Orange County Super. Ct. No. C-77640 Everett W. Dickey
Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Gary D. Garcia, Deputy State Public Defender, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Holly D. Wilkens and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
WE CONCUR: KENNARD, J., BAXTER, J., WERDEGAR, J., CHIN, J., CORRIGAN, J., LIU, J.
CANTIL-SAKAUYE, C. Judge.
A jury found defendant Richard Lucio DeHoyos guilty of the 1989 first degree murder of nine-year-old Nadia Puente. (Pen. Code, § 187, subd. (a).) The jury determined defendant had kidnapped her in order to commit child molestation and that he raped, sodomized, and committed a lewd and lascivious act upon her. (§§ 207, subd. (b), 261, subd. (a)(2), former 286, subd. (c) as amended by Stats. 1988, ch. 1243, § 6, p. 4133 (now 286, subd. (c)(1)), 288, subd. (a).) The jury found true the special circumstances that the murder was committed while engaged in the commission of kidnapping, forcible rape, sodomy and performing a lewd and lascivious act upon a child under the age of 14. (Former § 190.2, subd., (a)(17)(ii)-(v), added by initiative, Prop. 7, approved by voters Nov. 7, 1978 (see now § 190.2, subd. (a)(17)(B)-(E).) The jury found defendant was sane when he committed the crimes and determined the appropriate penalty to be death. Prior to sentencing, however, the trial court granted defendant’s motion for a new trial based on juror misconduct.
On retrial, the second jury found defendant guilty of the same charges: first degree murder, kidnapping for child molestation, forcible rape, sodomy, and committing a lewd and lascivious act upon a child under 14. (§§ 187, subd. (a), 207, subd. (b), 261, subd. (a)(2), former 286, subd. (c), 288, subd. (a).) The jury found true the same special circumstances. (Former § 190.2, subd. (a)(17)(ii)-(v).) The jury again found defendant to be sane at the time he committed the crimes and determined death to be the appropriate penalty. The trial court denied defendant’s motion for new trial and for modification of the verdict. The trial court imposed a sentence of death, with additional determinate terms of imprisonment totaling 19 years for the nonhomicide offenses. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.
As nine-year-old Nadia Puente walked home from her elementary school, defendant approached her in his car, told her he was a teacher, and asked her for help moving some books. After using this ruse to get Nadia into his car, defendant drove to a motel where he had earlier rented a room for two. There defendant raped, sodomized, and killed Nadia. He put her body in a trash can, which he stuffed into the trunk of his car. He drove to Griffith Park in Los Angeles, waited until after dark, and then left the trash can containing Nadia’s body in the park. Defendant fled to San Antonio, Texas, where he was apprehended about a week later. When interviewed by investigating officers, defendant eventually admitted killing Nadia, but claimed it was unintentional, that he did not rape her, and that he sodomized her only after she was dead.
At trial, defendant additionally claimed he did not have the required mental state to commit the crimes due to mental illness. He also claimed he was insane at the time he committed the crimes. The jury rejected defendant’s claims and returned a verdict of death.
B. Guilt Phase
1. The prosecution’s evidence
On March 20, 1989, defendant rented a room at the Ha’Penny Inn in Santa Ana, California. The Inn registration card and receipts indicated he registered for two people to stay in the room.
Sandra C., a student in the third grade at Diamond Elementary School in Santa Ana, was walking alone home from school on the afternoon of March 20, 1989, when a gray car pulled up. The driver, a thin Caucasian or Hispanic man, said “Excuse me” and called her over to the car. The man told Sandra that he was a teacher and asked her if she would carry some books over to the Carr Intermediate School. Sandra saw some books in the car, but she did not trust the man. She told him “no, ” that she could not go with him. She said that her mother was waiting for her and she had to go. The man said okay and drove away. Sandra later told her mother, the assistant principal of her school, and the police, about the incident.
Another student from Diamond Elementary School, Jose O., told police he saw Nadia get into a gray car on the afternoon of March 20, 1989, after she briefly talked to the man inside the car.
According to the assistant manager of the Ha’Penny Inn, defendant checked out of his room early. Defendant was given the refund of his $10 key deposit when he returned his key on March 20, 1989.
