing at all, would

understand that he or she would do the examiner a favor by offering to leave rather than wasting

the examiner's time by sitting mute.

Moreover, the trial court's implicit conclusion that defendant sat unguarded in a public waiting

room is incompatible with custody. At oral argument, defendant emphasized that [****49] once

he was in the examination room he was connected to the polygraph machine and not free to

wander about without disconnecting its apparatus from him. But the waiver told him clearly that

the interview was voluntary, and the trial court found that he [*403] knew he did not have to

take the examination. A reasonable individual knows that he or she can end a voluntary

association with other individuals at will. This is so despite the location of defendant's

questioning: the fact that he was questioned in the police station's polygraph examination room

does not necessarily require a finding of custody, even if the room was in a secure area. ( People

v. Stansbury, supra, 9 Cal. 4th at pp. 833-834.)

At oral argument, defendant also asserted that the similar facts of People v. Aguilera (1996) 51

Cal. App. 4th 1151 [59 Cal. Rptr. 2d 587], in which the court reversed a conviction on grounds

of a Miranda violation, require the same result here. We do not agree. There are factual

similarities. But in Aguilera, the court found that a reasonable individual would experience a

degree of restraint "normally associated with a formal arrest" ( [****50] id. at p. 1161) in part

D019

[***438] because the police, as the court emphasized with italics, told the defendant that "

'[w]e're not gonna let you leave here until we go talk to the girl, and she's not gonna be able to

confirm the story . . . .' " ( Id. at p. 1160; see id. at p. 1163). Nor does Aguilera say that [**472]

the defendant in that case was given and signed a formal advisement that the questioning was

voluntary--rather, an officer merely informed him that he was not in custody ( id. at pp. 1159,

1163). Without either approving or disapproving Aguilera's compilation of circumstances that in

its view tend to prove or disprove custody ( id. at p. 1162), we find certain facts in that case

notably unlike the facts of this one.

Discussion of Other Confession-related Claims

We turn to defendant's claims that he did not confess voluntarily and that he did not understand

his right to counsel.

CA(5) (5) "HN5 What the Constitution permits to be admitted in evidence is 'the product of an

essentially free and unconstrained choice . . .' to confess. [Citations.] The question is whether

[****51] defendant's choice to confess was not 'essentially free' because his will was overborne.

. . . [P] The police testified that defendant was not threatened, was offered no inducement, and

[understood] his rights to counsel . . . . The court believed the testimony of the police . . . . HN6

We must accept its evaluation of the facts when substantial evidence supports it, as the testimony

does. [Citation.] Doing so, independently resolving the legal question whether the confession was

voluntary is a simple task: it was." ( People v. Memro, supra, 11 Cal. 4th at p. 827.) That is also

true of the waiver claim: defendant understood his right to counsel and waived it. In sum, each of

defendant's remaining contentions is without merit.

[*404] Corpus Delicti

Defendant contends that the prosecution did not establish the corpus delicti of the special

circumstances of rape and kidnapping Chandler, and hence the jury was not entitled to hear his

confession to the crimes. We disagree: the corpus delicti was established.

In the middle of trial, but before the jury heard defendant's taped confession, the court heard

argument in the jury's absence on whether the corpus [****52] delicti of Chandler's rape and

kidnapping had been established by testimony given so far.

The court found "that there is a corpus [delicti] as to rape and kidnapping.

"As to the rape, . . . that the sweat shirt is inside out, that the pants are on backward is an

indication that at sometime the body was disrobed and that it was covered on again." The court

also referred to the presence of semen and the "ample evidence of force and violence."

With regard to kidnapping, the court took note of the testimony that Chandler loved her

boyfriend and was not likely to go willingly with someone else for a sexual purpose. It also

mentioned the bag of sugar found beside the car and the evidence of violence at the crime scene.

"All of this indicates . . . that the victim was taken against her will . . . ."

D020

As we will explain, the court's rulings were sound.

Because Chandler was killed before the enactment of Penal Code section 190.41--all unlabeled

statutory references are to this code--the law required the prosecution to prove the corpus delicti

of the special circumstances of rape and kidnapping. ( People v. Zapien (1993) 4 Cal. 4th 929,

985, fn. 7 [17 Cal. Rptr. 2d 122, 846 P.2d 704].) [****53]

CA(6) (6) HN7 The law of corpus delicti contains "two distinct, though related, concepts . . . .

First, the corpus delicti is a necessary element of the prosecution's case in a criminal trial . . . .

Thus, a precondition to conviction is that the state prove that a 'crime' has been

committed--otherwise there could not possibly be guilt, either in the accused or in anyone else.

[P] The second concept is closely related to the first. HN8 The 'corpus delicti rule' prohibits the

prosecutor from establishing the corpus delicti . . . through the use of the extrajudicial statements

of the defendant. [Citations.] Thus the state must prove the [***439] corpus delicti

independently of the accused's out-of-court declarations. The rule further provides that once the

corpus delicti has [*405] been proved by such evidence aliunde, the extrajudicial statements

then become admissible to determine the defendant's connection with the crime." (Comment,

California's [**473] Corpus Delicti Rule: The Case for Review and Clarification (1973) 20

UCLA L.Rev. 1055, fn. 1.) A defendant cannot be held to answer a criminal complaint following

a preliminary examination [****54] unless the magistrate is satisfied that the corpus delicti has

been established. (§ 859b, 871, 872.)

"The purpose of the corpus delicti rule is to assure that 'the accused is not admitting to a crime

that never occurred.' " ( People v. Jones (1998) 17 Cal. 4th 279, 301 [70 Cal. Rptr. 2d 793, 949

P.2d 890].) Hence, HN9 before a confession may be introduced " 'slight corroborating facts' " (

People v. Jones (1867) 31 Cal. 565, 569) must show independently "that a crime has been

committed by someone" ( People v. Cobb (1955) 45 Cal. 2d 158, 161 [287 P.2d 752]).

Significant here, "HN10 the prosecution need not eliminate all inferences tending to show a

noncriminal cause of [the harm]. Rather, the foundation may be laid by the introduction of

evidence which creates a reasonable inference that the [harm] could have been caused by a

criminal agency [citation], even in the presence of an equally plausible noncriminal explanation

of the event." ( People v. Jacobson (1965) 63 Cal. 2d 319, 327 [46 Cal. Rptr. 515, 405 P.2d

555].)

Corpus Delicti of Chandler's Rape

CA(7) (7) Defendant argues that the prosecution failed to establish [****55] the corpus delicti

of Chandler's rape because (1) the semen found on her body was entirely explainable by sexual

relations with her boyfriend Alvarado on the night of the killing, and (2) the fact that her

sweatshirt was on inside out and her pants backwards could have resulted from dressing in haste

to take Alvarado to work just before she was killed. We do not agree.

"HN11 No universal and unvariable rule can be laid down in regard to the proof of the corpus

delicti. Each case depends upon its own peculiar circumstances." ( State v. Williams (1905) 46

D021

Or. 287, 297 [80 P. 655, 660]; accord, Keyes v. State (1964) 236 Md. 74, 78 [202 A.2d 582,

583-584]; Desilvey v. State (1943) 245 Ala. 163, 165 [16 So.2d 183, 184]; People v. Schneider

(1935) 360 Ill. 43, 51 [195 N.E. 430, 433].) But People v. Jennings (1991) 53 Cal. 3d 334 [279

Cal. Rptr. 780, 807 P.2d 1009] is a model that, with allowance made for somewhat different

facts, applies here.

In Jennings, the victim's body "was found in an irrigation canal in a rural area. She was

unclothed, and although forensic examination detected she had [****56] [*406] suffered a

broken jaw, the advanced decomposition of her body made determining whether she had been

sexually assaulted impossible." ( People v. Jones, supra, 17 Cal. 4th at pp. 302-303.) Still we

found that the trial court properly admitted evidence of the defendant's extrajudicial statement

that he had raped the victim before killing her. "Although we characterized the independent

evidence of rape as ' "thin" ' ( People v. Jennings, supra, 53 Cal. 3d at p. 369), we nevertheless

concluded that the unclothed condition of the victim's body, its location when found, and the

evidence of a broken jaw, considered together, were sufficient to establish the corpus delicti of

rape." (Id. at p. 303.)

In this case, Alvarado testified that when he last saw Chandler--i.e., as she drove him to

work--she was wearing her sweatshirt in an orthodox fashion. He also testified that she was clean

and unmarked by evidence of trauma. (Ante, at p. 389.) When found, the state of her clothing and

hygiene suggested that she had been brutalized. By analogy to Jennings, that evidence suffices to

satisfy the corpus delicti--i.e., to establish the [****57] trustworthiness of defendant's confession

that he raped her.

We need not rely on the evidence of semen to reach the foregoing conclusion. It could be argued

that because identity forms no part of the corpus delicti, the fact that the semen could not be

established as defendant's is immaterial. On the other hand, the serologist testified that all of the

semen [***440] found with Chandler's body could have come from consensual sexual relations

with her boyfriend Alvarado (ante, at p. 389), and it could be argued that it would be unfair under

the state of the evidence to rely on the presence of semen to establish the corpus delicti. [**474]

There is no need to do so, however; the nonserological evidence of rape sufficed to meet the

corpus delicti requirement.

Corpus Delicti of Chandler's Kidnapping

CA(8) (8) Likewise, the evidence sufficed to satisfy the corpus delicti of kidnapping. Chandler

was found, some distance away from her home, in a schoolyard with evidence of trauma. She

was shoeless; her socks were thick with leaves and burrs. This was at least slight evidence (

People v. Jones, supra, 17 Cal. 4th at p. 301) to show that she did not accompany [****58]

defendant willingly--it would be unusual for someone to agree to accompany another to a

location in the dark without shoes that she could easily obtain inside her house. Second,

Chandler's housemates found an unopened bag of sugar beside the locked car. Alvarado had

asked her to buy sugar when she dropped him off at work. Of course, it is conceivable that she

could have simply left the bag of the sugar by the car, rather than taking it in the house [*407]

or replacing it in the car, and gone with defendant willingly to the place she was killed--just as it

D022

is conceivable that she did not mind walking through burrs and leaves in her socks. But as stated,

"the prosecution need not eliminate all inferences tending to show a noncriminal cause of [the

harm]." ( People v. Jacobson, supra, 63 Cal. 2d at p. 327.) The corpus delicti may be established

"even in the presence of an equally plausible noncriminal explanation of the event." (Ibid.) It is at

least equally plausible that Chandler dropped the sugar and unwillingly went with defendant

when he accosted her and forcibly took her, shoeless, to the schoolyard.

Failing to Appoint Arthur Lindars as Second [****59] Defense Counsel

Defendant contends that the court erred in denying his motion to appoint or not to remove Arthur

Lindars as a second attorney to represent him (see Keenan v. Superior Court (1982) 31 Cal. 3d

424, 434 [180 Cal. Rptr. 489, 640 P.2d 108]). He argues that Lindars, the husband of his counsel,

Mary Lynn Huston, had established an attorney-client relationship with him and that the court

violated his right to the effective assistance of counsel when it did not permit Lindars to represent

him at trial.

The court (for this hearing Judge Robert Martinez; the case was tried before Judge Alfonso M.

