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People v. Davis

June 1, 2009

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
RICHARD ALLEN DAVIS, DEFENDANT AND APPELLANT.



Santa Clara County Super. Ct. No. 186000, Judge: Thomas Charles Hastings.

The opinion of the court was delivered by: Kennard, J.

A jury found defendant Richard Allen Davis guilty of the first degree murder of 12-year-old Polly Hannah Klaas (Pen. Code, §§ 187)*fn1 as well as the burglary of her home (§ 459), robbery (§ 211), kidnapping (§ 207, subd. (a)), and an attempted lewd act against her (§ 664/288, subd. (a)). As to the murder, the jury found to be true special circumstance allegations of burglary, robbery, kidnapping, and attempted lewd act upon a child under the age of 14. (§ 190.2, subd. (a)(17).) With respect to other crimes, the jury found that defendant personally used a deadly and dangerous weapon during the commission of these crimes, that he personally inflicted great bodily injury on the victim, and that he knew or reasonably should have known that his victim was 14 years old or younger. (§§ 12022, subd. (b), 12022.7, 211/459/667.9, subd. (a).)

The jury also found defendant guilty of two counts of false imprisonment (§ 236), two counts of assault with a deadly weapon (a knife)(§ 245, subd. (a)(1)), and two counts of robbery (§ 211) for crimes he committed against Polly‟s classmates, Kate M. and Gillian P. In addition, the jury found that defendant used a deadly and dangerous weapon in committing these crimes (§ 12022, subd. (b), and that he knew or reasonably should have known that each of these victims was 14 years old or younger (§§ 211/667.9, subd. (a).)

The jury further found that defendant personally inflicted great bodily injury on Polly Klaas after having served two or more prior separate prison terms. (§ 667, subd. (a)(1).) Finally, the jury found that defendant had four prior serious felony convictions (§ 667, subd. (a)), and that he had served three prior prison terms (§ 667.5(b)).

At defendant‟s penalty trial, the jury returned a verdict of death. The trial court denied defendant‟s motion for a new trial (§ 1181) as well as the automatic motion to modify penalty (§ 190.4, subd. (e)), and sentenced defendant to death. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in its entirety.

I. FACTS AND PROCEEDINGS

A. Guilt Phase

1. Prosecution's Case

a. Defendant's release on parole: June to October 1993 Defendant, who had a long criminal history that included convictions for assault, burglary, kidnapping, and robbery, was paroled from state prison on June 27, 1993. In early July 1993, defendant gained admission into the Turning Point Shelter in San Mateo, a transitional housing facility for the homeless. While at Turning Point, defendant initially worked at a precision sheet metal company, later as a painter.

On the weekend of August 21-23, 1993, defendant took a bus to visit his sister and brother-in-law, Darlene and Richard Schwarm, who lived on the Coyote Valley Indian Reservation in Ukiah. The bus stopped at a depot in Petaluma near Walnut Park and Wickersham Park, which were frequented by transients and drug users. That same weekend, defendant bought Richard Schwarm‟s 1979 Ford Pinto hatchback, after which he quit his job. He used the car to make several trips to Ukiah to visit the Schwarms from September through November 1993. During this period, defendant told an employee at Turning Point that he had gone to Petaluma to look for his mother, and on two different occasions he told one of his employers that he was visiting family in Petaluma.

At least four witnesses saw defendant loitering around Walnut Park and Wickersham Park in Petaluma in August and September of 1993. Defendant stood out because of his disheveled appearance, his yellow headband, his heavily tattooed arms, his public drinking, and his peppered-gray hair and beard. On at least one of those occasions, he was seen drinking and laughing in the park with his sister Darlene.

On either September 30 or October 1, 1993, defendant entered the Seductions adult store in Ukiah and bought a blue Rough Rider condom that the proprietor, Jeannette Turner, was "pretty sure . . . was studded or ribbed."

b. The Disappearance of Polly Klaas: October 1, 1993

Eve Nichol lived with her daughters, 12-year-old Polly Klaas and six-year-old Annie, in a small three-bedroom house in Petaluma near Walnut Park and Wickersham Park.*fn2 On Friday, October 1, 1993, Polly had a slumber party at her home with two classmates, 12-year-old Kate M. and 12-year-old Gillian P. Gillian arrived between 7:00 and 7:15 p.m. After a few minutes, she and Polly walked to a nearby convenience store, bought popsicles, and returned home. Their walk took them past Wickersham Park. Just before Kate arrived, Gillian and Polly went out to the front doorstep to wait for Kate.

Between 8:00 and 9:00 p.m., Kate arrived with her mother. As Kate‟s mother got back into her car, which was blocking the sidewalk, she saw a man walking straight at her vehicle, as if he was going to crash into it, so she jerked her car forward. The man wore dark clothing; he had rather bushy, gray and brown hair (possibly swept back in a ponytail); and he was carrying something that looked like a bag. Thirteen-year-old Kamika Milstead, a nearby resident, saw defendant get out of his car and head down the same sidewalk, carrying a bag or a box.

Meanwhile, the three girls played in Polly‟s bedroom. As Halloween was a few weeks away, Kate, who was dressed as a "hippie," and Gillian applied makeup to Polly‟s face to make her look "dead." Polly later changed into a white cotton denim skirt and a pink blouse that was tied into a knot in front, and removed most of the makeup.

