Filed 1/5/09
IN THE SUPREME COURT OF CALIFORNIA
THE
PEOPLE, )
)
Plaintiff and Respondent, )
) S054489
v. )
)
KEITH ZON DOOLIN,
)
) Fresno County
Defendant and Appellant. ) Super. Ct.
No. 554289-9
__________________________________ )
A jury convicted defendant Keith Zon Doolin of the
first degree murders[1]
of Inez Espinoza and Peggy Tucker, and the attempted murders
of Alice Alva, Debbie Cruz, Marlene Mendibles, and Stephanie Kachman.
For each crime, the jury found that defendant personally used a
firearm.
For each attempted murder, the jury found defendant personally
inflicted great bodily injury on the victim.
The jury found true the special circumstance allegation of multiple
murder,
and returned a verdict of death.
The court denied defendant’s motions for a new
trial
and penalty modification
and sentenced defendant to death. The court imposed and stayed a
determinate sentence on the noncapital felony counts and enhancements.
This appeal is automatic.
We affirm the judgment in full.
Between November 2, 1994, and September 19,
1995, defendant murdered two Fresno prostitutes and attempted to
murder four others. At trial, each surviving victim identified
defendant as her assailant. One decedent’s boyfriend saw her enter a
car defendant was driving on the night she was murdered. Ballistics
evidence established defendant’s Firestar .45-caliber handgun was used
to kill Espinoza and Tucker. Shell casings found at the Espinoza and
Kachman crime scenes were fired from that same weapon. Defendant’s
sister lived with him during the time the shootings occurred. Her
Lorcin .25-caliber pistol “probably” fired the shell casings found at
the Alva crime scene. Tire impressions left at the Mendibles and
Espinoza crime scenes were similar to the tread on defendant’s truck
tires.
Incriminating statements and other evidence
linked defendant to the crimes.
The defense consisted of evidence of alibi,
mistaken identification, and third party culpability.
A summary of the evidence adduced at trial
follows.
On the night of November 2, 1994, Alice Alva was
working as a prostitute. Defendant pulled up next to her in his
pickup truck and offered her $30 for sex. Alva got into the truck,
and defendant drove to a nearby cul-de-sac. When Alva asked for
payment, defendant pointed a silver gun at her and said, “I’m going to
fuck you all night.” Frightened, Alva told him, “I’ll do whatever you
want, but before we have sex, I need to use the bathroom.” Defendant
agreed, but warned Alva, “Don’t try anything stupid because you won’t
be the first girl I shot and killed.” Alva left the truck and ran.
She heard three or four shots, was shot in the leg, and fell to the
pavement. When she saw defendant approach with the gun in his hand,
she pretended to be dead. Defendant got in the truck and sped off.
The police recovered three .25-caliber shell casings
in the roadway near where Alva had fallen. Dr. Ralph Koo treated
Alva, who had a bullet lodged in her fractured right tibia. Because
of the risk of complications, including paralysis, Dr. Koo did not
remove the bullet.
Around midnight on December 29, 1994, Debbie Cruz was
working as a prostitute when defendant picked her up in his truck and
drove to an alley. As Cruz began to undress, defendant said, “I guess
you’re waiting for money.” He then pulled a small silver gun from his
pocket and shot her. Cruz opened the passenger door, fell out, and
crawled away. She collapsed at a nearby house and a resident called
police.
Officer Jack Gordon responded. Based on the size of
Cruz’s wound, Gordon believed she had been shot by a small caliber
gun, possibly a .22. A treating physician determined the bullet
entered Cruz’s left hip, passed through her abdomen, and perforated
her small intestine. The bullet was left in place following emergency
surgery.
Around 1:00 a.m. on July 29, 1995, Marlene Mendibles
was working as a prostitute and accepted defendant’s offer of a ride
in his truck. Defendant drove for a while, pulled over, and ordered
her to disrobe, threatening to shoot her if she did not comply. When
defendant pulled out a large silver gun, Mendibles grabbed her bag,
opened the passenger door, and told him she would walk. Standing
beside the truck, Mendibles told defendant, “I bet you remember me,”
and he replied, “I bet you remember me, too.” She then heard a
“pop.” Defendant drove away and Mendibles fell to the ground. She
was rendered a paraplegic by the shooting.
At 4:20 a.m., the same morning of the Mendibles
shooting, Alice Trippel heard a gunshot. At 4:30 a.m., Carmen Ramos,
who lived nearby, heard screaming. Around 11:00 a.m., Ramos’s
daughter, drove to her mother’s home. As she approached the carport,
she saw the dead body of prostitute Inez Espinoza in an alley near the
home.
Detective Robert Schiotis examined Espinoza’s body and
saw a gunshot entry wound in her lower right back with an exit wound
several inches below her navel. He removed a large caliber bullet and
a piece of the copper casing from Espinoza’s clothing. He also
recovered a spent .45-caliber shell casing, a condom, and a torn
Trojan brand condom wrapper. He also noted tire tracks and “traction
marks of a car taking off in a hurry.”
The autopsy surgeon observed a gunshot wound above
Espinoza’s right hip. The presence of powder marks near the entry
wound indicated the gun had been pressed against her clothing when
fired. The bullet had severed a major artery. She died from internal
bleeding.
On August 11, 1995, about 3:00 a.m., defendant drove
up beside Stephanie Kachman in a small white truck. She agreed to
have sex and got in the truck. Defendant drove into an alley and
stopped. When Kachman asked to be paid, he pointed a gun at her head
and told her to take off her clothes. Kachman told defendant she
needed to get out of the truck because a leg injury made undressing
difficult. They both left the truck.
While Kachman undressed, defendant put on a condom and
placed his gun on the truck seat. They began to have intercourse, but
Kachman lost her balance and stumbled. As she ran out of the alley,
she heard defendant’s truck approaching. She looked back and saw
defendant shooting at her through his window. Kachman was hit twice
and fell to the ground. A nearby resident summoned the police.
Seven shell casings were recovered near the scene.
Kachman sustained two through and through bullet wounds, one in her
back and the other in one of her thoracic vertebrae.
On the night of September 18, 1995, Peggy Tucker and
Rick Arreola left their motel and walked to an area in West Fresno.
Tucker walked ahead with Arreola trailing at a distance.
Arreola saw a Lincoln Town Car drive up next to
Tucker, who spoke to the driver and then got into the front passenger
seat. Arreola watched as the car drove into an empty lot and out of
his sight.
As Arreola stood on the center divider waiting for
Tucker to return, he saw the Lincoln drive by. The car’s dome light
was turned on and the driver, whom Arreola identified as defendant,
appeared be alone.
On the following morning, Tucker’s body was found in
an alley. When told of Tucker’s death, Arreola spoke with police and
described the Lincoln Town Car by color and license plate number.
Defendant’s mother, Donna Doolin Larsen, owned a similar vehicle.
Tire tracks at the Tucker murder scene reflected an
“acceleration mark” indicating the vehicle left at high speed. Two
packages of condoms were recovered from Tucker’s right hand. There
was blood on her back, in her mouth, and on the ground nearby.
Tucker’s autopsy revealed that she had been shot in
the right hip. The gun was probably fired from two to four inches
from the body based on stippling and soot marks. The perforation of
two major blood vessels and the intestines caused fatal blood loss and
shock. Three bullet fragments were recovered from the body.
On October 18, 1995, defendant was arrested and read
his Miranda
rights. Defendant said he understood them and was taken to police
headquarters. There, Detectives Robert Schiotis and Albert Murrietta
again explained defendant’s Miranda rights, which he waived.
Defendant told the detectives he was a trucker and
recently had been working for a towing company and a recycling
center. He reported he had been a civilian employee of the Army,
Navy, and Marines.
Defendant admitting owning a 1984 Toyota pickup. He
initially denied knowing about the prostitute shootings, but then
conceded he had heard that prostitutes were being robbed and shot.
The detectives said they knew defendant owned a gun
and that one of the victims had identified him as her assailant.
Defendant said he owned a .45-caliber Firestar Compact, which was in
his house. It was his “personal gun,” which he alone used. He bought
the Firestar for protection because it “shoots with both hands,” and
he was ambidextrous. He had fired the gun about 150 times at an
indoor shooting range but did not carry it.
Defendant had previously owned and sold two rifles.
In his safe, he occasionally kept guns belonging to friends.
Currently his safe contained a .44-caliber automatic and possibly a
nine-millimeter Taurus. When asked about a bulletproof vest found in
his house, defendant said he bought it for protection because he had
been robbed at a Walgreens store two years earlier and while clerking
at a 7-Eleven store.
When informed of the charges against him, defendant
claimed he was innocent and asked what he could do to vindicate
himself. He told the detectives he did not leave the house at night,
except to go to the store to get away from “tension at home.” He
admitted that a friend of his knew prostitutes. He had seen
prostitutes near a tavern and near the 7-Eleven store where he had
worked. He denied ever having hired a prostitute, although one had
approached him once. He felt Fresno was “flooded” with prostitutes
and believed prostitution should be legalized.
When told a witness had watched him pick up Peggy
Tucker in the Lincoln Town Car the night she was murdered, defendant
replied, “I have not picked up a prostitute in the car.” Defendant
had heard on television that the suspect drove a white truck with red
letters on the tailgate and a larger “Cadillac-type vehicle.” Told
that the tire track evidence implicated him, defendant responded that
he had put new tires on the Lincoln about two weeks earlier and on his
truck in May 1995.
He could not explain why the surviving victims
identified him from a photo lineup. He denied shooting them, using
drugs, or drinking alcohol. Asked when he last had sex, defendant
paused a long time, and then replied, “That doesn’t count.” He
explained he had had oral sex with a woman three weeks earlier and
paused because he did not know if oral sex “counted for having sex
with a girl.” Defendant maintained his innocence and again asked
what he could do to vindicate himself. The interview was concluded,
and defendant agreed to talk with detectives again.
Detective Schiotis reinterviewed defendant later that
day. Schiotis said a search of defendant’s house revealed the box for
a second .45-caliber Firestar. This second Firestar would later be
proven to have been used in several of the incidents. Asked why he
had not disclosed the existence of the second Firestar, defendant
said, “it just didn’t come up when we were talking,” and claimed the
second gun “hardly ever had been used.” Defendant initially said that
the second Firestar was in the headboard of his bed, and then that he
had given the gun to his cousin, Bill Moses, about three weeks
earlier. Upon further questioning, defendant told the detectives his
sister, Shana Doolin, had a .25-caliber handgun.
The next day, defendant was questioned after again
hearing and waiving his Miranda rights. He reported that he
had loaned the second Firestar to Bill Moses three or four weeks
earlier, and that no one else had used his gun. When told another
victim had identified him as her assailant, defendant looked at the
photo lineup and commented that one of the suspects looked “close
enough to be his brother.” He also said, “We’re going in circles
here.”
Defendant’s home was searched on the day of his
arrest. Police found a videotape entitled Pro Sniper, which showed
firing positions and types of guns used by a sniper. They also found
photographs of defendant and others with guns. In defendant’s
bedroom, they found body armor, a bulletproof vest with FBI stenciled
on the back, three ski masks, black military clothing, a camouflage
shirt, Soldier of Fortune and Combat Arms magazines, some pornographic
magazines, information on mail-order brides, and two boxes of
.45-caliber ammunition. A fully loaded .45-caliber Firestar in a
black waist holster, a loaded magazine, and a radio scanner were found
in the living room.
A gun safe in the garage held a Taurus PT-99
nine-millimeter handgun, three magazines for that weapon, two empty
Firestar gun boxes with consecutive serial numbers, and two sets of
handcuffs. The safe also contained a metal belt buckle with an
opening for a .22-caliber handgun; an Omega taser; paperwork showing
purchases of, and repairs to, guns owned by defendant; an unloaded
.44-magnum handgun; three plastic starter guns; a variety of rifles
and shotguns; and several kinds of ammunition, including over 600
.22-caliber rounds. Three unopened condoms were recovered from the
ashtray in defendant’s truck.
Detective Frank Rose recovered an unloaded .45-caliber
Firestar, two empty magazines, and a nylon holster from Bill Moses.
Moses said that he got the gun from defendant two or three weeks
earlier, but he had not fired the weapon.
Detective Todd Fraizer retrieved a Lorcin .25-caliber
semiautomatic handgun from Shana Doolin at her residence in Stockton.
On March 19, 1995, following the mandatory 15-day
waiting period, defendant had picked up the two Firestar .45-caliber
handguns he had purchased. The registered serial numbers were the
same as the numbers on the boxes found at his home. Defendant also
purchased two holsters that could be worn inside pants and two
magazines that allowed for one additional bullet in each magazine.
The store owner testified the Firestar had only been on the market a
few months and “would carry the greatest power — most powerful bullet
for its size.” He said that handgun was designed to be concealable.
He also identified bullets seized from defendant’s residence as
containing Federal brand .45-automatic hydroshock hollowpoint
cartridges, designed to expand upon impact.
Defendant’s sister, Shana Doolin, testified that she,
her mother, and her stepfather were living with defendant when the
shootings occurred. She bought the Lorcin .25-caliber handgun
retrieved by police. It jammed occasionally.
Shana gave her gun to defendant in mid-July 1995
because he said “one of our relatives needed it.” She claimed at
trial that defendant returned the gun to her in mid-August 1995. She
admitted that she testified at defendant’s preliminary hearing that he
returned the gun in early September 1995.
Before defendant was arrested, Criminalist Stephen
O’Clair examined a .45-caliber shell casing found near Espinoza’s body
and seven shell casings found at the Kachman crime scene. He
concluded they were all fired from the same gun. O’Clair also
concluded these shell casings “most likely” contained Federal brand
hydroshock hollowpoint bullets.
O’Clair later compared bullets test-fired from the
.45-caliber Firestar retrieved from Bill Moses (the second Firestar)
with rounds recovered from the Espinoza crime scene and Tucker’s
body. Both bullets were fired from the second Firestar that defendant
initially failed to mention to the detectives. O’Clair determined
these bullets were “probably” Federal brand hydroshock hollowpoint
bullets.
O’Clair also test-fired Shana Doolin’s .25-caliber
Lorcin and compared the characteristics of the spent shell casings
with the shell casings found at the Alva crime scene. He concluded
the casings recovered from the Alva scene were “probably” fired from
that gun. O’Clair explained that a defect in the Lorcin left “gross
types of marks” rather than “finer striated marks” on spent casings.
This defect precluded a positive match of the shell casings.