Bazan) held a hearing on the matter before trial. Huston testified that Judge Thomas F. Nuss

ordered Keenan counsel appointed and mentioned in chambers that he would appoint Lindars to

that role, but that she could find nothing in the court's records or her own ordering Lindars's

appointment. Judge Nuss testified that he did not recall the motion for Keenan counsel, which

defendant contended resulted in Lindars's appointment on October 16, 1987. Counsel argued that

Lindars had done "a great deal of work in this case. He has reviewed everything in the file,

[****60] on top of which we have discussed our trial strategy at length and made plans for it."

The court ruled that no Keenan counsel had been designated and that such designation remained

to be done. It rejected Lindars's appointment for two reasons: its fear that a husband-and-wife

team might create a perception of impropriety among members of the public, who might wonder

if they were billing conversations over meals to them; and its concern that "this case is presently

set on a date that can potentially conflict with the Snoke case"--i.e., People v. Snoke, apparently a

criminal case also involving special circumstance allegations. It ordered Huston to submit the

names of seven attorneys that would be acceptable co-counsel to her. Counsel called the court's

first stated reason for rejecting Lindars's appointment an "affront."

On January 21, 1988, the court appointed David J. Daugherty as defendant's second counsel.

[*408] CA(9) (9) HN12

[***441] The decision to appoint Keenan counsel is reviewed for abuse of discretion. ( People

v. Wright (1990) 52 Cal. 3d 367, 411 [276 Cal. Rptr. 731, 802 P.2d 221].) The decision whom to

appoint to that role must also be reviewed [****61] for abuse of discretion. Moreover, HN13 we

review the court's ruling that no Keenan counsel was ever appointed on a [**475] deferential

substantial evidence standard: the inquiry is of a factual nature. (See Alexander v. Superior Court

(1994) 22 Cal. App. 4th 901, 918-919 [27 Cal. Rptr. 2d 732].)

CA(10) (10) Substantial evidence supported the ruling that no appointment was ever made.

D023

Hence the question before us is not whether the court erred in relieving Lindars, but whether it

abused its discretion in refusing to appoint him in the first place. It did not. We will defer to the

trial court's second stated reason for refusing to appoint Lindars--the possibility of a conflict with

the Snoke case. We note, too, that there is no evidence in this record that an attorney-client

relationship was ever established. At most, Lindars made himself familiar with the case and

discussed strategy with Huston. Defendant may not even have been aware of these efforts at the

time they were made, much less of an attorney-client relationship with Lindars.

Denying Motion to Sever Counts

In case No. A885934, defendant was charged with crimes against Chandler. In case No.

A886206, he [****62] was charged with crimes against Charlotte J. and Yolanda A. The

prosecution moved to consolidate the two cases. Defendant moved in turn to sever the counts

charging crimes against Yolanda A. from those charging crimes against Charlotte J. in case No.

A886206. The court granted the prosecution's motion and thereby implicitly denied defendant's.

Defendant now contends that the court committed error under state law.

CA(11) (11) HN14 We review the court's rulings, explicit and implicit, for abuse of discretion.

(See People v. Cummings (1993) 4 Cal. 4th 1233, 1284 [18 Cal. Rptr. 2d 796, 850 P.2d 1].) A

court abuses its discretion when its rulings fall "outside the bounds of reason." ( People v.

DeSantis (1992) 2 Cal. 4th 1198, 1226 [9 Cal. Rptr. 2d 628, 831 P.2d 1210].) These did not do

so.

HN15 The governing statute is section 954, which provides in relevant part: "An accusatory

pleading may charge . . . two or more different offenses of the same class of crimes or offenses,

under separate counts, and if two or more accusatory pleadings are filed in such cases in the same

court, the court may order them to be consolidated. . . ."

CA(12a) (12a) "Consolidation usually promotes [****63] efficiency, and this case was no

exception. Consolidation obviated the need to select an additional jury [*409] . . . ." ( People v.

Mason (1991) 52 Cal. 3d 909, 935 [277 Cal. Rptr. 166, 802 P.2d 950].) HN16 Because

consolidation ordinarily promotes efficiency, the law prefers it. "Joinder of related charges,

whether in a single accusatory pleading or by consolidation of several accusatory pleadings,

ordinarily avoids needless harassment of the defendant and the waste of public funds which may

result if the same general facts were to be tried in two or more separate trials [citation], and in

several respects separate trials would result in the same factual issues being presented in both

trials." ( People v. Brock (1967) 66 Cal. 2d 645, 655 [58 Cal. Rptr. 321, 426 P.2d 889].) 2Link to

the text of the note Thus "[a] defendant can prevent consolidation of properly joined charges only

with a 'clear showing of prejudice' . . . ." ( People v. Mason, supra, 52 Cal. 3d at p. 935.)

[****64] HN17

"[T]he propriety of a ruling on a motion to sever counts is judged by the information available to

the court at the time the motion is heard." ( People v. Cummings, supra, 4 Cal. 4th at p. 1284.)

D024

The same is true of a motion to consolidate. (See People v. McClain (1942) 55 Cal. App. 2d 399,

402 [130 P.2d 978].) CA(13a) (13a) The requirements for joinder were met here because the

information available [***442] at the time was that each individual was a victim of the same

class of crimes--sexually assaultive conduct (see People v. Rhoden (1972) 6 Cal. 3d 519,

524-525 [99 Cal. Rptr. 751, 492 P.2d 1143])--facilitated by means of a knife (see People v.

Hawkins (1995) 10 Cal. 4th 920, 941 [42 Cal. Rptr. 2d 636, 897 P.2d 574]), and with the intent

to kill ( People v. [**476] Miller (1990) 50 Cal. 3d 954, 988 [269 Cal. Rptr. 492, 790 P.2d

1289]). " 'Since the requirements for joinder were satisfied, defendant can predicate error only on

a clear showing of potential prejudice.' " ( People v. Osband (1996) 13 Cal. 4th 622, 666 [55 Cal.

Rptr. 2d 26, 919 P.2d 640].)

There is no question [****65] that evidence of each set of crimes would have been admissible in

trying each other set to show both intent and plan. ( Evid. Code, § 1101, subd. (b).) Hence any

inference of prejudice was dispelled. The court did not abuse its discretion in granting the

prosecution's motion to consolidate and implicitly denying defendant's motion to sever.

CA(12b) (12b) Finally, HN18 "[e]ven if the ruling was correct when made, we must reverse if

defendant shows that joinder actually resulted in 'gross unfairness,' amounting to a denial of due

process." ( People v. Arias (1996) 13 Cal. 4th 92, 127 [51 Cal. Rptr. 2d 770, 913 P.2d 980].)

CA(13b) (13b) No gross unfairness occurred. All of the charges were quite inflammatory in

nature. Though the murder case was buttressed by defendant's confession, the crimes against

Charlotte J. and Yolanda A. were proved by strong evidence. [*410] And as explained, the

evidence of each set of crimes was cross-admissible to show intent and plan. No due process

violation occurred.

CA(14) (14) Because the evidence was cross-admissible to show intent, we also reject

defendant's contention that the court erred by failing to instruct the jury, on its own motion,

[****66] that it should not consider evidence of the assault on Yolanda A. for any other

purpose, including propensity for violence (see Evid. Code, § 1101, subds. (a), (b)).

Defendant correctly notes that the trial court ordered the prosecution not to urge the jury to

consider evidence of the attack on Yolanda A. for any other purpose:

"MR. HEARNSBERGER [THE PROSECUTOR]: Well, I think you're telling me that I cannot

argue from the [Yolanda A.] attack that the jury can use that in any way with regard to the

defendant's intent or any other type of-"THE COURT: That's correct.

"MR. HEARNSBERGER: --[Evidence Code section] 1101(b) type argument-"THE COURT: That's correct.

"MR. HEARNSBERGER: --toward the Chandler or--

D025

"THE COURT: That's correct.

"MR. HEARNSBERGER: I disagree with the court's ruling and I'd like to be heard in that regard,

but I don't need to be right now.

"THE COURT: That's fine."

Though the record shows that the court supervised the trial of this case with extraordinary

competence and diligence, we agree with the People that this ruling was erroneous. As we have

explained, evidence of each assault could [****67] be used under Evidence Code section 1101,

subdivision (b), to show defendant's mental state for each other assault, namely his intent. The

prosecution introduced evidence that he intended to kill Charlotte J. and would have done so had

Ramage not interceded; that he intended to kill Yolanda A. and would have done so had Faviola

Ambriz not interceded; and that he intended to and did kill Chandler. The jury rejected the

prosecution's contention that he intended to kill Yolanda A., but it was a tenable theory for which

evidence was cross-admissible under subdivision (b) of Evidence [*411] Code section 1101.

The court's tentative ruling was erroneous. Because defendant's contention that the court should

have instructed the jury not to consider the Yolanda A. evidence for any other purpose is

predicated on a ruling to which he was not entitled, his contention does not withstand scrutiny.

And if he is arguing that the court had a sua sponte duty at least to instruct the jury not to

consider evidence of each attack as improper character evidence, we disagree: "in general, HN19

the trial court is under no duty to instruct sua sponte on [****68] the limited admissibility

[***443] of evidence of past criminal conduct." ( People v. Collie (1981) 30 Cal. 3d 43, 64 [177

Cal. Rptr. 458, 634 P.2d 534, 23 A.L.R.4th 776], fn. omitted.)

Propriety of Eyewitness's Pretrial Identification of Defendant

CA(15a) (15a) Defendant contends that the state denied him due process of law under the

Fourteenth [**477] Amendment to the United States Constitution and article I, section 15, of

the California Constitution (hereafter the due process clauses) when the police showed Charlotte

J., the victim of the rape that defendant was suspected of committing about six months before the

murder, a single photograph of him in profile following a pretrial photographic lineup containing

six pictures. We cannot agree.

Defendant filed a motion seeking to exclude Charlotte J.'s identification of him in court. He

contended in effect that allowing her to do so would violate the due process clauses. The court

held an in limine hearing on the matter.

At the hearing, Charlotte J. testified that she is nearsighted. She was walking to her apartment

when someone grabbed her from behind, knocking her glasses off as he covered her eyes.

Nonetheless, [****69] as he was taking her to another location she "got a good look at . . . his

side profile" before he shoved her head down. Later she would have nightmares containing an

image of that profile. She could not describe her assailant in words to a police officer after the

attack; she was "blocking everything out" and would have to see him to describe him. "I knew I

could pick them out. I knew if I saw them again on the street I could picture that. But to describe

D026

somebody" was difficult; she was reluctant to do it. She told a police officer that the assailant

was five feet six inches tall, thin, and weighed one hundred thirty pounds, whereas defendant is

five feet eleven inches tall and weighs one hundred fifty-five pounds. Later a second assailant,

Ramage, joined them and the first man had him blindfold her. Ramage is five feet five inches tall

and weighs one hundred forty-five pounds.

Aquino contacted her shortly after the murder, explaining that a similar crime had occurred at the

same location. After having her read and sign a [*412] caution that the photographs he was

about to show her might not contain any suspect in her case, he showed her two cards containing

photographs. She [****70] "recognized instantly" Ramage's likeness in one set of photographs.

