(Super. Ct. No. S01CRF0236)
The opinion of the court was delivered by: Duarte , J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Ulysses Roberson was convicted of beating his four-year-old son to death. The People's theory was that defendant led a quasi-polygamist cult. Defendant and one of his wives, Rosemary Judith Olive, are of different races (defendant is Black and Olive is White) and their four-year-old son Alexander Sol "Salaam" Olive, the victim, was mixed race.
The race issue caused defendant significant anger, which he focused on the victim long before the murder, referring to him as a "bad seed" and as "having a demon," among other things. In December 1985 or January 1986, defendant beat the victim to death and disposed of the body; Alexander's body was never found.
Defendant was charged with murder in 2001. The case went to trial in 2009; the jury acquitted defendant of first degree murder, necessarily rejecting alleged torture-murder and race-murder special circumstances (Pen. Code, § 190, subds. (a)(16) & (a)(18)), but convicted him of second degree murder. (Pen. Code, §§ 187, subd. (a), 189.) The trial court sentenced defendant to prison for 15 years to life, and he timely appealed.
On appeal, defendant contends the trial court erred by allowing expert testimony on cult behavior to explain why the witnesses did not promptly report the killing. Defendant further contends the trial court erred by modifying a cautionary instruction on the frailties of eyewitness testimony to apply to defense evidence, which consisted of witnesses who testified they had seen the victim's age-progressed picture and subsequently reported seeing a child resembling that picture.
As we will explain, the expert testimony was not completely lacking in foundation and relevance, nor was it prejudicial. Further, any error was harmless in light of overwhelming evidence of defendant's guilt. Nor was the instruction problematic in the manner briefed by defendant. Accordingly, we shall affirm the judgment.
The pretrial proceedings were protracted, the trial was long, and the evidence was convoluted and bizarre. Although defendant raises fairly narrow claims of error, it is necessary to provide enough factual detail to provide context to assess defendant's claims and to show the overwhelming nature of the evidence. Nonetheless, we omit many facts developed at trial.
We will divide the facts into eight sections. In sections 1-4 we summarize the testimony of four key witnesses, (1) Olive, the victim's mother, (2) Raj Roberson (Raj), defendant's lead wife, (3) Pamalar Lewis (Lewis), a secondary wife, and (4) Joseph Roberson (Uhrtiko), one of defendant's many sons. In section 5 we summarize other prosecution evidence. In section 6 we summarize the challenged expert cult testimony. In section 7 we summarize the defense "sightings" evidence, and in section 8 we discuss the People's rebuttal to that evidence.
Olive, a nurse, was born in 1957. She met defendant--who was using the name "Tony Amos Rich"--on June 14, 1980, when he arrived at her Houston hospital with Raj--who was using the name "Ulia Rich" and was in labor. Defendant claimed to be "a hermetic scientist, a mystic and a psychic" and invited Olive to his home to cast her astrology chart. She was asked to fill out forms detailing her personal history and goals and did so, because "the whole message was that it was to help me better myself and to be more in tune with the cycles of life and make appropriate decisions and empower myself[.]" Olive was given a blue drink and told to take a bath, fell asleep, and awoke to find herself in the midst of intercourse with defendant.
Defendant told Olive they were "connected" and when she told him he had impregnated her, he asked her to move in, which she did. The household included Raj, "the baby Yewaur, three-year-old Urenauld" and "a girl named Traci" (Traci Mills, really Kimberly Gudger). Although Olive had been in school, defendant told her Raj "was pregnant, and that she was working, and that if I needed to take care of my baby, I needed to work." Olive finished her school term and began working full time.
Olive had been close with other family members, but once she moved in with defendant, he turned her against them, saying "my family was going to come against me, try to kill that baby within me because it was partially black . . . and that I couldn't trust them[.]" When her family members came to Houston, defendant placed Olive in an apartment where Gudger also stayed, telling Olive her family was a threat to him. Defendant had taken Olive's possessions and he had control of her car and paychecks.
