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People v. Foster

November 18, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
RICHARD DON FOSTER, DEFENDANT AND APPELLANT.



San Bernardino County Super. Ct. No. VCR5976. Stanley William Hodge.

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

A jury convicted Richard Don Foster of the first degree murder of Gail Johnson (Pen. Code, §§ 187, subd. (a), 189), second degree burglary (Pen. Code, § 459), and second degree robbery (Pen. Code, § 211).*fn1 The jury found true the special circumstance allegations that the murder was committed while defendant was engaged in the commission or attempted commission of burglary and robbery. (§ 190.2, subd. (a)(17)(A), (G).) The jury also found true the allegation that defendant personally used a dangerous and deadly weapon, a knife, in connection with the murder and the robbery. (§ 12022, subd. (b).) The jury further found that defendant previously had been convicted of two serious or violent felonies. (§ 667, subd. (a).) Following the penalty phase of the trial, the jury returned a verdict of death. Defendant moved for a new trial (§ 1181), to strike the special circumstances, and for modification of the penalty to life imprisonment without the possibility of parole (§ 190.4, subd. (e)). The trial court denied these motions, sentenced defendant to death, imposed sentence on the non-capital offenses, and ordered restitution in the amount of $200. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in its entirety.

I. FACTS

A. Guilt Phase Evidence

1. The Prosecution Case

a. Summary

In the afternoon of August 26, 1991, Gail Johnson's body was found on the floor of the minister's office in the High Desert Church of Religious Science in Apple Valley (the church). She had been stabbed at least eight times. Her purse was found on the floor near her body, and her wallet was missing. Blood found in the minister's office matched defendant's blood, and the combination of 10 particular sequences of DNA found in the blood would be expected to occur in approximately one in every 24 million individuals. The victim's vehicle was found in the parking lot of a business that defendant visited on the day of the crimes. Her wallet was retrieved from a mine shaft in which defendant previously had disposed of other items. A pair of jeans, stained with blood consistent with the victim's blood, also was found in the mine shaft and were the same brand and size as the jeans worn by defendant on the day he was arrested. A bloodstain on a piece of tissue paper found in the mine shaft was consistent with defendant's blood. Defendant had visited the church two days prior to the date of the crimes. Evidence was received establishing defendant's commission of two prior offenses in which he found women alone in an office and returned to rob and assault them.

b. The Day of the Crimes

Loren West testified that on Monday, August 26, 1991, he visited the church at approximately 11:20 a.m. to repair the air conditioning, at which time the victim, Gail Johnson, was in the church office. West recalled opening a locked box of electrical fuses with a key that he obtained from a box provided by the victim. After replacing a fuse, he returned the key to the victim in the church office and departed from the church at approximately 11:45 a.m. He stated that he saw only one vehicle, other than his own, in the church parking lot, and that the victim was the only person he saw at the church. At trial, West was shown a photograph of the keys spread out in a wooden tray at the church office, and testified he "would not have left the key box open with keys laying everywhere."

William Rosenthal testified that when he arrived at the church at approximately 1:00 p.m. that day to deliver stationery, he did not observe any other vehicles in the parking lot or any other persons in the church office. When he looked into the minister's personal office, he saw a person lying on the floor next to the desk. When he called into the minister's office, the person did not respond. He reported his discovery to his manager and called 911.

Mike Malloy, who was working that day as an engineer employed by the Apple Valley Fire District, testified that at approximately 1:00 p.m., he was assigned to respond to a call regarding "a person down" at the church. He located the victim on the floor in the minister's office, on her back, fully clothed, with blood on her shirt. Malloy determined she was not breathing and had no pulse. He testified that after an EKG test revealed that "her heart was systole... or flat-lined," he did not attempt to revive her.

c. Crime-Scene Evidence

Dr. Frank Sheridan, the Chief Medical Examiner for the County of San Bernardino, conducted an autopsy. He testified the victim was 53 years of age, 64 inches tall, and weighed 140 pounds. He described numerous defensive wounds on the victim's hands and arms, and confirmed that these wounds "could occur... if someone is slashing at her... and she's trying to ward off the blows." He stated there were bruises on the right side of her nose and jawline that were consistent with being punched, and a bruise on the back of her head that probably occurred when the victim fell backward. All of these wounds were inflicted while the victim was alive.

