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People v. Parker

Supreme Court of California

June 5, 2017

THE PEOPLE, Plaintiff and Respondent,
Gerald parker, Defendant and Appellant.

         Court Superior County Orange Francisco P. Briseño Judge.

          Michael J. Hersek, State Public Defender, and Jeffrey J. Gale, under appointment by the Supreme Court, for Defendant and Appellant.

          Edmund G. Brown, Jr., Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Annie Featherman Fraser and Holly D. Wilkens, Deputy Attorneys General, for Plaintiff and Respondent.

          Werdegar, J.

         Gerald Parker, nicknamed the “Bedroom Basher” by the media in the late 1970s for a string of unsolved home-invasion rape murders in Orange County, was convicted by a jury of the first degree murders of Sandra Fry, Kimberly Rawlins, Marolyn Carleton, Chantal Green, Debora Kennedy, and Debra Senior (Pen. Code §§ 187, subd. (a), 189)[1] with the special circumstances of multiple murder and murder during the attempted commission or commission of the crimes of rape and burglary (§ 190.2, subd. (a)(3), (17)(C), (G)). The jury returned a verdict of death, and the court imposed judgment accordingly. (§ 190.4, subd. (e).) This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in its entirety.


         A. The Guilt Phase

         In 1978 and 1979, defendant was a staff sergeant in the United States Marine Corps stationed in Orange County, California. During this time, six women in three different Orange County cities-Anaheim, Costa Mesa, and Tustin-were sexually assaulted and brutally beaten in their apartments. Five died from massive injuries to their heads caused by being struck with a blunt object with such force their skulls were fractured. One pregnant victim survived, but her fetus died as a result of the attack. These crimes went unsolved until 1996, when deoxyribonucleic acid (DNA) testing connected the homicides to each other and to defendant, who was then in prison on an unrelated parole violation. When interrogated and confronted with the DNA and fingerprint evidence during interviews the police tape-recorded with his knowledge, defendant admitted burglarizing all six homes. At trial, he did not contest his identity as the assailant of all six women, but claimed he lacked the requisite specific intent to commit the crimes due to voluntary intoxication.

         1.The prosecution case

         a) The victims

         (1) Sandra Fry

         On December 1, 1978, Georgena Stevenson returned home about 11:00 p.m. to the two-bedroom apartment she shared with 17-year-old Sandra Fry in Anaheim. Stevenson found Fry in her bedroom lying unresponsive across the bed and nude from the waist down. Her blouse was pulled up, exposing her bra, and there were obvious signs of trauma to her head, including blood around her mouth, nose, and hair. Fry was not breathing, although she was warm to the touch. Paramedics transported her to the hospital, where she was pronounced dead.

         Richard Fukumoto, M.D., the Chief Pathologist for the Orange County Coroner's Office, testified Fry died from subdural and subarachnoid hemorrhaging caused by cerebral lacerations and skull fractures from an unknown number of blows to her head by a blunt instrument, such as a baseball bat, two-by-four, or metal pipe.[2] Dr. Fukumoto explained a “tremendous amount of force” is required to fracture the skull, and such an injury quickly causes loss of consciousness. Fry also had a laceration on her lip, bruises and contusions over the bridge of her nose consistent with being struck in the face, bruises on her neck consistent with being choked, and bruising to her upper chest consistent with blunt force trauma. The injuries to her face and neck were consistent with a struggle. There were also signs of a struggle inside the apartment.

         The point of entry into the apartment was a window above the bed in Stevenson's bedroom. A latent fingerprint lifted from this window was later matched to defendant's left index finger. Subsequent testing of the semen swabbed from Fry's body yielded a DNA profile that matched defendant's.

         When he was interrogated in 1996, defendant described an attack matching Fry's case that occurred in Anaheim one evening in December 1978. Defendant was driving around when he noticed an apartment complex near Buena Park. Parking on a narrow road behind the complex, he climbed a fence and entered through the back where the garages were located. He passed three or four apartments before he reached one where he could see a woman sitting at the table in the kitchen with her back to the living room window. He watched her for about a minute before going to the back of the apartment and entering through an open bedroom window. After watching the woman for several more minutes, defendant approached her from behind, intending to rape her. Before she became aware of his presence he hit her in the head two or three times with a two-by-four, rendering her unconscious.[3] He dragged her into her bedroom and laid her on the bed with her legs spread apart. He pulled his pants and underwear down before removing her pants, tearing off her underwear, and ejaculating on her. Before he left, defendant noticed the woman was having difficulty breathing. He did not take anything from the apartment and exited through the same window he had entered.

         (2)Kimberly Rawlins

         On March 31, 1979, Roberta Birrittella and Donna Chavez went out on dates about 7:30 p.m., leaving Birrittella's roommate, 21-year-old Kimberly Rawlins, alone in their one-bedroom apartment in Costa Mesa. Chavez and her date returned about 11:30 p.m. to retrieve Chavez's identification. They spoke with Rawlins for a short time before leaving again sometime after midnight. Rawlins asked them to leave the door unlocked on their way out because she was going to take a shower and go to sleep and Birrittella did not have a key to the apartment.