The next day, March 21, 1989, Nadia’s body was found in a plastic trash can liner in an aluminum trash can located in Griffith Park in Los Angeles. She was clothed, but missing her panties, and wrapped in a bedspread from the Ha’Penny Inn. The trash can and the plastic liner were also from the Ha’Penny Inn.
An autopsy of Nadia’s body showed that she died from asphyxia due to chest compression. In addition to bruising on Nadia’s chest and other parts of her body, the medical examiner found an area of abrasion, bruising, and a laceration near the entry of her vagina. There was also bruising of the lining of the vagina. There was bruising around the anus and a small abrasion. There were also injuries in the area of the rectum. The injuries to Nadia’s vagina and in the area of her anus and rectum were consistent with the forcible insertion of an erect human penis. The medical examiner determined that the injuries to her vagina and anus were inflicted before her death, but could not determine whether the injuries to her rectal area were sustained before death.
The medical examiner did not find any clear indications of ingestion of fluid and could not tell if drowning was a factor in Nadia’s death. But when he first examined Nadia, her hair and clothing were wet and the tips of her fingers were wrinkled. Wrinkling is caused only by immersion in water. The medical examiner testified that Nadia’s injuries were consistent with her being bent over the edge of a bathtub during the infliction of the injuries to the vaginal and rectal areas. The medical examiner could not tell whether Nadia was conscious during the infliction of the injuries.
One of the fingerprints on the plastic trash can liner that held Nadia’s body was identified as belonging to defendant.
Santa Ana police found defendant’s silver Nissan Sentra in the long-term parking lot of the Los Angeles International Airport. They learned that defendant was in San Antonio, Texas, and that he was trying to find work there at a Taco Bell restaurant. On April 1, 1989, San Antonio police officers arrested defendant on a warrant obtained by the Santa Ana police. San Antonio police officers took defendant to a nearby police office, where he was advised of and waived his constitutional rights. In a tape-recorded interview, defendant was questioned by two Santa Ana detectives.
Defendant initially denied knowing anything about Nadia’s death and said he thought he had been arrested because of something to do with a car. He admitted checking into the Ha’Penny Inn during the day of March 20, 1989 and said he checked out in the early morning hours of March 21, 1989. Attempting to account for his activities on March 20, defendant told the interviewing detectives that he had quit his job at a Santa Ana Taco Bell restaurant earlier that day after his manager had called him in and criticized his work. He later returned to the Taco Bell to apologize to the manager. He subsequently checked into the Inn because he was relocating after getting into an argument with some of his roommates. Defendant claimed that after he checked into the Inn, he went to the area near the Diamond Elementary School because he was hoping to collect a tax refund check from the post office nearby. He then returned to the Taco Bell to socialize and sometime later he went out partying at a club with a friend who had also worked at the Taco Bell. Defendant denied picking up a little girl or anyone else and taking her to his room. He agreed to give the detective samples of his hair, blood, and saliva.
Detectives described to defendant the probable kidnapping of Nadia and the finding of her body wrapped in a “blanket” and in a trash can taken from the laundry room of the Ha’Penny Inn. They told defendant his fingerprints had been found on the trash can liner. Defendant again denied killing anyone, but moments later, said the killing of Nadia was an accident.
Assuring the detectives he was telling the “absolute truth, ” defendant said he picked up Nadia around 2:30 p.m. He told her that he was a teacher, that he was being transferred, and that he needed help with some school books. Nadia agreed to help him and got into his car. He drove to the Inn where he had already checked in. Nadia carried a couple of his boxes into the room. Defendant told her to “sort [his] stuff out” and to put it into the dresser drawers; then he would take her home. When Nadia asked to use the phone, defendant told her it was not working. Although defendant did not do anything to her, Nadia started screaming as if she was afraid. Defendant said he had been getting ready to take a bath and when Nadia started screaming, he “got carried away when she freaked me out.” He got her in the bathtub and held her under the water until she was dead.
