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People v. Jackson

Supreme Court of California

August 1, 2016

THE PEOPLE, Plaintiff and Respondent,
BAILEY LAMAR JACKSON, Defendant and Appellant.

         Riverside County Super. Ct. No. RIF97839, Patrick F. Magers Judge.

          Richard I. Targow, under appointment by the Supreme Court, for Defendant and Appellant.

          Kamala D. Harris, Attorney General, Dane R. Gillette and Gerald A. Engler, Chief Assistant Attorneys General, Julie L. Garland, Assistant Attorney General, Holly D. Wilkens and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.

          LIU, J.

         Defendant Bailey Lamar Jackson was convicted by a jury of first degree murder (Pen. Code, § 187, subd. (a); all further statutory references are to the Penal Code unless otherwise indicated), first degree burglary (§ 459), and first degree robbery (§§ 211, 215, subd. (a)) of Geraldine Myers. The jury found true the special circumstance allegations of robbery murder and burglary murder. (§§ 190.2, subd. (a)(l7)(A), (G).) Jackson was also convicted of attempted murder (§§ 187, subd. (a), 664, subd. (a)), first degree burglary (§ 459), first degree robbery (§§ 211, 215, subd. (a)), torture (§ 206), forcible rape (§ 261, subd. (a)(2)), forcible oral copulation (§ 288a, subd. (c)(2)), and sexual penetration with a foreign object on an unconscious person (§ 289, subd. (d)) against Myrna Mason. The jury found true allegations that Jackson personally inflicted great bodily injury on a person 70 years of age or older in the commission of the attempted murder and torture. (§§ 12022.7, subd. (c), 1192.7, subd. (c)(8).) In connection with the rape and forcible oral copulation charges, the jury found true that Jackson inflicted aggravated mayhem or torture on Mason (§ 667.61, subd. (d)(3)), that he entered her house with the intent to commit a violent sexual offense (§ 667.61, subds. (c) & (d)(4)), and that he personally inflicted great bodily injury on Mason (§ 667.61, former subd. (e)(3)). The jury also found that Jackson had been convicted of two prior prison offenses (§ 667.5, subd. (b)), two serious prior felonies (§ 667, subd. (a)), and two serious or violent felonies within the meaning of the “Three Strikes” law (§§ 667, subds. (c), (d)(2), & (e)(2)(A), 1170.12, subd. (c)(2)(A)).

         The jury was unable to reach a penalty verdict. A new jury was empaneled and the penalty phase was retried, resulting in a verdict of death. The trial court denied the automatic motion to modify the penalty, sentenced Jackson to death for the count of murder, and imposed a sentence of 212 years to life on the remaining counts. This appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); § 1239, subd. (b).) We remand to the trial court to recalculate the noncapital portion of Jackson’s sentence. In all other respects, we affirm the judgment.

         I. Facts

         A. Guilt Phase

         In May 2001, 82-year-old Geraldine Myers disappeared from her home in Riverside, California. Her car was later located in Las Vegas, but her body has not been found. Six weeks later, Myrna Mason, an 84-year-old woman living alone in the same neighborhood, was raped in her home. Jackson was arrested the following day for Mason’s rape. The investigation yielded evidence suggesting that Jackson was also involved in Myers’s disappearance, which led to further investigation specifically designed to connect Jackson with the Myers case. The following factual summary roughly tracks this chronology. Thus, certain evidence relevant to the Myers case (most notably, evidence derived through dog trailing) follows the discussion of the Mason case.

         1. Prosecution Evidence

         a. Discovery of Myers’s Disappearance

         Myers’s daughter-in-law Monique testified that, on Mother’s Day, May 13, 2001, she took Myers to a Sunday service at the Arlington Christian Church. Later that evening, one of her sons, William, took her to dinner. William and Myers returned to her home between 7:00 and 7:30 that evening, and he stayed with his mother until about 8:45 p.m. Monique called Myers several times throughout the following day (May 14), but received no answer. After speaking with her brother-in-law, Richard Myers, who had similarly been unable to reach Myers that day, Monique decided to see if Myers was home. Monique went to Myers’s house on San Simeon Way at around 9:00 p.m. that night, but no one answered the door. Monique obtained a key to the back door (which was locked) from the property manager and entered the house. She looked around for five or 10 minutes and walked down the hallway and into the living room, but did not go into either bedroom. There was a light on in the living room, but the rest of the house was dark. She checked the front door and found it locked. She did not notice anything unusual, so she returned the spare key and went home.

         Monique called Myers the next morning and again received no answer. Monique then called her daughter, Robin Myers Wilson, and instructed her to go to Myers’s home to “see what’s going on.”

         Robin Myers Wilson testified that, on May 15, 2001, after speaking with her mother, she went with her younger sister Deanna to Myers’s home. Wilson immediately noticed that something was wrong: cleaning products were in disarray, Myers’s shoes were scattered on the floor, and a window curtain was lying in the sink. Wilson recognized Myers’s purse in the kitchen. Walking further into the house, Wilson noticed an apparent bleach stain in the hallway, which had not been there when she had visited the Saturday before, as well as a torn envelope on Myers’s bed. In the spare bedroom, Wilson found a dress and pantyhose lying on the floor. (Roberta Myers, Geraldine Myers’s daughter-in-law, described this as the black skirt that Myers had worn on Mother’s Day. Deanna described it as the blue dress Myers had worn that day.) Wilson called her mother to tell her that something was wrong and then called 911 to report that Myers was missing.

         b. Preliminary Investigation of Myers’s House

         Riverside Police Officer Robert Arnold testified that he took a missing persons report from Myers’s son, Douglas, and then drove to her home at around 12:30 p.m. on May 15, 2001, to investigate. He walked the perimeter of the house and did not see any signs of a forced entry or a disturbance within the house.

         Riverside Police Sergeant Victor Williams testified that, on the afternoon of May 15, 2001, he went to Myers’s house to collect evidence in relation to the missing persons report. In front of the house, Williams found newspapers from Monday, May 14, and Tuesday, May 15. As he walked through the house, a stain in the hallway “stood out” to him. It looked like a bleach stain but gave off no distinctive smell. Williams also noted a strike mark on the door opening from the hall into the living room, which was shallow and appeared to have been made by a hard object. White marks around the same door suggested that it had been recently cleaned. Similar marks were visible on the door from the hallway to the laundry room.

         Williams found two empty beer bottles and an empty water bottle in a garbage bag in the laundry room. These items did not yield DNA or latent fingerprints. William Myers, Myers’s son and the last person to leave her house on Mother’s Day, testified that neither he nor Myers consumed beer that evening.

         Williams also found approximately $8, 000 in cash and bags of coins in Myers’s bedroom closet.

         c. Recovery of Myers’s Car in Las Vegas, Nevada

         Las Vegas Police Officer Steven Perry testified that, on May 18, 2001, he stopped a red Toyota Corolla, later identified as Myers’s car, outside the city for a lane infraction. The driver was 16-year-old Donald Rogers. Rogers told Officer Perry that he had found the car in a Las Vegas parking lot with the keys in the ignition and decided to take it. During an inventory search of the vehicle, officers found a Macy’s shopping bag in the trunk that appeared to have blood on it.

