People v. Parker , 218 Cal. Rptr. 3d 315 ( 2017 )

Filed 6/5/17
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE, )
)
Plaintiff and Respondent, )
) S076169
v. )
)
GERALD PARKER, )
) Orange County
Defendant and Appellant. ) Sup. Ct. No. 96-ZF-0039
____________________________________)
Gerald Parker, nicknamed the “Bedroom Basher” by the media in the late
1970s for a string of unsolved home-invasion rape murders in Orange County, was
convicted by a jury of the first degree murders of Sandra Fry, Kimberly Rawlins,
Marolyn Carleton, Chantal Green, Debora Kennedy, and Debra Senior (Pen. Code
§§ 187, subd. (a), 189)1 with the special circumstances of multiple murder and
murder during the attempted commission or commission of the crimes of rape and
burglary (§ 190.2, subd. (a)(3), (17)(C), (G)). The jury returned a verdict of death,
and the court imposed judgment accordingly. (§ 190.4, subd. (e).) This appeal is
automatic. (§ 1239, subd. (b).) We affirm the judgment in its entirety.
1 All further statutory references are to the Penal Code, unless otherwise
noted.
SEE CONCURRING AND DISSENTING OPINIONS
1
I. FACTS
A. The Guilt Phase
In 1978 and 1979, defendant was a staff sergeant in the United States
Marine Corps stationed in Orange County, California. During this time, six
women in three different Orange County cities—Anaheim, Costa Mesa, and
Tustin—were sexually assaulted and brutally beaten in their apartments. Five died
from massive injuries to their heads caused by being struck with a blunt object
with such force their skulls were fractured. One pregnant victim survived, but her
fetus died as a result of the attack. These crimes went unsolved until 1996, when
deoxyribonucleic acid (DNA) testing connected the homicides to each other and to
defendant, who was then in prison on an unrelated parole violation. When
interrogated and confronted with the DNA and fingerprint evidence during
interviews the police tape-recorded with his knowledge, defendant admitted
burglarizing all six homes. At trial, he did not contest his identity as the assailant
of all six women, but claimed he lacked the requisite specific intent to commit the
crimes due to voluntary intoxication.
1. The prosecution case
a) The victims
(1) Sandra Fry
On December 1, 1978, Georgena Stevenson returned home about
11:00 p.m. to the two-bedroom apartment she shared with 17-year-old Sandra Fry
in Anaheim. Stevenson found Fry in her bedroom lying unresponsive across the
bed and nude from the waist down. Her blouse was pulled up, exposing her bra,
and there were obvious signs of trauma to her head, including blood around her
mouth, nose, and hair. Fry was not breathing, although she was warm to the
2
touch. Paramedics transported her to the hospital, where she was pronounced
dead.
Richard Fukumoto, M.D., the Chief Pathologist for the Orange County
Coroner’s Office, testified Fry died from subdural and subarachnoid hemorrhaging
caused by cerebral lacerations and skull fractures from an unknown number of
blows to her head by a blunt instrument, such as a baseball bat, two-by-four, or
metal pipe.2 Dr. Fukumoto explained a “tremendous amount of force” is required
to fracture the skull, and such an injury quickly causes loss of consciousness. Fry
also had a laceration on her lip, bruises and contusions over the bridge of her nose
consistent with being struck in the face, bruises on her neck consistent with being
choked, and bruising to her upper chest consistent with blunt force trauma. The
injuries to her face and neck were consistent with a struggle. There were also
signs of a struggle inside the apartment.
The point of entry into the apartment was a window above the bed in
Stevenson’s bedroom. A latent fingerprint lifted from this window was later
matched to defendant’s left index finger. Subsequent testing of the semen
swabbed from Fry’s body yielded a DNA profile that matched defendant’s.
When he was interrogated in 1996, defendant described an attack matching
Fry’s case that occurred in Anaheim one evening in December 1978. Defendant
was driving around when he noticed an apartment complex near Buena Park.
Parking on a narrow road behind the complex, he climbed a fence and entered
through the back where the garages were located. He passed three or four
apartments before he reached one where he could see a woman sitting at the table
2 Robert Richards, M.D., performed Fry’s autopsy but was unavailable to
testify at the time of trial. Dr. Fukumoto reviewed the autopsy report and
photographs and testified regarding Fry’s injuries and cause of death.
3
in the kitchen with her back to the living room window. He watched her for about
a minute before going to the back of the apartment and entering through an open
bedroom window. After watching the woman for several more minutes, defendant
approached her from behind, intending to rape her. Before she became aware of
his presence he hit her in the head two or three times with a two-by-four, rendering
her unconscious.3 He dragged her into her bedroom and laid her on the bed with
her legs spread apart. He pulled his pants and underwear down before removing
her pants, tearing off her underwear, and ejaculating on her. Before he left,
defendant noticed the woman was having difficulty breathing. He did not take
anything from the apartment and exited through the same window he had entered.
(2) Kimberly Rawlins
On March 31, 1979, Roberta Birrittella and Donna Chavez went out on
dates about 7:30 p.m., leaving Birrittella’s roommate, 21-year-old Kimberly
Rawlins, alone in their one-bedroom apartment in Costa Mesa. Chavez and her
date returned about 11:30 p.m. to retrieve Chavez’s identification. They spoke
with Rawlins for a short time before leaving again sometime after midnight.
Rawlins asked them to leave the door unlocked on their way out because she was
going to take a shower and go to sleep and Birrittella did not have a key to the
apartment.
Birrittella returned home about 4:45 a.m. on April 1. The front door of the
apartment was ajar and all the lights inside were off except the one in the
bathroom. Hearing what sounded like a heavy sigh or forced breath, Birrittella
3 As noted, there were signs of a struggle in the apartment and Fry suffered
injuries consistent with a struggle, contradicting defendant’s claim that Fry was
unaware of his presence before he struck her in the head and rendered her
unconscious.
4
went into the bedroom and found an unresponsive Rawlins wearing only an open
bathrobe and lying half on and half off her bed. Rawlins’s face was badly beaten;
both her eyes were blackened and there was froth in her nostrils and swelling
above both ears. Believing Rawlins to be dead and thinking the person
responsible could still be inside their apartment, Birrittella fled to a neighbor’s to
call the police. Law enforcement officers who responded to the scene detected a
faint pulse and began performing CPR on Rawlins. Paramedics arrived and
continued CPR efforts, but soon after pronounced her dead.
Peter Yatar, M.D., performed Rawlins’s autopsy. He testified Rawlins died
from brain contusions with subdural hematoma as the result of multiple skull
fractures—a nine-inch fracture extending from her left ear across the top of her
skull, a three-inch fracture to her right temporal lobe, and a two and a half-inch
fracture just over her right eye—consistent with applying “a great amount of
force” with a blunt instrument. These injuries would have rendered Rawlins
unconscious immediately. Dr. Yatar explained 400 to 600 pounds of force per
square inch would be required to cause similar skull fractures on a cadaver, and
even greater force would have been necessary to cause Rawlins’s nine-inch
fracture. Rawlins also had hemorrhages around both eyes, almost identical bruises
on both sides of her head, and a small laceration on her lower lip that could have
been caused by blunt force or as the result of falling on the floor. She also had
two broken fingernails and small abrasions on two fingertips.
Subsequent testing of the semen found on the string of the tampon Rawlins
had been wearing revealed a DNA profile that matched defendant’s. It also
matched the DNA profiles of the semen swabbed from Debora Kennedy and
Debra Senior (see post).
When he was interrogated, defendant described an attack he committed one
night in Costa Mesa that matched Rawlins’s case. He was outside an apartment
5
window listening to three people inside talking. The man and one of the women
left, leaving the other woman alone in the apartment. Defendant then drove
around for about an hour before coming back. He entered the apartment through
the unlocked front door with the intent “to go in and rape” the woman. The lights
in the apartment were off. The woman was in the bedroom “sleeping in the nude.”
Defendant recalled she was short and petite and that he struck her two or three
times with the two-by-four he was carrying. He could not recall whether he was
able to achieve an erection. He said he left the apartment the same way he
entered, throwing the two-by-four onto the garage roof.
(3) Marolyn Carleton
On September 14, 1979, 31-year-old Marolyn Carleton and her nine-year-
old son, Joseph, then known as Joey, were living in an apartment in Costa Mesa.
About 11:45 p.m., the complex’s manager, who lived next door, walked by and
noticed Carleton’s patio sliding glass door and drapes were open but the screen
door was closed. The light was on in the dining area and the manager could see
Carleton, who appeared to be asleep on the floor.
Shortly before 3:00 a.m. on September 15, a law enforcement officer was
dispatched to Carleton’s apartment.4 The patio’s sliding glass and screen doors
were now open but the drapes were closed. Joey met the officer outside, saying
his mother had been hurt; he directed the officer inside, where the apartment was
dark except for a hallway light. Carleton was found lying on the master bedroom
floor, partially propped up against the bed and nightstand. She had a very weak
4 During victim impact testimony in the penalty phase, Joseph testified how
his mother, screaming his name, woke him in the middle of the night. After
finding her incoherent and bleeding on the floor of her bedroom, he called the
operator for assistance.
6
pulse, was struggling to breathe, and appeared to be unconscious. Her face and
hair were covered with blood and there was a large wound on the top of her skull.
The short nightgown she was wearing had been pulled up above her waist and her
underwear was down around her right leg between her knee and ankle.
Paramedics transported Carleton to the hospital, where she died the next day.
Dr. Fukumoto testified Carleton died from subarachnoid and subdural
hemorrhage and cerebral contusions as a result of blunt force trauma.5 She had a
“massive” scalp laceration above the left earlobe that extended back to the base of
the skull. Beneath this was a depressed skull fracture that was “quite extensive”
and had lacerated the brain tissue. A “large amount of force” from a blunt
instrument was required to inflict these injuries. Carleton also had areas of
bleeding around her left eye and in her right anterior shin, medial calf, and thigh,
but no defensive-type wounds. A rape kit taken from Carleton after her admission
to the hospital yielded insufficient biological evidence for any type of testing or
analysis.
During his interrogation, defendant was asked if he remembered attacking a
woman where “her little boy was home.” Defendant replied, “Oh yeah. Geez,
how did I forget that one? . . . I didn’t know the little boy was in there, until it was
too late . . . .” Defendant described scaling a back wall and entering Carleton’s
apartment through an unlocked sliding glass door. Carleton was asleep in her bed
with a nightlight on. She was wearing a nightgown but no underwear. Defendant
hit her in the head three or four times with the intention of knocking her
unconscious so he could rape her. He did not recall what he used but said “in most
5 Walter Fischer, M.D., performed Carleton’s autopsy. He was deceased at
the time of trial. Dr. Fukumoto reviewed the autopsy report and photographs and
testified regarding Carleton’s injuries and cause of death.
7
cases, it was [two-by-fours] . . . these things were laying all over the place at that
time . . . .” He attempted to sexually assault her but could not recall if he got an
erection or ejaculated. Defendant said when he exited the bedroom, he “bumped
into” the boy in the dark hallway and the boy asked, “[W]hat’s wrong with
mommy.” Defendant did not say anything, moved the boy aside, and left the
apartment the same way he entered.
(4) Chantal Green
On September 30, 1979, 20-year-old D. Green was nine months pregnant
and living in an apartment in Tustin with her husband who was in the Marines. At
2:15 a.m., a law enforcement officer responded to a call from the apartment and
was met outside by the husband, who appeared to be in a state of shock and said
his wife had been injured. D. was in the bedroom, unconscious and lying on the
bed nude with her legs spread apart. She was having difficulty breathing and was
bleeding from a two-inch hole in the middle of her forehead, as well as from her
ear and nose. There was blood on the bed and floor, and blood spatter on the wall
behind the bed. The wound to her head was so deep it exposed brain tissue and
was so pronounced the officer initially believed she had been shot. D. was
transported to the hospital. Several hours later her unborn fetus, Chantal, ceased
to have vital signs and was delivered stillborn.
Dr. Fukumoto performed Chantal’s autopsy and testified regarding her
cause of death as well as D.’s injuries. The wound to D.’s head had been caused
by blunt force consistent with being hit by a mallet or the end of a baseball bat.
This would have rendered her unconscious immediately and caused severe
underlying damage to her brain. Shock from this traumatic injury caused D.’s
body to shift the oxygenated blood to her heart, lungs and brain, resulting in her
8
uterus receiving less oxygenated blood. Chantal died from intrauterine anoxia
caused by the marked decrease in the oxygenation of her mother’s blood.
D. spent 10 days in a coma and remained in the hospital for about three
weeks. When she regained consciousness, she had total amnesia and could not
remember anyone. She had to learn to talk and spell all over again, a process that
took years. D. eventually regained her memory but at the time of defendant’s trial,
some 17 years later, she still had problems communicating, particularly if
someone talked fast or the subject matter was technical.
D.’s husband was convicted of the second degree murder of Chantal and of
attempting to murder his wife and assaulting her with force likely to cause great
bodily injury. He was committed to prison in November 1980 for a term of 15
years to life. Subsequent testing of the sperm on the vaginal swab from D.’s rape
kit taken revealed a DNA profile that matched defendant’s. In June 1996, D.’s
husband was released from custody after an Orange County Superior Court judge
set aside his convictions and dismissed the case against him.