Defendant subsequently provided a variation of this story. He again said he had not intended to harm Nadia, but he was upset and disgusted about the confrontation he had had with his manager earlier that day and the fact that he had lost his job. He picked up Nadia, just wanting to talk to somebody. When defendant had Nadia in the room, he was angry and he wanted “to do something, ” but Nadia was too young for him. He took his clothes off and began taking a bath. Nadia became scared and asked to go home. Defendant told her to bring him a towel and that he would take her home. However, when Nadia approached him, defendant grabbed her hand and pulled her to the bathtub. When she started screaming, defendant pushed her over the tub and held her facedown in the water. He did not want anyone coming from next door to investigate because it would “start a big scene” and he would not be able to “explain all this.”
Defendant initially denied sexually molesting Nadia, but then claimed that he did so only after she was dead and he had placed her on the bed, removing her panties. He said he molested her anally and inserted his finger into her vagina.
After the sex acts, defendant wrapped Nadia in the bedspread, which also served as the blanket for the motel bed. He was scared and did not want anyone to see him carry Nadia out of the room, so he brought a motel trash can to his room and put Nadia’s body into it. He put the trash can into the trunk of his car and drove on the freeway while he thought about where to put her body. He proceeded to Griffith Park Observatory, where he waited until it was dark. He then left the trash can about a quarter-mile up the road from the Greek Theater and drove back to Santa Ana. He checked out of the Inn and went back home. He read the newspapers about Nadia’s murder and knew his car matched the description of the car and that he resembled the composite drawing of the man who approached Sandra C. After he picked up his last paycheck from Taco Bell, defendant flew to San Antonio because he was worried that he would be apprehended.
Defendant claimed he had never done anything like this before.
2. The defense evidence
Defendant presented testimony from a number of lay witnesses regarding his behavior prior to committing the crimes against Nadia. Defendant also presented the testimony of eight expert witnesses who testified about defendant’s mental disorders and brain damage.
a. Family Members
Defendant’s parents testified that defendant had been different from their other children since he was a toddler. Defendant would withdraw from his mother’s hugs and would throw tantrums, even in his crib. As he grew up, he was stubborn and would get angry. He would not listen to or obey directions and refused to do household chores. He got into a lot more trouble than the other children and his mother disciplined him to “straighten him out.” She hit him with anything nearby, including a belt, a hanger, and a broomstick. One of defendant’s brothers testified defendant had learning problems in school.
When defendant was about 12 or 13 years old, his parents began taking him to Mexico to visit a faith healer, a curandero. The curandero acted as a guide or an advisor to the family. He told defendant to pay attention and behave. On one of these visits, the other children stepped out of the room, leaving defendant and his parents with the curandero. About five minutes later, defendant ran outside. His face was red and his eyes were bulging. He told one of his brothers that they “made [him] see the good side and the bad side of hell.”
Defendant’s behavioral problems continued. Defendant’s mother recalled one time when defendant became so enraged with her after she asked him a question about why he did not wear certain clothes that he pushed her against a closet and threw books at her. When defendant was 17 years old, he jabbed at his mother’s stomach with a broomstick. At the time his mother was several months pregnant. His eyes were bulging and “lit up, ” his face was red, and he was cursing. As a result of that incident, defendant’s father told defendant he needed to leave the house.
Defendant lived with at least 10 different women and was married a number of times. Two of his former wives testified at his trial.
Gloria Lara met defendant in high school when she was 14 or 15 years old. Defendant was a few years older than her. They were married in 1975 when she was 16 years old and in 10th grade. Four days after they were married, defendant heard Lara talking on the phone to a girlfriend. He mistakenly thought Lara was talking about a former boyfriend of hers. He subsequently initiated sex with Lara. As Lara was lying on the floor, defendant tried to cover her face with a towel and stabbed her in the area of her stomach. Defendant seemed scared and surprised by what he did. Lara required surgery and was in the hospital for about two weeks. Defendant was arrested, but later released when Lara “dropped charges” against him. She lived with defendant for two more years. They had a daughter together. The only other time he was violent was when she left him; he was upset and pulled her hair.
On cross-examination, Lara testified defendant called her sometime before Easter week of 1989. Defendant told her he was in California, but said there was nothing left for him there and he was coming to live in Texas. Lara picked defendant up from the San Antonio airport a few days before Easter. During the time between picking defendant up and defendant’s arrest about a week later, Lara had several conversations with defendant. She told a prosecution investigator that during one of those conversations, defendant said he was enjoying himself at a San Antonio club, that the clubs in California were terrible and that “[o]ver there [California], you could kill somebody and get away with it.” After defendant’s arrest, Lara received a call from defendant from the jail. He told her he had been arrested for killing a nine-year-old girl. He said that he did not mean to kill her. When Lara asked defendant why he killed the girl, defendant said “she was getting out of hand.”