Criminalist Charles Morton also examined Shana
Doolin’s Lorcin and the second Firestar. He test-fired each and
compared bullets and shell casings from those weapons with those found
at the Espinoza, Kachman, and Alva scenes and the bullet recovered
from Tucker’s body. Morton concluded the shell casings found at the
Espinoza and Kachman scenes were fired by the second Firestar. The
Espinoza and Tucker bullets were also fired from that gun.
Morton agreed
with O’Clair that a .25-caliber weapon like Shana Doolin’s was used in
the Alva shooting. He explained that the number of guns that could
have been used in this shooting “probably”could be reduced based on
irregularities he observed on the Alva scene shell casings that were
caused by imperfections on the breech face of the gun that fired those
casings.
O’Clair examined, made impressions, and created
photographic transparencies of the tires on defendant’s truck. He
compared these transparencies with actual-size photographs of the tire
tracks found at the Mendibles and Espinoza crime scenes. Except for
differences in tread wear that could have resulted from the passage of
time, the tire impressions from both crime scenes were similar to the
tread on both front tires and the right rear tire on defendant’s
truck. The left rear tire of defendant’s truck had a different tread
design and appeared to be newer than the other three tires.
O’Clair examined what he described as “fairly new
tires” on the Lincoln belonging to defendant’s mother. The tread on
these tires did not match the tire impressions found at the Tucker
murder scene.
Defendant testified
he did not know the two decedents and first saw the surviving victims
when they appeared in court. He
claimed that when the Alva and Cruz assaults occurred, he was in
Watsonville and Wasco, respectively.
On he night of the Mendibles
and Espinoza shootings, defendant helped his family pack for an
upcoming move. Around 2:45 or 3:00 a.m., he drove to David Daggs’s
house to unload two motorcycles. He left around 4:30 a.m. and
returned home about an hour later after stopping at a gas station.
Daggs began his newspaper delivery route around 4:30 a.m. Defendant
could not explain why his mother wrote in her journal that he left the
house that morning around 2:00 a.m.
On the night of August 10,
1995, through the early morning hours of August 11, 1995, when Kachman
was shot, defendant was at home with his mother and cleaned the house
in anticipation of listing it for sale.
During the night of the Tucker
murder, he was at his mother’s house. He did not “remember ever going
out or doing anything special.” He confirmed his mother’s Lincoln was
at that residence.
He described himself
as a gun collector who used ammunition of different types, including
hollowpoints. He described the latter as “made to expand, double its
size” upon impact and more accurate than “a full metal projectile” at
short ranges.
Defendant denied watching the Pro Sniper video found
at his home. He bought matching .45-caliber Firestar handguns because
he is ambidextrous. He could
not explain what had happened to 18 hydroshock hollowpoint bullets
missing from a box of Federal brand bullets found at his home. He
suggested his cousin Bill Moses might be responsible for the shootings
but acknowledged that there are “still a lot of unanswered questions,
of course, . . . some that are positive and some that are negative”
about Moses’ possible involvement.
Dr. Howard Terrell, a psychiatrist, testified that
defense counsel initially had asked him to evaluate defendant and
review the police reports. Dr. Terrell concluded, “I found a man who
showed no evidence that I could see of mental disorder, either in my
examination of him or my review of the [police reports] that I have
available.” The psychiatrist found no evidence of psychosis, manic
depression, drug addiction, personality disorders, or sadism. Dr.
Terrell had evaluated over 100 murderers and probably a dozen serial
killers during his career. In his opinion, defendant did not match
any of the “typical profiles”
he would expect to see in a murderer, “let alone a serial killer.”
James Bacon testified that he had known defendant
since 1985 or 1986. On November 2, 1994, the night of the Alva
assault, defendant was visiting him in Freedom, California. Bacon was
not certain but thought defendant left for Fresno on Friday, November
5, 1994. Defendant also stayed with Bacon in late July 1995, and
returned to Fresno on the afternoon of July 28, 1995, with two
motorcycles in his truck.
On cross-examination, Bacon admitted he attended the
preliminary hearing, listened to witnesses testify, and took notes.
Bacon had compared these notes with those taken by defendant’s sister,
Shana Doolin. He had also looked at notes taken by defendant’s
mother.
David Daggs testified that from December 1994 to
September 1995, he dated Shana Doolin. Around 3:30 a.m. on July 29,
1995,
the morning of the Mendibles and Espinoza shootings, defendant came to
his residence and unloaded motorcycles from his truck. Defendant
finished before Daggs began his newspaper route at 5:00 a.m.
According to Daggs, Shana told him that defendant had purchased the
Lorcin for her.
Defendant’s mother, Donna Doolin Larsen, testified
that defendant watched television in his bedroom the night of the
Kachman shooting, and did not leave the house. On cross-examination,
when pressed on whether she actually remembered him being at home that
evening, Larsen said, “I know he was. I will go to my death saying
that he was at home on that date.”
Regarding the night of the Tucker murder, Larsen
testified defendant was home and left once from about 11:00 p.m. to
11:30 p.m. to buy her ice cream, cleaning supplies, and gasoline. She
and defendant cleaned her house “for hours” that night, to prepare for
a real estate showing.
On cross-examination, Larsen invoked her Fifth
Amendment privilege against self-incrimination when asked several
questions about her character for honesty and whether she had ever
falsely represented herself as a registered nurse or submitted false
documents at her place of employment.
Bill Moses testified he received the second Firestar
from defendant on September 1, 1995. He remembered the date because
it was his father’s birthday and he helped pack Shana Doolin’s moving
truck that evening. Moses stated he was mistaken when he told
Detective Rose that he had gotten the gun during the last week of
September or the first week of October 1995. He explained he had been
suffering from the side effects of a chemotherapy drug that can cause
amnesia.
Defendant unloaded hollowpoint bullets from the gun
before giving it to Moses, who owned three handguns himself. He
acknowledged that Tucker was murdered on September 19, 1995, and
understood the implications of his claim that he had defendant’s gun
on that date.
Moses further testified that he and defendant once
took Shana Doolin’s Lorcin without her knowledge. He had borrowed
this handgun from defendant from the end of July 1995 until August 18,
1995.
The prosecution presented numerous rebuttal
witnesses whose testimony is discussed in part II.C.2, below.
Dana Peterson, a registered nurse, assisted in a
sexual assault examination of D. on November 3, 1992. D. had a fresh
bruise on her right lower leg, which she claimed she had sustained in
a struggle with defendant.
Criminalist John Hamman testified as a ballistics
expert. Hamman stated a hollowpoint bullet is designed to “mushroom
or expand” upon impact and make almost twice as large a “wound track”
through the body, causing more damage.
Angel C., the 16-year-old daughter of murder victim
Inez Espinoza, testified she and her two half brothers (ages nine and
six) and a half sister (age three) all missed their mother. She
testified that in losing her mother, she lost “a big part of my life.”
Nina Mandrell, the sister of murder victim
Peggy Tucker, testified Tucker was survived by her mother, two
sisters, a brother, a husband, and two children ages five and three.
She and Tucker were very close. Tucker’s murder had been devastating
to her.
Allan Hedberg, a clinical psychologist, interviewed
and tested defendant for eight and a half hours the week before the
penalty phase began. Dr. Hedberg found defendant did not fit the
profile of a person who is psychotic, mentally ill, psychopathic, or
sociopathic. He described defendant as a “little paranoid” and having
“some unresolved resentment from his childhood that he has not worked
out,” causing him feelings of sadness, mild depression, anxiety, or
hostility. Dr. Hedberg also found defendant to be a person “who has
difficulty dealing with conflict, dealing with threat, dealing with
anger, dealing with feelings of resentment and wants to be seen as
favorable by other people, wants to be accepted by other people. . .
.”
Dr. Hedberg stated that defendant’s mother had been
married four times and that defendant, who suffered from a learning
disability, had been verbally and emotionally abused by two of his
stepfathers.
Based on his observations, Dr. Hedberg said defendant
appeared to have “adjusted quite well” to the jail environment,
interacting positively with guards and inmates.
“Representation of a criminal defendant
entails certain basic duties. Counsel’s function is to assist the
defendant, and hence counsel owes the client a duty of loyalty, a duty
to avoid conflicts of interest.” (Strickland v. Washington
(1984) 466 U.S. 668, 688 (Strickland.) Fundamental to
counsel’s role is “a duty to make reasonable investigations or to make
a reasonable decision that makes particular investigations
unnecessary.” (Id. at p. 691.)
In this case, defendant contends Fresno County
Superior Court’s compensation agreement created an inherent and
irreconcilable conflict of interest because both counsel’s
compensation and the costs for investigative and expert services were
covered by a lump sum fee. Defendant asserts this circumstance
created a financial disincentive for counsel to adequately investigate
and prepare his case. Any such agreement, he argues, creates a
conflict requiring reversal under the judicially declared rule of
People v. Barboza (1981) 29 Cal.3d 375 (Barboza).
In the alternative, defendant contends the
fee agreement violated his state and federal Constitutional rights to
conflict-free counsel as well as his federal Constitutional rights to
equal protection, due process, and a reliable verdict. Each of
defendant’s contentions is without merit.
At the time of defendant’s trial, Fresno County
Superior Court’s policies for capital cases provided for three
categories of compensation depending on the complexity of the case.
Appointed counsel were paid a lump sum, as follows: $40,000 for a
noncomplex case with one defendant and one victim; $60,000 for a case
involving multiple victims or defendants, complicated special
circumstances, or complex factual or legal issues; and $80,000 for a
case involving multiple victims or defendants, highly unusual
publicity, complicated special circumstances, or complex factual or
legal issues (Category 3 cases). The lump-sum amount covered all
attorney fees as well as costs for ancillary services under section
987.9.[15]
Under these agreements, appointed counsel received periodic payments
throughout the pendency of the case.
Upon written justification, appointed counsel could obtain additional
“Category fees” for cases that received extensive publicity or that
involved numerous victims or crimes. As the case progressed,
appointed counsel could request additional funding for expenditures
under section 987.9. The agreement here provided that investigative
and expert costs were included in the authorized Category 3
compensation of $80,000, unless additional amounts were authorized by
the Capital Case Review Committee. Thus, the agreement provided for
the express authorization of increased expenditures.
Based on the record, it appears the capital case
compensation system operated in the following way. Upon appointment,
private counsel would make an initial evaluation of the case by rating
its complexity and projecting the kind and extent of ancillary
services that might be required. Based on this evaluation the court
would determine what category of compensation to authorize. Counsel
could then agree, or not, to accept appointment under the
court-approved category. Under both the agreement and section 987.9,
counsel could seek additional funds for ancillary services upon a
showing of need.
Here, in connection with his appointment, counsel
proposed that defendant’s case be designated as a Category 3 matter,
calling for the highest compensation rate. He outlined an estimated
$60,000 in investigative and expert costs in a two-page attachment.
He made clear his outlined costs were merely estimates. He stated he
could not set out fixed costs “in cold dollar amounts” at so early a
stage of the proceedings and explained why. As discussed in greater
detail below, he identified a number of potential expenditures that
ultimately were not required. After defendant’s trial, counsel
submitted a final accounting. According to that accounting, counsel
received $80,000. Of that amount, $8,676.15 was to cover ancillary
costs under section 987.9. The amount of ancillary costs included a
“professional courtesy discount” of $780. It does not include
expenditures of $2272.88 paid to the public defender before he
declared a conflict in this case.
Defendant relies primarily on Barboza,
supra, 29 Cal.3d 375, in arguing this judgment should be reversed
because counsel’s lump sum compensation agreement inherently created
an irreconcilable conflict of interest. His reliance fails. In
Barboza, two codefendant brothers appealed their assault
convictions claiming ineffective assistance of counsel due to conflict
of interest. Both were represented by the county public defender’s
office. Under an agreement with the county, the public defender’s
office was to be paid $104,000 annually. From that amount, $15,000
was set aside in a reserve account to pay appointed private counsel if
the public defender’s office declared a conflict of interest. On a
monthly basis, any deficiency in the reserve account was deducted from
the public defender’s compensation and budget and deposited in the
reserve account. (Id. at p. 378.) At the end of the year, any
unexpended funds from the reserve account were paid to the public
defender. If the account was overspent, “the public defender was
liable for any deficiency.” (Id. at p. 379.)
The court held that as a “ ‘judicially declared
rule of criminal procedure’ ” the fee agreement created an inherent
and irreconcilable conflict of interest that required reversal of the
codefendants’ convictions. (Barboza, supra, 29 Cal.3d
at p. 381.) The agreement created a “real and insoluble
tension” between the public defender’s duty to investigate and declare
a conflict on the one hand and his interest in maximizing his office
budget on the other. (Id at pp. 380-381.) The fewer conflicts
declared, the fewer demands on the reserve account, leaving more
income and operating funds for the public defender.
Notably, the court in Barboza did not
reach the question of whether, even in the absence of the fee
agreement, there was an actual conflict of interest between the
codefendants. (Barboza, supra, 29 Cal.3d at p.
381.) Relief was based on the judicially created procedural rule. In
the court’s view, the public defender’s declaration of a conflict
would directly affect the financial interests of that office. In such
a circumstance, the potential for bias was neither remote nor
tenuous. (Id. at p. 380.) The court acknowledged that
in order to assure that joint representation of multiple defendants is
conflict free, trial courts rely in large
measure on the ethical obligations of counsel representing multiple
defendants to declare conflicts. (Id. at p. 378, 381.)
The agreement in Barboza precluded
such reliance on the public defender’s conflict determinations,
however, because, “[n]o matter how well-intentioned the public
defender might [have] be[en],” his decisions “directly affected” his
income and office budget. (Id. at p. 381.)
We emphasize, however, that the agreement in
Barboza operated in the context of multiple representation cases,
a situation rife with potential for conflicts. (See People v.
Mroczko (1983) 35 Cal.3d 86, 103-104 (Mrozcko).)
Barboza specifically concerned the public defender’s duty to
investigate and declare conflicts between multiple defendants. Even
in this context, the court stressed the unique circumstances of the
conflict confronting the public defender. “Unlike the typical
conflict which may arise when single counsel represents multiple
defendants, the initial conflict [in Barboza] arose the
moment that the public defender was appointed to represent the two
defendants.” (Barboza, supra, 29 Cal.3d at p.
379, italics added.) He was immediately confronted with investigating
and discovering any conflict existing between defendants as well as
maintaining his salary and office budget. (Ibid.)