When interrogated, defendant admitted he was the one who attacked D..
He said he was drunk and it was around midnight when he drove up and parked
his black van close to her apartment complex. While walking around the complex,
he overheard D. and her husband arguing, heard a car start up, and then saw the
husband drive away. Defendant left for about an hour, drank some more alcohol,
then came back and entered the apartment through the unlocked front door. He
saw memorabilia in the living room indicating the husband was in the Marines.
D., who was noticeably pregnant, was lying on the bed in the bedroom. Defendant
rushed toward her and hit her in the head with a board he had picked up outside
the apartment. After knocking her unconscious, he raped her and ejaculated inside
her. Defendant denied taking anything from the apartment, asserting that “[i]n no
9
case . . . was a robbery involved . . . these were all cases of rape and then out of
the house.”
(5) Debora Kennedy
On October 6, 1979, Yvette Levay and a friend left for Las Vegas about
9:00 p.m. Levay’s sister, 24-year-old Debora Kennedy, stayed home alone in their
apartment in Tustin. When Levay returned to the apartment the next day about
6:00 p.m., the front door was open and Kennedy was lying in an exaggerated
spread-eagle position on a blood-soaked mattress on the floor of her bedroom.
She had massive blunt force trauma to her face and showed no signs of life. Her
body was covered with a knitted shawl and there was blood spatter on a nearby
credenza. She was unclothed except for a robe and there was a mucous-like
substance between her legs in the vaginal area.
Dr. Fukumoto testified Kennedy died from cerebral laceration with
subdural and subarachnoid hemorrhaging caused by blunt force trauma to the head
with resulting skull fractures.6 The extensive fracturing of her skull started above
the right earlobe (the point of impact) and radiated down to the base and the
opposite side of the skull. This injury would have required at least five blows
from a blunt instrument—such as a baseball bat, two-by-four, pipe, or the flat end
of a hammer—delivered with a large amount of force. Kennedy also sustained
multiple injuries to both sides of her face and periorbital hemorrhage to her eyes,
but no defensive wounds.
There were no signs of forced entry to, or struggle inside, the apartment,
but a window in a back rear bedroom had been opened and its screen removed.
6 Dr. Richards performed Kennedy’s autopsy but, as noted (fn. 2, ante), was
unable to testify at trial. Dr. Fukumoto reviewed the autopsy reports and
photographs and testified regarding Kennedy’s injuries and cause of death.
10
Subsequent testing of the sperm swabbed from Kennedy’s body revealed a DNA
profile that matched defendant’s.
When he was interrogated, defendant described the attack on Kennedy as
occurring late at night or during the early morning hours. He said he took a mallet
he found in the back of a pickup truck parked close by and entered Kennedy’s
apartment through a window that was cracked open. When he entered the living
room Kennedy was asleep on the floor leaning against the couch with the
television on. She had a blanket over her but defendant claimed she was not
wearing any clothes. He hit her on the head with the mallet, raped her, and
ejaculated inside her. He recalled Kennedy was “kind of heavy” and said there
was “no particular reason” for selecting her single-story apartment.
(6) Debra Senior
On October 20, 1979, Debra Chamberlain and 17-year-old Debra Senior
went together to a party in Fountain Valley, California. About 10:30 p.m., Senior
left in Chamberlain’s car to return home alone to their apartment in Costa Mesa.
Chamberlain later got a ride home with a friend, arriving about 2:30 a.m. The
lights in the apartment were on and the stereo was playing. Chamberlain found
Senior lying on the floor of her bedroom near the foot of the bed, unclothed except
for a pair of socks. She had suffered severe head trauma and her hair was matted
with blood. Blood spatter extended from her left shoulder, elbow, and forearm
onto the foot of the bed. A torn blouse and unsnapped bra had been pulled up
around her shoulders. Buttons from the blouse were found on the floor next to her
body. A green towel had been partially wrapped around her neck. Torn
underwear was lying on a pair of shoes near the bed and the contents of a purse
were on the floor near her feet.
11
Dr. Fukumoto testified Senior died as a result of a hemorrhage from a
cerebral laceration and contusions caused by blunt force trauma with skull
fractures.7 A skull fracture associated with two elongated lacerations on the right
side of her head radiated downward to the base and around to the left side of her
skull. Fragments from the fracture had lacerated her brain. A pipe, two-by-four,
or baseball bat could have inflicted these injuries, which would have required
more than one blow with a “large amount of force” and would have rendered
Senior unconscious almost immediately. Blood spatter at the crime scene was
consistent with Senior’s not having moved after being struck on the right side of
the head while lying on the bed. Autopsy photographs showed the head injuries
suffered by Senior and Kennedy were both slightly curved lacerations, leading Dr.
Fukumoto to suspect the same blunt instrument had been used in both cases.
The point of entry into the apartment was a bathroom window; there were
partial shoe prints on top of a gas meter outside the window and on a bar of soap
on the floor of the bathtub directly under the window. One of the handprints lifted
from the windowsill matched defendant’s left palm. Subsequent testing of the
sperm swabbed from Senior’s body revealed a DNA profile that matched
defendant’s. As noted, it also matched the DNA profiles of the semen swabbed
from Rawlins and Kennedy.
During defendant’s interrogation, a detective described the area where
Senior’s apartment had been located, prompting defendant to recall, “I know, I
gotcha . . . this one was young . . . 17, 18, something like that.” He described
parking a “considerable distance” from Senior’s apartment and pretending to be a
7 Dr. Fischer performed Senior’s autopsy but, as noted (fn. 2, ante), died
before the trial. Dr. Fukumoto reviewed the autopsy report and photographs and
testified regarding Senior’s injuries and cause of death.
12
jogger in the neighborhood while he looked in windows. He saw Senior’s
apartment was empty and entered through a bathroom window. He had been there
for about 20 minutes when Senior came home. Hiding in the bathroom, he
watched Senior make a drink in the kitchen, sit down on a couch in the living
room, and eventually fall asleep. Defendant exited the bathroom and hit Senior in
the head two or three times with a two-by-four, rendering her unconscious. He
then carried her into one of the bedrooms, laid her on the floor, removed her
underwear, raped her, and ejaculated inside her.
b) Defendant’s interrogations and statements
(1) Avenal State Prison
In June 1996, Costa Mesa Police Department Detective William Redmond
obtained some of the DNA test results linking defendant to the above homicides.
On June 14, Redmond, investigator Lynda Giesler, and Tustin Police Department
investigator Thomas Tarpley drove to Avenal State Prison in Kings County to
serve a search warrant on defendant and to interrogate him. About 10:30 a.m.,
Redmond, Giesler, and defendant were placed in one of the prison’s interview
rooms.8
After advising defendant of his Miranda rights (Miranda v. Arizona (1966)
384 U.S. 436), Redmond explained that a blood sample taken when defendant was
last released from prison had been run through a computer database and
defendant’s DNA “came up on a couple of Costa Mesa homicides back in 1979.”
Defendant said he had been through Costa Mesa but never lived there and did not
recall the area well. From 1975 to 1978, he had been stationed at the Marine base
8 All of defendant’s interrogations were audio- or video-recorded. These
recordings were played for the jury and transcripts of the recordings were provided
to jurors.
13
in Tustin, where he was assigned to a helicopter squadron and typically worked
the night shift from 4:30 p.m. until 8:00 a.m. on weekdays. Toward the end of his
career in the Marines, he was transferred from Tustin to El Toro, where he spent
just a few months. Defendant described his lifestyle at this time as revolving
around drinking and using drugs. He drank “anything I could get my hands on,”
smoked marijuana for a number of years, did PCP and as much LSD as he could,
and used cocaine and heroin for about three months. His only close friend was
another Marine, Albert Garcia, with whom he shared an apartment in 1975 and
early 1976 and often socialized.
Defendant briefly described his family and upbringing, and said he had
“always had problems” meeting women and never developed relationships with
them. He claimed he did not keep track of Orange County news and did not recall
hearing in 1979 about women in Costa Mesa being sexually assaulted and
murdered. When Giesler reiterated that defendant’s DNA matched that found on
four victims, he responded, “I don’t know what to tell you.” Redmond clarified
that the DNA was obtained from semen and the victims had been hit on the head
and raped. He asked if defendant had ever experienced violent tendencies on PCP
or if it was possible he had “met a girl, saw a girl, followed a girl home, and then,
whatever happened happened?” Defendant did not think he “could forget
something like that.” Giesler encouraged him to confess and “[g]et the monkey
off your back,” but defendant said “the day is not today” and “I think I should wait
until later on . . . . I just need some time to . . . to draw upon some strength. . . .
To say what I have to say.” He told Redmond and Giesler to come back after he
was transferred to Orange County jail in 23 days. Giesler agreed, but said another
investigator from Tustin had come with them and wanted to talk to him.
Redmond and Giesler left the interview room, at which time Tarpley
entered. Tarpley readvised defendant of his Miranda rights and defendant agreed
14
to talk to him “about why I’m here today.” At 12:09 p.m., Tarpley began to
interrogate defendant. He explained he was investigating a 1979 Tustin homicide
and asked where defendant had been living at that time. Defendant said he was
staying at the Marine Corps Air Station in El Toro and recounted much of the
background and personal history he had given to Redmond and Giesler.
Tarpley showed defendant a picture of Debora Kennedy. Defendant said he
had never seen Kennedy before and did not know why his semen would be in her,
saying, “I find it hard to believe that it matched four and here’s a fifth. I have no
idea. . . . None whatsoever.” Tarpley also described the Green case. Defendant
recalled reading there had been an argument and the husband, who was a Marine,
hit the victim in the head. He asked if the husband was on death row. Tarpley
said the husband had been convicted but that he did not know if he was on death
row. Defendant admitted it was “possible” he had killed someone while under the
influence of drugs because sometimes he “blacke[d] out” and would do and say
things he did not remember. Tarpley urged defendant, “Today’s the day that you
take control and you say . . . I’m going to do the right thing, and that’s what we’re
here for . . . . And that’s what I’m asking you to do. . . . Can you do that for me?”
In response, defendant asked, “Is Costa Mesa still here?” Tarpley replied
affirmatively. Defendant asked to use the bathroom, stating, “then we can . . . get
this over with.”
Detective Redmond and investigator Giesler joined Tarpley in the interview
room at 1:05 p.m. and defendant proceeded to confess to the homicides at issue.
He began with the case of “the Marine and his wife,” saying: “I believe that there
is a man on death row because of something that I did [and] out of all these
murders and the crimes that I committed over the years, that was the one that
bothered me the most . . . .” Defendant had heard about the attack on the radio and
read about it in the newspaper in 1980 or 1981, but claimed his memory was hazy
15
due to drinking and drugs. In general he used to get drunk at bars and then drive
around looking for a prostitute or woman—“that’s where this started, you know,
looking through windows or hoping that you find a door open, that sort of
thing . . . .”
Defendant described the attack on D. Green as detailed above. He claimed
he “couldn’t even get an erection . . . in most of these cases, because I was drunk
and under the influence of drugs. . . .” Tarpley asked, “[H]ow many women do
you think . . . you attacked?” Defendant was not sure; “I didn’t know these people
were actually dying, until I heard it . . . on the radio.” He could not recall his first
attack, but denied attacking any women in other states where he had been
stationed.
Defendant also described the attacks on Debora Kennedy, Kimberly
Rawlins, Marolyn Carleton, Debra Senior, and Sandra Fry as detailed above. He
reiterated he did not take anything from the apartments and never went through
drawers or closets because he was not in the homes long enough. He never wore
gloves and did not wash anything or wipe anything clean when he left. He read a
couple of articles about the incidents while incarcerated and heard things on the
radio, but had not known the full extent of what had happened until now.
Sometimes the day after an attack he would recall he had gone “out,” but other
times he experienced “a total blackout” and would not recall what had happened
until later. Defendant never told anyone about the attacks, although he thought
about them. Two or three years before, he had gone through a drug rehabilitation
program and left thinking, “[T]hat’s probably what I’ve been doing all these years
is trying not to face . . . what I’m facing now and I’m trying to stay away from it,
because . . . I don’t know how to handle it . . . .” Defendant could not recall any
other cases and said he only remembered the last three or four he described by
16
“shaking my memory.” At the conclusion of the interrogation, defendant’s blood
was drawn pursuant to the search warrant.
(2) California State Prison Corcoran
About 10:30 p.m. the same day, Anaheim Police Department Detective
Richard Raulston and Sergeant Steven Rodig interrogated defendant, who
meanwhile had been moved to California State Prison Corcoran, regarding Fry’s
case. Raulston inadvertently erased a portion of the tape recording while trying to
duplicate it, so he returned to the prison on June 16, 1996. There, he readvised
defendant of his Miranda rights, and defendant repeated much of what he had
previously confessed regarding Fry’s death, adding more details.
On June 18, 1996, Redmond and Giesler went with their supervisor and a
technician to interrogate defendant on videotape. Defendant again was advised of
his Miranda rights and again agreed to speak to investigators. He provided a lot of
the same and some additional information regarding his background and the
crimes. Defendant said he began using LSD and mescaline in junior high school
in San Diego. After basic training, he was stationed in Adak, Alaska, where he
first tried alcohol. He drank every day, including when he was on duty. His
drinking and drug use reached the point he was not reporting to work, and by mid-
1979 he was about to be kicked out of the military.
