Court: Superior County: Los Angeles Judge: Florence-Marie Cooper Super. Ct. No. A973541
The opinion of the court was delivered by: Werdegar, J.
Defendant Steven Homick was convicted by a jury of one count of conspiracy to commit murder (Pen. Code, §§ 182, 187)*fn1 and two counts of first degree murder (§ 187), as to which the jury found true financial-gain, multiple-murder, and lying-in-wait special-circumstance allegations (§ 190.2, subd. (a)(1), (3), (15)).*fn2 Following the penalty phase trial, the jury returned death verdicts on the murder counts. Defendant's motions for a new trial and for a reduction of sentence (§ 190.4, subd. (e)) were denied. The trial court sentenced him to death on the murder counts and 25 years to life on the conspiracy count, which it stayed pursuant to section 654.
This appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); § 1239, subd. (b).) We affirm.
I. GUILT PHASE A. The Prosecution Case 1. The Woodman family and Manchester Products
In 1975, Gerald Woodman founded Manchester Products, which made plastic panels used in ceiling lighting. He ran the company, but ownership was divided among his two older sons, Neil and Stewart, each of whom had a 25 percent interest, and his wife, Vera, who held the remaining 50 percent interest.*fn3 Neil worked in production, and Stewart worked in sales. Initially, Stewart had a good relationship with Gerald, but Gerald and Neil's relationship was always acrimonious.
When the youngest son, Wayne, joined the company in 1978 after graduating from college, he was given half of Vera's ownership interest and a job overseeing accounts and credit. Neil and Stewart resented the manner in which Wayne was brought into the company. That Gerald favored Wayne over his brothers increased familial tension. In late 1978, Gerald suffered a serious heart attack. While he was recuperating, Neil and Stewart ran the company, to their father's displeasure. Stewart testified that Gerald created problems at the company to force his sons to seek his help.
In April 1981, Stewart sought his mother's reassurance that she would support him and Neil in any conflict with Gerald. Vera said she would. A few months later, however, Vera told Stewart there was to be a meeting of the board of directors. She said Gerald had decided that Stewart would go back on the road as a salesman, Neil would be sent back to the factory floor, and Wayne and Gerald would run the company. She said if Stewart did not agree to Gerald's plan, Gerald would liquidate the business. Stewart felt betrayed by his mother.
Preemptively, Neil and Stewart issued extra shares of stock to give themselves a controlling interest in the company and then fired Gerald and Wayne. The brothers tried to buy Vera's and Wayne's interests in the company for $2.2 million to be paid over time, but the offer was rejected. A lawsuit ensued that resulted in a judgment of $675,000 to be paid by the brothers to Vera and Wayne. Neil and Stewart borrowed the money to pay the judgment owing.
The brothers also became involved in a bitter dispute involving a $500,000 life insurance policy Manchester Products had taken out on Vera to protect the interests of the family's two daughters. Vera communicated through her sister, Muriel Jackson, that she wanted the policy cancelled. When Jackson demanded they cancel the policy, the brothers refused. Neil said, "Look at the odds," and laughed.
After taking over the company, the brothers freely expressed their anger toward and hatred of their parents. Stewart testified that they would make these comments "on a daily basis" to "anybody that would listen." Former employees and business associates of the brothers confirmed that the brothers constantly made derogatory remarks about their parents. These included wishing their parents were dead.
Between 1981 and 1985, Manchester Products's financial condition deteriorated. Servicing the loan from Union Bank to pay the judgment owed to Vera and Wayne was one factor. Another factor was the purchase of a new plant.
The brothers were also forced to compete against a rival company, Woodman Industries, set up by Gerald and Wayne. The ensuing price war reduced Manchester Products's earnings. Eventually, Woodman Industries went bankrupt, as did both Gerald and Wayne, and each of them lost their residences as a result. Neil and Stewart expressed satisfaction at having driven their parents into bankruptcy.
In response to Manchester Products's poor financial picture, the brothers engaged in an elaborate scheme to misrepresent the value of their accounts receivable to Union Bank, which financed the company's operations with a credit line secured by those accounts. Neil and Stewart instructed the company's controller, Steven Strawn, to manipulate the accounts receivable to make it appear that some past due invoices were still current, preventing them from being excluded from the collateral that secured the credit line. Union Bank discovered the ploy and audited the company's accounts receivable statements. Its auditors discovered $1.7 million in ineligible collateral.
2. Neil and Stewart turn to defendant, their longtime acquaintance, to kill Vera and Gerald
Neil and Stewart met defendant around 1980 in Las Vegas through a mutual friend, Joey Gambino. Stewart was an inveterate gambler who bet on "everything there was to gamble on," including football games. Defendant told Stewart that his brother, Robert Homick, who lived in Los Angeles, also bet on football games. He asked for Stewart's phone number to pass along to his brother. Robert Homick and Stewart struck up a friendship based on their shared love of gambling. Robert Homick was a frequent visitor to Manchester Products. Defendant, who lived in Las Vegas, was also a regular visitor to the company and became friends with Neil.
Between 1980 and 1985, Neil and Stewart employed defendant and Robert Homick in various capacities. According to Richard Wilson, the company's one-time national sales manager, the brothers hired defendant to sweep the plant for a bugging device they feared Gerald had installed. In the summer of 1984, Neil hired defendant, as well as two former Los Angeles police officers, Jean Scherrer and John O'Grady, to act as security at his son's bar mitzvah, specifically to keep Gerald and Vera out.*fn4 According to Scherrer, defendant said that if Gerald and Vera appeared, "If necessary, I will waste them."*fn5 In May 1985, defendant enlisted Scherrer to plant a listening device in the office at Manchester Products where the Union Bank auditors would be conducting their audit. Scherrer testified the work was done when the plant was empty; defendant had keys with which they entered the building.