This case is clearly distinguishable from
Barboza. The agreement concerned appointed counsel’s
representation of defendant alone and thus did not exacerbate a
situation in which conflicts already were inherent. To be sure,
defendant’s complaint ultimately concerns the impact of an asserted
financial disincentive created by the fee agreement on counsel’s
performance at trial. Barboza, however, confronted a very
different kind of problem involving the public defender’s duty to
declare conflicts of interest in multiple representation cases. The
county’s compensation agreement with the public defender related to
his salary, office budget, and payment for alternate counsel appointed
in conflicts cases. The court’s chief concern was that the public
defender’s determinations about whether to remove that office from a
case were affected by the actual conflict of interest created by the
agreement. (Barboza, supra, 29 Cal.3d at pp.
380-381.) The court’s inability to rely on the public defender’s
conflict determinations could impact its ultimate obligation to assure
indigent defendants conflict-free representation. Nothing in
Barboza suggests that there was a provision for the public
defender to apply for augmentation to his budget.
Defendant accurately argues that under the
agreement his lawyer could maximize his own compensation by cutting
expenses for investigative and expert services. This theoretical
possibility, however, is qualitatively no different from other flat
fee agreements that have been held acceptable. For example, in
People v. Knight (1987) 194 Cal.App.3d 337, 346-348, the Court of
Appeal rejected a contention that the county’s compensation agreement
with private attorneys for representation of indigent defendants
contained an inherent conflict of interest because it paid a flat fee
whether the defendant pleaded guilty or went to trial, permitted
attorneys to engage in private practice, and limited the amount of
investigators’ fees. The court declined to hold that the provisions
presented a potential conflict of interest that led to impairment of
counsel’s representation. (Id. at p. 348.) Similarly, in
Phillips v. Seely (1974) 43 Cal.App.3d 104, 117, the Court of
Appeal concluded a county’s flat fee agreement with an attorney for
daily representation of indigent defendants that included
investigative costs in the attorney’s monthly fee did not give rise to
a conflict of interest.
We have observed that: “ ‘[A]lmost any fee
arrangement between attorney and client may give rise to a “conflict.”
An attorney who received a flat fee in advance would have a
“conflicting interest” to dispose of the case as quickly as possible,
to the client’s disadvantage; and an attorney employed at a daily or
hourly rate would have a “conflicting interest” to drag the case on
beyond the point of maximum benefit to the client. [¶] The contingent
fee contract so common in civil litigation creates a “conflict” when
either the attorney or the client needs a quick settlement while the
other’s interest would be better served by pressing on in the hope of
a greater recovery. The variants of this kind of “conflict” are
infinite. Fortunately most attorneys serve their clients honorably
despite the opportunity to profit by neglecting or betraying the
client’s interest.’ ” (Maxwell v. Superior Court (1982) 30
Cal.3d 606, 618-619, fn. 8 (Maxwell).)
The agreement here permits appointed counsel to
responsibly and ethically carry out professional obligations to
clients. As with certain contracts described in Maxwell, some
attorneys might conceivably take advantage of the agreement’s terms to
increase their income at the expense of their clients’ interests. In
general, however, we assume attorneys are not so unethical as to
neglect their clients’ interests to advance their own. Any such
obvious malfeasance is clearly the exception not the rule. In any
event, a mere possibility for misconduct is insufficient to invalidate
this agreement. (See Phillips v. Seely, supra, 43
Cal.App.3d at p. 117.)
For these reasons, we decline to extend
Barboza’s judicially declared rule of criminal procedure to Fresno
County Superior Court’s lump-sum compensation agreement.
Accordingly, defendant can prevail on his claim only if he can
demonstrate a violation of his constitutional rights.
A criminal defendant is guaranteed the right to
the assistance of counsel by the Sixth Amendment to the United States
Constitution and article I, section 15 of the California
Constitution. This constitutional right includes the correlative
right to representation free from any conflict of interest that
undermines counsel’s loyalty to his or her client. (See Glasser v.
United States (1942) 315 U.S. 60, 69-70 (Glasser);
People v. Douglas (1964) 61 Cal.2d 430, 436-439.) “It has long
been held that under both Constitutions, a defendant is deprived of
his or her constitutional right to the assistance of counsel in
certain circumstances when, despite the physical presence of a defense
attorney at trial, that attorney labored under a conflict of interest
that compromised his or her loyalty to the defendant.” (People v.
Rundle (2008) 43 Cal.4th 76, 168 (Rundle).) “As a general
proposition, such conflicts ‘embrace all situations in which an
attorney’s loyalty to, or efforts on behalf of, a client are
threatened by his responsibilities to another client or a third person
or his own interests. [Citation.]’ ” (People v. Cox (1991) 53
Cal.3d 618, 653 (Cox I), quoting People v. Bonin (1989)
47 Cal.3d 808, 835.) In this case, defendant claims counsel labored
under a financial conflict of interest in violation of his federal and
state constitutional rights.
In Mickens v. Taylor (2002) 535 U.S. 162 (Mickens),
the high court confirmed that claims of Sixth Amendment violation
based on conflicts of interest are a category of ineffective
assistance of counsel claims that, under Strickland, supra, 466
U.S. at page 694, generally require a defendant to show (1) counsel’s
deficient performance, and (2) a reasonable probability that, absent
counsel’s deficiencies, the result of the proceeding would have been
different. (Rundle, supra, 43 Cal.4th at p. 169, citing
Mickens, supra, 535 U.S. at p. 166.) In the context of
a conflict of interest claim, deficient performance is demonstrated by
a showing that defense counsel labored under an actual conflict of
interest “that affected counsel’s performance — as opposed to a
mere theoretical division of loyalties.” (Mickens, supra,
535 U.S. at p. 171; Rundle, supra, 43 Cal.4th at p.
169.) “[I]nquiry into actual conflict [does not require] something
separate and apart from adverse effect.” (Mickens, supra,
535 U.S. at p. 172, fn. 5.) “An ‘actual conflict,’ for Sixth
Amendment purposes, is a conflict of interest that adversely affects
counsel’s performance.” (Ibid.)
This court has suggested that a determination of
whether counsel’s performance was “adversely affected” under the
federal standard “requires an inquiry into whether counsel ‘pulled his
punches,’ i.e., whether counsel failed to represent defendant as
vigorously as he might have, had there been no conflict. [Citation.]
In undertaking such an inquiry, we are . . . bound by the record. But
where a conflict of interest causes an attorney not to do something,
the record may not reflect such an omission. We must therefore examine
the record to determine (i) whether arguments or actions omitted would
likely have been made by counsel who did not have a conflict of
interest, and (ii) whether there may have been a tactical reason
(other than the asserted conflict of interest) that might have caused
any such omission.” (People v. Cox (2003) 30 Cal.4th 916,
948-949 (Cox II).)
With regard to the prejudice requirement, the
high court has recognized a presumption of prejudice applies when
defense counsel “actively represented conflicting interests.”
(Mickens, supra, 535 U.S. at p. 166.) It stressed “the
high probability of prejudice arising from multiple concurrent
representation, and the difficulty of proving that prejudice”
justified application of the presumption.
(Id. at p. 175, citing Cuyler v. Sullivan (1980) 446
U.S. 335, 348-349 (Sullivan); Holloway v Arkansas (1978)
435 U.S. 475, 490-491 (Holloway).) We have agreed with the
high court that “the presumption of prejudice is a prophylactic
measure established to address ‘situations where Strickland
itself is evidently inadequate to assure vindication of the
defendant’s Sixth Amendment right to counsel.’ ” (Rundle,
supra, 43 Cal.4th at p. 173, quoting Mickens, supra,
535 U.S. at p. 176.)
In this case, defendant contends that his
Sixth Amendment right to counsel was violated because counsel labored
under an actual conflict of interest arising from counsel’s
compensation agreement. That is, his conflict of interest claim arose
not because of a conflict among clients but between his lawyer’s
interest in maximizing fees and defendant’s interest in full
investigation. He urges the compensation agreement created an actual
conflict of interest that divided counsel’s loyalties and adversely
affected his performance. In support, defendant asserts numerous
deficiencies by counsel as part of his federal constitutional claim,
state constitutional claim, or both. As discussed below, we adopt the
federal constitutional standard for evaluating claims of conflict of
interest under our state constitution and thus analyze defendant’s
claims under only the federal standard.
Under our state Constitution, the right to
counsel includes the correlative right to conflict-free
representation. (People v. Douglas, supra, 61 Cal.2d at
pp. 436-439.) We have formulated a different standard of review of
conflict of interest claims than that employed under federal law to
analyze analogous Sixth Amendment claims. In order to establish a
violation of the right to conflict-free counsel, we require a
defendant to (1) show counsel labored under a potential conflict of
interest, and (2) raise an informed speculation that the potential
conflict adversely affected counsel’s performance. (Rundle, supra,
43 Cal.4th at p. 175.)
The phrase “ ‘informed speculation’ ” was first
employed in People v. Chacon (1968) 69 Cal.2d 765, 776,
footnote 3 (Chacon). We borrowed the informed speculation
concept from Lollar v. United States (D.C.Cir. 1967) 376 F.2d
243 (Lollar), to assess prejudice resulting from a conflict of
interest arising from counsel’s joint representation of codefendants
in violation of the state and federal Constitutions. (Chacon, 9
Cal.2d at p. 776, fn. 3, quoting Lollar, 376 F.2d at p. 247.)
The court wrote: “ ‘[O]nly where “ ‘we can find no basis in the
record for an informed speculation’ that [the defendant]’s rights were
prejudicially affected” can the conviction stand.’ ”
(Ibid.)
Over the course of the ensuing 40 years, a
precise definition of our informed speculation concept has proven
elusive and the concept has been somewhat variously applied. (Compare
Chacon, supra, 69 Cal.2d at p. 776, fn. 3 [equating the
concept of informed speculation in assessing prejudice resulting from
a conflict of interest with the reasonable doubt standard under
Chapman] and In re Watson (1972) 6 Cal.3d 831, 845 [finding
no “no basis in the record for even an ‘informed speculation’ that
petitioner’s rights were prejudicially affected”; any conflict based
on counsel’s joint representation was harmless beyond a reasonable
doubt]; with People v. Cook (1975) 13 Cal.3d 663, 670 [a denial
of the right to effective assistance of counsel is shown “if the
record provides an adequate basis for an ‘informed speculation’ that
there was a potential conflict of interest which prejudicially
affected the defendant’s right to effective counsel”]; Mroczko,
supra, 35 Cal.3d at p. 105 [“even a potential conflict may require
reversal if the record supports ‘an informed speculation’ that [defendant]’s
right to effective representation was prejudicially affected”];
People v. Frye (1998) 18 Cal.4th 894, 998 [a violation of the
right to effective assistance of counsel is established if “the record
supports an ‘informed speculation’ that the asserted conflict
adversely affected counsel’s performance”]; and Rundle, 43
Cal.4th at p. 175 [“under the state Constitution we have required
only that the record support an ‘informed speculation’ that a
‘potential conflict of interest’ impaired the defendant’s right to
effective assistance of counsel”].)
Moreover, contrary to defendant’s assertions,
although this court has applied a presumption of prejudice to
conflicts of interest arising from an attorney’s concurrent
representation of adverse clients (Rundle, supra, 43
Cal.4th at p. 172, citing People v. Easley (1988) 46 Cal.3d 712
(Easley); Mroczko, supra, 35 Cal.3d 86; Chacon,
supra, 69 Cal.2d 765), we have never eliminated our general
requirement that a defendant demonstrate outcome-determinative
prejudice from a violation of his state constitutional right to
conflict-free counsel in order to obtain relief. “[A]ll trial court
error under California law is governed by article VI, section 13 of
the California Constitution: ‘No judgment shall be set aside, or new
trial granted, in any cause, on the ground of misdirection of the
jury, or of the improper admission or rejection of evidence, ... or
for any error as to any matter of procedure, unless, after an
examination of the entire cause, including the evidence, the court
shall be of the opinion that the error complained of has resulted in a
miscarriage of justice.’ ” (People v. Crayton (2002) 28
Cal.4th 346, 364.) “[A] ‘miscarriage of justice’ should be declared
only when the court, ‘after an examination of the entire cause,
including the evidence,’ is of the ‘opinion’ that it is reasonably
probable that a result more favorable to the appealing party would
have been reached in the absence of the error.” (People v. Watson
(1956) 46 Cal.2d 818, 836; see Rundle, supra, 43 Cal.4th
at pp. 175-176 [defendant failed to demonstrate under the state
constitutional standard that he was prejudiced by the conflict of
interest, which did not impact the presentation of the defense case].)
As noted, post-Strickland, the high
court’s analysis of Sixth Amendment conflict of interest claims has
evolved into one of ineffective assistance of counsel, which requires
a defendant to show counsel’s deficient performance and a reasonable
probability that but for counsel’s deficiencies, the result of the
proceeding would have been different. (Rundle, supra,
43 Cal.4th at p. 169, citing Mickens, supra, 535 U.S. at
p. 166.) Upon close examination of the federal standard and our own,
we discern no ultimate substantive difference between the two. Our
elusive and somewhat varied application of our state standard over the
past four decades, moreover, strongly suggests that our informed
speculation formulation is too amorphous to provide meaningful
guidance to either the bench or bar.
We therefore conclude that employing both
standards is unnecessary and confusing. In the final analysis, both
standards involve a consideration of prejudice in the outcome. The
federal constitutional approach zealously protects a criminal
defendant’s constitutional right to conflict-free counsel. The
federal articulation of the constitutional requirements is clear and
provides a more meaningful framework for review. Today, we therefore
harmonize California conflict of interest jurisprudence with that of
the United States Supreme Court and adopt the standard set out in
Mickens.
Accordingly, we reject defendant’s state conflict
of interest claim for the reasons stated below in our federal
analysis. We disapprove those earlier cases to the extent that they
can be read to hold that attorney conflict claims under the California
constitution are to be analyzed under a standard different from that
articulated by the United States Supreme Court.