Sheridan testified that the victim was stabbed once in the neck and at least seven times in the chest. He did not find anything, such as indentations on the victim's skin, indicating that the knife used in the attack had a handguard that would have prevented the perpetrator's hand from slipping past the handle. He testified that the neck wound was not as deep as the others, and may have been inflicted while the victim was standing and the perpetrator held the knife at her neck. One of the chest wounds was caused by two stabs through the sternum. Sheridan agreed that if the perpetrator's hand had blood on it when the knife hit the sternum, the perpetrator could have lost his grip and been cut. Sheridan concluded the victim was lying on her back when the chest wounds were inflicted, because she had a bruise on the back of her head, the chest wounds occurred in quick succession, and two of the wounds extended to the back of the ribcage, indicating that the force of the thrust did not push her body back.

Sheridan examined a photograph of defendant's right hand taken approximately two weeks after the murder. He testified that an injury on defendant's palm was consistent with one that would be suffered if a person were to stab with a knife and the knife were to slip. Sheridan also testified that defendant's wound would have bled and was consistent with the injury having occurred two weeks earlier.

David Stockwell, a criminalist in the San Bernardino County Sheriff's Department, was assigned to assist in the collection of evidence from the crime scene. He testified that the victim's body was found on the floor of the minister's office, on her back, between the desk and the wall of the office. Under the desk were numerous items that appeared to be from a purse, and a purse was beneath shelves that were affixed to the wall. One of the victim's shoes was on the floor near her foot, and her other shoe was on the desk.*fn2 A telephone and telephone cord also were on the floor, and the office window was broken. Stockwell was aware that a key was found in the trash can in the minister's office. He observed blood on numerous items in the minister's office.

Stockwell received blood samples from the victim and defendant, which he analyzed to determine 11 genetic markers. His analysis did not involve DNA directly, but focused instead upon particular proteins produced pursuant to the donor's DNA coding. He testified that the 11 particular markers in defendant's blood appear most frequently in the Caucasian population, and those 11 markers are found in one in 42,600 Caucasian individuals.

Stockwell analyzed numerous bloodstains found in the church but was unable to test every stain he collected for each of these 11 genetic markers, because some of the samples were too small.*fn3 All of the bloodstains for which Stockwell obtained testing results were (1) consistent with the victim's blood, (2) consistent with defendant's blood, or (3) consistent with a mixture of both individuals' blood. He testified that stains on the victim and on her clothing, and a blood smear on an ottoman located next to her body, were consistent with the victim's blood. Bloodstains, found on the window blinds in the minister's office, apparently had been deposited as a result of being flung with some force from a moving object and were consistent with the victim's blood. Stockwell analyzed samples obtained from the purse and concluded two smears were consistent with the victim's blood, three drops were consistent with defendant's blood, and two drops were consistent with a mixture of blood from both individuals. Stockwell explained that because the mixtures appeared within single drops of blood, the two sources of blood must have mixed before contacting the surface of the purse. Bloodstains consistent with a mixture of the victim's blood and defendant's blood also were collected from the desk, the chair, two shelves of the bookcase, one of the shelves affixed to the wall, and the carpet in the minister's office. Mixed stains also were found on the carpet outside the minister's office and on the floor of the church foyer. Finally, bloodstains consistent with only defendant's blood were found on the carpet in the minister's office, the floor at the entrance to the church office, the floor of the foyer, and the drinking fountain in the foyer.

Stockwell testified that samples of the victim's blood and defendant's blood, and a sample of a drop of blood obtained from the purse that was consistent with defendant's blood, were sent to Cellmark Diagnostics for DNA analysis. Dr. Robin Cotton, the laboratory director at Cellmark, explained that her laboratory extracts DNA from cells and analyzes certain DNA sequences that vary in length among individuals. At Cellmark's laboratory, five locations of the DNA from each of these three blood samples were examined. Each location of the DNA generated two distinct lengths or "bands," representing the DNA received from each parent and resulting in 10 bands to compare. Cotton testified that all 10 of the bands from the blood on the purse matched the bands from defendant's blood. She also testified that the presence of all 10 of these bands would occur in approximately one in every 24 million individuals.

