Superior Court of Kings County, No. 95CM5316, Peter M. Schultz, Judge.
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Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Gary D. Garcia, Deputy State Public Defender, for Defendant and Appellant.
Bill Lockyer and Kamala D. Harris, Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Stan Cross, Acting Assistant Attorney General, Carlos A. Martinez, Patrick J. Whalen and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
Opinion by Baxter, J., with Cantil-Sakauye, C. J., Werdegar, Chin, Corrigan, Liu, and Ramirez, JJ., concurring.
A jury convicted defendant Gene Estel McCurdy of the first degree murder (Pen. Code, § 187, subd. (a)),  kidnapping (§ 207, subd. (a)), and kidnapping with the purpose to commit a lewd act on a child under 14 years old (§ 207, subd. (b)) of Maria Piceno. The jury found true the special circumstance allegation of kidnapping murder. (§ 190.2, subd. (a)(17)(B).) The jury returned a verdict of death. The trial court denied defendant's automatic motion to modify the penalty verdict (§ 190.4, subd. (e)), sentenced
him to death on the murder count, and suspended the imposition of sentencing on the remaining counts.
This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.
Eight-year-old Maria Piceno disappeared on March 27, 1995,  and her body was discovered approximately two weeks later. At trial, defendant admitted being in the vicinity of Piceno's last known whereabouts, but denied kidnapping or killing her.
A. Guilt Phase
1. Prosecution Evidence
Around 3:00 p.m. on March 27, Arcelia Ferrel sent her eight-year-old daughter Maria Piceno to buy some food at Food King, a store two blocks away from their Lemoore apartment. About 20 minutes later, Ferrel went to look for Piceno, but could not find her. A receipt from the store indicated Piceno had bought some food at 3:18 p.m.
Eric Douglas saw Piceno in the Food King aisle where ice cream products were displayed. He recalled it being around 3:43 p.m. About 15 minutes later, Douglas saw Piceno in another store in the same shopping center as Food King.
Mychael Jackson saw defendant talking to Piceno and holding her hand outside of Food King. Jackson walked to his car, which was approximately 15 feet from defendant's truck. Jackson saw defendant open the truck's passenger door and " somebody short" got inside. Defendant then closed the door and walked around the truck to the driver's side. As Jackson drove off, he could no longer see Piceno in the parking lot. Although his car's clock indicated this happened around 4:00 p.m., he estimated it was actually 3:50 p.m. because he had set the clock to be 10 minutes fast.
Jackson admitted he had suffered a felony fraud conviction while defendant's case was pending. He denied receiving any benefit for his testimony or knowing that a reward had been offered for information regarding the murder. Jackson denied any involvement in Piceno's disappearance.
A receipt from a video store in the same shopping center as Food King indicated defendant rented three unrated " adult" videos at 3:28 p.m. that day.
A receipt from another video store in Lemoore indicated that defendant rented three " X-rated movies" at 3:34 p.m. A third receipt indicated defendant rented three " [p]ornographic films" around 4:10 p.m. from another video store in Lemoore. The jury heard the titles of the nine movies.
Mary Smith lived next to defendant and previously had been in a brief romantic relationship with him. Smith's mother, Mary Lazaro, was visiting Smith on the day of Piceno's disappearance. That evening Lazaro heard through the common wall shared with defendant's apartment what sounded like a child's soft whimpering. There were no children in the movie they were watching. Because Lazaro thought the whimpering was coming from defendant's apartment, Smith told her he did not have any children.
The next day, defendant and Smith were watching television together in her apartment when a news bulletin came on about Piceno's disappearance. Defendant sat up, faced the television, and shifted uncomfortably.
A few days after Piceno's disappearance, Smith told defendant she felt bad that the girl was missing. Defendant, who normally was an attentive listener, interrupted Smith in a hostile manner while not making eye contact with her.
Sometime during the last week of March defendant shaved off his mustache.
Defendant, who was in the United States Navy, was scheduled for a six-month deployment at sea starting around April 11. In the week preceding the deployment and while at sea, one of defendant's squadron mates noted he appeared to be unusually agitated, frustrated, and distant.
On April 9, Piceno's fully clothed body was discovered in Poso Creek, which is located in the greater Bakersfield area. Defendant's parents' house was in Bakersfield. Defendant's sister testified defendant was familiar with this creek because it was a well-known local landmark. A shower curtain similar to one that had been given to defendant would later be discovered partially buried approximately 500 yards upstream from Piceno's body.