Stewart used Robert Homick to commit insurance fraud on two occasions. Both times, he had Robert Homick take a vehicle--the first time, a Monte Carlo belonging to Manchester Products, and the second time, Stewart's personal Rolls Royce--which Stewart then reported as stolen to collect the insurance money. Stewart also used Robert Homick to do collections for Manchester Products, including from a company called Soft Lite. The daughter of Soft Lite's owner testified that Robert Homick had threatened to " break [the owner's] legs, or snuff out his life" unless he paid what he owed to Manchester Products.
Stewart testified that in the summer of 1983, while Joey Gambino was staying at Stewart's house, Gambino heard Stewart "screaming" and "yelling" at his parents. Gambino told him, "Stewart, you are going to kill yourself. Why don't you let me handle this, and we will put an end to it." Gambino put Stewart in touch with defendant, and the two of them, together with Neil, met at Manchester Products. Defendant told Stewart, "Joey told me there were a lot of problems going on with your mother and father. . . . You are crazy to go through it. You are not well. [¶] . . . Let's put an end to it."*fn6 Defendant told the brothers he would be returning to Los Angeles in a couple of weeks and suggested they "think about it" and meet again.
The second meeting took place in the first part of November 1983. At that meeting, the brothers told defendant they had decided to go through with killing their parents and asked him what information he would need. Defendant wanted information about Gerald's and Vera's "traits," including when they were together, when they were apart, where they went, and where they got together with other people. Stewart and Neil provided defendant with such information as Gerald's habit of walking the dog every night, and events like birthdays and Jewish holidays when their parents got together with the rest of the family. Stewart also provided defendant with his brother Wayne's address where, at the time, Gerald and Vera were also living. Defendant told them that killing their parents would cost $40,000 or $50,000.*fn7 After the second meeting, Neil told Stewart that Vera as well as Gerald would have to be killed. He said if it was just their father, they would be suspected of it but, because Stewart had been close to his mother, if she were also killed the authorities "would never believe" Stewart was involved. Stewart agreed.
3. Actions taken between April 1984 and June 1985 in furtherance of the conspiracy
Defendant habitually made notes in a series of "daily reminder" books. Police seized a number of these books for 1984 and 1985 when they searched his Las Vegas residence. Defendant stipulated at trial that the books were his, as was the writing in them. Defendant's notes were typically somewhat cryptic, consistent with testimony that he used codes and jargon.*fn8 However, a note on April 29, 1984, included Wayne Woodman's street address, "2311 Roscomare Road, number 8." Wayne's parents were living with him at the time. Entries for May 3, June 4, July 1, August 4, August 5, October 1, November 1, and December 2, 1984, contained Wayne's building and unit numbers--"2311" and "8."
In late December 1984 or early January 1985, Wayne moved from Roscomare Road to 8420 Blackburn Avenue. Gerald and Vera moved to an apartment at 11939 Gorham Avenue. An entry in defendant's daily reminder for January 23, 1985, had Wayne's name and the notation "gas on." An entry for February 12, 1985, had Wayne's name and the Blackburn Avenue address. An entry for February 22, 1985, noted Gerald and Vera's new address on Gorham Avenue.
Entries for August 5, September 4, October 1, November 1, and December 12, 1984, contained the notes "Ed," "Ed Bern," "grape" and "Dino." These references were deciphered for the jury through the testimony of several witnesses. Wayne Woodman testified that his father habitually carried a comb in his shirt pocket and identified a photograph of his father doing so. Leith Adams, an archivist at Warner Brothers studios, testified that in the 1950's television series 77 Sunset Strip, an actor named Edd Byrnes played a character called "Kookie," whose trademark was that he always combed his hair with a comb he kept in the left breast pocket of his jacket. Adams testified that the character's actual first name was "Gerald," and "Dino" was the name of a restaurant on the television series.
As for the "grape" reference, the prosecution called one-time restaurateur Francis O'Brien, who in 1984 owned a restaurant in Los Angeles that served Greek food. O'Brien testified that defendant was a patron and had a particular fondness for the restaurant's stuffed grape leaves. An entry in defendant's daily reminder for September 24, 1985--the day before the murders--contained the words "Fran O" and what appeared to O'Brien to have been the phone number of his restaurant.
An entry in defendant's daily reminder for February 24, 1985, contained references to a real estate agent named Sharon Armitage, who had an exclusive listing at 11939 Gorham Avenue, Gerald and Vera's building. Defendant told his confederate Michael Dominguez that he had tried to "acquire a room . . . an apartment . . . up in the same building as the man and the lady lived with the dog" (i.e., Vera and Gerald). In June 1987, Armitage was shown a photo lineup by police and picked the photographs of a man and a woman who looked familiar to her. The man was defendant.
In March or April 1984, Robert Homick told Stewart there had been an unsuccessful attempt on Gerald's and Vera's lives over Passover. Stewart was concerned because he considered Robert Homick to be a "klutz" and had specifically requested that he not be involved in the conspiracy. Robert Homick wanted $5,000 or $6,000 for expense money. Neil--who had been dealing with defendant--told Stewart to pay Robert the money. Stewart delivered the money to Robert Homick in cash at a grocery store. Stewart began to feel that defendant and his brother were simply trying to get money from them and shared his concern with Neil. Both Neil and defendant told Stewart to be patient.
June 22, 1985, was Gerald and Vera's 45th wedding anniversary. As was their custom, they went out to celebrate with other family members. Earlier in the day, two male residents of Gorham Avenue observed Robert Homick sitting in his car at different locations on the street. One of the men wrote down the vehicle license number and called the police. The police came, spoke to Robert Homick, filled out a field interview card, and left.
4. Actions taken in preparation for the murders in September 1985
Defendant recruited Anthony Majoy and Michael Dominguez as accomplices. He told Dominguez he was "going to rob . . . this olderly [sic] couple" and that "he had been after them a few times. Missed."
Sometime between September 10 and September 12, 1985, defendant purchased three walkie-talkies from his friend Art Taylor, who operated Art's CB Shop in Las Vegas. The walkie-talkies were for short-range communications with a five-mile maximum range and required line-of-sight contact. Defendant told Taylor he needed the walkie-talkies for surveillance work in Los Angeles.
