Orange County Super. Ct. No. 94ZF 0196
The opinion of the court was delivered by: Kennard, J.
A jury found defendant John Joseph Famalaro guilty of the first degree murder of Denise Huber. (Pen. Code, §§ 187, 189.)*fn1 It found true special circumstance allegations that her murder was committed while defendant was engaged in kidnapping (§ 190.2, former subd. (a)(17)(ii), now § 190.2, subd. (a)(17)(B)) and in the commission or attempted commission of sodomy (§ 190.2, former subd. (a)(17)(iv), now § 190.2, subd. (a)(17)(D)). At the trial's penalty phase, the jury returned a verdict of death. The trial court denied defendant's motion for a new trial (§ 1181) as well as the automatic application to modify the penalty (§ 190.4, subd. (e)), and it sentenced defendant to death. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.
a. The disappearance of Denise Huber: June 1991
On the evening of June 2, 1991, 23-year-old Denise Huber left her parents' home in Newport Beach and drove to Huntington Beach to pick up a friend, Robert Calvert. Denise had two tickets for a popular music concert that night in Inglewood, but her boyfriend, Steven Horrocks, could not accompany her. Horrocks asked his friend Calvert to go with Denise to the concert.
After picking up Calvert, Denise drove to the concert parking lot, where they drank vodka and orange juice before the show. During the concert, they shared a 20-ounce cup of beer. After the concert, Denise and Calvert drove to a restaurant-bar in Long Beach, where Denise had two more glasses of beer. They stayed until closing time, between 1:30 and 2:00 a.m. Denise then drove Calvert home to Huntington Beach, dropping him off at 2:05 a.m.
According to Calvert, Denise did not appear intoxicated when he last saw her. He described her as "attractive" and "very dressed up," wearing a jacket and a dark dress with black stockings and high heels. While he was with Denise, he did not notice her having any problems with the heels of her shoes.
Denise never returned home. The next morning, on June 3, 1991, Denise's mother, Ione Huber, called Tammy Brown, one of Denise's best friends, to ask if she knew where Denise was. Brown made a few phone calls, spoke with Calvert, and decided to drive around to look for Denise's Honda automobile. About 10:00 p.m. that night, Brown spotted the car, which had a flat tire, parked on the shoulder of southbound Highway 73, just before the exit to Newport Beach. Brown telephoned Denise's parents, who drove to the scene and inspected the car. It was unlocked and Denise's keys were not inside.
The flat tire on Denise's car had left skid marks on the freeway. The area where the car had been found was well lit at night and several emergency call boxes were visible nearby. The chain-link fence that bordered the freeway near the car had an opening that led down a gravel slope to an adjacent city street, near gas stations, restaurants, pay telephones, and a hotel.
b. The discovery of Denise's body: July 1994
Over three years later, on the morning of July 13, 1994, Yavapai County (Arizona) Deputy Sheriff Joseph Michael DiGiacomo received a radio call about a possible stolen truck parked outside a house in a small high desert community in Dewey, Arizona. When he arrived at the house, Deputy DiGiacomo found backed into the driveway a 24-foot rental truck with a vehicle identification number that matched a report of a truck stolen from Orange County, California six months earlier.
Deputy DiGiacomo conducted an inventory of the truck's contents in preparation for confiscating the truck and having it towed it away. The truck was locked, but he noticed that a power cord ran into the rear of the truck under the back door. The other end of the cord ran over a fence and into the backyard of the house. Deputy DiGiacomo called a locksmith, who unlocked the padlock on the truck's back door. The truck contained paint cans and painting equipment, and the power cord ran to a running freezer at the back of the truck, which was locked and sealed with masking tape.
Believing he had stumbled onto a mobile drug lab, Deputy DiGiacomo called local narcotics officers to assist him. After the narcotics investigators arrived, the locksmith unlocked the freezer. When they cut through the tape and opened the freezer, it emitted a foul odor. One of the investigators reached into the freezer and felt what he thought was a human shoulder. Deputy DiGiacomo sealed off the truck and called Scott Mascher, Lieutenant Supervisor of the Homicide and Major Crimes unit of the Yavapai County's Sheriff's Department.
