Superior Court San Luis Obispo County No. F283378 Barry T.
LaBarbera Judge
Neil
B. Quinn, under appointment by the Supreme Court, for
Defendant and Appellant.
Kamala
D. Harris and Xavier Becerra, Attorneys General, Dane R.
Gillette, Chief Assistant Attorney General, Pamela C.
Hamanaka, Assistant Attorney General, Keith H. Borjon,
Sharlene A. Honnaka, A. Scott Hayward and Kenneth C. Byrne,
Deputy Attorneys General, for Plaintiff and Respondent
OPINION
CANTIL-SAKAUYE, C. J.
A jury
convicted defendant Rex Allan Krebs of the first degree
murder of Rachel Newhouse and Aundria Crawford (Pen. Code,
§ 187), [1] one count of kidnapping Newhouse to
commit rape and one count of kidnapping Crawford to commit
rape and sodomy (§ 209, subd. (b)), one count of rape by
force of Newhouse and two counts of rape by force of Crawford
(§ 261, subd. (a)(2)), one count of sodomy by force of
Crawford (§ 286, subd. (c)), and one count of first
degree burglary (§ 459). The jury found true the special
circumstance allegations that defendant committed multiple
murders, that the murder of Newhouse was committed while
engaged in kidnapping and rape, and that the murder of
Crawford was committed while engaged in kidnapping, rape, and
sodomy. (§ 190.2, subd. (a)(3), (17).) Defendant
admitted prior convictions for rape, sodomy, assault to
commit rape, residential burglary, and felony grand theft.
The court found the prior convictions to be true.
Following
the penalty phase of the trial, the jury returned verdicts of
death for each of the two murder convictions. The trial court
denied defendant's motion to modify the death penalty
verdict and his motion for a new trial. (§ 190.4, subd.
(e).) The court sentenced defendant to death for each of the
murder convictions. It also sentenced him to a total of 166
years to life with the possibility of parole for the other
offenses and enhancements, a sentence it stayed pursuant to
section 654. This appeal is automatic. (§ 1239, subd.
(b).) We affirm the judgment in its entirety.
I.
Background
A.
Evidence at the Guilt Phase
1.
Investigation prior to defendant's confession
Rachel
Newhouse, a student at California Polytechnic State
University at San Luis Obispo, was last seen on November 12,
1998, at about 11:30 p.m., in Tortilla Flats, a restaurant
and bar in San Luis Obispo. Blood drops were found an hour or
so later on the Jennifer Street Bridge, a pedestrian bridge
that Newhouse would have crossed if she walked home from
Tortilla Flats. Samples taken from blood recovered from the
bridge and a nearby parking lot matched blood samples from
Newhouse's parents.
Aundria
Crawford, a student at Cuesta College who lived in San Luis
Obispo, spoke with a friend by telephone until 2:46 a.m. on
March 11, 1999.[1] Crawford missed an appointment and
failed to respond to texts on March 11, and an investigation
begun the next day failed to locate her.
Defendant's
parole officer, David Zaragoza, thought there were
similarities between the description in a newspaper article
of the abduction of Crawford and defendant's prior
crimes. In mid-March, he visited defendant at his residence.
When defendant came out to meet Zaragoza, he was walking as
if in pain, and he was holding his rib area. Defendant stated
that he had hurt his ribs when he fell off a wall into some
firewood, but Zaragoza was suspicious because he did not see
any injuries to defendant's hands or arms. Zaragoza
reported his suspicions to the lead investigator of the
Crawford abduction.
Two
days later, Zaragoza and other agents conducted a parole
search of defendant's residence. Among the items seized
was an eight-ball keychain. Zaragoza also found BBs. One of
defendant's parole conditions was that he was not allowed
to possess objects resembling a firearm. The next day,
Zaragoza seized a BB gun at defendant's place of
employment and caused defendant to be arrested and
transported to the San Luis Obispo County jail.
Larry
Hobson, an investigator with the County of San Luis Obispo
District Attorney's Office, interviewed defendant a day
after his arrest. At this point, defendant had been arrested
for violating his parole by possessing a simulated firearm
and drinking alcohol. When Hobson asked defendant if he had
any idea why he was being interviewed, defendant stated he
assumed it related to the disappearance of the two victims,
because defendant was on parole for rape and had a prior sex
offense. He did not recall where he was the day Newhouse
disappeared. However, defendant said he stayed home all night
on March 10, the night of Crawford's disappearance. At
about 8:00 a.m. the next day, he walked to a woodpile, and
his landlord's daughter, Debra Wright, stopped and talked
to him briefly. He said he had slipped on some lattice work
and fallen into the woodpile, injuring his ribs.
Defendant
denied ever driving down Crawford's street or seeing the
victims except on fliers posted around San Luis Obispo.
Hobson asked where defendant had acquired the eight-ball
keychain found during the parole search, and he said he found
it on the yard while in Soledad prison in 1996. In response
to Hobson's telling defendant that he might have to
question him again, defendant said he was willing to do
anything to prove that he was not responsible for the
abductions, and he gave Hobson permission to search his
vehicle and his residence.
A few
days later, a search of defendant's truck disclosed duct
tape, binoculars, and a bottle of stain remover. Also, some
of the carpet had been cut out, and one of the jump seats was
missing.
In
early April, Hobson interviewed defendant a second time.
Defendant gave an account of his whereabouts on March 11 that
was partly inconsistent with his prior statements. When asked
why someone would identify him or his truck in the vicinity
of Crawford's house, he stated he had driven down
Crawford's street two or three times. With respect to the
eight-ball keychain that defendant claimed to have found in
1996, Hobson asserted that it had not been manufactured until
1998. Defendant responded, “ ‘that's
strange.' ”
Five
days later, a search of defendant's home led to the
discovery of the jump seat from his truck. The seat had blood
stains on it.
On
April 21, Hobson interviewed defendant a third
time.[2] Defendant again had difficulty
recalling what he did on March 11. Hobson and defendant
discussed defendant's prior sex crimes, and defendant
admitted that he fantasized about abducting women but claimed
to have “worked through” that. Hobson then showed
defendant the eight-ball keychain and said it belonged to
Crawford. Defendant denied the keychain was the one that had
been found in his home. Hobson told defendant that the police
had found the missing jump seat, and that there were traces
of Newhouse's blood on it. Defendant then stopped talking
for about 15 minutes while Hobson kept up a monologue. Hobson
asked defendant to take him to the victims, and defendant
stated he did not want to help Hobson at that time. Hobson
eventually returned defendant to the county jail.
2.
Defendant's confession
On
April 22, Hobson returned to the jail, and correctional
officers brought defendant to an employee breakroom to meet
him. Some minutes into the conversation, defendant asked what
Hobson wanted him to say, and Hobson said he wanted the
truth. Defendant responded, “okay” and said that
he wanted to talk somewhere else. Before transporting
defendant from the jail and after giving him Miranda
warnings, Hobson asked defendant if he was responsible for
the disappearance and death of Newhouse and Crawford.