Carole Cacciaroni, a criminal investigator employed by the Navy and stationed on the same ship as defendant, interviewed him on April 18. When Agent Cacciaroni asked defendant if he knew why she wanted to speak to him, he referred to Piceno's disappearance. Defendant explained he was renting adult-oriented videotapes at the video store in the shopping center around the time when Piceno was abducted. Defendant offered to be hypnotized to see if it would help him remember anything. Defendant denied knowing what had happened to Piceno. Defendant told Agent Cacciaroni that
prior to his deployment he regularly visited his parents' home. When Agent Cacciaroni informed defendant that Piceno was found dead, he became very upset, started to cry, and asked if Piceno had been molested. Defendant explained he was upset because he had recently quit smoking and had been under some stress.
The next day, defendant told Agent Cacciaroni that he was feeling " very disturbed" and " paranoid" because " everybody was pointing fingers at him and that he was sick to his stomach." Defendant appeared visibly upset, had red and teary eyes, tightly clenched fists, and " shaky" movements. Defendant told Agent Cacciaroni that he did not know if he should " get a lawyer." When Agent Cacciaroni asked him why he thought he might need an attorney, defendant continued to cry and rock in his chair. Defendant left Agent Cacciaroni's office, but returned a short while later and appeared to be much more relaxed. Agent Cacciaroni ran into defendant a few days later, and he acted " standoffish" and distant.
Police searched defendant's storage unit in Lemoore and found a box of approximately 30 adult-oriented magazines, several of which had sexually explicit titles and content focusing on teenaged women who were staged to appear younger than their actual ages. A list of titles of some of the recovered magazines was admitted into evidence, but the magazines themselves were not.
Defendant later told Bruce Ackerman, a federal deputy marshal assigned to the United States Postal Service and an expert on child pornography, that he had purchased the magazines. He also acknowledged the women in them looked younger than 18 years old. At defendant's trial, Deputy Ackerman testified that, in his experience, in every case in which a person had possessed similar magazines, that person had expressed a sexual interest in minors. Deputy Ackerman conceded he usually investigated only people who had expressed such an interest.
Deputy Ackerman also testified at trial that, when asked about the day of Piceno's disappearance, defendant said he could not remember what he had done after renting the videotapes.
Defendant's younger sister testified that he molested her when they were children. The molestations continued intermittently for over a decade. Several years after the abuse had ended, defendant apologized to his sister for molesting her, and told her that one of the reasons why he never married was " he was really afraid that he might molest his own children."
A forensic pathologist conducted an autopsy, determined Piceno did not die from a heart attack or other natural causes, and concluded she had died from
suffocation. Piceno also had non-life-threatening blunt force injuries. The pathologist could not locate Piceno's hymen, which was consistent with either molestation or decomposition. Based on the creek's temperature and the state of decomposition, the pathologist estimated Piceno's body could have been in the water for as long as two weeks.
2. Defense Evidence
Claudeen Jackson, who was married to Mychael Jackson but had filed for divorce, believed him to be an " impulsive liar" because he " constantly" lied to her during their marriage. On cross-examination, she admitted she had suffered a felony fraud conviction while defendant's case was pending. Annie Snowden, Jackson's ex-wife, testified he was " the biggest liar you will ever run into. He lies about everything." Two of Jackson's ex-girlfriends also were of the opinion that he generally was dishonest.
A Lemoore police officer testified about discrepancies in Mychael Jackson's testimony. For example, at trial Jackson testified that he looked at his car's clock when he entered Lemoore, but he had not mentioned to the interviewing officer the clock was fast. At trial he described the T-shirt defendant wore on the day of Piceno's abduction, but when initially interviewed by the police Jackson had not provided any details about defendant's T-shirt. Jackson's testimony also included other details about defendant's apparel and vehicle that were not mentioned during his initial interview.
A Lemoore police sergeant testified he interviewed Smith, defendant's ex-girlfriend, after defendant had deployed. Smith told the sergeant that, before his deployment, defendant said he shaved his mustache so he would not have to maintain it while he was at sea. Smith did not tell the sergeant that her mother had heard a child's whimper.
A Tulare County Sheriff's detective testified about Angelica R., a 10-year-old girl who had been abducted in Visalia approximately a year before Piceno's death. Angelica R.'s body was discovered in an irrigation ditch approximately 45 miles away from where Piceno's body was found. Defendant was stationed in the State of Washington when Angelica R. was abducted and he was not the donor of sperm recovered from her body. Unlike Piceno, Angelica R. had been strangled, was discovered nude from the waist down, and had been raped.
