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People v. Krebs

Supreme Court of California

November 21, 2019

The PEOPLE, Plaintiff and Respondent,
v.
Rex Allan KREBS, Defendant and Appellant.

         [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.

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         [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.

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          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.

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          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

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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

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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.

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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.

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          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

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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.

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          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."

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          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

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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

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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.

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          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

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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

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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

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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

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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

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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

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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

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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 ...


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