         Federal Bureau of Investigations Special Agent Lawrence Wenko testified that he lifted 21 latent fingerprints from the vehicle, none of which belonged to Jackson. Wenko also collected the Macy’s bag, an aqua-colored wallet, and a white plastic bag containing shoes and other items, all of which he checked for hair and fibers. He collected soil and debris from the passenger side rear bumper. He did not identify any blood in the vehicle, other than what was on the Macy’s bag. He obtained video surveillance tapes for May 16 and 17, 2001, from the store where Rogers said he had found the car; no earlier surveillance tapes were available.

         Rogers testified that he stole Myers’s car from the parking lot of a shopping center. He was looking for a car to steal, saw that the keys to the Corolla were in the ignition, and decided to take it. Rogers drove the car around with his friend, Jose Davila, and several of Davila’s cousins. He recalled being surprised by how empty the vehicle was; he did not find anything in the passenger compartment or glove box, not even a vehicle registration. He described the trunk, however, as full of “[a] lot of shoes and crayons and a bloody bag.” Rogers did not recall taking anything from the trunk, except some crayons for Davila’s sisters. Rogers testified that he and his friend played with the bag, teasingly pushing it towards each other, and that, in the process, he may have taken it out of the trunk and put it back in, although he was not “a hundred percent sure.”

         Rogers’s statements were inconsistent as to the date on which he found Myers’s car. At the time of his arrest, he told Officer Perry he had taken it on Thursday, May 17. During an interview several weeks later, he told Riverside Police Detective Bill Barnes that he had taken it on Wednesday, May 16. At trial, Rogers testified that he found the car on either Monday, May 14, or Tuesday, May 15, but that he could not say for sure which of the two dates was correct.

         Detective Barnes traveled to Las Vegas on Friday, May 18, 2001 to inspect Myers’s car and interview Rogers.Barnes testified that Rogers expressed shock upon learning that the car was connected to a murder. Rogers told Barnes that he did not have ties to Southern California and had never been to Riverside.

         California Department of Justice (DOJ) fingerprint analyst Linda Senteney analyzed the fingerprints lifted from the items in the trunk of Myers’s car. Senteney was unable to match the prints to anyone connected to the case, other than Rogers and Davila. Riverside County Sheriff’s fingerprint examiner James Edmonston was likewise unable to match any of the prints to anyone related to the case, other than Davila and Officer Perry.

         d. Jackson’s Location on Mother’s Day 2001

         Angielina Fortson testified that she became romantically involved with Jackson in the spring of 2000. About one-and-a-half months before the assault on Mason, Jackson came to stay with Fortson, who was living with her mother, Billie Harris, on Lassen Court in Riverside.

         Fortson testified that Jackson had gone outside to lift weights at some point after dark on May 13, 2001. She heard him lifting weights for 25 to 30 minutes, but he did not come back inside for over two hours. When he returned later, Fortson noticed that he was sweaty. He told her he had gone to have a few beers with their neighbor, Richard Shrader. Jackson and Fortson fell asleep; when Fortson woke up at 9:00 a.m. the next morning, he was gone. He returned late that evening and told her that he had been working with his friend, Joe Taufaao.

         On cross-examination, Fortson stated that she could remember the events of May 13, 2001, distinctly. She had been upset that day because her ex-husband was supposed to bring her son to visit, but did not. She and Jackson drove Harris’s car to Jackson’s mother’s home. Then they returned to Harris’s house. Fortson’s sisters and nephew came over and Fortson braided hair for her nephew and several of his friends. Her sisters did not leave until 11:30 at night. At some point after dark but before her sisters left, Jackson went outside to lift weights. When everyone had left, Jackson comforted Fortson and the two had sex until early in the morning, then fell asleep. When Fortson woke up at 9:00 a.m., he was still there. She fell asleep and woke up later in the morning or early in the afternoon. By then, he was gone and he did not return until late in the evening.

         Richard Shrader’s wife Debra testified that, at 9:30 p.m. on May 13, 2001, Jackson had tapped on their window and Richard had gone outside to talk to him. Jackson asked Richard if he could borrow $40. Richard said he would have to ask his wife and went inside his house. Later that night, Jackson came to the door and asked again. Richard declined to lend him the money. However, they had not lifted weights together or gone to a bar. Richard does not drink because he is a recovering alcoholic.

         In April 2003, investigator Martin Silva from the district attorney’s office interviewed Fortson’s daughter, Sheena. Sheena told Silva that, after Mother’s Day of 2001, her mother was “gone for like two or three days, ” though she did not know where because her mother did not usually tell Sheena where she was going. Sheena told Silva that she thought Jackson was with her mother and that they left on the afternoon of Mother’s Day. At trial, Sheena testified that she did not remember making these statements. With respect to Jackson’s whereabouts, she stated, “I didn’t say he was gone with her. I said she was gone.”

         Police interviewed Jackson’s friend Taufaao on June 22, 2001. Taufaao said that Jackson and Fortson did not take trips. A detective responded, “Cause [Jackson’s] telling us and Angie is telling us that they made a trip to Vegas.” Taufaao responded that although he didn’t know any details, he heard Jackson and Forston saying something about how they went to Las Vegas. At trial, Taufaao did not remember telling the police about a trip to Las Vegas. Instead, he said he remembered the couple talking about going to Vegas in the future, not returning from a recent trip. He recalled going out to dinner with his family on Mother’s Day, but did not know whether he had seen Jackson either that day or the day after.

         e. Additional Evidence Related to Myers’s Disappearance

         In a locked cabinet in Jackson’s bedroom at his parents’ house, police found an article about Myers’s disappearance clipped from a local newspaper.

         Investigator Silva testified that prints found in Myers’s bathroom were made by a pair of Vans shoes. Dana Guidice, vice president of product development for Vans, testified that the prints were made by shoes with a “wafflecup” sole, a feature that was used in only two models: the Blake and the Gravel. According to Guidice, approximately 20, 000 to 30, 000 pairs of the two patterns total were sold in the United States, primarily in Southern California. At trial, Fortson was shown a picture of a Blake shoe. She testified that Jackson wore that type of shoe when he mowed the lawn.

         Myers’s friend, Lilia Alberga, testified that Myers had blondish-reddish hair that she had styled at the beauty parlor every week.

         Loujean Price, a neighbor who shared a wall with Myers, testified that Myers would take her trash out to the dumpsters across the alley about three times per week, usually between 10:30 and 11:00 p.m. At around 11:00 p.m. on Mother’s Day 2001, Price heard three taps from Myers’s side of the wall, which sounded like someone was hammering a nail into the wall. She did not hear anything else before or after that.

         California Department of Justice Senior Criminalist Mark Traughber examined articles of Jackson’s clothing. One of his shirts had several holes ringed by discoloration, which Traughber found consistent with bleach stains. Traughber visually examined the stain on Myers’s hallway carpet and chemically tested the carpet, the padding beneath it, and the wood floor for blood. He also tested stains near the bathroom. These tests were negative for blood. Traughber noticed a small bloodstain on a heater grate, which matched Myers’s DNA profile.