As a preliminary observation applicable to
each of the subclaims below, counsel’s final accounting shows he spent
a total of $8,676.15 in ancillary expenses. Although the amount does
not include funds expended by the public defender, or take into
account the professional discount for services, it is certainly less
than the original $60,000 estimate. Counsel was therefore entitled to
retain $71,323.85 of the $80,000 Category 3 fee. We consider these
disparities in the context of the facts and the asserted deficiencies
in counsel’s performance to determine whether an actual conflict of
interest adversely affected counsel’s representation. (Mickens,
supra, 535 U.S. at p. 172, fn. 5.) In any circumstance in
which defendant succeeds in demonstrating an actual conflict affected
counsel’s performance, we will then address the prejudice prong of the
federal standard, applying the standard under Strickland. We
note that defendant’s reliance on these facts is different from a
general attack on the contract itself. Rather than arguing that
any lawyer operating under the contract would have an
irreconcilable conflict, defendant argues that these facts show that
his lawyer had an actual conflict of interest that affected his
performance.
a. Investigator Jeff Gunn and
prospective prosecution penalty phase witnesses
Defendant asserts that defense investigator
Jeff Gunn’s invoices show he worked only 13.5 hours before counsel
announced ready for trial; had spoken to no alibi witnesses except
Donna Doolin Larsen by the first day of trial; had not prepared
written reports on alibi witnesses Jim Bacon and David Daggs until two
days before the defense case opened; and never contacted prospective
prosecution penalty phase witnesses D., Denise Hamblen, Faith Ruacho,
or Florence April Chavez.
Defendant’s complaint is misleading. He
fails to mention that Gunn had originally worked on this case for
about two and one-half months as the investigator for the Fresno
County Public Defender and had conducted approximately 90 hours of
investigation before the public defender declared a conflict.
Defendant does not account for this work nor does he establish that
Gunn did not interview Bacon and Daggs when he worked for the
public defender. Moreover, it is certainly possible that Gunn
interviewed Bacon and Daggs while working for the public defender but
did not complete his reports of these two interviews until later.
Even considering the disparity between counsel’s estimated and actual
ancillary expenses noted above, defendant has not established that
either Gunn’s performance or counsel’s representation, was affected by
the asserted conflict. He therefore fails to satisfy the deficient
performance prong under Strickland. (Mickens, supra,
535 U.S. at p. 171.)
By statute, before trial begins, the
prosecutor must give a capital defendant notice of any aggravating
evidence it may seek to offer during the penalty phase. (§ 190.3.)
The prosecution’s notice included evidence of “aggressive conduct”
toward prospective witnesses D., Hamblen, Ruacho, and Chavez. Ruacho
did not testify at all. The other three women were not identified as
witnesses for the prosecutor’s case-in-chief. They testified only at
the guilt phase in rebuttal to Dr. Terrell’s testimony that defendant
suffered from no mental disorder and did not match the “typical
profiles” he would have expected to see in a murderer (Evid. Code, §§
721, subd. (a), 780), and to impeach defendant’s testimony regarding
his own good character (Evid. Code, § 1101, subd. (c)). D.
testified, in part, that defendant forced her to have sexual
intercourse with him. The jury was instructed at the penalty phase
that it could consider this evidence as aggravating other-crimes
evidence under section 190.3, factor (b).
Counsel’s primary “duty is to investigate
the facts of his client’s case and to research the law applicable to
those facts.” (People v. Ledesma (1987) 43 Cal.3d 171, 222.)
Counsel’s decisions regarding strategy and tactics must be rational
and “ ‘founded upon adequate investigation and preparation.’ ” (In
re Thomas (2006) 37 Cal.4th 1249, 1258.)
There is no discernable tactical explanation on
the record for counsel’s failure to investigate the prospective
prosecution penalty phase witnesses. Unconflicted counsel reasonably
would investigate the prosecution’s aggravating evidence both to make
informed tactical decisions and to advise defendant about whether to
testify. Our inquiry does not end here, however. Defendant has not
established that counsel’s failure to interview these witnesses was
motivated by his asserted desire to keep for himself funds initially
budgeted for this investigation. It does not follow logically that
the absence of an explanation discernable in the record for the
absence of interviews can be attributed only to the financial conflict
defendant urges. Explanations unrelated to counsel’s fee agreement
could account for counsel’s omission. Counsel may have delayed
conducting this investigation until after the guilt phase in
anticipation that these witnesses would testify only at the penalty
phase. The record shows that, with the exception of Ruacho who did
not testify, the prosecutor called the prospective witnesses listed on
the notice of aggravating evidence only in rebuttal after defendant
presented evidence of his good character. In any event, we do not
conclude that the only explanation for counsel’s failure to
investigate the prospective prosecution rebuttal witnesses is the
asserted conflict of interest. Defendant therefore fails to show the
asserted conflict adversely affected counsel’s performance regarding
this investigation.
Defendant complains that the defense
ballistics expert did not analyze the evidence until four days before
the guilt phase of the trial began. Any delay, for whatever reason,
is immaterial. The analysis was completed before trial. The defense
expert agreed with the two prosecution experts. Defendant’s
.45-caliber Firestar was used to kill Tucker and Espinoza, and shell
casings found near Espinoza and Kachman were fired from that same
gun. The casings recovered from the Alva crime scene could have been
fired from Shana Doolin’s Lorcin. Defendant’s bare assertion fails to
satisfy the deficient performance prong under Strickland.
Defendant claims that defense counsel
failed to retain an expert to perform blood analysis even though he
included a blood analysis expert in his initial estimate of costs.
Merely because defense counsel originally believed he might need
expert blood analysis does not establish that he failed to obtain
expert assistance because of the asserted conflict. Further, there is
no evidence that counsel’s performance was in any way substandard. No
evidence suggested the shooter left blood at any of the crime scenes.
No blood was found in either defendant’s truck or his mother’s car.
The prosecution’s evidence, moreover, provided overwhelming evidence
of defendant’s guilt. Ballistics evidence confirmed defendant’s gun
was used to shoot Tucker, Espinoza, and Kachman. Each of the four
attempted murder victims identified defendant in court as her
assailant. Tucker’s boyfriend identified defendant as the driver who
picked up Tucker shortly before her murder. Defendant’s sister lived
with defendant at the time of the shootings. Her .25-caliber handgun
could have been used in the Alva shooting. Under these circumstances,
unconflicted counsel could reasonably have decided a blood analysis
expert would contribute nothing to the defense. Defendant’s
assertions do not show deficient performance under Strickland.
d. DNA analysis
Defendant complains that defense counsel
delayed his request for retesting of DNA evidence obtained from victim
Espinoza’s body until after the jury returned its guilty verdicts, and
failed to seek DNA analysis of the vaginal samples obtained from D.,
who testified during guilt phase rebuttal about defendant’s forcible
rape.
The record, however, belies any reasonable
inference that the compensation agreement affected counsel’s decision
making about DNA analyses. In responding to defendant’s Marsden
motion at the sentencing hearing, defense counsel explained that DNA
analysis of the semen obtained from victim Espinoza was not relevant.
The victims all were working prostitutes. Based on the testimony of
the survivors, they were shot because they refused to have sexual
intercourse with the shooter unless they were paid first. Three of
the women testified there was no act of intercourse with defendant,
and during the incident with victim Kachman, defendant wore a condom.
Any DNA obtained at the scene or from the victims could certainly have
belonged to other customers. There is no hint in this logical
explanation that counsel was influenced by a desire to maximize his
income. Again, ballistics and identification testimony were strong
evidence of defendant's guilt.
Faced with these circumstances, reasonable and unconflicted counsel
could legitimately decide that retesting of Espinoza’s DNA would be
pointless.
Vaginal samples were originally obtained
from D. following her earlier police compliant that defendant raped
her. The prosecution established that sperm was present in the
vaginal samples. Even though defendant testified that he never had
intercourse with D., he admitted to having an intermittent
relationship with her and told D.’s brother that she had stayed
overnight with him around the time of the alleged rape. At trial,
defendant denied he told police during the rape investigation that “if
they had found any semen, it would be because she had saved it in a
cup and poured it on herself.” He explained, “I—I don’t remember
that—that statement. It might have been made. I don’t know. I was
very upset of course, you know somebody making that allegation. . .
.” Defendant later testified that he “might have” made such a
statement but had “no idea” because the incident occurred so long
ago. Finally, when D. became pregnant by her former boyfriend,
defendant wanted her to sign a letter he drafted stating, in essence,
that he was not the father of the baby. Any decision by counsel to
forgo DNA testing to determine the identity of the sperm donor thus
appears to have been a reasonable, tactical choice, not one motivated
by the asserted conflict of interest.
Had testing shown defendant to have been the donor, his
credibility would have suffered a significant blow. Evidence of a
different donor would have been susceptible of various explanations
and of limited value in light of all the other evidence on this topic.
Defendant complains that defense counsel
failed to consult with an expert to analyze the tire tread evidence
even though the prosecutor provided him with reports from his expert
before trial. As noted, the prosecution’s evidence pointed unerringly
to defendant’s guilt. The tire tread evidence, in contrast, was
neither conclusive nor crucial on the issue of identity. The People’s
own expert could conclude only that the tire impressions depicted in
the photographs were “similar” to the tire treads on defendant’
truck. Evidence this insubstantial did not require expert
refutation. Sound defense tactics would counsel that the less said
about this evidence the better.
Defendant complains that psychiatrist
Howard Terrell, who testified in the guilt phase, only spent one hour
with him and conducted a four-hour document review. As a result, the
prosecutor exploited the expert’s unfamiliarity with the contents of
police reports of prosecution witnesses and defendant’s uncharged
conduct. Defendant also finds fault with counsel because psychologist
Hedberg did not administer any tests to defendant until a few days
before the penalty phase began. He also claims Dr. Hedberg “did no
work” regarding his testimony on the limitations of eyewitness
testimony until the day he testified in the guilt phase. Defendant
does not otherwise explain this assertion. The record shows Dr.
Hedberg had testified as an expert on this subject “several hundred
times.” Defendant alleges counsel delayed asking Dr. Hedberg to
conduct his tests hoping that a favorable guilt phase verdict would
obviate the need for a penalty phase. Finally, defendant asserts that
defense counsel never conducted the background investigation and
“extensive psychiatric and social study” he estimated might be
necessary at the outset of his involvement in this case.
When counsel was appointed, he indicated an
“extensive” psychiatric evaluation of defendant was necessary because
defendant intended to plead not guilty by reason of insanity. Counsel
hired an experienced psychiatrist, Dr. Terrell, who testified at the
guilt phase that he had examined over one hundred murderers and a
dozen serial killers. This defense expert concluded that defendant
was neither psychotic nor the victim of disordered personality, thus
undermining any potential insanity defense as a viable tactic and the
need for a more extensive psychiatric study. Terrell’s conclusion was
corroborated by Dr. Hedberg who also interviewed and tested defendant
and testified at the penalty phase.
There is nothing in the record to support
even a suspicion that these experts’ conclusions were in any way
influenced by the asserted conflict of interest. Nor is there a basis
in this record from which we can speculate that any delay in retaining
or preparing these experts was attributable to the asserted conflict.
Defendant contends that counsel failed to
conduct a background investigation and social study of defendant
because of the asserted conflict of interest. Before trial, counsel
budgeted $15,000 for “Background (lifetime) investigation of Defendant
for penalty phase social study report” and $10,000 for engaging the
services of a “Psychiatrist and Social Worker.” His final accounting
shows that he spent approximately $4,500 for services provided by the
defense psychiatrist and psychologist.
At the hearing on his motion for a
continuance, brought three days before the penalty phase was scheduled
to begin, counsel related he had not contacted defendant’s 16
potential character witnesses. The prosecutor had complained he had
not received discovery regarding statements of witnesses the defense
intended to call in the penalty phase. Defense counsel responded that
he had intentionally not interviewed those witnesses. In counsel’s
view, statements defendant made to counsel about what the witnesses
would say were privileged and not subject to discovery.
At the penalty trial, Dr. Hedberg, the
clinical psychologist, was the sole witness called on defendant’s
behalf. Dr. Hedberg’s testimony focused on his psychological testing
of defendant and his conclusion that defendant was not psychotic,
psychopathic, sociopathic, or suffering from any mental illness. The
remainder of this expert’s testimony outlined defendant’s family
history. Defendant’s mother had been married four times. Two of
defendant’s stepfathers were verbally and emotionally abusive.
Defendant “carries some unresolved resentment from his childhood that
he has not worked out” that may periodically cause him to
unintentionally express hostility or resentment. Counsel also
introduced some of defendant’s school records. Defendant’s mother,
sister, cousin, and several friends had testified during the guilt
phase. These friends and relatives were able to provide counsel with
information about defendant’s childhood, relationships, and history.
In preparation for the penalty phase of a
capital murder trial, counsel has an “obligation to conduct a thorough
investigation of the defendant’s background.” (Williams v. Taylor (2000)
529 U.S. 362, 396; see also Wiggins v. Smith (2003) 539 U.S.
510, 522 (Wiggins); In re Lucas (2004) 33 Cal.4th 682,
728.) “[I]nvestigations into mitigating evidence ‘should comprise
efforts to discover all reasonably available mitigating
evidence and evidence to rebut any aggravating evidence that may be
introduced by the prosecutor.’ [Citation.]” (Wiggins, supra,
539 U.S. at p. 524.)
Counsel spoke with defendant’s mother,
sister, cousin, and friends. Two experienced mental health
professionals found no evidence defendant manifested any significant
psychological conditions. Defense counsel expressly made a tactical
choice to rely on defendant’s own information about what potential
character witnesses might say in order to evade the discovery
procedure by relying on attorney-client privilege. The court made no
ruling with regard to counsel’s mention of his reliance on the
privilege and neither side raises the issue of privilege on appeal.
We do not express an opinion on how the court should have ruled had
the issue of privilege been pressed. Likewise, nothing in this
opinion should be interpreted as the approval of an attempt by either
side to suppress discoverable material. In an abundance of caution,
and in order to provide defendant with the broadest scope of
reasonable review, we assume without deciding that defendant satisfies
the deficient performance prong under Strickland.
We now address the prejudice requirement.
Preliminarily, defendant asserts we should apply a presumption of
prejudice under Sullivan and reverse his death judgment. We
disagree. In Mickens, the high court suggested that a
presumption of prejudice need not attach to every conflict, but was
appropriate for conflicts giving rise to a high probability of
prejudice and corresponding difficulty of demonstrating such
prejudice. (Mickens, supra, 535 U.S. at p. 175.)
Moreover, we share the view of the Fifth Circuit Court of Appeals that
Strickland provides the appropriate analytic framework for
assessing prejudice arising from attorney conflicts of interest
outside the context of multiple concurrent representation. (Beets,
supra, 65 F.3d at p. 1265.)
In Beets, the court explained that a
presumption of prejudice should be limited to the context of multiple
concurrent representation because only in that context “is the duty of
loyalty so plain. Only then is the risk of harm high enough to employ
a near- per se rule of prejudice. While loyalty may be
implicated in other judgments a lawyer makes, in no other category of
conflicts is the risk of prejudice so certain as to justify an
automatic presumption. [Citation.] When the duty of loyalty is
challenged by an attorney’s self-interest, the range of possible
breaches. . . .is virtually limitless. Likewise, their consequences on
the quality of representation range from wholly benign to devastating.