Around 10:00 p.m., Nichol told the girls not to stay up too late and to keep the noise down, as she and Annie were going to bed. Nichol went to her bedroom, which was separated from Polly‟s bedroom by a bathroom and another bedroom. She read in bed for a few minutes, with Annie next to her, and she and Annie then fell asleep.

From 10:00 to 10:30 p.m., the three girls played board games and video games. Around this same time, nearby resident Taleah Miller was returning from a movie with her uncle. As her uncle was about to drop her off, Taleah saw defendant carrying a duffel bag and walking toward her house. Because Taleah was leery of homeless people, she asked her uncle to wait until the "scary looking" defendant passed the car. As defendant passed, he looked into the car and slid his hand over his face, as if to conceal it. Defendant was wearing dark clothing; he had combed-back, collar-length dark hair and a gray-patched beard.

Around this same time, Sean Bush, Aaron Thomas, and Thomas‟s girlfriend were watching a movie in Thomas‟s "granny unit" behind Polly‟s home. While Bush smoked a cigarette in Thomas‟s doorway, he could see Thomas‟s bathroom, which was separately located on Nichol‟s back porch. At about 10:30 p.m., Bush saw defendant walking calmly and slowly up the stairs to Thomas‟s bathroom. When defendant noticed Bush looking at him, he turned his head away and reached for the bathroom door. Bush described defendant as stocky with very thick and wiry hair that was styled straight back and lighter on top than on the bottom. Unaware that anything unusual was occurring, Bush resumed watching the movie.

Meanwhile, the girls decided to set up their sleeping bags. When Polly opened the bedroom door to retrieve the sleeping bags, she discovered defendant in the doorway holding a knife and a bag. Defendant said, "Don‟t scream or I‟ll slit your throats," and promised not to hurt them if they did what he said. He told the girls to lie facedown on the floor and not to look at him. Gillian and Kate initially thought defendant was a friend of Polly or her family who was engaged in a prank. Defendant asked, "Where is [sic] the valuables?" He repeatedly told them not to be scared and "he was only doing this for the money." Defendant wondered aloud why there were so many people present and expressed surprise when Polly told him that her mother was in the house. Polly said there was money in her jewelry box and asked him not to hurt her mother and sister. Defendant was calm at first, but he sounded more "frantic" as events unfolded.

All three girls lay down in a row on Polly‟s bedroom floor, and defendant tied their hands using a silky cloth, cords cut from Polly‟s Nintendo machine, and a strap from Polly‟s leather purse. He also gagged them with a silky cloth. He removed the cases from pillows in the bedroom and placed them over the girls‟ heads. At that point, Gillian no longer believed it was a joke.

Defendant told the girls that he was going to take Polly to show him where the valuables were, that he would then return Polly to Gillian and Kate, and that he would be gone after they counted to 1,000. Defendant then took Polly out of the room, promising he would not touch her. At that point, defendant had been in the bedroom for approximately 10 minutes.

After a few minutes‟ counting, with no sign of Polly, Gillian and Kate freed themselves, went to Nichol‟s bedroom, and told her what had happened. After they all unsuccessfully searched for Polly around the house, Nichol called 911 around 11:00 p.m. Nichol did not find any personal property missing from the home, but a pair of red leggings was later discovered missing from a chest of drawers in the bedroom.

c. Police Encounter Near Pythian Road: October 1, 1993

Dana Jaffe lived with her 12-year-old daughter on a 192-acre parcel in Sonoma County, between Santa Rosa and Sonoma, on a rural hillside past the end of Pythian Road. From its intersection with State Highway 12, Pythian Road proceeds northward. At its end is a series of steep, curving, and narrow private roads, one of which leads to Jaffe‟s home. "No Trespassing" signs were posted on the private road leading to Jaffe‟s property, and her house was several hundred yards past a gate.

About 10:45 or 11:00 p.m. on October 1, 1993, Jaffe arrived home from work and relieved her babysitter, Shannon Lynch. About 11:15 or 11:20 p.m., Lynch began driving away from the Jaffe residence and, while still behind the gate, she saw defendant‟s Ford Pinto wedged against an embankment and stuck in a ditch with defendant hunched over the rear bumper. As she drove up, defendant appeared surprised to see someone else on the darkened road. Lynch stopped her car and defendant approached. He had bad breath and body odor, with leaves embedded in his hair as if he had been caught in the brush, and he was wearing a dark-colored long-sleeved sweatshirt that was inside out. She asked what he was doing, and he replied, "I‟m stuck. I need some rope." When Lynch called defendant "illiterate" for not obeying the private road signs, he placed his hands on her window, told her to get out of her car, and demanded, "What‟s up the road?" Lynch remained in her car and told him there were people up the road who would call the police. She then drove off.

Frightened and upset, Lynch quickly drove to the nearest pay phone and, at 11:24 p.m., called Jaffe, urging her to call the police about a "scary guy" on her hill. Concerned about being alone with her young daughter, Jaffe dressed and got into her car with her daughter. As they drove down their private road they saw defendant‟s car but saw no one on the road. Jaffe drove to a pay phone and called the police at 11:46 p.m.

Some 15 minutes later, Sonoma County Sheriff‟s Deputies Mike Rankin and Thomas Howard arrived in separate cars and met Jaffe at the intersection of Pythian Road and Highway 12. Because the Sonoma County Sheriff‟s Department and the Petaluma Police Department used different radio frequencies, Deputies Rankin and Howard were unaware of Polly‟s abduction.