         Traughber testified that there is no direct test that can be done to determine whether the stain on the hallway carpet was caused by bleach. He acknowledged the possibility that bleach would trigger a false positive result from the two tests he used to check for blood. He also testified that bleach is “very unstable when you take it out of that bottle, or you start to dry it, ” and will “react with anything around it and oxidize it” or decompose into salts and oxygen. He also testified that it was “common knowledge” that bleach could completely destroy blood. After giving this testimony, Traughber conducted several experiments to determine whether bleach could destroy blood, and how long bleach left exposed to the air would falsely test positive for blood. These experiments are discussed further below. (Post, at pp. 81-83.)

         f. Assault on Mason

         At 3:50 a.m. on June 22, 2001, Riverside Police Officer Raymond Soto was dispatched to Mason’s house on Lassen Court. On the stand, Soto recounted the details that he heard Mason tell the paramedics about the assault. Mason died before Jackson’s trial. On June 22, 2001, while she was in the hospital, Mason recounted a similar set of facts in a recorded interview with Detective Jeffrey Joseph, which was played for the jury. She also testified at a preliminary hearing on July 17, 2002. Her hearing testimony was read aloud at trial. Her statements were consistent on all occasions.

         She described staying up reading until 1:30 in the morning and then going outside to turn the water off. She had left her garage door slightly ajar because it was a hot day and there was a refrigerator in the garage. When she went back inside, she locked the door behind her, and turned to see a man wearing a ski mask step out from behind her washing machine into her hallway. He pushed her down to the floor and began choking her. Then he stood up and pushed her into the bedroom. He pushed her onto the bed, told her to take her clothes off, and slapped her on the back with his open hand. It hurt, and she told him that she had rods in her back. He took off his ski mask, but she did not see his face. He told her repeatedly that if she looked at him, he or “his buddies” would kill her.

         Mason described the details of the sexual assault. “He fondled my breasts briefly and he did not try to penetrate me, but he just used his penis to just touch me.... [¶] From front to back between my legs.” He forced her to perform oral sex on him, something she “never ever had anything to do with... in my life, ” and which she found offensive. He asked, “ ‘You sure you never done this before?’ ” He choked her again, “[w]orse than the first time, ” and she felt she was about to lose consciousness. At some point, she did lose consciousness. When she woke up, she was toward the end of the bed with her legs hanging over the foot of the bed. There was blood “puddled” in both her ears. She found she was unable to stand up. “I couldn’t understand why I couldn’t get up and - until I looked around and noticed that there was a garden rake handle that he had thrust into my vagina.... [¶] I think there was blood on it about three or four inches down the handle from the end of the handle.” She removed the rake, took a few steps, and began to have diarrhea; she ran to the bathtub to wash herself, got dressed, and called 911. Among the injuries she sustained to her vagina, neck, and eardrums, she lost her singing voice and was unable to resume singing with her choir after the assault.

         Patricia Forst, an emergency room nurse responsible for clinical forensic examinations of sexual assaults, interviewed and examined Mason at the hospital. Forst testified that her physical examination corroborated Mason’s account of the assault. Mason suffered bruising on her hip and thigh, as well as her wrists, hands, and forearms. She had petechiae (small broken blood vessels) on her face and in her eyes, consistent with choking, as well bleeding in both ears, loss of hearing, and bruising to her neck, jaw, and throat. She also had bruising on her tongue and lacerations on her external genitalia and vaginal vault. Mason told Forst that her assailant threatened to kill her or have his “gang members” kill her if she called the police.

         At 6:10 a.m. on June 22, 2001, Riverside Police Detective Derwin Hudson arrived at Mason’s house. He searched the area and found a woman’s purse, later identified as Mason’s, in a trash can one block from Mason’s house. The trash can belonged to the Shraders. Hudson left the purse in the trash can, notified his sergeant that it had been found, and waited by the trash can for a technician to come and retrieve it.

         Senior evidence technician Tim Ellis testified that he arrived at Mason’s house at 6:50 a.m. on June 22, 2001. He took a number of photographs of the house and its surroundings. He testified that he noticed Mason’s garage door was open approximately 13 inches, which was enough space for someone to crawl in.

         Fortson testified that her mother woke her up at around 7:00 or 8:00 a.m. on June 22, 2001, and told her that the police were outside. The police entered the room where Jackson and Fortson had been sleeping. They asked about several television sets that were in the room, one of which was later determined to be Mason’s (the serial number matched the number on a warranty card provided by Mason). Police arrested Jackson that morning and took him and Fortson to the Spruce Street police station to be interviewed. Riverside Police Sergeant Kevin Stanton testified that Mason’s checkbook was found stuffed inside Fortson’s purse. Shrader testified that on the night of June 21, 2001, Jackson knocked on the Shraders’ door around 8:00 p.m. Jackson asked Richard if he could borrow $20. Richard lent him $15.

         Mehul Anjaria, a DNA analyst from the San Bernardino Sheriff’s crime laboratory, analyzed a bloodstain on a pair of Jackson’s pants. She testified that the DNA profile matched Mason’s at 13 points. She estimated that only one in 120 quadrillion Caucasian women would have a matching profile. (A quadrillion is the product of one million and one billion.) The probabilities that the profile would match a black or Hispanic woman were even lower.

         California Department of Justice Criminalist Michelle Merritt, an expert in shoe impressions, testified about the shoe print found in the dirt outside Mason’s home. While there were no uniquely identifying marks, Merritt concluded that the print was left by a shoe whose design, size, and wear were consistent with shoes owned by Jackson.

         g. June 22, 2001 Dog Trailing

         Riverside Deputy Sheriff Coby Webb, a canine officer, arrived at Mason’s house on the morning of June 22, 2001, accompanied by a bloodhound, Maggie Mae, who had been trained to trail human scent. Webb used a “device that sucks up scent onto a gauze pad, ” referred to as a “scent transfer unit, ” to vacuum the scent from the shoe print found in the freshly raked dirt outside Mason’s home and transfer it onto a gauze scent pad. Webb presented the scent pad to Maggie.

         Webb testified that Maggie trailed from outside Mason’s home across the street and around the trash can that still contained Mason’s purse. Maggie continued from there to the Shraders’ porch, then turned and walked to Harris’s backyard, at which point she seemed confused and appeared to have lost the trail. Webb testified that this reaction may have been the result of “pooling, ” which occurs when many trails of the target scent overlap at a single location. Webb testified that pooling can occur at the residence of the person who left the scent the dog is trailing.

         Webb and Maggie were called to the Spruce Street police station. Webb was asked if she and Maggie could trail to or eliminate a suspect who was detained inside the station. In the lobby, Webb presented Maggie with the scent pad collected from the shoe print outside Mason’s house. Maggie trailed through the police station and into an interview room where Jackson was seated with a police officer. Maggie did not “commit herself to jump up” on Jackson, but she approached him and stopped trailing. Webb testified that when Maggie “gets confused, she will just stop, which tells me she did not know which subject was the possible suspect.” Webb noticed that the air conditioning was on in the building, which she said made it harder for Maggie because “that person’s scent is going all through the air-conditioning vents.” Webb had to pull Maggie out of the room, which further suggested to Webb that Maggie had located the person she was trailing.

         h. Jackson’s June 22, 2001 Police Interview

         The day Jackson was arrested, June 22, 2001, detectives Barnes and Joseph interviewed him about the assault on Mason. As the interview progressed, the detectives began to suspect that Jackson was at times referring to Myers. A recording of the interview was played for the jury.

         Barnes began the interview by explaining that they were investigating an assault that occurred up the street from where Jackson was staying and that items of Mason’s property had been found in his possession. Jackson denied that Forston was involved and stated that his “homeboys” Mark Johnson, “Psycho Bullet, ” and “Tom Dog” gave him the television through his window. He said the three men had “pecked” on his window after he and Fortson had gone to sleep, asked him for the $15 he had borrowed earlier from his neighbor, and slipped the television through the window. He acknowledged that the television was stolen, but denied knowing anything about the theft.