[Citations.] Applying a near- per se rule of prejudice to this
spectrum of potential ethical problems is a draconian remedy.
[¶] . . . [¶] In stark contrast to multiple representation
situations, there is little meaningful distinction between a lawyer
who inadvertently fails to act and one who for selfish reasons decides
not to act. The ‘conflict’ between the lawyer’s self-interest and that
of his client is not a real conflict in the eyes of the law. Rather
than being immobilized by conflicting ethical duties among clients, a
lawyer who represents only one client is obliged to advance the
client’s best interest despite his own interest or desires.” (Beets,
supra, 65 F.3d at pp. 1270-1271, fn. omitted.)
Even the dissenting judge in Beets
recognized that not every conflict of interest warrants a presumption
of prejudice. (Beets, supra, 65 F.3d at p. 1297 (dis.
opn. of King, J.).) “ ‘[I]n a sense, every representation begins with
a lawyer-client conflict. If the representation is for a fee, the
lawyer’s economic interest will be to maximize the amount of the fee
and the client’s will be to minimize it.’ [Citation.] Conversely, if
the representation is for a flat fee, the attorney’s interest will be
to minimize the amount of time spent on the case, and the client’s
interest will be to maximize it. . . . [¶] Thus, the [application of a
presumption of prejudice] would swallow the Strickland rule if
it were applied to every case in which a criminal defendant complains
that his lawyer failed to investigate a witness or a defense,
neglected to perform an experiment, did not hire a witness, or
otherwise failed to take action because the attorney decided that it
was not worth the time or the expense. . . . Strickland
appropriately governs claims for failure to investigate and the like,
and courts have had little difficulty in treating such claims under
Strickland’s ineffectiveness rubric.” (Ibid., fn.
omitted.) We adopt the reasoning from Beets and therefore
conclude that, because the asserted conflict does not arise from
multiple concurrent representation, a presumption of prejudice is not
appropriate in this case. Here, our ability to gauge the impact of
the asserted conflict on the penalty phase defense presented is not
hampered by any concern that the Strickland standard is
inadequate “to assure vindication of the defendant’s Sixth Amendment
right to counsel.” (Mickens, supra, 535 U.S. at p.
176.) It is the record that undermines defendant’s claim. He can
point to nothing any witness might have presented by way of
mitigation. Nor does he offer any indication that other witnesses
beyond the friends and family members identified could have assisted
him. We note that defendant has the opportunity to expand upon the
record in the context of his right to pursue a writ of habeas corpus.
(Rundle, supra, 43 Cal.4th at p. 174, fn. 48.)
Accordingly, because defendant has not
established the asserted conflict of interest had any effect on either
the guilt or the penalty phase verdict, he does not “demonstrate ‘a
reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.’ ” (Mickens,
supra, 535 U.S. at p. 166, quoting Strickland, supra,
466 U.S. at p. 694.)
Defendant claims that defense counsel
failed to investigate and discover material relevant to the
credibility of defense witnesses, including (1) alibi witness Bacon’s
notes that he claimed corroborated his explanation for remembering
defendant’s visit to him during the weekend of the Alice Alva assault;
(2) medical records of Clara Larsen that contradicted Donna Doolin’s
alibi testimony for defendant on December 28; and (3) Donna Doolin’s
employment records contradicting her claim she was in Fresno during
the weekend Alice Alva was assaulted.
The extent of reasonable investigation into
witnesses identified by the defendant is a very complex question. We
assume without deciding that defendant shows deficient performance
under Strickland; that is, the asserted conflict adversely
affected counsel’s performance regarding the investigation of defense
alibi witnesses.
In terms of prejudice, we have concluded a
presumption of prejudice is not applicable to the conflict asserted
here. On the merits, defendant fails to demonstrate a reasonable
probability that he would have obtained a more favorable result in the
absence of counsel’s failure to investigate defense alibi witnesses.
He fails to show, for example, what fruitful course of action counsel
would have taken, if any, had he discovered the above material before
Donna Doolin, other family members, and Bacon testified. He does not
suggest counsel would have declined to call them. Moreover, both
Donna Doolin and Bacon were impeached regarding other aspects of their
alibi testimonies. Donna Doolin’s credibility was significantly
undermined. Bacon admitted he had taken notes during the preliminary
examination testimony of other witnesses and looked at notes taken by
defendant’s sister and mother before testifying.
In sum, defendant’s federal constitutional
conflict of interest claim fails.
Defendant contends use of the lump sum fee
agreement by the Fresno County Superior Court violated the equal
protection clause because it imposed “the burden of
financially-conflicted counsel solely on that class of indigent
criminal defendants who could not be represented by the Public
Defender.” In essence, this claim is a repackaging of his argument
relying on the judicially declared rule from Barboza, which we
have already rejected. (See ante, pt. 2.)
Defendant contends the trial court abused its
discretion in denying his pretrial request for the appointment of
second counsel, thereby depriving him of due process, the right to
counsel, and the right to a reliable guilt and penalty phase
determination.
Defense counsel filed a written pretrial request
for the appointment of second counsel because (1) defendant was facing
the death penalty; (2) the charges involved six victims and six crime
scenes; (3) the issues involved ballistics, possible blood spatter
evidence, psychiatric and psychological issues, a possible insanity
defense, and eyewitness identifications; and (4) the trial was
scheduled to begin in three weeks. The trial court denied defendant’s
request for “lack of cause.”
An indigent criminal defendant’s right to a
second attorney in a capital case is statutory, not constitutional.
Appointment is permitted in the discretion of the trial court under
section 987, subdivision (d).[27]
(People v. Roldan, supra, 35 Cal.4th at p. 686;
Keenan v. Superior Court (1982) 31 Cal.3d 424, 428-430.) In
ruling on an application for second counsel, the trial court must be
guided by the need to provide a capital defendant with a full and
complete defense. (Keenan, supra, 31 Cal.3d at p.
431.) In exercising its discretion, the trial court must weigh “the
importance this court has attached to pretrial preparation in
providing a criminal defendant effective legal assistance” (ibid.)
and “focus on the complexity of the issues involved, keeping in mind
the critical role that pretrial preparation may play in the eventual
outcome of the prosecution” (id. at p. 432). The initial
burden is on the defendant to present a specific factual showing of
“genuine need” for the appointment of second counsel. (Id. at
p. 434.) We review the decision whether to grant a request to appoint
second counsel under section 987 for abuse of discretion. (People
v. Roldan, supra, 35 Cal.4th at p. 688.)
We need not decide whether the trial court erred
in denying defendant’s request for second counsel because any error
was harmless. Defendant fails to explain or substantiate his claim
that, because Keenan counsel was denied, defense counsel was
unprepared for trial. The extensive evidence of defendant’s guilt
demonstrates that there is no reasonable probability of a more
favorable outcome had Keenan counsel been appointed.[28]
(People v. Watson, supra, 46 Cal.2d at p. 836; see
People v. Williams (2006) 40 Cal.4th 287, 300-302 [error by the
trial court in revoking the appointment of Keenan
counsel is evaluated under the Watson standard].) Further,
although there is some indication in the record that counsel could
have prepared differently for the penalty phase, there is no
indication that counsel’s penalty phase presentation might have
differed if he had the assistance of second counsel. Assuming that
the trial court erred in denying counsel’s request for second counsel
and that this state law error impacted the penalty phase, we conclude
there is no reasonable possibility that the jury would have rendered a
different verdict had second counsel been appointed. (See People
v. Jackson, (1996) 13 Cal.4th 1164, 1232.)
Defendant contends that the trial court permitted
improper impeachment of the defense psychiatrist. He claims the
prosecutor’s questions were an improper attempt to offer specific
instances of irrelevant and inadmissible character evidence to prove
conduct on a specific occasion, in violation of Evidence Code sections
1101, subdivision (a), and 1102, and were more prejudicial than
probative under Evidence Code section 352. In addition, he argues the
court also erred by admitting rebuttal evidence in the form of
specific instances of defendant’s bad character. Defendant urges both
errors violated his right to due process under the Fourteenth
Amendment. We reject defendant’s contentions.
Preliminarily, as to both contentions, defendant
argues that the items seized by police from his home on the day he was
arrested, including the Pro Sniper videotape, Soldier of Fortune
magazine, the .44-magnum handgun and various rifles and shotguns,
pornographic magazines, mail-order bride materials, gun magazines, a
bulletproof vest and other paraphernalia were irrelevant. Defendant
has forfeited this issue because he failed to object to admission of
any of the items except the Pro Sniper videotape. (Evid. Code, §
353.) In any event, on the merits, we conclude all of the items
seized were probative of defendant’s identity as the assailant, his
intent to kill, and his motive for the shootings. (Evid. Code, §
210.)
Over objection, the trial court ruled that the
testimony of defense psychiatrist, Dr. Terrell, was admissible
character evidence under Evidence Code section 1102,
relevant to show defendant was not disposed to commit the charged
offenses.
Dr. Terrell had evaluated more than 100 murderers
and a dozen serial killers. He considered whether defendant matched
any of the following typical profiles that he would expect to see in a
murderer: (1) the sadist who enjoys inflicting pain on others and
watching them suffer and die; (2) the sexual sadist who enjoys
inflicting pain during sexual encounters, then beats, rapes, or kills
his partners; (3) the antisocial career criminal; (4) the drug addict
or alcoholic who kills when intoxicated; (5) the individual with no
history of murder who kills because of anger or jealousy; (6) the
killer for hire; (7) gang members who kill to protect their “turf”;
(8) the psychotic individual who “hears voices” that command him or
her to kill; and (9) the mercy killer who assists in a suicide to
alleviate suffering.
On cross-examination, Dr. Terrell confirmed he
had not received police reports that defendant had raped D. or told
her he disliked prostitutes. Dr. Terrell was also unaware of any
reports that defendant was obsessive about cleanliness when he stayed
in motel rooms with his girlfriends; frequently carried a duffel bag
full of guns; led a different life around his family; hid his
girlfriends when his mother came to visit; had advertised in adult
magazines; was twice rebuffed by a prostitute he approached on Fresno
streets; consumed alcohol to the point of intoxication; called a woman
a “bitch” when she declined a date with him; and showed photographs of
people he claimed to have killed.
Defendant contends that the trial court abused
its discretion by permitting this cross-examination, in violation of
Evidence Code sections 1101, 1102, and 352. He has forfeited this
claim by failing to object on these grounds at trial. (People v.
Coddington (2000) 23 Cal.4th 529, 613; People v. Lucero (2000)
23 Cal.4th 692, 715.) The claim is also meritless.
At the outset, we observe that the matters about
which Dr. Terrell was questioned on direct examination were ultimately
offered as substantive evidence of defendant’s character. The
cross-examination questions were permitted for the limited purpose of
impeaching the expert’s opinion. An expert witness may be
cross-examined about “the matter upon which his or her opinion is
based and the reasons for his or her opinion.” (Evid. Code, § 721,
subd. (a).) The scope of this inquiry is broad and includes questions
about whether the expert sufficiently considered matters inconsistent
with the opinion. (People v. Ledesma (2006) 39 Cal.4th 641,
695.) Thus, an adverse party may bring to the attention of the jury
that an expert did not know or consider information relevant to the
issue on which the expert has offered an opinion. (People v. Bell
(1989) 49 Cal.3d 502, 532.)
The cross-examination of Dr. Terrell was proper.
The incidents were all relevant to the validity of his opinion that
defendant’s character was inconsistent with that of a murderer.
The prosecutor’s questions fell within the scope of Dr. Terrell’s
direct testimony. The jury was properly instructed that questions and
answers about the reported incidents could be considered only in
determining the weight to be given to Dr. Terrell’s opinion, and that
the questions themselves were not evidence that the reported
incidents were true. (CALJIC No. 2.42.)
Defendant testified on direct examination he did
not hate women, was not hostile toward prostitutes, and thought
prostitution should be legalized. On cross-examination, defendant
denied ever using the services of a prostitute or telling anyone that
prostitutes were dirty, sleazy, and cheap and should be removed from
the earth. He denied drinking to the point he could not drive, using
drugs, talking about his cocaine use with Justus Swigart, or allowing
people to use drugs at his home. Defendant said he did not treat
women differently when he was away from his family. He denied
striking his girlfriend, Hamblen, or being indifferent to pain she
experienced during sex. He denied advertising in an adult magazine,
carrying a bag of guns, calling Sherry Saar a “bitch” because she
turned him down for a date, or asking a girlfriend to hide when his
mother came to visit. He denied that D. was his girlfriend, that he
had sex with her, or that he had used soap during intercourse. He
explained that he bought a taser, or stun gun, for self-protection and
purchased a set of handcuffs “just to have them.”
Outside the presence of the jury, defense counsel
objected to the admission of proposed rebuttal testimony by Margie
Galloway, Sherry Saar, Justus Swigert, Christina Bills, Hamblen, D.,
and Chavez. Counsel argued the evidence was irrelevant and should be
excluded under Evidence Code section 352 as unduly prejudicial and
time-consuming. The prosecution urged the defense had opened the door
to impeachment by eliciting character testimony from both defendant
and Dr. Terrell. The trial court ruled that the proffered evidence
was proper rebuttal and denied the motion. It did not expressly
expand on its ruling, but the arguments of counsel indicate the court
admitted the proffered evidence under Evidence Code section 1101,
subdivision (c), which provides that the prohibition against the
admission of character evidence to prove a person’s criminal
disposition under that code section does not “affect[] the
admissibility of evidence offered to support or attack the credibility
of a witness.”
The prosecution’s rebuttal witnesses testified as
follows:
Margie Galloway had seen defendant drink beer and
had seen him intoxicated on two occasions. She frequently observed
defendant carrying a gym bag with guns in it and had heard him comment
several times that he did not like “whores and sluts.”
Sherry Saar recounted that defendant “flew off
the handle” and called her a “bitch” when she declined to date him.
Defendant’s friend, Justus Swigert, usually saw
him carrying guns in a duffel bag. Swigert knew defendant drank
alcohol. Once, defendant became so intoxicated he had to spend the
night at Swigert’s residence. Defendant told Swigert he had used
cocaine.
Christina Bills attended a party at defendant’s
apartment where alcohol and marijuana were consumed. She often saw
defendant carrying guns in a duffel bag. Defendant told her he was
involved with the Mafia.