Jaffe led the officers back up the road, where they found defendant leaning against his car, smoking a cigarette. Jaffe told defendant he was on posted private property. Defendant acknowledged the signs but claimed that he had tried to turn and had become stuck in the ditch. Leaves, twigs, and other debris were in his hair and clinging to his socks, and he was wearing a yellow-and-blue-striped long-sleeved button down shirt. Jaffe told him the officers would help him and she went home.

Deputies Howard and Rankin spoke to defendant, who smelled of alcohol and appeared to be sweating profusely. Deputy Rankin patted defendant down and noticed that defendant‟s pants were wet but his shirt was not. Defendant asked the officers, "What the fuck are you doing here?" and Rankin explained that the property owner wanted defendant removed for trespassing. Defendant claimed he was passing through the area from Oakland on the way to see a relative in Redwood Valley and had pulled off the roadway to do some sightseeing. He said he had tried placing dirt and brush under his car‟s wheel to get traction. The deputies, however, saw little indication of any dirt or other debris placed under the wheel. Deputy Rankin ran a check of defendant‟s license plate, but he transposed some of the numbers and did not notice that the car was not registered to defendant. Defendant said he was not on parole and had never been to prison.

Although defendant smelled of alcohol, Deputy Howard did not think he was intoxicated based upon the deputy‟s observations of defendant‟s pupils, balance, and speech. During a consent search of defendant‟s Ford Pinto, the deputies found a paper bag on the floorboard with three or four unopened Budweiser beer cans as well as two bags containing clothes, some of which appeared to be torn.

As the two deputies discussed ways to free defendant‟s car and made unsuccessful efforts to that effect, defendant became more relaxed. At one point, defendant opened a can of beer and began drinking it, but Deputy Rankin told him to pour out the beer.

After borrowing a chain from property owner Jaffe, the two deputies pulled defendant‟s car off of the embankment and out of the ditch. While Deputy Howard returned Jaffe‟s chain, Deputy Rankin escorted defendant as he drove down Pythian Road to Highway 12. When both deputies drove onto Highway 12 from Pythian Road, they saw defendant parked near the intersection. At 12:46 a.m. on Saturday, October 2, 1993, the deputies cleared the incident with dispatch.

d. The Discovery of the Crime Scene Near Pythian Road: November 27, 1993

Polly Klaas‟s abduction attracted national attention. During the early stages of the investigation, as many as 75 agents from the Federal Bureau of Investigation (FBI) and 50 Petaluma police officers canvassed Polly‟s neighborhood for evidence regarding her disappearance.

For nearly two months, the investigation received thousands of leads and tips. Defendant, however, was not linked with Polly‟s disappearance until November 27, 1993, when property owner Jaffe discovered, in a clearing a few feet from where defendant‟s car had been stuck on October 1, a pair of child-sized red knitted tights (knotted at the knee), an adult-sized dark sweatshirt (turned inside out), and a knotted piece of white silky cloth shaped like a hood. The hood was triangle-shaped with one knot at its broader end, two knots forming two loops at its apex end, and a concave area in the middle that appeared to have makeup smears on it. The soil in the clearing was exposed, as if someone had purposefully cleared the area of ground cover. That night, Jaffe called the sheriff‟s office, left a message, and called again the next morning.

On November 28, 1993, Deputy Sheriff Mike McManus arrived at Jaffe‟s property to inspect the scene. He and Jaffe found an unrolled condom one to two feet away from the clothes, a torn Rough Rider condom wrapper, two pieces of strapping tape, a beer bottle, an empty plastic six-pack holder, and a book of matches.

Jaffe told Deputy McManus of the October 1 incident involving defendant on her hillside. Because it was starting to rain, Deputy McManus was concerned about damage to trace evidence, and he did not follow normal evidence-collection protocol; instead of leaving the scene intact, he picked up the items and placed them in a box. He left the unrolled condom because he did not have materials in his patrol vehicle to collect such evidence and he believed it was a sealed container that would not be damaged by the rain. Later that day, an FBI team took photographs and recovered the condom.

Deputy McManus researched the October 1, 1993, incident on Dana Jaffe‟s hillside and determined defendant‟s identity and his prior criminal record of assault and kidnapping. He gave this information to the Petaluma Police Department. The Petaluma Police Department‟s lead investigator, Sergeant Michael Meese, examined the evidence collected by Deputy McManus with his department‟s lead evidence technician, Officer Larry Pelton, and they agreed that the hood-shaped white cloth matched cloth pieces found in Polly‟s bedroom. The next day, an FBI laboratory confirmed the match.

The Petaluma Police Department learned that defendant was a parolee who had an outstanding parole violation warrant against him based on an October 19, 1993, drunk driving arrest in Mendocino County. Defendant‟s parole officer told them that defendant was at his sister‟s home in Ukiah.

e. Defendant's Arrest and Confessions: November 30 to December 6, 1993

On November 30, 1993, Petaluma police officers and FBI agents arrived at defendant‟s sister‟s residence in Ukiah and arrested him, without incident, on the parole violation warrant. They also seized defendant‟s car and personal belongings. Defendant had shaved off his beard. Later that day, the officers transported defendant to the Mendocino County Sheriff‟s Department, where Petaluma Police Officer Pelton and FBI Agent Larry Taylor confronted him about Polly Klaas‟s kidnapping. Defendant denied any involvement.