Defendant testified and denied any involvement with Piceno's disappearance and death. On the day of Piceno's abduction, defendant returned 12 adult-oriented videotapes and rented nine more, then went to his apartment and watched all nine videos, which he accomplished by watching portions of them in the fast-forward mode of play.
Defendant had been romantically involved with Smith, but denied being in her apartment after Piceno's disappearance, as Smith had reconciled with her husband by then. Defendant denied having the conversation about Piceno in which Smith claimed he interrupted her.
Defendant claimed he shaved off his mustache around a week before his deployment because he was not taking his electric razor with him. Defendant admitted to being " edgy" during his deployment, but claimed his mood was caused by the stress of a new job that had a lot of responsibility.
Defendant admitted he lied to Deputy Ackerman about not knowing his whereabouts on the day of Piceno's disappearance, but claimed he was embarrassed by having rented so many adult-oriented videotapes. Defendant admitted to having twice visited the creek where Piceno's body was found. He denied owning or possessing a shower curtain resembling the one found near Piceno's body.
Defendant admitted to engaging in sexual activities with his sister while they were growing up, but claimed the encounters were consensual. Defendant and his sister had admitted to each other that they both had been molested by their uncle. Defendant denied having a sexual interest in children.
B. Penalty Phase
1. Prosecution Evidence
Piceno's mother Arcelia Ferrel testified that her daughter was a helpful and thoughtful child who wanted to be a doctor when she grew up. Piceno's abduction and death made Ferrel very afraid, and she also feared for the safety of her other children. Piceno's death caused Ferrel to have nightmares, and her family was still in counseling. Ferrel brought some of Piceno's mementos to court.
2. Defense Evidence
Defendant's mother, Anetta McCurdy, testified about his life growing up. Defendant was the oldest of four children and participated in the Boy Scouts. The family was very poor. Defendant was helpful, did not cause problems, and had never been in trouble with the law. After graduating from high school, defendant entered the Navy and had been awarded the Naval Achievement Medal.
The stress caused by defendant's trial had been extremely difficult on his family, worsened his parents' health, and caused his mother to have nightmares. Anetta wanted defendant to live.
A. Pretrial Claims
1. Change of Venue
Before jury selection, defendant unsuccessfully moved to change the venue of his trial from Kings County. Defendant contends the trial court prejudicially erred by denying his motion.  We disagree.
A defendant's motion to change venue must be granted " when it appears that there is a reasonable likelihood that a fair and impartial trial cannot be had in the county." (§ 1033, subd. (a).) " Reasonable likelihood" in this context " 'means something less than " more probable than not," ' and 'something more than merely " possible." ' [Citation.]" ( People v. Proctor (1992) 4 Cal.4th 499, 523 [15 Cal.Rptr.2d 340, 842 P.2d 1100] ( Proctor ).) " ' " The trial court typically considers the nature and gravity of the offense, the size of the community, the status of the defendant and the victim, and the nature and extent of the publicity. On appeal, the defendant must show that denial of the venue motion was error (i.e., that it was reasonably likely a fair trial could not be had at the time the motion was made) and that the error was prejudicial (i.e., that it [is] reasonably likely a fair trial was not in fact had). We will sustain the court's determination of the relevant facts where supported by substantial evidence. We independently review the court's ultimate determination of the reasonable likelihood of an unfair trial." ' [Citation.]" ( People v. Zambrano (2007) 41 Cal.4th 1082, 1124-1125 [63 Cal.Rptr.3d 297, 163 P.3d 4] ( Zambrano ).)
In his motion, defendant contended his case had garnered significant media attention. It had been featured on the national television show, America's
Most Wanted . Three regional newspapers had published about 60 articles on the subject, and four regional television stations had broadcast numerous reports. Notably, one newspaper article quoted an anonymous law enforcement officer who, despite an order barring communication with the media,  said that defendant " basically admitted to everything. ... He's guilty as sin." Another article reported on a public memorial that was held for Piceno. In his motion, defendant also contended the order barring communication with the media prevented him from correcting inaccurate media accounts.
Without stating its reasons, the trial court denied defendant's motion without prejudice, allowing him to renew it " at a later date." He did not do so.