Hamblen, one of defendant’s former girlfriends,
testified the first time she had sexual intercourse was with
defendant, and he covered her mouth when she screamed in pain. On one
occasion, defendant placed ice cubes “on” her vagina and then had
intercourse despite Hamblen’s protests of pain. On another occasion,
when Hamblen acceded to defendant’s request to have intercourse on a
bathroom floor, defendant would not stop the encounter when Hamblen
told him her back was hurting. Defendant put soap on his penis before
having sexual intercourse because “he was told that it would kill
sperm.” He did not stop this practice when told it caused painful
burning. He once struck Hamblen on the face. Defendant put posters
of naked women over his headboard during intercourse and said he had
advertised himself in pornography magazines. When Hamblen was
diagnosed with a kidney infection, defendant flushed her medication
down the toilet because his mother had told him the medicine was “no
good.”
D. testified she met defendant 10 years earlier,
when she was 13 years old. She eventually became defendant’s
girlfriend and described their relationship as “mostly sexual.”
Defendant was obsessed with cleanliness. When they had sex in motels,
he would lay towels on the bed to avoid leaving any stains. D.
recalled that defendant described prostitutes as “dirty and
disgusting.” He told her “they shouldn’t be here,” “they shouldn’t
exist,” and “somebody should remove them.” D. said defendant
collected guns and often showed them to her. He bragged that he had
mob connections and could get guns any time he wanted. He showed D.
photographs of people he claimed to have killed. When she was
homeless, D. accepted defendant’s invitation to use the shower in his
apartment. He then forced her to have sexual intercourse with him.
She reported this incident to police but received no response to her
follow-up inquiries. During this incident and others, defendant put
soap on his penis as a method of birth control.
Prostitute Chavez testified that defendant twice
approached her on the street between July and September 1995
soliciting sex. She declined his proposition because she felt “funny”
about him.
On appeal, defendant argues the trial court
erroneously admitted the above prosecution rebuttal evidence,
contending the evidence was irrelevant and inadmissible under Evidence
Code sections 352, 1101, and 1102. We review a trial court’s
evidentiary rulings under these code sections for abuse of
discretion. (People v. Harris (2005) 37 Cal.4th 310, 335;
People v. Gray (2005) 37 Cal.4th 168, 202; People v. Cole (2004)
33 Cal.4th 1158, 1195.)
Because defendant objected only that the evidence
was irrelevant and unduly prejudicial under Evidence Code section 352,
he has forfeited his claim that the trial court admitted this evidence
in violation of Evidence Code sections 1101 and 1102.
(People v. Thomas (1992) 2 Cal.4th 489, 520.) This claim is
also without merit.
The prosecution’s rebuttal evidence was properly
admitted to attack the basis of Dr. Terrell’s testimony. (Evid. Code,
§§ 721, subd. (a), 780.) It was relevant to the jury’s determination
of the weight and credibility of his opinion. (See, e.g., People
v. Smithey (1999) 20 Cal.4th 936, 965-966 [the rebuttal testimony
of a prosecution expert critical of forensic psychiatry and of the
opinions of the defense experts was relevant to the weight of those
opinions, and its admission was neither improper nor prejudicial];
People v. Prince (1988) 203 Cal.App.3d 848, 856-858 [the testimony
of a prosecution expert was relevant to the weight and credibility of
the defense expert opinions on the defendant’s competency to stand
trial].)
The testimony of the rebuttal witnesses was also
properly admitted as direct impeachment of defendant’s own testimony.
Here, “[b]y taking the stand, defendant put his own credibility in
issue and was subject to impeachment in the same manner as any other
witness.” (People v. Gutierrez (2002) 28 Cal.4th 1083, 1139;
see Evid. Code, § 1101, subd. (c).)
Defendant further contends the trial court did
not adequately weigh the potential prejudice of the evidence against
its probative value under Evidence Code section 352. He specifically
complains the court did not consider the inflammatory nature of the
uncorroborated testimony he raped D. and mistreated Hamblen. He has
forfeited these issues by failing to argue them below. (Evid. Code, §
353, subd. (a); People v. Holt (1997) 15 Cal.4th 619, 666-667
[a claim of the erroneous admission of evidence is preserved for
appeal if the timely objection to admission of the evidence alerted
the trial court to the nature of the anticipated evidence and the
basis on which exclusion was sought and afforded the opposing party an
opportunity to establish its admissibility]; see also People v.
Marks (2003) 31 Cal.4th 197, 228 [“A general objection to the
admission or exclusion of evidence, or one based on a different ground
from that advanced at trial, does not preserve the claim for
appeal”].)
Further, “a court need not expressly weigh
prejudice against probative value or even expressly state that it has
done so, if the record as a whole shows the court was aware of and
performed its balancing functions under Evidence Code section 352.” (People
v. Taylor (2001) 26 Cal.4th 1155, 1169.) Our independent review
of the record shows the trial court carefully considered defendant’s
motion and performed the requisite weighing process under Evidence
Code section 352. The court heard argument from both sides before it
ruled on the rebuttal evidence, finding “under [section] 352, . .
.that [its] relevance and materiality …outweighs [any] prejudicial
effect.”
Contrary to
defendant’s arguments, none of this testimony was unduly prejudicial.
“ ‘Prejudice’ as contemplated by [Evidence Code] section 352 is not so
sweeping as to include any evidence the opponent finds inconvenient.
Evidence is not prejudicial, as that term is used in a section 352
context, merely because it undermines the opponent’s position or
shores up that of the proponent. The ability to do so is what makes
evidence relevant. The code speaks in terms of undue prejudice.
Unless the dangers of undue prejudice, confusion, or time consumption
‘ “substantially outweigh” ’ the probative value of relevant evidence,
a section 352 objection should fail. (People v. Cudjo (1993) 6
Cal.4th 585, 609.) ‘ “The ‘prejudice’ referred to in Evidence Code
section 352 applies to evidence which uniquely tends to evoke an
emotional bias against the defendant as an individual and which has
very little effect on the issues. In applying section 352,
‘prejudicial’ is not synonymous with ‘damaging.’ ” [Citation.]’ (People
v. Karis (1988) 46 Cal.3d 612, 638.) [¶] The prejudice that
section 352 ‘ “is designed to avoid is not the prejudice or damage to
a defense that naturally flows from relevant, highly probative
evidence.” [Citations.] “Rather, the statute uses the word in its
etymological sense of ‘prejudging’ a person or cause on the basis of
extraneous factors. [Citation.]” [Citation.]’ (People v. Zapien
(1993) 4 Cal.4th 929, 958.) In other words, evidence should be
excluded as unduly prejudicial when it is of such nature as to inflame
the emotions of the jury, motivating them to use the information, not
to logically evaluate the point upon which it is relevant, but to
reward or punish one side because of the jurors’ emotional reaction.
In such a circumstance, the evidence is unduly prejudicial because of
the substantial likelihood the jury will use it for an illegitimate
purpose.” (Vorse v. Sarasy (1997) 53 Cal.App.4th 998,
1008-1009.)
The challenged
evidence was directly relevant to impeach defendant’s own testimony
and that of his witnesses. Although evidence of D.’s rape and
Hamblen’s mistreatment is unpleasant, it paled in comparison to the
testimony from four witnesses that defendant tried to kill them. The
jury was properly instructed not to be influenced by passion,
sympathy, or prejudice and to conscientiously consider and weigh the
evidence in applying the law and reaching its verdict. (CALJIC No.
1.00.)
In the interest of complete review, we note that
even if we were to assume evidentiary error, any error would be
harmless, whether assessed under the federal constitutional (Chapman,
supra, 386 U.S. at p. 24) or state (People v. Watson,
supra, 46 Cal.2d at p. 836) standard of review. There was
overwhelming evidence of defendant’s guilt.
Defendant contends that several evidentiary
errors and prosecutorial misconduct cumulatively rendered his trial
fundamentally unfair and deprived him of due process under the Fifth
and Fourteenth Amendments to the United States Constitution. He
claims the trial court erred by “forcing” his mother to invoke her
Fifth Amendment right against self-incrimination seven times in front
of the jury and by permitting the prosecutor to impeach her with
evidence that she had tried to steal from her employer. He argues the
prosecutor engaged in misconduct by violating the trial court’s order
limiting that cross-examination. We reject each claim. Thus, there
was no error to accumulate.
Donna Doolin Larsen testified as an alibi witness
for her son. On the night Tucker was murdered, defendant was at home
with her, cleaning house, except for a half-hour when he left to buy
ice cream. On the night Kachman was shot, defendant spent the evening
with Larsen at home.
Before Larsen’s cross-examination, the court
conducted an in limine hearing. The prosecutor informed the court
that he and defense counsel had previously discussed Larsen’s
potential impeachment. The prosecutor said that if Larsen were to
testify for the defense, he would seek to impeach her with evidence
she had falsely told police and others that she was a registered
nurse, that she had altered her daughter’s nursing license for her own
use, and that she had been suspected of taking a computer from the
school where she worked. The prosecutor argued these specific
instances of misconduct were proper impeachment.
Defense counsel insisted that the prosecutor had
said he did not intend to impeach Larsen with that information at
trial and the defense had relied on that representation in putting
Larsen on the stand. The prosecutor asserted no such promise was
given. He stated only that he would raise the issue with the court
when the defense called Larsen to testify. The court ruled it would
allow the impeachment.
After a brief recess, the court reconvened and
read to the parties the relevant portion of the reporter’s transcript
of a related pretrial hearing.
The court did not recall any representation by the prosecutor that he
would not impeach Larsen with the specific instances described above.
The court reminded defense counsel that he did not request a hearing
before he brought Larsen into the courtroom and called her as a
witness.
Counsel informed the court that Larsen would
invoke her Fifth Amendment right against self-incrimination if the
prosecutor’s questions were allowed. He asked that Larsen be
permitted to invoke the Fifth Amendment outside the presence of the
jury. The trial court denied that request, stating: “The Court is
going to deny the motion. You deliberately brought her in here and
asked her questions, and now the District Attorney wants to ask her
questions and impeach her, and now you want it all done outside the
presence of the jury.” (Italics added.)
Larsen’s own attorney was present and advised
Larsen just before the cross-examination. Larsen invoked her Fifth
Amendment privilege seven times in response to the prosecutor’s
questions whether she had ever purposely tried to mislead people, been
dishonest, submitted false documents to an employer, submitted a false
copy of a nursing license to a school official, altered a nursing
license to add her name, used her daughter’s nursing license with her
name typed on it, or used a business card falsely representing she was
a registered nurse.
The prosecutor moved to strike all of Larsen’s
testimony. Outside the presence of the jury, defense counsel again
objected that the prosecutor had said that if Larsen admitted lying he
would not question her about specific acts. He recalled that when the
prosecutor asked her whether she lied, Larsen responded: “Everyone
does, I suppose, everyone does.” The court gave counsel an
opportunity to find a hearing transcript that supported his claim. No
such transcript was ever offered.
The court subsequently ruled defense counsel
could not question Larsen on redirect because Larsen’s invocation of
her Fifth Amendment rights, in effect, limited the scope of
prosecutor’s cross-examination. The court also denied the
prosecutor’s motion to strike Larsen’s earlier testimony and ruled he
could continue to cross-examine her “on other issues.” The prosecutor
concluded his cross-examination of Larsen the following day.
Defendant now contends the trial court abused its
discretion by compelling Larsen to assert her Fifth Amendment
privilege against self-incrimination before the jury. We reject this
contention.
The jury may not draw any inference from a
witness’s invocation of a privilege. (Evid. Code, § 913, subd. (a);
People v. Mincey (1992) 2 Cal.4th 408, 441.) Upon request, the
trial court must so instruct jurors. (Evid. Code, § 913, subd. (b);
People v. Mincey, supra, 2 Cal.4th at p. 441.) “To
avoid the potentially prejudicial impact of having a witness assert
the privilege against self-incrimination before the jury, we have in
the past recommended that, in determining the propriety of the
witness’s invocation of the privilege, the trial court hold a
pretestimonial hearing outside the jury’s presence.” (People v.
Mincey, supra, 2 Cal.4th at p. 441, italics added.) Such a
procedure makes sense under the appropriate circumstances. If there
is a dispute about whether a witness may legitimately rely on the
Fifth Amendment privilege against self-incrimination to avoid
testifying, that legal question should be resolved by the court .
Given the court’s ruling and the nature of the potential testimony,
the witness may not be privileged to testify at all, or counsel may
elect not to call the witness as a matter of tactics.
Mincey provides a clear example. There,
the defendant sought to call Sandra B. who had also been charged with
the murder for which defendant was on trial. Outside the jury’s
presence, Sandra invoked the privilege on advice of counsel.
Defendant sought to compel her to repeat her invocation before the
jury. (People v. Mincey, supra, 2 Cal.4th at pp.
440-441.) We held that allowing her to do so would invite the jury to
speculate that she, not defendant, was the murderer. Clearly such
speculation is improper. (Id. at p. 442; Evid. Code, § 913.)
The situation here is different. Apparently for
tactical reasons, the defense decided not to request a Mincey
hearing before calling Larsen to testify. The court had asked both
parties to address Larsen’s impeachment and her assertion of the
privilege before she testified, but defendant did not do so. Thus the
defense knowingly risked Larsen’s impeachment and her invocation of
the privilege.
As noted, the jury was properly instructed not to
draw any inference from Larsen’s invocation of her Fifth Amendment
privilege. (CALJIC No. 2.25.) We assume they followed that
instruction. (People v. Prince (2007) 40 Cal.4th 1179, 1295.)
The prosecutor also asked Larsen whether she had
stolen computer equipment from Duncan Polytechnical High School.
Larsen denied doing so but confirmed she had been asked by an
administrator if she had taken the equipment. Defendant challenged
the propriety of this impeachment.
During the in limine hearing, the prosecutor
sought a ruling on the admissibility of the theft evidence. One night
a witness saw Larsen and someone else take computer equipment from the
school and load it into their car. A few days later the witness saw
Larsen return the equipment around 6:00 a.m. The prosecutor directly
addressed Evidence Code section 352 in arguing the question. The
trial court ruled the prosecutor could question Larsen on this issue.
On appeal, defendant acknowledges that, under
People v. Wheeler (1992) 4 Cal.4th 284, 292-293, the court has
broad discretion to admit acts of moral turpitude to impeach a
witness’s credibility. “[I]mpeachment evidence other than felony
convictions entails problems of proof, unfair surprise, and moral
turpitude evaluation which felony convictions do not present. Hence,
[under Evidence Code section 352,] courts may and should consider with
particular care whether the admission of such evidence might involve
undue time, confusion, or prejudice which outweighs its probative
value.” (People v. Wheeler, supra, 4 Cal.4th at pp.