Gilbert Johnson, the husband of the victim, testified that she worked as a volunteer at the church. He identified the purse found in the minister's office as belonging to his wife, and numerous items found on the floor next to her body as normally kept by her in her purse. He also testified that she had a habit of keeping at least $50 in her purse. According to Johnson, his wife was strong-willed and would have resisted an attempt to rob or rape her.

d. Evidence Obtained From Other Sites

On August 26, 1991, at approximately 10:00 p.m., San Bernardino County Deputy Sheriff Phil Brown located the victim's vehicle in the parking lot of a Lucky store in Apple Valley. Brown testified that the driving distance between the church and the parking lot was one and one-half miles. Jeffrey Smink, a forensic specialist with the sheriff's department, testified that he did not find any fingerprints in the passenger compartment but located a bloodstain on the passenger seat. Stockwell testified that this stain was consistent with a mixture of the victim's blood and defendant's blood.

On September 10, 1991, Thomas Bradford, a detective with the San Bernardino County Sheriff's Department, together with defendant's parole officer, Steven Slaten, visited defendant at his residence. Bradford testified that he took possession of the clothes defendant was wearing, including Rustler brand blue jeans with a 33-inch waist and a 30-inch length, and a blue T-shirt.

On January 11, 1992, Curtis Edwards and his brother found the victim's wallet in a mine shaft while the two men were prospecting in the Mojave Desert. Edwards testified that the wallet did not contain any cash. He delivered it to the sheriff's department. On January 18, the Edwards brothers led Detective Bradford to the mine shaft. Bradford testified that he found a pair of Rustler brand blue jeans, with a 33-inch waist and a 30-inch length, and a blue T-shirt in the mine shaft, which was located 2.2 miles from defendant's residence.

Stockwell analyzed bloodstains found on the pair of jeans and on a piece of tissue paper found in the mine shaft. He testified that a stain "just above or right on the right knee" of the jeans was a "saturating" stain, indicating that the "fabric had come in contact with a fair amount of blood that soaked into that knee area." He agreed that such a stain would be formed "if... [the victim's] blood was on the ground and [the person wearing the jeans] put their knee in it." He stated that, due to the passage of time and the conditions in the mine shaft, the blood had degraded, and he obtained results for only two genetic markers, both of which were consistent with the victim's blood. With respect to the tissue paper, Stockwell testified that it was "crumpled," with what appeared to be a contact blood smear, "as if someone was grasping that particular item and the blood from the hand would have bled onto that piece of paper." Stockwell obtained results for three genetic markers from the tissue paper, each of which matched defendant's blood.

e. Defendant's Visit to the Church on Saturday, August 24, 1991

Irma Plate, the minister of the church, testified that she attended a meeting at the church on Saturday, August 24, 1991 (two days prior to the murder). She recalled that, at some point that afternoon, Nina Pittsford, a church member, asked her to speak to a man who had come to the church but was not part of the meeting. The man identified himself as Martin Jennings and stated that his mother had been hospitalized.*fn4 He asked Plate to pray for his mother. Plate invited him to write a prayer request and to place it in the church's "prayer request box," which he did. She testified that the man spoke with her for a moment or two, and then departed from the church.

f. Prior Criminal Conduct

Johnnie C. testified that defendant had robbed and raped her on May 23, 1972, when she was working as a receptionist at the Burns Studio in Boise, Idaho. She recalled that defendant entered the studio at approximately 11:15 a.m., when she was alone in the office, and told her he wanted a photograph of himself to send to his girlfriend. Johnnie testified that defendant left after she scheduled an appointment for him, but he returned five or 10 minutes later and told her she should not call his home, because the portrait was to be a surprise for his family. She recalled that he left again, but returned again five or 10 minutes later, proceeded down the hall toward the studio's workrooms before she was able to return to the receptionist room, and told her he was "going to rob this place." After confirming she was alone, he asked for her purse, which was in the cabinet behind him. She testified that he took six or seven dollars from her purse. When a bell on the front door rang, indicating someone had entered the studio, defendant said, "You better get out there and get rid of them fast or there's going to be a lot of people hurt." As she showed photographic proofs to the customers, she could hear the floor squeak and therefore knew he was standing "right around the corner" watching her.

Johnnie testified that when the customers left, defendant ordered her to return to the workroom and sit on a stool. She saw that he had removed the money from the cash drawer, which was in the same cabinet as her purse, and had marked over his name in the appointment book. She related that he came toward her and placed his hands on her breast and thigh, and she jumped off the stool and told him to leave her alone and to get away. She recalled that he started hitting her in the face with his fist, splitting open her lip, and then knocked her down. She testified that every time she tried to get up, he knocked her down with his fist. He told her, " 'If you don't stop fighting, I'm going to hurt you really bad.' " She therefore "stopped fighting and just laid there crying and looking off." He then raped her. When he started to leave, he said, " 'You better not call the police and you better forget that you ever saw me or else I'll come back and kill you.' " She recalled that he pulled the telephone from the wall and left through the back door. She reported that she suffered bruises on her face and body, and that he "hit me a lot in the abdomen." She did not see a weapon but thought he told her he had one; although she "was convinced that he did," she could not "swear to it."