Viewing defendant in another set of six photographs, she identified him less than positively,

telling Aquino that he "looked familiar, but I needed a side profile." She "didn't want any doubt

to be there in my mind at all . . . ." Aquino, who happened to have a photographic profile of

defendant from the investigation but none of any other lineup participant, showed it to her (with

some reluctance, as he was concerned about the legal implications), and asked her if the subject

looked familiar. He told her it was the only profile he had, but that this fact should not influence

her. Seeing it, Charlotte J. recognized defendant, "broke down" and felt physically ill and scared.

At the hearing she insisted that the profile "was [of] him. It is him. I don't know what to say [P] .

. . [P] to convince you [the trial court] that it is him. [P] . . . [P] Not only did I recognize him, but

. . . it brought something out, too, you know. I hid it back inside and I didn't want to remember it.

And afterwards, it just clicked." She further testified that "[o]nce I saw the side profile, I had no

doubt whatsoever."

Later [****71] Charlotte J. identified defendant in a physical lineup, although at the time she

had trouble identifying him as the first or second rapist. She based this identification on the

incident, not on the photographs she had already seen.

The trial court denied the motion. As relevant here, it ruled that showing Charlotte J. a profile

solely of defendant, though not the ideal procedure, was not "unnecessarily suggestive." As

stated, she identified defendant to the jury as the man who abducted and raped her.

CA(16) (16) HN20 Defendant bore the burden of showing an unreliable identification procedure.

( People v. DeSantis, supra, 2 Cal. 4th at p. 1222.) "HN21 The issue of constitutional reliability

depends on (1) whether the identification procedure was unduly suggestive and unnecessary

[***444] [citation]; and if so, (2) whether the identification itself was nevertheless reliable under

the totality of the circumstances, taking into account such factors as the opportunity of the

witness to view the criminal at the time of the crime, the witness's degree of attention, the

accuracy of his prior description of the criminal, the level of certainty demonstrated at the

confrontation, and [****72] the time [**478] between the crime and the confrontation

[citation]. If, and only if, the answer to the first question is yes and the answer to the second is

no, is the identification constitutionally unreliable." ( People v. Gordon (1990) 50 Cal. 3d 1223,

1242 [270 Cal. Rptr. 451, 792 P.2d 251].) In other words, "[i]f we find that a challenged

procedure is not impermissibly suggestive, our inquiry into the due process claim ends." ( United

States v. Bagley (9th Cir. 1985) 772 F.2d 482, 492.)

D027

[*413] CA(15b) (15b) Defendant argues that standards of constitutional reliability required

Aquino to show Charlotte J. photographs of the profiles of all six men in the photographic

lineup. But he does not persuade us that he met his burden of showing an unduly suggestive

identification procedure. HN22 The standard of review for a claim of undue suggestiveness

remains unsettled, as it was when we decided People v. Gordon, supra, 50 Cal. 3d 1223. (See id.

at pp. 1242-1243.) As recently as People v. Carpenter (1997) 15 Cal. 4th 312, 367 [63 Cal. Rptr.

2d 1, 935 P.2d 708], we declined to specify a standard of [****73] review. But even under

independent review, the record is clear that it was not unduly prejudicial. Thus, there is no need

to consider reliability under the totality of the circumstances listed in the previous paragraph.

To begin with, HN23 "[t]he 'single person showup' is not inherently unfair." ( People v. Floyd

(1970) 1 Cal. 3d 694, 714 [83 Cal. Rptr. 608, 464 P.2d 64].) 3Link to the text of the note More

important yet as it relates to this case: for a witness identification procedure to violate the due

process clauses, the state must, at the threshold, improperly suggest something to the

witness--i.e., it must, wittingly or unwittingly, initiate an unduly suggestive procedure. Due

process does not forbid the state to provide useful further information in response to a witness's

request, for the state is not suggesting anything. This point was established in California in

People v. Slutts (1968) 259 Cal. App. 2d 886 [66 Cal. Rptr. 862]. "A procedure is unfair which

suggests in advance of identification by the witness the identity of the person suspected by the

police." ( Id. at p. 891.)

[****74] In sum, we are not persuaded that the due process clauses were violated. The court did

not err in denying defendant's motion. 4Link to the text of the note

Sufficiency of Evidence of the Special Circumstances

CA(17) (17) Defendant contends that there was insufficient evidence to find true the special

circumstance allegations, so that doing so [****75] violated the due process clauses. In

reviewing a claim that there was insufficient evidence of the special circumstances to find them

true, " HN24 'we must determine "whether, after viewing the evidence in the light most favorable

to the prosecution, any [*414] rational trier of fact could have found the essential elements of

the [allegations] beyond a reasonable doubt." ' " ( People v. Osband, supra, 13 Cal. 4th at p. 690,

italics deleted, bracketed word added here.)

There is no doubt that the prosecution presented sufficient evidence. A rational trier of fact could

conclude from defendant's confession alone that he kidnapped, [***445] raped, and murdered

Chandler. He furnished the police with the details of each offense. Physical evidence found at the

crime scene provided yet additional proof of the offenses. We have listened to defendant's taped

statement. Contrary to his contention that it was vague and that he verged on incoherence, we

find that he sounded calm, composed and lucid as he spoke in a [**479] monotone. There was

no violation of the due process clauses.

Failing to Establish Scientific Reliability of Blood Tests

As stated, a serologist [****76] testified that a knife and false fingernails tested presumptively

D028

positive for blood. (Ante, at pp. 389-390.) Defendant did not object. He now contends that "no

evidentiary foundation whatsoever was laid for the admission of the results of the presumptive

blood test, nor was even the type of blood test being used ever identified in the trial record.

Similarly, no foundation was admitted that the tests used . . . were accepted as reliable." He

appears to claim that these lapses violated the state law requirement that the reliability of the tests

be established in various respects before this forensic evidence could be admitted. ( People v.

Leahy (1994) 8 Cal. 4th 587, 594, 604 [34 Cal. Rptr. 2d 663, 882 P.2d 321], discussing People v.

Kelly (1976) 17 Cal. 3d 24 [130 Cal. Rptr. 144, 549 P.2d 1240], and Frye v. United States (D.C.

Cir. 1923) 293 Fed. 1013 [54 App.D.C. 46, 34 A.L.R. 145].)

Having failed to object on Kelly/Frye grounds to the admission of the evidence, however,

defendant has not preserved his claim. ( People v. Kaurish (1990) 52 Cal. 3d 648, 688 [276 Cal.

Rptr. 788, 802 P.2d 278].)

CA(18) (18) Defendant [****77] asserts that if we reject his claim on that basis, his counsel's

failure to object constituted ineffective assistance of counsel. We disagree. HN25 A defendant

claiming ineffective assistance of counsel under the federal or state Constitution must show both

deficient performance under an objective standard of professional reasonableness and prejudice

under a test of reasonable probability of a different outcome. ( People v. Ledesma (1987) 43 Cal.

3d 171, 216-218 [233 Cal. Rptr. 404, 729 P.2d 839].) Defendant is unable to show that counsel's

performance resulted in prejudice to him. As stated, the blood evidence was inconclusive; the

jury could not have given it [*415] much weight. Its evidentiary significance paled by

comparison to defendant's confession--there is no reasonable probability of a different outcome.

Showing Alvarado Postmortem Photographs of Chandler

CA(19) (19) The trial court permitted the prosecution to show Juan Carlos Alvarado postmortem

photographs of Lacy Chandler, his girlfriend, over defendant's objection that this procedure was

unduly prejudicial ( Evid. Code, § 352). Defendant had argued unsuccessfully that Alvarado had

[****78] already shown distress on the witness stand and that showing him the photographs

would induce more visible distress and inflame the jury. The prosecutor said he needed to show

Alvarado the photos for corpus delicti purposes--specifically, to establish that when he last saw

her, just before defendant abducted her, that she was not in the disheveled state in which she was

found. (See ante, at p. 389.) He pointed out that defendant was challenging the corpus delicti of

the rape special circumstance, a challenge that was pending, and that the evidence already

introduced was of little help in establishing the corpus delicti. He also argued that the

photographs were relevant to the question of intent to kill. In response, defendant argued that

Alvarado had already testified that Chandler was clean and free of signs of trauma when he last

saw her.

The court ruled that it had weighed the probative value of the photographs against their

prejudicial effect and that the prosecution could show Alvarado four of them. The prosecution

elected to show him three: exhibits numbered 37, 38, and 39. All were postmortem photographs

of Chandler. The prosecution asked the court to agree, with regard [****79] to exhibit No. 37,

that "I'm only showing the . . . portion of the photograph showing a sweat shirt and an emblem on

D029

it," and the court did so.

[***446] Defendant contends that the court erred under state law and violated the due process

clauses by overruling his objection to showing Alvarado the photographs.

HN26 We review a ruling denying a motion to exclude photographic evidence on grounds of

undue prejudice or cumulativeness for abuse of discretion. ( People v. Memro, supra, 11 [**480]

Cal. 4th at pp. 866-867.) There was none: the court's rulings fell within the bounds of reason. We

have reviewed the photographs and, although we believe an average member of the community

would find them quite disturbing, and there can be little doubt that Alvarado found them so when

he saw them, they are neither unduly prejudicial nor cumulative. They tended to prove the mental

state and physical act elements of the crimes charged (see id. at pp. 865-866) and the special

circumstance [*416] allegations--needed proof not only for the jury but also for the trial court in

light of defendant's pending corpus delicti challenge.

There was no violation [****80] of state law. Neither was there any due process violation--the

procedure did not make the trial fundamentally unfair.

Failing to Grant Continuance Despite Medical Complaint

The cause was called for trial on July 26, 1988. On that day, defendant moved for a continuance

on grounds that "some residual problems from the injuries" apparently suffered in a fight were

interfering with his ability to assist in his defense. The trial court (Judge Theodore Piatt)

provisionally denied that motion, saying that it did not have the proper medical records and that

Judge Bazan should resolve the issue.

CA(20) (20) On July 29, defendant moved for a continuance before Judge Bazan on a different

medical basis: that he wanted to resume taking medication to control itchy hives and continue

doing so until cured, although doing so would interfere with his ability to assist in his defense.

He did not mention any injuries. The court reviewed some medical records and denied the

motion, saying that it would try to obtain relief for defendant through external lotions but that

"it's not going to serve any useful purpose for him to start taking medicine orally that's going to

affect his ability to cooperate with [****81] counsel. It would seem to me that as between

thinking clearly and cooperating with counsel and some minor discomfort as a result of hives, it's

in his best interests to be able to think clearly and cooperate with counsel."

Defendant contends that denying the continuance motion violated state law and his rights under

the United States and California Constitutions. We do not agree. There was no abuse of

discretion ( People v. Hawkins, supra, 10 Cal. 4th at p. 945). The court determined that defendant

could tolerate some minor discomfort and proceed with trial. It also implicitly determined that

the minor physical detriment to him was outweighed by the need to move forward with the

proceedings. There was no violation of state law or of any constitutional guaranty.

Failing to Dismiss Juror Who Saw Defendant in Shackles

D030

Defendant apparently contends that the court erred in failing to dismiss on its own motion a juror

who saw him in shackles. On learning that she had, he moved for a mistrial or to replace the

juror, both of which motions the court denied. Defendant contends that the court's failure to grant

either of the motions violated state law.