Regarding the crimes, defendant claimed his intent had been only to knock
the women unconscious so he could rape them. It never occurred to him he was
killing the women because once in a fight he had knocked his opponent out by
hitting him in the head with a two-by-four and, although there had been a small
amount of blood, this did not kill the man. Defendant thought everyone’s skull
could withstand the same amount of force and hitting the women in the head only
rendered them unconscious. He first thought about assaulting women shortly
17
before the first assault. Later, when he was in prison, he thought the cases were so
old the victims might have passed away or there might have been insufficient
evidence to identify the assailant.
2. The defense case
Defendant presented no evidence during the guilt phase and engaged in
limited cross-examination of the prosecution’s witnesses. In opening and closing
argument, the defense conceded identity, but relied on defendant’s statements to
argue he was guilty of only second degree murder as to each victim based on
diminished capacity due to intoxication.
B. The Penalty Phase
At the penalty phase, the prosecution relied on the facts and circumstances
of the murders, including the impact on the victims’ families, and introduced
evidence regarding several additional acts of violence. Defendant testified on his
own behalf and presented the testimony of a friend from his time in the Marine
Corps and the expert opinion of a forensic psychiatrist.
1. The prosecution’s case-in-aggravation
a) Other acts of violence
(1) 1979 rape
On July 19, 1979, Jane D. was living alone in a Costa Mesa apartment. She
went to bed between 11:00 and 11:30 p.m., but was later awakened by noises in
the hallway. When she went to investigate, a man grabbed her and told her to shut
up, after which she lost consciousness. During this brief encounter, Jane did not
notice any signs of his being intoxicated. A friend coming to see her the next
morning found the apartment’s front door open a few inches and Jane lying
unconscious in bed on her back. Her eyes were swollen and there were scratches
on her face and bruising behind her ear. She looked like “a prize fighter after a
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fight.” Her pillow was covered in blood, and blood was splattered on the bedroom
wall and heater. Jane was taken to the hospital, where she remained in a coma for
about four weeks. She suffered an “ear to ear” skull fracture and required a
permanent tracheostomy as a result of having been strangled. At the time of
defendant’s trial she could not breathe well and could not swim or engage in heavy
exercise. As a result of permanent nerve damage, she also had problems chewing
and difficulty forming words.
DNA extracted from sperm from the vaginal swabs from Jane’s rape kit
matched defendant’s profile. When he was interrogated in prison in June 1996
defendant confessed to assaulting Jane.9 He said he had been drinking that night
and entered the apartment through an open dining room window. He found Jane
sleeping in the nude and hit her in the head with a two-by-four, which he later
discarded in a dumpster. He believed he was unable to obtain an erection and that
he ejaculated without penetrating her. Defendant admitted he entered the
apartment to see if there was a female inside and, if so, to knock her unconscious
and rape her.
(2) 1980 robbery
On February 2, 1980, defendant was visiting his brother, who lived in
Pasadena, California. Around 10:00 p.m., Aida Demirjian arrived at the Pasadena
apartment complex where she lived and was locking her car in the underground
parking structure when defendant hit her two or three times in the head with an
iron rod. She fell down and pretended to be unconscious, but defendant kept
hitting her. She got up and started to run and yell for help but he ran after her,
9 Tape recordings of the relevant portions of the interrogations were played
for the jury during the penalty phase and transcripts of the recording were
provided to jurors.
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grabbed her, and hit her again. Demirjian fell a second time and again pretended
to be unconscious as defendant dragged her a few feet, ripped a necklace from her
neck, and looked through her purse. When he subsequently lifted up her skirt, she
got up and ran to the manager’s apartment for help. Demirjian was hospitalized
for several days and required surgery and physical therapy to repair a skull
fracture and several broken fingers.
A law enforcement officer was dispatched to the scene around 10:20 p.m.
About a half-block from Demirjian’s complex, defendant crossed the street in
front of the officer’s marked police car. The knees of defendant’s pants were
scuffed and appeared stained. When the officer exited the car and approached
defendant, he noticed blood on defendant’s pants, shirt, and hands. Defendant was
calm, cooperative, and compliant, and did not appear intoxicated when he was
detained and taken into custody. Another officer found a bloody metal pipe on the
floor of the parking structure, as well as a gold and pearl necklace. A certified
copy of defendant’s October 1980 conviction, pursuant to his guilty plea, for
robbery and infliction of great bodily injury during the commission of a robbery,
was introduced as evidence.
(3) 1980 rape
On February 15, 1980, 13-year-old Paula S. attended her father’s funeral.
About 3:30 p.m., she was walking home from a drug store in Tustin when a black
van drove past her and pulled over. Defendant got out and went around to the
back of the van as though he were checking the tire. As Paula walked by the van,
he grabbed her by the sweater, punched her in the face, threw her into the van, and
drove off. While driving, defendant kept looking at Paula through the rearview
mirror, saying, “[S]tay down, stay down, or I’ll kill you.” He later stopped in the
parking lot of a small shopping center, got in the back of the van, and raped her.
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Afterward, he asked Paula personal questions, such as what her name was and
how old she was. When it was dark, he drove close to where she lived and
dropped her off in an alley, saying, “If you tell anybody, I’ll come back and I’ll
kill you.” When she got home, Paula told her mother what had happened and the
police were called. Defendant confessed to the attack when interrogated a few
days later. When interrogated in prison in June 1996, he also talked about “a rape
he had been convicted of” and said it probably saved the girl’s life that she was so
young. The prosecution introduced a certified copy of defendant’s May 1980
conviction, pursuant to his guilty plea, for kidnapping and rape by threat.
(4) 1984 assault
On the night of February 13, 1984, David Feurtadot was sharing a room
with defendant at the state prison in Tehachapi, California, and was asleep when
defendant began hitting him in the back of the head with a curved piece of steel
approximately two feet in length. Feurtadot chased defendant out of the room and
into the hallway, but had to sit down because he was bleeding profusely; he almost
passed out from the pain. The three- to four-inch cut on his head required stitches
and he stayed in the hospital facility for a week. Defendant never said why he
attacked him, and Feurtadot did not know the reason. At the time of defendant’s
trial, Feurtadot still suffered headaches as a result of the incident. The prosecution
introduced a certified copy of defendant’s June 1984 conviction, pursuant to his
guilty plea, for assault with a deadly weapon.
b) Victim impact evidence
Judith Brown testified about the loss of her younger sister, Sandra Fry. Fry
was one of 10 siblings. Brown described her as very compassionate and loving,
the kind of person who would bring home stray animals. Fry had moved out of
the family home just three days before she was murdered. Her death devastated
21
the family; the last time they all got together was her funeral. Brown was pregnant
at the time of Fry’s murder and her son grew up fearful because Brown was so
overprotective and afraid of losing him. When he graduated from high school, she
bought him a truck to take to the University of Nevada, Las Vegas, but he would
not go. At the time of defendant’s trial, Brown seldom left her house.
Cheryl Rawlins testified about the loss of her younger sister, Kimberly
Rawlins. Kimberly had just moved out of the apartment they shared when she was
murdered. Cheryl described Kimberly as her best friend and a very happy and
giving person who had wanted to have many children. Their plan had been for
Kimberly to help Cheryl through her first two years of college, and then Cheryl
would help Kimberly with her first two years of college. The family initially
could not afford a grave marker, and when one of their brothers went to the
cemetery and could not find Kimberly’s grave, he became distraught and began
drinking heavily after having been sober for quite some time. At the time of
defendant’s trial, the family was unsure of this brother’s whereabouts.
Joseph Lee testified regarding the night he was nine years old and
awakened by his mother, Marolyn Carleton, screaming his name. He was at her
bedroom door when it opened and a dark-skinned man pushed past him, ran down
the hallway, and left the apartment. Inside the bedroom, Joseph turned on the light
and found his mother lying on the floor propped against her nightstand, incoherent
and bleeding. When he realized he could not stop the bleeding, he called the
operator for assistance. Joseph described his mother as “everything a young boy
like myself at the time would want in a mother. She cared, protected, guided, put
me before herself, and loved me like only a mother could. [¶] She was everything
to me. She was my friend, my teacher, my life . . . . [¶] When she died that early
morning, part of me died. That can never be replaced.” Carleton’s sister, Mary
Lee, testified about losing Carleton to a “cruel and senseless act of violence.” She
22
read a poem by their mother, who had died of cancer the year before defendant’s
trial, about the loss of Carleton.
Sandra Kennedy testified regarding the loss of her aunt, Debora Kennedy,
who was just two years older than she and “like a sister.” Sandra lived near
Debora and they spent their summers together. She described Debora as a very
giving, sensitive, and creative person who had a lot of potential and would “give
you the shirt off of her back.” After Debora’s murder, Sandra worried for a long
time that someone had a vendetta against the family and was constantly “looking
over her shoulder.” Out of concern for Debora’s grandmother, who suffered a
stroke shortly after the murder, the family of eight siblings, although devastated,
“chose not to talk about it a whole lot.”
Jackie Bissonnette testified regarding the close bond she had with her sister,
Debra Senior, who had been the youngest of four children. Although only 17
years old when she was murdered, Debra had already graduated from high school,
was working full-time, and lived on her own. She had been planning to move
back home in order to continue her education at Orange Coast College.
Bissonnette recalled “her smile, her laugh, and her kindness” and said “Debbie’s
death left a void in my life that 19 years later is still there. Not a day goes by
without Debbie being in my thoughts. There’s no special occasion, no happiness,
without the void of Debbie’s absence felt.” She read a statement for their mother
relating the belief Senior’s father had died of a broken heart three years after her
murder, and she read two poems written by Debra.
2. The defense case-in-mitigation
Albert Garcia testified he met defendant in 1973 when they were both in
the Marine Corps stationed in Adak, Alaska. They were roommates from 1974 to
1977 in Tustin and “partied” together on the weekends, drinking alcohol and
23
sometimes smoking marijuana and PCP. Garcia described defendant as
intelligent, quiet, mellow, very respectable, and a model marine who was
promoted to staff sergeant in five years. He said he never saw defendant get into a
fight and thought defendant had good control over his temper. He did not believe
defendant had an alcohol problem and he had never seen defendant behave
violently after using alcohol or drugs. After they grew apart, Garcia was
“surprised” when he learned defendant had been convicted of rape in 1980 and
again when he heard about this case.
Defendant testified on his own behalf. He spoke of being prescribed
psychotropic medications for the first time in 1984 while incarcerated. They made
him “calm” so he was not “out of control or nervous” around people. There was
an eight-year period after he was released from prison that he stopped taking the
medications, but he had been taking them continuously since returning. He was
not on medication when he attacked his cellmate, who he claimed was stealing
from him. On cross-examination, defendant admitted that while incarcerated and
taking medications to control aggression and psychotic symptoms, he had on
separate occasions said he was (1) “out of control” and had “no doubt I could
murder someone,” (2) staying in his cell because he felt like hurting people, and
(3) fearful of losing control in court and becoming violent. After the latter two
occasions, which occurred while he was awaiting trial in this case, his medications
were changed and the violent feelings went away.
Defendant also expressed remorse for the crimes, saying, “I know that I
have caused the families and the friends of the victims quite a bit of pain
throughout the course of the last 19, 20 years, and I accept full responsibility for
that. I am truly, truly sorry for the crimes that I have committed and the reasons
why we are all here today in this courtroom. If there was anything that I could do
to take away the pain and the sorrow of the families of the victims, I would. And
24
if my life is what it takes for them to feel that their family members have been
vindicated, then that is what I believe should be done . . . .” On cross-
examination, however, after saying he had “always” felt sorry for what he had
done, defendant admitted that after killing Fry he “went about business as usual.”
He said the crimes were for “sexual gratification” but claimed he did not get any
from them. He conceded that whatever remorse he felt at the time of an attack did
not prevent him from attacking additional victims, and that he made the decision
to “rape and kill” of his “own free will.” Defendant denied he “liked killing
women” but admitted he knew what he was doing and that it was wrong. He
agreed that if he had not been arrested after raping Paula S., he would have
continued “raping and murdering.” He also admitted he had been in and out of
custody since 1987 and had been arrested in November 1988 in Garden Grove,
California, for attempting to force a woman to orally copulate him while he was
armed with a knife, for which he was reimprisoned.
Lastly, Forensic Psychiatrist Paul Blair, M.D., testified regarding his
conclusions following his examination of defendant’s mental status. Dr. Blair’s
assessment was based on two personal interviews, totaling about three hours,
conducted in October 1998, on a review of defendant’s interviews with police, and
a review of the Orange County Jail psychiatric team’s notes on defendant from
June 1996 to October 1998. Dr. Blair’s findings were consistent with the
psychiatric team’s diagnosis of organic mental syndrome, unspecified psychotic
disorder, chronic alcohol abuse (in institutional remission), and major depression.
According to Dr. Blair, defendant was cooperative throughout the
evaluation. He self-reported experiencing non command auditory hallucinations,
specifically the voices of a male and a female psychiatrist. At times the female
voice seemed to be his grandmother. Defendant “could not recognize what the
voices were telling him,” but said he did not commit the crimes because voices
25
told him to. He also had the delusions that people he did not know were talking
about him and that thoughts could be physically inserted into, as well as removed
from, his head.