         Birrittella returned home about 4:45 a.m. on April 1. The front door of the apartment was ajar and all the lights inside were off except the one in the bathroom. Hearing what sounded like a heavy sigh or forced breath, Birrittella went into the bedroom and found an unresponsive Rawlins wearing only an open bathrobe and lying half on and half off her bed. Rawlins's face was badly beaten; both her eyes were blackened and there was froth in her nostrils and swelling above both ears. Believing Rawlins to be dead and thinking the person responsible could still be inside their apartment, Birrittella fled to a neighbor's to call the police. Law enforcement officers who responded to the scene detected a faint pulse and began performing CPR on Rawlins. Paramedics arrived and continued CPR efforts, but soon after pronounced her dead.

         Peter Yatar, M.D., performed Rawlins's autopsy. He testified Rawlins died from brain contusions with subdural hematoma as the result of multiple skull fractures-a nine-inch fracture extending from her left ear across the top of her skull, a three-inch fracture to her right temporal lobe, and a two and a half-inch fracture just over her right eye-consistent with applying “a great amount of force” with a blunt instrument. These injuries would have rendered Rawlins unconscious immediately. Dr. Yatar explained 400 to 600 pounds of force per square inch would be required to cause similar skull fractures on a cadaver, and even greater force would have been necessary to cause Rawlins's nine-inch fracture. Rawlins also had hemorrhages around both eyes, almost identical bruises on both sides of her head, and a small laceration on her lower lip that could have been caused by blunt force or as the result of falling on the floor. She also had two broken fingernails and small abrasions on two fingertips.

         Subsequent testing of the semen found on the string of the tampon Rawlins had been wearing revealed a DNA profile that matched defendant's. It also matched the DNA profiles of the semen swabbed from Debora Kennedy and Debra Senior (see post).

         When he was interrogated, defendant described an attack he committed one night in Costa Mesa that matched Rawlins's case. He was outside an apartment window listening to three people inside talking. The man and one of the women left, leaving the other woman alone in the apartment. Defendant then drove around for about an hour before coming back. He entered the apartment through the unlocked front door with the intent “to go in and rape” the woman. The lights in the apartment were off. The woman was in the bedroom “sleeping in the nude.” Defendant recalled she was short and petite and that he struck her two or three times with the two-by-four he was carrying. He could not recall whether he was able to achieve an erection. He said he left the apartment the same way he entered, throwing the two-by-four onto the garage roof.

         (3) Marolyn Carleton

         On September 14, 1979, 31-year-old Marolyn Carleton and her nine-year-old son, Joseph, then known as Joey, were living in an apartment in Costa Mesa. About 11:45 p.m., the complex's manager, who lived next door, walked by and noticed Carleton's patio sliding glass door and drapes were open but the screen door was closed. The light was on in the dining area and the manager could see Carleton, who appeared to be asleep on the floor.

         Shortly before 3:00 a.m. on September 15, a law enforcement officer was dispatched to Carleton's apartment.[4] The patio's sliding glass and screen doors were now open but the drapes were closed. Joey met the officer outside, saying his mother had been hurt; he directed the officer inside, where the apartment was dark except for a hallway light. Carleton was found lying on the master bedroom floor, partially propped up against the bed and nightstand. She had a very weak pulse, was struggling to breathe, and appeared to be unconscious. Her face and hair were covered with blood and there was a large wound on the top of her skull. The short nightgown she was wearing had been pulled up above her waist and her underwear was down around her right leg between her knee and ankle. Paramedics transported Carleton to the hospital, where she died the next day.

         Dr. Fukumoto testified Carleton died from subarachnoid and subdural hemorrhage and cerebral contusions as a result of blunt force trauma.[5] She had a “massive” scalp laceration above the left earlobe that extended back to the base of the skull. Beneath this was a depressed skull fracture that was “quite extensive” and had lacerated the brain tissue. A “large amount of force” from a blunt instrument was required to inflict these injuries. Carleton also had areas of bleeding around her left eye and in her right anterior shin, medial calf, and thigh, but no defensive-type wounds. A rape kit taken from Carleton after her admission to the hospital yielded insufficient biological evidence for any type of testing or analysis.

         During his interrogation, defendant was asked if he remembered attacking a woman where “her little boy was home.” Defendant replied, “Oh yeah. Geez, how did I forget that one?... I didn't know the little boy was in there, until it was too late....” Defendant described scaling a back wall and entering Carleton's apartment through an unlocked sliding glass door. Carleton was asleep in her bed with a nightlight on. She was wearing a nightgown but no underwear. Defendant hit her in the head three or four times with the intention of knocking her unconscious so he could rape her. He did not recall what he used but said “in most cases, it was [two-by-fours]... these things were laying all over the place at that time....” He attempted to sexually assault her but could not recall if he got an erection or ejaculated. Defendant said when he exited the bedroom, he “bumped into” the boy in the dark hallway and the boy asked, “[W]hat's wrong with mommy.” Defendant did not say anything, moved the boy aside, and left the apartment the same way he entered.