Sometime in mid-September, Robert Homick and Michael Dominguez bought a boltcutter at Rae's Hardware Store in West Los Angeles. The sales clerk who made the sale identified the men from a photo lineup. On September 23, in a call to his aunt, Sybil Michelson, Stewart confirmed information he had received from Michelson's daughter Linda that his parents would be breaking the Yom Kippur fast at the home of Muriel Jackson. Shortly after talking to Michelson, Stewart received a call from Robert Homick. Stewart told him his parents would be at Jackson's residence.
On September 24, in Las Vegas, Art Taylor saw defendant's other brother, William Homick, give defendant a brown bag, saying, "[T]his is the ammo that you had requested." That morning, defendant and Dominguez flew from Las Vegas to Burbank on an 11:50 a.m. flight.*fn9 At the Burbank airport, defendant, accompanied by Dominguez, rented a car.
Later that day, according to Dominguez, he and defendant went to the office of a lawyer named Max Herman. Dominguez waited while defendant met with Herman. Defendant emerged from the meeting carrying a gun case. The next day, Dominguez saw the case again; it contained a revolver. Dominguez said that he, defendant, and Robert Homick tested the walkie-talkies to determine over what distance they could be used. They drove to the entrance of a gated community where Muriel Jackson lived, three or four miles from the apartment building where Gerald and Vera lived.
Defendant called Art Taylor in Las Vegas and complained he was having a problem with the walkie-talkies and wanted to know where he could buy a battery. Taylor referred him to Henry Radio. A notation appears in defendant's daily reminder for September 24, with the name "Henry Radio." A sales clerk at the store identified Robert Homick in a photo lineup as the man to whom he had sold a walkie-talkie battery. The sales receipt recording the sale had Robert Homick's address on it. Defendant returned to Las Vegas on the evening of September 24. Dominguez stayed overnight in Los Angeles at the Westwood Inn, where Robert Homick, using the alias "Robert Gilroy," paid for Dominguez's room.
5. The murders of Vera and Gerald on September 25, 1985, and the aftermath
About 10:00 a.m. on September 25, defendant appeared at Art Taylor's shop with the walkie-talkies. He wanted different walkie-talkies that would work in Los Angeles. Taylor said he did not know anyone who had such items, whereupon defendant decided to keep the walkie-talkies he had. He asked Taylor to call Robert Homick and tell him to pick defendant up at the airport at 1:00 p.m. Defendant flew to Los Angeles on the same 11:50 a.m. flight he had flown the previous day; he was identified by another passenger. He was met at the Burbank airport by Robert Homick and Dominguez about 1:00 p.m.
Sometime around 2:15 p.m., Gerald and Vera arrived at Jackson's residence to break the Yom Kippur fast. The meal was planned for around 6:00 or 6:30 p.m.
According to Dominguez, he, defendant, and Robert Homick went back and forth between the gates outside the Jackson residence and Vera and Gerald's residence, testing the range of the walkie-talkies. Defendant drove to an alley behind Vera and Gerald's Gorham Avenue apartment building and told Dominguez to go ring their doorbell to see whether anyone was home. No one answered when he pushed the buzzer. Dominguez went back to the car, reported to defendant, and waited while defendant went to check for himself. Defendant returned after a few minutes and said, "the people were not home."
According to Dominguez, he and defendant drove to Gorham Avenue to meet Robert Homick. Anthony Majoy was with Robert, wearing "like a black hood sweatshirt." In his car, defendant was carrying walkie-talkies, a handgun, a shotgun, boltcutters, and his and Dominguez's luggage. Defendant gave Dominguez a walkie-talkie and dropped him off at a nearby intersection. Defendant told him to look for an elderly couple in a tan, two-door Mercedes and to let defendant know as soon as he saw them. Gerald and Vera left Jackson's house sometime between 10:00 and 10:15 p.m. in their tan, two-door Mercedes. Dominguez radioed defendant when he saw the victims' car.
On the night of September 25, Rodger Backman was visiting his mother, who lived on the third floor of 11959 Gorham Avenue, the apartment building adjacent to 11939 Gorham Avenue, where Gerald and Vera lived. Backman heard five gunshots and ran out to the balcony. A retaining wall separated the two buildings, and there was ivy along the wall on the 11939 Gorham side. Backman heard rustling in the ivy and then saw a man jump over the wall from 11939 Gorham and land on the walkway below him. Backman shouted, "Hey, I see you," and the man looked up at him. The man was wearing "some type of martial arts . . . uniform" that was completely black. It included a hood that covered his entire face except "approximately half an inch above the eyebrows down to a line about even with the bottom of his nose." The man appeared to be about five and a half feet tall, weighing about 160 pounds, with olive-toned skin. He did not appear to have anything in his hands. The man ran toward the back of the building into the alley. Backman went in pursuit but did not see the man again.
Just as he observed the man jump over the wall between the two apartment buildings, Backman heard more rustling in the ivy on the 11939 Gorham side of the wall, but he was unable to see who was making the noise. That person was running in the opposite direction of the first man. Backman testified that the man who jumped the wall "would not have been" the person making these other noises in the ivy because those noises were in "the opposite direction . . . and this particular sound I heard was running towards the street in the opposite direction south into Gorham." Backman was "absolutely sure . . . that [he] heard two different individuals down in these ivy plants," the man who jumped the wall and landed on the sidewalk beneath Backman, and a second person running in the opposite direction on the other side of the wall.
Backman went downstairs and got up on the wall separating the two apartment buildings. One of the gates into the subterranean garage at 11939 Gorham Avenue was open. He entered the garage and found Gerald slumped over in the driver's seat of his car with a gunshot wound. Backman noticed some neighbors had come out, and he yelled for a doctor and for someone to call the police.
