Los Angeles County Super. Ct. No. BA077888
The opinion of the court was delivered by: Baxter, J.
A Los Angeles jury found defendant Randy Eugene Garcia guilty of crimes stemming from two home invasions committed the night before Mother's Day, 1993, in the same neighborhood in Torrance. The most serious incident, in which the victims -- a married couple with children -- were home during the burglary, resulted in convictions for the first degree murder of Joseph Finzel (Pen. Code, § 187, subd. (a)),*fn1 and the attempted premeditated murder of his wife, L. (§§ 187, subd. (a), 664.) Related convictions involved burglary (§ 459), robbery (§ 211), attempted forcible rape (§§ 261, subd. (a)(2), 664), and forcible oral copulation (§ 288a, subd. (c)). The jury also sustained special circumstances providing that the Finzel murder occurred in the commission of burglary, robbery, attempted rape, and oral copulation. (§ 190.2, subd. (a)(17).) Additional findings were that defendant was armed with and personally used a handgun (§§ 12022, subd. (a)(1), 12022.5, subd. (a)), and that he personally inflicted great bodily injury on L. (§ 12022.7). In the other incident charged in this case, defendant was convicted of burglarizing the home of a second couple, the Kozaks, who were vacationing out of town at the time. (§ 459.)
After a penalty trial, the jury fixed the penalty at death. The trial court declined to grant a new trial (§ 1179 et seq.), and denied the automatic motion to modify the death verdict (§ 190.4, subd. (e)). The court pronounced a death judgment for the special circumstance murder. Sentence also was imposed and stayed on the non-capital felony counts, including life with the possibility of parole for attempted murder. This appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); § 1239, subd. (b).)
We find no prejudicial error at defendant's trial. The judgment will be affirmed in its entirety.
1. Events Surrounding the Charged Crimes
On May 8, 1993, the day before Mother's Day, defendant and his friend, Edward "Bruce" Pierce, drove in Pierce's car from Portland, Oregon to Torrance, California. In Torrance, they planned to stay with George Aguirre, another friend of defendant's, and to buy marijuana for sale later in Oregon. Pierce testified at trial that the trio sampled "Mexican weed" in Aguirre's apartment that day. Aguirre confirmed this account.
According to Pierce and Aguirre, defendant announced between 9:00 and 10:00 that night that he wanted to do "a job," meaning he wanted to steal something. Aguirre offered to drive defendant, using Pierce's car. Defendant put on a black turtleneck shirt, and wore jeans and black Nike shoes. He also carried a fanny pack around his waist. The fanny pack contained a small chrome handgun and a pair of black gloves.
A short time later, Aguirre dropped defendant off about one mile from the apartment. Aguirre waited 15 minutes and then drove home. On the way, he saw defendant walking on the street, carrying something he did not have before -- a multicolored leather-like bag that closed with a rope. Defendant entered the car and said the bag held "a bunch of change."
Aguirre drove several blocks and defendant exited the car again, leaving the bag behind. This time, he jumped over a wall at a dead end on 180th Street.
Aguirre went home with an uneasy feeling, arriving no more than one hour after he left with defendant. There, Aguirre spoke with Pierce about "cops all around." Pierce said he would leave for Oregon alone if defendant did not return to the apartment by 3:30 a.m.
Prosecution evidence established that between the time defendant first left the car and the time Aguirre saw him carrying the multicolored bag of "change," defendant burglarized a nearby home belonging to Archie and Winona Kozak. The Kozaks had locked the house and left for Las Vegas on May 6, 1993. Mrs. Kozak testified that when they returned late on May 9, Mother's Day, the house had been ransacked. The police found no fingerprints -- only glove marks and fabric particles.
Various items were missing, including jewelry, collectable coins, and a multicolored bag that pulled closed on top. Mrs. Kozak identified these items at trial. As we discuss below, they were found, along with other stolen property, in defendant's possession in Oregon, where he was arrested a few days after the charged crimes.
Around 11:15 p.m. on May 8, 1993, L. was in the master bedroom of her home on 180th Street, not far from where Aguirre last saw defendant exit the car and jump over a wall. L. was dozing in bed, after having turned the lights off and left the bedroom television set on. The window blinds were closed. L. testified, however, that anyone standing in the backyard could see into the bedroom through gaps in the blinds.