After pleading guilty to raping Johnnie C., defendant was sentenced to life in prison in Idaho. Upon his release on parole on January 18, 1982, he moved to Apple Valley, California.

Cindy M. testified that defendant robbed and assaulted her on March 29, 1982, when she was working in the office of a solar energy business in Apple Valley. She testified she was alone in the office when defendant walked in at approximately 11:00 a.m. and told her he was waiting for a real estate agent to show him an office. He asked to use the telephone, but when he attempted to place a call, the telephone was not operative. Cindy then walked to another business's office to contact the telephone company. She recalled that when she returned to her office, defendant inquired whether he could remain there because it was cold and windy outside. She agreed, and he remained in the office until noon, when a friend arrived to go to lunch and Cindy asked defendant to leave.

Soon after Cindy returned to her office at approximately 1:30 p.m., defendant again appeared and inquired whether he could wait in her office. At approximately 1:45 p.m., Cindy walked toward the back of her office to obtain advertising mailers to address, and when she turned around, defendant was standing immediately in front of her. She testified that he "put [a knife] right to my throat" and told her to put down the mailers. He pointed to her purse and asked whether it was hers, and she confirmed it was. He then turned her around so she was facing the door of the bathroom in her office. She recalled that he handed her the purse and told her to give him her money. After she took her wallet out of the purse and gave him the cash, he told her to empty her purse onto the floor, which she did. When asked whether there was any other money, she told him there was cash in a box in a desk drawer, but he did not move toward that location. Instead, he continued to hold the knife to her throat and moved her into the bathroom. Then he lowered the knife, told her to remove her clothes, and came closer to her. Cindy testified that she "grabbed his hand with the knife in it and I just... pushed it towards his... body. [¶] And we fought and struggled and then he just started hitting me and he stabbed me, and I went down and he grabbed my hair and he kneed me under the chin, and then we struggled a bit more and he said, 'Try that again, I'll kill you.' " When he came near her again, she "screamed 'No' and pushed and ran out" the bathroom door and through the front door.

Richard Nester was at the front door, about to open it, as Cindy ran from defendant. Cindy recalled telling Nester, "He's got a knife and he's trying to rape me." Nester told her to run, and she escaped to the office of another business. Thereafter, she was treated for a stab wound to the left side of her nose, which went through her nasal passages to the roof of her mouth. She also suffered two black eyes, two fractured teeth, and some bruises.

Richard Nester testified that as he pushed open the front door, Cindy came running from the back of the office, with blood streaming down her face, and screamed at Nester, " 'He's got a knife. He tried to rape me.' " Nester recalled that as he pulled the door closed after Cindy ran out, the person who was following her stuck his right arm out the door and slashed at Nester with a knife as Nester tried to hold the door closed. After five or 10 seconds of struggling to hold the door, Nester ran to the parking lot of a nearby office building and yelled to a man to call the police, but the man drove away. Nester testified that he returned to his vehicle and pursued a person who, having run to a white Datsun truck, drove out of the parking lot ahead of Nester's vehicle. Nester described his pursuit of the Datsun, including his attempt to crowd that vehicle into a guardrail. During the chase, Nester attracted the attention of a sheriff's deputy, who joined the pursuit and subdued the driver of the Datsun. Nester testified that the man in the Datsun was the man whom he encountered in Cindy's office.

Defendant was convicted of robbery and assault with intent to commit rape in connection with his attack upon Cindy M. He was sentenced to 13 years in prison, and was paroled from prison on December 12, 1990.

