Sacramento County Super. Ct. No. 84641. Michael J. Virga and Peter N. Mering.
The opinion of the court was delivered by: Corrigan, J.
A jury convicted defendant Morris Solomon, Jr., of four counts of first degree murder and two counts of second degree murder, and found true a multiple-murder special-circumstance allegation.*fn1 It also found him guilty of sexually assaulting two other victims. On retrial following jury deadlock at the first penalty trial, a second jury returned a verdict of death.*fn2 This appeal is automatic. We affirm the judgment.
The facts are summarized here for background purposes. Further details and procedural matters are discussed in connection with defendant's specific contentions.
A. Guilt Phase: Overview of Prosecution's Case*fn3
In the 10 months between June 1986 and April 1987, Sacramento police discovered the bodies of seven local prostitutes. All but one were found at homes where defendant had worked or resided. More than half were buried in shallow, backyard graves. Nearly all of the women had been bound, two were gagged, and four were nude or partially clad from the waist down. All were drug users.
After defendant's arrest for the murders, three prostitutes reported to police that defendant had sexually assaulted them. One had been bound and gagged.
Police interviewed defendant multiple times. Both before and after his arrest, defendant made inconsistent and false statements about his presence and activities in the places where the bodies were found. He also falsely denied knowing, or misrepresented the nature of his interactions with, the victims.
a. The First Degree Murder of Yolanda Johnson
On the morning of June 18, 1986, a 911 call summoned officers to an abandoned duplex on 4th Avenue in the Oak Park section of Sacramento. They discovered the decomposing body of 22-year-old Yolanda Johnson in the closet of the upstairs apartment. There were ligature marks on her neck and wrists, and her body position suggested her wrists had been bound together behind her back. Johnson, a prostitute and drug user, was nude from the waist down and there were semen stains on her thighs. She had sometimes used the abandoned building to engage in prostitution. The day before Johnson's body was found, defendant told several people he was looking for her.
An autopsy showed Johnson had died one to four days earlier. Due to decomposition, the pathologist was unable to determine the exact cause of death. But he opined Johnson could have died from either drug toxicity or strangulation. ABO blood grouping tests showed defendant could have been the source of the semen stains on Johnson's thighs.
b. The First Degree Murder of Maria Apodaca
On March 19, 1987, workers digging a ditch in the backyard of an abandoned house on 19th Avenue in South Sacramento unearthed the body of 18-year-old Maria Apodaca. The victim was a heroin addict and prostitute who had been missing for several months.
Apodaca was buried at a depth of about three feet, under a piece of plywood covered with dirt. Her clothed body was bound in a fetal position; a cloth belt held her wrists behind her knees. The body was wrapped in a bed sheet enveloped by black plastic.
The body was badly decomposed. The pathologist estimated death had occurred two to eight months earlier. The cause of death could not be determined, but dark discoloration around Apodaca's neck suggested asphyxia from suffocation or from a broad-width ligature.
c. The Second Degree Murder of Cherie Washington
On April 20, 1987, one month after the discovery of Apodaca's body, police detectives investigating defendant's possible involvement in that murder visited his former residence on 44th Street in Oak Park. An unusual depression in the backyard yielded the body of 26-year-old Cherie Washington from a shallow grave. She was nude from the waist down, but had not been bound or wrapped in a covering. Washington was a rock cocaine addict who sometimes engaged in prostitution to support her habit. Neighbors recalled seeing her several times standing at the front door of the house where her body was recovered.
Again, advanced decomposition precluded an exact determination of the date or cause of death. The pathologist estimated she died between three and nine months earlier, possibly of positional asphyxia, strangulation with a soft, wide ligature, or cocaine overdose.
d. The Second Degree Murder of Linda Vitela
On April 22, 1987, two days after Washington's body was unearthed, the body of 24-year-old Linda Vitela was recovered from a shallow grave in the backyard of an uninhabited residence on Broadway in Oak Park. Vitela's body was fully clothed and wrapped in a blanket tied with electrical wire in several places. Vitela was a prostitute and a heroin addict.
An autopsy disclosed Vitela had died approximately one year before her body was discovered. Although decomposition precluded a determination of the cause of death, the pathologist could not exclude the possibility of asphyxia or a fatal intoxication with drugs or alcohol.
e. The First Degree Murder of Sheila JacoX
Also on April 22, 1987, police found the body of 17-year-old Sheila Jacox in a second shallow grave in the Broadway backyard. Jacox's nude body was wrapped in bedding secured by duct tape. Duct tape had also been used to bind her body from the waist down and to hold a balled-up sock inside her mouth. Jacox was a prostitute and narcotics user.