         Jackson stated that the three men had given him a gun along with the television. When asked where the gun was, he first said that he had thrown it into the trash and later said they had come back to get it. He did not otherwise mention the gun during the interview. When asked about the checkbook found in Fortson’s purse, he said that it came through the window in a box along with the television and the gun. When asked where the box was, he said that he had taken his medication before the men came and was too tired to pay attention to what was going on.

         Jackson stated that he takes Haldol and Cogentin. He said he knew his friends were going to break into a house, but he did not do anything to stop it. He said that he was struggling to remember what happened because he had taken his medication and drank beer that night. Eventually, he said that he remembered carrying the television set. He said he “knew he did somethin’ bad” and was “tryin’ to think of a story.” He said he had gone for a walk that night to think about his problems. He saw a garage door that was open and he went in to hide. The owner shut the door, locking him inside, which made him feel scared.

         Barnes asked Jackson what he did inside the house. Jackson said he made a sandwich and drank some water at the sink. He said he initially thought no one was home, but was startled when an older woman with red hair “came out of nowhere.” The woman did not look old to him. He “just flipped” and punched her in the face. He wanted to leave, but could not get out because the doors were locked from the inside. He left through a window. He did not remember taking the woman’s purse, but thought he had taken her checkbook on his way out. He said he had made up the friends on whom he initially blamed the theft of the television.

         After further discussion, Jackson said he thought he carried the woman to her car. He placed the woman in the passenger seat, drove onto the freeway, and threw her out the car window by the hair. He walked home and, by the time he woke up, had forgotten about the television. When the police arrived, he wondered what he had done. He asked the detectives whether he had killed the woman when he threw her out of the car. He remembered driving past a Jack in the Box and tossing her body out of the car before he reached Victorville, at a spot called “the View.” The spot was up in the mountains near a big white church. He described the woman’s car as a grey Audi.

         Barnes asked if he could be confusing two situations and Jackson said he did not think he was. Barnes asked if Jackson remembered ripping the woman’s clothes off and raping her, and Jackson said no. Barnes brought up the fact that there had been a similar incident in the neighborhood recently and Jackson said, “I didn’t do it.” Jackson said he was positive because he remembered hearing about the details of the earlier incident from his mother. The detectives asked if he could remember any details of the sexual assault on Mason. Jackson said he could remember “stabbing her in the back” with a “long machete knife.” When asked if he was having a flashback to a different event, he said, “I think all this was like the same lady, the same lady I seen in the house is the same, the same lady with the red hair and that’s all, that’s it, that’s all I know.” Riverside Police Sergeant Steven Johnson testified that there were no other cases in 2000 or 2001 in Riverside with fact patterns that matched Jackson’s statements to police, i.e., cases in which an elderly woman was stabbed, taken somewhere in her car, and then dumped on the road.

         The detectives asked Jackson if he would ride with them toward Victorville to indicate where he left the body and he agreed. We take judicial notice of the fact that Victorville, the town near where Jackson indicated he left a body, is on the route between Riverside, where Myers lived, and Las Vegas, where her car was found. (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 715, 744-745 [courts may take judicial notice of matters of common knowledge, including official maps].) Myers’s body was never found.

         i. June 25, 2001 Dog Trailing

         Barnes, Johnson, Webb, and Police Officer Tina Banfill Gould testified regarding dog trailing conducted at the Orange Street police station on June 25, 2001, to test whether Jackson’s scent could be linked to Myers’s disappearance. Police chose the location because Jackson had not been there before. To lay the trail, Jackson was led through the station by Barnes and Johnson from the entrance, around at least two corners, and into a men’s locker room. The detectives sat Jackson on a bench, closed the door, and stayed in the room with him. They were dressed in casual clothing, while Jackson was wearing an orange jail jumpsuit.

         Webb presented Maggie with a crumpled manila envelope, which had been found on Myers’s bed on May 15, 2001. It took Maggie 10 to 15 minutes to trail from the starting point, around both corners that Jackson had turned, to the locker room. When Webb opened the locker room door, Maggie walked past the detectives, walked down the row where Jackson was seated, and put her paws on the bench and her head next to his chest. Webb testified that this indicated that Jackson’s scent was on the manila envelope.

         In addition to Webb, the prosecution called two expert witnesses, Dr. Lisa Harvey and State Trooper Douglas Lowry, to testify about the use of dog trailing. Their testimony is discussed further below. (Post, at pp. 41-44.)

         2. Defense Evidence

         The defense called Dr. Lawrence Myers, a professor at the Auburn University College of Veterinary Medicine and an expert on detector dogs, who testified about the reliability of dog trailing. Dr. Myers disputed Dr. Harvey’s opinion regarding how accurately an experienced dog can discriminate among and follow human scents. His testimony is discussed further below. (Post, at pp. 44-46.)

         Detectives Sutton and Barnes testified that, on the afternoon of June 22, 2001, they drove with Jackson to the area he described as the View to try to find Myers’s body. A handful of detectives and a trained dog searched an area of multiple acres for several hours. They did not find the body. A few days later, another search was conducted near Victorville, but nothing was found.

         Barnes testified that, when he interviewed Fortson at the Spruce Street station on June 22, 2001, she told him that Jackson spent the night with her on Mother’s Day, that they had sex, and that she cooked breakfast for both of them the next morning.

         Billie Harris testified that, during the day of May 13, 2001, Fortson and Jackson borrowed her car for about two hours. This was the only occasion on which she permitted them to do so. She did not recall whether she saw Jackson the following day, but, from the time Fortson came to live with her in March until the time Jackson was arrested, neither Fortson nor Jackson was ever gone overnight.

         Zubevi Khalfani, Harris’s grandson, testified that he would visit Harris several times per month. During his visits, he would lift weights with Jackson and Richard Shrader. On cross-examination, he stated that the last time he could recall lifting weights with them was on Mother’s Day 2001. That day, Khalfani was at Harris’s house until 5:00 p.m. and did not remember Jackson leaving the house while he was there.

         Jackson’s father, Bailey Jackson, Sr., testified that he drove a Greyhound bus route to Las Vegas prior to his retirement, but that he had last worked on March 30, 2001. Greyhound district manager Edward Bauer produced employment records showing that Jackson, Sr., worked on June 21 and 24, 2001, but on no other day in May or June.

         Regarding the newspaper clipping found in Jackson’s parents’ home, Jackson, Sr., testified that the cabinet contained items belonging to him and his wife, not to Jackson, and that his son did not have a key to the cabinet. Jackson, Sr., frequently kept newspaper clippings about unsolved crimes in case he came across information that could be helpful.

         B. Penalty Phase

         1. Evidence in Aggravation

         During the penalty phase retrial, the prosecution reintroduced much of the guilt phase testimony.

         In February 2005, at the prosecution’s request, Dr. Harvey ran two additional dog trails at the San Bernardino police station, using her own dogs to try to match Jackson’s scent to a scent pad that had been placed in the envelope found on Myers’s bed. This trailing is discussed further below. (Post, at pp. 111-115.)