2. The Defense Case

a. Expert Testimony

Laurence Mueller, an associate professor in the Department of Ecology and Evolutionary Biology at the University of California at Irvine, testified that the databases used by Cellmark Diagnostics, which had analyzed the blood samples (see ante, p. 7), were inadequate for the methods employed by Cellmark. He stated that Cellmark's use of the "product rule" -- which involves multiplying the frequencies with which each particular DNA band or length appears in the population -- is flawed if the populations from which data is collected are heterogenous rather than homogeneous. According to Mueller, forensic calculations should be based upon the numerous subgroups that make up the major population groups, and should not be reached by treating a large group of numerous subgroups as if the group were homogeneous. Mueller advocated use of the "counting method," pursuant to which the entire genetic profile is compared to each genetic profile in the database and only complete matches are included in the calculations of frequency. Mueller also criticized Cellmark's criteria for determining a match, asserted that Cellmark underestimates the frequency of each length, and faulted Cellmark for not including in its analysis what Mueller described as Cellmark's "Oriental" database. By including the "Oriental" database, and by increasing the interval of the lengths that were considered to be matches, Mueller's application of the product rule arrived at a frequency of defendant's DNA match of one in 3.6 million. Taking into account Cellmark's error rate -- which Mueller calculated to be one in 139, based upon a false positive result from a proficiency test in 1988 and a second false positive from such a test in 1989 -- and using the "counting method," Mueller calculated the frequency of defendant's DNA to be one in 185 or less.

b. Defendant's Testimony

Defendant testified that in 1991, he and his stepfather, Art Jennings, lived in two trailers, north of Apple Valley, supporting themselves by collecting recyclable materials. His mother lived out of state, and her health had been deteriorating due to "a peritoneal infection." She passed away on October 25, 1991.

Defendant related that he learned about the Church of Religious Science while imprisoned in Idaho, and had visited the church in Apple Valley in 1982, when its minister was John Dennis. He recalled visiting the church again on August 24, 1991, to see Reverend Dennis, when he learned that Reverend Plate was the new minister. He explained that he introduced himself as his half brother, Martin Jennings,*fn5 because defendant did not have telephone service and the only telephone number he knew was Martin Jennings's number. He confirmed that he spoke to Reverend Plate about his mother's condition and completed a prayer request, but in contrast to Plate's testimony and the rebuttal testimony of Nina Pittsford, he also testified that he requested, in the presence of Plate and Pittsford, to use the telephone, and that he entered the minister's office and made a call.*fn6 Defendant testified that he then walked from the church to the Lucky store in Apple Valley, but Art was not there. Defendant then walked to an area containing service stations where he and Art routinely collected recyclable materials, but Art was not there, so he walked home, arriving sometime between 3:00 p.m. and 5:00 p.m.

Defendant testified that on August 26, the day of the crimes, he and Art worked at home until 9:00 or 10:00 a.m., then drove to a bank, a construction supply store, and a Smart & Final store, where Art purchased chewing tobacco. Defendant initially testified that when he and Art left Smart & Final at approximately 1:30 p.m., they went on the first "run," collecting recyclable materials, finishing that run at approximately 3:00 p.m. When asked whether he went "anywhere near" the church on August 26, he provided a revised account of his day. He testified that the closest he came to the church was the CC Market, which was approximately one block east of the Lucky store in Apple Valley. He stated that he was at the Lucky store at approximately 11:00 a.m. and walked to the CC Market a few minutes later to purchase a carton of cigarettes. He recalled that when he returned to the Lucky store, he could not find Art. He testified that he then walked to the area containing the service stations where he and Art usually collected recyclable materials, but upon not finding Art there, he walked seven or eight miles back to his residence, remaining there until 5:00 or 6:00 p.m., and then walked to visit a nearby family.*fn7

With respect to the healing injuries on his right hand, which were photographed on September 10, 1991, defendant testified that these occurred on August 22, 1991, when he was collecting recyclable materials from dumpsters. He stated that although he was left-handed, he used both hands when recycling, and that he suffered cuts two or three times a week.

Defendant also testified regarding the mine shaft in which the victim's wallet was found. He recalled that on August 16, 1991, he and Art dumped 10 to 15 loads of nonrecyclable "junk" into the mine shaft in which the victim's wallet was found, but he claimed the jeans and the T-shirt found in the mine shaft were not his clothes. He stated that the jeans he was wearing on September 10, 1991, which were the same brand and size as the jeans recovered from the mine shaft, were Art's jeans, which he was wearing because he planned to launder his own work pants.

The prosecutor showed defendant a photograph of the inside of defendant's trailer, taken on September 10, 1991. Defendant confirmed that a clean pair of jeans and a blue T-shirt visible in the photograph were his clothes. He also confirmed that seven or eight pairs of clean pants were visible on hangers in the photograph, and that clothing in a bucket on the floor was the laundry he was collecting to wash on September 10. He explained that he was wearing Art's jeans that day because all of his work clothes were dirty, and that not all of his jeans were work clothes.