[*417] [****82] There was no abuse of discretion ( People v. Williams (1997) 16 Cal. 4th 153,

251 [66 Cal. Rptr. 2d 123, 940 P.2d 710] [mistrial]; People v. Holt (1997) 15 Cal. 4th 619, 659

[63 Cal. Rptr. 2d 782, 937 P.2d 213] [decision not to excuse seated juror]). The court questioned

the juror, who glimpsed defendant in chains outside the courthouse, and received her assurance

that the encounter would not prejudice her and that she would not mention it to other jurors.

Nothing more was required. CA(21) (21) "Prejudicial error does not occur simply because the

defendant 'was seen in shackles for only a brief period either inside or outside the courtroom by

one or more jurors or veniremen.' " ( People v. Tuilaepa (1992) 4 Cal. 4th 569, 584 [15 Cal.

[***447] Rptr. 2d 382, 842 P.2d 1142], affd. sub nom. Tuilaepa v. California (1994) 512 U.S.

967 [114 S. Ct. 2630, 129 L. Ed. 2d 750].)

Failing to Preserve Photographic Evidence of Charlotte J. Crime Scene

Defendant contends that his conviction on the counts relating to Charlotte J. was obtained in

violation of the due process clause [**481] of the Fourteenth Amendment [****83] to the

United States Constitution. He moved to dismiss the counts as a sanction on the basis that the

police negligently lost photographic shoe print evidence from the scene of the attack on Charlotte

J. The court held a hearing and denied the motion.

CA(22) (22) " 'HN27 [U]nless a criminal defendant can show bad faith on the part of the police,

failure to preserve potentially useful evidence does not constitute a denial of due process of law.'

" ( People v. Hines (1997) 15 Cal. 4th 997, 1042 [64 Cal. Rptr. 2d 594, 938 P.2d 388]; cf. People

v. Beeler (1995) 9 Cal. 4th 953, 976 [39 Cal. Rptr. 2d 607, 891 P.2d 153].)

In this case, there was no bad faith claim at all, but only one of negligence. Thus failing to

preserve potentially useful evidence does not deny due process of law. Moreover, the hearing on

the motion failed to show even that the evidence was potentially useful for exculpation. An

investigating police officer who used to be a shoe salesman took two photographs of shoe prints.

He described the impressions as "really very faint"; the most he could tell was that they appeared

to be of two different types, of adult size, and to have been made by tennis [****84] shoes. He

could not discern an identifiable pattern for the length of the shoe, but only that one had a circle

in the ball of the foot. He did not see the photographs that purportedly were later lost.

A different officer, Aquino, testified that he did see one of the photographs and that "[t]here

wasn't anything in [it] that I could say was a pattern. It just looked like a flat indentation into the

dirt."

By contrast, Officer Joseph Cowan testified for the prosecution that the shoe print pattern he saw

at the Charlotte J. crime scene "very" closely [*418] resembled the print seen in a photograph

taken from the Chandler murder scene.

D031

The court ruled that the shoe print evidence either had no value at all or, if Cowan's version of

events was accepted, was inculpatory. It denied the motion to dismiss the Charlotte J.-related

counts and ruled that there was no due process violation. We agree.

Refusing to Entertain an Alternate Juror's Question

Defendant may be understood to contend that the trial court violated his right to a jury trial when

it refused to answer questions posed by an alternate juror, Barbara C., during a recess. The

exchange took place after all jurors [****85] except the alternate and one other, a regular

member of the jury, had left the courtroom.

At the outset of trial the court told the jurors that it would not entertain questions during the

presentation of evidence. Nevertheless, the alternate juror, saying she "didn't want to interrogate

the witness but just [had] a question," asked a question about the facts of the case. The court did

not direct that her question be answered. It told her that during deliberations she could ask for the

record to be read back.

The court did not err by refusing to direct that Barbara C.'s question be answered. CA(23) (23)

HN28 The court "has discretion to ask questions submitted by jurors or to pass those questions

on and leave to the discretion of counsel whether to ask the questions." ( People v. Cummings,

supra, 4 Cal. 4th at p. 1305.) Defendant was not denied his right to a jury trial.

Failing to Remove Purportedly Sleeping Juror

CA(24) (24) Defendant contends that the court deprived him of his right to a fair trial when it

failed to conduct an adequate inquiry into the conduct of a juror, Lyle V., who defendant asserts

"on at least two occasions . . . was sleeping during testimony . . . . [****86] " To the contrary,

the record reflects that on each occasion to which defendant refers the court [***448] noticed

Lyle V.'s possible drowsiness and inquired whether he had been paying attention to the

proceedings. Lyle V. said that he had and proved it to the court's and counsel's satisfaction by

describing his reaction to the testimony.

Defendant was not deprived of his right to a fair trial. The court conducted an inquiry into Lyle

V.'s attentiveness and satisfied [**482] itself and counsel that he was alert. Nothing more was

required. (See People v. DeSantis, supra, 2 Cal. 4th at pp. 1233-1234.)

[*419] Ruling That Question Directed to Ramage Sought Irrelevant Evidence

Defendant asked Edward Ramage on cross-examination for the name of his regular cocaine

supplier. Ramage had just exhibited discomfort at disclosing the names of persons with whom he

traded in drugs. The prosecution objected on grounds of relevance, and the court sustained the

objection.

CA(25) (25) Defendant contends that by sustaining the prosecution's objection regarding the

name of Ramage's regular cocaine supplier, the court erred under state law. ( Evid. Code, § 210

D032

[****87] , 351.) We disagree. The court did not abuse its discretion ( People v. Champion

(1995) 9 Cal. 4th 879, 922 [39 Cal. Rptr. 2d 547, 891 P.2d 93]) in excluding the evidence as

irrelevant. Though defendant may be correct that evidence of Ramage's drug use was relevant to

impeach his credibility, Ramage admitted such use, and the question did not directly address that

topic. The court did not err.

Purportedly Failing to Instruct on the Intent to Kill

CA(26) (26) Defendant contends that the trial court erroneously failed to instruct that to find true

the felony-murder special circumstances the jury must also find that he had the intent to kill. He

contends that the deficiency in the instructions given violated his federal and state constitutional

rights to due process and to a jury trial, and against punishment under an ex post facto law. He is

incorrect.

As mentioned, defendant was charged with two felony-murder special circumstances: rape and

kidnapping. "In Carlos v. Superior Court (1983) 35 Cal. 3d 131 [197 Cal. Rptr. 79, 672 P.2d

862], we held that intent to kill was a necessary element of the felony-murder special

circumstance . . . . We overruled [****88] . . . Carlos . . . in People v. Anderson (1987) 43 Cal.

3d 1104 [240 Cal. Rptr. 585, 742 P.2d 1306]. As to offenses committed after Carlos but before

Anderson, however, due process and ex post facto principles demand that the intent-to-kill

requirement apply to any felony-murder special circumstance charged in connection with such

offenses." ( People v. Johnson (1993) 6 Cal. 4th 1, 44 [23 Cal. Rptr. 2d 593, 859 P.2d 673].) The

information alleged that defendant murdered Chandler on or about June 18, 1987, which

happened to be during the "window period" between Carlos v. Superior Court (1983) 35 Cal. 3d

131 [197 Cal. Rptr. 79, 672 P.2d 862], and People v. Anderson (1987) 43 Cal. 3d 1104 [240 Cal.

Rptr. 585, 742 P.2d 1306].

The trial court and counsel, unsure about the applicability of Anderson, decided to hedge.

Accordingly, the court instructed the jury in terms of the [*420] special circumstances without

requiring, in those instructions, a finding of intent to kill. Instead, the court added to each special

circumstance instruction the following requirement: "If you find the special circumstance

[****89] true, you must make a separate finding as to whether the defendant intended to kill a

human being at the time of the murder. A special form will be provided for that purpose." The

jury was given a verdict form that read, for each special circumstance: "We further find that in

the commission of murder while engaged in the commission of [rape and kidnapping] that the

defendant (insert 'did' or 'did not') intend to kill Lacy Corrin Chandler." The signed and filed form

shows, for each special circumstance, "did" written where the form instructed "did" or "did not"

to be inserted.

If error occurred in the foregoing procedure, it was harmless, for the jury found that defendant

intended to kill. We so decided in People v. Wader (1993) 5 Cal. 4th 610, 642 [20 Cal. Rptr. 2d

788, 854 P.2d 80]. We decline to reconsider our view.

[***449] CA(27) (27) In a related claim, defendant also contends that the verdict form failed to

inform the jury that it must find beyond a reasonable doubt that he intended to kill to find true

D033

each special circumstance.

The special circumstance verdict form asked for a finding that in committing the acts giving rise

to the two special-circumstance [****90] allegations defendant intended to kill. Prior to this

language, the form asked the [**483] jury to find true or not true each special circumstance

beyond a reasonable doubt.

Any error that occurred was harmless. As stated, the jurors were instructed that they must find

each special circumstance established beyond a reasonable doubt before they could find it true.

They were also told that "[i]f you have a reasonable doubt as to whether a special circumstance is

true, it is your duty to find that it is not true." The verdict form asked if each special circumstance

was true, and immediately after, with no interruption except a paragraph break, asked whether in

doing the act constituting a special circumstance defendant intended to kill. The jury could only

have understood the burden of proof to apply to the question of intent to kill. The claim is

without merit.

Finally, defendant contends that the instructions failed to explain to the jury its duty to consider

voluntary intoxication in determining whether he had the intent to kill. As we explain

immediately below, this claim is without merit, because the instructions did alert the jury to its

duty.

Purported Defects in [****91] Intoxication Instructions

CA(28) (28) Defendant discerns violations of the Fifth, Sixth, Eighth, and Fourteenth

Amendments to the United States Constitution in that the court [*421] omitted the introductory

paragraph of the intoxication-related instruction CALJIC No. 4.21--namely, that for each of the

crimes of which defendant was accused a necessary element was the existence of the intent to do

some act or of a particular mental state. He asserts that by deleting this paragraph the court

deprived the jury of the necessary guidance to conclude that evidence of intoxication could

negate the intent elements of both the murder charges and the felony-murder

special-circumstance allegations. He argues that the instructions given permitted the jury to

conclude that voluntary intoxication could not negate the intent associated with the charges or the

allegations. He further asserts that this harm was compounded by providing confusing

instructions regarding general and specific intent for the underlying crimes.

The jury was instructed to view the instructions as a whole. Given that instruction, it is not

reasonably likely ( People v. Clair (1992) 2 Cal. 4th 629, 663 [7 Cal. Rptr. 2d 564, 828 P.2d

705]) [****92] that the jury was confused or misled regarding the relationship of defendant's

intoxication evidence to his intent to commit the crimes of which he was convicted or the acts

that constituted special circumstances. The court instructed: "If the evidence shows that the

defendant was intoxicated at the time of the alleged offenses, the jury should consider his state of

intoxication in determining if defendant had the required specific intent or mental state."