         (4)Chantal Green

         On September 30, 1979, 20-year-old D. Green was nine months pregnant and living in an apartment in Tustin with her husband who was in the Marines. At 2:15 a.m., a law enforcement officer responded to a call from the apartment and was met outside by the husband, who appeared to be in a state of shock and said his wife had been injured. D. was in the bedroom, unconscious and lying on the bed nude with her legs spread apart. She was having difficulty breathing and was bleeding from a two-inch hole in the middle of her forehead, as well as from her ear and nose. There was blood on the bed and floor, and blood spatter on the wall behind the bed. The wound to her head was so deep it exposed brain tissue and was so pronounced the officer initially believed she had been shot. D. was transported to the hospital. Several hours later her unborn fetus, Chantal, ceased to have vital signs and was delivered stillborn.

         Dr. Fukumoto performed Chantal's autopsy and testified regarding her cause of death as well as D.'s injuries. The wound to D.'s head had been caused by blunt force consistent with being hit by a mallet or the end of a baseball bat. This would have rendered her unconscious immediately and caused severe underlying damage to her brain. Shock from this traumatic injury caused D.'s body to shift the oxygenated blood to her heart, lungs and brain, resulting in her uterus receiving less oxygenated blood. Chantal died from intrauterine anoxia caused by the marked decrease in the oxygenation of her mother's blood.

         D. spent 10 days in a coma and remained in the hospital for about three weeks. When she regained consciousness, she had total amnesia and could not remember anyone. She had to learn to talk and spell all over again, a process that took years. D. eventually regained her memory but at the time of defendant's trial, some 17 years later, she still had problems communicating, particularly if someone talked fast or the subject matter was technical.

         D.'s husband was convicted of the second degree murder of Chantal and of attempting to murder his wife and assaulting her with force likely to cause great bodily injury. He was committed to prison in November 1980 for a term of 15 years to life. Subsequent testing of the sperm on the vaginal swab from D.'s rape kit taken revealed a DNA profile that matched defendant's. In June 1996, D.'s husband was released from custody after an Orange County Superior Court judge set aside his convictions and dismissed the case against him.

         When interrogated, defendant admitted he was the one who attacked D.. He said he was drunk and it was around midnight when he drove up and parked his black van close to her apartment complex. While walking around the complex, he overheard D. and her husband arguing, heard a car start up, and then saw the husband drive away. Defendant left for about an hour, drank some more alcohol, then came back and entered the apartment through the unlocked front door. He saw memorabilia in the living room indicating the husband was in the Marines. D., who was noticeably pregnant, was lying on the bed in the bedroom. Defendant rushed toward her and hit her in the head with a board he had picked up outside the apartment. After knocking her unconscious, he raped her and ejaculated inside her. Defendant denied taking anything from the apartment, asserting that “[i]n no case... was a robbery involved... these were all cases of rape and then out of the house.”

         (5) Debora Kennedy

         On October 6, 1979, Yvette Levay and a friend left for Las Vegas about 9:00 p.m. Levay's sister, 24-year-old Debora Kennedy, stayed home alone in their apartment in Tustin. When Levay returned to the apartment the next day about 6:00 p.m., the front door was open and Kennedy was lying in an exaggerated spread-eagle position on a blood-soaked mattress on the floor of her bedroom. She had massive blunt force trauma to her face and showed no signs of life. Her body was covered with a knitted shawl and there was blood spatter on a nearby credenza. She was unclothed except for a robe and there was a mucous-like substance between her legs in the vaginal area.

         Dr. Fukumoto testified Kennedy died from cerebral laceration with subdural and subarachnoid hemorrhaging caused by blunt force trauma to the head with resulting skull fractures.[6] The extensive fracturing of her skull started above the right earlobe (the point of impact) and radiated down to the base and the opposite side of the skull. This injury would have required at least five blows from a blunt instrument-such as a baseball bat, two-by-four, pipe, or the flat end of a hammer-delivered with a large amount of force. Kennedy also sustained multiple injuries to both sides of her face and periorbital hemorrhage to her eyes, but no defensive wounds.

         There were no signs of forced entry to, or struggle inside, the apartment, but a window in a back rear bedroom had been opened and its screen removed. Subsequent testing of the sperm swabbed from Kennedy's body revealed a DNA profile that matched defendant's.