Olive's family thought she was in a cult and took her to a "deprogrammer" in Nebraska in 1981. She then stayed with her brother, where she gave birth to the victim on May 16, 1981. The deprogrammer warned Olive not to contact defendant, but she wrote to him, and eventually defendant and Raj contacted Olive and took her and the victim to Los Angeles.
Defendant announced that the victim would now be called "Salaam," meaning "peace," which would help the victim avoid trouble, "since he was mixed [race]." The group stayed at a hotel, then went to defendant's mother's house in San Bernardino for a few weeks. Gudger had visited at the hotel, and Urenauld and Yewaur were at the San Bernardino house, along with a woman named Melvina Tolbert, "that Ulysses told me he brought back from Texas to California." The group moved to Venice, where "a girl named Sue from Texas"--apparently Sue Caviness--joined them.
Olive worked two jobs and turned her paychecks over to defendant, because, "I decided that I was going to join this whatever you call it, group, which my son was part of." Later, defendant had houses in Reseda and Fontana, and Olive lived with Lisa Robertson, defendant's daughter (about age 12) and "the babies" (the victim and Uhrtiko). Then everyone lived in Fontana, except Caviness. Defendant again told Olive her family was a threat to him and was "against" her, and against "my son being black[.]" Raj--on defendant's orders--prepared a restraining order for Olive to sign, and because Olive was in "an altered mind state," she made up allegations about her family. To hide Olive and the victim from Olive's family, defendant's mother and her "male companion" "were like my bodyguards[,]" and defendant's mother "made me look different than myself and had dark makeup on to make me look like a black person" and disguised her.*fn1
The group then moved in a motor home to the Bay area, now augmented by Invaka, Raj's newest baby, who was born in the summer of 1982. When they left, Olive did not know where they were going, because defendant "groomed" them not to ask many questions. Defendant stopped in Richmond and told Olive she had a new name, Ruby Roberson, a new social security number, "and that was my drop-off point[,]" "a test to see how well" she could manage in a new city, and she "watched the motor home drive away" with her son in it: She made no protest, but was "blindly obedient to whatever he told me to do."*fn2 She worked at a hospital, but mailed her check to defendant at a post office box: he refused to tell her where he lived, because her family was a threat. Months later, defendant, Raj and "all the children" visited Olive in Oakland. Once while in Oakland, defendant began whipping Olive with a leather belt as she slept, and laughed about it.
By 1984 or the beginning of 1985, defendant lived in Seattle, and Olive visited two houses there. At the "University District" house, defendant lived with the women and children, who came and went between houses, and defendant sometimes lived alone at the "Mercer Island" house. During the summer of 1985, Olive heard Urenauld had left the family. Although Olive hated not having more contact with the victim, defendant wanted her to work in the Bay area, which she did.
Late in the summer of 1985, defendant told Olive to live in Sacramento, and Raj found a house there. At one point, Gudger opened the door to the police, and she "was ostracized, got her head shaven and her hair shaped in the shape of a devil horn and got thrown out of the house" for breaking defendant's rule that the door was never to be opened to the police.*fn3 A week later, Olive was arrested for obstructing an investigation when she refused to open the door to the police, in obedience to defendant's rule.
By October or November of 1985, defendant also had a house at South Lake Tahoe. Defendant generally wanted to have two houses: "He liked to have his own house, and he liked to pretty much dictate what was going to happen at each house" so he could meet "clients" without them knowing he had a group of children.
Once when defendant brought Olive to Sacramento, defendant brought the victim, who Olive found "was kind of weak and quiet and small. Felt very frail to me." The victim's lips were cracked and scabby, and "his entire face was bruised, and especially on the left side by his eye, by his mouth and face."
Olive gave the victim a bath, but he was "withdrawn and quiet[,]" though usually he had "a very bubbly personality." During the bath Olive saw "severe scabs on both his ankles with edema above and below the scabs." When she asked the victim what happened, he said, "'my daddy tied shoestrings, and I was hanging with shoestrings.'" When defendant was asked about this, he told Olive the victim "was a bad seed . . . he was bad for this family. He needed to get out of this family. I needed to find a place for him. He was giving a bad influence. He can't talk right." The latter point referred to the victim's speech pattern, which defendant tried to force the victim to change by denying him food.*fn4
Defendant also said the victim "had a demon, and he had him on the verge of death, and he was getting the demon out of him and the demon was the same demon that the other child had, Urenauld." To get the victim on the verge of death, defendant "hung [the victim] upside down by his ankles and left him there for three days." Olive said she would find a place for the victim, but did not take the victim because she "was mentally incapable" and allowed defendant "to dominate and make a lot of decisions[.]"