The decomposition of Jacox's body was even more pronounced than that of Vitela's. However, a forensic anthropologist estimated that Jacox had been dead "about a year." Although the pathologist who performed the autopsy reported the cause of Jacox's death as "undetermined," he could not exclude alcohol or drug overdose, or most forms of asphyxia.
f. The First Degree Murder of Sharon Massey
On April 28, 1987, police unearthed the body of 29-year-old Sharon Massey from the same 19th Avenue backyard where Maria Apodaca had been exhumed the previous month. Massey's body was encased in a sheet knotted over her left shoulder, then covered with a bedspread. Her thighs, legs, and ankles were bound with a severed electrical cord, and a braided fabric strap held her wrists behind her back. Draped around her neck was a three-foot-long stereo speaker connector. Massey's upper body was fully clothed, but her panties and jeans were on only the right leg, and were pulled down to the thigh. A red sock was compacted into her throat, and a second sock protruded from her mouth. Massey had supplemented her income from a hospital clinic job with prostitution, and she may have been a crack cocaine user.
The pathologist who performed the autopsy of Massey's decomposed, mummified body estimated she had been dead approximately six months. A cause of death could not be determined, but asphyxia was not excluded.
2. The Nonfatal Sexual Assaults on Other Victims
News of defendant's arrest prompted two women to report that defendant had sexually assaulted them. Police later discovered a third sexual assault victim.
Melissa H. was a prostitute with a $300-a-day heroin habit. Although Melissa had once smoked cocaine with defendant in his car, she had repeatedly rebuffed his attempts to "date" her, telling him she did not date Black men. In early June 1986, several weeks before the discovery of Johnson's body, defendant grabbed Melissa by the neck as she entered the back door of the vacant apartment where she often brought clients. At knifepoint, defendant directed Melissa to disrobe and get on the bed. He hit her in the face with his fist and a table leg, and forced her to orally copulate him. After binding Melissa's wrists behind her back with a piece of leather, defendant sodomized, orally copulated, and raped her. At one point, defendant placed a sock in Melissa's mouth, which muffled her screams. Then, to prevent her from getting up, he tied her feet to the foot of the bed with an electrical cord that ran up her body and encircled her neck. About five hours later, defendant fled through the back door when Melissa's boyfriend/pimp started knocking on the doors and windows, yelling for her to open up. Melissa's boyfriend found Melissa wrapped in a quilt, bound, gagged and bleeding from her nose, mouth, and vaginal area.
Sherry H. supported her cocaine addiction with prostitution. One morning in October 1986, she agreed to "date" defendant for $50 and got into his car. After arriving at a house on 19th Avenue, Sherry started to remove her sweater. As she did so, defendant approached her from behind and tried to strangle her with a shoestring. Sherry frustrated the attempt by slipping her fingers between the shoelace and her neck and then falling to the ground. After an act of intercourse, she convinced defendant to take her home. Sherry suffered welts on her neck and internal hemorrhaging in one eye.*fn5
3. Defendant's Presence in the Locations Where the Bodies were Found
Defendant either lived in or worked at each of the locations where the murder victims were discovered.
In November 1985, defendant was hired to remodel a fire-damaged house on Broadway. He lived there until June 18, 1986, when he was evicted for failing to pay rent. The bodies of Linda Vitela and Sheila Jacox were unearthed from the backyard in April 1987. Vitela was last seen alive in February 1986. Jacox had been missing since March 20, 1986. After the bodies were discovered, defendant's next-door neighbor told police she saw defendant dig in five places in the backyard. Defendant had told her he was working on a sewer line and planting a garden.
In April 1986, while still living on Broadway, defendant was performing "end work" in the restoration of an abandoned duplex on 4th Avenue. Starting sometime in May, defendant was the sole worker there, and the only person with keys. The second and third floors of the building were separately locked, but the basement was unsecured and frequently inhabited by transients, drug users, and prostitutes. On June 17, 1986, the building's owner arranged to meet defendant at the site the following morning to discuss the status of the project. However, on June 18, defendant arrived early at the duplex, unlocked the front door and entered, and then came outside shouting he had found a corpse inside. Responding officers found the body of Yolanda Johnson in a closet in the upstairs apartment. She had been missing for three days.
In August 1986, shortly after defendant's eviction from the Broadway residence, he rented the master bedroom in a house on 19th Avenue. He lived there until October 23, 1986, when he and the other residents were evicted for failure to pay rent. The bodies of Maria Apodaca and Sharon Massey were unearthed from the backyard on March 19, 1987, and April 28, 1987, respectively. Apodaca was alive as of September 8, 1986, when she was released from custody following a prostitution arrest. Sharon Massey was last heard from on September 14, 1986.