The Attorney General preliminarily contends defendant forfeited this issue on appeal because he did not renew his motion. " ' " [W]hen a trial court initially denies a change of venue motion without prejudice, a defendant must renew the motion after voir dire of the jury to preserve the issue for appeal." ' [Citation.]" ( Zambrano, supra, 41 Cal.4th at p. 1124.) We agree with the Attorney General that the claim is forfeited.
Defendant concedes he did not renew his motion after voir dire, but contends it would have been futile for him to renew his motion because the trial court was predisposed to keep his trial in Kings County. (Cf. People v. Hill (1998) 17 Cal.4th 800, 820 [72 Cal.Rptr.2d 656, 952 P.2d 673] [claim of prosecutorial misconduct not forfeited on appeal if a timely objection and request for admonishment would have been futile].) In support, defendant cites the court's remarks during a hearing regarding the order barring communication with the media, in which the court stated it believed a change of venue could impose an undue burden upon the victim's family's " right" to attend the trial. The court's comments regarding the family's right to a convenient venue were made nearly a year before defendant moved for a change of venue, when the court was ruling on another issue. Even assuming futility could excuse defendant's failure to renew his motion, the court's isolated remark does not establish irreversible hostility to changing venue.
In addition, even if the claim had not been forfeited, substantial evidence supports the trial court's ruling. The first factor of the legal analysis--the nature and gravity of the offense--favored a change of venue, but it did not compel one. The abduction and murder of a young girl from a shopping center is a shocking and serious crime, and the allegations of incestuous molestations were sensational. But the disturbing facts inherent in
most capital murder cases standing alone do not require a change of venue. ( People v. Pride (1992) 3 Cal.4th 195, 224 [10 Cal.Rptr.2d 636, 833 P.2d 643].) Although prospective jurors would likely sympathize with Piceno's fate, this sympathy stems from the nature of the crime, and not the locale of the trial. ( People v. Davis (2009) 46 Cal.4th 539, 578 [94 Cal.Rptr.3d 322, 208 P.3d 78].)
As to the second factor--the nature and extent of the media coverage--it did not heavily favor a change of venue. Of the approximately 60 newspaper articles published about defendant's case before his motion to change venue, around a third of them were published in the two months following his arrest. Defendant's trial occurred around 20 months after his arrest. The passage of time ordinarily blunts the prejudicial impact of pretrial publicity. ( People v. Harris (2013) 57 Cal.4th 804, 827 [161 Cal.Rptr.3d 364, 306 P.3d 1195] ( Harris ).) Moreover, we have affirmed the denial of motions to change venue in cases with more media coverage. (E.g., id. at pp. 823-825 [48 newspaper articles, 294 television reports; media coverage described as " 'substantial'" ]; People v. Ramirez (2006) 39 Cal.4th 398, 434 [46 Cal.Rptr.3d 677, 139 P.3d 64] [coverage of serial murder case described as " 'saturation'" ].)
The newspapers reported that the trial court excluded most of the questioning conducted by the police, and some articles included facts not admitted at defendant's trial. In addition, defendant specifically cites a newspaper article's coverage of his arraignment, at which he " appeared subdued as he arrived at the Kings County government complex ..., his chin tucked into the collar of a bullet proof vest. [¶ ] Insults and jeers were hurled as [defendant] passed by a crowd who gathered to watch the spectacle. 'No rope too short ... Death penalty, you bet,' onlookers cried out." Another article commented, " One could almost feel the deep sigh of relief the entire city of 13,000 breathed when news got out that someone had been caught ... ." Another article reported that one of defendant's distant relatives had received a death threat. Defendant further notes that some of the articles reported he was a suspect in the abduction or murder of other juvenile victims in California and Washington.
The record, however, discloses the tone of most of the articles was relatively neutral, and none was especially prejudicial or inflammatory. (See, e.g., People v. Famalaro (2011) 52 Cal.4th 1, 22-23 [127 Cal.Rptr.3d 40, 253 P.3d 1185] ( Famalaro ); People v. Prince (2007) 40 Cal.4th 1179, 1218-1219 [57 Cal.Rptr.3d 543, 156 P.3d 1015] ( Prince ); People v. Panah (2005) 35 Cal.4th 395, 448 [25 Cal.Rptr.3d 672, 107 P.3d 790] [recitation of inherently disturbing facts does not demonstrate media bias].) Moreover, a number of the articles focused not on defendant, but the court's order barring communication with the media. Other articles contradicted the reports that he
was a suspect in other child abductions, and presented defendant's mother's statement that she believed he was innocent. Particularly in light of the timing of the majority of the reporting mentioned above, the newspaper coverage did not strongly weigh in favor of a change of venue.