Two days later, on December 2, 1993, criminalists matched defendant‟s palm print with a print found in Polly‟s bedroom. On December 4, 1993, after Petaluma Police Sergeant Meese had spoken to defendant in jail and encouraged him to contact Meese if there was any hope that Polly was still alive (see pt. II. D. 3., post) defendant asked to speak to Meese and told him over the telephone, "I fucked up big time." He admitted that Polly was dead and agreed to help find her body.

That afternoon, Sergeant Meese met with defendant at the Mendocino County Jail where he, Sonoma County District Attorney Investigator Mike Griffith, and FBI Agent Larry Taylor questioned defendant for nearly two hours. Defendant claimed he went to Petaluma on the night of October 1, 1993, to contact his mother. Unable to find her, he went to a park, where he drank beer and smoked a marijuana cigarette that may have contained phencyclidine (PCP). Defendant said he did not have a clear recollection of what he did next. He recalled entering a home through a window and hearing some voices in a room, but he said he had never seen Polly Klaas before that point. He remembered tying the three girls up with items in the bedroom. He then recalled driving and suddenly realizing that he had Polly in the front seat of his car, when she complained that the bindings were too tight and her hands were going numb. Polly kept saying she wanted to go home. Defendant drove around for a while, confused about what to do, and got lost driving up Pythian Road, where his car eventually got stuck on Jaffe‟s property. He then untied Polly and placed her on the embankment where she remained while he tried to free his car, at which point the deputies arrived.

According to defendant, he waited for about 30 minutes after the deputies escorted him off Pythian Road before returning to the hillside and retrieving Polly. He then drove to a gas station so Polly could use the bathroom. After leaving the gas station, defendant realized he had to kill Polly to avoid returning to prison, so he strangled her with a piece of knotted cloth. He later cinched a piece of cord tight around Polly‟s neck "just to make sure," then dragged her to some bushes and covered her body with a piece of plywood and chunks of wood that he found in the area. Defendant said he did not think that he had sex with Polly or that he tried to have sex with her.

That same evening, defendant, accompanied by Petaluma Police Sergeant Meese, FBI Agent Taylor, Sonoma County District Attorney Investigator Griffith and other law enforcement officers, retraced his route after Polly‟s kidnapping. When they arrived at Dutcher Creek Road, located 100 feet from Highway 101, just south of Cloverdale, defendant pointed the officers in the direction of Polly‟s body.

Polly‟s badly decomposed body lay under a piece of plywood and other pieces of wood in an area covered with thorny blackberry briar, thick underbrush, and debris. Her skeletonized skull lay a short distance from the rest of her body, probably as a result of animal activity. Much of her body had skeletonized, including her entire abdominal cavity, with soft tissues and organs all absent, but some portions of the body, including her limbs, had dried in a "mummified" state. Polly‟s remains were partially covered by the nightgown Gillian P. had brought to Polly‟s slumber party; according to an FBI agent who observed her body, the nightgown was pulled up and inverted under her arms, which were folded across her lap. Her pink blouse was untied and her white mini-skirt had been pulled up to her chest, but she was still wearing her bra and panties. Her legs were spread outwards, bent at the knees and hips, which suggested that the body had not been haphazardly thrown into the brush or that rigor mortis had previously set the legs in that position.

Strands of Polly‟s hair, located separately from her body and skull, had a braided rope and a knotted cloth tangled within them. The examining pathologist, Dr. A. Jay Chapman, testified that the cause of Polly‟s death was "unascertainable" because of the condition of her body, but that the rope and knotted cloth could have fit around Polly‟s neck and might have been used to strangle her. During the autopsy, when members of the FBI‟s Evidence Response Team examined the remnants of Polly‟s panties with an alternative light source, a stain fluoresced, indicating the possible presence of semen. Further forensic testing, however, did not detect any semen at that location, which meant either that semen was never present or that it was present but had degraded so as to be unidentifiable.

After returning from the Dutcher Creek site on the night of December 4, defendant again described how he had strangled Polly with a piece of cloth. He added that when he eased up on the cloth, he thought he heard her groan, so he tightened up the cloth again and tied a knot. He then tied a cord around her neck and waited for Polly‟s movements to stop, which he described as taking "forever."

On December 6, 1993, Petaluma Police Sergeant Meese and FBI Agent Taylor questioned defendant again and confronted him with evidence that he had sexually assaulted Polly before killing her. Sergeant Meese told defendant that they found semen during an examination of Polly‟s remains. When defendant asked where the semen was found, Sergeant Meese responded, "on the body," to which defendant replied, "not in her though." Defendant denied sexually assaulting Polly. When asked how semen could have wound up on Polly‟s body, defendant replied, "Look I told you at least it wasn‟t in her." He added: "What I‟m trying to tell you is that in my mind, at least I didn‟t try to stick my dick in the fucking little girl." When pressed again about the semen, defendant responded, "that‟s something that I‟m going to have to live with and run through my mind over and over and over and over again." He also claimed it was a "load off" his mind and he was "glad" when FBI Agent Taylor told him that semen was found on Polly but not necessarily in her because he did not want that "hanging over" him. Defendant expressed concern that he would be mistreated in prison if other inmates considered him a child killer and molester. At the end of the interview, defendant said: "I have to see what comes out of forensic - hope nothing comes up. Hope nothing‟s in there."

f. Forensic Evidence

FBI Special Agent Chris Allen concluded that the pieces of white cloth found in Polly‟s bedroom, at the Pythian Road site where defendant‟s car had been stuck in a ditch,*fn3 and in Polly‟s hair at Cloverdale had been cut by scissors from a larger piece of nylon cloth, which might have originally been an article of lingerie or a nightgown, as the pieces of cloth all fit together like pieces of a puzzle. Allen believed the cloth could have been cut inside defendant‟s car, because fibers matching the cloth were found on the car‟s center console and rear passenger floor.

