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Superior Court of Tulare County, No. 32842, Joseph A. Kalashian, Judge.
Emry J. Allen, under appointment by the Supreme Court, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, William K. Kim and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
Opinion by Corrigan, J., with Cantil-Sakauye, C. J., Baxter, Werdegar, Chin, Liu, and Kennard, JJ.[*], concurring.
[326 P.3d 193] [172 Cal.Rptr.3d 582]
A jury convicted Steven Allen Brown of first degree murder, sodomy, and forcible lewd act on a minor under 14.  It found true the special circumstances for murder in the commission of the sexual offenses,  [172 Cal.Rptr.3d 583] and returned a death verdict. This appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); Pen. Code, § 1239, subd. (b).) We affirm the judgment.
A. Guilt Phase
The body of 11-year-old April Holley was found in the bathtub of the trailer home she [326 P.3d 194] shared with her mother, Naomi, and her older sister Tammy.  April had been sexually assaulted and drowned. Defendant was linked to the crimes primarily by statements attributable to him. At trial, he denied his involvement and offered a partial alibi defense. The time of April's death was an important question. In addition to a pathologist's estimate, the prosecution offered the testimony of a number of witnesses to establish when the crime occurred.
The Holleys' trailer was located in an area on the outskirts of Tulare called the Matheny Tract (the Tract). The trailer's front door was generally secured by a padlock when the family was away, but the back door was often left
open. The weekend of April's death, December 2 to 4, 1988, was cold and foggy around Tulare. April was to spend the weekend in town with family friends Melody Lewis, Richard Schnabel, and their six children. April would occasionally stay with them, do chores, and babysit.
After dropping April off at the house, her mother, Naomi, had time to herself. She spent the night of Friday, December 2, at a friend's home. At some point on Saturday afternoon, Naomi went by the trailer, then left for a Tupperware party in Porterville. She stayed there that night rather than drive back in the heavy fog. She returned home on Sunday afternoon, after April's body had been discovered. When Naomi left on Saturday, the trailer's front door was padlocked. The back door was unlocked and the television was off.
Meanwhile, on Saturday afternoon, there was a dispute at the Lewis/Schnabel home. Lewis drove April back to the trailer, but Naomi was not there and could not be located. Lewis then drove April back to their house in Tulare. On Saturday evening, Lewis and Schnabel went out, leaving their teenage daughters, Shannon and Teresa, to watch April and the younger children. The adults returned about 10:00 p.m.
Following her return to the Lewis/Schnabel home, April made several phone calls and asked to be driven back to the trailer. She gave the impression that she had spoken with her mother, who was now back at the trailer. The older girls drove April home, leaving between 7:00 and 8:00 p.m. The fog-shrouded drive took 15 to 30 minutes. When they arrived, Teresa saw the television flickering through the window. The front door was locked, so April walked toward the back, stopping to wave to Shannon and Teresa. April was last seen wearing a Betty Boop T-shirt and black jeans.
Lisa Matthews (Lisa) was April's best friend and lived in the Tract with her grandmother. That Saturday, April called between 7:30 and 8:00 p.m. and asked if Lisa could spend the night. Lisa said she would ask permission and hung up. Lisa's grandmother refused the request but, when April called back 20 minutes later, Lisa said she would meet her at the trailer. [172 Cal.Rptr.3d 584] Although Lisa began to walk over, she turned back because it was too cold and foggy. Lisa did not see April that night but went to the trailer at 7:00 a.m. on Sunday. The front door was padlocked but the television was on.
Lorraine Hughes rented a trailer in the Tract and was a friend of the Holleys. April would come over often to use her phone. Between 7:45 and 8:00 p.m. on Saturday, April came to her door. Hughes did not answer, however, and saw April walk back toward the Holley trailer.
Several witnesses reported hearing a gunshot and screaming in the area of the trailer that Saturday night. Relevant time estimates varied from 8:00 to
9:45 p.m. The Holleys' next-door neighbor saw a car pull into their driveway between 8:25 and 8:30 p.m. She had previously estimated the time to be about 8:00 p.m.
April's body was discovered Sunday afternoon by Orville Bailey and Roger Rummerfield (Roger). The men were working nearby and Roger went to the trailer to use the restroom. The front door was locked and the television was " blaring loud." Finding the back door partially open, he walked to the bathroom and found April lying in the bathtub. She was on her side in a fetal position, in one to two inches of water. The drain had been plugged with a rag. April [326 P.3d 195] had no pulse. Roger ran outside. He eventually kicked down the front door while Bailey went around the neighborhood looking for a phone to call an ambulance. Bailey went inside and saw April's body.
Before law enforcement arrived, several neighbors entered the trailer. None saw blood or signs of injury. Responding medical and police personnel moved April's body to the kitchen and saw blood coming from her rectum.
Pathologist Dr. Gary Walter examined April's body at the scene and noted signs of rigor mortis. These signs can begin to present within three to four hours of death. The process peaks within 12 to 36 hours, depending on variables including body temperature and muscle mass. The condition of April's body was consistent with death occurring about 9:00 p.m. on Saturday. Walter conceded that estimate was not conclusive, and such estimates were most accurate when made within four or five hours of death.