L.'s husband, Joseph, was socializing elsewhere with a friend and was expected to return home soon. The only other person in the house was the couple's infant daughter, Brinlee, who was sleeping in a bassinet at the foot of the bed near L. Joseph's son from a prior marriage, Garrett, lived with the Finzels, but was spending time elsewhere with his mother.
Awakened by a banging noise, and sensing movement nearby, L. looked up and saw defendant standing in the doorway, holding a small silver gun. She positively identified him at trial. His face was clearly visible in the available light.
Without warning, defendant grabbed the bassinet and told L. not to scream because he had an armed accomplice outside, and because he would "hurt the baby." Defendant wore dark clothes, black gloves, and a fanny pack. He carried a pack of Camel cigarettes in his pants pocket and smelled of cigarette smoke.*fn2
In the first of two such episodes, defendant forced L. to engage in sex acts. He made her remove her shorts and orally copulate him while she sat on the bed. He then told her to stand and insert his penis into her vagina from behind. She tried to comply but could not do so, because he did not have an erection. When he asked if "it [was] in," she said "yes."
Next, defendant grabbed L.'s arm and took her into the hallway. There, he opened the door of Garrett's bedroom, and was told by L. that the room belonged to her stepson, who was not home. When they returned to the master bedroom, defendant told L. to remove her shirt and expose her "titties." He attempted a second act of sexual intercourse from behind. As before, L. pretended to place his penis, which was not erect, into her vagina. Throughout the ordeal, defendant either held the gun in his hand or placed it visibly within his reach on the bed.
According to L., subsequent events became more frenetic and deadly. Defendant demanded access to the "money," "jewelry," "safe," and "gun." L. said there was no money or safe, but told him where to find her gold watch and jewelry. She also said that her wallet and credit cards were located in Brinlee's diaper bag. Though L. sought to prevent defendant from finding her husband's .357 Magnum handgun, and falsely said it was not on the premises, defendant nonetheless found the weapon in a bedroom drawer. At that point, he stuffed a sock into L.'s mouth and tied a pillowcase around the gag. He also used a pair of nylons to bind her wrists and feet together behind her back.
Defendant then shifted his focus and asked L. about her husband's whereabouts. L. indicated (once her gag was loosened) that Joseph was at a local restaurant. Defendant partially closed the bedroom door so that only a five-inch opening remained. The next thing L. heard was Joseph's truck outside the house. She estimated the time at 11:30 p.m.
Once inside, Joseph opened the bedroom door, turned on the light, and looked at L. lying bound and nude on the bed facing him. Defendant stood slightly behind her, apparently holding the .357 Magnum pistol in his hand. Suddenly, Joseph and L. each screamed, followed by gunfire. L. saw blood flowing from Joseph's abdomen, and then felt pain in her stomach and arm. She too had been shot. Defendant fled the room as L. begged him not to "leave us like this." Brinlee cried in her bassinet. L. testified that defendant shot across and over the baby to hit Joseph.
Defendant stayed in the Finzel home for two or three hours after the shootings. He reentered the master bedroom three times. First, he disabled the phone when L. tried to dial 911. The second time, as she pretended to be dead, he tapped her on the head. During his third visit, he raised and then dropped L.'s arm, saying "she's dead." Meanwhile, according to L., she pressed down on her bullet wounds to slow the bleeding. The bed -- a waterbed -- was leaking. She moved her head to prevent water from entering her nose.
By the time defendant left the house, L. had loosened the nylon wrist ties and pulled the gag away from her face. Dizzy and weak, she crawled over her husband, and stumbled through the house and yard to the neighbor's porch. She knocked on the door and collapsed.
The neighbors, the Nevilles, testified that they heard noises, possibly gunshots, around 11:00 p.m., and found L., nude and bleeding, on their porch around 2:00 a.m. She told them about the robbery and shooting, and about Brinlee and Joseph next door. The Nevilles called 911.
When police and paramedics arrived a short time later, L. was in shock and near death. She was rushed to the hospital. At the Finzel home, Joseph was found dead on the bedroom floor, his body partially blocking the door. His pants pockets had been turned inside out. Brinlee was unharmed. Her bassinet was resting on Joseph's leg, between his feet.