Fibers matching the carpet fibers in defendant‟s car were found in Polly‟s bedroom. Cotton fibers recovered from defendant‟s sweatshirt found at the Pythian Road site were consistent with fibers from Gillian‟s nightgown found on Polly‟s body at Cloverdale. Fibers found in Polly‟s hair were consistent with the carpet fibers in defendant‟s car, suggesting that her head might have come in contact with the floor of his car.

One of Polly‟s hairs was found intertwined in a knot on the red tights recovered at the Pythian Road site, and it appeared to have been forcibly removed from her head. Two hairs found in Polly‟s bedroom matched defendant‟s DNA profile, and they also appeared to have been forcibly removed from defendant‟s head.

Examination of the condom and condom wrapper found at the Pythian Road site did not reveal the presence of any fingerprints or biological evidence.

g. Defendant's Prior Crimes

On September 24, 1976, defendant, then 22 years old, abducted 26-year-old Frances M. at knifepoint from the South Hayward BART station as she entered her car. Pushing Frances into the passenger seat and placing a paper bag containing twine behind the seat, defendant took her keys and drove off, claiming he would not hurt her and he needed to get away because someone was following him. Defendant, who smelled of alcohol, hit Frances on the head and told her to stop crying. Defendant eventually pulled over and exposed his flaccid penis, but as he tried to push Frances‟s head down to his crotch, she grabbed the blade of his knife with one hand, used her other hand to open the door, and ran from the car. Frances flagged down a passing car, which happened to be occupied by an off-duty California Highway Patrolman, who chased defendant and arrested him. Defendant later told a court-appointed psychiatrist, Dr. George Ponomareff, that he had attacked Frances because he heard "a voice of a woman wondering what it would be like to be raped." Defendant also stated that Frances "wanted it" and "was only protesting for the sake of appearance."

In December 1976, defendant, who had been transferred to Napa State Hospital after faking a suicide attempt, escaped and engaged in a five-day crime spree.

On December 16, 1976, defendant broke into the Napa home of Marjorie Mitchell and beat her on the head with a fireplace poker while she slept. After she screamed, defendant dropped the poker and walked out of the room. Mitchell, her head bleeding, went to the bathroom to get a towel and saw defendant standing at the end of the hallway. Mitchell began walking towards him, but he fled. Defendant later told police that he was surprised Mitchell was still alive. He said he had intended to look for her car keys, but he forgot about the keys after he hit her. Defendant explained that he had hit her "to relieve tension" and that committing violent acts was "how he relieved tension." "It felt good. I felt glowing. We both got something out of it," he later told Dr. Ponomareff. Defendant told another court-appointed psychiatrist he believed Mitchell "wanted to know how it felt to be beaten." Mitchell required 30 sutures to close the wounds on her head.

Defendant told police that he remained in Mitchell‟s neighborhood for the next few days, hiding under a tarp in a fishing boat that was parked on a trailer, and that he entered an open garage to a nearby house on Linden Street, stealing a metal file, which he used to sharpen a kitchen knife he carried with him. Defendant turned off the power to the house, intending to use his knife to steal a vehicle from the female resident as she came out to investigate, but his plan was thwarted when the intended victim did not come out as expected.

On December 20, 1976, defendant broke into 40-year-old Hazel Frost‟s car, pointed a shotgun at her neck, and told her to drive to Santa Rosa. After a half-hour drive, he ordered her into a dark gas station, and he pulled out white tape or gauze from his pocket. Frost rolled out of the car, grabbing a gun she kept underneath the seat. As defendant fled, she fired four or five times at him. Defendant later told police he wanted Frost‟s car to get to San Mateo County, and told Dr. Ponomareff that, before his attack on Frost, he had again heard the voice of a woman wondering "what it would be like to be kidnapped and assaulted." He told another court-appointed psychiatrist that he had decided he "would have some fun with the lady and assumed that from her attire and her single status she was looking for the same."

On December 21, 1976, Josephine Kreiger, a bank employee, returned to her La Honda home in San Mateo County and discovered it had been ransacked with some of her jewelry and coins missing. Responding police officers found defendant hiding under a bush with an unloaded shotgun on the ground next to him and two knives on his person. Defendant admitted he had burglarized Kreiger‟s home. He explained that he had intended to wait for the residents to return home, at which time he planned to tie them up and steal their car, but that he gave up on the plan when more people than he expected came home. Defendant later also told Dr. Ponomareff he thought there were people inside the Kreiger home who wanted to be tied up.

Defendant told a court-appointed psychiatrist that he masturbates twice daily while thinking of the female victims of his past crimes, and that he imagines tying them up.