Lieutenant Mascher opened the freezer and saw that it contained something wrapped in a black trash bag as well as bodily fluids that had became frozen at the bottom of the freezer. The bag had frost and ice crystals that were consistent with having been in the freezer for a long time. After cutting through three layers of trash bags, Lieutenant Mascher found a naked human body, frozen solid in a fetal position with the hands secured behind the back with metal handcuffs. Finding no identifying information for the body and no signs that the person had been killed in the freezer, Lieutenant Mascher sealed the freezer and the truck and had everything towed to forensic pathologists in Phoenix, Arizona.
c. The examination and identification of the body
Dr. Ann Bucholtz, a medical examiner in Phoenix, conducted the external examination and autopsy of the body. The body and the plastic bags were stuck to the bottom of the freezer in a frozen layer of fluid.
To prevent the loss of any evidence of sexual assault during the thawing, Dr. Bucholtz first collected samples from the body's mouth and from the anal openings, and, after using a hair dryer to thaw portions of the legs, from the vaginal area. The body's head had been wrapped with three white kitchen garbage bags. Grey tape covered the face from the mouth to the upper eyelids. The head had numerous external injuries and the mouth had been plugged with a wadded cloth gag that had fallen out during the thawing. The handcuffs around the wrists were so tight that Dr. Bucholtz could not slip her fingers beneath them, so she removed them with bolt cutters. She then took fingerprints from the hands, which were later matched to fingerprints that had been taken for Denise's California driver's license. Two days later, the body had thawed sufficiently that Dr. Bucholtz was able to collect internal swabs of the vagina and rectum.
Dr. Bucholtz described Denise's skull as "basically shattered." There were numerous curved and oval-shaped fractures and lacerations, and brain tissue was visible through some of them. In some of these indentations were embedded pieces of the white plastic bags that had been wrapped around Denise's head; the pieces matched slit-like tears in the bags. Dr. Bucholtz concluded that the blows to Denise's head had been inflicted after the plastic bags had been put over her head.
Dr. Bucholtz reconstructed the skull, enlisting the help of two doctors who had experience in human bone reconstruction. They concluded that Denise's head had suffered at least 31 separate blows. There was no way to determine how many blows occurred beyond the minimum of 31 because there could have been fractures on top of fractures. Other than the head injuries, Dr. Bucholtz found no signs of external trauma and no signs of defensive wounds. Despite the tightness of the handcuffs, the wrists were not bruised. There was no physical trauma to her vagina or rectum, although Dr. Bucholtz stated that a sexual assault can occur without trauma to those regions.
Dr. Bucholtz determined that Denise's death resulted from blunt force trauma to the head. Because the scalp has many blood vessels, Denise's injuries probably led to profuse bleeding if her heart was still beating at the time of the assault.
d. The searches of defendant's Arizona house and California warehouse
On July 14, 1994, the day after the discovery of the freezer in the rental truck, police officers executed a search warrant at defendant's home in Dewey, Arizona. The home was heavily cluttered with stacks of newspapers, books, decades-old receipts, and boxes neatly organized in stacks; the police collected over 100,000 items from the residence. Two adjacent boxes on a shelf in defendant's garage had the word "Christmas" written in marker ink on the outside and were identified by investigators as boxes 212 and 213.