296-297.) A court also may consider issues of “fairness, efficiency,
and moral turpitude” when evidence other than a felony conviction is
proffered for impeachment. (Id. at p. 297, fn.7.) Defendant
complains the court failed to weigh the pertinent Wheeler
factors.
Larsen’s theft was relevant to the issue of her
credibility. At the hearing discussed above, counsel directly
addressed Evidence Code section 352 in his argument. The record makes
clear that the trial court was aware of and performed its duties in
that regard.
Further, the trial court instructed the jury as
follows: “Evidence has been introduced for the purpose of showing
that a witness engaged in past criminal conduct amounting to a
misdemeanor. Such evidence may be considered by you only for the
purpose of determining the believability of that witness. The fact
that the witness engaged in past criminal conduct amounting to a
misdemeanor, if it is established, does not necessarily destroy
or impair a witness’ believability. It is one of the circumstances
that you may take into consideration in weighing the testimony of such
witness.” (CALJIC No. 2.23.1, italics added.) We presume the jury
followed this instruction.
The prosecutor asked Larsen, in several ways, whether
she had falsely presented herself as a registered nurse. Larsen
asserted her Fifth Amendment privilege seven times in response to
those questions. Larsen’s attorney objected that the questioning was
cumulative. Defendant’s counsel joined in the objection, which the
trial court sustained. The prosecutor then asked Larsen whether she
had written a letter in October 1995 to Gary Kirby, a program
coordinator for the Fresno Unified School District. After the trial
court sustained Larsen’s attorney’s objection on the ground the
question was cumulative, the prosecutor asked Larsen whether she had
written a letter to John Lockey, another district employee, in May
1993. Larsen’s attorney objected and asked that similar questions be
disallowed in light of the court’s ruling. The court sustained this
objection and asked the prosecutor if he had other questions.
On appeal, defendant contends the prosecutor’s posing
of these two questions was misconduct. “A prosecutor’s conduct
violates the Fourteenth Amendment to the federal Constitution when it
infects the trial with such unfairness as to make the conviction a
denial of due process.” (People v. Morales (2001) 25 Cal.4th
34, 44; accord, Darden v. Wainwright (1986) 477 U.S. 168, 181;
Donnelly v. DeChristoforo (1974) 416 U.S. 637, 643.) Under
California law, a prosecutor who uses deceptive or reprehensible
methods of persuasion commits misconduct even if such actions do not
render the trial fundamentally unfair. (People v. Cook (2006)
39 Cal.4th 566, 606.) Generally, a claim of prosecutorial misconduct
is not cognizable on appeal unless the defendant made a timely
objection and requested an admonition. (Ibid.) Here, although
defendant preserved this claim to the extent he joined in the
objections by Larsen’s attorney, defendant failed to request an
admonition. In any event, we conclude the prosecutor did not engage
in misconduct by asking Larsen the above questions.
Each of the prosecutor’s questions related to
factually distinct circumstances in which Larsen allegedly held
herself out as a registered nurse. The prosecutor had not addressed
these factual circumstances in any of his previous questions. Neither
question involved the prosecutor’s use of deceptive or reprehensible
methods in an attempt to improperly influence the jury on any material
issue. These questions went unanswered. The jury was instructed that
neither statements nor questions by attorneys constituted evidence and
that it should not speculate about the answer a witness might have
given to a question to which an objection was sustained. We presume
the jury followed the court’s instructions and ignored the above
questions. (People v. Prince, supra, 40 Cal.4th at p.
1295.)
During his closing argument, the prosecutor
told the jury that “[a] matter of general or common knowledge is that
at the time of final argument [defense counsel] cries, so when that
happens —” The trial court overruled counsel’s objection to his
remark. The prosecutor continued: “When that happens, I want you to
understand that it’s nothing unique to this case.”
Defendant contends that the prosecutor improperly
referred to “facts not in the record” and attacked the integrity of
defense counsel by suggesting he “was a dishonest charlatan, an
attorney without integrity, who would resort to theatrical gestures to
sway a jury.”
The prosecutor’s brief remark was harmless, and
jurors were instructed that the statements of counsel were not
evidence. They were also instructed that they must not be influenced
by sentiment, sympathy, passion or prejudice. We presume the jury
followed these instructions, ignored the prosecutor’s remark, along
with any displays of “sentiment” and “passion” by counsel, and decided
the case based on the evidence admitted at trial.
Having rejected defendant’s claims, we reject his
assertion of cumulative error.
Defendant contends that the DNA test results on
samples from the Espinoza autopsy were erroneously admitted in
violation of the standard enunciated in People v. Kelly (1976)
17 Cal.3d 24 (Kelly). Under Kelly, the proponent of
evidence derived from a new scientific technique must establish that:
(1) the reliability of the new technique has gained general acceptance
in the relevant scientific community, (2) the expert testifying to
that effect is qualified to give an opinion on the subject, and (3)
the correct scientific procedures were used. (Id. at p. 30.)
Defendant concedes that under Kelly, the
polymerase chain reaction (PCR) DQ-Alpha testing method used in this
case is generally accepted in the relevant scientific community. He
asserts, however, that the dot-intensity analysis relied upon by the
prosecution’s expert is a separate testing method, and because the
trial court did not separately rule that the dot-intensity method was
valid under Kelly, the DNA test results were inadmissible. We
need not determine whether the dot-intensity analysis was subject to
exclusion under Kelly, because its admission was harmless in
any event. We reject defendant’s additional contention that the
prosecution’s population frequency statistics were inadmissible
without proof of the perpetrator’s ethnicity.
The court held a Kelly hearing to consider
the DNA test results. The prosecution elicited extensive testimony
from state Department of Justice (DOJ) criminalists Rodney Andrus and
Edwin Scruggs about the PCR DQ-Alpha method and its general acceptance
in the scientific community. PCR DQ-Alpha testing is a subtype of PCR
DNA testing methods that tests a single genetic marker. (See also
People v. Henderson (2003) 107 Cal.App.4th 769, 777.) Neither of
the prosecution’s experts discussed “dot-intensity analysis” during
the Kelly hearing, but Andrus did give his preliminary
conclusion that that defendant was a possible contributor of the DNA
samples obtained from Espinoza.
Counsel argued the results should be excluded
under Evidence Code section 352 on the grounds the PCR DQ-Alpha test
method was unreliable and would confuse the jury because they could
not identify an individual as a source of the DNA tested but could
only include an individual in a group of potential sources.
Relying on People v. Morganti (1996) 43
Cal.App.4th 643, 671, the trial court found that PCR DQ-Alpha testing
is generally accepted in the relevant scientific community and no
significant controversy exists with respect to its reliability. The
court also found the prosecution’s experts “were eminently qualified”
and employed the correct scientific procedures. In rejecting
defendant’s argument under Evidence Code section 352, the court found
the probative value of the method was not so undermined by any
limitation that the results should be excluded.
b. DNA evidence introduced at trial
Again at trial, Andrus gave his qualifications
and testified about both blood and DNA testing. He described the PCR
DQ-Alpha method, which tests for the presence or absence of the six
common identifiable alleles at the DQ-Alpha genetic marker,
denominated as 1.1, 1.2, 1.3, 2, 3, and 4. Andrus explained that an
individual’s genotype for the DQ-Alpha marker is composed of a pair of
alleles. The six DQ-Alpha alleles can be paired to form 21 distinct
genotypes, meaning the human population can be divided into 21
population groups. Ultimately, the DQ-Alpha genotype of the sample is
determined by the presence of blue dots on test strips that indicate
an allele of the sample DNA bonded with a specific DNA sequence or
“primer” on the test strip.
The DNA found in the fingernail scrapings and
vaginal sample taken from Espinoza revealed sperm from more than one
individual (i.e., mixed sperm samples). Andrus performed PCR DQ-Alpha
tests on these samples as well as on DNA obtained from defendant’s
blood. Because the samples from Espinoza contained mixed sperm,
Andrus used dot-intensity analysis to identify the genotype of the
“primary alleles represented”[35]
in these samples. Andrus briefly described dot-intensity analysis as
a visual comparison of the “relative dot intensity” of the blue color
that developed on the dots of the test strips with the mixed DNA
sample. A “minor” contributor to the mixed DNA sample, for example,
has “significantly less” color intensity than that of a “major”
contributor.
Based on these dot-intensity analyses, Andrus
determined that the DQ-Alpha genotypes of defendant and the primary
contributor of each of the mixed sperm DNA samples were the same.
Andrus concluded that defendant could not be eliminated as a possible
contributor of these samples. He eliminated defendant as the source
of the semen extracted from the condom found near Espinoza’s body.
Whether a new scientific technique has gained
general acceptance is a mixed question of law and fact. (People v.
Reilly (1987) 196 Cal.App.3d 1127, 1134.) “[W]e review the trial
court’s determination with deference to any and all supportable
findings of ‘historical’ fact or credibility, and then decide as a
matter of law, based on those assumptions, whether there has been
general acceptance.” (Id. at p. 1135.) Once a published
appellate decision has affirmed admission of a scientific technique,
the technique’s general acceptance are established as a matter of
law. Further hearings on general acceptance is unnecessary “at least
until new evidence is presented reflecting a change in the attitude of
the scientific community.” (Kelly, supra, 17 Cal.3d at
p. 32; People v. Bolden (2002) 29 Cal.4th 515, 545.)
The trial court’s determination on the
qualifications of an expert is reviewed for abuse of discretion (Kelly,
supra, 17 Cal.3d at p. 39) as is its ruling on the use of
correct scientific procedures in the particular case (People v.
Venegas (1998) 18 Cal.4th 47, 91).
Defendant does not dispute that People v.
Morganti, supra, 43 Cal.App.4th at page 669, published just
before his trial began, established that the PCR DQ-Alpha method has
gained general acceptance as a reliable technique. (See also
People v. Wright (1998) 62 Cal.App.4th 31, 41.) Instead, he
argues that the dot-intensity analysis that criminalist Andrus used
was a new scientific technique, requiring independent proof of
general acceptance.
Defendant did not object to Andrus’s testimony
about dot-intensity analysis at trial and has forfeited his appellate
challenge to this evidence. (Evid. Code, § 353 [an objection to the
admission of evidence must be timely and clearly specify the basis of
the objection]; see also People v. Geier (2007) 41 Cal.4th 555,
610-611 [defendant’s failure to timely object to the admissibility of
the population frequency statistics associated with the DNA test
results forfeited the issue on appeal]; People v. Ochoa (1998)
19 Cal.4th 353, 414 [a failure to object at trial to the admission of
evidence under Kelly forfeits the claim for appeal]; People
v. Coleman (1988) 46 Cal.3d 749, 776-778 [an objection to the
expert’s selection of the test used to analyze semen samples did not
preserve defendant’s challenge to the expert’s conclusions concerning
the statistical significance of the test results].)
Whether “dot-intensity analysis” is a novel
technique requiring its own proof of general acceptance has not been
addressed in a California published opinion.
Assuming, without deciding, the results of the dot-intensity analysis
were erroneously admitted in this case, the error would have been
harmless in light of the overwhelming and uncontradicted evidence of
defendant’s guilt. In particular, with regard to the Espinoza murder,
undisputed ballistics evidence established the victim was killed by a
bullet shot from defendant’s gun. There is no reasonable probability
the verdict would have been more favorable to defendant had the DNA
evidence been excluded. (People v. Watson, supra, 46
Cal.2d at p. 836.)
Andrus also testified that, based on the relevant
population frequency statistics for the primary contributor to the
mixed samples in this case, the donor could have come from 7 percent
of the African-American population, 10 percent of the Caucasian
population, including defendant, or 20 percent of the Hispanic
population. (See People v. Venegas, supra, 18 Cal.4th
at p. 63 [identification as a possible source of the sample DNA
“places the suspect within a class of persons from whom the sample
could have originated”].) Andrus explained the number of possible DNA
contributors could be reduced by excluding the percentage of females
in each group, as well as adult males not present in Fresno at the
time of Espinoza’s murder, and prepubescent males.
Defendant first complains the statistics were
inadmissible because Andrus presented statistics for only the genotype
of the primary alleles represented in the mixed samples rather than
all alleles in the samples. But this claim, in essence, is premised
upon the argument that the dot-intensity technique improperly focused
only on the primary contributor in the mixed samples. As noted,
defendant forfeited any such argument by failing to raise the issue at
trial, and any assumed error was harmless.
Second, defendant contends that, even if Andrus
correctly identified the DQ-Alpha genotype of the primary contributor,
the DNA evidence should have been excluded because the population
frequency statistics were irrelevant without proof of the
perpetrator’s ethnicity. Again, defendant failed to object on this
ground at trial and has forfeited this issue for appeal. (Evid. Code,
§ 353; People v. Geier, supra, 41 Cal.4th at pp.
610-611.) The claim is also meritless. The prosecution in this case
presented DNA frequency statistics for the African-American,
Caucasian, and Hispanic population groups. Since defendant’s trial,
we have concluded that expert testimony on DNA profiling frequencies
for these specific population groups is admissible even in the absence
of independent evidence the perpetrator’s ethnicity. (People v.
Wilson, supra, 38 Cal.4th at pp. 1249-1250, disapproving to the
extent inconsistent People v. Pizarro, supra, 110 Cal.App.4th
530.) Even assuming the population frequency statistics were
erroneously admitted, any error was harmless in light of the other
weighty evidence of defendant’s guilt. (See People v. Venegas,
supra, 18 Cal.4th at p. 93, citing People v. Watson,
supra, 46 Cal.2d at p. 836; People v. Pizarro, supra,
110 Cal.App.4th at p. 634.)
The jury returned its guilty verdicts on Tuesday,
May 7, 1996. The penalty phase was to begin on Thursday, May 16,
1996. The parties had until Friday, May 10, 1996, to complete penalty
phase discovery.
On Monday, May 13, 1996, defense counsel moved
for the release of DNA evidence for retesting and for a 48-day
continuance under section 1050. Counsel claimed retesting was
necessary because it might eliminate defendant as a source. Counsel
estimated the testing alone would take about four weeks. The
continuance would permit counsel time to interview the prosecution
penalty phase witnesses. Counsel admitted he had not contacted any of
defendant’s 16 potential character witnesses but would obtain their
telephone numbers and might contact them. Counsel was concerned that
these individuals might not testify as defendant anticipated and that
he would have to consult with defendant before calling them to
testify. The trial court denied both motions.