         When he was interrogated, defendant described the attack on Kennedy as occurring late at night or during the early morning hours. He said he took a mallet he found in the back of a pickup truck parked close by and entered Kennedy's apartment through a window that was cracked open. When he entered the living room Kennedy was asleep on the floor leaning against the couch with the television on. She had a blanket over her but defendant claimed she was not wearing any clothes. He hit her on the head with the mallet, raped her, and ejaculated inside her. He recalled Kennedy was “kind of heavy” and said there was “no particular reason” for selecting her single-story apartment.

         (6) Debra Senior

         On October 20, 1979, Debra Chamberlain and 17-year-old Debra Senior went together to a party in Fountain Valley, California. About 10:30 p.m., Senior left in Chamberlain's car to return home alone to their apartment in Costa Mesa. Chamberlain later got a ride home with a friend, arriving about 2:30 a.m. The lights in the apartment were on and the stereo was playing. Chamberlain found Senior lying on the floor of her bedroom near the foot of the bed, unclothed except for a pair of socks. She had suffered severe head trauma and her hair was matted with blood. Blood spatter extended from her left shoulder, elbow, and forearm onto the foot of the bed. A torn blouse and unsnapped bra had been pulled up around her shoulders. Buttons from the blouse were found on the floor next to her body. A green towel had been partially wrapped around her neck. Torn underwear was lying on a pair of shoes near the bed and the contents of a purse were on the floor near her feet.

         Dr. Fukumoto testified Senior died as a result of a hemorrhage from a cerebral laceration and contusions caused by blunt force trauma with skull fractures.[7] A skull fracture associated with two elongated lacerations on the right side of her head radiated downward to the base and around to the left side of her skull. Fragments from the fracture had lacerated her brain. A pipe, two-by-four, or baseball bat could have inflicted these injuries, which would have required more than one blow with a “large amount of force” and would have rendered Senior unconscious almost immediately. Blood spatter at the crime scene was consistent with Senior's not having moved after being struck on the right side of the head while lying on the bed. Autopsy photographs showed the head injuries suffered by Senior and Kennedy were both slightly curved lacerations, leading Dr. Fukumoto to suspect the same blunt instrument had been used in both cases.

         The point of entry into the apartment was a bathroom window; there were partial shoe prints on top of a gas meter outside the window and on a bar of soap on the floor of the bathtub directly under the window. One of the handprints lifted from the windowsill matched defendant's left palm. Subsequent testing of the sperm swabbed from Senior's body revealed a DNA profile that matched defendant's. As noted, it also matched the DNA profiles of the semen swabbed from Rawlins and Kennedy.

         During defendant's interrogation, a detective described the area where Senior's apartment had been located, prompting defendant to recall, “I know, I gotcha... this one was young... 17, 18, something like that.” He described parking a “considerable distance” from Senior's apartment and pretending to be a jogger in the neighborhood while he looked in windows. He saw Senior's apartment was empty and entered through a bathroom window. He had been there for about 20 minutes when Senior came home. Hiding in the bathroom, he watched Senior make a drink in the kitchen, sit down on a couch in the living room, and eventually fall asleep. Defendant exited the bathroom and hit Senior in the head two or three times with a two-by-four, rendering her unconscious. He then carried her into one of the bedrooms, laid her on the floor, removed her underwear, raped her, and ejaculated inside her.

         b) Defendant's interrogations and statements

         (1) Avenal State Prison

         In June 1996, Costa Mesa Police Department Detective William Redmond obtained some of the DNA test results linking defendant to the above homicides. On June 14, Redmond, investigator Lynda Giesler, and Tustin Police Department investigator Thomas Tarpley drove to Avenal State Prison in Kings County to serve a search warrant on defendant and to interrogate him. About 10:30 a.m., Redmond, Giesler, and defendant were placed in one of the prison's interview rooms.[8]

         After advising defendant of his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436), Redmond explained that a blood sample taken when defendant was last released from prison had been run through a computer database and defendant's DNA “came up on a couple of Costa Mesa homicides back in 1979.” Defendant said he had been through Costa Mesa but never lived there and did not recall the area well. From 1975 to 1978, he had been stationed at the Marine base in Tustin, where he was assigned to a helicopter squadron and typically worked the night shift from 4:30 p.m. until 8:00 a.m. on weekdays. Toward the end of his career in the Marines, he was transferred from Tustin to El Toro, where he spent just a few months. Defendant described his lifestyle at this time as revolving around drinking and using drugs. He drank “anything I could get my hands on, ” smoked marijuana for a number of years, did PCP and as much LSD as he could, and used cocaine and heroin for about three months. His only close friend was another Marine, Albert Garcia, with whom he shared an apartment in 1975 and early 1976 and often socialized.