         Barnes testified that, on June 22, 2001, he had a recorded conversation with Jackson while driving to the View to attempt to locate Myers’s body. The conversation, a transcript of which was admitted into evidence, ran as follows:

         “BARNES: Hey when you, the times you were in the joint, did you guys talk about, about, you guys cleaning evidence, like cleaning crime scenes, what not, you know, that shop talk, you know about cleaning up... after you did somebody? You guys ever talk about that?

         “JACKSON: No

         “BARNES: What are some of the common ways? That you know.

         “JACKSON: Like, like meaning what?

         “BARNES: Like, like whacking somebody.

         “JACKSON: Kill somebody?

         “BARNES: Yeah.

         “JACKSON: You got to get rid of the body....

         “[DETECTIVE] JOSEPH: What did you use to clean, what did they use [sic] clean up with?

         “JACKSON: I don’t know. They just usually them like one dude told me they go in with a jump suit on just regular clothes underneath and have on gloves and all that stuff....

         “BARNES: What would they put down to like cover up blood?

         “JACKSON: Cover up blood?

         “BARNES: Yeah....

         “JOSEPH: How you cleaned it up.

         “JACKSON: I, I would, I would throw some Clorox on it....

         “BARNES: Clorox bleach stuff.

         “JACKSON: [Uh huh.]

         “BARNES: How did you know that?

         “JACKSON: Huh?

         “BARNES: How did you know that?

         “JACKSON: I just, just thought of it.”

         The prosecution introduced victim impact testimony from Myers’s sons, Douglas and William, and from her granddaughter, Deanna. They testified about the pain and frustration of not knowing where Myers was or what had happened to her.

         The prosecution introduced evidence that Jackson had committed prior crimes, as found true by the guilt phase jury: robbery, aggravated robbery, attempted possession of a stolen vehicle, second degree burglary, infliction of serious bodily injury, and petty theft with a prior.

         2. Evidence in Mitigation

         Dr. Myers testified regarding the reliability of dog trailing evidence. In addition to the opinions he offered during the guilt phase, he opined that the February 2005 trails were unreliable because the procedure used allowed for Dr. Harvey to inadvertently cue the dogs. He stated that the fact that the dogs engaged in trailing was not sufficient, absent a conclusive alert at the end of the trail, to infer that they had matched Jackson’s scent to any scent on the envelope.

         Jackson’s family members testified about the childhood abuse that Jackson’s mother, Cleona, had inflicted on him and his siblings. Cleona regularly berated her children, including Jackson, and beat them with a belt. Jackson’s brother Larry recalled being beaten and tortured, having his hand held over an open flame on the stove, and being hospitalized once when Cleona threw boiling water on him. Jackson’s sister Dolores testified that Cleona struck her in the arm with a pipe, causing permanent nerve damage, and threw scissors at her. She also testified to having seen Cleona throw Jackson as an infant against a couch and yell repeatedly at him to shut up. Cleona also made her sons, including Jackson, beat Dolores. Cleona taught her children to shoplift and used them to steal food from the store or from other people.

         II. Discussion

         A. Pretrial Issues

         1. Severance

         Jackson contends that the trial court committed reversible error in denying his motion to sever the Mason counts from the Myers counts.

         a. Background

         Jackson moved before trial to sever the Myers charges from the Mason charges. He argued that the evidence relevant to each incident was not cross-admissible because the incidents were not sufficiently similar. He argued that evidence of the “brutal cross-racial sexual offense” against Mason would “overwhelm[]” the jury and prejudice the verdict on the weaker capital murder charge. He contended that there was no physical evidence linking him to Myers’s disappearance and “no description of other evidence as to who the perpetrator might be, ” leaving the prosecutor with “some equivocal statements, assuming admissibility[, ] and his proximity to the homicide.” Finally, he argued that few benefits would flow from joinder because there was only minimal overlap between the evidence and the legal issues relevant to each incident.

         The trial court denied Jackson’s severance motion. “[T]hese are not two completely unrelated events. Where we have a murder and then several weeks later we have a rape, and there’s no cross admissibility of the evidence. And under 954, joining them together, because they are both assaultive crimes. That’s not what we have. [¶] We have, again, the confession of the defendant - or I should say the admission of the defendant anchor [sic] both counts. And this body of evidence would be admissible whether we were trying the 187, or trying the attempt 187 and sexual assault. This evidence is probative. It’s highly relevant. [¶] Is it prejudicial? Yes, it is. Very prejudicial. We often say any evidence that is relevant and probative is certainly prejudicial to the defendant if it tends to show guilt. This is very prejudicial evidence. But on the other hand, it’s highly probative and relevant to the fact-finder.”

         b. Analysis

         Section 954 authorizes the joinder of two or more criminal charges, so long as the offenses are “connected together in their commission” or “of the same class.” Because murder and rape “are assaultive crimes against the person, ” they constitute “offenses of the same class of crimes” under section 954. (People v. Ramirez (2006) 39 Cal.4th 398, 439.) When charges are properly joined under section 954, a defendant must make a “clear showing of prejudice” in order to establish that a trial court’s denial of a motion for severance was an abuse of discretion. (People v. Lucas (2014) 60 Cal.4th 153, 214 (Lucas).) Because the “ ‘state’s interest in joinder gives the court broader discretion in ruling on a motion for severance than it has in ruling on admissibility of’ evidence” (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1221 (Alcala)), “a party seeking severance must make a stronger showing of potential prejudice than would be necessary to exclude other-crimes evidence in a severed trial” (People v. Arias (1996) 13 Cal.4th 92, 127 (Arias)).

         Our framework for analyzing prejudice in this context is well established. “Cross-admissibility is the crucial factor affecting prejudice. [Citations.] If evidence of one crime would be admissible in a separate trial of the other crime, prejudice is usually dispelled.” (People v. Stitely (2005) 35 Cal.4th 514, 531-532 (Stitely).) “If we determine that evidence underlying properly joined charges would not be cross-admissible, we proceed to consider ‘whether the benefits of joinder were sufficiently substantial to outweigh the possible “spill-over” effect of the “other-crimes” evidence on the jury in its consideration of the evidence of defendant’s guilt of each set of offenses.’ ” (People v. Soper (2009) 45 Cal.4th 759, 775 (Soper).) Three factors are most relevant to this assessment: “(1) whether some of the charges are particularly likely to inflame the jury against the defendant; (2) whether a weak case has been joined with a strong case or another weak case so that the totality of the evidence may alter the outcome as to some or all of the charges; or (3) whether one of the charges (but not another) is a capital offense....” (Ibid.)

         We conclude that the trial court, in the light of “ ‘the record... when it made its ruling’ ” (Soper, supra, 45 Cal.4th at p. 774), did not abuse its discretion when it denied Jackson’s motion to sever the Mason case from the Myers case. The Mason sex crimes evidence was fully cross-admissible, and even if it was not, the joinder satisfied the relevant factors. Furthermore, Jackson has not met his burden of showing that “joinder actually resulted in ‘gross unfairness, ’ amounting to a denial of due process.” (Arias, supra, 13 Cal.4th at p. 127.)

         Evidence Code section 1101, subdivision (a) sets forth the “ ‘strongly entrenched’ ” rule that propensity evidence is not admissible to prove a defendant’s conduct on a specific occasion. (4 Leonard, The New Wigmore: Evidence of Other Misconduct and Similar Events (2014) § 1.2, at p. 2; see People v. Villatoro (2012) 54 Cal.4th 1152, 1171 (Villatoro) [rule against propensity evidence “is at least three centuries old in the common law”].) “ ‘The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge. The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice.’ [Citation.]” (Villatoro, at pp. 1171-1172.)