4. Investigation of the Murder Scene
The Finzels' home, which was neat before the crimes, was in disarray afterwards. Torrance police officers found cabinets, closets, and drawers open in various rooms. L.'s purse was on the living room floor, its contents strewn nearby. The back door stood ajar. A diaper bag was in the backyard. Gates in a side yard were open. One set of car keys was found on the ground near the garage. Another set was in the ignition of the Finzels' Corvette. The car battery was dead.
The investigation disclosed that a bullet fired from inside the master bedroom passed through the door and became lodged in a living room cabinet. Two expended bullets rested on or near the bed. In the hallway near the master bedroom, the police tested for fingerprints, and found only glove marks. There were two Camel cigarette butts -- one on the back porch, and the other at the rear of the property, near footprints and crushed weeds.
Property missing from the Finzels' home included L.'s gold watch and other jewelry, and Joseph's truck. Police later found the truck parked near Aguirre's apartment, where defendant was staying at the time. Credit cards belonging to the Finzels were found inside the truck. Police retrieved a Camel cigarette butt from beneath the driver's door.
5. Defendant's Return to Aguirre's Apartment
Between 3:00 a.m. and 3:30 a.m., Aguirre and Pierce heard defendant enter the apartment. Defendant said he was "going straight to hell." Aguirre recalled defendant also saying that he "shot two people," while Pierce thought that the word "killed" might have been used. Defendant displayed a .357 Magnum handgun, attributed it to his "second job," and expelled empty casings onto the floor. He was carrying a woman's purse and another cloth bag. He dumped jewelry from the purse onto a coffee table.
Defendant and Pierce left for Oregon the same night, leaving by 4:00 a.m. Aguirre testified that he declined defendant's request to dispose of the .357 Magnum handgun. Hence, defendant included the gun in the items he packed for the trip. He also took the woman's purse, jewelry, and the .25-caliber gun that he carried in his fanny pack. Pierce testified that defendant tossed the purse onto a Los Angeles freeway. He kept the other items. They included a gold watch, which defendant put in the glove compartment of Pierce's car.
6. Aguirre's Cooperation with Police
While watching a television newscast on May 9, Aguirre realized that defendant might be linked to the Finzel crimes. He contacted the Torrance Police, and began cooperating with the lead investigators, Detectives Mason and Nemeth. Though reluctant to admit he had driven defendant around town the night of the crimes, Aguirre gave police all relevant information and physical evidence in his possession. Such items consisted of those left in Aguirre's apartment by defendant when he departed for Oregon, including bullets and expended casings, black clothing items (turtleneck shirt, gloves, and Nike shoes), and Camel cigarettes.
7. Defendant's Return to Oregon
While driving with Pierce to Oregon in the early morning hours of May 9, defendant described the shootings that he had admitted before to both Pierce and Aguirre. Defendant said he shot the male victim because he saw defendant's face, and that he shot the female victim because she "freak[ed] out." In Oregon, defendant gave the .357 Magnum handgun to Pierce. Pierce gave it to his mother.
On May 10, defendant contacted his friend, Antoin Jackson, in Oregon, and stayed overnight at Jackson's house. On May 11, defendant communicated with someone by page and phone. Afterwards, he seemed nervous, and made incriminating statements to Jackson. Defendant said he was going "to hell" and to prison for "life" because he had "killed someone." The victims were a "bitch" who "scream[ed] too loud", and a man who "walked in" while defendant was burglarizing a house. Defendant told Jackson that he stayed in that house for "a few hours," and was "real high" at the time. Defendant identified the murder weapon as the .357 Magnum handgun he gave to Pierce, and admitted trying to steal a car during the crime.
Meanwhile, on May 11, sheriff's detectives in Washington County, Oregon learned that an arrest warrant had issued in the present case, and that the Torrance Police sought help in apprehending defendant. Hence, that same day, the Oregon detectives contacted Pierce, who cooperated in the investigation. Pierce disclosed defendant's incriminating statements. Pierce also helped retrieve the gold watch and the .357 Magnum handgun he had obtained from defendant. All such evidence was given to the lead investigators in Torrance.