Dr. John McCann, a pediatrician specializing in child sexual abuse, and pathologist Dr. Leonard Miller performed April's autopsy. She suffered no gunshot injury. There were signs of petechiae, small hemorrhages caused by ruptured blood vessels. Petechiae do not form after death. April had petechiae on her head, neck, and eyes consistent with struggling or being held down by a hand. The pattern was not consistent with strangulation that would cause unconsciousness by itself. A bruise on her earlobe indicated infliction of a blow. One bruise on her inner thigh was caused within 24 hours, but other bruises on her legs were at least two to three days old. April had a vaginal laceration unusual in its length and width. It was a serious and violent injury consistent with penetration by a penis or larger object, inflicted while she was lying on her back. She also had a blood blister on her hymen consistent with blunt force trauma. April's anus was dilated and irregular, with lacerations reflecting forcible penetration by a penis or other object. Her injuries were consistent with multiple assailants. On cross-examination, Dr. McCann conceded that the lack of injuries to her lower body was also consistent with her being rendered unconscious at some point. It was possible, though less likely in McCann's opinion, that April's injuries had been caused by a single assailant.
[172 Cal.Rptr.3d 585] Dr. Miller agreed that April's injuries suggested a struggle. The pattern of petechiae was inconsistent with ligature strangulation. April died by drowning. Her lungs showed signs of active water inhalation, as if she had struggled while being held underwater. Miller concluded the cause of death was drowning " in association with sexual assault." In his opinion, the drowning and sexual assault were contemporaneous.
When found, April was wearing only a white Betty Boop T-shirt and a bra. Police recovered a pair of black pants from the bathroom. A rectal swab taken during the autopsy revealed the presence of sperm. Charlie Richardson, Bobby Joe Marshall, and Joe Mills were excluded as possible sources of the sperm. No usable fingerprints were recovered from the scene.
Before defendant's trial, Charlie Richardson was convicted of the murder, burglary, and sexual assault of April and received the death penalty.  The jury was informed of these convictions.
Defendant and his girlfriend lived with his sister and her boyfriend in the Tract. Naomi, April's mother, had known defendant for three or four years. He visited on occasion and stayed overnight once in September 1988. Tammy and defendant had been friends for several years. She had known Richardson for about a month and he would also visit her at the trailer. Tammy never spent time with Richardson and defendant together.
Teenagers Bobby Joe Marshall and Joe Mills both lived in the Tract. About 7:00 p.m. that Saturday, they were going hunting with a neighbor. After borrowing guns, they walked to the neighbor's house. The neighbor drove for the excursion but turned back after 30 to 40 minutes because it was too [326 P.3d 196] foggy. After returning to the Tract, the boys walked back to Marshall's trailer. During the walk, Mills fired his gun to scare someone walking nearby. According to Mills, they may also have shot at a mound in the area. The boys walked to the Holleys' trailer about 8:15 p.m. to see April's sister Tammy. Although the television was blaring, they left when no one answered the front door. On their walk back, they encountered Richardson.
The boys returned to Marshall's trailer about 8:45 p.m. and sat outside. Defendant drove up in a " loud," brown Pontiac Firebird belonging to his sister, Lisa Saldana. Defendant agreed to drive the boys to Linnell Camp to buy cocaine.  On the way, they stopped at the cotton processing plant where defendant's girlfriend, Rhonda Schaub, worked. All the witnesses referred to
the plant as " the cotton gin." Mills estimated that they arrived about 10:00 p.m. and stayed 15 to 20 minutes. Marshall claimed they arrived about 9:20 p.m. and left 30 minutes later. The three proceeded to a shopping mall in Visalia, staying for 20 minutes, then went on to Linnell Camp where defendant bought cocaine. They drove around for a while, consuming the drugs. They returned to the mall, then stopped at the cotton gin for a few minutes between 12:30 and 1:00 a.m. They drove around again, using more cocaine before driving back to the Tract. On the way, the car ran out of gas, so they left it at the side of the road. They initially walked together but later split up. The boys walked toward the Marshalls' and [172 Cal.Rptr.3d 586] defendant went in the general direction of the Holleys' trailer. The boys stayed outside and used more drugs, going inside between 2:00 and 2:30 a.m. Marshall saw Charlie Richardson at his trailer before going to sleep about 3:00 a.m. Mills spent the night and left the following morning, arriving at his own home about 9:00 a.m.
Mary Coelho was a friend of defendant's sister Lisa Saldana. About 7:00 a.m. on Sunday, December 4, Coelho went to Saldana's trailer. The women used cocaine and talked. About 15 minutes later, defendant came into the living room and looked outside nervously. He commented that " there were a lot of cops out there" and that " something had happened." Coelho saw no officers. Saldana thought defendant was " acting like someone on drugs."