The prosecutor also questioned defendant concerning his prior crimes. Defendant admitted he had robbed and raped Johnnie C. but denied taking her purse, and claimed he hit her only once, did not hit her hard, and did not knock her down. Defendant denied robbing and assaulting Cindy M. He admitted visiting her office to use the telephone in the morning on the day of her assault, but claimed he was in the parking lot in the afternoon when he heard a scream. He testified that he then drove away because he was a parolee, and "the next thing I remember I was up on Apple Valley Road and... Nester's truck hit the tailgate of my pick-up."

3. Rebuttal

Nina Pittsford testified concerning defendant's visit to the church on August 24, 1991. She recalled that defendant told her his mother was hospitalized due to a heart attack. Pittsford stated she did not "feel right" about defendant, and decided to refer him to Plate, the new minister, and to remain near them. She testified that defendant did not enter the minister's office, and she did not hear him ask to use the telephone.

B. Penalty Phase Evidence

1. Prosecution Evidence

Bunny Lynn Miles testified that she received obscene telephone calls from defendant in October and December 1989. When she terminated his calls, he placed additional calls and made threatening statements concerning her daughter, who was 10 years of age. After one of his calls was traced to Art Jennings's telephone, Miles identified defendant's voice at a parole revocation hearing.

Laurel R. testified that on June 13, 1972, when she was 12 years of age, her mother, Dinah J., gave defendant permission to use the telephone at the family home in Boise, Idaho. After defendant left, Laurel noticed that he drove by the house two or three times. Thereafter, she heard her mother screaming for help, and then observed defendant holding a gun to her mother's back. Defendant told Laurel and four other children that if they moved, he would shoot them. Her mother offered to leave the house and cash a check for him in the amount of $100. He agreed, and when he left the house with Laurel's mother, he told the children that the house was being watched and that if they moved, he would shoot them and their mother.

Dinah J. testified that after she allowed defendant to use the telephone, he returned and asked to use her telephone again, and as he followed her inside to make a call, she saw he had a gun. She recounted the events as to which Laurel R. testified, and also described accompanying defendant to a grocery store, where she obtained cash for him. Dinah testified that defendant then drove her to an isolated area, raped her twice, and forced her to orally copulate him. After resisting, she acquiesced when he discharged his firearm in front of her face.

Monica DiVincenzo, the daughter of Gail Johnson, the homicide victim, identified family members who were in photographs found inside the victim's wallet. She testified that she had visited her mother every day, and that her own daughter usually stayed with Johnson on Saturday nights and accompanied her to church on Sundays.

2. Defense Evidence

Defendant's maternal aunt, Bessie Killebrew, testified that defendant's mother, Pearl, ran away from home at the approximate age of 15 years, and initially was placed in a "girls' home" and later in a mental institution. Subsequently, Pearl and Ray Foster had 11 children. Killebrew testified that the Foster family lived in poverty, and she described Ray Foster's discipline of the children, employing a belt, as "a little harsh." She stated that Ray Foster left the family in 1954, after the eldest daughter, who was then 12 years of age, accused him of molesting her. Killebrew recalled that Pearl and her children left Idaho with Art Jennings in 1955, and that the children were made wards of the State of Nebraska in 1957.

Art Jennings confirmed that he drove with Pearl and her children to Nebraska, but he exhibited difficulty in recalling the names and the number of her children. He denied ever disciplining defendant or any of the other Foster children. He testified that Pearl told him that her daughter Helen had died when her son Larry rolled onto Helen and suffocated her during the night. He stated that the Foster children were removed from Pearl's custody while Jennings was in jail, and that the Nebraska authorities would not tell him or Pearl where the children were being kept.

Four of defendant's siblings testified concerning their childhood. Larry testified that Pearl and Art beat the children, sometimes while the children were tied up, and forced them to steal. He recalled that the family traveled from state to state, living in Art's vehicle and harvesting crops. He testified that Art killed Larry's sister Helen in the vehicle by smothering her. In 1957, the children were taken by the State of Nebraska and placed in Whitehall Home for Children. Larry stated that a housemother at Whitehall taught both defendant and him about sex, instructing them that "you got to hit them in the mouth before you do anything or they don't like it." He testified that he and defendant were transferred to a state mental institution, where they were beaten and sexually abused and drugs were administered, as were electroshock treatments and "hydrotherapy," which involved transferring the subject from hot water to ice water and back again. Defendant's sister Wilma provided similar testimony concerning their time with Art and Pearl and at Whitehall, and also testified that Pearl accused defendant of smothering Helen. Another sibling, Steven, corroborated the foregoing testimony and also recounted that "the first sexual experiences were the girls with Art and the boys with mom." The eldest daughter, who ran away before Art joined the family, testified that her father molested her, with Pearl's knowledge, and that Pearl blamed the daughter for the molestation.