Box 212 contained a large black garbage bag similar to the ones used to hold the body in the freezer. In the bag were smaller boxes that contained items belonging to Denise, including her wallet, checkbooks, purse, makeup compact, car keys, pen, lipstick, and other items bearing her name, such as her credit cards and driver's license. Box 212 also contained items that Denise was last seen wearing on the night of her disappearance: her jacket, dress, underwear, and high heels. The left shoulder strap of the dress was torn and frayed, but it was still attached to the dress by a thread. The shoes had severe scrapes on the back of both heels, and the tip of one heel had broken off.*fn2 The small box that contained the shoes, the keys, wallet, and checkbook displayed bloodstains that had grown moldy and had a strong, foul odor. Box 212 also contained a bloodstained hammer, a bloodstained pair of men's jeans, a bloodstained sweatshirt, dried, blood-soaked rags, and a pair of surgical gloves turned inside out.
Box 213 had bloodstained flaps and contained the empty box for the handcuffs, a roll of duct tape, a bloodstained nail puller, more bloody rags, and a white plastic garbage bag similar to the bags that covered Denise's head. Inside the bag was a grey tarp that was covered in dried blood. The roll of duct tape was the same kind of tape that had been used to cover Denise's face, and the end of the tape matched the tearing on a piece of tape found with the body.
In another corner of the garage was a box that contained another bloodstained tarp. Rolled inside the tarp was a bloodstained shirt. Keys to the handcuffs found on Denise's body were found in one of defendant's desk drawers. The key to the freezer was discovered inside the rental truck. Police found a receipt for the freezer showing it had been ordered on June 10, 1991, a week after Denise's disappearance, and delivered the next day.
In defendant's house, police discovered several issues of the Orange County Register that featured headlines concerning Denise's disappearance. In addition, one of defendant's videotapes began with a recording of a segment from a television show called Inside Edition that featured a story about Denise's disappearance.
Boxes 212 and 213 had shipping labels addressed to Dragon Fly at a warehouse on Verdugo Drive in Laguna Hills, California. At the time of Denise's disappearance, defendant owned and operated a painting business out of that warehouse, which he used as his living quarters. Steve Parmentier owned an apparel manufacturing business named "Dragon Fly" in units adjacent to defendant's unit at the warehouse. Parmentier recognized the shipping labels on boxes 212 and 213 and the labeling on many of the bloody rags found in those boxes. Parmentier's business generated waste material during the apparel manufacturing process, and he remembered giving defendant these leftover pieces from time to time while they were neighbors.
On July 18, 1994, Laurie Crutchfield, a forensic scientist with the Orange County crime lab, examined a corner of defendant's former warehouse unit where it was suspected that blood evidence had been cleaned away. Presumptive tests for traces of human blood were positive. After removing some of the drywall and wood framing from the warehouse unit, Crutchfield discovered an area of "thick deep maroon color" where the concrete flooring met the wood floorboard. She removed the board so the lab could conduct further testing on it.
e. Other forensic evidence
Mary Hong, a forensic scientist for the Orange County crime lab, conducted polymerase chain reaction (PCR) DNA testing using two genetic markers, the D1S80 and DQ-alpha genes. The tests revealed that the bloodstains from the wood floorboard taken from defendant's former warehouse unit in Orange County, California, the nail puller found in defendant's Arizona home, and many of the other bloodied items recovered from the home could not have come from defendant, but could have come from Denise. No DNA, however, was detected in the bloodstain found on the hammer taken from defendant's home. Most of the blood found on the pair of men's jeans taken from defendant's home was also consistent with Denise's blood, but a few of the stains contained weak indications of genetic markers consistent with defendant's -- likely a result of defendant's skin cells detected on the jeans.
Lisa Arnell, a forensic scientist for the Orange County crime lab, processed the 10 rectal samples that Dr. Bucholtz had taken from Denise's body. To isolate and detect any sperm that might be present in those swabs, Arnell used a chemical and mechanical process to separate any of Denise's cells (nonsperm cell fraction) from any sperm cells (sperm cell fraction). She swabbed the sperm cell fraction from the samples and then wiped the swabs on three microscope slides. To each slide, she added a coloring agent designed to stain sperm cells as a red oval dot. The agent stains sperm cells "differentially," meaning that a sperm cell appears dark red on its tail side, but fades to a light red on its other side. She then examined each slide under a microscope.
