[452
P.3d 621] [255 Cal.Rptr.3d 109] San Luis Obispo County
Superior Court, Barry T. LaBarbera, Judge. No. F283378
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COUNSEL
Neil B.
Quinn, Ventura, 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.
Page 273
[255
Cal.Rptr.3d 110] 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 [452 P.3d 622] 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.
Page 274
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.[2] 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 [255 Cal.Rptr.3d 111] 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.
Page 275
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 [452 P.3d 623] 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.[3] 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 [255 Cal.Rptr.3d 112] 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
Page 276
department, where the ensuing interrogation was recorded. The
jury was shown the videotape, during which defendant
described what he had done to the victims.[4]
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
[452 P.3d 624] 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 [255 Cal.Rptr.3d 113] remove all of the blood, he
cut out portions of carpet, threw them in a dumpster, and put
the stained jump
Page 277
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.
Page 278
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.
[255
Cal.Rptr.3d 114] 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
[452 P.3d 625] 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.
Page 279
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 [255 Cal.Rptr.3d 115] 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 [452 P.3d 626]
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
Page 280
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 [255 Cal.Rptr.3d 116]
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.
Page 281
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.
[452
P.3d 627] 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."
Page 282
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 [255 Cal.Rptr.3d 117] 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.
[452
P.3d 628] 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
Page 283
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 [255 Cal.Rptr.3d 118] "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
Page 284
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 [452 P.3d 629] 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
[255 Cal.Rptr.3d 119] 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.
Page 285
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
Page 286
a screwdriver. A.C.’s daughter cried and screamed. A.C. asked
defendant to take her to another room. [255 Cal.Rptr.3d 120]
When they were walking down the hallway, defendant attempted
to tie [452 P.3d 630] 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, 148
Cal.Rptr. 890, 583 P.2d 748 (Wheeler ) and
People v. Batson (1986) 476 U.S. 79, 106 S.Ct. 1712,
90 L.Ed.2d 69 (Batson ). Although defendant argued
before the trial court that the prosecution wrongfully
Page 287
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.[5] 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, [255 Cal.Rptr.3d
121] 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.[6] Defense counsel acknowledged that
defendant [452 P.3d 631] 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
Page 288
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."[7] 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, [255 Cal.Rptr.3d 122] 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
Page 289
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 [452 P.3d 632]
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, 80 Cal.Rptr.3d 98, 187 P.3d 946');">187 P.3d 946');">187 P.3d 946');">187 P.3d 946
(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, 80 Cal.Rptr.3d 98, 187 P.3d 946');">187 P.3d 946');">187 P.3d 946');">187 P.3d 946.)
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 [255
Cal.Rptr.3d 123] People v. Scott (2015) 61 Cal.4th
363, 391, 188 Cal.Rptr.3d 328, 349 P.3d 1028 (Scott
). In Scott, we acknowledged that our jurisprudence
in distinguishing between a first- and a
Page 290
third-stage review "has not always been entirely
consistent." (Id. at p. 386, 188 Cal.Rptr.3d
328, 349 P.3d 1028.) 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, 188
Cal.Rptr.3d 328, 349 P.3d 1028.) 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, 188 Cal.Rptr.3d 328, 349 P.3d 1028.)
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 [452 P.3d 633] 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, 106
Cal.Rptr.3d 153, 226 P.3d 276.) 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, 80 Cal.Rptr.3d 98, 187 P.3d 946');">187 P.3d 946');">187 P.3d 946');">187 P.3d 946.)
"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, 80 Cal.Rptr.3d 98, 187 P.3d
946.) 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
Page 291
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 [255 Cal.Rptr.3d 124] — 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, 218 Cal.Rptr.3d 289, 395 P.3d 186; see also
People v. Cunningham (2015) 61 Cal.4th 609, 665, 189
Cal.Rptr.3d 737, 352 P.3d 318');">352 P.3d 318 [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, 76 Cal.Rptr.3d 208, 182 P.3d 543');">182 P.3d 543 [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, 218
Cal.Rptr.3d 289, 395 P.3d 186.)
Defendant also argues that the prosecution should not have
relied on Prospective Juror No. 6’s response to Question No.
129 because [452 P.3d 634] the question
Page 292
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, 233 Cal.Rptr.3d 378, 418 P.3d 309.) 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 [255 Cal.Rptr.3d 125] 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.[8] 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, 32
Cal.Rptr.2d 762, 878 P.2d 521; Gutierrez, supra, 2
Cal.5th at p. 1158, 218 Cal.Rptr.3d 289, 395 P.3d 186; see
also People v. Motton (1985) 39 Cal.3d 596, 607-608,
217 Cal.Rptr. 416, 704 P.2d 176; People v. Snow
(1987) 44 Cal.3d 216, 225, 242 Cal.Rptr. 477, 746 P.2d 452.)
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, 80 Cal.Rptr.3d 98, 187 P.3d 946');">187 P.3d 946');">187 P.3d 946');">187 P.3d 946;
Turner, supra, 8 Cal.4th at p. 168, 32 Cal.Rptr.2d
762, 878 P.2d 521; see also People v. Blacksher
(2011) 52 Cal.4th 769, 802, 130 Cal.Rptr.3d ...