         Defendant briefly described his family and upbringing, and said he had “always had problems” meeting women and never developed relationships with them. He claimed he did not keep track of Orange County news and did not recall hearing in 1979 about women in Costa Mesa being sexually assaulted and murdered. When Giesler reiterated that defendant's DNA matched that found on four victims, he responded, “I don't know what to tell you.” Redmond clarified that the DNA was obtained from semen and the victims had been hit on the head and raped. He asked if defendant had ever experienced violent tendencies on PCP or if it was possible he had “met a girl, saw a girl, followed a girl home, and then, whatever happened happened?” Defendant did not think he “could forget something like that.” Giesler encouraged him to confess and “[g]et the monkey off your back, ” but defendant said “the day is not today” and “I think I should wait until later on.... I just need some time to... to draw upon some strength.... To say what I have to say.” He told Redmond and Giesler to come back after he was transferred to Orange County jail in 23 days. Giesler agreed, but said another investigator from Tustin had come with them and wanted to talk to him.

         Redmond and Giesler left the interview room, at which time Tarpley entered. Tarpley readvised defendant of his Miranda rights and defendant agreed to talk to him “about why I'm here today.” At 12:09 p.m., Tarpley began to interrogate defendant. He explained he was investigating a 1979 Tustin homicide and asked where defendant had been living at that time. Defendant said he was staying at the Marine Corps Air Station in El Toro and recounted much of the background and personal history he had given to Redmond and Giesler.

         Tarpley showed defendant a picture of Debora Kennedy. Defendant said he had never seen Kennedy before and did not know why his semen would be in her, saying, “I find it hard to believe that it matched four and here's a fifth. I have no idea.... None whatsoever.” Tarpley also described the Green case. Defendant recalled reading there had been an argument and the husband, who was a Marine, hit the victim in the head. He asked if the husband was on death row. Tarpley said the husband had been convicted but that he did not know if he was on death row. Defendant admitted it was “possible” he had killed someone while under the influence of drugs because sometimes he “blacke[d] out” and would do and say things he did not remember. Tarpley urged defendant, “Today's the day that you take control and you say... I'm going to do the right thing, and that's what we're here for.... And that's what I'm asking you to do.... Can you do that for me?” In response, defendant asked, “Is Costa Mesa still here?” Tarpley replied affirmatively. Defendant asked to use the bathroom, stating, “then we can... get this over with.”

         Detective Redmond and investigator Giesler joined Tarpley in the interview room at 1:05 p.m. and defendant proceeded to confess to the homicides at issue. He began with the case of “the Marine and his wife, ” saying: “I believe that there is a man on death row because of something that I did [and] out of all these murders and the crimes that I committed over the years, that was the one that bothered me the most....” Defendant had heard about the attack on the radio and read about it in the newspaper in 1980 or 1981, but claimed his memory was hazy due to drinking and drugs. In general he used to get drunk at bars and then drive around looking for a prostitute or woman-“that's where this started, you know, looking through windows or hoping that you find a door open, that sort of thing....”

         Defendant described the attack on D. Green as detailed above. He claimed he “couldn't even get an erection... in most of these cases, because I was drunk and under the influence of drugs....” Tarpley asked, “[H]ow many women do you think... you attacked?” Defendant was not sure; “I didn't know these people were actually dying, until I heard it... on the radio.” He could not recall his first attack, but denied attacking any women in other states where he had been stationed.

         Defendant also described the attacks on Debora Kennedy, Kimberly Rawlins, Marolyn Carleton, Debra Senior, and Sandra Fry as detailed above. He reiterated he did not take anything from the apartments and never went through drawers or closets because he was not in the homes long enough. He never wore gloves and did not wash anything or wipe anything clean when he left. He read a couple of articles about the incidents while incarcerated and heard things on the radio, but had not known the full extent of what had happened until now. Sometimes the day after an attack he would recall he had gone “out, ” but other times he experienced “a total blackout” and would not recall what had happened until later. Defendant never told anyone about the attacks, although he thought about them. Two or three years before, he had gone through a drug rehabilitation program and left thinking, “[T]hat's probably what I've been doing all these years is trying not to face... what I'm facing now and I'm trying to stay away from it, because... I don't know how to handle it....” Defendant could not recall any other cases and said he only remembered the last three or four he described by “shaking my memory.” At the conclusion of the interrogation, defendant's blood was drawn pursuant to the search warrant.

         (2) California State Prison Corcoran

         About 10:30 p.m. the same day, Anaheim Police Department Detective Richard Raulston and Sergeant Steven Rodig interrogated defendant, who meanwhile had been moved to California State Prison Corcoran, regarding Fry's case. Raulston inadvertently erased a portion of the tape recording while trying to duplicate it, so he returned to the prison on June 16, 1996. There, he readvised defendant of his Miranda rights, and defendant repeated much of what he had previously confessed regarding Fry's death, adding more details.

         On June 18, 1996, Redmond and Giesler went with their supervisor and a technician to interrogate defendant on videotape. Defendant again was advised of his Miranda rights and again agreed to speak to investigators. He provided a lot of the same and some additional information regarding his background and the crimes. Defendant said he began using LSD and mescaline in junior high school in San Diego. After basic training, he was stationed in Adak, Alaska, where he first tried alcohol. He drank every day, including when he was on duty. His drinking and drug use reached the point he was not reporting to work, and by mid-1979 he was about to be kicked out of the military.