(Brackets deleted.) "The specific intent or mental state required is included in the definitions of

the crimes." It included a mental state element for each crime charged and, contrary to

defendant's view, for the special circumstance allegations. With regard to the latter, the jury was

D034

told that to find them true it must find that defendant killed "in order to" kidnap or rape or escape

the legal consequences of each crime--i.e., that his purpose was to commit the crime or escape its

legal consequences.

Thus, when we view the instructions as a whole, as the jury was required to do, we find no

reasonable likelihood that the jury would have understood the instructions to foreclose it from

considering evidence of voluntary intoxication [****93] in connection with the felony-murder

charges or special circumstance allegations. We rejected a similar claim in People v. Clark

(1993) 5 Cal. 4th 950, 1021 [22 Cal. Rptr. 2d 689, 857 P.2d 1099]. We do the same here.

Defendant also maintains that the instructions improperly treated kidnapping and rape as

so-called "specific intent" crimes for purposes of establishing the special circumstances,

[***450] while treating them as so-called "general intent" crimes for purposes of establishing

the underlying crimes themselves. We agree that the casual use or misuse of those terms may

cause mischief, but, for reasons we gave in People v. Osband, supra, 13 Cal. 4th at pages [*422]

685-686, any confusion caused by their use under these circumstances amounted to harmless

error.

[**484] Failing to Instruct Sua Sponte on Manslaughter

CA(29a) (29a) Defendant contends that the court violated state decisional law when it failed to

instruct sua sponte on voluntary and involuntary manslaughter. We disagree: it committed no

error.

The factual basis for defendant's claim consists of the evidence presented to the jury that he had

intoxicated himself with [****94] cocaine when he killed Chandler. In his taped confession, he

said, "I don't know what was going through my mind, I was so high." As we read the record, that

statement is the sole possible basis for any claim that voluntary intoxication required a

manslaughter instruction.

HN29 Voluntary manslaughter is treated as a lesser included offense of murder. ( People v.

Barton (1995) 12 Cal. 4th 186, 200 [47 Cal. Rptr. 2d 569, 906 P.2d 531]-201.) So, ordinarily, is

involuntary manslaughter. ( People v. Prettyman (1996) 14 Cal. 4th 248, 274 [58 Cal. Rptr. 2d

827, 926 P.2d 1013].)

CA(30) (30) " ' "HN30 It is settled that in criminal cases, even in the absence of a request, the

trial court must instruct on the general principles of law relevant to the issues raised by the

evidence. [Citations.] The general principles of law governing the case are those principles

closely and openly connected with the facts before the court, and which are necessary for the

jury's understanding of the case." [Citation.] That obligation has been held to include giving

instructions on lesser included offenses when the evidence raises a question as to whether all of

the elements of the charged [****95] offense were present . . . .' " ( People v. Breverman (1998)

19 Cal. 4th 142, 154 [77 Cal. Rptr. 2d 870, 960 P.2d 1094].) HN31 "[R]egardless of the tactics or

objections of the parties, or the relative strength of the evidence on alternate offenses or theories,

the rule requires sua sponte instruction on any and all lesser included offenses, or theories

D035

thereof, which are supported by the evidence." ( Id. at p. 160, italics deleted.) Thus "a trial court

errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find

substantial support in the evidence." ( Id. at p. 162.) " 'Substantial evidence' in this context is '

"evidence from which a jury composed of reasonable [persons] could . . . conclude[]" ' that the

lesser offense, but not the greater, was committed." (Ibid.)

CA(29b) (29b) With regard to voluntary manslaughter, there is no evidence at all that it occurred.

CA(31) (31) "HN32 An intentional, unlawful homicide is 'upon a [*423] sudden quarrel or heat

of passion' (§ 192(a)), and is thus voluntary manslaughter (ibid.), if the killer's reason was

actually obscured as the result of a strong passion aroused [****96] by a 'provocation' sufficient

to cause an ' "ordinary [person] of average disposition . . . to act rashly or without due

deliberation and reflection, and from this passion rather than judgment." ' [Citations.] ' "[N]o

specific type of provocation [is] required . . . ." ' [Citations.] Moreover, the passion aroused need

not be anger or rage, but can be any ' " '[v]iolent, intense, high-wrought or enthusiastic emotion' "

' [citations] other than revenge . . . ." ( People v. Breverman, supra, 19 Cal. 4th at p. 163.) Absent

the heat of passion or a sudden quarrel, voluntary manslaughter is unavailable as a lesser

included offense to murder. ( People v. Barton, supra, 12 Cal. 4th at p. 199; see People v. Hines,

supra, 15 Cal. 4th at pp. 1052-1053.)

CA(29c) (29c) Defendant said repeatedly in his taped statement that he was "scared" when he

killed Chandler. He was scared, however, only because he feared that she might cause him to be

apprehended. There was no evidence of an intense or enthusiastic emotion of the type listed in

Breverman. Rather, the evidence was that defendant's actions were [***451] calculated. The

court [****97] did not err in failing to instruct on voluntary manslaughter--there was no

evidence from which a jury composed of reasonable individuals could have concluded that he

committed that crime. He was either guilty of the charged crime or not guilty at all. ( People v.

Barton, supra, 12 Cal. 4th at p. 196, fn. 5.)

[**485] CA(32) (32) We turn to the question of involuntary manslaughter. HN33 Involuntary

manslaughter, when not misdemeanor manslaughter, is criminally negligent unlawful homicide.

(§ 192, subd. (b); People v. Penny (1955) 44 Cal. 2d 861, 879 [285 P.2d 926]; People v. Oliver

(1989) 210 Cal. App. 3d 138, 144-145 [258 Cal. Rptr. 138].)

HN34 When a person renders himself or herself unconscious through voluntary intoxication and

kills in that state, the killing is attributed to his or her negligence in self-intoxicating to that point,

and is treated as involuntary manslaughter. HN35 "Unconsciousness is ordinarily a complete

defense to a charge of criminal homicide. ( Pen. Code, § 26, subd. [Four].) If the state of

unconsciousness results from intoxication voluntarily induced, however, it is not a complete

defense. ( Pen. [****98] Code, § 22.) . . . [I]f the intoxication is voluntarily induced, it can

never excuse homicide. [Citation.] Thus, the requisite element of criminal negligence is deemed

to exist irrespective of unconsciousness, and a defendant stands guilty of involuntary

manslaughter if he voluntarily procured his own intoxication." ( People v. Graham (1969) 71 Cal.

2d 303, 316 [78 Cal. Rptr. 217, 455 P.2d 153].) Unconsciousness for this purpose need not mean

that the actor lies still and unresponsive: section 26 [*424] describes as "[in]capable of

committing crimes . . . [P] . . . [P] . . . [p]ersons who committed the act . . . without being

D036

conscious thereof." (Italics added.) Thus unconsciousness " 'can exist . . . where the subject

physically acts in fact but is not, at the time, conscious of acting.' " ( People v. Kelly (1973) 10

Cal. 3d 565, 572 [111 Cal. Rptr. 171, 516 P.2d 875]; People v. Heffington (1973) 32 Cal. App.

3d 1, 9 [107 Cal. Rptr. 859].)

CA(33) (33) There was no quantum satis of evidence to warrant an instruction. As we have

described, defendant approached Chandler and had the presence of [****99] mind to tell her to

be quiet, to display a knife, and to take her to the secluded precincts of the Florence Flanner

School. He asked her to remove her pants. Later she asked if she could put her pants back on, and

he gave permission. All of these facts show a methodical, calculated approach to the crimes.

There was no evidence that he then consumed more cocaine before stabbing her. Rather, he

reflected on the possible consequences of letting her live, decided that the risk was too great, and

killed her. That was malice aforethought. His statement that he did not know what was going

through his mind does not present conflicting evidence for the trier of fact to evaluate--even read

in isolation, it would be ambiguous, and insufficient to permit a jury composed of reasonable

individuals to find that he committed involuntary manslaughter. Read in context, we understand

his remark only to mean that his intoxication clouded his judgment and caused him to make

foolish choices, not that he lacked malice aforethought. Thus the court did not err in failing to

instruct on involuntary manslaughter--there was no evidence from which a jury composed of

reasonable individuals could have found that [****100] he committed that crime. As stated

earlier, he was either guilty of the charged crime or not guilty at all. ( People v. Barton, supra, 12

Cal. 4th at p. 196, fn. 5.)

Defendant further contends, in a parenthetical manner, that the court's omissions violated the

Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and article I,

sections 15 and 16, of the California Constitution. But he rests these perfunctory claims entirely

on his claim that the court failed to follow state decisional law. We have explained that it did not

so err. Because the basis on which he rests his constitutional claims is itself meritless, so are his

constitutional claims.

Denying Motion to Modify Instruction on Identification's Reliability

CA(34) (34) The court instructed the jury according to CALJIC No. 2.92 (apparently following

id. [***452] (4th ed. 1987 supp.); accord, id. (5th ed. 1988 bound vol.)). The instruction listed

12 factors that may affect the accuracy of an eyewitness's identification. The court added two

paragraphs, based on a [*425] proposal it made to try to accommodate the parties, regarding

[**486] Charlotte J.'s identification [****101] of defendant. 5Link to the text of the note But it

denied defendant's apparent request (the reporter's transcript implies that he made it, but the

precise language appears only in the clerk's transcript) to add to the standard language of the

instruction one of the following two paragraphs, in order of his preference:

[****102] "One of the factors you may consider is whether any photographic lineup in which

the defendant was identified was unfair or suggestive. You are hereby advised that a

photographic line-up which depicts a single suspect is deemed unfair and suggestive as a matter

of law."

D037

"You may also take into account that an identification made from a single photograph of a person

is considered to be suggestive and less reliable than one made from a group of persons with

similar general appearance."

Defendant may be understood to contend that denying his request violated state law. His claim,

however, is utterly meritless. Giving the first instruction [*426] would not have correctly stated

the law, and to supply it would have been error (see People v. Gordon, supra, 50 Cal. 3d at p.

1275): as stated ante, at page 413, there is nothing inherently unfair about a single-person

showup. And he is incorrect to claim that the court erred in refusing his alternative instruction.

The instruction the court gave (see the antepenultimate quoted paragraph in fn. 5, ante) stated the

same thing in language that was at least as forceful, if not more so, than what he proposed.

[****103] Finally, HN36 a jury need be instructed under CALJIC No. 2.92 only if

"identification is a crucial issue and there is no substantial corroborative evidence." ( People v.

Wright (1988) 45 Cal. 3d 1126, 1144 [248 Cal. Rptr. 600, 755 P.2d 1049].) In this case Ramage's

testimony furnished substantial corroborative evidence--he described fully the attack on Charlotte

J.--and the court would not have erred had it entirely denied a request for the instruction. In

giving it, and notably in giving two additional paragraphs focusing on Charlotte J., the court gave

defendant more than he was entitled to.

[***453] Adequacy of the Special Circumstance Verdict Forms

CA(35) (35) Defendant claims that an error in the verdict form's language caused a violation of

his rights under the Sixth, Eighth, and Fourteenth [**487] Amendments to the United States

Constitution.

As described ante, at page 420, the special circumstance verdict form asked for a finding that in

committing the acts giving rise to the two special-circumstance allegations defendant intended to

kill. Prior to this language, the form asked the jury to find true or not true each special

circumstance, namely that he [****104] murdered Chandler while "engaged in the commission

of the crime" (rape and kidnapping) "within the meaning of Section 190.2(a)(17) Penal Code."