When forensic scientist Arnell initially looked at the first two slides, she saw one differentially stained red dot, without a tail, on each slide. She indicated in her notes that she did not think the test was conclusive for any sperm, and she wrote "apparent sperm." In her report, however, she concluded she had detected one sperm cell on each of the first two slides. The third slide was derived from a "rectal aspirate": fluid injected into the anal canal and then removed for collection and testing. On the third slide, she identified four red dots as "apparent sperm," none of which had tails. She explained that the dots on the third slide had "a majority of the characteristics" of sperm, but not to the point where she "felt comfortable" to identify them as sperm.
Arnell acknowledged that the FBI's forensic laboratory's protocol does not consider a stained cell lacking a tail to be a sperm cell, but the Orange County crime lab's protocol permits such a conclusion because sperm tails are fragile and often fall off. Arnell believed this was especially true in this case, given the circumstances in which Denise's body had been stored. She acknowledged that pollen and yeast cells may also take the red stain, but she said that these cells do not stain differentially.
Arnell processed all 10 rectal samples, and she gave the cell fractions to forensic scientist Hong for PCR DNA testing. Hong tested four samples -- the sperm cell fraction and nonsperm cell fraction of a rectal swab, and the sperm cell fraction and nonsperm cell fraction of the "rectal aspirate" (see ante) used to make the third slide reviewed by Arnell. Hong tested the rectal swab samples: The sperm cell fraction generated no result, but the nonsperm cell fraction was consistent with Denise's. Hong tested the rectal aspirate samples: The nonsperm cell fraction generated no result, but the sperm cell fraction was consistent with Denise's and not with defendant's. Hong conceded it was possible a male other than defendant might have been the source of the sperm cell fraction, but she thought it was more likely some of Denise's cells were not successfully removed from the sperm cell fraction, thereby showing up in the DNA test results. Denise's male friends, Calvert and Horrocks, testified that they never had sexual intercourse with her. None of the other vaginal or oral swabs generated any DNA results. In addition, the rectal samples were tested for P30, a protein found in seminal fluid, with negative results.
As to why the DNA test did not confirm the presence of sperm, forensic scientist Arnell stated that it could have been because of degradation or the presence of a low number of sperm cells; the rectum is a particularly hostile environment for sperm because of the bacteria found there. Arnell also noted that the P30 protein degrades relatively faster than the sperm cells, so she would not have expected a positive result. She acknowledged, however, that the freezing process does preserve sperm as well as P30.
Edwin Jones, a criminalist with the Ventura County Sheriff's Department laboratory, examined the same slides that Arnell had examined from the rectal swabs. He agreed with Arnell that two of the slides each showed one sperm, but he disagreed with Arnell's findings on the third slide. He identified five cells as sperm, and not just "apparent sperm." Having conducted thousands of microscopic examinations for sperm during his career, he was certain his opinion was correct.
In an attempt to show that Denise was not forcibly abducted, the defense called Costa Mesa Police Officers Thomas Coute and Burton Santee, who examined the area around Denise's car about one day after her disappearance. They testified that they saw no blood, drag marks, or other signs of a struggle in or around Denise's car. In addition, no trace of blood was found in the white pickup truck used by defendant at the time of Denise's disappearance in California and later found parked at his home in Arizona.
Cynthia Brown, a newspaper carrier, saw a blue Honda car with flashing emergency lights parked on the shoulder of the freeway while she was on her way to pick up newspapers at 2:25 a.m. on June 3, 1991. She saw no one near the car, nor did she see anyone walking on the roadway, or at any of the nearby emergency call boxes.
Defense investigator Beth Goss examined the 64-foot embankment adjacent to where Denise's car had been found and described the slope as steep but manageable on foot. Goss asked a woman fairly close to Denise in height and weight, wearing shoes similar to Denise's shoes, to walk down and back up the embankment. Although the shoes showed damage to the back of the heels, they appeared less damaged than Denise's shoes.