An episode of the nationally televised show America's Most Wanted reported on Piceno's abduction. The record does not contain any details about the episode other than that it aired soon after Piceno's disappearance, which occurred nearly two years before defendant's trial. Moreover, as America's Most Wanted was broadcast nationally, " a change of venue could not be expected to dilute its prejudicial effect." ( Zambrano, supra, 41 Cal.4th at p. 1127; see People v. Riggs (2008) 44 Cal.4th 248, 279-281 [79 Cal.Rptr.3d 648, 187 P.3d 363] ( Riggs ) [no finding of juror bias when three seated jurors acknowledged seeing an episode of America's Most Wanted featuring the defendant's case]; People v. Bolin (1998) 18 Cal.4th 297, 312-314 [75 Cal.Rptr.2d 412, 956 P.2d 374] [affirming denial of motion to change venue where 20 percent of the venire and three seated jurors had seen episodes of America's Most Wanted featuring the defendant's case].)
With respect to the third factor--the size of the community--its size at the time of defendant's trial did not weigh heavily in favor of change of venue. " 'The size of the community is important because in a small rural community, a major crime is likely to be embedded in the public consciousness more deeply and for a longer time than in a populous urban area.' [Citation.]" ( People v. Vieira (2005) 35 Cal.4th 264, 280 [25 Cal.Rptr.3d 337, 106 P.3d 990] [affirming denial of change of venue motion in a capital case in Stanislaus County, population approximately 370,000].) The size of the county, however, is not determinative; the critical factor is whether the size of the population was sufficient to dilute adverse publicity. ( Proctor, supra, 4 Cal.4th at p. 525.)
At the time of defendant's trial, the population of Kings County was 116,312. We have found reversible error in the denial of change of venue motions in capital cases in comparably sized counties. (E.g., People v. Williams (1989) 48 Cal.3d 1112, 1126 [259 Cal.Rptr. 473, 774 P.2d 146] ( Williams ) [Placer County, population approximately 117,000]; Martinez v. Superior Court (1981) 29 Cal.3d 574, 582 [174 Cal.Rptr. 701, 629 P.2d 502] ( Martinez ) [Placer County, population 106,500]; Frazier v. Superior Court (1971) 5 Cal.3d 287, 293, fn. 5 [95 Cal.Rptr. 798, 486 P.2d 694] [Santa Cruz County, population 123,790]; Fain v. Superior Court (1970) 2 Cal.3d 46, 52, fn. 1 [84 Cal.Rptr. 135, 465 P.2d 23] [Stanislaus County, population 184,600].)
On the other hand, we have also affirmed the denial of change of venue in capital cases tried in comparably sized communities. (E.g., People v. Hayes
(1999) 21 Cal.4th 1211, 1250-1251 [91 Cal.Rptr.2d 211, 989 P.2d 645] [Santa Cruz County, population under 200,000]; Proctor, supra, 4 Cal.4th at p. 525 [Shasta County, population approximately 122,100]; see People v. Coen (1928) 205 Cal. 596, 604-607 [271 P. 1074] [Kings County].) We cannot say the population size of Kings County by itself compelled a change of venue; it may have at most somewhat favored one. (See Proctor, supra, 4 Cal.4th at p. 526.) In Williams , for example, in addition to the size of the county, our reasons for reversing the trial court's denial of a motion to change venue included the fact that a substantial percentage of the venire knew either the victim, her family, or people in the district attorney's office. ( Williams, supra, 48 Cal.3d at p. 1130.) That was not the case here.
The fourth factor--the community status of the defendant, meaning whether defendant had any prominence in the community before the crimes--did not weigh heavily for or against change of venue. Defendant was not well known before his arrest. (See Famalaro, supra, 52 Cal.4th at p. 23.) Because defendant had lived in Kings County for only six months before the crimes occurred, he may have been perceived as an outsider by the community. (See ibid. ) But defendant also had no previous criminal record and was not a member of a racial or ethnic group that could be subject to discrimination. (See People v. Rountree (2013) 56 Cal.4th 823, 839 [157 Cal.Rptr.3d 1, 301 P.3d 150]; cf. Williams, supra, 48 Cal.3d at pp. 1126, 1129-1130 [the defendant was an African-American tried in a small county in which only 0.4 percent of the population was African-American].) There is no evidence he belonged to a group to which the community ...