Dr. Blair explained defendant’s formal psychiatric history began 14 years
earlier. Defendant was treated at Vacaville State Prison without medication and
then at the California Institution for Men in Chino with antipsychotic medication.
During his pretrial confinement in the Orange County Jail, he had been on several
antipsychotic medications to control aggression, confusion, disorganized thinking,
anxiety, and depression, and to reduce if not eliminate psychosis.
Defendant self-reported his history of drug and alcohol use, claiming he
regularly inhaled glue, paint, and paint thinner between the ages of seven and 15,
began using marijuana at age 11, used PCP and “magic mushrooms,” used LSD at
least 1,000 times, and injected a combination of heroin and cocaine (known as
“speedballs”). Dr. Blair explained all these drugs can affect the brain. Defendant
also said he drank a case of beer and half a fifth of vodka every day for a 10- to
11-year period. He also claimed to have suffered five head injuries, three of which
resulted in unconsciousness.
Dr. Blair opined defendant showed signs of institutionalization, a condition
whereby a person becomes unable to function outside of the “highly regimented”
structure of an institution. Dr. Blair agreed that if out of jail and not taking
medication, defendant “would be a danger to himself and others,” while it was
“probably true” that “in prison, treated with the psychotropic drugs and under a
controlled environment,” he would not.”
3. The prosecution’s rebuttal
Forensic Psychiatrist Park Dietz, M.D., testified on rebuttal for the
prosecution. Although he did not personally interview defendant, he reviewed
26
about 8,000 pages of records, three videotapes, and an audio tape. In Dr. Dietz’s
opinion, defendant’s mind was functioning “perfectly adequately” when he was
interrogated by law enforcement officers, in that he was logical, coherent, rational,
and understandable. Based on defendant’s observable behavior, Dr. Dietz saw “no
evidence at all” of a psychotic disorder or organic brain damage and opined
defendant’s mind worked “at least as well” at the time of the crimes.
Dr. Dietz did not disagree with the jail’s psychiatric team’s diagnosis, but
he also thought defendant met the criteria for having antisocial personality
disorder, including running away from home, stealing, and breaking and entering
as a youth, as well as exhibiting aggressive behavior, substance abuse, reckless
disregard for the safety of others and himself, a lack of remorse, deceitfulness and
constantly engaging in irresponsible and criminal conduct as an adult. He
explained that people with antisocial personality disorder do not respond to
treatment or discipline, although many respond to structure. “They tend to want to
do anything they think will make them happy. . . . Nobody has found any way to
change them yet.”
Retired Marine Lieutenant Colonel Larry Kuester, defendant’s
commanding officer from 1978 through 1979 while he was a staff sergeant
assigned to a heavy transport helicopter squadron in Tustin, testified regarding
defendant’s job performance. Defendant was the material chief for the squadron, a
“difficult job” that served a “very critical function” relating to the flight readiness
of the squadron and required exceptional dedication to the task at hand. He
received “outstanding evaluations” from “very demanding” superiors and had the
“tremendous honor” of being recommended for Warrant Officers School.
Kuester saw defendant on a weekly basis and thought he was a good
marine. He never knew defendant to be intoxicated or hung over or to have a drug
or alcohol problem. He explained the Marine Corps had a “zero tolerance” policy
27
on the use of drugs or alcohol while on duty, especially for aviation units where
“lives were on the line” and minimum performance could not be tolerated even in
training situations. Kuester did not believe it would be possible for someone on
drugs or alcohol to perform defendant’s job, as it required an “exceptional amount
of motivation.”
II. DISCUSSION
A. Asserted Batson/Wheeler Error
Defendant, who is African-American, contends the prosecutor in his case
exercised racially discriminatory peremptory challenges against two African-
American prospective jurors in violation of Batson v. Kentucky (1986) 476 U.S. 79
and People v. Wheeler (1978) 22 Cal. 3d 258, and that the trial court erred in
denying his objections to these challenges. We disagree.
1. Background
After hardship screening, 136 prospective jurors remained for voir dire.
Voir dire began on September 29, 1998, and 71 potential jurors were questioned
before a jury was selected. During voir dire, 17 prospective jurors were excused
for cause or for hardship, pursuant to stipulation, or without objection, leaving 54
prospective jurors subject to peremptory challenge. The prosecutor exercised 19
peremptory challenges in selecting a jury, including two against African-American
prospective jurors, and three peremptory challenges in selecting alternate jurors.
The defense challenged 14 prospective jurors and two alternate jurors.
a) Prospective Juror No. 719
Prospective Juror No. 719, an African-American woman, was peremptorily
challenged by the prosecution. On her written questionnaire in response to the
question, “What are your GENERAL FEELINGS regarding the death penalty?,”
she wrote, “I don’t like it!” She answered affirmatively the question whether she
28
held “religious beliefs which would impair your ability to serve as a juror on this
type of case,” and in the place that asked prospective jurors to explain their
answers she wrote “Death.” Prospective Juror No. 719 did not answer the
questions asking if she would automatically refuse to vote for either the death
penalty or life imprisonment without the possibility of parole without considering
any of the aggravating and mitigating factors, or if she thought the death penalty
was used too often, too seldom, or randomly.
On the first day of voir dire, Prospective Juror No. 719 asked to be excused
due to hardship, specifically lower back pain caused by sitting. Her request was
denied. During voir dire, Prospective Juror No. 719 indicated she was a 51-year-
old widow, had graduated from high school, and had no prior jury service. She
was unable to work due to disability and her “bad lower back” might preclude her
from sitting for long periods of time. After the defense passed for cause, the
prosecutor questioned Prospective Juror No. 719 as follows:
“Q. [W]ould it be correct to say that for religious reasons have you [sic] a
problem with the death penalty?
“A. That is correct.
“Q. Okay. [¶] And would it also be fair to say that because of those
religious beliefs, your personal beliefs, you’d have difficult[y] imposing the death
penalty?
“A. That is correct.
“Q. And if given the chance to vote for life without possibility of parole,
versus death, you’d probably always select life without possibility of parole over
death. [¶] Is that a correct statement?
“A. That is a correct statement.”
The prosecutor then challenged Prospective Juror No. 719 for cause, after
which she was questioned further by the trial judge and counsel in chambers. The
29
judge began by explaining he wanted to clarify some of her “last answers to see
what [her] feelings were.” The judge then asked, “Are you telling the court and
the parties that under no circumstances would you ever vote for the death
penalty?” Prospective Juror No. 719 answered, “I just don’t believe in it. I’m
being honest.” The judge asked whether her feelings “were so strong that no
matter what evidence is presented, no matter what evidence is going to come in,
you would never, under any circumstances, vote for the death penalty.”
Prospective Juror No. 719 replied, “I won’t say that. [¶] It depends on the
evidence also, I’d take that in consideration. But I just don’t believe in it because
we can’t give life. . . . And I just don’t believe in taking life.” She confirmed this
view was based on her religious beliefs. The judge asked whether, if the other
jurors convinced her that death was the appropriate penalty, she could see herself
voting for death, and Prospective Juror No. 719 responded, “I can’t give you that
answer.” She indicated she would be willing to listen to the evidence before
making a decision. She also reiterated she had a lower-back problem and it was
painful for her to walk a long distance or to sit for a long period.
The prosecutor asked Prospective Juror No. 719 whether “it would be very
difficult for you to vote to put someone to death” because of her religious beliefs
against the death penalty, to which she replied, “Oh, yes, definitely.” When asked
if she would be biased against voting for the death penalty because of her religious
beliefs, Prospective Juror No. 719 disagreed: “I won’t say that’s a true statement
because I have to look at the evidence. Depend[s] on the evidence.” But she
agreed that her feelings against the death penalty would make it “very difficult”
for her to impose death.
Outside Prospective Juror No. 719’s presence, the trial court indicated it
was going to disallow the challenge for cause and asked defense counsel whether
there was going to be a “Wheeler situation” if the prosecutor were to use a
30
peremptory challenge on Prospective Juror No. 719. Defense counsel initially
responded there would not: “I think that she gave answers that would probably
give [the prosecutor] reason to use his peremptory in a nonracial manner.” After
further argument from the prosecutor regarding the for-cause challenge, however,
defense counsel reconsidered, stating “we may very well be getting into a Wheeler
situation” because “[g]iven the limited reservoir pool of potential [B]lack jurors,
kicking any one off puts us in Wheeler.” The court disagreed: “In view of the
comments here, I’m not going to find any Wheeler error once [the prosecutor]
excuses this juror. . . . And applying what I heard to be [defense counsel’s]
assessment of the juror’s responses and the likelihood that a good prosecutor
would challenge such a juror, I don’t find any prima facie evidence of misconduct
on the part of the prosecutor . . . and I just wanted to make that record before we
go back out there.” The prosecutor later exercised his fourth peremptory
challenge against Prospective Juror No. 719.
b) Prospective Juror No. 213
Prospective Juror No. 213 , an African-American man, was also
peremptorily challenged by the prosecution. On the first day of voir dire, he asked
to be excused due to hardship, specifically time and date conflicts related to
doctors’ appointments, an important school departmental meeting, plans to be out
of town, and his practice and game commitments as a head basketball coach. His
request was denied.
Prospective Juror No. 213’s initial voir dire was done in chambers. He
confirmed that the trial’s predicted schedule would likely conflict with three or
four of his team’s basketball games. The prosecutor inquired about practice,
noting the court was usually in session until 4:30 p.m. and asking whether this
would prevent Prospective Juror No. 213 from practicing with his team the entire
31
time he served on the jury. Prospective Juror No. 213 said his team’s practices
had not yet been scheduled but they usually were from 2:00 to 3:30 p.m. If he
were a juror he would have to schedule practice for the evening and this would be
“tough on the kids” because “they’re freshmen, and the freshmen parents rather
would have them home by six.”
After Prospective Juror No. 213 exited chambers, the defense advised the
court “[w]e want him,” while the prosecution indicated it was willing to stipulate
to a hardship excusal. The proceedings then moved to open court, where the
prosecutor asked Prospective Juror No. 213 about his 1995 jury service as the
foreman in a murder trial, his testifying as a defense character witness for a friend
accused of murdering his father, and psychological counseling he had received in
high school about a girlfriend. The prosecutor asked about the difficulty serving
on the jury would pose in terms of the prospective juror’s being the head coach of
the freshman boys’ basketball team at the high school where he worked.
Prospective Juror No. 213 confirmed their practices would have to be moved to
the evening if he were picked for the jury. He said although he knew he would be
a good juror, “my problem was it’s just a matter of this trial is very, very
important. The person’s life is at stake. And that is very important. And I’m
dealing with high school kids who everything they do is way more important than
everything else in your life.” He agreed with the prosecutor he felt “torn” between
his responsibilities to his players and what his responsibilities would be as a juror.
The prosecutor lastly asked Prospective Juror No. 213 about his views on
the death penalty. He said he “voted for it. It’s a necessary thing that we must
have to deter crime of a very, very violent nature.” Prospective Juror No. 213 also
agreed he had “mixed feelings” about the death penalty but nevertheless felt it was
appropriate in some instances and he could impose it if warranted. The prosecutor
32
then passed for cause but exercised his next peremptory challenge, the
prosecution’s 17th, to excuse Prospective Juror No. 213.
At the next break, the defense objected to the peremptory challenge of
Prospective Juror No. 213, arguing there were only two or three African-American
prospective jurors “in the whole room, and two of them have been excused by
peremptory challenge by the People. I’m just making my record in that regard. . . .
So, we’re contending that that establishes a systematic exclusion of the African-
American potential jurors.” The trial court disagreed with this representation as to
the racial composition of the jury pool, saying, “[T]hat’s an interesting
observation, but, the Court is not accepting that . . . from my perspective there
might be more. . . . [Y]ou folks keep saying there’s only three out there. And I
don’t know that that’s the case.”
The court then denied the challenge as follows: “I don’t find any basic
finding that the district attorney is engaging in misconduct, that he systematically
is excluding all [African]-Americans from serving as jurors on this case, or that he
is systematically excluding any other minority group from serving on this
particular case. [¶] [Prospective Juror No. 213] did submit a request to be
excused for hardship, and . . . [i]n our discussion in chambers he indicated his
reticence about serving, although he did opine that if actually selected, he will find
a way to make his job work consistent with the nature of the jury duty. [¶] But,
just watching his expression, and I have to put two things on the record:
Yesterday when we broke in the evening one of the first prospective jurors to
come up to the bailiff to get a hardship form was [Prospective Juror No. 213]. . . .
[¶] So, when I came back out and advised him . . . that he needed to go take the
jury seat, there was an audible groan and facial expression consistent with that as
he moved from the clerk’s area over to the chair. [¶] And just watching his
demeanor, his facial expressions when he was inquired about his availability, I
33
thought he was indicating that it’s going to be extremely difficult. Plus some of
the other information that was disclosed to the deputy district attorney upon
further inquiry. [¶] So, I think we have to be careful, when you make a challenge
of this nature, that the court give a legitimate consideration. And I don’t mean to
make less of the challenge. If I thought that it was even close, I would make the
deputy district attorney state on the record his feeling as to why he was excusing
[Prospective Juror No. 213], but, there was ample reason to excuse both of those,
other than dealing with race. [¶] And based on your offer of proof, I’m just
denying the challenge.”