Defendant responded, “yes.” Hobson then took
defendant to the police department, where the ensuing
interrogation was recorded. The jury was shown the videotape,
during which defendant described what he had done to the
victims.[3]
Defendant
stated that starting at about 8:30 p.m. on November 12, 1998,
he drank six or seven shots of whiskey. At about midnight, he
saw Newhouse walking down a street in San Luis Obispo. He
told Hobson he had a premonition that Newhouse would walk
across a bridge, so he parked his truck and walked onto the
bridge. As Newhouse walked behind him on the bridge,
defendant turned around and hit her on the jaw with his fist.
When she screamed, defendant picked her up and threw her down
on her back. Then he hit her again, knocking her unconscious,
and dragged her by her hair down the stairs. At this point,
she was bleeding from the back of her head and about her
face. When he reached his truck, he put the still-unconscious
Newhouse behind the front passenger seat in the area where
the jump seats were located. He got rope from the bed of his
truck and tied her hands behind her back. He then drove along
railroad tracks for about 200 yards, where he stopped and
used the same rope to tie her legs. Finally, he reached into
her pants, ripped off her panties, stuffed them in her mouth,
and tied the rope through her mouth.
Beside
the road that led to defendant's residence was an
abandoned cabin. Defendant drove to the cabin, carried
Newhouse inside, removed her pants, and raped her. She was
conscious by this time, and was cursing at him. After he
raped her, he re-tied her legs, hogtied her legs to her
hands, and stuffed her panties back into her mouth. Then he
drove up to his residence, leaving Newhouse in the cabin. He
returned to the cabin 15 or 20 minutes later and found
Newhouse dead. He told Hobson that when he left her, the rope
he had tied around her neck was not in a position that would
have prevented her from breathing. Hobson asked whether
defendant was saying that Newhouse's struggling had
caused her strangulation. He responded, “That or her
legs relaxed or something, I don't know.” Defendant
told Hobson that he panicked, put her body behind the cabin,
and went home.
The
next morning, defendant drove his truck past a spot where he
had been cutting wood and dug a grave. He returned home and,
at some point, cleaned blood from his truck. When he was
unable to remove all of the blood, he cut out portions of
carpet, threw them in a dumpster, and put the stained jump
seat in his home. Sometime between 11:00 p.m. and midnight,
he put Newhouse's body in the back of his truck, drove to
where he had dug a grave, and buried it.
Turning
to the Crawford case, defendant stated that the first time he
saw her he was driving by her house as she was getting out of
her car. He followed her back to the house, got out of his
truck, and looked at her through a small gap at the bottom of
the curtains on a window. He left after a few minutes.
Over
the following days, defendant twice more returned to
Crawford's house to watch her. Each time he was
intoxicated. Finally, defendant returned for a third time,
knowing that he was going to abduct her. Again intoxicated,
defendant was not certain what time he went to her house, but
it could have been as late as 2:00 or 3:00 a.m.
Defendant
found a small bathroom window that was not latched, removed
the screen, and crawled feet first into a shower stall. He
hurt his ribs going through the window. Defendant told Hobson
that he was “getting ready to go out the bathroom door.
The only thing I'm thinking of is leaving right
then” when Crawford opened the bathroom door, wearing a
T-shirt and underwear. He punched her, knocking her back
against the wall, and kept punching her, causing her to lose
consciousness. He hogtied her with a rope he had brought with
him and put duct tape across her mouth. He went upstairs and
got two pillowcases. Although he was wearing pantyhose over
his head, he put a pillowcase over Crawford's head and
tied it on so she could not identify him. He put CDs and some
of Crawford's clothes in the other pillowcase. He also
took a VCR, videotapes of movies, and her keys with the
eight-ball keychain, which he put in his truck.
When
defendant returned to the house, Crawford had regained
consciousness and was struggling. He put her in his truck and
went back to her house to clean up the blood. Then he drove
her to the abandoned cabin, left her on a couch, drove home,
and drank more whiskey. As it was starting to get light, he
drove to the woodpile to chop some wood so that his
landlord's daughter, Debra Wright, would see him as she
went to work. After Wright left, defendant brought Crawford
from the cabin to his residence. He removed some of the rope,
but he left her hands tied together and kept the pillowcase
and duct tape in place. He raped and sodomized Crawford on
the bed, tied her feet back together, went to the kitchen for
more liquor and coffee, and fell asleep on the couch. When he
woke up an hour or so later, he replaced the pillowcase with
a bandanna blindfold and removed the duct tape. She asked him
why he was doing this, asked him to stop, pleaded with him to
let her go, and cried. He did not say anything to her, and
raped her over a coffee table. Leaving her hands tied and her
legs untied, he clothed her in a sweatshirt and sweatpants he
had brought from her home. He put her back in his bed and
went to sleep on the couch.
Defendant
was awakened by a noise and saw Crawford coming out of the
bedroom without the blindfold. He threw her to the floor and
strangled her to death with a rope. He moved her body to the
bedroom and drank more whiskey. Then he dug a grave in his
yard and buried her. Defendant disposed of everything he had
taken except the eight-ball keychain, a second black
sweatshirt, and the CDs. He threw the VCR and videotapes,
which were in a garbage bag, near a road and burned
everything else.
After
confessing, defendant accompanied Hobson and others to his
home and the locations of the graves and the garbage bag that
contained the VCR, videotapes, and CDs. The jury was shown a
videotape of the trip.
3.
Exhumations and autopsies
The
victims' bodies were recovered the day after defendant
confessed. Newhouse's body was found buried about 30 feet
above the road. Crawford's body was found by
defendant's residence, buried about two feet deep.
Dr.
George Sterbenz, a forensic pathologist, observed the
exhumations. He testified that Newhouse's body was in an
advanced state of decomposition. She had on a shirt that had
been cut in half up the back, and a bra with shoulder straps
pulled down from her shoulders. She had on no other clothing.
Two areas of her scalp were more decomposed, indicating that
they had been injured, and dried fluid on top of her head was
consistent with blood. Dr. Sterbenz believed the cause of
death was asphyxiation, but decomposition prevented him from
determining the specific mechanism by which this occurred.
Decomposition also prevented a determination of whether
Newhouse suffered any trauma to the vaginal area.
Crawford's
body was not as decomposed as Newhouse's body, although
the level of decomposition precluded a determination of
whether Crawford's vaginal or anal area was bruised.
Crawford was wearing a black sweatshirt with a Hard Rock Cafe
logo and black sweatpants. A blindfold made from a bandanna
covered her eyes and nose. A rope circled her neck two and
one-half times and was also wrapped about her torso and
extremities. Two black flex ties were tied around her wrists,
and a third flex tie connected them and passed through the
rope. There were two lacerations inside her mouth that were
consistent with a blow by a fist to the face. There was also
an area of bruising on her scalp. Dr. Sterbenz concluded that
her cause of death was asphyxia by ligature strangulation.