Sometime after 10:05 p.m., Robert Kelly, who lived at 11959 Gorham Avenue with his roommate, Jeff Carolan, heard five gunshots and a woman screaming. The gunshots were coming from outside and were nearby. A few seconds later, someone yelled, "Call the police," and then "Call an ambulance." Kelly, who was an emergency medical technician, picked up his stethoscope and a pen light, and he and Carolan went downstairs. They met up with Backman, who directed them to the garage. They gained entry through a window that Kelly knew was always closed because he passed it every day.
Kelly found Gerald and Vera inside their Mercedes. Gerald was sitting up in the driver's seat, bleeding from his neck and chest. Vera was partly out of the car and appeared to have been shot in the upper torso. After examining them, Kelly decided Vera was in worse condition. He got her out of the car, opened her airways, raised her feet, and then went back to help Gerald, who was still alive.
Los Angeles Police Officers Horan and Kane arrived about 10:30 p.m. They ordered Kelly, Backman, and Carolan out of the garage, made a "sweep," and secured the crime scene. Horan observed that a bicycle chain that secured security bars on the west side of the garage had been cut. Paramedics arrived and pronounced Vera dead at the scene. Gerald was still alive. He was transported to the UCLA Medical Center, where he was pronounced dead. Gerald had been shot below the skull with an exit wound at the bottom of his chin. There was a second grazing wound across his chest. Powder burn marks were indicative of a close-range gunshot. Vera had been shot three times on the left side of her body.
Detectives Richard Crotsley and Jack Holder arrived at the scene about 3:00 a.m. Crotsley observed that Vera was wearing various items of jewelry, that her unopened purse was inside the Mercedes, and that near her foot was a check for $2,000 made out to Gerald from his daughter Maxine. Crotsley concluded that robbery was not the motive for the attack on the victims. While inspecting the security features of the garage, Crotsley noticed that a chain securing gates on the east side of the garage had been cut, leaving the gates open. A chain link and green plastic tubing were discovered outside a gate on the west side of the garage; that gate was also open.
On the morning of September 26, 1985, defendant and Dominguez returned defendant's rental car. Defendant flew back to Las Vegas on PSA flight 446; he was identified by a fellow passenger who also saw a man fitting Dominguez's description, but was unable to positively identify him.
That same day, Neil told Stewart their parents had been murdered. He told Stewart "to stay strong [because] . . . [they] were going to be investigated." The Monday or Tuesday after Yom Kippur, Stewart came into Neil's office while Neil was talking by telephone to Lew Jackson, Muriel Jackson's husband. After he finished the call, Neil told Stewart, "That's going to be our problem. He says he's absolutely convinced that we were involved." Shortly after that conversation, Stewart delivered $15,000 to Robert Homick at the same grocery store where he had previously delivered expense money. On January 9, 1986, Neil wired $28,000 into Robert Homick's bank account, which Neil told Stewart was the balance due for the murder of their parents. The following day, Robert Homick wired $25,000 into Anthony Majoy's bank account. Dominguez was paid $5,000 for his part in the murders.
On September 30, 1985, a claim was made on Vera's life insurance policy. The insurance company ultimately paid the claim in the amount of $506,855.94. Stewart endorsed the check.
The police determined that the bullets used to kill Gerald and Vera were from a .38 Special or .357 Magnum handgun, but the murder weapon was never recovered. In January 1986, police surveillance put defendant, Robert Homick, and Anthony Majoy together in Hollywood. On March 11, 1986, search warrants were executed in Las Vegas and Los Angeles, and defendant, Robert Homick, Neil Woodman, Stewart Woodman, and Anthony Majoy were arrested. Dominguez had been arrested March 2 in Las Vegas on a parole violation. A boltcutter seized from Robert Homick's apartment was determined to be the tool that had cut the chain found outside the garage where Gerald and Vera were murdered. After he was arrested, Neil called Steven Strawn at Manchester Products and asked him to destroy some papers located beneath Neil's desk; among them were defendant's business cards.
Defendant attempted to establish an alibi, presenting witnesses who testified he had a court appearance in Las Vegas in connection with his divorce on the morning of September 25 before flying to Los Angeles for a doctor's appointment. Two other witnesses who worked at a Los Angeles clinic where defendant had been a patient testified he had shown up at the clinic sometime around lunchtime on September 25 without an appointment, but his doctor was not there.
Joey Gambino testified he had never referred defendant to Stewart for the purpose of eliminating Stewart's parents or had anything to do with the murders. Other witnesses sought to impeach the credibility of Michael Dominguez and Art Taylor.
C. Robert Homick's Evidence*fn10 
Robert Homick called two witnesses to testify about his relationship with defendant. Helen Copitka is the sister of defendant and Robert Homick. Defendant is the eldest child, having been born in 1940; Copitka, the second eldest. There were four other children. Defendant was Robert's main caretaker. He was outgoing, while Robert was shy and withdrawn. Copitka viewed defendant as a leader and Robert as a follower.
The second witness, and her husband, had been close friends of defendant and his wife in the 1960's when they all lived in Los Angeles. She met Robert Homick around 1967 or 1968 when he moved in with defendant. It was not unusual for her to see defendant tell Robert Homick what to do and how to do it.
Clarence Stromwall, a retired Los Angeles Superior Court judge, had served for many years in the Los Angeles Police Department with Max Herman, the attorney from whom Dominguez testified defendant had obtained a gun the day before the murders. Stromwall testified that Herman would never have given a gun to defendant to use in a crime and that Herman was a good judge of character who could not have been easily manipulated.
Joseph Gersky, an FBI agent, testified that in an interview with Michael Dominguez on March 18, 1986, Dominguez told him he did not know who was involved in the Woodman murders, other than defendant. Later, Dominguez told Gersky that defendant's other brother, William Homick, and Anthony Majoy were involved.