After dating a short time, defendant married Maria Esparza in September 1984. Esparza and defendant only lived together for the next five months, during which time they had problems due to defendant’s jealousy and anger. Defendant often threatened to leave Esparza. In January 1985, defendant came home and was picking up some clothes. Esparza asked defendant where he was going. Defendant responded by cursing at Esparza. He hit and pushed her into the bathroom and to the edge of the bathtub. As she was hanging over the bathtub, defendant placed his knee on her chest and his hands around her throat. He choked her. As she was losing consciousness, she heard him say he was going to kill her. He said: “Die, die.” She managed to grab a small teaspoon or fork and jabbed him in the face. Defendant got up, called her a bitch, and ran away. Although the police were contacted, they could not find defendant and Esparza never saw him again. She subsequently filed for divorce.
Esparza recalled that something unusual happened during their wedding reception. Esparza’s brother told defendant to try and make Esparza happy. Defendant did not like the comment and told Esparza’s brother not to butt in. Defendant and her brother then got into a fight.
Esparza testified she never saw defendant use cocaine, but she noticed that he bled from his nose onto the pillow at night. She saw defendant drink alcohol, but testified he did not drink excessively and did not arrive home drunk.
c. Military Friend, Coworkers
Jerry Taylor testified he met defendant in 1979 when they were assigned to the same army unit at Fort Colby in Panama. According to Taylor, defendant responded disrespectfully to criticism by superior officers, had a reputation for not accepting correction, and went AWOL for at least 30 days during the time he was posted there.
Sam Morrison worked with defendant in 1982 for about a year in a telemarketing firm. Morrison described defendant’s odd behavior as including jumping on the top of his desk, running around his desk, and yelling into the phone. Defendant was the class clown in the office, and bragged that he “had women all over the country, all over the world.” Defendant would visit Morrison’s house and drink pitchers of margaritas with Morrison’s father.
Paul Shawhan was defendant’s supervisor in 1989 at USA Aluminum. According to Shawhan, defendant acted “like a self-appointed police officer, ” continually reporting other people’s minor infractions. Shawhan said defendant had a bad temper and when something was not going exactly the way he wanted, he would get angry quickly. Shawhan eventually terminated defendant’s employment because he got into a physical confrontation with another employee. Asked to describe the incident, Shawhan testified the other employee was simply paying for his food at a lunch truck when defendant became upset, “jump[ed] up in his face and start[ed] making all kinds of motions like he [defendant] was going to do something.” Defendant seemed both angry and anxious. After Shawhan fired defendant, defendant responded that “it was okay” because the Los Angeles Police and Sheriff Departments were interested in employing people like him who possessed an “international passport.”
Norma Sandoval was an assistant manager at a Taco Bell restaurant where defendant was also an assistant manager. She worked with him for several months in early 1989. Sandoval testified defendant got along reasonably well with others. When he worked, he would joke around and talk about having sex with multiple girls at the same time. Defendant asked her to go out. Sandoval said he made her feel nervous.
Mary Ann Scott was the manager of the Taco Bell restaurant where defendant worked as assistant manager for two months. Scott testified that defendant seemed slow to learn the paperwork portion of his job and that he tried to find an easy way out in other areas of his work. Although Scott spent extra time working with defendant, he never seemed to get his work completed and she had to finish it for him. She talked to him about the problem many times. She said defendant got upset more readily than other employees when he was corrected.
Scott’s supervisor, Dennis Burkhart, testified that once when he was visiting the Taco Bell where defendant worked, defendant asked Burkhart to evaluate defendant’s performance. When Burkhart relayed to defendant some of Scott’s criticisms of him, defendant claimed Scott was picking on him. Defendant seemed angry, like he was boiling inside, and appeared frustrated. Defendant was perspiring, his eyes bulged out, his face was red and he glared at Burkhart. Burkhart was afraid that defendant was going to physically assault him.