4.
Other corroborating evidence
On
April 23, a search of the abandoned cabin close to
defendant's residence disclosed a large blood stain on
the pad underneath the cushions of the couch. The next day,
another search of defendant's home led to the discovery
of black flex ties that matched the flex ties on
Crawford's wrists. Searchers also discovered some keys
about 48 feet from his home. The keys unlocked the doors to
Crawford's house.
Analyses
of blood stains and hair at the Jennifer Street Bridge and
surrounding areas corroborated defendant's description of
his abduction of Newhouse. Rodney Andrus, the assistant
director at the Attorney General's laboratory in Fresno,
also tested blood stains from the jump seat and the couch in
the cabin. He found that their markers were consistent with
Newhouse's blood and the blood stains on the bridge.
An
inspection of Crawford's home further corroborated
defendant's confession. Items that defendant confessed to
taking were indeed missing. The state of the bed also
suggested that Crawford had gotten out of bed shortly before
she was abducted. Blood stains matching Crawford's were
found in the bathroom.
Evidence
concerning Crawford's clothes and belongings was also
consistent with defendant's confession. Crawford's
mother, Leslie Crawford, described some of her daughter's
belongings, including an eight-ball keychain and a souvenir
sweatshirt with a Hard Rock Cafe logo which she wore only
infrequently. She recalled that her daughter normally wore a
T-shirt and panties to bed. A search of Crawford's house
failed to find the dark sweatclothes that Crawford's
mother reported missing.
5.
Additional interviews of defendant
After
the interview on April 22, during which defendant confessed,
Hobson interviewed defendant six more times. Two days after
the confession, Hobson interviewed defendant to review some
of the details of the crimes and his interactions with the
victims. Hobson next contacted defendant the following day to
discuss his childhood and upbringing. The day after that,
Hobson met with defendant to talk about defendant's
relatives.
On
April 27, after driving defendant to view the area where he
abducted Newhouse, Hobson conducted a videotaped interview,
which was shown to the jury. Defendant told Hobson that
Newhouse cursed at him and the more she cursed, the angrier
he became. Hobson asked, “When you get mad, what do you
want to do?” Defendant responded, “Rape
her.” He stated that after he raped her, he was no
longer angry, and he denied intentionally tying her so
tightly that she would strangle herself. He confirmed,
however, that he had tied her differently when she was in the
truck.
In
contrast to Newhouse, Crawford did not curse at defendant; he
had placed duct tape over her mouth. When raping Crawford,
defendant was acting out a fantasy that involved sexual
pleasure and dominance. Control was part of the fantasy, and
he had used plastic restraints on Crawford because they were
a better means of control. He agreed with Hobson's theory
that once Crawford saw defendant, “it took away the
rest of the fantasy and you just knew you had to kill
her.” He also agreed that when he hogtied her, he was
hoping that she would die like Newhouse so he would not have
to kill her himself, but when she broke a thin rope he had
put around her feet, he pulled on both sides of the rope
around her neck and strangled her. When Hobson pointed out
the inconsistency between this description and an earlier
account in which defendant said he hogtied Crawford, left to
drink more, and then came back and took a small piece of rope
and strangled her, defendant said his current description was
more accurate. He said that if Crawford had not struggled, he
would have released her that night.
With
respect to defendant's assertion that he had planned to
release both of the victims, Hobson asked how he planned to
avoid being identified as the perpetrator, given that he had
not used a condom. Defendant stated that he planned to wash
them in the bathtub at his home and use a bottle to wash out
his semen.
Hobson
asked whether defendant committed his first rape when he was
21 years old, and defendant said he committed an attempted
rape when he was 18, in Sandpoint, Idaho. The victim was a
young girl. By the time he abducted Crawford, his fantasies
always involved tying his victims up and cutting their
clothes off. Torture had never been part of his fantasy,
which involved only dominance and the ability to have sex
repeatedly. He was uncomfortable when he killed Crawford; it
made him feel sick and angry at himself. When he saw fliers
about Newhouse or Crawford, he felt sick and sorry for them.
Finally, he denied taking a camera from Crawford's house,
and said he had not committed any other crimes while on
parole. He also denied shooting a person in the chest in
Santa Barbara over a drug deal before he went to prison. The
transcript of the interview included parenthetical
statements, added to inform the jury that defendant later
admitted off-camera to stealing Crawford's camera and
shooting a man in Santa Barbara.
Hobson
met again with defendant in the last days of April, when they
discussed Hobson's intention to go to Idaho and interview
defendant's relatives. Then in early May, after
interviewing defendant's friends and relatives, Hobson
met with defendant to discuss what Hobson had learned.
6.
Defendant's prior sexual assault of Shelley C.
At
trial, the prosecution introduced testimony regarding
defendant's prior assault of Shelley C. Shelley testified
that early one morning in 1987 when she was living in San
Luis Obispo County, she woke to a man's hand over her
mouth. He held a knife to her throat and tied her hands
behind her back. He cut off her clothes, started to gag and
blindfold her, but stopped when she said she would not say
anything or look. He raped and sodomized her and then hogtied
her. When he heard Shelley's roommate's car, he fled.
There was a strong odor of alcohol on the assailant. When he
was interrogated concerning this assault, defendant stated
that he wanted counseling, but was afraid of the time he
would spend in prison. Defendant confessed to the crimes and
pleaded guilty to residential burglary, rape and sodomy.
7.
Defense case
The
defense offered no evidence at the guilt phase.
B.
Evidence at the Penalty Phase
1.
Defense case
Defendant
introduced extensive evidence at the penalty phase. The
evidence falls into two general categories. In the first
category is testimony that painted defendant as a sympathetic
character, a child who was abused by a violent father and a
person who, despite the abuse suffered, still had a moral
compass, good personality traits, and the ability to form
positive relationships. In the second category is testimony
that aimed to reduce defendant's moral culpability.
Defendant introduced evidence to show that he suffered from a
mental illness, one that impaired his ability to control
himself, and that the various institutions under which he was
placed - including California's Department of Corrections
- failed to afford him any treatment.
Through
the testimony of his mother, sisters, grandmother, aunts,
uncles, stepmother, stepsister, elementary school classmates,
teacher, principal, neighbor, and others, defendant described
the serious mental and physical abuse he suffered as a child.
Born in 1966 to Connie Ridley and Allan Krebs, defendant was
the second of four children. Allan Krebs drank, abused drugs,
and beat Ridley. When she left Allan, Ridley, then an
alcoholic, began living with a man who spanked defendant,
forced him to wear soiled underwear on his head, and once
made defendant go to school in a diaper. Ridley eventually
sent defendant back to live with his father. Allan beat
defendant, once severely enough to leave “black and
blue” marks and cuts from the “waistline, all the
way down to his ankles.”