After leaving the 19th Avenue residence, defendant spent several months living out of his car near a job site. Then, on December 15, 1986, he and a friend moved into a vacant house on 44th Street. Defendant's mother lived across the street. At the end of February 1987, defendant and his housemates were evicted. On April 20, 1987, the body of Cherie Washington was found buried in the backyard. She was last seen alive on February 6, 1987.
a. Defendant's Prearrest Statements
Defendant was questioned by police immediately after the discovery of Yolanda Johnson's body on June 18, 1986. He falsely identified himself as Ernest Carl Padilla,*fn6 and said he was last inside the building two days earlier, on Monday, June 16, 1986. Defendant also told police he did not recognize the victim. But when asked by a television news reporter at the scene if the victim was a prostitute, as bystanders had suggested, defendant said, "It wouldn't be right... to call her a working girl."
Defendant spoke with police twice more that same day. In the afternoon, defendant corrected himself, saying he had last been inside the duplex on the previous Monday, June 9, 1986, not June 16. Later that evening, defendant provided his true name. He explained he initially had identified himself as his brother because of several outstanding warrants. Defendant then agreed to talk with the officers at the police station.
Investigators conducted a taped interview that night. When shown a photograph of Yolanda Johnson, defendant said he knew her as "Yo Yo," and had once "dated" her in a camper parked in front of his Broadway home. He also indicated she once stole $20 from him. Defendant stated he and Johnson had never been in the 4th Avenue duplex together, and he had no idea how she ended up inside the closet. However, Johnson's mother reported that Johnson told her she had "dated" defendant in the houses he was renovating. Over the next few days, defendant provided fingerprints and a blood sample, and had several brief telephone conversations with police. No arrest was made.
Defendant was interviewed again on March 20, 1987. The previous day, the body of Maria Apodaca was unearthed from the backyard of defendant's former residence on 19th Avenue. When asked where he had lived in the past, defendant omitted the 19th Avenue house from his list. He admitted having stayed there only when asked about it directly. Defendant also falsely claimed that he had moved away from that location in September 1986.
Again, defendant was not arrested.
One month later, in the early afternoon of April 20, 1987, Detective Pane came to defendant's job site to reinterview him. Defendant said he knew Johnson but had never seen Apodaca before. During the conversation, defendant consented to a search of a Ford Maverick that he had abandoned in front of his former residence on 44th Street. Several hours later, while officers searched the car, they noticed an indentation in the backyard. At that spot, the body of Cherie Washington was exhumed from a shallow grave. Detective Pane came to defendant's home in the evening and confronted him with the latest discovery. Defendant claimed he had never done any digging in the backyard of that house, and insisted he had not killed anyone.
b. Defendant's Post-Arrest Statements
Defendant was finally arrested on April 22, 1987, the same day the long-buried bodies of Linda Vitela and Sheila Jacox were found in the backyard on Broadway. During a lengthy custodial interrogation, defendant continued to maintain his innocence.
Defendant said that Yolanda Johnson frequently visited the Broadway house when he lived there with a small group of prostitutes. She stole an expensive ring from him, but he denied being angry about it. However, police learned that defendant had once remarked to an acquaintance as Johnson walked past them that he was "going to kill that bitch" for her role in the theft of his stereo equipment. And when asked to explain the presence of his palm print on the closet door where Johnson's body was found, defendant contradicted his earlier account about the scope of his work in that room.
Defendant repeated his earlier claim that he did not know Maria Apodaca. But defendant's Broadway housemates reported Apodaca had visited defendant there several times. Defendant also adamantly denied the reports of his friends and former housemates that the sheet encasing Apodaca's body came from defendant's bed. When told his 19th Avenue housemates had also said he did some digging in the backyard near the location of Apodaca's shallow grave, defendant claimed he did no repair work or landscaping at that residence.
Defendant maintained he had never seen Cherie Washington. But one of his 44th Street neighbors said defendant introduced Washington to her while the three of them stood in defendant's living room. After the introductions, Washington followed defendant into his bedroom. Defendant also told Detective Pane in a prearrest interview that he did not dig in the backyard there. After his arrest, he indicated he once dug in the backyard while replacing 50 feet of sewer line.
As for his activities in the backyard of the 19th Avenue residence, defendant first told Detective Pane he did some digging when he replaced posts on the back porch. But he immediately changed course, saying he did no digging whatsoever.