On March 20, 1989, Scott called defendant at home around 6:30 or 7:00 a.m. She was upset and told him to come immediately to the Taco Bell because he had not cleaned the store properly when he closed the previous night. Defendant arrived about 10 minutes later and was angry. They got into a heated argument with raised voices. Defendant said Scott was always complaining and that if he could not do the job the way Scott wanted, then “I guess I am out of here.” Scott told him that was stupid, but defendant threw his keys into the office on the desk and stomped out the door. Scott denied telling defendant that he was fired. A few days later, defendant came to the Taco Bell for his paycheck and said he was leaving California. Scott subsequently received a phone call from someone at a Taco Bell in San Antonio, Texas, asking about defendant because defendant was there and applying for a job. Scott relayed the information to the police, who had previously interviewed her.
d. Expert Witnesses
Dr. Monte Buchsbaum, a professor of psychiatry and a director and supervisor of positron emission tomography (PET) at Mt. Sinai School of Medicine, and Dr. Stephen Lottenberg, a nuclear medicine physician working with Buchsbaum, both testified about a PET scan administered to defendant in June 1991. The scan of defendant’s brain showed abnormality or damage on the right side in the areas associated with emotional behavior, planning and organization. Buchsbaum testified he would expect defendant to have problems controlling impulsivity and rage. He believed the damage had existed for at least a decade, and specifically on the date defendant raped and killed Nadia. Lottenberg testified he could not determine whether the test results would have been the same had the scan been administered on the day of the crimes.
Dr. Arthur Kowell, a specialist in clinical neurology, conducted a brain electrical activity mapping (BEAM) scan on defendant in 1992. A BEAM scan measures the electrical response of the brain after a visual and auditory stimulus is given. Out of the four subparts of the scan, defendant tested normal on three parts and abnormal on one part — the visual test. The areas that showed abnormal results were from the portions of the brain that involve sensory motor strips, the integration of sensory processes and spatial relationships, and an area that concerns language, speech, memory, and emotion. With respect to the portion of defendant’s scan that showed abnormality in both temporal lobes, Kowell stated that individuals with such problems may experience rage attacks. However, Kowell explained, he could not correlate defendant’s scan to an inability to control his temper or a tendency to be violent because the results of a single scan are not predictive of behavior. Although Dr. Kowell could not say what a BEAM scan of defendant would have shown on March 20, 1989, his experience with the records of patients over a period of time indicated there is general consistency regarding test results, assuming there is no intervening pathologic process.
Dr. Paul Berg, a licensed psychologist and a marriage, family, and child counselor, evaluated defendant in November 1990 and in December 1992. He was asked to conduct a general psychological profile of defendant and to determine whether defendant was a sexual pedophile. Berg interviewed defendant and three members of defendant’s family, administered a number of psychological tests to defendant, and reviewed multiple reports from other doctors and investigators.
Dr. Berg testified that defendant was “hypersexualized, ” but he did not fit the clinical definition of a pedophile. Although defendant reported he had sexually molested a younger sister, defendant was too young at the time for his conduct to support a diagnosis of pedophilia. Berg formed the opinion that defendant was suffering from a mental illness on March 20, 1989. Berg determined that the diagnostic possibilities for defendant were, in descending order: “schizophrenic disorder, major depression, alcohol abuse, and dependency.” Berg found that defendant also had personality disorders, including paranoid personality and schizotypal personality. Berg stated that individuals with such severe disorders cannot handle stress.
Dr. Berg believed that a number of stressors occurred on March 20, 1989, which defendant could not handle, including the confrontation with his manager, his perception that he was fired, his feeling that he had to do something about it, his resulting rage and desire to kill Scott, his inability to earn money, and his attempt to obtain drugs to remediate how he was feeling. Berg opined that defendant sought Nadia’s company because he was desperate, depressed, and seeking any source of reassurance. Berg surmised that when Nadia came into the bathroom and saw defendant naked, it reminded defendant of feeling humiliated and shamed by his mother. He was unable to control his rage and the killing resulted. Berg testified he did not think defendant knew he was killing a child when he pressed Nadia against the bathtub; he thought he was killing Scott. Berg considered defendant’s sexual activity with Nadia after her death, which defendant had told Berg was his method of finding out whether Nadia was alive or feigning dead, to be extraordinarily bizarre and “the idea only of a mentally ill person.”