2. Analysis
“Both the federal and state Constitutions prohibit any advocate’s use of
peremptory challenges to exclude prospective jurors based on race. [Citations.]
Doing so violates both the equal protection clause of the United States
Constitution and the right to trial by a jury drawn from a representative cross-
section of the community under article I, section 16 of the California
Constitution.” (People v. Lenix (2008) 44 Cal. 4th 602, 612.)
“There is a rebuttable presumption that a peremptory challenge is being
exercised properly, and the burden is on the opposing party to demonstrate
impermissible discrimination.” (People v. Bonilla (2007) 41 Cal. 4th 313, 341
(Bonilla).) “A three-step procedure applies at trial when a defendant alleges
discriminatory use of peremptory challenges. First, the defendant must make a
prima facie showing that the prosecution exercised a challenge based on
impermissible criteria. Second, if the trial court finds a prima facie case, then the
prosecution must offer nondiscriminatory reasons for the challenge. Third, the
trial court must determine whether the prosecution’s offered justification is
credible and whether, in light of all relevant circumstances, the defendant has
34
shown purposeful race discrimination. [Citation.] ‘The ultimate burden of
persuasion regarding [discriminatory] motivation rests with, and never shifts from,
the [defendant].’ ” (People v. Manibusan (2013) 58 Cal. 4th 40, 75.)
In both peremptory challenges at issue here, the trial court found no prima
facie case of discriminatory use and overruled defendant’s motion10 without
asking the prosecutor to state his reasons for the challenges. Because the trial
predated the United States Supreme Court’s decision in Johnson v. California
(2005) 545 U.S. 162, and exactly what standard the lower court used in finding no
prima facie case is unclear, “we review the record independently to ‘apply the high
court’s standard and resolve the legal question whether the record supports an
inference that the prosecutor excused a juror’ on a prohibited discriminatory
basis.” (People v. Bell (2007) 40 Cal. 4th 582, 597 (Bell).)
“In deciding whether a prima facie case was stated, we consider the entire
record before the trial court [citation], but certain types of evidence may be
especially relevant: ‘[T]he party may show that his opponent has struck most or
all of the members of the identified group from the venire, or has used a
disproportionate number of his peremptories against the group. He may also
demonstrate that the jurors in question share only this one characteristic—their
membership in the group—and that in all other respects they are as heterogeneous
as the community as a whole. Next, the showing may be supplemented when
appropriate by such circumstances as the failure of his opponent to engage these
same jurors in more than desultory voir dire, or indeed to ask them any questions
10 Although defendant relied solely upon Wheeler at trial and did not invoke
Batson, we have recognized that an objection on the basis of Wheeler also
preserves claims that may be made under Batson. (E.g., People v. Lewis and
Oliver (2006) 39 Cal. 4th 970, 1008, fn. 9 (Lewis and Oliver).)
35
at all. Lastly, . . . the defendant need not be a member of the excluded group in
order to complain of a violation of the representative cross-section rule; yet if he
is, and especially if in addition his alleged victim is a member of the group to
which the majority of the remaining jurors belong, these facts may also be called
to the court’s attention.’ ” (Bonilla, supra, 41 Cal.4th at p. 342.)
In this case, the record does not support an inference of discriminatory
intent on the part of the prosecutor in peremptorily challenging Prospective Jurors
Nos. 719 and 213. Even assuming the basis of defendant’s argument is factually
accurate—that Prospective Jurors Nos. 719 and 213 were the only two African-
Americans in the 136-person jury pool, a fact neither conceded nor confirmed at
trial—the bare circumstance that all African-American prospective jurors were
struck from the pool would be insufficient in this case to support an inference that
the two were challenged because of their race. “ ‘[T]he small absolute size of this
sample makes drawing an inference of discrimination from this fact alone
impossible. “[E]ven the exclusion of a single prospective juror may be the product
of an improper group bias. As a practical matter, however, the challenge of one or
two jurors can rarely suggest a pattern of impermissible exclusion.” ’ ” (Bonilla,
supra, 41 Cal.4th at p. 343; see Bell, supra, 40 Cal.4th at p. 598.)11
11 “As we have previously explained, ‘the ultimate issue to be addressed . . .
“is not whether there is a pattern of systematic exclusion; rather, the issue is
whether a particular prospective juror has been challenged because of group bias.”
[Citation.] But in drawing an inference of discrimination from the fact one party
has excused “most or all” members of a cognizable group’—as [defendant] asks
the court to do here—‘a court finding a prima facie case is necessarily relying on
an apparent pattern in the party’s challenges.’ [Citation.] Such a pattern will be
difficult to discern when the number of challenges is extremely small.” (Bonilla,
supra, 41 Cal.4th at p. 343, fn. 12.)
36
Nor does defendant show the prosecutor used a disproportionate number of
his peremptories against the group. The prosecutor exercised a total of 22
peremptory challenges, only two of which were exercised against African-
American prospective jurors. (Cf. Bell, supra, 40 Cal.4th at p. 598 [no
disproportionate use of peremptories where only two of the prosecutor’s 16
peremptory challenges were exercised against African-American women].)12 That
the prosecutor used his 4th and 17th peremptory challenges against Prospective
Juror Nos. 719 and 213 also distinguishes this case from Williams v. Runnels (9th
Cir. 2006) 432 F.3d 1102, upon which defendant relies. In Williams, the
prosecutor used three of his first four peremptory challenges to dismiss African-
American prospective jurors, a circumstance the court found supported a prima
facie showing based on statistical disparity alone. (Id. at pp. 1107–1109.)
The prosecutor’s voir dire of the two prospective jurors at issue was by no
means desultory or cursory. And although it is true “defendant himself is African-
American that fact alone does not establish a prima facie case of discrimination.”
(People v. Kelly (2007) 42 Cal. 4th 763, 780.)
12 As this court has previously noted, “[a] more complete analysis of
disproportionality compares the proportion of a party’s peremptory challenges
used against a group to the group’s proportion in the pool of jurors subject to
peremptory challenge.” (Bell, supra, 40 Cal.4th at p. 598, fn. 4.) In Bell, the
prosecutor “used two of his 16 peremptory challenges, or 12.5 percent, against
African-American women, while of the 47 prospective jurors who were subject to
peremptory challenge, three, or about 6.4 percent, were African-American women.
Though the former figure [was] almost twice the latter, because of the small
sample size the disparity carrie[d] relatively little information.” (Ibid.) Here, the
disparity between the number of peremptory challenges used against African-
American prospective jurors (two out of a total of 22 or 9.1 percent) and the
proportion of African-American prospective jurors in the pool of jurors subject to
peremptory challenge (allegedly two out of 54, or 3.7 percent) similarly carries
little information in light of the similarly small sample size.
37
Lastly, we note the information elicited in voir dire showed race-neutral
reasons for excusing both prospective jurors. (See People v. Scott (2015) 61
Cal. 4th 363, 384 [“A court may also consider nondiscriminatory reasons for a
peremptory challenge that are apparent from and ‘clearly established’ in the record
[citations] and that necessarily dispel any inference of bias.”].) As defense
counsel initially conceded with respect to Prospective Juror No. 719, the answers
she gave regarding her views on the death penalty gave the prosecutor “reason to
use his peremptory in a nonracial manner.” And Prospective Juror No. 213’s
answers and demeanor indicated he was reluctant to serve on the jury. The
prosecutor specifically referenced this reluctance—“I take from it some things you
said and the way you walked to the jury box, you’re not thrilled”—and the trial
court made express factual findings in this regard.
In sum, defendant fails to demonstrate that the totality of relevant
circumstances gives rise to an inference of discriminatory purpose in the
prosecutor’s exercise of peremptory challenges against these two prospective
jurors. As the trial court found no prima facie showing and the prosecutor did not
state reasons for the excusals, we further decline defendant’s request to conduct a
comparative analysis of the prospective jurors’ responses on the jury questionnaire
for the first time on appeal. (See People v. Harris (2013) 57 Cal. 4th 804, 836;
People v. Dement (2011) 53 Cal. 4th 1, 21; Bell, supra, 40 Cal.4th at pp. 600–601.)
B. Custodial Statement
As summarized above, defendant was in prison in June 1996 on an
unrelated matter when DNA testing connected him to the six murders. Law
enforcement officers subsequently interrogated him five times about these crimes.
All the interrogations were audio- or video-recorded. During these interrogations,
defendant was repeatedly advised of his rights under Miranda v. Arizona, supra,
38
384 U.S. 436 and, in all but the initial interrogation, explicitly agreed to talk to the
officers and made various incriminating statements. Before trial, defendant moved
for an order excluding these statements from the guilt phase. After a multiday
hearing, the court denied the motion without comment. On appeal, defendant
claims his custodial statements were obtained in the absence of a valid waiver of
his Miranda rights and after he repeatedly invoked his right to silence during the
initial interrogation, and admission of the statements constituted prejudicial error.
We are not persuaded.
“[A] defendant must be advised of his or her Miranda rights, and must
make a valid waiver of these rights, before questioning begins or any statements
resulting from interrogation can be admitted.” (People v. Rundle (2008) 43
Cal. 4th 76, 114 (Rundle).) Such a waiver under Miranda must be “knowingly,
intelligently, and voluntarily made.” (Id. at p. 115.) Because the crimes at issue
were committed before Proposition 8’s 1982 effective date,13 the prosecution had
to establish the validity of defendant’s Miranda waiver beyond a reasonable doubt.
(See People v. Sapp (2003) 31 Cal. 4th 240, 267 [for crime committed before
June 9, 1982, Prop. 8’s effective date, the prosecution must prove the
13 Proposition 8 made a number of changes in the constitutional and statutory
law of this state governing criminal prosecutions, including adding section 28 to
article I of the Constitution. As pertinent here, section 28, subdivision (f)(2),
called Right to Truth-in-Evidence provision, provides: “Except as provided by
statute hereafter enacted by a two-thirds vote of the membership in each house of
the Legislature, relevant evidence shall not be excluded in any criminal
proceeding, including pretrial and post conviction motions and hearings, or in any
trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or
adult court. Nothing in this section shall affect any existing statutory rule of
evidence relating to privilege or hearsay, or Evidence Code, Sections 352, 782 or
1103. Nothing in this section shall affect any existing statutory or constitutional
right of the press.” (Italics added.)
39
voluntariness of a confession beyond a reasonable doubt; for crime committed on
or after June 9, 1982, the preponderance standard applies]; People v. Weaver
(2001) 26 Cal. 4th 876, 921, fn. 5 [“the date of the crime, and not the date of the
confession, is the controlling benchmark” for the proper burden of proof].)
Although no such argument was made at trial, we conclude sufficient evidence
exists from which the trial court could have found beyond a reasonable doubt that,
once advised of his Miranda rights, defendant made a knowing and intelligent
waiver of those rights.
At the outset of the initial interrogation, Detective Redmond read defendant
his Miranda rights and defendant confirmed he understood each right. He was not
formally asked to waive those rights, and he did not volunteer to do so. The
following exchange then occurred:
“Detective Redmond: Do you want to talk to us about . . . anything that
might have occurred back, ’79, ’80[?]
“[Defendant]: ’79, ’80, why, why would I want to talk to you about
something that occurred back then?
“Detective Redmond: Well, some things have come up and . . . we need to
talk to you about them, you can stop talking at any time.
“[Defendant]: I can’t . . . imagine why I would want to talk with the Costa
Mesa Police Department.
“Detective Redmond: [A]re you familiar with DNA?
“[Defendant]: Yes, a little bit.
“Detective Redmond: When you got out of prison the last time, did you
have to give them a blood sample?
“[Defendant]: Right. [¶] . . . [¶]
40
“Detective Redmond: [W]e are going to be just right up front with you
. . . , your DNA came up on a couple of Costa Mesa homicides back in 1979, and
....
“[Defendant]: I never lived in Costa Mesa.
“Detective Redmond: Ok. Have you ever been to Costa Mesa?
“[Defendant]: Well, I’ve gone through there, yes.” (Italics added.)
Redmond and investigator Giesler then proceeded to ask defendant questions
about his life in Orange County in the late 1970s and 1980s and his family
background. Defendant answered the questions, sometimes asked clarifying
questions, and often volunteered additional information.
Defendant argues his statements should have been excluded because he
never expressly waived his right to silence and nothing about his actions
demonstrates he intended to waive that right. It is well settled that law
enforcement officers are not required to obtain an express waiver of a suspect’s
Miranda rights prior to a custodial interview and that a valid waiver of such rights
may be implied from the defendant’s words and actions. (See Berghuis v.