The last time Olive saw the victim, he was standing in a corner, where defendant ordered him to stand, sucking his thumb. That would have been on December 19, 1985, the day she started a job at San Francisco General Hospital. The first week of January 1986, defendant visited Olive in San Francisco. Although Olive expected to go to Sacramento to visit the victim, defendant and Felicia Burns (Bradley) took her to a restaurant in Sausalito, where defendant told her he had sent the victim away to a Muslim school "'to teach him how to be black.'" When Olive asked questions, defendant became "extremely forceful and said, 'I am not talking about this.'" They then went to the South Lake Tahoe house, and when Olive again asked about the victim, defendant yelled at her and told her not to bring his name up. This was about January 4, 1986. Defendant "kept saying that people were watching him, and everybody was watching him, and he could hear sounds." He posted people to keep watch, and carried a shotgun or rifle. Previously, he had carried a pistol, and he continued to do so. Olive saw that Invaka had a black eye, and Yewaur was made to stand in a corner in his underwear. On future visits, defendant refused to talk about the victim, and he screamed at Olive when she mentioned the victim to Pamalar Lewis.
On January 18, 1986, defendant called Olive and told her Raj was in labor, and Olive took a bus from San Francisco to assist. Defendant still refused to talk to Olive about the victim, and defendant and Raj confronted Olive about "disobeying repeatedly" by asking about the victim. Defendant told Olive, "'1986 is going to be a new year. I want to get you pregnant right away, and we're going to replace Salaam.'" When Olive persisted, defendant said he would kill her, and began punching her, and kicked her when she was crouched on the floor. Raj, holding her newborn baby, managed to push defendant away from Olive. During the beating, defendant said "that Raj saved my life . . . and I needed to suffer pain, and I needed to be taught how to shut my mouth." Olive tried to walk away but Raj picked her up in a van and brought her back to the house, where Olive was kept on a mattress, weak and in pain, for several days. During this period, defendant would wake her up and verbally abuse her, and laugh "about me being taught to keep my mouth shut."
About a week later, defendant drove Olive to San Francisco so she could pick up her paychecks. Although she was visibly injured, defendant told her not to seek medical treatment to avoid police involvement, and defendant remained in the car with a shotgun. Eventually Olive said she would make up a story about being mugged, and he dropped her off at the hospital, where she stayed for two weeks, and needed to have jaw surgery. At the prompting of a doctor she knew, she made a report to the San Francisco Police Department about what had happened. Later, Garzetta Billingslea drove Olive to South Lake Tahoe, where Olive again reported the beating. At that time, "my jaw was completely wired, and I had a hard time talking. The other thing is that . . . I don't know if you call it posttraumatic stress syndrome, posttorture syndrome, postconcentration camp syndrome, postpsychological manipulation, but I was . . . not as healthy as I am now."
Olive later contacted the National Center for Missing and Exploited Children (NCMEC), and appeared on Unsolved Mysteries, in an effort to find the victim, including using an "age-progressed" photograph, containing modifications to a real photograph of the victim that purported to show what he would have looked like as he matured. In December 1985, the victim's hair color was dark or brownish red.
"Raj" (an acronym coined by defendant from her true name, Renee Alyce Jones), testified under immunity, and the jury was instructed it could find she was defendant's accomplice. She was 54 and was a youth program director in Cleveland. She met defendant at college in Atlanta in 1974 or 1975, where he cast her astrology chart. She quit school and moved in with him. Her parents forced her home, and had a deprogrammer take her to California. After about a month, Raj returned to defendant, and became pregnant by him when she was 20.