II. Penalty Phase A. The Prosecution Case
The prosecution's penalty phase case consisted of the circumstances of the current crime and evidence that defendant had committed a triple murder in Las Vegas for which he had been convicted after the Woodman murders.*fn11 On the morning of December 11, 1985, Bobbie Jean Tipton, a wealthy Las Vegas woman, her maid, Marie Bullock, and a deliveryman, James Myers, were shot to death at Tipton's residence. Inside Tipton's bedroom, police found drawers pulled open, jewelry boxes on the bed, and jewelry strewn about. A floor safe in the closet had also been opened.
Defendant had been in charge of security at a small chain of jewelry stores, Tower of Jewels, where Tipton had had her jewelry cleaned several months before her murder. Defendant was convicted of the murders based largely on the testimony of Timothy Catt, who managed one of the branches of Tower of Jewels. According to Catt, defendant had asked him several times about the value of Tipton's jewelry while Catt was cleaning and repairing it. Later, after the murders, defendant brought Catt jewelry that had belonged to Tipton and admitted he had killed her and the other two victims.*fn12
Defendant's witnesses attempted to establish an alibi for his whereabouts at the time of the Tipton murders and to impeach Timothy Catt's credibility. Additional defense witnesses sought to blame the Tipton murders on Michael Dominguez and another man, Kelly Danielson.
Discussion I. Pretrial and Guilt Phase Issues A. Section 656
Defendant contends that under section 656, his 1991 conviction in federal court of interstate murder for hire (18 U.S.C. former § 1952A)*fn13 barred his subsequent California convictions for the Woodman murders. At the time of defendant's trial, section 656 provided: "Whenever on the trial of an accused person it appears that upon a criminal prosecution under the laws of another State, Government, or country, founded upon the act or omission in respect to which he is on trial, he has been acquitted or convicted, it is a sufficient defense."*fn14
Section 656 provides "greater double jeopardy protection than the United States Supreme Court has determined to be available under the Fifth Amendment of the United States Constitution," as the Constitution does not bar "prosecution and conviction for the same act by both state and federal governments." (People v. Belcher (1974) 11 Cal.3d 91, 96-97 (Belcher).) We conclude, however, that the statute does not apply under the circumstances of this case. Because the California special circumstance charge of murder by means of lying in wait (§ 190.2, subd. (a)(15)) required proof of conduct that was not necessary for proof of the prior federal murder-for-hire charge, the prior conviction provided no defense under section 656 to the state murder charges.
A federal indictment filed on March 16, 1989, charged defendant, along with Robert Homick, Neil Woodman, Stewart Woodman, and other defendants with various combinations of 11 counts.
Count XI of the federal indictment alleged a violation of the federal murder-for-hire statute in that, "[f]rom or about September 23 through September 25, 1985, in the District of Nevada and elsewhere," defendant and his co-defendants "did travel and cause travel in interstate commerce, that is travel between the State of Nevada and the State of California, by STEVEN MICHAEL HOMICK and Michael Dominguez with the intent that a murder be committed in violation of the Penal Code of California, said murder to be committed in consideration for the receipt of and for a promise and agreement of money; which travel resulted in the deaths of Vera and Gerald Woodman."
The federal jury was instructed, largely in language drawn from the statute,*fn15 as follows: "Whoever travels in or causes another (including the intended victim) to travel in interstate commerce or uses or causes another (including the intended victim) to use the mail or any facility in interstate or foreign commerce, with the intent that a murder be committed in violation of the laws of any State or the United States as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value, if death results . . . [¶] shall be guilty of an offense against the United States." Defendant was convicted on count XI and sentenced to life imprisonment; his conviction was later affirmed in an unpublished decision. (United States v. Woodman (9th Cir. 1992) 980 F.2d 740 (table) [1992 WL 357106].)
In the present California case, defendant orally joined Neil Woodman's motion to dismiss based on his federal conviction. The trial court denied the motion.
"[P]rosecution and conviction for the same act by both state and federal governments are not barred by the Fifth Amendment guarantee against double jeopardy. (Abbate v. United States (1959) 359 U.S. 187, 194-195 [3 L.Ed.2d 729, 733-735, 79 S.Ct. 666]; Bartkus v. Illinois (1959) 359 U.S. 121, 136 [3 L.Ed.2d 684, 694, 79 S.Ct. 676]; United States v. Lanza (1922) 260 U.S. 377, 382 [67 L.Ed. 314, 317, 43 S.Ct. 141].) This rule, however, does not preclude a state from providing greater double jeopardy protection than is provided by the federal Constitution under decisions of the United States Supreme Court. [Citations.]" (People v. Comingore (1977) 20 Cal.3d 142, 145 (Comingore).) Like many other states (see fn. 17, post), California bars certain such "dual sovereign" prosecutions by statute.
As noted, section 656 provides: "Whenever on the trial of an accused person it appears that upon a criminal prosecution under the laws of the United States, or of another state or territory of the United States based upon the act or omission in respect to which he or she is on trial, he or she has been acquitted or convicted, it is a sufficient defense."*fn16 The section was enacted in 1872 as part of our first Penal Code and has been amended only once, in 2004, as earlier described (see fn. 14, ante). A note by the 1872 code commissioners explains that the statute focuses on acts and omissions, and does not require identity of charges: "This section is intended to apply in cases where the foreign acquittal or conviction took place in respect to the particular act or omission charged against the accused upon the trial in this State, and is not restricted to cases where the accused was tried abroad under the same charge." (Code commrs. note foll. Ann. Pen. Code, § 656 (1st ed. 1872, Haymond & Burch, commrs. annotators) p. 241.) In accord with this intent, as well as the statute's plain language, we have held section 656 applies when the physical conduct required for the California charges has previously been the subject of an acquittal or conviction in another jurisdiction, regardless of whether the two charges have different requirements as to intent or other nonact elements. (Comingore, supra, 20 Cal.3d at pp. 146-148; Belcher, supra, 11 Cal.3d at pp. 99-100.)*fn17
This court has construed and applied sections 656 and 793 in only two cases, Belcher and Comingore.