         Regarding the crimes, defendant claimed his intent had been only to knock the women unconscious so he could rape them. It never occurred to him he was killing the women because once in a fight he had knocked his opponent out by hitting him in the head with a two-by-four and, although there had been a small amount of blood, this did not kill the man. Defendant thought everyone's skull could withstand the same amount of force and hitting the women in the head only rendered them unconscious. He first thought about assaulting women shortly before the first assault. Later, when he was in prison, he thought the cases were so old the victims might have passed away or there might have been insufficient evidence to identify the assailant.

         2. The defense case

         Defendant presented no evidence during the guilt phase and engaged in limited cross-examination of the prosecution's witnesses. In opening and closing argument, the defense conceded identity, but relied on defendant's statements to argue he was guilty of only second degree murder as to each victim based on diminished capacity due to intoxication.

         B. The Penalty Phase

         At the penalty phase, the prosecution relied on the facts and circumstances of the murders, including the impact on the victims' families, and introduced evidence regarding several additional acts of violence. Defendant testified on his own behalf and presented the testimony of a friend from his time in the Marine Corps and the expert opinion of a forensic psychiatrist.

         1. The prosecution's case-in-aggravation

         a) Other acts of violence

         (1) 1979 rape

         On July 19, 1979, Jane D. was living alone in a Costa Mesa apartment. She went to bed between 11:00 and 11:30 p.m., but was later awakened by noises in the hallway. When she went to investigate, a man grabbed her and told her to shut up, after which she lost consciousness. During this brief encounter, Jane did not notice any signs of his being intoxicated. A friend coming to see her the next morning found the apartment's front door open a few inches and Jane lying unconscious in bed on her back. Her eyes were swollen and there were scratches on her face and bruising behind her ear. She looked like “a prize fighter after a fight.” Her pillow was covered in blood, and blood was splattered on the bedroom wall and heater. Jane was taken to the hospital, where she remained in a coma for about four weeks. She suffered an “ear to ear” skull fracture and required a permanent tracheostomy as a result of having been strangled. At the time of defendant's trial she could not breathe well and could not swim or engage in heavy exercise. As a result of permanent nerve damage, she also had problems chewing and difficulty forming words.

         DNA extracted from sperm from the vaginal swabs from Jane's rape kit matched defendant's profile. When he was interrogated in prison in June 1996 defendant confessed to assaulting Jane.[9] He said he had been drinking that night and entered the apartment through an open dining room window. He found Jane sleeping in the nude and hit her in the head with a two-by-four, which he later discarded in a dumpster. He believed he was unable to obtain an erection and that he ejaculated without penetrating her. Defendant admitted he entered the apartment to see if there was a female inside and, if so, to knock her unconscious and rape her.

         (2) 1980 robbery

         On February 2, 1980, defendant was visiting his brother, who lived in Pasadena, California. Around 10:00 p.m., Aida Demirjian arrived at the Pasadena apartment complex where she lived and was locking her car in the underground parking structure when defendant hit her two or three times in the head with an iron rod. She fell down and pretended to be unconscious, but defendant kept hitting her. She got up and started to run and yell for help but he ran after her, grabbed her, and hit her again. Demirjian fell a second time and again pretended to be unconscious as defendant dragged her a few feet, ripped a necklace from her neck, and looked through her purse. When he subsequently lifted up her skirt, she got up and ran to the manager's apartment for help. Demirjian was hospitalized for several days and required surgery and physical therapy to repair a skull fracture and several broken fingers.

         A law enforcement officer was dispatched to the scene around 10:20 p.m. About a half-block from Demirjian's complex, defendant crossed the street in front of the officer's marked police car. The knees of defendant's pants were scuffed and appeared stained. When the officer exited the car and approached defendant, he noticed blood on defendant's pants, shirt, and hands. Defendant was calm, cooperative, and compliant, and did not appear intoxicated when he was detained and taken into custody. Another officer found a bloody metal pipe on the floor of the parking structure, as well as a gold and pearl necklace. A certified copy of defendant's October 1980 conviction, pursuant to his guilty plea, for robbery and infliction of great bodily injury during the commission of a robbery, was introduced as evidence.

         (3) 1980 rape

         On February 15, 1980, 13-year-old Paula S. attended her father's funeral. About 3:30 p.m., she was walking home from a drug store in Tustin when a black van drove past her and pulled over. Defendant got out and went around to the back of the van as though he were checking the tire. As Paula walked by the van, he grabbed her by the sweater, punched her in the face, threw her into the van, and drove off. While driving, defendant kept looking at Paula through the rearview mirror, saying, “[S]tay down, stay down, or I'll kill you.” He later stopped in the parking lot of a small shopping center, got in the back of the van, and raped her. Afterward, he asked Paula personal questions, such as what her name was and how old she was. When it was dark, he drove close to where she lived and dropped her off in an alley, saying, “If you tell anybody, I'll come back and I'll kill you.” When she got home, Paula told her mother what had happened and the police were called. Defendant confessed to the attack when interrogated a few days later. When interrogated in prison in June 1996, he also talked about “a rape he had been convicted of” and said it probably saved the girl's life that she was so young. The prosecution introduced a certified copy of defendant's May 1980 conviction, pursuant to his guilty plea, for kidnapping and rape by threat.