         At the same time, “other crimes” evidence is admissible under Evidence Code section 1101, subdivision (b) “when offered as evidence of a defendant’s motive, common scheme or plan, preparation, intent, knowledge, identity, or absence of mistake or accident in the charged crimes.” (Lucas, supra, 60 Cal.4th at pp. 214-215.) In this inquiry, the degree of similarity of criminal acts is often a key factor, and “there exists a continuum concerning the degree of similarity required for cross-admissibility, depending upon the purpose for which introduction of the evidence is sought: ‘The least degree of similarity... is required in order to prove intent....’ By contrast, a higher degree of similarity is required to prove common design or plan, and the highest degree of similarity is required to prove identity.” (Soper, supra, 45 Cal.4th at p. 776, italics omitted.)

         In the light of the record before the trial court at the time it made its ruling, the trial court did not abuse its discretion in denying Jackson’s motion to sever the charges. As Jackson’s counsel pointed out during the severance hearing, both the Mason and Myers charges involved crimes against petite elderly women who lived alone in the same neighborhood where Jackson was staying, who were attacked six weeks apart in their homes late at night, and who were robbed of a small amount of property, without their homes being ransacked.

         The trial court had before it Jackson’s June 22, 2001 statements to the police that implicated him in both crimes. As the trial court explained, initially the police were not focused on the Myers crime during the June 2001 interview. Thus, had the charges been severed, the entire statement would be admissible in a trial on the Myers case because the jury would need to know certain background facts about the Mason incident in order to understand Jackson’s interview statements as evidence of his guilt on the Myers charges. For example, without knowing that Mason did not have red hair and that Myers did, the jury would not understand why the detectives believed Jackson was referring to Myers when he mentioned a woman with red hair. Likewise, without knowing that Mason was strangled in her house and left in her bed, the jury would not understand why Jackson’s description of stabbing a woman and throwing her out of a car window suggested he was talking about Myers as opposed to Mason.

         As the trial court reasoned: “I think the big key here... is the defendant’s confession. [¶] If the Court severed these counts and you proceeded first, let’s say on the 187 count [Myers], let’s say, as the trial judge, I would allow the confession in its total circumstance. And then the People would be able to introduce evidence that the defendant was making willfully false and misleading statements to the police by bringing in the testimony of Myrna Mason.” The court reiterated that “if this was just one count of 187 against Miss Myers, that entire confession would come in. You can’t separate it because it is so bound up and intertwined with everything. And then the People have the right to introduce evidence that he was making a false and misleading statement to the police, and bring in impeachment evidence from the Myrna Mason robbery, rape and attempted murder. So regardless of which count was being tried, the whole thing would come in. [¶] That’s the key here. It’s not only cross admissibility of evidence, it’s the pivotal evidence which anchors both counts.”

         The most salient evidence of the Mason crimes known to the court at the time it made its ruling - and the principal linkage that the prosecution sought to draw between the Mason and Myers crimes - had to do with Jackson’s torturous rape of Mason. We thus train our attention on whether the trial court correctly ruled that the evidence of the sex crimes against Mason would be admissible in a separate trial of the Myers charges. If so, the trial court did not abuse its discretion when it denied Jackson’s pretrial severance motion. We find that the Mason sex crimes evidence would have been admissible in a separate trial of the Myers charges for the purpose of proving intent and common plan.

         i. Intent

         For cross-admissibility of evidence based on common intent, “ ‘[t]he least degree of similarity... is required.... [T]he... misconduct must be sufficiently similar to support the inference that the defendant “ ‘probably harbor[ed] the same [noninnocent] intent in each instance.’ [Citations.]” [Citation.]’ ” (Alcala, supra, 43 Cal.4th at pp. 1222-1223.) “[T]he similarity required in order to prove the existence of a common scheme or plan, applies all the more to the use... of other charged crimes in order to prove intent - which, as noted, requires an even lesser degree of similarity among the offenses.” (Id. at p. 1226.)

         In Alcala, the defendant was charged with five murders, one in Orange County and four in Los Angeles County. In finding the evidence of the Los Angeles murders cross-admissible to show common plan and intent to murder in the Orange County case, we noted the similarities between the cases: “Each of the victims was a young, single Caucasian female; all of the homicides involved blunt-force facial trauma and occurred within a 19 month period; and the bodies of all of the victims were discovered unclothed, or nude from the waist down. In addition, all of the offenses appear to involve a sexually sadistic motive.” (Alcala, supra, 43 Cal.4th at p. 1224.) Although the incidents also differed in certain respects (including age, location of the bodies, evidence of sexual assault, and the positioning of the bodies), we determined that the similarities met the standard to support an inference of intent. (Id. at p. 1226 [“the evidence underlying the four Los Angeles County charges would be relevant at a separate retrial of the [Orange County] case to demonstrate the mental states of premeditation and deliberation required for murder”].)

         In Stitely, we found cross-admissibility on a theory of common intent where one victim was raped and the other murdered. (Stitely, supra, 35 Cal.4th at p. 532.) The prosecution introduced evidence that the defendant choked and raped one victim to show that he acted with “similar criminal intent” when he had sexual intercourse with the other victim, who was choked to death. (Ibid.) We held that “[t]he chance that defendant acted with innocent intent with [the murder victim] is sharply reduced by evidence that he committed a forcible, nonconsensual sex act upon [the rape victim] a few months earlier.” (Ibid.)

         In this case, the similarities between the two incidents suggest a common intent. As noted, in both incidents the victims’ homes were not ransacked, minimal property was taken, and in the Myers case her dress was found on the floor of the guest room. Thus, the evidence that Jackson burglarized Mason’s home and viciously attacked and raped her supported an inference that he had harbored the same intent toward Myers, who was another elderly woman living alone in the same neighborhood.

         ii. Common plan

         “To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual.” (People v. Ewoldt (1994) 7 Cal.4th 380, 403 (Ewoldt); see ibid. [“evidence that the defendant has committed... criminal acts that are similar to the charged offense may be relevant if these acts demonstrate circumstantially that the defendant committed the charged offense pursuant to the same design or plan he or she used in committing the [other] acts”]; People v. Catlin (2001) 26 Cal.4th 81, 111 (Catlin) [“evidence of uncharged misconduct must demonstrate ‘not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations’ ”].)

         Our case law has found cross-admissible evidence of a common plan in a variety of circumstances: where the sexual molestation victims were the defendant’s resident stepchildren and were molested by the defendant when they were of a similar age (Ewoldt, supra, 7 Cal.4th at p. 403); where both victims were the defendant’s close relatives and both had been poisoned with a rare substance (Catlin, supra, 26 Cal.4th at p. 111); where “[e]ach [crime] involved the robbery of a woman alone in an office, and each involved a violent confrontation, ” even though two of the incidents involved sexual assault and one did not (People v. Foster (2010) 50 Cal.4th 1301, 1330); and where all three offenses took place in the same geographic area, occurred within one month of each other, and involved home invasion robberies in which the victims’ cars were taken, and where two of the offenses were carried out in the victim’s garages by men with ski masks who asked similar questions of the victims (People v. Capistrano (2014) 59 Cal.4th 830, 849 (Capistrano)).