In
1981, when defendant was 15 years old, he broke into a
neighbor's home and stole a gun and some other items. As
a result, defendant was sent to the North Idaho
Children's Home (Children's Home), a “private,
nonprofit, residential treatment facility.” Defendant
introduced the testimony of several staff members from the
Children's Home, who described his good behavior while at
the facility. Consistent with the defense presentation of
defendant as a person capable of empathy for his victims and
remorse for his actions, a childcare worker from the
Children's Home, Scott Mosher, testified that defendant
was “very remorseful” if he “did something
wrong during this period of time.” Toward the end of
this testimony, counsel asked Mosher whether he felt
defendant “should receive the death penalty.” The
prosecution objected, and the trial court sustained the
objection, explaining that Mosher's opinion lacked
relevance because Mosher last saw defendant in 1983 and no
longer had any relationship with him.
When he
was at the Children's Home, defendant dated an
11-year-old girl, Adonia Krug. Krug testified that defendant
“helped [her] through a lot.” The relationship
ended amicably when Diana Scheyt, Krug's mother, told
defendant how old Krug was. Scheyt thought defendant had a
positive influence on her daughter and allowed the two to
keep in contact as friends.
In
1984, after defendant turned 18, he assaulted a 12-year-old
girl in Sandpoint, Idaho. Defendant pleaded guilty to a
misdemeanor assault charge and spent three months in the
county jail for the attack. The victim, Jennifer E.,
testified for the prosecution during the penalty phase, and
the prosecution used this incident to cross-examine several
witnesses who opined that defendant should not receive the
death penalty.
During
the same year, defendant was convicted of grand theft of an
automobile. For this infraction, defendant served a prison
term at the North Idaho Correctional Institute at Cottonwood
(Cottonwood). Defendant presented the testimony of a
Cottonwood correctional officer who recounted his generally
positive attitude and good behavior while incarcerated.
Shortly
after he was released from prison in 1986, defendant went to
California to live with his mother and her then-husband, John
Hollister. Hollister testified that he and defendant had a
friendly relationship, and that defendant had a girlfriend
during this time, Liesel Turner. According to Hollister,
defendant and Turner had “[a] good relationship”
and defendant was “infatuated with her, wanted to
impress her.” As described post, the
prosecution called Turner as a rebuttal witness.
In
1987, defendant was arrested and convicted of the attempted
rape and rape of two women, A.C. and Shelley C. Defendant
served his sentence at Soledad prison. He introduced the
testimony of three correctional officers who worked at the
facility. According to Officer Jeanne Pullano, defendant was
“a model prisoner.” Pullano further testified
that there was no counseling for “sexual
predators” available at Soledad at that time, and even
if there had been, inmates “probably would not attend
because they would be identified as sex offenders if they
did” and “child molesters” and
“rapists” were “low... on the totem
pole” “within the prison population.” The
other correctional officers offered similar testimony.
In
September 1997, defendant was paroled to San Luis Obispo
County. Defendant found a job in the surrounding area, made
friends, and began a relationship with a woman named Rosalynn
Moore. Moore testified that defendant treated her
“fairly well.” In particular, defendant was never
“inappropriately forceful with [her]” “in a
sexual way, ” and if she “didn't want to do
something, he would say okay and... that was the end of
it.”
Three
of defendant's friends testified that they were present
at a bar called Outlaws in August 1998 when defendant got
into a fight with a man. One of the friends, Melissa
Copeland, said that defendant had gotten into the fight
because the man had threatened her and defendant “was
defending [her], ” “defending [her] honor.”
Defendant
pressed the theme of institutional failure as it pertained to
his parole. For example, his counsel drew from Parole Officer
Zaragoza the statements that (1) although San Luis Obispo
referred all sex offenders to a “parole outpatient
clinic, ” the program was “more monitoring”
than “confidential psychotherapy, ” and (2) other
than the parole outpatient clinic, there was no other program
“available to parolees of rape convictions for their
treatment.” Defendant also introduced the testimony of
Dr. Randall True, who worked at the parole outpatient clinic
and saw defendant while he was on parole. True testified to
the “limited resources” that he had to do his
work. In response to the question, “if the resources
were available - for a person such as [defendant] at the time
you saw him - what programs would you put him in, ”
True named a number of treatment programs that defendant, in
fact, was not afforded. True admitted, however, that
defendant never told him that he had fantasies about raping
women. Had defendant done so, True would have undertaken
additional work.
In
addition to the lay witnesses, defendant introduced the
testimony of two experts, Drs. Craig Haney and Fred Berlin.
Haney, a psychologist, examined defendant's background
with an eye to forming an opinion concerning (1) the
“opportunities in which [defendant] might have been
treated for the problems from which he suffered and whether
or not there was evidence that, in fact, he had been treated,
” and (2) the “kind of adjustment [defendant]
would make... under a sentence of life in prison without the
possibility of parole.” After interviewing defendant
and people who knew him, Haney came to the following
conclusions. First, defendant has lived “a traumatic
and traumatically damaging life.” His manifestations of
certain “long-lasting problems” were observed
throughout his life by various people. Yet, despite the fact
that “[o]ftentimes the observations were accompanied
with very clear recommendations that [defendant] receive
treatment, ” defendant “received no
psychotherapy, really no psychotherapy throughout his entire
life, including the ten-year period of time during which he
was incarcerated in the California Department of
Corrections.” Second, defendant was “a person who
[would] make[] a remarkably good adjustment to institutional
settings, ” including life in prison.
The
main defense expert was Dr. Berlin, a board-certified
psychiatrist who interviewed defendant and “made two
diagnoses with conviction.” Berlin first diagnosed
defendant with sexual sadism, a sexual disorder characterized
by “intense, recurrent, erotically arousing fantasies
and urges [that] are about having sex in a coercive and
sadistic fashion rather than in a consenting fashion.”
Crucially, Berlin opined that sexual sadism impaired
defendant's “ability to be in full control of
himself.” In slightly more technical terms, Berlin said
that sexual sadism caused defendant to be volitionally
impaired. According to Berlin, sexual sadists, like
alcoholics or heroin addicts, “on their own, often
can't stop doing it [giving in to their urges] because
they have an impairment in their ability to be in
control.” Like a kleptomaniac who is “driven to
repeatedly steal, ” defendant was driven to engage in
his behavior.
Anticipating
the prosecution's argument, Dr. Berlin explained that a
person suffering from volitional impairment is nonetheless
able to plan and premeditate his or her actions. Berlin also
explained that such a person is able to defer his or her
urges. A volitionally impaired person could desist from
acting out his or her urges given sufficient “external
controls, ” for example, those controls that exist in a
prison setting. This does not mean that the person has the
internal controls necessary to control his or her behavior.