Defendant provided similar descriptions of his childhood and additional details about his life. Before being sent to Whitehall, he had attended school for a total of five months. At Whitehall, at 10 years of age, he was placed in first grade, remaining at that level for two years. During his third year at Whitehall, he attended eighth grade. He testified he was beaten at Whitehall and ran away on several occasions in an attempt to find his family. He recalled that, at 12 years of age, he was accused of attempting to molest a housemother and was sent to a mental hospital for more than a year, where he received psychotropic medication, hydrotherapy, and electroshock treatment. Defendant also described his criminal history, which encompassed being kept in custody for all but approximately two and one-half years of his adult life. During his time in prison, he earned a high school equivalency degree, was trained as a dental assistant, and was an excellent worker.

Four individuals who resided at Whitehall contemporaneously with the Foster children described their experiences. Samuel Zanderholm testified that children were not allowed to visit their siblings on a daily basis but were permitted to interact when they encountered each other during free time. He recalled that some children were spanked with a paddle, and confirmed that "a lot of people" ran away. He was unaware of any sexual abuse. Esther Zanderholm testified that life at Whitehall was very regimented, and recalled that lilac branches were used to whip children. Darlene Cummings testified that Whitehall was a very controlled environment in which residents had no freedom, making it difficult for residents to adjust to life outside of Whitehall. She stated she was hit in the mouth once and her brother was hit with a rubber hose once, but she was unaware of any sexual abuse. She stated that children who returned to Whitehall from the mental institution "acted kind of strange and they even looked different," and she confirmed that it "was pretty commonly known... that if you went to the mental institution, you got the shock treatment." Daryld Schlereth confirmed that spankings and blows to the face were administered by staff at Whitehall. He testified that most of the teachers and house parents were "pretty decent," but he ran away four times because he grew tired of the rules. He stated he had heard children discuss electroshock treatment when they returned from the mental hospital, but he never heard about treatment with ice water. When asked whether he saw defendant get hit, he stated that he thought defendant had been "worked... over a few times like all of us." He testified that defendant bullied other children, and that defendant became more violent and rebellious after returning from the mental hospital.

Dr. Edward Fischer, a psychologist, administered various tests to defendant and conducted interviews concerning his background. He testified that defendant has an IQ of 112, and no indication of organic brain damage. He concluded defendant has an "antisocial personality" disorder, and testified that individuals with this disorder exhibit a low tolerance for frustration and engage in conflict with authority. According to Fischer, such individuals "can't change the way they behave. [¶] Their emotional responses were conditioned by the earlier emotional scenarios that were acted out with their family." He described defendant's family as extremely dysfunctional, with "substantial abuse, incest, thievery." Documents reviewed by Fischer disclose that when defendant was institutionalized in Nebraska, questions were raised concerning whether he could adjust to life outside an institution. According to Fischer, defendant could function well in a highly structured environment such as a prison.

James Park, a former associate prison warden at San Quentin State Prison, addressed the issue of prison security. He stated that an individual sentenced to life imprisonment without the possibility of parole would be placed in the level-four security classification, which is the highest security level for the general prison population. He added that even if such a prisoner eventually is reclassified for level-three confinement, he or she will be guarded by the same level of perimeter security and gun coverage as a level-four prisoner. He stated that although level-four prisoners may work, go to the exercise yard, and participate in programs such as Alcoholics Anonymous, their schedules are very regimented. He testified that defendant was an excellent worker in prison and, in Park's opinion, would "pay his way" in prison and "contribute to the safe, good operation of a prison."

II. DISCUSSION

A. Pretrial Issues

1. Physical Restraint of Defendant at Trial

At trial, defendant was restrained by a stun belt and leg restraints. He contends these restraints violated his rights of confrontation, due process, a fair trial, the assistance of counsel, and a reliable determination of the issues of guilt and penalty, as well as the presumption of innocence, under the ...


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