         In People v. Kraft (2000) 23 Cal.4th 978, 1002-1021, 1031-1032 (Kraft), we found cross-admissibility of evidence of 16 murders based on a common plan even though the crimes varied in geographic location and other details. “The victims shared certain characteristics, all being White males between the ages of 18 and 25, all but one being single, and most being, at the time of the offense, vulnerable by virtue of lack of transportation. The method of obtaining control over the victims was similar in most of the charged offenses: Defendant generally supplied the victims with alcohol and drugs, often diazepam, to the point they could no longer resist, whereupon defendant generally bound their wrists with ligatures, frequently using shoelaces. After gaining control over the victims in such a manner, unless they were already succumbing from the effects of the drugs, defendant killed them, often by ligature strangulation. After the victims’ deaths, defendant disposed of the bodies generally by dumping them from his car, usually on or near a freeway or other roadway. And each murder involved some type of arguably sexual activity or aberration, whether taking the form of sodomy, mutilation or stripping the victim of clothing.” (Id. at p. 1031.) The court noted that even though the crimes were not committed in an identical way, “a lesser degree of similarity is necessary to admit evidence of other offenses to prove a common design or plan than to prove identity.” (Id. at pp. 1031-1032.)

         We also found cross-admissibility under a theory of common plan in People v. Marshall (1997) 15 Cal.4th 1 (Marshall), where the defendant was charged with a capital murder and a prior attempted assault. Cross-admissibility was established in part based on close geographic and temporal proximity as well as the identity of actions threatened or carried out on the victims: “Durneall H. was attacked in the same area as Sharon Rawls one month before Rawls was killed. During the attack on H., she was dragged towards the same abandoned apartment building in which Rawls’s body was later found. H. was strangled, so was Rawls. H. was told by her attacker that he intended to rape and kill her; there was evidence that the attack on Rawls too was sexually motivated. A bus pass belonging to H. and taken from her during the attack was found in defendant’s room; a letter belonging to Rawls was found in defendant’s possession when police detained him as he was leaving the building where Rawls’s body was found.” (Id. at p. 27.)

         In this case, several similarities between the Mason incident and the Myers incident suggest a general plan or method of operation. The victims were both elderly women who lived alone, making them vulnerable to attack. The victims lived near each other in the same neighborhood as Jackson. Each had briefly gone outside her home late on the evening of the attacks. Both victims’ homes were burglarized late at night after the women had been outside. In both incidents, only small amounts of property were taken, and neither home was ransacked. In both incidents, there was evidence of sexual assault. The dress found on the floor in the guest room of Myers’s home supported the inference that she did not disrobe on her own volition but rather was forced to undress. Jackson’s own conflation of the two crimes in his police interview further supports the inference that Jackson attacked Myers in the same way he attacked Mason.

         These points of similarity suggest that Jackson had a common plan of attacking elderly women late at night while they were alone in their homes in his neighborhood, with the purpose of sexually assaulting them. The evidence that Mason was viciously raped would have been admissible in a separate trial on Myers’s murder because it was probative of a common plan.

         In sum, we hold that the evidence of Mason’s rape was fully cross-admissible in the Myers case to prove common plan and intent. The two crimes were committed within a short span of time in close physical proximity against two elderly women who lived alone. In both cases, the victim’s home was burglarized late at night but was not ransacked; only a small amount of property was taken, and there was evidence of sexual assault. “If the evidence underlying the charges in question would be cross-admissible, that factor alone is normally sufficient to dispel any suggestion of prejudice and to justify a trial court’s refusal to sever properly joined charges.” (Soper, supra, 45 Cal.4th at pp. 774-775; see Kraft, supra, 23 Cal.4th at p. 1030.)

         Jackson argues that although cross-admissibility normally dispels any suggestion of prejudice, his case is an exception. We disagree. While evidence of the torturous attack and rape of Mason was likely to inflame the jury, so too was the evidence that Jackson attacked Myers, an elderly woman, late at night, sexually assaulted her, possibly stabbed her to death, and disposed of her body in a place where it would never be found. In addition, the Myers case was not weak. Jackson’s own statements, the recovery of Myers’s car in Las Vegas, the shoe prints in her home matching shoes similar to those he wore, and the dog trailing evidence strongly suggested his guilt. Finally, although the Myers case was a capital offense, “ ‘consolidation may be upheld on appeal where the evidence on each of the joined charges is so strong that consolidation is unlikely to have affected the verdict.’ ” (Arias, supra, 13 Cal.4th at p. 130, fn. 11.) Accordingly, we find that the trial court did not abuse its discretion in denying Jackson’s severance motion.

         Even if the trial court’s ruling was correct when made, we must reverse if Jackson shows that “joinder actually resulted in ‘gross unfairness, ’ amounting to a denial of due process.” (Arias, supra, 13 Cal.4th at p. 127.) In addressing this issue, we bring into focus the sex crimes evidence and how the prosecution used this evidence to incriminate Jackson on the Myers charges. Significant stretches of the trial were dedicated to detailed evidence of Jackson’s rape of Mason.

         The trial began with Officer Soto’s testimony that on June 22, 2001, he responded to a call concerning the “rape of an elderly woman.” The prosecution played a recording of Mason’s 911 call in which she told the dispatcher, “I’ve just been raped.” After the tape was played, Officer Soto gave further testimony regarding Mason’s description of the attack, stating that the perpetrator “threatened to rape her vaginally and anally, but she had the presence of mind to tell him that he probably wouldn’t enjoy it because she had most of her organs removed.”

         The next witness was Patricia Forst, the nurse who examined Mason at the hospital. Forst testified that her clinical forensic examination of Mason took 17 hours, the longest examination of a sexual assault victim that she had ever performed in seven years as a registered nurse. Forst described, among other things, lacerations in Mason’s vagina that were actively bleeding at 3:30 in the afternoon, over 12 hours after the assault, and bruising on Mason’s tongue consistent with choking or having an object jammed in her mouth. Forst also stated that Mason was in too much pain to undergo a pelvic exam without general anesthesia, which is not typically used for that procedure.

         Detective Joseph testified about his interview with Mason in the hospital. The prosecution played a tape of the interview, during which the jury heard Mason describe the incident in detail in her own voice. The interview lasted an hour. Mason’s statements to Joseph tracked the account she gave at the preliminary hearing, and she recounted each brutal fact of the assault in the most polite language she could manage. She said that when she woke up, there were “big spots about salad plate size of blood [] from each ear.” When she reached down and touched the rake handle, she thought at first that it was “a figment of my imagination, ” but then she pulled on it and “it kept coming out and kept coming out and kept coming out, I wasn’t pulling very hard because didn’t [sic] know what, how far up it was and how much damage it has, had done but uh, uh it seemed like it was forever before it finally was out.” Mason’s account of the violence she suffered was interspersed with details of her everyday life: she “rake[d] the pine needles out where a lawn should be”; she watched Wise Guy while she ate her television dinner; her wooden television stand was made for her by “the nicest neighbor ever anyone could want, he’s a retired school teacher and taught uh Wood Shop.” As recounted by Mason, the rape occurred during an otherwise ordinary night at home.

         The prosecutor introduced several photographs of the rake, including a close-up of the handle. He asked Ellis, the senior evidence technician, to point out the “reddish stain” on the end of the rake handle, which Ellis testified appeared to be blood.