Berlin opined that sexual sadism is a treatable disorder.
In
addition to his diagnosis of sexual sadism, Dr. Berlin
diagnosed defendant with alcoholism. Berlin testified that
the impact of alcoholism “on sexual sadism is like
pouring a fuel on the fire.” The witness elaborated
that “both because he was intoxicated and because he
had a disorder that does impair a person's ability to be
in full control of himself, ” defendant's capacity
“to conform his conduct to the requirements of
law” was “impaired.” Finally, Berlin
considered but did not diagnose defendant with antisocial
personality disorder.
At the
point in his testimony in which Dr. Berlin discussed the
ability of a sexual sadist to defer his actions, defense
counsel attempted to ask the witness about a law in
California known as the Sexually Violent Predator Act. The
prosecution objected, and after an extensive discussion with
counsel, the court sustained the objection.
On
cross-examination, the prosecution attacked Dr. Berlin's
opinion that defendant could not control his urges. For
instance, the prosecution inquired about a test known as the
“policeman at the elbow, ” which asked whether an
individual would have acted on his or her impulses if there
had been a police officer present. Berlin conceded that
“if the policeman had come, [defendant] would have
stopped and tried not to be apprehended.” However, a
police officer was an external control, and once that
external control was removed, Berlin did not “believe
for a minute that [defendant] wouldn't have been driven
to then seek out somebody else.” Last, the prosecution
asked Berlin what defendant did to resist the urge to kidnap
Newhouse or break into Crawford's house. Berlin replied
that defendant “didn't say he tried to
resist.” “In fact, ” elaborated the doctor,
“he said that after these urges had come back, and he
dates it to the incident in which he was in the bar fight [at
Outlaws], that after fighting so hard for so many years to
resist it, he kind of became demoralized and gave up and kind
of stopped fighting as hard as he had previously.”
2.
Prosecution case
The
prosecution presented three types of aggravating evidence:
defendant's prior criminal activities, surviving family
members' victim impact statements, and testimony to rebut
defendant's mitigating evidence.
To
establish defendant's prior criminal activities, the
prosecution introduced evidence of his assaults on Jennifer
E. and A.C. Jennifer E. testified that in 1984, when she was
12 years old, she met defendant. One night in February 1984,
Jennifer was downtown with a group of friends that included
defendant. At some point, defendant pulled Jennifer
“off to one side” and tried to kiss her. She
said, “no, I'm only 12.” When she tried to
walk away, defendant grabbed her, and they both fell to the
ground. Defendant then attempted “to undo his pants and
[her] pants.” Jennifer fought to get defendant off, and
defendant struck her three or four times with a closed fist.
Eventually, the two rolled over an embarkment, and Jennifer
was able to get away.
A.C.
testified that in 1987, she lived in San Luis Obispo County.
On a night in mid-June, she was in bed with her daughter when
defendant broke into the house and climbed on top of her.
Defendant was carrying a knife and a screwdriver. A.C.'s
daughter cried and screamed. A.C. asked defendant to take her
to another room. When they were walking down the hallway,
defendant attempted to tie A.C. up and “got really
upset” when she did not cooperate. He “hit [her]
head against the wall.” When A.C. tried
(unsuccessfully) to stab defendant with his knife, defendant
“got mad... and bit [her] finger.” Defendant then
left. A.C. later underwent surgery on her finger but could
not make full use of it again.
To show
the impact that defendant's crimes had on the
victims' families, the prosecution introduced the
testimony of Newhouse's mother and aunt and
Crawford's mother and grandmother. The family members
testified about the victims' lives and plans they had for
the future. They also described the devastation brought by
the victims' deaths.
Finally,
the prosecution produced rebuttal testimony. It called Liesel
Turner, who was defendant's girlfriend in 1987. Turner
testified that she ended the relationship with defendant
because she did not “feel safe” and gave reasons
for her feelings.
In
addition, the prosecution rebutted Dr. Berlin's testimony
with the testimony of Dr. Park Dietz. Unlike Berlin, Dietz
testified that individuals “whose only problem is
sexual sadism” did not suffer from volitional
impairment. Dietz nonetheless afforded a role to mental
illness, opining “the reason [defendant] behaves in
this way toward victims is because he has an antisocial
personality disorder.” Finally, Dietz rested his
conclusion that defendant did not suffer volitional
impairment on the particular facts of the case. Specifically,
Dietz testified that defendant's decisions to drink, lie
to his doctor, “cruise” for victims, carry a
“rape kit, ” and stop resisting his impulses
showed that his “volitional control was there.”
When asked “whether at the time of the offense the
capacity of the defendant... to conform his conduct to the
requirements of the law was impaired as a result of a mental
disease or defect, ” Dietz's answer was that
defendant's “decision to stop resisting, to stop
trying to conform his conduct, is a choice, a bad choice, he
made, rather than his not having the ability to control
himself.”
II.
Discussion
A. Jury
Selection Issues
Defendant
claims that the prosecutor improperly used his peremptory
challenges to remove Catholic prospective jurors in violation
of People v. Wheeler (1978) 22 Cal.3d 258
(Wheeler) and People v. Batson (1986) 476
U.S. 79 (Batson). Although defendant argued before
the trial court that the prosecution wrongfully removed six
prospective jurors on the basis of their religious
affiliation, Catholicism, defendant's
Batson/Wheeler claim on appeal is
restricted to the removal of a single prospective juror,
Juror No. 6.[1] For the reasons explained below, we
reject his claim.
1.
Background
Prospective
Juror No. 6, along with more than 150 other venire members,
filled out a written questionnaire and was individually
questioned by the court and counsel. Jurors who were not
excused during the individual questioning were asked to
return some days later. Upon their return, the remaining
jurors were subject to peremptory challenges by the
prosecution and defense - each of which had 20 such
challenges. In quick succession, the parties struck 25
jurors, with the prosecution striking Juror No. 6 as his
eighth strike. After the prosecution also struck Juror Nos.
122 and 126, the defense raised a
Batson/Wheeler challenge, arguing that the
prosecution had improperly removed these three jurors because
they were Catholic.[2] Defense counsel acknowledged that
defendant was not Catholic but stressed that he “has
received religious counseling from a Catholic nun.”
Before
asking the prosecution to give its reasons for striking the
three jurors, the court made the following statement.
“[T]here's some question as to whether - in the
case law the record assumes that the finding has been made of
a reasonable inference if you ask for justification from the
other party. And on this record I don't think I can make
a finding that there's a reasonable inference although
there does seem to be at least the beginnings of a trend.
[¶] But with three jurors - I know there are a lot of
Catholics on this panel, just in my memory. I don't know
which numbers they are, but I know there are a lot.”
The court then stated, “with that caveat, I'll ask
the prosecutor to state what his reasons were for those three
jurors.”