Thompkins (2010) 560 U.S. 370, 384 [“a waiver of Miranda rights may be implied
through ‘the defendant’s silence, coupled with an understanding of his rights and a
course of conduct indicating waiver’ ”]; People v. Davis (1981) 29 Cal. 3d 814,
824 (Davis) [“The absence of an express waiver does not in itself establish that the
right has been invoked.”].) “[T]he question of waiver must be determined on ‘the
particular facts and circumstances surrounding that case, including the
background, experience, and conduct of the accused.’ ” (North Carolina v. Butler
(1979) 441 U.S. 369, 374–375]; accord, People v. Duren (1973) 9 Cal. 3d 218,
238.) “In general, if a custodial suspect, having heard and understood a full
explanation of his or her Miranda rights, then makes an uncompelled and
uncoerced decision to talk, he or she has thereby knowingly, voluntarily, and
41
intelligently waived them.” (People v. Cunningham (2015) 61 Cal. 4th 609, 642;
accord, People v. Johnson (1969) 70 Cal. 2d 541, 558.)
Such is the case here. After Detective Redmond read defendant his
Miranda rights and defendant confirmed he understood them, he proceeded to
actively participate in the conversation with the detectives—answering questions,
asking for clarification, and generally contributing to a discussion he knew was
being tape-recorded. There is no suggestion the detectives resorted to physical or
psychological pressure to coerce defendant to talk to them. Defendant, moreover,
had extensive prior experience with the criminal justice system, having been
arrested and pleaded guilty to felonies in three previous cases before being
interrogated in this case. These circumstances are sufficient to permit an inference
beyond a reasonable doubt that defendant understood he had a choice whether or
not to talk to the detectives, with or without an attorney present, and knowingly
and voluntarily chose not to exercise his right to remain silent. (See, e.g., People
v. Cruz (2008) 44 Cal. 4th 636, 668–669 (Cruz); People v. Sully (1991) 53 Cal. 3d
1195, 1233; Davis, supra, 29 Cal.3d at pp. 823–826.)
Defendant attempts to avoid this outcome by arguing his response to the
detective’s asking if he wanted to talk—“[W]hy would I want to talk to you about
something that occurred back [in 1979 or 1980]?”—was a rhetorical question
commonly understood to mean “no,” and that it was inconsistent with a present
willingness to discuss the case and should have been viewed as an invocation of
the right to silence. To the extent the response was equivocal or ambiguous, he
contends the detective’s subsequent questioning went beyond the limited purpose
of determining whether he intended to remain silent in an improper attempt to skirt
the issue of invocation. We disagree. Taken in context, defendant’s statement
was reasonably understood as seeking to clarify why the Costa Mesa detective and
42
investigator wished to speak with him, rather than as an invocation of the right to
remain silent.
In the alternative, defendant contends that even if he impliedly waived his
right to remain silent at the outset of the initial interrogation, the detectives were
required to terminate their questioning when, later in the interrogation, he
assertedly several times invoked the right to stop answering questions. (See, e.g.,
Rundle, supra, 43 Cal.4th at p. 114 [“Even if a defendant voluntarily has waived
his or her Miranda rights to remain silent and to have counsel present, the
defendant later may revoke the waiver.”].) Under California law applicable at the
time the crimes were committed, once a suspect invoked his right to silence, police
had to cease all questioning and could not subject the suspect to a new round of
interrogation even if they repeated the Miranda warnings. (People v. Fioritto
(1968) 68 Cal. 2d 714, 719–720 [holding all further attempts at police interrogation
should have ceased once the defendant indicated he intended to assert his Miranda
rights]; see People v. Pettingill (1978) 21 Cal. 3d 231, 242–245 (Pettingill)
[reaffirming Fioritto and declining to follow Michigan v. Mosley (1975) 423 U.S.
96, which instead adopted a factual test turning on the circumstances of the
renewed police interrogation in cases where the suspect had asserted his right to
remain silent].)
In support of this argument, defendant points to the italicized statements in
the following exchange, which occurred toward the conclusion of the initial
interrogation when the discussion turned to the DNA evidence connecting
defendant to the murders:
“Detective Giesler: I mean 17 years is long enough, I think it’s time to talk
about it, don’t you?
“[Defendant]: Oh yeah.
“Detective Giesler: Why don’t you tell us what happened?
43
“[Defendant]: The thing is, I will reserve the right to speak at another time,
let’s say I . . . .
“Detective Giesler: I’m not going to do anything to violate your rights
Gerald, I mean, we read you your rights and, I’m not going to step on your toes,
but . . . .
“Detective Redmond: I think this weight’s been on [you] long enough.
“Detective Giesler: You know, . . . I waited 17 years.
“[Defendant]: Yeah. You and a whole lot of other people. [¶] . . . [¶]
“Detective Giesler: I’m speaking the truth to you [regarding the DNA
evidence] and all I can ask in return is that you speak the truth to me. Get the
monkey off your back.
“Detective Redmond: I think you deserve that more than anybody.
“[Defendant]: Yeah, the day is not today though.
“Detective Giesler: Why is today not the day?
“[Defendant]: I can’t take it. [¶] . . . [¶]
“Detective Redmond: [G]et it off your chest, well, give somebody the
reason why? Everybody’s got a reason.
“[Defendant]: Yeah, but there’s also a reason for wanting to wait too.
“Detective Giesler: Can you explain that, can you explain that to me?
“[Defendant]: Now, this is going to be a long drawn out process, the rest of
my life is going right out the door, it probably went out the door years ago, I just
didn’t recognize it. [¶] . . . [¶]
“[Defendant]: [L]ike I say, once again, . . . there’s I think for me, there’s a
time, and a place for saying what I have to say, and, in reference to what
happened, I, I there’s nothing else that I can tell you. [¶] . . . [¶]
44
“Detective Giesler: Gerald, I can guarantee you, they’re going to say,
Lynda, did he say why? Can you tell me why? Can you try to tell me why? Did
you know any of these women?
“[Defendant]: Like I say, I think I should wait until later on before . . . .
[¶] . . . [¶]
“Detective Giesler: . . . I don’t understand what you’re saying to me, are
you saying, okay Lynda, when I get to Orange County, come and see me? [¶] . . .
[¶] Are you saying, Lynda, I don’t want to talk to you? . . . [¶] . . . [¶]
“[Defendant]: No, no, this, this, I, I just need some time to call upon
myself, to bring, to draw up on some strength. [¶] . . . [¶] To say what I have to
say. [¶] . . . [¶] When they take me down there, yes, you can come back.
“Detective Giesler: I can come and talk to you at that time?
“[Defendant]: Right. [¶] . . . [¶]
“Detective Giesler: [A]re you serious, when you get down to Orange
County, I can come see you again?
“[Defendant]: Right. Right. [¶] . . . [¶] I’ll be there.
“Detective Giesler: Okay, I will too. Now, again, because I don’t want to
play head games with you, we did not come up here alone today, . . . there is an
investigator with us from the city of Tustin who wants to talk to you, so we’re
going to see what his availability is . . . . [¶] . . . [¶]
“[Defendant]: Tustin the only one here?
“Detective Giesler: At this time, yeah. That’s what Bill said earlier . . . .
[¶] . . . [¶] Do you have any questions you want to ask us . . . ?
“[Defendant]: No, ma’am. [¶] . . . [¶] I’m pretty much abreast of . . . you
know, the situation. [¶] . . . [¶] And there’s not a whole lot that I can think of
right now that I can say.
45
“Detective Giesler: Okay, I also want to share with you . . . once . . . Tustin
completes their conversation with you, we are going to collect some physical
evidence from you . . . .
“[Defendant]: Right.
“Detective Giesler: Okay, and would that be a problem for you?
“[Defendant]: No.
“Detective Giesler: Okay. . . . I don’t know when, you don’t know when,
but we will talk again.
“[Defendant]: Yeah.
“Detective Giesler: And if you want to talk to me at that time, fine, and if
you want to tell me to pound, [that’s] fine, okay?
“[Defendant]: Right.
“Detective Giesler: I’ll be fair with you, you be fair with me.
“[Defendant]: All right.” (Italics added.)
Redmond and Giesler then left the interview room. A short time later, Tarpley
entered the room, informed defendant he wished “to discuss another case besides
Costa Mesa,” and readvised defendant of his Miranda rights. Tarpley then asked,
“Would you like to talk about why I’m here today?” to which defendant replied,
“Yes.”
Whether defendant invoked his right to remain silent with the italicized
statements represents a close question under pre-Proposition 8 law. (Compare
People v. Stitely (2005) 35 Cal. 4th 514, 535 [“the suspect ‘must unambiguously’
assert his right to silence or counsel”] with People v. Randall (1970) 1 Cal. 3d 948,
955 [“no particular form of words or conduct is necessary” for a suspect to invoke
his Miranda rights because “[t]o strictly limit the manner in which a suspect may
assert the privilege, or to demand that it be invoked with unmistakable clarity
(resolving any ambiguity against the defendant) would subvert Miranda’s
46
prophylactic intent].)” However, although our cases made clear that “ ‘[a] desire
to halt the interrogation may be indicated in a variety of ways,’ ” (People v. Hayes
(1985) 38 Cal. 3d 780, 784 (Hayes)), they also made clear that “the words used by
the suspect ‘must be construed in context.’ ” (Id. at pp. 784–785.)
For example, in In re Joe R. (1980) 27 Cal. 3d 496, the suspect was accused
of robbery and murder. For the first 30 to 40 minutes of interrogation, he was
questioned about his whereabouts during the previous 24 hours and sought to
provide an alibi, insisting that he was not involved in the robberies or murder. At
a certain point, he announced, “ ‘ “That’s all I have to say.” ’ ” (Id. at p. 513.)
The officer then changed the subject to explain the concept of felony murder, and
the conversation continued from there; eventually, the suspect confessed. While
the defense argued at trial that the defendant had revoked his earlier waiver of the
right to remain silent by saying, “ ‘ “That’s all I have to say,” ’ ” (ibid.) the
prosecution insisted that he simply meant, “ ‘ “that’s my story. I’m going to stick
with it,” ’ ” referring to the alibi he had provided (id. at p. 514). After examining
the suspect’s statement in the context of the conversation, we found the
prosecution’s characterization of the exchange more credible, and upheld the trial
court’s finding that the suspect did not attempt to halt the interrogation altogether.
(Id. at p. 516.)
Similarly, in Hayes, supra, 38 Cal. 3d 780, the defendant expressed
reluctance to continue participating in an interrogation after he had made an initial
confession. The investigating officer told the defendant, “ ‘We know about
Vermont and Florence, Tom’s Hamburger. We know about the market, 84th and
Main. What we’d like from you is your side of it.’ ” (Id. at p. 784, fn. 2.) In
response to these accusations, the defendant confessed to the shooting: “ ‘Well,
actually it was self-defense. [¶] . . . Well, that dude was reaching for a gun, so I
just shot him. [¶] . . . I admit to it . . . .’ ” (Ibid.) When the officer pressed for
47
more detail, the defendant asked, “ ‘Do I gotta still tell you after I admit it?’ ”
(Ibid.) The officer continued to press the defendant for more details, which the
defendant ultimately provided. We concluded that the defendant had not invoked
the right to halt the interrogation; rather, he simply did not want to delve into the
details behind his confession, and his “reluctance [was] an understandable reaction
to a confession of multiple robbery-murder, and does not rise to the level of an
implied assertion of the defendant’s constitutional right to cut off questioning.”
(Id. at p. 786.)
Here, although defendant made statements suggesting he did not want to
talk further with the Costa Mesa detective and investigator, he also indicated a
willingness to speak with them in the future. As Redmond and Giesler terminated
their questioning, not only did defendant make no objection when informed a
detective from Tustin wished to speak with him about a different case, after
Tarpley subsequently readvised defendant of his Miranda rights and asked
whether defendant was willing to talk to him “about why I’m here today,”
defendant responded in the affirmative. From the exchange that followed, it
appears defendant wished to speak to Tarpley because he wanted to know whether
his attack on the pregnant D. Green in her Tustin apartment had put her husband, a
fellow Marine, on death row, with defendant later admitting “out of all these
murders and the crimes that I committed over the years, that was the one that
bothered me the most . . . .” This record supports the conclusion that any asserted
refusal to continue talking at that time applied only to Redmond and Giesler, and
did not extend to Tarpley. We therefore conclude that even assuming defendant
sought to invoke his right to terminate the questioning by Redmond and Giesler,
under the totality of the circumstances that limited invocation did not bar Tarpley
from interrogating defendant about the Tustin offenses after readvising him of his
Miranda rights, confirming defendant was willing to speak to him, and thereby
48
obtaining a waiver of those rights.14 (See People v. Watkins (1970) 6 Cal. App. 3d
119, 124 [recognizing the prospect of a selective waiver of rights]; cf. Davis,
supra, 29 Cal.3d at pp. 824–825 [resumption of custodial questioning was not
improper where the defendant had not hesitated to speak with “the interrogating
officers about all aspects of the case” and where his “failure to respond when
asked if he would speak to the polygraph administrator” was properly viewed not
as “a general assertion of his right to remain silent” but rather only as an indication
that he was “unwilling to submit to the scrutiny of the lie detector”].)
Later during the course of this interrogation, defendant reinitiated contact
with Redmond and Giesler by asking Tarpley whether “Costa Mesa is still here”
and stating “then we can . . . get this over with.” In context, defendant was asking
for the Costa Mesa detectives to come back so he could confess. This reinitiation
of contact with Redmond and Giesler superseded any prior invocation he may
have made. (See People v. Jackson (1980) 28 Cal. 3d 264, 302 [“ ‘ “A suspect
who has asserted his rights and prevented further lawful interrogation nonetheless
retains the option, thereafter, voluntarily to initiate a confession.” ’ ”].)