The prosecution introduced evidence of defendant‟s convictions for the crimes against Frances M., Mitchell, Frost, and Kreiger. The prosecution also introduced evidence of defendant‟s convictions for three second degree burglaries occurring in the summer of 1973, May of 1974, and December of 1976; receiving stolen property in December 1976; armed burglary and kidnapping in November 1984; and attempted armed robbery in March 1985.

h. Paraphilia

Dr. Park Elliott Dietz, a clinical professor of psychiatry in the biobehavioral sciences at the University of California, Los Angeles School of Medicine, testified as to a sexual disorder known as "paraphilia." He explained that paraphilia, a classification in the American Psychiatric Association‟s Diagnostic and Statistical Manual of Mental Disorders-Fourth Edition (DSM IV), is defined as "a continuing preference for some unusual sexual object . . . , [a]nd that means that individuals who are aroused sexually by people of the wrong age, by objects that are not people, or activities that are unusual or harmful." For some paraphiliacs, arousal is generated by the desire to control, render helpless, and humiliate the real or imagined sex partner. In a particular deviation called "cordophilia," the paraphiliac uses bindings to keep the sexual partner subservient. Intricately prepared bindings, corded or rope bindings, or silky bindings made from "feminine materials" may be particularly sexually stimulating to the paraphiliac. Some paraphiliacs use unconsenting victims to fulfill their sexual desires. In such cases, the paraphiliac will formulate a plan, prepare the weapons and bindings, pick a suitable victim, control the victim, and take the victim to a secluded location to enact the sexual fantasy. Impotence and other sexual dysfunctions are common among paraphiliacs. A paraphiliac in his 40‟s, Dr. Dietz stated, may still have the same sexual preferences he had in his 20‟s.

In Dr. Dietz‟s opinion, defendant‟s prior crimes involving Frances M., Mitchell, and Frost were "consistent" with the stages of a sexual assault by a paraphiliac, using weapons and preparing bindings for use on lone female victims. In describing defendant‟s crime against Frost, Dr. Dietz stated his opinion that defendant selected her to commit a sex crime. Dr. Dietz explained that defendant‟s justifications for some of his crimes did not make sense and appeared to be rationalizations for sexual offenses. In Dr. Dietz‟s view, defendant‟s statement that he masturbated twice a day while fantasizing about tied-up crime victims was strong evidence that he was a paraphiliac.

Dr. Dietz believed that defendant‟s behavior in the kidnapping and murder of Polly was "consistent" with paraphilia.

2. Defense Case

The defense conceded that defendant had killed Polly, but asserted that the evidence did not show that he sexually assaulted her.

The defense called as witnesses Petaluma Police Sergeant Meese and Sonoma County District Attorney investigator Michael Griffith to impeach the testimony of Jeannette Tuner, who had testified under a grant of immunity for an unrelated fraud case, regarding her inconsistent statements about whether defendant had purchased a particular condom from her adult store just before the crimes.

The defense also presented testimony from defendant‟s parole officer, Thomas Berns, about his contacts with defendant in August and September 1993, in an attempt to show that defendant could not have been in Petaluma before the crimes as frequently as the prosecution‟s eyewitnesses had claimed.

3. Defendant's Conduct After the Guilt Phase Verdict

After the jury returned its verdict at the guilt phase of trial, defendant turned toward the television cameras in the courtroom and made an obscene gesture with both hands by extending his middle fingers. He then winked his eye and blew a kiss.

B. Penalty Phase

1. Prosecution's Case

a. Defendant's Prior Violent Offenses

Marjorie Mitchell, Frances M., and Hazel Frost, who had been assaulted by defendant in 1976 (see pp. 15-18, ante), described being frightened, missing work, and losing sleep as a result of defendant‟s violent crimes against them. Mitchell described the wound to her head, which required 30 sutures to close, and said that she still experienced periodic headaches from the blows. She and her daughter consulted a psychiatrist, and she began locking her doors and covering her windows at night. Frances M.‟s hand was severely cut during her escape and required treatment at the hospital. Frost described herself as "a basket case" until defendant was arrested. She received psychological counseling and took medication for several years to help cope with her fears.

The prosecution also presented evidence of the facts underlying defendant‟s November 1984 convictions for armed burglary and kidnapping, for which he had been released on parole when he committed the current offenses against Polly Klaas. Defendant and his then-girlfriend, Susan Edwards, forcibly entered Selina Varich‟s residence in Redwood City. Edwards and her sister, Sandra Brinkley, had previously extorted over $15,000 from Varich by threatening to reveal Varich‟s prior lesbian relationship with Brinkley to members of Varich‟s family. When defendant and Edwards confronted Varich, she reached for her telephone, but either defendant or Edwards pulled it off the wall. Defendant threatened to kill Varich and members of her family if she did not go to her bank and pay him and Edwards $6,000. Varich described defendant as the person "in charge of the situation," who intimidated both her and Edwards. When Varich tried to run to her deck, defendant dragged her back inside and struck her on the head with a gun, causing profuse bleeding.

Defendant and Edwards attempted to silence Varich‟s cries, forced her to shower to wash off the blood, and ordered her to lie on her bed. Defendant then gave his gun to Edwards, who drove with Varich to the bank to obtain the $6,000, after which she ordered Varich to drop her off at a location where she had arranged to meet defendant. Varich required eight sutures to close her head injuries, and missed about a week of work. She described being "absolutely terrified," locking her doors and sleeping with the radio and lights on, until defendant was arrested several months later.