In Belcher, the defendant and a companion had robbed at gunpoint two undercover officers--one a federal agent, the other a local policeman--who had arranged a narcotics purchase. We held that section 656, coupled with the defendant's prior acquittal in federal court of assault with a deadly weapon on a federal officer, provided a defense to conviction in California court for assault with a deadly weapon based on the same conduct, but not to two counts of robbery arising out of the same incident. (Belcher, supra, 11 Cal.3d at pp. 99-101.)
Construing section 656 for the first time in Belcher, we distinguished its prohibition on multiple prosecutions from that in section 654, which, in addition to prohibiting multiple punishment when an act or omission is punishable under multiple California penal provisions, further provides that "[a]n acquittal or conviction and sentence under any one [provision] bars a prosecution for the same act or omission under any other." (§ 654, subd. (a).) Despite the statutes' similar language, we determined section 656 did not apply as broadly as section 654. (Belcher, supra, 11 Cal.3d at pp. 97-98.) In Kellett v. Superior Court (1966) 63 Cal.2d 822, 827, we had construed section 654's multiple prosecutions bar to apply whenever "the same act or course of conduct plays a significant part" in two or more offenses, assuming the prosecution in the first case was or should have been aware of all the offenses. In Belcher, we observed that the Kellett rule assumes "the state has the opportunity to charge all offenses that may arise out of a single course of criminal conduct," an assumption that "cannot be made where, as here, one of the prosecutions occurred in another jurisdiction." (Belcher, at p. 98.) Section 656 thus demands a narrower construction than section 654.
Turning to the critical question of when a prior conviction or acquittal in another jurisdiction is considered to have been "founded upon the act or omission" for which the defendant is being tried in California, within the meaning of former section 656 (see fn. 14, ante), we reviewed in Belcher a pair of appellate decisions dealing with a single defendant, People v. Candelaria (1956) 139 Cal.App.2d 432 (Candelaria I) and People v. Candelaria (1957) 153 Cal.App.2d 879 (Candelaria II). As we explained, in Candelaria I the "defendant asserted that under section 656 his prior conviction in federal court of robbery of a national bank was a bar to his subsequent state conviction for robbery of the same bank. The Court of Appeal agreed. 'The physical act or conduct of defendant in taking the money was the same whether the robbery be considered as a federal offense or a state offense. All the acts constituting the state offense were included in the federal offense and were necessary to constitute the federal offense. It is clear that, within the meaning of said section 656, the federal conviction was "founded upon the act" in respect to which the defendant was tried in the present case. It appears, as a matter of law, that the previous federal conviction is a sufficient defense in the present case.' " (Belcher, supra, 11 Cal.3d at pp. 98-99, quoting Candelaria I, at p. 440.)
In Candelaria II, the same defendant again cited section 656 to challenge a California conviction, in this case for burglary arising out of the same transaction as the prior federal robbery charges. This time, we noted in Belcher, the Court of Appeal rejected his argument because the act required for burglary, " 'the entering of the building with the intent to commit a theft, is not the same act complained of in the federal court, namely, that he pointed a gun at the teller and by force and fear compelled her to deliver over to him certain monies.' " (Belcher, supra, 11 Cal.3d at p. 99, quoting Candelaria II, supra, 153 Cal.App.2d at p. 884.)
Approving the Candelaria decisions, Belcher drew from them the following test for application of section 656: "Under this section, a defendant may not be convicted after a prior acquittal or conviction in another jurisdiction if all the acts constituting the offense in this state were necessary to prove the offense in the prior prosecution [citation]; however, a conviction in this state is not barred where the offense committed is not the same act but involves an element not present in the prior prosecution. [Citation.]" (Belcher, supra, 11 Cal.3d at p. 99.)
Applying that rule to the facts of Belcher, we held that the defendant, having been acquitted in federal court of assault upon a federal officer, could not be convicted in state court "for the same assault upon the same person." (Belcher, supra, 11 Cal.3d at p. 99.) As to the two state robbery convictions, however, the rule led to the opposite result. "A conviction for each of these offenses requires at the very least proof of an important additional act by defendant--the 'taking of personal property in the possession of another' (§ 211)--that need not be proved to establish the federal offense of assault with a deadly weapon upon a federal officer. Accordingly, the convictions of first degree robbery under the first two counts are not convictions founded upon the same act or omission for which defendant was acquitted in federal court, and these convictions must stand." (Belcher, at pp. 100-101.)
In Comingore, supra, 20 Cal.3d 142, we held section 793, which defendant also cites, barred the defendant's prosecution in California for grand theft auto and unlawful driving of a vehicle, where he had previously been convicted of an offense in Oregon arising out of the same act (taking a car in California without permission and driving it to Oregon). (Comingore, at p. 144.) We determined that section 793's protective scope was the same as that of section 656, though the former provision acted to bar prosecution and the latter as a defense against conviction. (Comingore, at p. 148.) Quoting and applying the Belcher test for application of section 656, we held that although the charged California offenses required the intent to deprive the owner temporarily or permanently of possession of her vehicle, an element assertedly not required for the Oregon conviction, section 656 (and hence § 793) applied because the intent required for an offense is distinct from the act on which the offense is based. The People having conceded the Oregon conviction was based on "the same physical conduct" giving rise to the California prosecution (Comingore, at p. 146), the latter prosecution was barred even though it called for proof of an additional intent element (id. at pp. 146-149).
The Courts of Appeal have addressed section 656 in several published decisions since Comingore but, with the exception of People v. Friedman (2003) 111 Cal.App.4th 824, discussed below, none involved facts similar to the present case.*fn18 We look, therefore, to the language and purposes of the statute, as well as our prior decisions, to decide whether section 656 applies in the circumstances of this case.