Through Pierce, Oregon detectives contacted defendant's friend, Suely Caramelo. She gave them items she had received from defendant after his Torrance trip -- items that were given, in turn, to the Torrance Police. They included a woman's gold and diamond ring and a multicolored cloth bag with coins inside. Caramelo also said that defendant was at Jackson's house.
Defendant was arrested a short time later at Jackson's house. Items found in his possession included a fanny pack with a small chrome pistol inside, and a bag of jewelry. Defendant was wearing a gold and diamond ring at the time.
After being told about the murder warrant in Torrance, and read his Miranda rights (see Miranda v. Arizona (1966) 384 U.S. 436), defendant remarked that he was the "wrong guy," that he became involved with the "wrong people," and that they had "threatened" him. During the drive to the sheriff's station, defendant made similar statements that "four Mexican gang members" forced him to "take the gun and jewelry" near the spot where "two people" were killed. Defendant denied knowing anything about the victims, including gender, and could not explain how Pierce and Aguirre might have acquired such information. When told that the female victim had survived and identified him as the lone intruder, defendant turned pale, breathed deeply, and said, "Shit."
Property recovered in Oregon had been stolen not only during the Kozak burglary, as noted above, but also during the capital crime. The ring defendant wore when arrested was Joseph Finzel's wedding ring. It was on Joseph's finger when he was shot. The ring defendant gave Caramelo was L.'s. L. identified other items seized by arresting officers, including the gold watch that defendant left in Pierce's car.
Based on ballistics tests, a criminalist with the Los Angeles County Sherriff's Department determined that the expended casings found in Aguirre's apartment were fired from the .357 Magnum handgun retrieved from Pierce in Oregon. The witness reached a similar conclusion as to the expended bullets found in the Finzels' bedroom.
Dr. Carlos Donayre testified that emergency surgery was required to save L.'s life after the shooting. One bullet entered the side of her body, penetrated several vital organs, and exited through the arm. Another bullet entered and exited the back, grazing the spine. Because L.'s weak state prevented the use of general anesthesia, she received only mild narcotics during the three-hour procedure. L. confirmed that she "wasn't numb" on the operating table, and that the pain of surgery seemed "worse than being shot."
Dr. Susan Selser, the medical examiner who performed the autopsy on Joseph, testified that he sustained two gunshot wounds, each of which entered the chest and exited through the back. One struck the lung and aorta, and the other pierced the heart. Both were fatal.
Defendant presented no evidence at the guilt phase.
II. PENALTY EVIDENCE A. Prosecution Case 1. Prior Felony Conviction
In 1989, before he committed the capital crime, defendant was convicted in Oregon as an adult of a felony, theft, also known as receiving stolen property.
2. Circumstances of the Capital Crime
George Aguirre testified that one month before defendant and Pierce drove to Torrance on May 8, 1993, when the capital crime occurred, defendant visited Aguirre there alone. While smoking marijuana one night, defendant said, "I wonder what it would be like to rape a woman at gunpoint." He seemed serious at the time. Nothing more on the topic was said.
The only other prosecution witness at the penalty phase was L., who described the effects of the capital crime, as follows: When the murder occurred, her daughter, Brinlee, was about two months old, and Joseph's son, Garrett, was seven years old. Joseph was 29 years old when he died. He was an only child. His death devastated his parents.*fn3
L. and Joseph met in March 1990, fell deeply in love, and married in May 1992. They enjoyed outdoor activities together. To prepare for marriage, they attended an "engagement weekend" with other couples. At trial, L. read a letter that Joseph wrote during that event.
L. testified that she and Joseph enjoyed spending time with Garrett. Together, the couple sometimes walked Garrett to and from school. Garrett played a key role in their wedding ceremony. L. had many fond memories of that day. Wedding photos were introduced at trial.
According to L., she and Joseph planned to have more children and to move to the country where they could ride horses and motorcycles. Meanwhile, Joseph worked for a computer company, and L. was a homemaker. They ran a small business bringing pets and a pony to children's birthday parties. Photographs of these events were introduced.