The prosecution presented evidence of seven robberies and one attempted robbery defendant committed between December 1984 and March 1985 in Kennewick, Washington, and Modesto, California. In each instance, defendant, with Edwards as his getaway driver, entered a bank, a restaurant, or a retail store and robbed persons at gunpoint. In 1989, defendant, in an effort to retaliate against Edwards (who had failed to make good on a promise to help him while he was in prison for the crimes against Varich), confessed that he and Edwards had committed the robberies. He was convicted of only one of the offenses - an attempted armed robbery in March 1985.

b. Victim Impact Testimony

Polly Klaas was born January 3, 1981. She was described as funny, intelligent, and beautiful, "an absolutely extraordinary child" who was warm-hearted with a sunny disposition and an infectious laugh. She played the piano and the clarinet, and had a particular love for acting on stage. She was afraid of being alone in the dark, often sleeping with her lights on and fearful that "a bad man would come and take her in the night."

Although Polly‟s mother, Eve Nichol, did not testify at the penalty phase, Petaluma Police Sergeant Meese described her, on the night of Polly‟s abduction, as being "in a state of shock and anguish," which was reflected in a photograph taken of Nichol with her six-year-old daughter, Annie, that night. Nichol‟s father (Polly‟s maternal grandfather), Eugene Reed, drove up to see his daughter soon after Polly‟s abduction and found her "in deep shock," describing her as being "too numb to even cry."

Polly‟s father, Marc Klaas, who was divorced from Polly‟s mother, maintained a very close relationship with Polly, seeing Polly every weekend and talking to her almost daily. In the weeks before Polly‟s remains were discovered, he helped establish a volunteer center to direct the search for her. During this period, he abandoned his successful car rental business, lost 30 pounds, developed a severe sleep disorder, and began seeing a therapist. After learning that Polly was dead, he went "berserk" and became so enraged that members of his family had to restrain him. It was an anger that, he said, "carries on to this day." He became a child advocate, promoting "an agenda to spare other children from her fate." He continued to have sleep disorders, often experiencing dreams and nightmares about Polly, and continued to see a therapist.

Polly also enjoyed a close relationship with her maternal grandfather, Eugene Reed, often visiting him and his wife at their home on the Monterey Peninsula, where she would play music with him and take walks on the beach. Reed described the 64 days Polly was missing as "just about the worst time we ever had in our lives." Even worse was the discovery that Polly was dead. In her memory, he and his wife put up a bench in Pacific Grove facing the ocean with an inscription for Polly.

2. Defense Case

Defendant spent his early years in South San Francisco, where his mother, Evelyn Smith, and his father, Robert Davis, lived with defendant‟s maternal grandmother, Norma Wasson Johnny (a Paiute Indian), and his stepgrandfather George Johnny. Defendant had two younger sisters, Patty and Darlene, and two older brothers, Don and Ron.

Defendant‟s father eventually moved the family into a small house in the rural mountain town of La Honda, in San Mateo County. Soon after, when defendant was about nine years old, his parents separated, and the children and their mother returned to the home of the Johnnys. After a bitter divorce in 1965, the children were eventually allowed to choose which parent they wanted to be with. Defendant‟s two older brothers stayed with their mother while defendant (then 12 years old) and his two younger sisters chose to live with their father. At some point, defendant‟s brother Don returned to live with his father.

Defendant‟s father moved the family frequently, sending the children to live, at various times, with his mother in Chowchilla, with the Johnnys, and briefly in Half Moon Bay and in Reno, eventually settling down again in La Honda. When defendant was 14 years old, his 10-year-old sister, Patty, died of an illness.

Defendant‟s family members and caretakers described him as an average, "nice little boy," who was sometimes rambunctious but very lovable and cute. As he grew older, defendant became quiet, shy, and subdued, but very protective of his sisters, often taking responsibility for their welfare and making sure they went to school and did their homework.

Defendant‟s mother drank frequently, was cold and distant to her children, never hugged or kissed them, and made little or no effort to remain in touch with them after their father gained custody of them. At the funeral of 10-year-old Patty, the mother made no attempt to talk to defendant or his siblings.

Defendant‟s father was a longshoreman; during the week he was away, but he returned to the family on some weekends. When he was present, he often was gruff and harsh with the children. There was conflicting evidence as to whether he had a problem with alcohol. On occasion, he hit defendant, once breaking defendant‟s jaw. When the father was away, various women, who were either hired caretakers or romantically involved with him, took care of defendant and his siblings, but at times they were left alone at home.

According to defendant‟s juvenile probation reports, he committed his first offenses (a burglary and forging a $10 money order) when 12 years old while he was living in Chowchilla with his paternal grandparents. Defendant returned to live with his father, was remorseful, appeared amenable to rehabilitation, made good progress, and did better in school. He successfully completed his juvenile probation, but at the age of 15 he burglarized a home in La Honda. He again successfully completed probation, but he did poorly in school.

Employees of the California Men‟s Colony at San Luis Obispo, where defendant was incarcerated in the 1980‟s and early 1990‟s, described defendant as an exceptionally skilled and productive metal worker and a cooperative metal shop student. One of his metal shop instructors estimated that defendant‟s metalworking skills saved the state millions of dollars in manufacturing and installation costs. As a result, defendant was considered part of an "elite group" of inmates.

James Park, a psychologist, retired prison administrator, and part-time prison consultant, testified regarding the security designation applied to all prisoners serving sentences of life imprisonment without the possibility of parole ("Level 4" inmates). Level 4 institutions are characterized by high security features with no conjugal visits. Based on his review of defendant‟s prison records, he concluded that defendant had been "useful and productive" in prison, with few serious disciplinary incidents over 20 years. Dr. John Irwin, an expert on prisoner institutionalization, concluded from defendant‟s prison record that he was a "conforming prisoner that causes very little trouble," and that he was an "asset" and "model prisoner" who would have no difficulty adjusting to the routine of incarceration.