Naurbom Perry, who had hired defendant to paint his house on June 1, 1991, said he saw defendant within hours of Denise's disappearance on June 3, 1991, and noticed no change in his demeanor. But he was unable to reach defendant for the next several days. When he next saw defendant on June 7 or 8, he looked ill and weak. Defendant claimed he had been in bed with pneumonia. The defense introduced records of a Mission Viejo doctor stating that defendant sought medical attention for his illness on June 5, 1991. He had a temperature of 102 degrees and reported that he was under stress, had a sore throat, and felt dizzy, feverish, and weak.
The parties stipulated that Denise's blood-alcohol level would have been between .08 percent and .11 percent at 2:15 a.m. on the night she disappeared, and that a person is considered impaired at .08 percent.
Two defense experts -- Charles Sims, a pathologist at Century City Hospital, and William Collier, a criminalist, consulting forensic scientist, and the former director of a crime laboratory in Phoenix, Arizona -- both testified they could not conclusively determine the presence of sperm in any of the slides examined by prosecution experts Arnell and Jones. They based their conclusion in part on the lack of visible tails. According to Sims, the freezing and thawing process could have created irregular cells, and Collier believed the cells' shapes were not consistent with sperm. Sims, however, had never before testified as an expert witness in a criminal case and conceded that forensic pathologists are best qualified to determine the presence of sperm. Collier admitted that he had not been proficiency tested on sperm identification in over 20 years.
a. Defendant's prior violent offenses
The prosecution presented evidence from two of defendant's ex-girlfriends concerning incidents in which defendant forcibly handcuffed them.
In 1987, defendant was dating Cheryl W. They took a trip to New York City, where they stayed in a hotel room facing Times Square. One morning, as they were play-fighting in bed, defendant handcuffed Cheryl by both wrists to a bar across the window. Defendant then pulled off her nightgown, opened the curtains on the window, walked out of the hotel room laughing, and left her there naked for several hours. When defendant returned and released her handcuffs, he was still laughing. Cheryl was traumatized and could not speak; when she rejected defendant's attempts to become amorous, he appeared to realize that she was upset and tried to calm her down. Cheryl decided to "play along" with defendant for the remainder of the trip so she could get back to California safely. Cheryl ended the relationship after they returned to California, but in 1991 she resumed their relationship, and they remained friends even after defendant moved to Arizona.
Cheryl denied she had been handcuffed consensually as part of consensual sex with defendant, despite photographs taken of her wearing handcuffs in the hotel room that morning. One photograph showed her smiling and handcuffed naked to the hotel window with the curtains open, and a second photograph showed her smiling and naked while her handcuffed hands fondled defendant's penis. She acknowledged that the photographs must have been taken that morning, but she did not remember them being taken, claiming to have "blockages" in her memory "because of the trauma." As a result of the incident, Cheryl has been unable to have a relationship with a man because she has found it difficult to "trust or open up."
Nancy R. had been dating defendant for about a year when, in March or April of 1989, she stopped by his home in Lake Forest, California. After they kissed for a time in his bedroom, Nancy said she was in a hurry and had to leave. Defendant, however, pushed her onto the bed, causing her back, shoulder, and head to hit a bookcase. When Nancy again said she had to go, he placed the full weight of his body on top of her. Nancy then tried to struggle with him. During the 10-to-15-minute struggle, defendant pried her legs apart and unzipped her shorts. He then sat on her chest, pinned her arms down with his knees, raised her arms above her head, and handcuffed her. Nancy assumed the handcuffs came from defendant's bedpost because he normally kept a pair hanging there. Defendant had never used handcuffs in her previous sexual encounters with him, and she became frightened and angry. Defendant undid his pants, pulled Nancy's shorts down, and gave her an intense stare and a look she had never seen before. When she began to cry and threatened to make a report of date rape to the police, defendant jumped off her, refastened his pants, and uncuffed her. As he left the room, defendant called her a "bitch" and yelled, "you are the one that brought this on."