         (4) 1984 assault

         On the night of February 13, 1984, David Feurtadot was sharing a room with defendant at the state prison in Tehachapi, California, and was asleep when defendant began hitting him in the back of the head with a curved piece of steel approximately two feet in length. Feurtadot chased defendant out of the room and into the hallway, but had to sit down because he was bleeding profusely; he almost passed out from the pain. The three- to four-inch cut on his head required stitches and he stayed in the hospital facility for a week. Defendant never said why he attacked him, and Feurtadot did not know the reason. At the time of defendant's trial, Feurtadot still suffered headaches as a result of the incident. The prosecution introduced a certified copy of defendant's June 1984 conviction, pursuant to his guilty plea, for assault with a deadly weapon.

         b) Victim impact evidence

         Judith Brown testified about the loss of her younger sister, Sandra Fry. Fry was one of 10 siblings. Brown described her as very compassionate and loving, the kind of person who would bring home stray animals. Fry had moved out of the family home just three days before she was murdered. Her death devastated the family; the last time they all got together was her funeral. Brown was pregnant at the time of Fry's murder and her son grew up fearful because Brown was so overprotective and afraid of losing him. When he graduated from high school, she bought him a truck to take to the University of Nevada, Las Vegas, but he would not go. At the time of defendant's trial, Brown seldom left her house.

         Cheryl Rawlins testified about the loss of her younger sister, Kimberly Rawlins. Kimberly had just moved out of the apartment they shared when she was murdered. Cheryl described Kimberly as her best friend and a very happy and giving person who had wanted to have many children. Their plan had been for Kimberly to help Cheryl through her first two years of college, and then Cheryl would help Kimberly with her first two years of college. The family initially could not afford a grave marker, and when one of their brothers went to the cemetery and could not find Kimberly's grave, he became distraught and began drinking heavily after having been sober for quite some time. At the time of defendant's trial, the family was unsure of this brother's whereabouts.

         Joseph Lee testified regarding the night he was nine years old and awakened by his mother, Marolyn Carleton, screaming his name. He was at her bedroom door when it opened and a dark-skinned man pushed past him, ran down the hallway, and left the apartment. Inside the bedroom, Joseph turned on the light and found his mother lying on the floor propped against her nightstand, incoherent and bleeding. When he realized he could not stop the bleeding, he called the operator for assistance. Joseph described his mother as “everything a young boy like myself at the time would want in a mother. She cared, protected, guided, put me before herself, and loved me like only a mother could. [¶] She was everything to me. She was my friend, my teacher, my life.... [¶] When she died that early morning, part of me died. That can never be replaced.” Carleton's sister, Mary Lee, testified about losing Carleton to a “cruel and senseless act of violence.” She read a poem by their mother, who had died of cancer the year before defendant's trial, about the loss of Carleton.

         Sandra Kennedy testified regarding the loss of her aunt, Debora Kennedy, who was just two years older than she and “like a sister.” Sandra lived near Debora and they spent their summers together. She described Debora as a very giving, sensitive, and creative person who had a lot of potential and would “give you the shirt off of her back.” After Debora's murder, Sandra worried for a long time that someone had a vendetta against the family and was constantly “looking over her shoulder.” Out of concern for Debora's grandmother, who suffered a stroke shortly after the murder, the family of eight siblings, although devastated, “chose not to talk about it a whole lot.”

         Jackie Bissonnette testified regarding the close bond she had with her sister, Debra Senior, who had been the youngest of four children. Although only 17 years old when she was murdered, Debra had already graduated from high school, was working full-time, and lived on her own. She had been planning to move back home in order to continue her education at Orange Coast College. Bissonnette recalled “her smile, her laugh, and her kindness” and said “Debbie's death left a void in my life that 19 years later is still there. Not a day goes by without Debbie being in my thoughts. There's no special occasion, no happiness, without the void of Debbie's absence felt.” She read a statement for their mother relating the belief Senior's father had died of a broken heart three years after her murder, and she read two poems written by Debra.

         2. The defense case-in-mitigation

         Albert Garcia testified he met defendant in 1973 when they were both in the Marine Corps stationed in Adak, Alaska. They were roommates from 1974 to 1977 in Tustin and “partied” together on the weekends, drinking alcohol and sometimes smoking marijuana and PCP. Garcia described defendant as intelligent, quiet, mellow, very respectable, and a model marine who was promoted to staff sergeant in five years. He said he never saw defendant get into a fight and thought defendant had good control over his temper. He did not believe defendant had an alcohol problem and he had never seen defendant behave violently after using alcohol or drugs. After they grew apart, Garcia was “surprised” when he learned defendant had been convicted of rape in 1980 and again when he heard about this case.