Defendant contends that this general language, coupled with the inquiry whether he intended to

kill, made it impossible to tell whether the jury decided that he had an independent purpose in

committing the underlying felonies--i.e., that those crimes were not "merely incidental to the

murder" ( People v. Green (1980) 27 Cal. 3d 1, 61 [164 Cal. Rptr. 1, 609 P.2d 468]). 6Link to the

text of the note If they had been, the special circumstances should not have been found true. (27

Cal. 3d at pp. 61-62.)

In general, HN37 a verdict form need not restate the legal principles provided in proper

instructions. Indeed, as a rule it is not reversible error to fail to provide the jury [****105] with a

verdict form at all ( People v. Osband, supra, 13 [*427] Cal. 4th at pp. 689-690), though plainly

it is the better practice. We agree with defendant that a verdict form may not state principles

"contrary to the instructions given" ( Byrum v. Bland (1990) 219 Cal. App. 3d 926, 938 [268 Cal.

Rptr. 609]), for doing so might cause the jury to disregard or discount those principles. But that

did not occur here. Inquiring of the jury on the verdict form whether he intended to kill did not

D038

contradict the instruction not to find a felony-murder special circumstance true if the underlying

crime "was merely incidental to the commission of the murder." It is an axiomatic presumption

on review that the jury followed this command. We do not discern any reasonable likelihood (

People v. Clair, supra, 2 Cal. 4th at p. 663) that the instructions were misleading or confusing in

a way that would cause it to misunderstand its duty in deciding the truth of the special

circumstance allegations when examining the verdict form. To the contrary, the instructions were

quite clear, and the verdict form did not contradict them. Defendant's [****106] constitutional

rights were not violated.

Claims of Prosecutorial Misconduct

Defendant discerns several instances of guilt phase prosecutorial misconduct. We find no merit

in any of his contentions.

During Jury Selection

Defendant claims that the prosecutor committed three instances of misconduct during the voir

dire of prospective jurors. In all three cases, the prospective jurors sat on the trial jury.

CA(36) (36) "HN38 The applicable federal and state standards regarding prosecutorial

misconduct are well established. ' "A prosecutor's . . . intemperate behavior violates the federal

Constitution when it comprises a pattern of conduct 'so egregious that it infects the trial with

such unfairness as to make the conviction a denial of due process.' " ' [Citations.] Conduct by a

prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct

under state law only if it involves ' " 'the use of deceptive or reprehensible methods to attempt to

persuade either the court or the jury.' " ' [Citation.] HN39 As a general rule a defendant may not

complain on appeal of prosecutorial misconduct unless in a timely fashion--and on the same

ground--the defendant [requested] [****107] an assignment of misconduct and [also] requested

that the jury be admonished to disregard the impropriety. [Citation.] Additionally, when the claim

focuses upon comments made [***454] by the prosecutor before the jury, the question is

whether there is a reasonable likelihood that the jury construed or applied any of the

complained-of remarks in an objectionable fashion." ( People v. Samayoa (1997) 15 Cal. 4th 795,

841 [64 Cal. Rptr. 2d 400, [**488] 938 P.2d 2].)

[*428] Defendant failed to request an assignment of misconduct to any of the questioning he

now discerns to be improper. Accordingly, he has not preserved his claims.

Defendant maintains that, if counsel failed to preserve his claims, they were ineffective for

failing to object to the questioning and preserve the points for appeal. In light of this argument,

we will address his claims on the merits. As will appear, there was no ineffective assistance of

counsel.

CA(37) (37) First, defendant maintains that when the prosecutor asked Dolores A., "Will you

promise me that if you sit on this jury and you feel that death is the appropriate verdict, that you

will come back into this court and render that [****108] verdict of death?" The prospective

D039

juror agreed.

Defendant asserts that the prosecutor was asking Dolores A. to vote for death. That is incorrect.

He was asking her to promise to vote for death if she felt that such were the appropriate

verdict--i.e., he was seeking a commitment from her to do her duty. There was nothing improper

about asking her to follow the law.

CA(38) (38) Next, defendant insists that the prosecutor committed misconduct by asking Lyle V.

whether he had voted for a ballot proposition to enact the death penalty or would vote for such a

penalty in a public election. He claims that the question violated Lyle V.'s rights to privacy (see

Cal. Const., art. I, § 1) and to refuse to disclose such information ( Evid. Code, § 1050).

Defendant may be correct, but he does not show prejudice to himself. The injury, if any, was to

Lyle V., and not to him.

Next, defendant contends that it was misconduct for the prosecutor to ask prospective juror

Agustus D. whether this court's capital opinions under former Chief Justice Rose Bird were "kind

of off base" and whether the vote not to retain her or other justices was correct. The prospective

juror replied that [****109] he thought the adverse vote was correct, but also that "in ways, I

also admire her [Rose Bird]" and that the defeated justices "were doing their job as they saw it . .

. and adhering to the technical parts of that type of law."

This is not the first time that a party has raised this subject or attempted to do so during the voir

dire portion of a trial. ( People v. Ramos (1997) 15 Cal. 4th 1133, 1158 [64 Cal. Rptr. 2d 892,

938 P.2d 950]; People v. Morales (1988) 203 Cal. App. 3d 970, 974 [250 Cal. Rptr. 240].)

Again, we are unable to discern how this line of questioning could have prejudiced defendant. He

calls the questioning "egregious" and an invasion of Agustus D.'s privacy, [*429] but, as we

concluded in the case of the question put to Lyle V., any injury was to the prospective juror and

not to him.

To summarize, none of the questions resulted in prejudice to defendant. Hence counsel were not

ineffective for failing to object to them.

During Presentation of Evidence

Defendant identifies three instances of prosecutorial misconduct during the presentation of

evidence.

First, he contends that the prosecutor committed misconduct [****110] by failing to inform him

of exculpatory evidence. We have rejected the premise for his contention, namely that there was

any exculpatory evidence within cases interpreting the due process clause of the Fourteenth

Amendment to the United States Constitution. (Post, at pp. 470-475.) There was no misconduct.

Next, he maintains that the prosecutor committed misconduct when he solicited what he knew to

be perjurious testimony by Ramage, and thereby violated constitutional guaranties. He bases this

D040

claim on assertions that (1) Ramage participated in Chandler's murder but was allowed to testify

that he did not, and (2) Ramage had met Chandler but was allowed to testify that he had not.

[***455] In fact the prosecutor had no reason to believe that Ramage, who by his statement to

Baxter selflessly exposed himself to great criminal liability even though he was suspected of no

wrongdoing, was falsely testifying about his presence at the murder scene. [**489] (See also

post, at p. 474.) There was no physical or testimonial evidence tying him to that location.

Nor does defendant show that Ramage perjured himself regarding his acquaintanceship with

Chandler. Ramage testified [****111] in response to defendant's questions that he "didn't know"

Chandler and that "I haven't even seen her. . . . I don't know that person." But immediately

thereafter he said that Saundra Baxter "did ask me if I knew [Chandler], and I said . . . I might

have seen her going to school . . . ."

Baxter had testified that Ramage told her he knew who Chandler was; he testified that he did not

"know her personally" but might have seen her in the neighborhood. The discrepancy, if it is one

at all, does not necessarily reveal false testimony, much less perjury: Baxter's memory could have

been faulty, or Ramage's, or both. More likely, Ramage was having difficulty articulating the

difference between knowing Chandler personally and having seen [*430] her in passing. In sum,

the prosecutor was entitled to allow evidence to be presented that he believed was true and that,

following a satisfactory police investigation, appeared to be true. There was no violation of any

constitutional provision.

CA(39) (39) Next, defendant contends that the prosecutor committed misconduct by asking

Yolanda A. whether a spot of blood in her eye might be "blood from like a bloody nose or from

broken blood vessels? [****112] " The court had directed the prosecutor to limit his question to

whether the spot appeared to be formed of blood. Defendant argues that his convictions for the

counts relating to the attack on Yolanda A. must be reversed as a result.

The prosecutor did commit misconduct by exceeding the limits of the court's ruling. It was,

however, de minimis. Under any standard of review, we do not believe that the misconduct

prejudiced defendant.

During Closing Argument

CA(40) (40) Defendant identifies two instances of prosecutorial misconduct during closing

argument.

First, defendant asserts that misconduct occurred when the prosecutor commented on the failure

of his expert witness, Dr. Gorelick, to testify that his cocaine use could have caused him to

commit the crimes. Prior to this, the prosecutor had obtained an offer of proof from defendant

that he was not going to ask Dr. Gorelick "for an opinion in this case as to the state of mind of

the defendant at the time any of these crimes were committed[.]" Then in closing the prosecutor

argued that "drugs didn't make this happen. . . . The doctor didn't testify to that. [P] . . . [P] That

doctor was not given a hypothetical question about [****113] Mr. Ochoa and asked, 'In your

D041

opinion did the drugs cause this?' So remember what you do have in evidence, but also realize

what you don't have in evidence. Because, in reality, you don't have anything except that you are

told that cocaine is an addictive drug and Lester Ochoa used cocaine." The prosecutor later

argued in rebuttal that Dr. Gorelick "never took the situation with Mr. Ochoa and said that,

'Knowing Mr. Ochoa's situation and the drugs that he used . . . my opinion is that the drugs in this

situation caused a chemical imbalance and caused him to go out and do something and he could

not keep from doing it.' "

Defendant contends that the prosecutor was improperly commenting on the absence of

diminished capacity testimony, which he could not elicit because the diminished capacity defense

has been abolished ( People v. Mayfield (1993) 5 Cal. 4th 142, 198, fn. 10 [19 Cal. Rptr. 2d 836,

852 P.2d [*431] 331]). And he notes that section 29 would have prohibited the kind of

hypothetical testimony whose absence the prosecutor criticized before the jury.

Though the question is close, we agree with defendant that the prosecutor's comments were

misconduct [****114] in light of the [***456] prohibition contained in section 29. HN40 That

statute provides: "In the guilt phase of a criminal action, any expert testifying about a defendant's

mental illness, mental disorder, or mental defect shall not testify as to whether the defendant had

or did not have the required mental states, which include, but [**490] are not limited to,

purpose, intent, knowledge, or malice aforethought, for the crimes charged. The question as to

whether the defendant had or did not have the required mental states shall be decided by the trier

of fact." (Ibid.)

HN41 By its terms, section 29 prohibits an expert witness from giving an opinion about the

ultimate fact whether a defendant had the required mental state for conviction of a crime. It

prohibits no more than that. It is true, however, that criticizing Dr. Gorelick for failing to testify

about defendant's ability to cogitate--i.e., for failing to testify that "[k]nowing Mr. Ochoa's

situation and the drugs that he used . . . my opinion is that the drugs in this situation caused a

chemical imbalance and caused him to go out and do something and he could not keep from

doing it"--amounted to a criticism of him for not [****115] testifying on the ultimate issue

whether defendant had the required mental state for a form of first degree murder, namely the

ability to premeditate, deliberate, and intend to kill.