The
prosecutor offered his reasons for excusing the venire
members. With regard to Prospective Juror No. 6, the
prosecutor stated that he was concerned with the juror's
stance on “psychiatric issues.” Citing questions
from the written questionnaire, the prosecutor described the
juror's answers as revealing that she “puts faith
in psychiatric testing, thinks psychology and psychiatry is
very useful, and believes it can explain a lot about a
person.”[3] These responses concerned the
prosecution because “the defense has hired one of the
top psychologists in the country, Dr. Fred Berlin.”
The
prosecutor also cited Prospective Juror No. 6's response
to Question No. 129 on the questionnaire. This question asks,
“Is there any type of information regarding a
defendant's background or character that would be
important to you when choosing between life without parole
and death (e.g. work record, childhood abuse, brutal parents,
alcoholism, former good deeds, illnesses, etc.)?” In
response, the juror wrote, “childhood abuse, brutal
parents, alcoholism, illnesses.” The prosecution noted
that childhood abuse, brutal parents, and alcoholism were
things “we know will be offered in this case” as
mitigating factors at the penalty phase.
The
court made its ruling after hearing the prosecution's
reasons and the defense's response. Directing its
comments at the prosecutor, the court stated, “Actually
went a lot further than you needed to, but on the basis of
this record, I can't find a reasonable inference, as I
indicated earlier, based on just three jurors. My feeling was
there were probably about 20 [Catholic prospective jurors] in
the field of 83. Ms. Ashbaugh's [one of defendant's
attorneys] indicating that there are 18. [¶] But in any
event, it appears that there certainly are secular reasons
for excusing each of the jurors, and it clearly - in the
process that we've gone through, the record obviously
reflects that the questionnaire is replete with questions
that would give you information for preempts on both
sides.... [¶] But, as I say, in this case I don't at
this point even find a reasonable inference. I only asked for
the response just for the record.” The court denied
defendant's Batson/Wheeler motion.
The
defense renewed its motion upon dismissals of more
prospective jurors, and the court deferred discussion until
jury selection had finished. Once both parties had exhausted
their peremptory challenges, the defense contested the
prosecution's excusal of Prospective Juror Nos. 127, 201,
and 141. Juror No. 141 was the prosecution's last
challenge; the prosecution had previously accepted a panel
with Juror No. 141 on the panel, but after the defense struck
another juror, the prosecution exercised its two remaining
peremptory challenges to strike more jurors, including Juror
No. 141. The court heard the parties' arguments regarding
the strikes and once again denied the
Batson/Wheeler motion. In so ruling, the
court stated, “I don't find a reasonable inference
of a group bias, but I did get reasons on the record from the
prosecutor as to why the excusals were made.... [¶] And
the fact that there are... two jurors still on the panel who
are Catholics is of some weight, except that all the
challenges have been exhausted.”
Despite
the objections raised to the excusals of multiple panelists
during jury selection, defendant, as noted earlier, now
challenges the trial court's ruling only with respect to
Prospective Juror No. 6. Because “reviewing courts must
consider all evidence bearing on the trial court's
factual finding regarding discriminatory intent, ” we
bear the above record in mind as we examine defendant's
Batson/Wheeler arguments with regard to
this single juror. (People v. Lenix (2008) 44
Cal.4th 602, 607 (Lenix).)
2.
Analysis
The
framework for analyzing a Batson/Wheeler challenge
is well established. The analysis proceeds in three stages.
“First, the trial court must determine whether the
defendant has made a prima facie showing that the prosecutor
exercised a peremptory challenge based on [religious
affiliation]. Second, if the showing is made, the burden
shifts to the prosecutor to demonstrate that the challenges
were exercised for a [group]-neutral reason. Third, the court
determines whether the defendant has proven purposeful
discrimination.” (Lenix, supra, 44
Cal.4th at p. 612.)
A
preliminary question is whether defendant's
Batson/Wheeler challenge here should be
reviewed at the first or third stage. Defendant presses that
we should conduct a third-stage inquiry. The Attorney General
concedes the point, but her brief was filed before we decided
People v. Scott (2015) 61 Cal.4th 363, 391
(Scott). In Scott, we acknowledged that our
jurisprudence in distinguishing between a first- and a
third-stage review “has not always been entirely
consistent.” (Id. at p. 386.) We sought to
rectify the inconsistency by clarifying that “where (1)
the trial court has determined that no prima facie case of
discrimination exists, (2) the trial court allows or invites
the prosecutor to state his or her reasons for excusing the
juror for the record, (3) the prosecutor provides
nondiscriminatory reasons, and (4) the trial court determines
that the prosecutor's nondiscriminatory reasons are
genuine, an appellate court should begin its analysis of the
trial court's denial of the
Batson/Wheeler motion with a review of the
first-stage ruling.” (Id. at p. 391.)
Accordingly, if the trial court makes a first-stage ruling
before the prosecutor states his or her reasons for excusing
the prospective jurors, an appellate court reviews that
first-stage ruling. In contrast, when the trial court listens
to the prosecutor's reasons before purporting to rule on
the first stage inquiry, “we infer an ‘implied
prima facie finding' of discrimination and proceed
directly to review of the ultimate question of purposeful
discrimination.” (Id. at p. 387, fn. 1.)
The
trial court here found that defendant did not make out a
prima facie case of discrimination. This was what the court
meant when it said it did not find a “reasonable
inference.” But of course, the court said it could not
make “a reasonable inference” twice, once before
inviting the prosecutor to offer his reasons and once after
hearing those reasons. If the court's first statement -
“on this record I don't think I can make a finding
that there's a reasonable inference” - constitutes
a ruling, then we should review that first-stage ruling. On
the other hand, if the court did not make a ruling until
after it heard the prosecutor's reasons - when it stated
more definitively that “on the basis of this record, I
can't find a reasonable inference” - then we should
treat the prima facie case as moot and “instead skip to
Batson's third stage.” (People v.
Mills (2010) 48 Cal.4th 158, 174.) The record is
susceptible of both readings, but the ambiguity proves
immaterial in this case. Even were we to assume - as
defendant urges - that his challenge has arrived at the third
stage, still we would find against him.
“At
the third stage of the Wheeler/Batson
inquiry, ‘the issue comes down to whether the trial
court finds the prosecutor's [group]-neutral explanations
to be credible.' ” (Lenix, supra,
44 Cal.4th at p. 613.) “Review of a trial court's
denial of a Wheeler/Batson motion is
deferential, examining only whether substantial evidence
supports its conclusions.... ‘So long as the trial
court makes a sincere and reasoned effort to evaluate the
nondiscriminatory justifications offered, its conclusions are
entitled to deference on appeal.' ” (Id.
at pp. 613-614.) Defendant urges us not to accord deference
to the trial court's decision because, in his view, the
court did not make a “sincere and reasoned
effort” to evaluate the prosecutor's reasons. In
particular, defendant faults the court for not evaluating
“any of the actual reasons given by the
prosecutor” and instead speaking only in the
hypothetical, stating that “the questionnaire is
replete with questions that would give you
information for preempts.”