On appeal, defendant claims the trial court
abused its discretion in denying his motion to continue and thereby
deprived him of due process, effective assistance of counsel, and a
reliable penalty verdict under the Fifth, Sixth, Eighth, and
Fourteenth Amendments to the federal Constitution. We disagree.
A continuance in a criminal case may be granted
only for good cause. (§ 1050, subd. (e).) Whether good cause exists
is a question for the trial court’s discretion. (People v.
Jenkins (2000) 22 Cal.4th 900, 1037.) The court must consider “ ‘
“not only the benefit which the moving party anticipates but also the
likelihood that such benefit will result, the burden on other
witnesses, jurors and the court and, above all, whether substantial
justice will be accomplished or defeated by a granting of the motion.”
’ ” (Ibid.) While a showing of good cause requires that both
counsel and the defendant demonstrate they have prepared for trial
with due diligence (ibid.), the trial court may not exercise
its discretion “so as to deprive the defendant or his attorney of a
reasonable opportunity to prepare.” (People v. Sakarias (2000)
22 Cal.4th 596, 646.)
A reviewing court considers the circumstances of
each case and the reasons presented for the request to determine
whether a trial court’s denial of a continuance was so arbitrary as to
deny due process. (People v. Frye, supra, 18 Cal.4th at p.
1013.) Absent a showing of an abuse of discretion and prejudice, the
trial court’s denial does not warrant reversal. (People v. Barnett
(1998) 17 Cal.4th 1044, 1126.)
Here, there was no abuse of discretion.
Defendant’s request rested, in large part, on his claim that new test
results might provide exculpatory evidence. Retesting DNA would not
have been beneficial to defendant, however, in light of the extensive
evidence linking him to each crime and, specifically, uncontroverted
ballistics evidence establishing Espinoza was killed by a bullet fired
from defendant’s gun. Defendant had long been on notice of the
existence of the DNA evidence and the district attorney’s intent to
use it. In addition, the evidence showed that defendant actually
engaged in intercourse with only one of his six victims. During that
encounter, he wore a condom. Even if he were excluded as one of the
multiple semen donors, the evidence would have little impact.
Although the prosecutor did present DNA evidence, he ultimately
invited the jury to reject it if they were in doubt as to its
significance because the remaining evidence pointed convincingly to
defendant’s guilt. Under these circumstances, the 48-day continuance
requested by defendant was both untimely and unlikely to affect the
outcome of the proceedings. The trial court did not abuse its
discretion in denying the continuance.
With respect to defendant’s requested
continuance to interview prospective witnesses, defendant made only a
general assertion in his written motion that he needed more time to
prepare a defense to the prosecution’s case in aggravation. Counsel
provided no explanation why he could not prepare such a defense or
interview the prosecution’s prospective witnesses in the six days
leading up to the penalty phase.[37]
As previously discussed, defense counsel had given a tactical reason
to delay interviews of defendant’s potential character witnesses. In
addition, for the first time on appeal, defendant speculates that a
continuance might have allowed him time to develop childhood abuse
issues that Dr. Hedberg mentioned in testifying on his behalf at the
penalty phase. But he made no showing that he could produce specific,
relevant mitigating evidence within a reasonable time. (People v.
Jenkins, supra, 22 Cal.4th at p. 1038.) Certainly
defendant and his defense team were aware of whether such evidence
existed. They were in contact with defendant’s close relatives. The
defense provided no insight into why any such extant evidence had not
been shared with Dr. Hedberg. In sum, defendant’s vague and
speculative reasons for the continuance failed to support a showing of
good cause. The court was within its discretion in refusing to grant
a continuance.
On May 21, 1996, the jury returned a death verdict.
Defendant contends that the trial court erroneously denied his request
for self-representation under Faretta v. California (1975) 422
U.S. 806, made at his sentencing hearing on June 18, 1996. The motion
was untimely.
On the day scheduled for sentencing, June 18, 1996,
defendant moved for the substitution of counsel pursuant to People
v. Marsden (1970) 2 Cal.3d 118, and for a two-week continuance.[38]
Immediately after both motions were denied, defendant asked to
represent himself and to also have “an assistant to prepare a motion
for new trial, motion for reduction of sentence.” The court
responded: “In effect what you’re asking is to represent yourself and
have this Court do exactly what it denied you already, that is, a
Marsden motion to relieve your attorney and appoint a new
attorney. You’re not going to come in the back door.” When defendant
repeated his request to relieve defense counsel and have an assistant
appointed to prepare motions, the trial court denied his requests.
The court then asked defendant if he knew what a
motion for new trial was. Defendant answered it was a motion to point
out “differences that should have been dealt with differently and [to]
bring [those] to the attention of the court and also try to enter any
new evidence that might open the court’s eyes and allow for a new
trial.” When the trial court questioned whether defendant had any new
evidence, defendant said, “Not at this exact moment, but maybe in a
period of time, yes.” The court asked if defendant could find any new
evidence over the next two weeks, and defendant responded, “I can
assure the Court that, yes, there are still things that need to be
done that could be presented to the Court in fact of, yes, new
evidence.”
The court asked defendant about his education and
learned that defendant dropped out of high school and had obtained a
high school general education development (GED) certificate while in
custody. The court additionally noted “there is some evidence that
you were a slow learner” and defendant agreed.
The court also inquired about how defendant would
address a motion for new trial and motion for reduction of penalty.
Defendant essentially stated he would first address the jury’s
“conduct” and then present evidence that he had never been in trouble
with the law, had always held a job, and had obtained letters of
recommendation from employers when applying to new jobs. Defendant
added he would submit letters from his family and friends providing
their impressions of him.
The court then advised defendant that if his motion
were granted, he could not complain on appeal that he was inadequate
to represent himself. Defendant said he understood and was asking for
an “assistant” to “draw up that way different timelines . . . to
propose to the Court” for his motions. The court informed defendant
that if it permitted him to represent himself, it did not have to
grant a continuance and asked whether defendant was ready to proceed
that day. Defendant said he was not ready and needed a continuance to
“draw up the proper papers and also present the Court with my
findings. . . .”
The court then ruled as follows: “Well, the Court is
very concerned and going to deny your Faretta motion to permit
you to represent yourself on the basis that the Court feels that you
are not adequate to represent yourself, that is, the evidence during
the course of the trial was that you did not finish high school, that
— and that by itself is not the reason, but you were described as
being a slow learner and that you had problems in school. And the
Court is not going to grant you a continuance in order for you to
prepare to represent yourself. Therefore, the Court is going to deny
your motion to represent yourself.” (Italics added.)
A criminal defendant has a constitutional right to
counsel at all critical stages of a criminal prosecution, including
sentencing. (Mempa v. Rhay (1967) 389 U.S. 128, 134-137;
People v. Dunkle, supra, 36 Cal.4th at p. 930.) The right
to counsel may be waived by a criminal defendant who elects to
represent himself at trial. (Faretta v. California, supra,
422 U.S. at pp. 807, 834-835.) The right of self-representation is
absolute, but only if knowingly and voluntarily made and if asserted a
reasonable time before trial begins. Otherwise, requests for
self-representation are addressed to the trial court’s sound
discretion. (People v. Windham (1977) 19 Cal.3d 121,
127-129.) Moreover, whether timely or untimely, a request for
self-representation must be unequivocal. (People v. Marshall
(1997) 15 Cal.4th 1, 22-23.)
On appeal, a reviewing court independently
examines the entire record to determine whether the defendant
knowingly and intelligently invoked his right to self-representation.
(People v. Stanley (2006) 39 Cal.4th 913, 932.)
As a preliminary matter, we agree with the
parties that the trial court incorrectly referred to defendant’s
educational background and evidence that he was a “slow learner” in
denying defendant’s request for self-representation. Following United
States Supreme Court precedent in Godinez v. Moran (1993) 509
U.S. 389, 399-400, we have held that a trial court may not measure a
defendant’s competence to waive his right counsel by evaluating the
defendant’s “technical legal knowledge” (People v. Dunkle,
supra, 36 Cal.4th at p. 908) or his ability to represent himself (People
v. Welch (1999) 20 Cal.4th 701, 733). The right to
self-representation may be invoked by any defendant competent to stand
trial. (People v. Dunkle, supra, 36 Cal.4th at p.
908.)
The trial court’s remarks, however, also touch on
its legitimate concern that defendant’s request was untimely and would
needlessly delay the proceedings. The timeliness requirement “serves
to prevent a defendant from misusing the motion to delay unjustifiably
the trial or to obstruct the orderly administration of justice.” (People
v. Horton (1995) 11 Cal.4th 1068, 1110.) Here, defendant argues
that his motion was timely because defense counsel’s performance was
inadequate throughout trial, the two-week continuance he requested was
not unreasonable, and granting self-representation for sentencing
would not inconvenience the jury.
“We have held that, for purposes of assessing the
timeliness of a motion for self-representation, the guilt and penalty
phases in a capital prosecution are not separate trials but parts of a
single trial, and a motion made between the guilt and penalty phases
is thus untimely and subject to the trial court’s discretion.” (People
v. Mayfield (1997) 14 Cal.4th 668, 810; People v. Hardy (1992)
2 Cal.4th 86, 193-195; see People v. Halvorsen (2007) 42
Cal.4th 379, 434 [capital defendant’s motion for self-representation
brought seven months before jury selection in the penalty retrial was
timely].) We have not addressed, however, the timeliness of a request
for self-representation made after the penalty phase verdict. (See
Mayfield, supra, 14 Cal.4th at p. 810 [declining to decide
whether a post-penalty-phase Faretta motion would be timely if
made “a ‘reasonable time’ before sentencing”].) We need not do so
here.
Defendant’s request was manifestly untimely. He
never requested self-representation during the guilt or penalty
phase. He appeared on the day set for sentencing and sought, not to
act as his own counsel, but to replace his appointed lawyer with a new
one and to secure a continuance. Only when this approach failed did
defendant seek self-representation, and only then with the appointment
of an assistant to actually draft his moving papers. Defendant had no
new evidence to support the motion for new trial he intended to file.
When pressed on the question of new evidence, defendant answered
vaguely that “there are still things that need to be done that could
be presented to the Court.” Defendant provided no specific
information about any new evidence he expected to find, when he
expected to find it, or how long he might need to prepare his
motions. He was not prepared to proceed and could not provide a
reasonable estimate of when he would be ready. The trial court’s
ruling was well within the scope of its discretion.
Defendant challenges California’s death penalty
law on various grounds we have repeatedly rejected. He offers no
persuasive reason to reconsider our prior decisions. We continue to
hold:
Section 190.2 does not unconstitutionally fail to
narrow the class of persons eligible for the death penalty. (People
v. Chatman (2006) 38 Cal.4th 344, 410.) Section 190.3, factor
(a), permitting the penalty phase jury to consider the circumstances
of the offense and the existence of any special circumstances, is
neither vague nor overbroad, and does not unconstitutionally permit
arbitrary and capricious imposition of the death penalty. (People
v. Guerra (2006) 37 Cal.4th 1067, 1165.) “The jury may properly
consider evidence of unadjudicated criminal activity involving force
or violence under factor (b) of section 190.3.” (People v. Brown
(2004) 33 Cal.4th 382, 402.)
Neither the state nor federal Constitution
requires the jury to make written findings or agree unanimously as to
specific aggravating circumstances. (People v. Morrison (2004)
34 Cal.4th 698, 730.) Nor is California’s death penalty law
unconstitutional for failing to require proof beyond a reasonable
doubt or by a preponderance of the evidence “as to the existence of
aggravating circumstances, the greater weight of aggravating
circumstances over mitigating circumstances, or the appropriateness of
a death sentence.” (People v. Brown, supra, 33 Cal.4th
at p. 401.) Therefore, the trial court here did not err by not
instructing on burden of proof. (People v. Perry (2006) 38
Cal.4th 302, 321.) The United States Supreme Court’s decisions in
Apprendi v. New Jersey (2000) 530 U.S. 466, Ring v. Arizona
(2002) 536 U.S. 584, and Blakely v. Washington (2004) 542 U.S.
296, do not require us to alter these conclusions. (People v.
Howard (2008) 42 Cal.4th 1000, 1031)
The trial court is not constitutionally required
to instruct the jury that certain sentencing factors are relevant only
to mitigation. (People v. Panah, supra, 35 Cal.4th at p.
499.) The use of the phrase “whether or not” in certain statutory
factors (e.g., section 190.3, factor (d), “[w]hether or not the
offense was committed while the defendant was under the influence of
extreme mental or emotional disturbance”) does not unconstitutionally
suggest “that the absence of such factors amount[s] to aggravation.”
(People v. Kraft (2000) 23 Cal.4th 978, 1079.) The use of
certain adjectives (i.e., “extreme” and “substantial”) in the list of
sentencing factors neither acts as a barrier to the jury’s
consideration of mitigation facts nor renders the statute
unconstitutional. (People v. Panah, supra, 35 Cal.4th
at p. 500.)
“Intercase proportionality review is not
constitutionally required. [Citation.] Nor does equal protection
require that capital defendants be afforded the same sentence review
afforded other felons under the determinate sentencing law.” (People
v. Dunkle, supra, 36 Cal.4th at p. 940.)
Defendant contends that California’s death
penalty violates international law. Specifically, he argues
California’s use of capital punishment “as regular punishment for
substantial numbers of crimes—as opposed to extraordinary punishment
for extraordinary crimes,” violates international norms of human
decency and hence, the Eighth and Fourteenth Amendments to the United
States Constitution. We have rejected these arguments before and do
so again.
“International law does not compel the
elimination of capital punishment in California.” (People v. Snow
(2003) 30 Cal.4th 43, 127.) Moreover, California does not impose
capital punishment as “ ‘regular punishment for substantial
numbers of crimes.’ ” (People v. Demetrulias (2006) 39 Cal.4th
1, 43.) “The death penalty is available only for the crime of first
degree murder, and only when a special circumstance is found true;
furthermore, administration of the penalty is governed by
constitutional and statutory provisions different from those applying
to ‘regular punishment’ for felonies. (E.g., Cal. Const., art. VI, §
11; §§ 190.1-190.9, 1239, subd. (b).)” (Id. at p. 44.)
IV. Disposition
The judgment is affirmed.
CORRIGAN, J.
WE CONCUR:
GEORGE, C. J.
BAXTER, J.
CHIN, J.
MORENO, J.
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