Clinical Psychologist Lorelei Sontag compiled a social history of defendant based on interviews of defendant, members of his family, and a neighbor as well as on letters, juvenile probation records, school records, medical records, and divorce records. In defendant‟s early years, he was exposed to serious domestic violence between his parents. A neighbor reported seeing the mother hold defendant‟s hand over a flame on a stove to punish him for playing with matches when he was three years old. Defendant did not cry and appeared unreactive, which Dr. Sontag found "very alarming" and a sign that defendant was "developmentally askew." In a second incident, Evelyn burned the hands of defendant and his brothers after catching them smoking.

According to Dr. Sontag, defendant later might have felt responsible for his mother‟s emotional rejection of him and his sisters, after their parents‟ divorce, when they chose to live with their father. Although the father did provide for the family financially, he often provided no emotional support to his children, especially the boys. Once, he struck defendant hard enough to push him through a Sheetrock wall. When defendant was 16 years old, he ran away from home and asked juvenile hall authorities to place him with a foster family. Defendant‟s juvenile probation officer eventually recommended enlisting in the Army. Defendant did so in July 1971.

Psychiatrist George Woods diagnosed defendant as having avoidant personality disorder, antisocial personality disorder, and schizoid personality disorder, based upon his interviews of defendant and a review of many reports and records. According to Dr. Woods, individuals with personality disorders often make "self-destructive and damning" decisions. Dr. Woods found no indication that defendant suffered from any neurological problem or brain damage. He described defendant‟s intelligence as average, based upon intelligence quotient (IQ) tests in 1975 and 1985, on which defendant scored 129 and 105, respectively. Although the IQ score of 129 indicated above average intelligence, Dr. Woods noted that defendant failed his first attempt to pass the General Educational Development test at age 20 in 1974 and that his performance on that exam was consistent with a 10th grade level, the point at which defendant dropped out of school.

On cross-examination by the prosecution, Dr. Woods acknowledged that after defendant‟s crimes against Frances M. in 1976, he faked a suicide attempt and falsely claimed he heard voices in his head to support an insanity defense.

3. Prosecution's Rebuttal

Witnesses from the Turning Point facility described defendant as a very sociable person who had admitted to them he had tried to manipulate the system by feigning mental illness so he would be moved into a mental health facility, so it would be easier for him to escape. Correctional officers testified that they saw no signs that defendant had mental problems while he was in jail for the current crimes.

Psychiatrist Leonti Thompson, who had examined defendant in 1978 for a court-ordered mental evaluation, disagreed with Dr. Woods‟ diagnosis and found defendant‟s behavior consistent only with antisocial personality disorder.

Clinical therapist and Forensic Psychologist Kathleen O‟Meara reviewed defendant‟s records and concluded that the defense allegations of childhood abuse were exaggerated, although she acknowledged that defendant‟s family was seriously dysfunctional. Disagreeing with Dr. Woods‟s diagnosis, she expressed the view that defendant suffered from antisocial personality disorder and sexual sadism, which motivated his prior sexual offenses. In her opinion, defendant‟s childhood would not necessarily cause him to commit the crimes he was convicted of as an adult, and she mentioned that defendant‟s brother Don had told her he did not believe that defendant‟s childhood was the cause of his problems. She also noted that, notwithstanding adverse circumstances during childhood, individuals can motivate themselves to adapt to normal adulthood, as had defendant‟s brothers Ron (who became a Highway Patrol officer, studied law, and later became a tribal magistrate in Nevada), and his brother Don (who had a stable marriage and was employed at Lockheed).

4. Sentencing Hearing

Before the trial court denied defendant‟s automatic motion for modification of the death verdict (§ 190.4, subd. (e)) and imposed sentence, Polly‟s father, Marc Klaas, and her grandfather, Eugene Reed, asked the court to sentence defendant to death. The court then allowed defendant to read a statement in which he complained at length about the failure of the police to provide him a lawyer after he invoked his right to counsel, and said he only confessed, after not seeing a lawyer for four days, because he assumed no attorney wanted to represent him because of the infamy of the case and because Petaluma Police Sergeant Meese had exploited defendant‟s symptoms of nicotine withdrawal. Defendant asserted that, because of the "intentional disregard" of his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436), his attorneys were forced to admit guilt on some of the charges against him. At the close of his statement, defendant set off a commotion in the courtroom when he claimed he knew he did not commit a lewd act upon Polly "because of a statement the young girl made to me when walking her up the embankment: "Just don‟t do me like my dad.‟ " After pronouncing defendant‟s sentence of death, the trial court concluded the proceedings by stating, "Mr. Davis, this is always a traumatic and emotional decision for a judge. You‟ve made it very easy today by your conduct."

II. PRETRIAL ISSUES

A. Change of Venue to Santa Clara County

Defendant claims the trial court violated his right to a fair trial when, after granting defendant‟s motion for a change of venue, it transferred the case to Santa Clara County, rejecting a defense request to hold the trial in a county farther from the location of the murder. As we explain, we find no error.

1. Facts

Venue was originally in Sonoma County, as all of defendant‟s charged crimes took place in that county. After more than six weeks of jury selection, however, the parties and the assigned Sonoma County trial court judge, Lawrence Antolini, agreed that a change of venue was necessary because of ...


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