C. Refusal to Instruct on Unconsciousness
At the conclusion of the guilt phase, the trial judge instructed the jury on
the mental states necessary for each charged crime (CALJIC No. 3.31.5) and on
14 Pettingill, supra, 21 Cal. 3d 231, which the concurring and dissenting
opinion relies on, is inapposite. There, after being advised and later readvised of
his Miranda rights, the defendant immediately invoked his right to remain silent at
the onset of the first and second attempts to interrogate him, clearly indicating he
did not wish to speak to the police at all. By comparison and as discussed above,
to the extent there was an invocation of the right to silence in this case, it came at
the end of the initial interrogation and, viewed in light of the totality of the
circumstances, was limited to Redmond and Geisler continuing to question
defendant at that time about the Costa Mesa offenses.
49
the partial defenses of diminished capacity (CALJIC Nos. 8.77, 8.79, combined) 15
and voluntary intoxication (CALJIC Nos. 4.21, 4.22). Defendant contends the
court committed prejudicial error when it denied his request for additional
instructions on the defense of unconsciousness (CALJIC Nos. 4.30, 4.31).16 We
disagree.
“Unconsciousness, if not induced by voluntary intoxication, is a complete
defense to a criminal charge.” (People v. Halvorsen (2007) 42 Cal. 4th 379, 417
(Halvorsen); see § 26, class four [among those persons deemed incapable of
committing crimes are individuals who “committed the act charged without being
conscious thereof”].) “If the defense presents substantial evidence of
15 The crimes at issue in this case were committed before the diminished
capacity defense was abolished in 1981. (See People v. Elmore (2014) 59 Cal. 4th
121, 143–144.)
16 CALJIC No. 4.30 would have instructed the jury: “A person who while
unconscious commits what would otherwise be a criminal act, is not guilty of a
crime. [¶] This rule of law applies to persons who are not conscious of acting but
who perform acts while asleep or while suffering from a delirium of fever, or
because of an attack of [psychomotor] epilepsy, a blow on the head, the
involuntary taking of drugs or the involuntary consumption of intoxicating liquor,
or any similar cause. [¶] Unconsciousness does not require that a person be
incapable of movement. [¶] Evidence has been received which may tend to show
that the defendant was unconscious at the time and place of the commission of the
alleged crime for which he is here on trial. If, after a consideration of all the
evidence, you have a reasonable doubt that the defendant was conscious at the
time the alleged crime was committed, he must be found not guilty.”
CALJIC No. 4.31 would have instructed: “If the evidence establishes
beyond a reasonable doubt that at the time of the commission of the alleged crime
the defendant acted as if he were conscious, you should find that he was
conscious, unless from all the evidence you have a reasonable doubt that the
defendant was in fact conscious at the time of the alleged crime. [¶] If the
evidence raises a reasonable doubt that the defendant was in fact conscious, you
must find that he was then unconscious.”
50
unconsciousness, the trial court errs in refusing to instruct on its effect as a
complete defense.” (Halvorsen, supra, at p. 417, italics added.)
In requesting jury instructions on the defense of unconsciousness, counsel
argued it was possible defendant’s voluntary ingestion of alcohol and drugs
became involuntary at some point when the continued consumption of alcohol and
drugs caused him to “black out.” The trial court noted the absence of any expert
testimony supporting this theory and denied the request, stating, “[T]he reason we
got into this subject was the People introduced the defendant’s statement. In his
statement he says that due to the consumption of alcohol he was not conscious of
certain behavior or conduct. . . . So if the state of the evidence is that the . . .
taking of alcohol or drugs was voluntary on the part of the defendant, it would
appear that there’s a lack of foundation for giving this instruction.”
On appeal, defendant argues for the first time that the requested instructions
should have been given because there was evidence of unconsciousness “totally
unrelated to [his] consumption of alcohol.” This claim is forfeited. (See generally
People v. Partida (2005) 37 Cal. 4th 428, 435 [“A party cannot argue the court
erred in failing to conduct an analysis it was not asked to conduct.”].) Even were
the claim not forfeited, we would find it without merit.
In support of his contention the record contained evidence of
unconsciousness unrelated to alcohol consumption, defendant cites his
mentioning, in his response to questions about Debora Kennedy’s murder, that he
had previously experienced “blackouts”:
“Investigator Tarpley: Okay, . . . have you ever killed anybody in your
entire life?
“[Defendant]: If I have, that’s something I’m not knowledgeable about.
“Investigator Tarpley: You might have killed somebody, but you just don’t
have knowledge of it today?
51
“[Defendant]: True.
“Investigator Tarpley: Okay, and that would be because of drugs and . . . .
“[Defendant]: Drugs and alcohol use. I, I have been a drug and alcohol
user for years. I just abuse, abuse over and over.
[The tape in the recorder was changed and [defendant] confirmed nothing
was said while the recorder was off.]
“Investigator Tarpley: Okay. . . . [T]he last thing I think we talked about
was that you might have done a homicide, but if you did do it, you don’t have any
knowledge of it.
“[Defendant]: Right.
“Investigator Tarpley: It would have been when you were under the
influence of drugs or something like that?
“[Defendant]: Right.
“Investigator Tarpley: Gerald, I feel comfortable talking to you and I think
you feel comfortable . . . talking to me.
“[Defendant]: Correct.
“Investigator Tarpley: Okay? . . . I’ve got a job to do . . . and I do have an
obligation to this girl’s . . . family . . . . You lived practically almost on the same
street as her.
“[Defendant]: Right.
“Investigator Tarpley: You might have done, is it possible that you might
have done something to her that today, that if you had it to do over again, you
wouldn’t do?
“[Defendant]: I hope to God not, you know, like I said, I never, I can’t
recall ever seeing this woman and I don’t think so.
“Investigator Tarpley: Would it be possible that early in the morning one,
one day in October, 1979, that you might have gone into a . . . two story
52
apartment, gone in through the ground floor, and found a woman in bed and . . .
might have attacked her, but just might not remember her . . . because of the
condition that you were in? Would that be possible?
“[Defendant]: It’s possible.
“Investigator Tarpley: Okay.
“[Defendant]: And the reason why I say it’s possible because, just because
what some of the people that I have known have told me about. I, I have friends
that told me that I black out sometimes and say things, have said things and done
things that I don’t recall, you know, that they said I did, I don’t know . . . .”
Defendant argues his responses referring to the possibility that he
committed the crime in a blackout could be construed to mean his bouts of
unconsciousness were not drug- or alcohol-related because he did not refer to
drugs or alcohol when he said that friends had told him he sometimes blacked out.
In light of this possibility, he contends the trial court erred in not giving the
requested instructions on unconsciousness because “the task of determining which
of these constructions was accurate, was for the jury, not for the judge.” We
disagree.
The clear implication from the cited conversation as a whole was that
defendant’s supposed blackouts were the result of his drug and alcohol abuse. The
conversation began with defendant claiming he had not, to his knowledge, “ever
killed anybody,” but admitting he “might have killed somebody” he did not know
about while under the influence of alcohol and drugs. The question immediately
preceding the blackout statement specifically referred to this discussion. Tarpley
asked defendant if it was possible he had attacked Kennedy but did not remember
her “because of the condition that you were in?” Defendant agreed that was a
possibility “because . . . I have friends that told me that I black out sometimes and
. . . have said things and done things that I don’t recall.” Fairly read in context, the
53
statement regarding blackouts is evidence of, if anything, the effects of
defendant’s voluntary alcohol and drug consumption, and not of unrelated and
unexplained unconsciousness.
Even if the meaning of defendant’s blackout statement had been unclear,
this vague, isolated remark does not constitute substantial evidence that defendant
blacked out at any time during the crimes at issue, or that if this happened it would
have been as a result of something other than the voluntary consumption of drugs
and alcohol. This is particularly true where defendant’s initial lack of recollection
was followed by detailed confessions to six murders whose commission suggested
planning and premeditation. His substantial recall of the crimes some 17 years
later confirmed he did not lack awareness of his actions during the course of the
offenses. (Cf. Halvorsen, supra, 42 Cal.4th at p. 418 [the defendant’s testimony
demonstrated “he did not lack awareness of his actions during the course of the
offenses” and “[t]he complicated and purposive nature of his conduct in driving
from place to place, aiming at his victims, and shooting them in vital areas of the
body suggest[ed] the same”].) Even had defendant properly preserved this issue
for appeal, there being no evidence defendant was not conscious of his criminal
actions within the meaning of section 26, the court did not err in refusing to
instruct the jury on the defense of unconsciousness.
D. Victim Impact Evidence
As summarized above, six penalty phase witnesses testified regarding the
impact on their lives of the murders of five of the victims, and the jury heard a
poem and statement from two additional family members. Prior to the beginning
of the penalty phase, defendant generally objected to the introduction of any
victim impact testimony or photographs depicting the victims in life on the ground
this evidence would be unduly emotional and prejudicial; the trial court overruled
54
these objections. While the witnesses were on the stand, however, defendant did
not specifically object to the admission of any particular testimony. At the
conclusion of the penalty phase, defendant objected to the victim impact testimony
on due process grounds; the court ruled the objection was untimely and meritless.
After the trial, defendant unsuccessfully moved for a new trial on the ground the
victim impact testimony was so prejudicial it denied him a fair trial and due
process of law.
Now on appeal, defendant claims the admission of “highly emotional and
largely irrelevant” victim impact testimony violated his state and federal
constitutional rights and requires reversal of the death sentence. He advances
several arguments in support of this contention, none of which is persuasive.
“As we have repeatedly held, victim impact evidence is relevant and
admissible pursuant to section 190.3, factor (a) as a circumstance of the crime so
long as it is not ‘so unduly prejudicial’ that it renders the trial ‘fundamentally
unfair.’ ” (People v. Russell (2010) 50 Cal. 4th 1228, 1264; see Lewis and Oliver,
supra, 39 Cal.4th at p. 1056 [“Unless it invites a purely irrational response from
the jury, the devastating effect of a capital crime on loved ones and the community
is relevant and admissible . . . .”].) “Admission of testimony presented by a few
close friends or relatives of each victim, as well as images of the victim while he
or she was alive, has repeatedly been held constitutionally permissible.” (Russell,
supra, at p. 1265; see Payne v. Tennessee (1991) 501 U.S. 808, 825 [“ ‘[T]he state
has a legitimate interest in counteracting the mitigating evidence which the
defendant is entitled to put in, by reminding the sentencer that just as the murderer
should be considered as an individual, so too the victim is an individual whose
death represents a unique loss to society and in particular to his family.’ ”].)
Defendant first urges this court to follow other jurisdictions and
affirmatively limit victim impact evidence to one witness per victim absent special
55
circumstances, to require an evidentiary hearing before a family member is
allowed to testify and that the testimony be submitted in writing, and to place
other specific limits on the amount, kind, and source of such evidence, citing State
v. Muhammad (1996) 145 N.J. 23, 54–55, and Salazar v. State (Tex.Crim.App.
2002) 90 S.W.3d 330, 332. We have repeatedly declined similar invitations to
establish bright-line limitations on victim impact evidence and do so again here.
(See, e.g., People v. Suff (2014) 58 Cal. 4th 1013, 1075 (Suff); People v. McKinnon
(2011) 52 Cal. 4th 610, 690; People v. Carrington (2009) 47 Cal. 4th 145, 196–197
(Carrington).)
Defendant argues the penalty phase judgment must be reversed because the
victim impact witnesses gave “cumulative, emotional and inflammatory recitations
with virtually no limitations.” He cites as examples Joseph Lee, who both testified
and read a prepared statement regarding the death of his mother, Marolyn
Carleton, when he was nine years old; Mary Lee, who read both a prepared
statement regarding the death of Carleton, her sister, and a poem their mother, who
was deceased at the time of the trial, had written in memory of Carleton; and
Jackie Bissonnette, who read a prepared statement regarding the death of her
sister, Debra Senior, and a statement from their mother that included two poems
Senior had written.
Defendant forfeited this argument by failing to object during the relevant
testimony. (See, e.g., People v. Brady (2010) 50 Cal. 4th 547, 576 (Brady).)
Nonetheless, we have reviewed the cited testimony and find it fell well within the
scope of permissible victim impact evidence. (See, e.g., Suff, supra, 58 Cal.4th at
p. 1076 [poem victim had written “contributed to the picture of the victim who
was taken from the family by defendant”]; People v. Jurado (2006) 38 Cal. 4th 72,
132–134 [witnesses properly testified as to the impact of the murder on themselves
and on other family members who did not testify].) The testimony was not
56
voluminous or repetitive, nor was it so emotionally charged as to evoke an
irrational or purely subjective response from the jury. The circumstance that some
jurors may have been moved to tears when Joseph testified did not render his
testimony necessarily inflammatory or unduly prejudicial. (See, e.g., People v.
Romero and Self (2015) 62 Cal. 4th 1, 47; People v. Linton (2013) 56 Cal. 4th 1146,
1204; Brady, supra, at pp. 575–576; Jurado, supra, at pp. 132, 134.)