L. described the support Joseph provided during her pregnancy, including his presence in the delivery room when Brinlee was born. The umbilical cord was wrapped around Brinlee's neck, requiring medical treatment. Joseph surprised L. afterwards with 100 red roses. One month later, the family, including Brinlee, went camping together. Photos of family trips and outings were introduced.
L. recalled the terror she felt during the capital crime. While hospitalized afterwards, she had tubes in her throat and could communicate only by writing notes, She read the notes in court.
After the murder, L. and Garrett became estranged. L. has no permanent home and lives with different relatives. Medication and therapy have not eased her fear, guilt, and grief.
L. testified that she visits Joseph's grave twice a week. The cemetery is near other special places, such as the hotel where the couple spent their wedding night. She described markings on the headstone, as well as the various mementos that were buried with Joseph or placed on his grave later.
Following L.'s testimony, the jury watched an 11-minute 45-second videotape. The videotape shows L. from the shoulders up, talking in front of a plain gray backdrop. Her voice also is heard describing video clips and still photographs that appear on the screen. Both the narration and images concern the joy L. and Joseph shared as a couple (e.g., getting married, raising children, relaxing at home, and enjoying the outdoors), and the loss she experienced from his death (e.g., emotional turmoil, estrangement from Garrett, and a gravesite visit with Brinlee on Christmas Day).
The videotape departs from the foregoing format in only two respects. First, at the beginning, white lettering silently appears on a black screen, referring to an "intruder" who entered L. and Joseph's home on Mother's Day 1993, and who forever "altered" their lives and the lives of family and friends. Second, at the end of the videotape, a song plays softly in the background for 80 seconds, with lyrics about a "hero [who] goes free" and a "villain [who] goes to jail." More images of the Finzels appear at that time, including one of Joseph as a boy sleeping with a puppy.
Various relatives, friends, juvenile justice officials, and mental health professionals testified on defendant's behalf. He did not take the stand.
Defendant's mother, Suszanne, married Adolpho "Rudy" Garcia when she was 18 years old. Defendant was one of three boys born in fairly quick succession during the marriage. However, defendant and his older brother, Fred Garcia, are not related by blood to Rudy, and were each fathered by different men. Only the youngest boy, Teodi Garcia, is Rudy's biological son. Defendant, who was born in 1970, did not learn this fact until age 13.
By the time defendant started kindergarten, Suszanne and Rudy were divorced. Though Rudy had legal custody of the three children, Suszanne decided to keep them with her. She and the boys moved several times over the next few years, living in Idaho, Texas, Alabama, and Washington. Suszanne had a series of romantic partners during this time, including her second husband, Frank Poleta. Defendant's younger brother, Teodi, testified that Suszanne was a loving mother.
After defendant finished the third grade, Suszanne left the children in Georgia at the home of her first husband, Rudy, who "they thought was their father." They lived with Rudy and his new wife, Cecelia, for two years. Teodi and Fred testified that Cecelia punished all three boys harshly. She made defendant, who wet the bed at night, stand outside wearing his soiled underpants on his head, holding a sign stating that he was a bed wetter. Once, when defendant accidentally hit Cecelia's hand with the car door, she slammed the door on his hand.*fn4
As a fifth or sixth grader, defendant left Rudy's home in Georgia and reunited with his mother, Suszanne. She lived in Oregon and had a new partner, Randy Newton. Suszanne testified that defendant developed learning problems and became disruptive in class. The drug Ritalin eased his hyperkinetic symptoms and improved his school performance.
Before defendant entered the seventh grade, Suszanne met Tim Tugg, who became her third husband. Tim had no interest in raising defendant, Fred, or Teodi, and doted on his own children, including a son, Matthew, whom he had with Suszanne. Suszanne testified that Tim was "physically and emotionally abusive to me and my kids." Tim and Suzanne used marijuana and cocaine at home, and gave drugs to the children. Tim drank alcohol every day. Tim told defendant that Rudy Garcia was not his biological father. That night, defendant stole property and was arrested.
Defendant's biological father, Patrick Grandchampt, testified that he became acquainted with defendant during the capital case. Grandchampt read two letters from defendant seeking to develop a father-son relationship. The witness testified that he cared about defendant, and chose not to ...