By failing to request an assignment of misconduct to the prosecutor's remarks, defendant has

failed to preserve his point for review, for such an objection would have permitted the trial court

to cure any harm that resulted ( People v. Osband, supra, 13 Cal. 4th at p. 693). (See People v.

Rangel (1992) 11 Cal. App. 4th 291, 299 [14 Cal. Rptr. 2d 529]-300.) Because defendant

contends that counsel were ineffective for failing to assign misconduct, however, we will address

it "on the merits to the extent necessary to decide the ineffective assistance claim." ( People v.

Osband, supra, 13 Cal. 4th at p. 693.) We have already explained that misconduct occurred. But

we do not discern prejudice. The prosecutor only argued that defendant missed an opportunity to

elicit favorable testimony about his mental state. In a very close case, such argument might

galvanize the jury and make a difference. Here, by contrast, the evidence of premeditation,

deliberation, [****116] and intent to kill was strong. Defendant admitted that he killed

Chandler because he was scared that she might lead to his apprehension. And he stabbed her

D042

many times and dragged her back and forth in an effort to hide her body. His ineffective

assistance claim fails to persuade--there is no reasonable probability of a different outcome.

[*432] Next, defendant contends that the prosecutor committed misconduct when, in arguing

that he intended to kill Yolanda A., he improperly argued that defendant had a propensity to kill

because of bad character: "Does this sound to you like a man, based on the crimes that you've

heard in this courtroom, the acts that he's committed, does it sound to you like a man who wants

to rape and kill women?"

If this was misconduct, however, it resulted in no harm to defendant: the jurors acquitted him of

attempting to murder Yolanda A. The prosecutor's argument did not succeed.

Cumulative Effect of Misconduct

Finally, defendant maintains that the guilt phase proceedings were so tainted by instances

prosecutorial misconduct that their cumulative effect requires reversal of his convictions. But we

have found either no misconduct at all or [****117] misconduct minor enough that no prejudice

arose from it. We reject the claim.

Ineffective Assistance of Counsel

Failing to Challenge Shoe Print Testimony

CA(41) (41) Defendant contends that counsel were ineffective for failing to object to the

introduction of evidence regarding analysis of shoe prints. (Ante, at p. 389.) He maintains that

this evidence was substantially more prejudicial than probative ( Evid. Code, § 352) and that

counsel should have sought its exclusion.

The claim is without merit. The evidence plainly had probative value: it [***457] showed that

the design of defendant's shoe sole was consistent with shoe prints left at the scene. It was for the

jurors to assign whatever weight to the evidence they thought it merited. A motion to exclude

such evidence under Evidence Code section 352 would surely have failed. Counsel did [**491]

not perform deficiently for failing to make what would have been a meritless request.

Purportedly Failing to Ask for Semen Sample

CA(42) (42) Next, defendant claims counsel were ineffective for failing to obtain a semen

sample from Alvarado, Chandler's boyfriend. It will be recalled [****118] that the couple

engaged in sexual relations on the night defendant killed her. It will also be recalled that semen

found on Chandler's pants could have [*433] come from Alvarado, assuming that only his

semen was present there. Moreover, there was too little semen on the vaginal and rectal samples

to be able to classify it according to blood type, and therefore it could have come from Alvarado

as well.

The record shows that defendant moved to have the court order Alvarado to submit a semen

D043

sample for analysis. He argued that testing already showed that he could not have provided the

semen found on Chandler's pants, but that Alvarado could have, and that testing Alvarado's

semen might conclusively show that he also did not provide the semen found on the pants, in

which case it would suggest that someone other than defendant raped Chandler. The presence of

such an accomplice, he asserts now, could have undermined the prosecution's theory of the case.

The court replied that it was uncertain whether it had the power to order Alvarado to provide a

semen sample. It invited counsel for both parties to research the issue further. Later defendant

announced that he agreed the court had [****119] no authority to order the sample. But the

court suggested that defendant try to persuade Alvarado to provide it voluntarily. The parties

agree that the record is silent on whether either party ever asked Alvarado to provide a semen

sample.

On this record we cannot find any basis for an ineffective assistance of counsel claim. One or

both of the parties might have asked Alvarado to provide a semen sample, or might not. If so, he

might have refused, or might not. Defendant does not point to any law that would have required

him to provide one. There is no way to evaluate a claim of deficient performance.

Permitting Defendant to Testify at the Suppression Hearing

Next, defendant contends that counsel were ineffective for letting him testify at his suppression

hearing and thereby creating an opportunity for the trial court to rely on his implausible version

of the events surrounding Chandler's killing in denying his new trial motion (post, at pp.

475-476). We will explain in our discussion of the new trial motion, however, that the court

would have denied the motion even if it had not taken into account defendant's testimony at the

suppression hearing. He fails to show prejudice--i. [****120] e., a reasonable probability of a

different result had he not testified.

Failing to Further Develop Drug Usage Defense

CA(43) (43) Next, defendant contends that counsel were ineffective for failing to investigate and

develop a more thorough defense based on the effects of [*434] drug usage. He maintains that

they antagonized the jury by presenting evidence of his abuse of drugs, a habit that the jury was

certain to despise, but having done so, failed to follow through with evidence that through

voluntary intoxication he lacked the mental state required for the crimes.

But HN42 it is black letter law that "if the record sheds no light on why counsel acted or failed to

act in the challenged manner, we must reject [an ineffective assistance of counsel] claim on

appeal unless counsel was asked for an explanation and failed to provide one, or there could be

no satisfactory explanation for counsel's performance." ( People v. Castillo (1997) 16 Cal. 4th

1009, 1015 [68 Cal. Rptr. 2d 648, 945 P.2d 1197].) Counsel might reasonably have concluded

that the available intoxication evidence conceivably could persuade [***458] the jury that

defendant lacked the ability to form [****121] the required mental state for the crimes, even

though his own confession supplied strong evidence that he intended to kill to silence Chandler.

We reject the contention.

D044

[**492] Failing to Obtain Adequate Voluntary Intoxication Instructions

Defendant also contends that counsel were ineffective for failing to obtain adequate instructions

on voluntary intoxication. But as we have explained, the instructions were adequate. (Ante, at pp.

421-422.) And he complains that counsel failed to seek instructions on manslaughter. But we

have also explained that he was not entitled to manslaughter instructions. (Ante, at pp. 422-424.)

Counsel cannot have been ineffective for failing to seek an instruction for which there was no

supporting evidence: the court should properly have denied such a request.

Quality of Closing Argument

CA(44) (44) Finally, defendant condemns the quality of the closing argument presented on his

behalf. In his view, it was deficient in that counsel (1) conceded his guilt of murdering Chandler

and attacking Yolanda A., seriously disputing only the Charlotte J. charges; (2) did not insist that

he lacked the mental state for the Chandler crimes; and (3) did [****122] not contest or even

discuss the special circumstance allegations.

As mentioned, counsel argued that defendant was not guilty of first degree murder, but only

murder of the second degree. HN43 "[W]e have repeatedly rejected claims that counsel was

ineffective in conceding various degrees of guilt." ( People v. Freeman (1994) 8 Cal. 4th 450,

498 [34 Cal. Rptr. 2d 558, 882 P.2d 249, 31 A.L.R.5th 888].) In general, their decision to

concede his guilt of various crimes against Chandler and Yolanda A. while arguing that [*435]

others were not proven was a reasonable tactical choice, given the evidence of the attacks. "

'HN44 [G]ood trial tactics often demand complete candor with the jury, and . . . in light of the

weight of the evidence incriminating a defendant, an attorney may be more realistic and effective

by avoiding sweeping declarations of his or her client's innocence.' " (Ibid.)

Counsel did argue that defendant lacked the mental state for premeditated first degree murder.

Given his confession that he intended to kill Chandler, and testimony that he inflicted 23 stab

wounds on her, averaging approximately 4 inches deep, it cannot be called deficient to concede

[****123] the question of malice aforethought. Choosing to forgo an implausible argument that

he killed without malice aforethought was a reasonable tactical choice.

In sum, counsel cannot be faulted for exercising candor. At the end of closing argument, they

argued: "The law has been stated to you very carefully and, literally, each and every element,

each and every requirement for a conviction--and . . . your duty is . . . to take that very, very

seriously and not have a visceral or gut reaction to these crimes, but to seriously apply the law as

it's written down for you." They would have risked offending the jurors to demand this exacting

standard of them while simultaneously advancing implausible arguments that the jurors might

well regard as insulting their intelligence.

As for counsel's failure to discuss the special circumstance allegations: though the closing

argument did not mention them, counsel could have reasonably concluded there would have been

little to say. Defendant's confession and the physical evidence strongly suggested that the

allegations were true, and counsel might reasonably have viewed contrary argument as a

D045

distraction with potential to weaken more meritorious [****124] points.

Cumulative Effect of Ineffective Assistance of Counsel

Defendant also contends that the cumulative effect of counsel's errors and omissions amounted to

ineffective assistance of counsel. We have stated throughout the guilt phase discussion, however,

that counsel performed their task largely free of deficient performance, and certainly free of any

lapse of constitutional dimension. We reject this claim as well.

[***459] Cumulative Effect of Purported Defects in the Guilt Phase

Defendant contends that the cumulative effect of jury selection error, ineffective assistance of

counsel, and prosecutorial misconduct requires that his convictions be reversed. [**493] To do

otherwise, he claims, would offend the [*436] due process clauses, and he implies that it would

also offend the constitutional guaranties to be tried by an impartial jury. But we have found

neither trial court error, nor prosecutorial misconduct that prejudiced him, nor ineffective

assistance of counsel. His claim is without merit.

THE PENALTY PHASE

Defendant's Alleged Killing of His Young Son

The key dispute, resolved prior to the presentation of evidence at the penalty phase, [****125]

was whether the prosecution would be allowed to introduce evidence that defendant fatally

injured his son, 18-month-old Robert Lester Ochoa, on February 8, 1987, probably by hitting him

and causing his head to strike a surface. He died the next morning at the hospital and was

autopsied.

Without this evidence, the prosecution advised that it would "either have nothing to present in

the penalty trial or very little, maybe a total of a day's worth of testimony . . . ."

The trial court decided to hold, on its own motion, "a preliminary inquiry before the penalty

phase to determine whether there [was] substantial evidence to prove each element of [this] other

[alleged] criminal activity." ( People v. Phillips (1985) 41 Cal. 3d 29, 72, fn. 25 [222 Cal. Rptr.

127, 711 P.2d 423] (lead opn.); see Evid. Code, § 402.) The court declared that it would require

the prosecution to satisfy it "that there is substantial evidence that the child died as a result of a

crime . . . before I allow the People to introduce evidence of this incident . . . ."

The trial court ruled that evidence that defendant killed his son could be admitted at the penalty

[****126] phase. The prosecution elected not to introduce it in its case-in-chief, however; it held

it for possible use as rebuttal evidence. Ultimately it never introduced the evidence. Outside the

jury's presence defense counsel explained that "the People have rested without putting on

evidence of the--concerning the death of the minor child but have stated they're holding it as

possible rebuttal, and . . . the defense is not putting on what we would normally consider to be a

significant portion of our penalty phase evidence, namely the relationship between Mr. Ochoa

D046

and his children, because of the rebuttal aspect of the death of the child. I just wanted to make

that clear for any reviewing court." The court noted in reply that it had "made no prior ruling

about what would or would not be admissible on rebuttal."