Kimberly Fleeman arrived at the Marshalls' between 10:00 and 10:30 a.m. on Sunday. In one of the bedrooms, she saw Marshall, Richardson, and the feet of a third person. All three were sitting on a bed. She heard a voice that she recognized as defendant's say: " The little bitch deserved everything she got." She then heard Marshall say, " We've got to get our stories straight." Fleeman acknowledged that she told an investigator about these statements but later retracted them, claiming she had lied. She asserted she had retracted her earlier statements because she had been threatened.
Defendant's girlfriend, Rhonda Schaub, suspected he was involved in April's death and repeatedly asked him about it. One morning in mid-December 1988, after Schaub again confronted him, he angrily confessed. Schaub related that defendant said " he had killed April" and " they would never catch him." He said that, on Saturday, he picked up Marshall and Mills. They saw April walking and the three of them, along with Charlie Richardson, accompanied her to the Holleys' trailer. Contradicting his confession, he then claimed he, Marshall, and Mills left because April got angry. On cross-examination, Schaub conceded that she did not mention defendant's confession to police or defense investigators, and she had previously denied that defendant had confessed.
Victoria Lopez lived in the Tract with her boyfriend and knew Marshall. About six months after the murder, Marshall said he, Richardson, and another man were with April that night. They were playing music and dancing with April, which led to kissing and touching. He said " they went into the bathroom and that's where it all happened." " They all fucked her." Lopez did not tell anyone about Marshall's statements until 1991. She subsequently made various inconsistent [326 P.3d 197] statements about the circumstances of the conversation.
A young man named Lynn Farmer met defendant in May 1990, when Farmer was 14 or 15 years old. On May 30, 1990, defendant and Farmer talked about having a party and defendant suggested they steal some purses to finance it. Farmer recruited a couple of his friends and the four of them eventually went to a Tulare motel. Defendant and Farmer waited upstairs while the friends stayed on the ground floor. After a few minutes, there were screams downstairs. Defendant and Farmer looked to see two elderly women on the ground. As the men fled from the motel, defendant said, " Man, if I get busted for this, man, I'll get busted, you know, they'll hook me up with the old lady and April." He said that he " did the same thing to the old lady as he did to April," explaining he " [f]ucked her in her ass." Defendant threatened to hurt Farmer if he " ratt[ed]" on him.
Officers interviewed defendant twice. In January 1989, defendant related that, on Saturday, December 3, he met Marshall [172 Cal.Rptr.3d 587] and Mills at 11:00 p.m. and drove them to Linnell Camp to buy cocaine. He stopped by the cotton gin, then drove around with the boys using the drugs. After the car ran out of gas, the boys walked home and defendant walked to his sister's residence, arriving about 4:10 a.m. When he told his sister about the car, she angrily told him to retrieve it. A man known as J.D. drove defendant to get gas. On the way, they saw two men run across the street. Defendant recognized them as Charlie Richardson and James Stubblefield. Richardson had something resembling a pipe in his hand. Defendant and J.D. obtained the gas and drove Saldana's car back to the trailer, after which defendant went to sleep. He woke up between 11:00 a.m. and noon and learned April had been killed. He claimed Stubblefield had previously tried to molest April and urged the police to investigate. Defendant acknowledged that he knew Charlie Richardson.
After defendant was arrested for April's murder, he asked to meet with officers and was interviewed in September 1990. He conceded that he had lied about seeing Richardson and Stubblefield crossing the street. He now claimed he drove his girlfriend to work about 6:00 p.m. that Saturday. Asked what he did between 6:00 p.m. and after 8:00 p.m. when Schaub clocked in to work, defendant said he could not remember because they were on drugs and they could have been having sex. Defendant maintained that he picked up
Marshall and Mills at the Tract between 8:30 and 9:00 p.m., took them to Linnell Camp, bought cocaine, then drove back towards the Tract about 2:00 a.m. When the car ran out of gas, he walked back to his sister's trailer. He could not explain why he did not arrive at his sister's until after 4:00 o'clock that morning. He admitted acting strangely the following day, but claimed he did so only after learning about April's death and because he was still high on cocaine. He denied killing April or going to the Holleys' trailer on Saturday night. He also denied committing a purse snatching with Farmer or making any statement about April to him.
The defense called a variety of witnesses. Two men who had been romantically involved with witness Victoria Lopez testified she was not trustworthy. Jessie Bradley testified he drove around with Charlie Richardson between 7:00 and 9:30 p.m. on Saturday, December 3, then dropped him off at a house. An occupant of that house testified she saw Richardson there about 8:00 or 9:00 p.m. Rhonda Schaub clocked in to work at the cotton gin on Saturday at 8:14 p.m. Lynn Farmer made various inconsistent statements to police about the details of the purse snatching he committed with defendant.
Defendant called several witnesses to rebut Kimberly Fleeman's testimony that she heard defendant say on the morning following the murder, " 'The little bitch deserved everything she got.'" Three witnesses testified they did not see Fleeman on Sunday, December 4. All admitted, however, that they did not arrive at the Marshalls' trailer until after 11:00 a.m. Marshall's father testified a person could not hear a conversation from where Fleeman had claimed to be unless people were " close to yelling." Contrary to his trial testimony, Mills had told police that [326 P.3d 198] he did not recall seeing Fleeman that morning. Fleeman made various ...