Defendant called Dr. Seawright Anderson, a board-certified psychiatrist who had been appointed by the court to render a professional opinion as to whether defendant was sane on the date he killed Nadia, to testify on behalf of the defense. Anderson conducted a mental status examination of defendant in August 1991. He diagnosed defendant with schizoaffective disorder, a history of polysubstance abuse, and a history of multiple head injuries. Based on subsequent reports, he also felt defendant had an organic personality disorder. According to Anderson, defendant’s schizoaffective disorder made him frustrated, suicidal, and depressed. It impaired his judgment, insight, and ability to control his inner impulses and frustrations.
Dr. Anderson believed that on the day defendant raped and murdered Nadia, he was under stress related to his contact with Scott and the failure of his income tax refund check to arrive. He also was under the influence of controlled substances. Noting defendant’s inconsistent accounts of the events surrounding his crimes, Anderson felt defendant was not lying, but was experiencing misconceptions over which he had no conscious control. Anderson believed defendant did perceive Nadia as a little girl, but at the time of the crimes he “actually did not perceive her fully as a little girl.” His visual perception was distorted by his extreme anger, such that he believed he was killing Scott, not Nadia.
Dr. Jose J. LaCalle, a clinical psychologist, was appointed by the court as an expert for the defense. In order to evaluate defendant’s mental health, LaCalle conducted multiple clinical interviews with defendant, reviewed defendant’s medical, psychiatric, and criminal histories, interviewed family members, spouses and others, administered multiple psychological tests, and consulted with other defense experts. According to LaCalle, defendant’s psychological testing produced mainly inconsistent or invalid results, but based on the remaining tests, his interviews with defendant, and defendant’s medical and social histories, LaCalle concluded that defendant suffered from the following mental illnesses on March 20, 1989: organic personality syndrome, explosive type; borderline personality disorder, severe; and organic impairment, a medical condition. LaCalle believed that both of defendant’s psychological disorders were in operation when defendant killed Nadia because both conditions were chronic and were developed in defendant’s early life. According to LaCalle, defendant experienced uncontrollable rage and his thinking processes were impaired because of his illness. LaCalle opined that when defendant lost his job at Taco Bell, something inside him “broke, ” provoking an extraordinary reaction and emotional outburst.
Dr. Susan Fossum, another licensed clinical psychologist appointed by the court as an expert for the defense, examined defendant in late 1992. She diagnosed defendant with organic personality syndrome, explosive type, with overlapping chronic schizophrenia of the paranoid type, and narcissistic personality disorder with features of borderline personality disorder and sociopathic personality disorder. She also concluded that defendant’s right frontal lobe, right and left temporal lobes, and right parietal lobe were marked by extensive dysfunction. She believed defendant had these diagnoses at the time he raped and murdered Nadia and that as a result of his disorders, defendant was unable to control his emotions, had poor self-monitoring, poor impulse control, poor judgment, and poor ability to distinguish or perceive reality. Fossum testified that defendant’s difficulty with abstract thinking, his socially inappropriate behavior, naivety, and lack of self-critical ability were indicators of his brain damage. She believed that early in the morning of March 20, 1989, defendant’s narcissistic personality structure began to undergo a disintegrative process caused by Scott’s castigation of him. In a confused, fearful, and raging state, defendant lost control of himself and reached out to Nadia for reassurance and company. Fossum believed defendant was confused about what he was physically doing when he raped, sodomized, and killed Nadia.