According to its terms, section 656 provides a defense to a California prosecution only if the prior foreign prosecution was based upon "the act or omission" for which the defendant is "on trial" in California. In accord with that language, we held in Belcher that a California conviction is barred if all the acts necessary to the California charges were also necessary to prove the prior charges, but is not barred "where the offense committed is not the same act but involves an element not present in the prior prosecution." (Belcher, supra, 11 Cal.3d at p. 99.) In Comingore, we clarified that "element" in this formulation refers only to conduct required to prove the charges, not to criminal intent or other nonact elements. (Comingore, supra, 20 Cal.3d at pp. 146-148.)
The application of section 656 thus turns on whether the California charges against defendant required proof of conduct that was not required for conviction of the earlier federal charges. We conclude that at least in the special circumstance allegation of murder by lying in wait, they did.
The lying-in-wait special circumstance (§ 190.2, subd. (a)(15)) requires proof the killer concealed his or her purpose, watched and waited a substantial time for the opportunity to act, and thereafter launched a surprise attack on the victim from a position of advantage. (People v. Bonilla (2007) 41 Cal.4th 313, 330.) No such conduct was required under title 18 United States Code former section 1952A, which was satisfied by proof defendant traveled between states in order to commit a murder for hire, and death resulted.*fn19
Nor did the federal indictment against defendant charge any of the conduct constituting lying in wait. The indictment alleged only that defendant and Dominguez traveled between Nevada and California with the intent that a murder be committed in exchange for compensation, and that the travel resulted in the Woodmans' deaths. That the federal prosecutor, like the state prosecutor afterward, proved defendant ambushed and killed the Woodmans in their garage (see United States v. Woodman, supra, 1992 WL 357106, *1) is of no import, as proof of an ambush was not "necessary to prove the offense in the prior prosecution" (Belcher, supra, 11 Cal.3d at p. 99, italics added). A prior prosecution is not "founded" or "based," within the meaning of section 656, on every piece of conduct shown by the evidence at the earlier trial. Were that the rule, the entire course of criminal conduct that led to the earlier charges would be effectively protected from prosecution in California, an interpretation we expressly rejected for section 656 (in contrast to § 654) in Belcher, supra, 11 Cal.3d at page 98. (See also id. at p. 101, fn. 10 [noting that Belcher's California robbery convictions, which we held were not barred under § 656 by his prior federal conviction for assault on a federal officer, would likely have been barred under a § 654 course-of-conduct analysis had the two prosecutions been brought sequentially in California courts].)
That the allegation of murder by means of lying in wait was contained in a special circumstance allegation attached to the murder charge, rather than in a separate count charging an offense, does not mandate the application of section 656. Although Belcher refers to "the acts constituting the offense in this state" (Belcher, supra, 11 Cal.3d at p. 99, italics added), we did not have before us in Belcher the issue of conduct charged in a special circumstance or similar allegation. The language of section 656 itself is not restricted to offenses. Instead, it refers to "the act or omission in respect to which [the defendant] is on trial" (italics added), implying the potentially relevant charges against the defendant are not limited to those specifying offenses. Defendant here was indisputably "on trial" for murder by means of lying in wait; indeed, lying in wait was at issue both as a theory of first degree murder (§ 189)*fn20 and as a special circumstance making defendant eligible for a sentence of death or life without the possibility of parole (§ 190.2, subd. (a)(15)).
Moreover, factual sentencing allegations that make the defendant eligible for a death sentence have, for constitutional purposes including double jeopardy, been viewed as functionally equivalent to elements of a greater offense. (See Sattazahn v. Pennsylvania (2003) 537 U.S. 101, 111-112; Ring v. Arizona (2002) 536 U.S. 584, 609.) The allegations against defendant of first degree murder with a special circumstance of murder by lying in wait can be conceptualized, for double jeopardy purposes, as a greater offense (inclusive of first degree murder) of first degree murder by means of lying in wait, with lying in wait as one necessary element making up that offense. And while section 656 provides double jeopardy protection in the dual-sovereign situation to which the constitutional protection does not extend (Belcher, supra, 11 Cal.3d at p. 97), the constitutional and statutory protections serve the same general purposes. No reason appears for the treatment of special circumstance allegations to differ under the two regimes.
Double jeopardy protection vindicates principles of fairness and finality by preventing the government from making repeated efforts to convict the defendant or adding to his or her punishment for the same offense. (United States v. Wilson (1975) 420 U.S. 332, 343.) But where two different sovereign governments are involved, the interest of each in punishing criminal conduct as it finds fitting also comes into play. Constitutionally, this consideration motivates the dual sovereignty doctrine, under which double jeopardy protection is withdrawn entirely from the second prosecution. (See Abbate v. United States, supra, 359 U.S. at p. 195; Bartkus v. Illinois, supra, 359 U.S. at p. 137.) Section 656 restores some of that protection, but applies only when the conduct charged in California has already been the subject of a completed federal or sister-state prosecution; in other situations, the statute does not prevent the state from pursuing its interest in punishing criminal conduct.
Where California charges the defendant with conduct that makes him or her eligible for the state's most severe punishments, death and life in prison without the possibility of parole, and that particular conduct has not been the subject of a prior federal or sister-state prosecution, the state's interest in a separate prosecution is particularly strong, while the protective purposes of section 656 are not implicated. California's prosecution of defendant for murder by means of lying in wait was not unfair to him, as he had not previously been prosecuted for that conduct, nor did it impugn the finality of a prior judgment, as the federal court verdict did not adjudicate the lying-in-wait issue. The state, moreover, has a substantial interest in enforcing its laws differentiating between non-capital murders and murders that are so heinous as to merit either of our law's greatest punishments, an interest the prior federal prosecution could not and did not serve. Neither the federal Constitution nor section 656 restricts California, as a sovereign government separate from that of the United States, from pursuing its own interest in punishing murder where the acts comprising the special circumstance have not previously been the subject of a federal prosecution.