When Raj was about seven months pregnant, the couple went to San Francisco, where defendant did "a lot of drugs," and fired a gun into the ceiling, resulting in his arrest. Raj returned to her parents in Cleveland to have her baby, named Renauld, a name defendant changed to Urenauld. Three months later, Raj returned to defendant, because her parents told her she was stupid and that she "needed to be deprogrammed again." The couple moved to Houston, where they had two more sons, Yewaur and Joseph (Uhrtiko). Before that they had lived in Los Angeles, where Raj was arrested due to a check-kiting scheme defendant concocted, that Gudger helped carry out.
When Raj resisted defendant, he slapped and beat her, and asked her to play Russian roulette. Once when she told him a car loan had been denied, he started "slapping me across my face like it's my fault." He often wore a gun on a holster around the house.
When they moved to Houston, Gudger lived with them. Raj did not like defendant's sexual relationship with Gudger, but did not feel she could go home. Raj used the name "Ulia Rich" and defendant used "Tony Rich" to avoid Los Angeles warrants arising from the check scheme. Raj met Olive at the hospital, and eventually Olive moved in. Tolbert also moved in and had a relationship with defendant. Raj had introduced her to defendant when he wanted someone to help out with the family's finances. Defendant would woo women into a relationship but once they were in, they "just became workers."
When the family lived in Seattle, it included Janan Ali (who joined the family in Fontana), Tolbert, Raj and the various children; Gudger and Olive stayed in San Francisco. Defendant set house rules, Raj enforced them, and he would slap her if they were violated. He controlled the money. Raj was "too afraid to challenge him." Once at the Oakland house, defendant beat Olive up after Olive asked him something. Renauld and the victim bore the brunt of defendant's violence, "they got the worst spankings, the worst punishments." Defendant once denied Renauld food for three days. When Raj questioned defendant's methods, he cursed her, and he hit her on more than 50 occasions, but she was too afraid to call for help. She saw the victim with welts on his legs and back, and once saw defendant hold the victim in the air by his arm and beat him with a belt.
Once at defendant's direction, Raj spanked Renauld lightly twice with a belt over some cookies, but defendant was not satisfied and beat Renauld "until he was black and blue, and his face was bruised up." Defendant used a belt, but had been calling for a stick to use. When Raj comforted her son, defendant "told me to let him go and was cursing me out." Defendant seemed crazy and Raj told him to leave before the police came. Before defendant left, he told Raj to tell the police "that Renauld had been playing with his little brother's penis, which was not true, and that I was the one that beat Renauld, because . . . I'm female, so it wouldn't be bad for me." When the police arrived, Raj told them that story, because she was afraid defendant would hurt or kill her and the children later.*fn5 Raj signed a statement admitting she beat Renauld with a stick, and pled guilty to felony assault. Defendant had threatened to kill her and Renauld if she left him, or have someone else do it for him. Renauld did not live with the family thereafter.
When the family moved to the Sacramento area, Lewis joined the family. While living in Sacramento, Raj once saw defendant "had bound Salaam's ankles" with wire or something else, causing scars, and another time he put the victim in a cold garage.
The family moved to South Lake Tahoe in November 1985, and Raj gave birth to a daughter, Unkw (Barbara), on January 18, 1986. Raj, defendant, Lewis, and "all the kids" (Raj's sons except for Renauld, Gudger's daughter Jackie (Yves), Tolbert's son Herbert, and the victim) lived at the Lake Tahoe house; the other women visited.
Raj last saw the victim near the end of December 1985. She saw defendant yelling at the victim and coming from the garage with him, then saw them return to the garage. She went into the garage, which was "freezing cold[,]" but when defendant would not tell her why he put the victim in the garage, she covered the window because "I didn't want somebody to look into the window and see Salaam out in the garage as cold as it was." When Raj went in the garage later, defendant was punching the victim in the stomach, and when he realized she was in the room, he cursed her and told her to get out. As Raj was napping upstairs later, defendant "whispered in my ear, 'Salaam is dead. I think I killed him. Salaam is dead.'" Raj began to cry, which made defendant angry. He told her to pull herself together, that he would kill her and everybody else and that there would be no witnesses, and then he held a gun to her stomach and said that he would shoot her and all the children. When Raj ...