         Two weeks later, the prosecution had the 70-page transcript of Mason’s preliminary hearing testimony read to the jury.

         At closing argument, the prosecutor explained how he thought the evidence of the Mason rape was crucial to understanding what happened to Myers: “Evidence of what the defendant did to Myrna Mason is undisputed.... [T]he proof of the defendant’s identity as the perpetrator of the attack on Myrna Mason is without question. [¶] In comparison, the proof of the defendant’s identity as the perpetrator of the crimes against Geraldine Myers is not as clear. But it is no less convincing when you examine the entirety of the evidence.” In framing his argument, the prosecutor urged the jury to reason from the Mason evidence to Jackson’s guilt of the Myers charges: “Begin your analysis of the evidence in this case with the crimes that occurred on June 22nd, 2001, the crimes against Myrna Mason. Because it’s the details of the commission of those crimes, the defendant’s conduct in the commission of those crimes and afterwards, the evidence that was collected during the investigation of those crimes, and the defendant’s statements when he was being question[ed] about those crimes that prove beyond a reasonable doubt that he is also the one who viciously attacked and murdered Geraldine Myers on May 13th, 2001.” After reviewing the Mason evidence, the prosecutor turned to the Myers murder and drew comparisons to the Mason crimes. In particular, the prosecutor said: “Neither place was ransacked. Not Myrna Mason’s, not Geraldine Myers’s. And that tells you something. The person who attacked Gerry Myers, like the person who attacked Myrna Mason, their primary motivation wasn’t theft.... The primary motivation was something else: violent, vicious sexual assault.” The prosecutor noted that the perpetrator did not take all of Myers’s valuables, that a dress Myers had been wearing that day was left on a bedroom floor, and that bleach had been used on the hallway carpet. The prosecutor then said: “Why do you think the defendant had to dispose of Gerry Myers’s body? The rational conclusion is not to cover up a theft; to cover up a rape. He knew his DNA was in her body and that’s why he had to get rid of her body and dispose of it. Otherwise why not leave her there like Myrna Mason? He knew he hasn’t [sic] ejaculated in Myrna Mason. He could leave a message with that body. [¶] But Gerry Myers, the first one, was different. We had a drop of her blood found on that heater vent analyzed.... [¶] Again, this isn’t a lot of blood for someone who has been violently murdered, suggesting she didn’t bleed a lot from the manner in which she was killed, which suggests that it wasn’t a stabbing like the defendant indicated in his statement but more than likely, based upon all the evidence that you have, she was strangled just like Myrna Mason during the vicious, violent sexual assault that was his primary motivation.”

         The prosecutor later argued that “the similarities to the way in which you find Gerry Myers’s house are haunting when you look at what happened with Myrna Mason, and the similarities are undeniable. And they are similar because they were perpetrated in an identical manner by the identical person, Bailey Jackson.” In closing rebuttal, the prosecutor said, “The one thing you have to recognize, the one thing that’s clear in this case, what that man’s capable of, we know, what he did to Myrna Mason. When you put that together with all of the circumstantial and physical evidence, including his scent on that envelope at the scene of Gerry Myers’s house, there is no doubt that he is the one that committed that crime.”

         The Mason sex crimes evidence, as presented above, was prejudicial in that it tended to show that Jackson was guilty of the Myers murder. But that does not mean joinder of the charges resulted in a grossly unfair trial. There was sufficient independent evidence of guilt against Jackson for Myers’s murder without evidence of the Mason sex crimes: the matching shoe print evidence; the dog trailing evidence; the physical and geographic similarities between the two victims and their residences; the similar circumstances of the two crimes; and Jackson’s own statements all strongly implicated Jackson as guilty of Myers’s murder. Thus, there is not a strong likelihood that without the evidence of the Mason sex crimes, Jackson would have escaped a guilty verdict in the Myers case.

         Accordingly, we conclude that joinder of the Mason and Myers charges did not result in gross unfairness amounting to a denial of due process.

         2. Dog Trailing Evidence

         Jackson contends that the trial court erred by admitting dog trailing evidence without holding a hearing under People v. Kelly (1976) 17 Cal.3d 24 (Kelly) or Evidence Code section 402. He argues that the admission of this evidence violated his Fifth and Sixth Amendment rights. We conclude that the evidence was properly admitted at both the guilt and penalty phases.

         a. Background

         i. Uses of Dog Trailing in This Case

         Dog trailing was used four times during the investigation of this case. The first time was in the early morning of June 22, 2001. Coby Webb, a deputy sheriff in the Riverside County Sheriff’s department, and her police dog, Maggie Mae, a bloodhound, were called to Mason’s house. Webb used a handheld device called a scent transfer unit to vacuum scent from a fresh shoe print outside the house and transfer it to a gauze pad that she presented to Maggie. Maggie trailed across the street and circled a garbage can, which was found to contain Mason’s purse. She then trailed down the street, walked onto the Shraders’ porch, walked off, and went over to the Harris residence, where Jackson was staying with Fortson. Maggie sniffed around for “quite a bit” in the area between the two houses, until Webb thought she was confused and brought her back to the garbage can to start over. From the garbage can, Maggie trailed down the street past the Harris residence and then appeared to have lost the scent.

         The second instance occurred later the same morning when Webb and Maggie were called to the Spruce Street police station. Webb was asked to “trail or eliminate” someone being held as a suspect. Webb was told that the suspect was in the building and had been in the lobby, but not which path he had taken from that spot. Webb presented Maggie with the same scent pad she had used earlier in the morning and Maggie began to trail through the building. Maggie walked into an interview room, came out, walked into a different interview room where Jackson was sitting, and stopped in front of him. Webb testified that Maggie did not “commit herself to jump up on” Jackson, but stood still in front of him.

         The third instance occurred on June 25, 2001, at the Orange Street police station. To lay the trail, Jackson was walked from the street entrance, through the building around at least two corners, and into a men’s locker room. Detectives Barnes and Johnson sat Jackson on a bench, closed the door, and then remained in the room with him. The detectives wore casual attire, while Jackson, the only Black man in the room, wore handcuffs and an orange jail jumpsuit. On the sidewalk outside the station, Maggie was presented with the crumpled manila envelope that had been found on Myers’s bed on May 15, 2001. The envelope had been collected by criminalist Mark Traughber, who placed a sterile gauze scent pad inside it for 15 minutes to collect any human scent that was left on it. The envelope was then placed inside a different manila envelope and the gauze pad was placed in a Ziploc bag. Both were taken to the Spruce Street station. On May 16, 2001, evidence technician Ellis treated the envelope with a ninhydrin solution to test for latent fingerprints, and then placed it in a sealed evidence bag. (Ninhydrin is a chemical “that detects fingerprints by staining them a color ranging from a light pink to a dark purple.” (Lucas, supra, 60 Cal.4th at p. 179.) The solution Ellis used contained ether acetate, ether ninhydrin, and xylene.

         It took Maggie between 10 and 15 minutes to trail from the starting point outside the station to the locker room door, following the exact path that Jackson had taken. When Webb opened the door, Maggie went past both the detectives and proceeded to the row of lockers where Jackson was seated. Webb lost sight of Maggie when the dog turned the corner to walk down Jackson’s row. When Webb reached the row where Maggie had turned, she saw Maggie jump into Jackson’s lap.

         The fourth instance took place in February 2005, between the two penalty phase trials. The pertinent facts are set forth further below in the context of ...

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