5. Defendant's Interactions with Local Prostitutes
Evidence at trial showed defendant was a well known figure in Oak Park. He enjoyed the company of prostitutes both socially and sexually. Defendant told Detective Pane that prostitutes were "more real [than the] average person." Some of Oak Park's prostitutes considered defendant a gentle and caring friend who gave them money and a safe place to stay when they needed it. However, defendant could be rough and intemperate with the prostitutes he "dated," even with those who considered him a friend. And he characterized women generally, and prostitutes specifically, as "bitches, whores and tramps." Around the time of the earliest murders, defendant had a short-lived love affair with a prostitute named Rosella Fuller, who moved into the house on Broadway with a $200-a-day crack cocaine habit. The relationship led defendant into a costly drug habit of his own that ruined him financially.
a. Circumstances of the Crimes
The jury that decided defendant's guilt deadlocked on penalty, and the court impaneled a new jury for retrial of the penalty phase. To show the circumstances of the crimes, the prosecution presented its case-in-chief a second time. With minor departures, the evidence was substantially the same as that presented before.
b. Evidence of Defendant's Other Violent Crimes and Prior Convictions
The prosecution presented evidence of violent crimes defendant committed a decade or more before the capital offenses. All of the incidents involved sexual assaults of young women, and some of the facts were strikingly similar to evidence in the capital case.
i. Aggravated Assault on Mary K.
Mary K. testified that on September 19, 1969, she was 18 and working as a street prostitute in Oakland. Around 10:00 p.m., she got into defendant's car to negotiate for sexual services. Defendant drove to a darkened residential street, paid Mary $10, and orally copulated her. He then demanded his money back. When Mary refused, defendant held a curved knife to her throat. Mary agreed to give the money back, but then started screaming. As she swung her left leg out of the car, defendant cut her right thigh with the knife. The injury required 23 stitches.
ii. Abduction, Sexual Assault, and Robbery of Virginia J.
Virginia J. testified that in January 1971, she was in her early 20's and living in a motel in Oakland. On January 12, as she walked along MacArthur Boulevard looking for a place to eat, defendant grabbed her from behind, threatened to shoot her, and forced her into his car. Defendant had propositioned her once before, but she had told him she was not a prostitute.
Defendant drove Virginia to an isolated area in the Oakland hills to sexually assault her. En route, Virginia complied with defendant's demand to remove her clothing. After parking the car, defendant ordered her to orally copulate him, and to lick his anus, testicles, and scrotum, which she did. Defendant unsuccessfully attempted to sodomize her, then raped her. Afterwards, he inserted his fingers into her vagina, put his fingers into her mouth and ordered her to swallow. When she refused, he punched and pulled at her nipples. He then kicked her out of the car and drove off with her jewelry and clothes.
iii. Abduction and Assault on Dale W.
In May 1971, Dale W. was a student at Alameda Junior College. On May 17, she studied on campus at the University of California, Berkeley, until the library closed at 10:00 p.m. As she walked down Telegraph Avenue hoping to hitch a ride home to downtown Oakland, defendant pulled up and offered her a lift. She got into the car, but defendant drove to the freeway and headed in the opposite direction. He told Dale he wanted to have sex with her and would not harm her if she cooperated. He then grabbed her hair and held her head back over the seat so she could not see where they were going.
Defendant pulled off onto a dirt road. While Dale fought and clawed at him, she managed to pull the key out of the ignition and throw it out the window. She fled from the moving car, but defendant gave chase and overtook her. He knocked her to the ground and kicked her face, then ran back to the car to stop it from rolling away. Defendant was later convicted of assault to commit rape. (§ 220.)
iv. False Imprisonment and Sexual Assault on Connie S.
Connie S. testified that on October 18, 1975, she did a "guest spot" performance as a topless dancer in a San Jose club. Around midnight, defendant agreed to pay her for sex and they went to defendant's trailer across the street. Defendant paid Connie $25 and they had intercourse. As Connie was dressing to leave, defendant came up from behind and pulled a chain around her neck, saying, "Are you ready to die bitch?" She lost consciousness. When Connie came to, defendant urinated on her face. He then wrapped her hands together with tape, positioned her knees between her arms, and bound her ankles. Defendant hoisted Connie onto the bed and forced her to orally copulate him. He then left in her car. When defendant returned 30 minutes later, he removed Connie's bindings and raped her four or five times over the course of the night.
Before defendant left in the morning, he taped Connie's legs to a chair and wired her hands together behind her back. He then brought his Doberman pinscher into the room and warned Connie that if she moved, the dog would attack her. The dog remained seated as Connie managed to free her hands and ankles, however, and she fled to the trailer next door to call police. Two years later, ...