[*437] The foregoing statement forms the basis for the claim of prejudice on appeal. The ruling,

defendant contends, forced him "into withholding important mitigating evidence during the

penalty phase of the trial. The jury did not hear about what could only be described as the most

important part of his life--that he was a loving and devoted father of two beautiful children

[****127] who showed no signs of any child abuse. In addition to informing the jury that [he]

was a father, the tragic death of [his] little boy could very well have served as a powerful

mitigating circumstance itself."

There was testimony at the in limine hearing that defendant told an investigating sheriff's

detective he was alone with his son when he was injured. He explained to him that he saw him

falling off a kitchen counter--measurements showed the countertop to be 37 inches from the

linoleum floor--that he tried to grab him too late, and that the child struck the floor on the chest

and face. He took him to a bedroom "and he laid the child down and noticed that [he] seemed to

be unconscious, not really responsive, and he wasn't sure about how to get a hold of an

emergency medical [response] through 911 or something . . . but shortly after that . . . he saw car

lights coming into the driveway . . . and ran outside with the child." Defendant's wife and mother

were in the car; they took Robert Ochoa to the hospital.

Dr. Lakshmanan Sathyavagiswaran, a physician and Chief of Forensic Medicine in the [***460]

Los Angeles County Medical Examiner's Office, testified that Robert [****128] Ochoa, whose

death was originally found to be an accident, died of "severe brain and skull injuries." He also

had two bruises on his right arm. Dr. Sathyavagiswaran testified that unless Robert [**494]

Ochoa had fallen "from multiple stories, a great height" his death could not have been accidental.

And he was lacking the kind of abrasions and other injuries that such a fall would usually cause.

Instead his injuries revealed "a tremendous force with which this particular child's head struck [a]

fixed object." These injuries could have been caused by "[t]he child being thrown on the ground

or struck and landing forcibly on the ground or against a wall," and Dr. Sathyavagiswaran

believed that "the child was probably struck with great force, either the left or right side of the

face to begin with, and the child landed forcibly on a hard surface which is not rough," or, as a

less preferred alternative, "could . . . [have] been thrown [forcibly] . . . against a smooth surface";

but the injuries could not have been caused by a fall off a 37-inch-high countertop onto a

linoleum floor. On March 11, 1988, the medical examiner's office changed its records to reflect

that Robert Ochoa's [****129] death was a homicide.

Defendant introduced the testimony of a forensic pathologist, Dr. Werner Spitz. He testified that

Robert Ochoa's death was compatible with an [*438] accident of the type defendant had

described. He would not disagree, however, with Dr. Sathyavagiswaran's opinion that it was

homicide, though he did not agree that if accidental it could only have been caused by a fall from

a great height. Ultimately he concluded that, on the basis of the information available to him,

which appeared to be the same information available to Dr. Sathyavagiswaran, the cause of

injury and the manner of death were undeterminable.

D047

Penalty Phase Evidence That Was Introduced

The prosecution introduced evidence of defendant's prior violent criminal activity (§ 190.3).

Dong Hyuk Kim testified through an interpreter of Korean that in 1986 he was exiting a

doughnut shop when a man grabbed him with great force and pulled at him. A Los Angeles

police officer, Fred Faustino, testified that Kim had defendant arrested for battery. As another

police officer was handcuffing him he broke away, pushed the officer back, and had to be

subdued. The incident occurred in the early morning hours.

[****130] Silvia V. testified through an interpreter of Spanish that early on the morning of

February 6, 1983, she passed a man on her way to her car. As she was sitting with the door ajar

he came up and pushed her inside. She warned him in English that her husband was on the way.

He got on top of her, told her to shut up, and hit her repeatedly, especially when she tried to

glimpse his face. In turn she pulled his hair, scratched his face, and sounded the horn with her

foot. Her honking attracted a neighbor's attention but no help--instead the neighbor yelled at her

to be quiet. Eventually the assailant fled. He left her face and mouth very swollen. The prosecutor

did not ask her to identify defendant in court as her attacker--he explained at bench that "[s]he

won't even look in his direction. She's scared to death of him"--but the records manager of the

Baldwin Park Police Department testified that charges were filed against a Lester Ochoa, born

March 26, 1961, for the attack. The parties stipulated that the date was defendant's date of birth,

and the court later admitted into evidence the written record of a filed misdemeanor complaint

alleging that on February 6, 1983, one Lester Robert [****131] Ochoa committed grand theft (§

17, subd. (b)(4); id., former § 487, subd. 2, as amended by Stats. 1982, ch. 375, § 1, p. 1693; id.,

former § 489, as amended by Stats. 1976, ch. 1139, § 223, p. 5124) and battery (§ 242) against

one "Sylvia V.," of the same last name as Silvia V.

The defense began with a candid opening statement. (Defense counsel told the trial court that

candidly revealing defendant's background and character was their strategy at the penalty phase.)

Counsel acknowledged that defendant had "a side of him that is aggressive, violent and cruel."

But counsel said [*439] that the defense intended to try to give the jury "a more complete

picture of who Lester Ochoa is and what he has been . . . and maybe a little bit of an insight into

[***461] how he's gotten here. [P] There aren't going to be any startling revelations." Counsel

also said the evidence would show that he "can feel remorse and . . . guilt and . . . pain like any of

you can." Counsel declined to ask [**495] for leniency. It would be "beyond your power to

grant that in this case. Whatever you decide is going to be a harsh and severe sentence."

Defendant's older sister, Arlene [****132] Cook, testified that drugs had severely altered his

behavior. As a young boy he was outgoing, friendly, respectful, and involved in baseball. His

parents had good jobs and treated him well and with love; indeed "[h]e was sort of spoiled."

Later, as a teenager, he was in trouble with the law, was incarcerated for more than a year at age

16 or 17, and was plagued by drug abuse. He was "mean," "belligerent," uncaring, and impatient

when intoxicated, but "calm," "[g]entle," and jocular when not. Once his family discovered him

"whimpering," "huddled . . . like a wounded animal" in a closet, and asking for help, apparently

during an episode of withdrawal from the effects of drug-induced intoxication. Family members

tried to dissuade him from abusing drugs but could not succeed. He could not maintain

D048

attendance in a residential drug-treatment program. "He was making excuses to come out, and

they let him . . . ." He loved and still did love his wife.

Defendant's younger sister, Sharon Ochoa, a licensed vocational nurse who had worked in a drug

detoxification center, confirmed her older sister's testimony in most respects. She testified,

however, that defendant's personality began to [****133] deteriorate in his 20's, rather than in

his teens. Once when he was physically abusing his wife, Elva, Sharon, who was home alone

with them, "got a bat and I threatened him [that] if he didn't leave her alone, I'd hit him, and he

eventually left her alone." She also saw defendant fight her father more than 15 times, and he

once threw a knife at him; also he physically fought with his wife more than 10 times. But when

sober he would show remorse over his drug use and would try to improve himself.

Defendant's wife, Elva Ochoa, also a licensed vocational nurse, testified about his

Jekyll-and-Hyde personality and how his drug and alcohol abuse destroyed their very close and

loving relationship. His work habits deteriorated, he would demand money from her, and he

began to pawn their possessions.

Yolanda A., the victim of one of defendant's attacks and a witness against him at the guilt phase,

testified on his behalf that if he were not on drugs in the future she would not be frightened of

him. On cross-examination, she testified that she had seen him violent some three times.

[*440] Everett Sosa testified that he grew up with defendant and had been his friend. He

confirmed [****134] the others' testimony regarding the effects of drugs on defendant's

personality. Defendant told him that he wanted to quit using drugs, and at one point attended

Bible study classes that Sosa had arranged.

Defendant's mother, Velia Ochoa, largely recapitulated his sisters' testimony about his life. She

mentioned that at about age 20 someone lacerated him with a broken bottle and only a surgeon's

skill saved him. They tried to get help for his drug problem "but it seems that the doors are closed

when you really need it . . . . [T]here was no room, waiting lists, or else [we] didn't have

insurance." She tried to have him committed but did not succeed. "[T]he drugs . . . took him."

Defendant called James Park, a consultant with 31 years' experience in the California Department

of Corrections, including supervising death row at San Quentin prison. He had also served as the

statewide supervisor of prisoner classification. He testified that defendant, if sentenced to life

imprisonment without possibility of parole, would automatically receive the highest security

classification, level four, and would probably remain so classified for two generations. He opined

that defendant "would [****135] adjust well to the maximum security prison setting, which is

not the most pleasant in the world, and he would be a productive prisoner." He described the kind

of work available to maximum security prisoners, including making clothing for mental hospital

patients and furniture for state offices. "In my experience and having seen many people with life

terms [***462] or life without possibility [of parole], getting a term like that seems to have a

very sobering effect on people."

[**496] On cross-examination, Park acknowledged that drugs are available in prison, though

D049

probably harder to obtain than outside. He also acknowledged that maximum security prisoners

can obtain or make weapons in theory, but that "it would be very very difficult to get weapons in

the new maximum security prisons . . . ."

Kenneth Leinweaver, a Los Angeles County deputy sheriff, testified that defendant had been a

trusty in Leinweaver's jail module--an eight-hour-a-day job that involved clerical and manual

tasks. Defendant was a good trusty during the month and a half he was in the module under

Leinweaver's supervision, meaning that he was not aggressive, was fairly intelligent, and was

willing to [****136] work productively. He got along well with other prisoners, and he was the

lead trusty on the graveyard shift.

Stanley White, the detective who interrogated defendant, testified that he showed signs of

remorse when confessing, had been crying, and that he asked for help "for what he had done."

[*441] Dr. Gorelick, who had testified on defendant's behalf at the guilt phase, testified that

cocaine use probably causes biochemical or neurochemical changes in the brain, and that

research was proceeding to try to undo any such changes. Some cocaine addicts cannot control

their abuse of the substance, which Dr. Gorelick opined is the most addictive drug he had

encountered.

On cross-examination, Dr. Gorelick testified that the most important indicator of success in

overcoming cocaine addiction is the will to participate in a treatment program for a considerable

time.

The prosecutor argued to the jury that defendant was a spoiled, self-indulgent, self-centered

thrill-seeker who liked to torment and molest women for pleasure. He maintained that despite his

history of drug abuse defendant knew what he was doing when he killed Chandler and assaulted

Charlotte J., Silvia V., and others. [****137] He argued generally that defendant's violence

toward others rendered him unfit to live. For example, Charlotte J. "came in here and testified,

and you saw--she tried to hold it back, but you saw what that woman went through. [She was]

treated like a dog."

In turn, defense counsel argued that each juror, as an individual, should put himself or herself

beyond the prosecutor's impassioned argument and spare defendant's life. Counsel acknowledged

that he was "as horrified and as shocked . . . about the things that you've heard" as were the jurors

themselves, but urged them to recognize that society would be safe from defendant, and he would

be severely punished, by a lifelong prison sentence, a term that "many people . . . would consider

. . . as harsh a penalty as his death." 7Link to the text of the note Life in prison would be harsh,

friendless

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