Contrary
to defendant's assertion, the trial court's
statements indicate it did generally evaluate the
prosecutor's proffered reasons - responses on the written
questionnaire - for excusing the prospective jurors. As the
trial court observed, “it appears that there certainly
are secular reasons for excusing each of the jurors, and it
clearly - in the process that we've gone through, the
record obviously reflects that the questionnaire is replete
with questions that would give you information for preempts
on both sides.” Defendant makes much of the fact that
the court used the conditional tense, i.e., that it stated
the questionnaire “would give you information
for preempts on both sides” and not that the
questionnaire did supply information to strike the
jurors. But the court's phrasing is understandable in
light of the fact that it ruled against defendant at the
first stage and made a third-stage finding only were it,
counterfactually, to reach the matter.
In any
event, we find substantial evidence to support the trial
court's denial of defendant's
Batson/Wheeler challenge. The
prosecutor's reasons for striking Prospective Juror No. 6
are plausible and supported. The prosecution expected
defendant to argue - partly through the use of psychiatric
testimony - that he did not deserve the death penalty because
he suffered childhood abuse, alcoholism, and mental
illnesses. Juror No. 6 indicated that she was receptive to
such arguments. It was therefore sound trial strategy for the
prosecution to have struck her. (See, e.g.,
Gutierrez, supra, 2 Cal.5th at p. 1168; see
also People v. Cunningham (2015) 61 Cal.4th 609, 665
[crediting a prospective juror's receptivity to
psychological testimony as a race-neutral reason for the
prosecutor to have struck her when the defense was expected
to rely heavily on such testimony]; People v. Watson
(2008) 43 Cal.4th 652, 676-678 [finding no
Batson/Wheeler error when a juror was
struck because she may have been “overly
sympathetic” to the defendant's evidence “of
abuse and neglect during his childhood”].)
Defendant
argues that the prosecution had no genuine reason to want to
strike a prospective juror who was receptive to psychiatry.
Defendant contends that a juror's attitude to psychiatry
was a neutral factor, as a psychiatrist was also expected to
testify for the prosecution. But the prosecution could have
judged that a juror not so inclined to believe in psychiatric
testimony altogether might be better for its case. However
correct was its judgment, we see little to suggest that it
exercised its peremptory challenge improperly. (See, e.g.,
Gutierrez, supra, 2 Cal.5th at p. 1171.)
Defendant
also argues that the prosecution should not have relied on
Prospective Juror No. 6's response to Question No. 129
because the question was asked in a leading manner. Yet,
simply because the juror may not have focused on
“childhood abuse, brutal parents, alcoholism, [and]
illnesses” until prompted by the question does not mean
her response was unreliable. There is nothing to indicate
that the prosecution behaved disingenuously in reading the
juror's answer as indicating that she was sympathetic to
defendant's case in mitigation.
Other
evidence supports the conclusion that the prosecutor's
reasons for striking Prospective Juror No. 6 were genuinely
held. (See, e.g., People v. Hardy (2018) 5 Cal.5th
56, 76.) First, we have the prosecution's oral
examination of the juror. Far from being desultory, the
prosecutor during voir dire explored the same topics from the
questionnaire that ultimately motivated him to excuse the
juror. For example, the prosecutor asked Juror No. 6 about
her “curios[ity] about the criminal mind, ” and
she responded that she wanted an explanation for why
criminals do what they do and that “childhood abuse or
brutal parents or alcoholism” could be an explanation
for why people commit crimes.[4] The juror also confirmed
that she wanted to know about “abuse or alcoholism, or
illness” before deciding on the penalty. The fact that
the prosecutor took the time to ask Juror No. 6 about areas
that concerned him suggests that he was not using her written
answers as a pretext for excluding her.
Second,
we note that two Catholic jurors sat on the jury. Of course,
the presence of Catholic jurors on the jury is “not
conclusive” to our inquiry, because the
“[e]xclusion of even one prospective juror for reasons
impermissible under Batson and Wheeler
constitutes structural error” regardless of how many
other venire members were not so erroneously excluded.
(People v. Turner (1994) 8 Cal.4th 137, 168;
Gutierrez, supra, 2 Cal.5th at p. 1158; see
also People v. Motton (1985) 39 Cal.3d 596, 607-608;
People v. Snow (1987) 44 Cal.3d 216, 225.)
Nonetheless, a prosecutor's acceptance of a jury with
members of a group that the prosecutor allegedly
discriminated against “strongly suggests that [bias]
was not a motive in his challenge” and, as such, is
“an appropriate factor... to consider” in the
Batson/Wheeler analysis. (Lenix,
supra, 44 Cal.4th at p. 629; Turner,
supra, 8 Cal.4th at p. 168; see also People v.
Blacksher (2011) 52 Cal.4th 769, 802; People v.
Jones (2011) 51 Cal.4th 346, 362-363 (Jones);
People v. Kelly (2007) 42 Cal.4th 763, 780.) The
trial court did not give this circumstance much weight
because it thought that the prosecution had run out of
peremptory challenges and thus had to accept the jury. This
was incorrect. Prior to exhausting its peremptory challenges,
the prosecution had accepted the jury with three Catholics on
the panel. It was only after the defense struck one more
juror that the prosecution exercised its two remaining
challenges and excused another Catholic prospective juror
(Prospective Juror No. 141). The fact that the prosecution
accepted a panel with three Catholic jurors on it when it
could have winnowed the number to one is another piece of
evidence suggesting that the prosecutor did not harbor group
bias against Catholics.
Against
the substantial evidence supporting the trial court's
decision, defendant urges us to undertake a comparative juror
analysis. According to defendant, a comparison of Prospective
Juror No. 6's answers against those of seated jurors
shows that the prosecutor's reasons for excusing Juror
No. 6 were pretextual, as many jurors gave answers similar to
those of Juror No. 6 but the prosecution did not strike them.
Having examined the record ourselves, we do not agree that
the seated jurors were comparable to Juror No. 6.
“Comparative
juror analysis is evidence that, while subject to inherent
limitations, must be considered when reviewing claims of
error at Wheeler/Batson's third stage
when the defendant relies on such evidence and the record is
adequate to permit the comparisons. In those circumstances,
comparative juror analysis must be performed on appeal even
when such an analysis was not conducted below.”
(Lenix, supra, 44 Cal.4th at p. 607.)