The incident left Nancy's wrists scraped and raw. She did not see defendant for three or four months, but they eventually reconciled. Defendant later told Nancy that the handcuffing was just a mature sex game that she did not understand, and he had not expected her to react as she did. He never again tried to use handcuffs on her. Nancy and defendant became engaged in early 1991, but she ended the engagement in June 1991.
b. Victim impact testimony
Denise's parents, Ione and Dennis Huber, testified their lives were "turned upside down" by their daughter's sudden disappearance. They both remarked that words alone could not adequately describe the three years of "not knowing" or their grief after learning she was dead.
Ione was frantic when Denise failed to come home that night; after discovering Denise's car, she felt as if she had been kicked in the stomach. She could not eat or sleep for several days. To try to find Denise, the Hubers sent fliers to businesses and newspapers across the country, and they did numerous television interviews. Four months after Denise's disappearance, Ione returned to work, but only on a part-time basis. The holiday seasons were painful because Denise was not there.
Ione missed doing many of the things she and Denise had done together, such as going out to lunch, going to the beach or the pool, and cooking. Denise was a sensitive, caring, and compassionate person who had brought great joy to Ione. After Denise's disappearance, Ione underwent several surgeries, including cancer surgery; she believed the stress from the loss contributed to her ill health.
During the years Denise was missing, her father Dennis had a sick feeling that never got better. He felt even sicker whenever there was news that a body or human bones had been found. On one occasion, the Hubers took a trip to Palm Springs to try to relax, but as soon as they arrived they heard news of a body discovered in the desert. They decided to drive home because they thought that it would be better to be there if the remains were those of Denise. The next day, they learned that the body was not Denise's. Dennis was scheduled to open his own business on the day of Denise's disappearance, but he never did because he could not think about business while she was missing.
Dennis missed the Friday morning breakfasts he had every week with Denise. Denise was a happy person and had the ability to cheer him up, even on bad days. A day or two before she disappeared, Denise left a note on his computer screen at home, signed with a happy face, that said: "Hi, Dad. I love you. Have a great day. Love, Denise." Dennis would not trade that piece of paper for a million dollars. Dennis was suffering from many health problems that he attributed to the stress surrounding Denise's disappearance and her death.
The defense called more than 20 witnesses, including defendant's mother, brother, sister, and niece; neighbors and classmates from his childhood; a woman whom he rescued from a knife-wielding attacker; people who worked with him; some of his friends; and his priest. These witnesses provided a detailed description of defendant's childhood and adult life.
Defendant was born to Ann and Angelo Famalaro in Long Island, New York on June 10, 1957. He was the youngest of three children. When defendant was about a year old, the family moved to Santa Ana, California.
Angelo, an Air Force veteran, was a businessman. Ann, a stay-at-home mother, was temperamental and "the dominant force" in the family. Angelo tolerated her demands and her verbal abuse. The children had a loving relationship with their father, but a more erratic relationship with their mother. Ann frequently invoked religion to justify her behavior and to intimidate others. For instance, when she thought the children had done something wrong, she often told them they were going to hell and she needed to "save" their souls. The children generally coped by following their father's lead -- giving in to their mother's demands to avoid confrontation. Ann controlled what the children wore, selected their classes, rummaged through their belongings, and eavesdropped on their telephone calls.
Ann alienated the family from others in the neighborhood because she was a busybody and a curmudgeon who often became unreasonably upset over minor matters. The neighborhood children never played at the Famalaro home, and the Famalaro children rarely interacted with them. The family regularly attended church but had little or no interaction with fellow church members, who described them as very "focused" and well behaved, with the children staring straight ahead at all times.
Ann kept the family's yard tidy and neat, but the inside of the house was messy because she hoarded stacks of newspapers, magazines, food, laundry, silver, and boxes. Some of her hoarding resulted from her fierce anti-communism: She believed the family ...