In the heading of his section 656 claim, but without making any argument on the point, defendant also contends his federal conviction for violation of the Racketeer Influenced and Corrupt Organizations Act (RICO) statutes, title 18 United States Code section 1961 et seq., barred the murder convictions under section 656. In the interest of completeness, we note that the reasoning used above would also apply to defendant's RICO conviction. Although the federal RICO count charged the Woodmans' murders as two of five alleged crimes establishing a pattern of racketeering activity (see 18 U.S.C. § 1961(5)), neither RICO itself nor the indictment's RICO count required proof those murders were committed by means of lying in wait. Under section 656, therefore, the prior RICO conviction provided no defense to the California charges of murder by means of lying in wait.
Defendant contends that the trial court abused its discretion when it denied his various severance motions.
The five defendants tried for the Woodman murders were divided into two groups for trial. Stewart Woodman and Anthony Majoy were tried first, and then defendant, Neil Woodman, and Robert Homick were tried together in the proceeding before us. Defendant filed a pretrial motion to sever his trial from that of his brother Robert Homick and Neil Woodman. Neil Woodman also sought to sever the cases.
In the trial court, defendant contended that severance was required because the earlier severance of Stewart's trial from Neil's trial because they are brothers was "law of the case," also prohibiting the joint trial of himself and his brother; a joint penalty phase trial would deny each Homick individual consideration; there was a danger of inconsistent defenses; and the prosecution intended to introduce a jailhouse letter from Neil to Stewart implicating defendant. Additionally, he argued that, at a joint penalty phase trial, he would suffer in comparison to his brother because most of the penalty phase evidence would be introduced only against defendant. In a supplemental memorandum of points and authorities, defendant argued that any Aranda/Bruton issues should be resolved at the hearing on the severance motion because they were relevant to whether the cases should be severed. (People v. Aranda (1965) 63 Cal.2d 518; Bruton v. United States (1968) 391 U.S. 123 [a non-testifying co-defendant's extra-judicial statement that incriminates the other defendant is inadmissible].)
At the hearing, the trial court indicated it would impanel two juries, one to hear defendant's case and the other to hear the case against Neil Woodman and Robert Homick. Its decision was based on its concern about the fairness of having one jury decide the penalty for both Homicks. At that point, the prosecutor informed the court that he would not seek the death penalty against Robert Homick, thus "eliminat[ing] the need for two juries." Nonetheless, both defendant and Neil Woodman pressed for severance. The trial court denied the motion.
During the trial, defendant renewed his motion for severance following the opening statement by Robert Homick's counsel, on the "grounds of conflicting defenses"; after the trial court ruled that Robert Homick's counsel could question Art Taylor about his status as an FBI informant; after the trial court ruled that the prosecution could ask FBI Agent Joseph Gersky whether he believed Michael Dominguez was being truthful after a second interrogation where Dominguez contradicted statements he had made in an earlier interrogation; and after the trial court excluded evidence defendant wanted to present that Robert Homick had threatened violence against a former employee of Stewart and Neil's.*fn21
Finally, defendant argued as a ground in his motion for a new trial the court's denial of his pretrial severance motion. The motion was denied.
"Our Legislature has expressed a preference for joint trials. [Citation.] Section 1098 provides in pertinent part: 'When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order[s] separate trials.' The court may, in its discretion, order separate trials if, among other reasons, there is an incriminating confession by one defendant that implicates a co-defendant, or if the defendants will present conflicting defenses. [Citations.] Additionally, severance may be called for when 'there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.' [Citations.] [¶] We review a trial court's denial of a severance motion for abuse of discretion based on the facts as they appeared when the court ruled on the motion. [Citation.] If we conclude the trial court abused its discretion, reversal is required only if it is reasonably probable that the defendant would have obtained a more favorable result at a separate trial. [Citations.] If the court's joinder ruling was proper when it was made, however, we may reverse a judgment only on a showing that joinder ' "resulted in 'gross unfairness' amounting to a denial of due process." ' [Citation.]" (People v. Lewis (2008) 43 Cal.4th 415, 452.) Severance motions in capital cases generally receive heightened scrutiny for potential prejudice. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 43-44.)
Defendant and his co-defendants were "charged with having committed 'common crimes involving common events and victims,' " presenting a " ' "classic case" ' for a joint trial." (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 40.) Nonetheless, defendant contends that severance was required.
Defendant fails to adequately distinguish between his pretrial, trial, and posttrial motions and his due process analysis. As distinct standards of review apply to his various severance motions, however, we must parse his claim into its distinct components.
Two of the grounds in defendant's pretrial severance motion related to a possible joint penalty-phase trial with his brother, Robert Homick, but once the prosecution decided not to seek the death penalty against Robert, those arguments were mooted. Defendant does not renew a third ground he advanced in his pretrial motion--that an earlier ruling severing the trials of Stewart Woodman and Neil Woodman was "law of the case" for purposes of the Homick brothers--and we do not consider it. A fourth ground involving defendant's claim that the prosecution intended to introduce a jailhouse letter from Neil to Stewart implicating defendant is moot because the letter was not introduced at trial.
Therefore, the only ground supporting defendant's pretrial motion still viable is his claim of conflicting defenses. The premise of this claim was that his co-defendants, and particularly Robert Homick, would seek to introduce evidence in support of their defenses that was prejudicial to him and would have been inadmissible if he were tried separately. His pretrial motion did not point to any specific evidence except the letter from Neil to Stewart, which was not ultimately introduced. As to Robert Homick, he asserted only that Robert's counsel "will be obligated to bring forth any evidence from prosecution witnesses that [defendant] planned and carried out the murder on his own. He will support this in part by evidence which, if presented by the prosecution would constitute Aranda-Bruton error."
In response, the prosecutor argued that, while he would seek admission of statements that either came within the hearsay exception for coconspirator statements or were not hearsay, he did so with the understanding that if "it's an Aranda violation, then it will not be admissible . . . ." Defendant insisted that the "Aranda-Bruton issues" be litigated before and not during trial. The trial court, while expressing its preference for pretrial resolution of those issues, also remarked "we don't have to resolve that today . . . ." ...