         Defendant testified on his own behalf. He spoke of being prescribed psychotropic medications for the first time in 1984 while incarcerated. They made him “calm” so he was not “out of control or nervous” around people. There was an eight-year period after he was released from prison that he stopped taking the medications, but he had been taking them continuously since returning. He was not on medication when he attacked his cellmate, who he claimed was stealing from him. On cross-examination, defendant admitted that while incarcerated and taking medications to control aggression and psychotic symptoms, he had on separate occasions said he was (1) “out of control” and had “no doubt I could murder someone, ” (2) staying in his cell because he felt like hurting people, and (3) fearful of losing control in court and becoming violent. After the latter two occasions, which occurred while he was awaiting trial in this case, his medications were changed and the violent feelings went away.

         Defendant also expressed remorse for the crimes, saying, “I know that I have caused the families and the friends of the victims quite a bit of pain throughout the course of the last 19, 20 years, and I accept full responsibility for that. I am truly, truly sorry for the crimes that I have committed and the reasons why we are all here today in this courtroom. If there was anything that I could do to take away the pain and the sorrow of the families of the victims, I would. And if my life is what it takes for them to feel that their family members have been vindicated, then that is what I believe should be done....” On cross-examination, however, after saying he had “always” felt sorry for what he had done, defendant admitted that after killing Fry he “went about business as usual.” He said the crimes were for “sexual gratification” but claimed he did not get any from them. He conceded that whatever remorse he felt at the time of an attack did not prevent him from attacking additional victims, and that he made the decision to “rape and kill” of his “own free will.” Defendant denied he “liked killing women” but admitted he knew what he was doing and that it was wrong. He agreed that if he had not been arrested after raping Paula S., he would have continued “raping and murdering.” He also admitted he had been in and out of custody since 1987 and had been arrested in November 1988 in Garden Grove, California, for attempting to force a woman to orally copulate him while he was armed with a knife, for which he was reimprisoned.

         Lastly, Forensic Psychiatrist Paul Blair, M.D., testified regarding his conclusions following his examination of defendant's mental status. Dr. Blair's assessment was based on two personal interviews, totaling about three hours, conducted in October 1998, on a review of defendant's interviews with police, and a review of the Orange County Jail psychiatric team's notes on defendant from June 1996 to October 1998. Dr. Blair's findings were consistent with the psychiatric team's diagnosis of organic mental syndrome, unspecified psychotic disorder, chronic alcohol abuse (in institutional remission), and major depression.

         According to Dr. Blair, defendant was cooperative throughout the evaluation. He self-reported experiencing non command auditory hallucinations, specifically the voices of a male and a female psychiatrist. At times the female voice seemed to be his grandmother. Defendant “could not recognize what the voices were telling him, ” but said he did not commit the crimes because voices told him to. He also had the delusions that people he did not know were talking about him and that thoughts could be physically inserted into, as well as removed from, his head.

         Dr. Blair explained defendant's formal psychiatric history began 14 years earlier. Defendant was treated at Vacaville State Prison without medication and then at the California Institution for Men in Chino with antipsychotic medication. During his pretrial confinement in the Orange County Jail, he had been on several antipsychotic medications to control aggression, confusion, disorganized thinking, anxiety, and depression, and to reduce if not eliminate psychosis.

         Defendant self-reported his history of drug and alcohol use, claiming he regularly inhaled glue, paint, and paint thinner between the ages of seven and 15, began using marijuana at age 11, used PCP and “magic mushrooms, ” used LSD at least 1, 000 times, and injected a combination of heroin and cocaine (known as “speedballs”). Dr. Blair explained all these drugs can affect the brain. Defendant also said he drank a case of beer and half a fifth of vodka every day for a 10- to 11-year period. He also claimed to have suffered five head injuries, three of which resulted in unconsciousness.

         Dr. Blair opined defendant showed signs of institutionalization, a condition whereby a person becomes unable to function outside of the “highly regimented” structure of an institution. Dr. Blair agreed that if out of jail and not taking medication, defendant “would be a danger to himself and others, ” while it was “probably true” that “in prison, treated with the psychotropic drugs and under a controlled environment, ” he would not.”

         3. The prosecution's rebuttal

         Forensic Psychiatrist Park Dietz, M.D., testified on rebuttal for the prosecution. Although he did not personally interview defendant, he reviewed about 8, 000 pages of records, three videotapes, and an audio tape. In Dr. Dietz's opinion, defendant's mind was functioning “perfectly adequately” when he was interrogated by law enforcement officers, in that he was logical, coherent, rational, and understandable. Based on defendant's observable behavior, Dr. Dietz saw “no evidence at all” of a ...

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