Dr. Arnold Purisch, a clinical psychologist specializing in clinical neuropsychology, performed a comprehensive neuropsychological evaluation of defendant in 1992 at the request of the defense. Purisch interviewed defendant for nine hours over two days, administered a battery of 21 neuropsychological tests, reviewed numerous records and reports detailing defendant’s family, academic, military and work histories, and considered the reports prepared by other defense experts in the case. Purisch testified that he was impressed that, despite differences, when taken as a whole, there was a marked convergence among the experts who evaluated defendant concerning the types of mental conditions from which defendant was suffering at the time of the crimes. Purisch agreed that defendant’s PET scan and BEAM study showed abnormalities in defendant’s brain, conditions that could be chronic. The battery of neuropsychological tests administered by Purisch showed that defendant had cognitive and other neuropsychological problems consistent with his brain impairment. Purisch concluded defendant suffered from organic personality syndrome of the explosive type, accounting for the long-term behavioral problems he demonstrated. He believed defendant had the disorder on the date of the crimes against Nadia, but because of defendant’s many different versions of the events of that day, Purisch could not determine what defendant’s state of mind was at the time of the crimes. Purisch did opine that with so many personality disturbances, defendant’s defenses and intentions would get overwhelmed when he was under stress and that he would explosively “act out” in non-deliberated ways that he could not control. He concluded that defendant was under a great deal of stress, including from his job termination, on the day of the crimes.
A number of defendant’s expert witnesses acknowledged on cross-examination that defendant could be malingering, that is, falsifying or exaggerating his psychological symptoms. Dr. LaCalle concluded that defendant was malingering, but testified he still had confidence in his expert opinions of defendant’s mental illnesses. Dr. Berg did not diagnose defendant as a malingerer, but he did not rule it out. He found indications that could be considered malingering. Berg testified that defendant’s bizarre actions during his trials — barking like a dog, turning counsel’s table over, shaving his head — may have been calculated conduct by defendant, but that did not contradict the fact that defendant was also very mentally ill. Dr. Fossum did not diagnose defendant as a malingerer, although she had information in a report by a nontestifying expert, Dr. Edwards, that Dr. Edwards diagnosed defendant as a malingerer. Dr. Fossum noted in her report indications that were consistent with malingering. Dr. Purisch testified that defendant met the criteria for being a malingerer. He explained that although there was no evidence defendant malingered in his neurological testing, there was evidence he malingered on his personality testing and there were also other indications of malingering.
3. The prosecution’s rebuttal evidence
Dalila Flores testified that when she was 15 years old and in high school, she met defendant at a Taco Bell where he was the manager. Defendant asked her if she wanted a job. She said she did and gave him her name and phone number. Approximately a week later, defendant called and said he had a job application for her. They arranged to meet at another Taco Bell the next day.
Flores testified that when she met defendant, he told her she needed to accompany him to his “apartment” to get the application. Defendant took her to a motel room after stopping to buy some wine coolers. Defendant never gave her a job application or discussed a job application. He told Flores that when he had previously taken girls to the motel, he had stripped naked and they had photographed him before going to bed and doing “a blow job.” When defendant asked Flores if she wanted to do the same, she said no. Defendant asked if she wanted him to show her a magazine like Playgirl or Playboy and she said no. Defendant then pushed her on the bed and tried to kiss her. Flores became frightened. She pushed defendant off, grabbed the wine cooler bottle defendant had been drinking, and told him: “Hey mother fucker, if you touch me you are dead.” Flores told defendant she had cousins that were in gangs and they knew where she was, as did her brother and boyfriend. She told defendant that if he messed with her, they would mess with him.
Flores left the room and defendant followed her. She told him she was going home. Defendant apologized and offered to drive Flores home. Flores agreed, but asked to get out when they were about halfway to her house because she did not want defendant to know where she lived. She never saw defendant again.
C. Sanity Phase
Defendant testified on his own behalf in the sanity phase of his trial, as follows.
Defendant explained that on March 20, 1989, he had only three hours of sleep before Scott called him back into work. When he arrived, Scott complained about defendant’s work and told him she was going to have to replace him. Defendant thought he was fired. He left the Taco Bell restaurant and drove away upset because he thought this job had been his final opportunity. He bought and drank some beer. He thought about killing himself. He bought some drugs, including cocaine, and checked into a motel around 11:00 a.m. He used the drugs and drank some more beer.
Defendant returned to the Taco Bell restaurant about an hour later, intending to “get back at” Scott, but there was too many people around her. He decided to go to the post office to see if his income tax refund check had arrived. It had not. As he walked back to his car, he had a conversation with a girl, who turned out to be Nadia. Defendant testified that he thought she was 19 or 20 years old. Nadia got into defendant’s car. Defendant said he did not know why he took Nadia to the Inn, but denied it was for the purpose of sexual conduct. When Nadia was cleaning up his room, defendant took a bath and snorted more cocaine.