Because defendant did not attempt such a comparison during
trial, “the prosecutor was not given the opportunity to
explain his reasons for dismissing [the challenged jurors]
while later retaining [the seated jurors].” (People
v. O'Malley (2016) 62 Cal.4th 944, 977.) Under such
circumstances, we “ ‘must not turn a blind eye to
reasons the record discloses for not challenging other jurors
even if those other jurors are similar in some respects to
excused jurors.' ” (Ibid.; see
Jones, supra, 51 Cal.4th at pp. 365-366.)
Hence, to determine whether the seated jurors were truly
comparable to the challenged juror, we may look at more than
just the specific questions from the questionnaire that the
prosecutor cited in explaining his decision to strike
Prospective Juror No. 6. (O'Malley,
supra, 62 Cal.4th at p. 977; Jones,
supra, 51 Cal.4th at p. 365 [rejecting the
defendant's argument that the court “may not
consider reasons not stated on the record for accepting
other jurors”].) Defendant is wrong to suggest
otherwise and did not respond to the Attorney General's
extensive showing that the unexcused jurors were, in many
respects, more favorable to the prosecution than Juror No. 6.
Furthermore,
the sworn jurors did not give substantially the same answers
as Prospective Juror No. 6 on the specific questions
mentioned by the prosecutor. Defendant strings together a
number of jurors whose answers were somewhat similar to Juror
No. 6's on either the questions about
psychiatric attitude (Question Nos. 112 and 113 in
particular) or the question about the important
factors in deciding on penalty (Question No. 129). However,
just three of those jurors gave purportedly similar answers
to Juror No. 6 on both sets of questions. Other jurors gave
answers similar to those of Juror No. 6 on only one of the
two areas. These jurors are thus not comparable to Juror No.
6 at the outset. (See Lenix, supra, 44
Cal.4th at p. 624 [“Two panelists might give a similar
answer on a given point. Yet the risk posed by one panelist
might be offset by other answers, behavior, attitudes or
experiences that make one juror, on balance, more or less
desirable.”]; id. at p. 631 [“Advocates
do not evaluate panelists based on a single answer. Likewise,
reviewing courts should not do so.”].)
The
answers of the remaining three jurors do little to strengthen
defendant's case. Of these jurors, none said - as
Prospective Juror No. 6 did - that psychological testing
“determines what is the true feelings of [a]
person.” Unlike Juror No. 6, they also did not say that
psychology or psychiatry is “very helpful”
“to explain human behavior.” Instead, when asked
for an opinion on “the use of psychology or psychiatry
to explain [such] behavior, ” Juror No. 253 simply
said, “I do not know what other field deals with human
behavior”; Juror No. 334 gave the circumspect answer
of, “It could be reasonable depending on how it is
presented”; and Juror No. 338 answered somewhat
ambivalently, “Perhaps to explain the motivational
factors behind the crime. Also, to permit introduction of
mitigating/extenuating circumstances.” Moreover, these
seated jurors did not identify specific factors that were
important to them at the penalty phase. Juror Nos. 253 and
338 simply said, “yes” when asked if there is
“any type of information regarding a defendant's
background or character that would be important to you when
choosing between life without parole and death.” Juror
No. 334 gave the even weaker answer of, “Depend on the
evidence.” None of the three jurors singled out
“childhood abuse, brutal parents, alcoholism,
illnesses” as did Juror No. 6.
The
comparative juror analysis, in short, does not persuade us
that it is more likely than not that the prosecution's
reasons for excusing Prospective Juror No. 6 were pretextual.
Defendant's other arguments fare no better, and we affirm
the trial court's denial of defendant's
Batson/Wheeler challenge.
B.
Guilt Phase Issues
1.
Admission of defendant's confession
Defendant
contends his confession on April 22, 1999 and all subsequent
statements should have been excluded because his invocation
of the right against self-incrimination on April 21 was not
honored and his waiver under Miranda,
supra, 384 U.S. 436 was involuntary. As explained
below, we agree that the investigator should have stopped the
interrogation on April 21 sooner than he did but disagree
that the failure compels the exclusion of the confession
obtained on April 22 or thereafter. We therefore reject
defendant's claim that the court erred in admitting his
statements.
a.
Background
Before
trial began, defendant filed a motion to suppress his April
22 confession and all following statements. At the hearing on
the motion to suppress, Hobson testified. Hobson stated that
he met with defendant for the first time in March 1999, after
defendant had been arrested for violating his parole. At that
time, defendant was one of 13 to 16 individuals who, because
of their prior commission of sexual offenses, were being
questioned regarding the disappearance of the two victims.
Without giving defendant the warnings required by
Miranda, Hobson interviewed him for an hour or so.
Defendant told Hobson that he knew he would be questioned
about the disappearance of the two women, and he was willing
to cooperate in the investigation because he was confident
the investigation would establish his innocence. He also told
Hobson the police could search his vehicles and his house at
any time, and that he was willing to answer questions that
arose in the future.
In
early April 1999, Hobson met again with defendant at the San
Luis Obispo Police Department. Hobson asked defendant to
submit to a polygraph examination, and defendant eventually
agreed. The polygraph examiner advised defendant, both orally
and in writing, of his Miranda rights, and defendant
signed a statement waiving those rights. Defendant began the
polygraph examination, but terminated it before the
examination was completed.
After
the polygraph examination ended, Hobson again talked to
defendant. Hobson asked defendant if he remembered the
Miranda rights that the polygraph examiner had read
him. Defendant indicated that he remembered them and stated
that he was willing to talk to Hobson. During the 30- to
40-minute interview that followed, Hobson asked him again
where he was on various dates. Defendant readily answered
questions and reiterated that he was confident that the
investigation would clear him of any involvement in the two
cases.
On
April 21, 1999, Hobson met defendant at the jail and asked if
he was still willing to talk and cooperate with the
investigation. Defendant said he was. Hobson transported
defendant to the police department, where the subsequent
questioning was recorded. At the beginning of the interview,
Hobson asked defendant if he still knew the rights the
polygraph examiner had read him. Defendant confirmed that he
knew those rights, and Hobson stated, “those are the
rights that still apply here.”
Defendant
was initially cooperative. However, once Hobson began
confronting him with physical evidence connecting him to the
crimes - the eight-ball keychain found in defendant's
possession that resembled Crawford's and the blood found
on defendant's jump seat that matched Newhouse's -
defendant lapsed into silence. During the next 15 or 16
minutes, defendant remained silent while Hobson urged him to
give an account of what happened. Defendant eventually
stated, “Put me down in a holding cell and let me
think, all right?” When Hobson did not honor the
request, defendant said that if Hobson “sit[s] there
and tr[ies] [to] keep beating on [him], ” he was
“not gonna say nothing.” After some more
back-and-forth, Hobson agreed to give defendant a 10-minute
break and left.
Hobson
returned approximately five minutes later, telling defendant,
“we know you did it.... What matters is why you did
it.” In response, defendant whispered, “Take me
back to jail.” Hobson asked if defendant did not want
to help him, and defendant confirmed, “Not right
...