About 20 minutes later, defendant got out of the bathtub. As he reached for a towel, Nadia came in without knocking and saw him naked. This angered defendant, who grabbed Nadia. When Nadia kicked him, defendant became even angrier. They had a scuffle and ended up falling over the edge of the bathtub into the water. Defendant stayed on top of Nadia. Defendant claimed he did not have the power to get off of her, that he did not know what he was trying to do to her, and that he just did it. It was Scott he saw; not Nadia. When defendant rolled onto the floor, he saw Nadia was not moving and was hanging over the edge of the bathtub. She slipped into the water facedown. He turned out the lights and sat in the living room for five or 10 minutes.
When defendant went back into the bathroom, he knew something was wrong. He grabbed the mattress off the bed and placed Nadia onto it. Nadia had defecated and it smelled, so defendant pulled down her underwear and cleaned her off. Defendant wondered if Nadia was playing dead and to find out, he sodomized her. He testified he thought it was the right thing to do to see if she was alive.
Defendant claimed he thought he had killed Scott. He did not want to kill Nadia.
Defendant testified that the statements he made to the police when questioned were lies. He told them what they wanted to hear because they said they were going to shoot him. Defendant denied making up stories when he spoke to the doctors, but later admitted he was not truthful with Dr. Ronald Siegal because he wanted Siegal to leave him alone. He probably lied to Dr. LaCalle because he was angry with him. Defendant claimed Flores lied during her testimony.
Dr. LaCalle and Dr. Berg testified again at the sanity phase of defendant’s trial. LaCalle concluded defendant’s personality disorder severely impaired his ability to make proper decisions. Defendant’s impairment was so extreme that he fell within the parameters of legal insanity at the time of Nadia’s death and when he sodomized her. Berg also opined that defendant was unable to distinguish right from wrong and did not recognize the nature and quality of his actions at the time he committed the crimes against Nadia.
Defendant called two additional expert witnesses. Dr. Consuelo Edwards, a physician who specialized in psychiatry, testified defendant had multiple personality disorders and suffered from frontal and temporal lobe dysfunction for most of his life. She concluded defendant was legally insane when he committed the crimes against Nadia in an uncontrollable rage and without consideration of what he was doing. Dr. John Reid Meloy, a licensed psychologist specializing in forensic psychology, testified that he believed defendant did not understand the quality of his act of kidnapping Nadia and that when defendant raped and murdered Nadia he was incapable of distinguishing right from wrong.
The sole witness called by the prosecution at the sanity phase was Sergeant Gary Bruce of the Santa Ana Police Department. Bruce, who participated in the interrogation of defendant in San Antonio following his arrest there, testified regarding the circumstances of defendant’s interrogation to rebut defendant’s testimony that he was threatened and intimidated during the questioning. Otherwise, the prosecution took the position that the jurors did not need the opinion of an expert on the specific issue of insanity and accordingly did not call its own experts to testify at the sanity phase. The prosecution closely cross-examined defendant’s experts and in closing argument highlighted the fact that the defense experts’ testimony was not always consistent regarding defendant’s insanity. The prosecution also emphasized the testimony that defendant was a malingerer and an unreliable source of information.
The jury concluded defendant was sane at the time of the crimes.
D. Penalty Phase
1. The prosecution’s evidence
At the penalty phase of trial, the prosecution called only one witness — Sara Puente, Nadia’s mother, who provided victim impact testimony. The prosecution relied on the circumstances of the crime, including the victim impact testimony of Mrs. Puente, the incidents of violence against Lara and Esparza, and defendant’s courtroom behavior during the sanity phase (defendant got out of his chair and advanced toward the prosecutor while uttering threats) as aggravating circumstances warranting the death penalty.
2. The defense evidence
Defendant presented the testimony of 10 friends and family members regarding defendant’s behavior when he was with them and their belief that his life should be spared. Defendant also presented the testimony of a sentencing consultant who testified defendant could adjust to life in prison if he was sentenced to life without the possibility of parole. Finally, defendant presented the testimony of a psychiatrist who testified to nine psychiatric factors regarding defendant that he thought the jury should consider in determining defendant’s sentence.
A. Asserted Errors Affecting the Guilt ...