Defendant also contends the victim impact testimony included “irrelevant,
prejudicial information about illnesses and unfortunate circumstances family
members had suffered that had no logical connection” to the murders, such as
Carleton’s mother’s dying of cancer before the trial, Debora Kennedy’s sister’s
decision to marry a possessive man described by one witness as a neo-Nazi and
isolating herself from the family, and Debra Senior’s mother’s belief that her
father died three years after the murder from myocardial infarction because “his
heart was broken.” Defendant argues this particular evidence went “far beyond a
‘quick glimpse’ into each victim’s life” and improperly “gave the jury the
impression that [he] was responsible for more than just the direct harm caused by
his crime and was to be punished for subsequent death and disease as well.”
Again, defendant did not specifically object to the contested testimony on these
grounds, forfeiting these arguments on appeal. (Brady, supra, 50 Cal.4th at
p. 476.)
In any event, evidence regarding why Marolyn Carleton’s mother did not
testify was admissible “to dispel any potential negative implication that might be
drawn by the jury or by defense counsel based upon the prosecution’s failure to
call” her as a witness. (Carrington, supra, 47 Cal.4th at p. 197 [evidence of the
death of victim’s mother and the illness of her father was admissible to explain
why they were not called to testify].) Testimony regarding a sister’s marital and
familial difficulties was admissible to demonstrate the enduring effects of the
57
violent murderous assault on Debora Kennedy and certainly was not unduly
inflammatory or prejudicial nor of such a nature as to invite an irrational or purely
emotional response from jurors. (See, e.g., People v. Hamilton (2009) 45 Cal. 4th
863, 926 [“ ‘circumstances’ of the crime under section 190.3, factor (a) are not
merely the immediate temporal and spatial circumstances of the crime, but extend
to that which surrounds the crime materially, morally, or logically” and included
evidence regarding the victim’s husband’s “continued depression and suffering for
over 16 years from the time of the murder, the details of his use of alcohol near the
end of his life, and the circumstances of his death”]; see also id. at p. 927; People
v. Brown (2003) 31 Cal. 4th 518, 573 [“It is common sense that surviving families
would suffer repercussions from a young woman’s senseless and seemingly
random murder long after the crime is over.”].)
To suggest Debra Senior’s father died of a broken heart was arguably
improper speculation as to the possible effect of her murder on his health. (See
Brady, supra, 50 Cal.4th at pp. 577–578; Carrington, supra, 47 Cal.4th at p. 197.)
Defendant, however, fails to demonstrate prejudice. In light of the brutal and
unprovoked nature of the murders and defendant’s numerous other acts of
violence, there is no reasonable possibility the broken heart testimony affected the
penalty phase verdict. (See People v. Jones (2003) 29 Cal. 4th 1229, 1264, fn. 11
[“State law error occurring during the penalty phase will be considered prejudicial
when there is a reasonable possibility such an error affected a verdict.”]; see also
Brady, supra, at pp. 577–578 [improperly speculative victim impact testimony that
victim’s mother, who died six months after the murder, “ ‘gave up on life,’ ” was
not prejudicial].)
Lastly, defendant takes issue with an unsolicited response during the cross-
examination of Sandra Kennedy, which “interjected” the Bible and her belief
defendant would receive the death penalty. When asked whether she believed
58
there was a vendetta against her family that was responsible for her aunt, Debora
Kennedy’s, murder, Sandra responded, “Now, after hearing all the evidence in
court, he’s just a cold[-]blooded murderer with no dignity, regard, or respect for
anyone, including himself.” She then continued: “And, Mr. Parker, I suggest you
meet God before you get executed and ask for forgiveness for all of these lives
that you took. I’ve forgiven you. I have. I will never forget. I have compassion
for you that God has put in my heart after months and months of prayer, preparing
for this trial. [¶] I have prayed for you. I have you on a prayer chain at my
church. I’m even prepared to write you from prison if you don’t get the death
penalty because I want you to know that your eternal life, your spiritual life,
weighs in the balance now. And the Bible says that you will be tormented in hell
for eternity if you do not accept responsibility for what you’ve done and ask God
on bended knees in humility and brokenness for forgiveness and ask him to
cleanse you and prepare you to take you home because I’m quite certain you will
get the death penalty. . . .”
There is no error defendant can now raise on appeal with respect to the
contested testimony. This evidence came in during cross-examination of a victim
impact witness; in other words, it was defense evidence. Not only did defendant
fail to object or move to strike the testimony, he also declined the court’s sua
sponte offer to admonish the jury and later expressly stated his nonobjection to
this testimony. Indeed, defense counsel used the testimony during penalty phase
closing arguments by quoting it at length in arguing in favor of life without the
possibility of parole.17
17 Defense counsel argued, “That’s what she said. And she said it from the
heart. And some people didn’t like to hear her say that because there wasn’t
(footnote continued on next page)
59
E. Penalty Phase Closing Argument
Defendant contends the trial court erroneously and prejudicially prohibited
defense counsel from arguing to the jury during the penalty phase closing
argument his lack of future dangerousness, in other words, that he would not pose
a danger if sentenced to life in prison without the possibility of parole. After both
sides had rested, the trial court, referring to the defense’s cross-examination of the
prosecution’s rebuttal expert witness, Forensic Psychiatrist Dr. Park Dietz, stated:
“Part of that line of questioning . . . touched on what might be classified as future
dangerousness. I don’t believe either side is permitted to introduce evidence on
that subject, let alone comment during the course of your argument. . . . If you
feel that the court is in error . . . the time to correct me is now. But . . . I believe
the law precludes the parties commenting about future possibilities.” Defense
counsel asked whether this ruling took “into account the fact that we plan on
mentioning the use of the psychotropic drugs that [defendant] is under now? I’m
not going to use the word ‘danger,’ but I think it’s imminently [sic] apparent to
anybody in the room when he is under these drugs he is a lot less a danger to
himself and others. I won’t use the word ‘danger,’ but I would be talking about
the drugs, and their availability in the state prison system. That’s been going on
since the beginning of the trial.” The judge replied: “You have to expand. . . . I
don’t want you trying to do indirectly what you cannot do directly. So, I need to
know the substance of what you want to say, in that regard.” Defense counsel
responded: “That he could be continued to be medicated, the same way he is in
county jail right now, and the way he was in state prison before he was brought to
(footnote continued from previous page)
enough hate in it, there wasn’t enough real venom in it. There was a
thoughtfulness to it.”
60
the county jail. But the facilities exist, the medication exists, the doctors exist.
And that can come in. I don’t see how that could be irrelevant in light of the
testimony we’ve had on that point.” The court asked, “Is that the extent?”
Defense counsel replied, “Yes.”
The next court day, the prosecutor stated he believed both sides were
permitted to argue future dangerousness or lack thereof, citing People v.
Davenport (1995) 11 Cal. 4th 1171 (Davenport). The court remained skeptical:
“Davenport is one of the early cases. . . . I would be concerned about relying on
Davenport holding the day in the future. [¶] And I’m also concerned about why
. . . the D.A. even needs to talk about that given the evidence that you have going
to the jury. [¶] So I just think that you’re skating on thin ice if you get on that
topic, and if what you’re asking for is guidance about argument, don’t get into it.”
The court then expressed concern “about counsel for defendant because they’re
the ones that started to touch on this subject, and I don’t know whether they did so
intentionally, but I want to make sure they don’t get into the topic.” Defense
counsel responded: “My plan is to do exactly what I told you yesterday and you
said this was all right. I can discuss psychotropic medication.” The court replied,
“That’s fine,” and then added: “ I’m not faulting your research or your
interpretation. What I’m saying is I think everything I’ve looked at on that topic is
that it’s not a given as to what the appellate court would do on that issue, and I see
no need for either side to get into this particular subject on this case.”
Contrary to the trial court’s suggestion, Davenport was not addressing an
issue of first impression. Rather, at the time of defendant’s 1998 trial, Davenport
had been on the books for three years and articulated a not-so-new proposition:
“ ‘ “[W]e have held that argument directed to a defendant’s future dangerousness,
when based on evidence of the defendant’s past conduct rather than expert
opinion, is proper . . . .” ’ ” (Davenport, supra, 11 Cal.4th at p. 1223, citing
61
People v. Fierro (1991) 1 Cal. 4th 173, 249 and People v. Davenport (1985) 41
Cal. 3d 247, 288.) However, the erroneous ruling was clearly harmless because the
argument defendant was allegedly barred from making was only slightly different
from the argument he actually advanced.
During the penalty phase closing arguments, defense counsel argued as
follows: “[T]his man is not the same man he was twenty years ago. You wouldn’t
be killing the same man. There is no evidence contrary to this that this man was
not diagnosed for his own mental illness twenty years ago, no one diagnosed him,
no one sedated him, no one medicated him. What happens? [¶] He finally gets
arrested after all these horrific crimes, for which I make no excuse, and they
eventually diagnose him for his mental illness. Who does that? [¶] The prison
authorities can’t and [the prosecutor] can’t tell you any different, uncontroverted
evidence. They put him on antipsychotic/psychotropic medication. They did it.
He’s been 29 months in the jail waiting for his trial. The jail psychiatric team—
and you’ll see the records—did the same thing. They medicated him. And when
he’s medicated, what happens? The violent tendencies are gone. [¶] We even
adjusted his medication a couple of times as you heard. Violent tendencies are
gone. It’s not the same man. [¶] . . . If you decide not to kill him, he’s going to
go to prison for the rest of his life without the possibility of parole. He’s not going
anywhere. They’re going to medicate him, and he’s going to stay there. . . . He’s
not going anywhere.”
Defendant claims he was prejudiced by the trial court’s ruling because his
“entire penalty phase case was devoted to showing the jury that he was no longer a
danger. Yet, all his counsel were permitted to argue was that prison authorities
diagnosed appellant’s mental illness and put him on antipsychotic/psychotropic
medication[,] which made his violent tendencies disappear. They were not
permitted to fully develop the theme of their case and make an explicit argument
62
to the jury.” The scope of this argument is at most marginally broader than what
defense counsel did in fact argue. There is no reasonable possibility the penalty
phase verdict would have been different but for the failure of defense counsel to
explicitly argue defendant “no longer posed a danger,” as opposed to that his
“violent tendencies [were] gone.”
F. Challenges to California’s Death Penalty Statute
Defendant raises a number of challenges to the constitutionality of
California’s death penalty scheme. As he acknowledges, we have previously
considered and consistently rejected these contentions. We do so again as follows.
Neither the federal nor the state Constitution requires that the penalty phase
jury find beyond a reasonable doubt that aggravating factors outweigh mitigating
factors before determining whether or not to impose a death sentence. (E.g.,
People v. Blair (2005) 36 Cal. 4th 686, 753; People v. Fairbank (1997) 16 Cal. 4th
1223, 1255.) The United States Supreme Court’s decisions interpreting the Sixth
Amendment’s jury trial guarantee do not alter these conclusions. (E.g., People v.
Bramit (2009) 46 Cal. 4th 1221, 1250 & fn. 22, citing Cunningham v. California
(2007) 549 U.S. 270; United States v. Booker (2005) 543 U.S. 220; Blakely v.
Washington (2004) 542 U.S. 296; Ring v. Arizona (2002) 536 U.S. 584; Apprendi
v. New Jersey (2000) 530 U.S. 466.)
“The death penalty is not unconstitutional for failing to impose a specific
burden of proof as to the existence of aggravating circumstances, the greater
weight of aggravating circumstances over mitigating circumstances, or the
appropriateness of a death sentence.” (People v. Howard (2008) 42 Cal. 4th 1000,
1031.) Nor is the court required to instruct jurors that there is no burden of proof
in the penalty phase. (E.g., People v. Mai (2013) 57 Cal. 4th 986, 1057.)
63
The penalty phase jury is not required to unanimously find that a particular
set of aggravating circumstances warrants the death penalty, nor is juror unanimity
required in the consideration of a defendant’s unadjudicated criminal activity.
(E.g., People v. Valdez (2012) 55 Cal. 4th 82, 179 (Valdez).) The decisions
interpreting the Sixth Amendment’s jury trial guarantee do not alter these
conclusions. (E.g., People v. Ward (2005) 36 Cal. 4th 186, 221–222.)
CALJIC No. 8.88 as given informed the jury that “[t]o return a judgment of
death, each of you must be persuaded that the aggravating factors are so
substantial in comparison with the mitigating factors that it warrants death instead
of life in prison without parole.” The phrase “so substantial” is not “vague,” or
“directionless.” (People v. Russell (2010) 50 Cal. 4th 1228, 1273; accord, People
v. Sanchez (1995) 12 Cal. 4th 1, 81; People v. Breaux (1991) 1 Cal. 4th 281, 316,
fn. 14.) Nor is it “impermissibly broad.” (Valdez, supra, 55 Cal.4th at p. 180.)
CALJIC No. 8.88 is not unconstitutional for failing to advise the penalty phase
jury that (1) “the ‘central determination is whether death is the “appropriate”
penalty’ ” (People v. McCurdy (2014) 59 Cal. 4th 1063, 1111), (2) if the jury
determines the mitigating evidence outweighs the aggravating evidence, it is
required to return a verdict of life in prison (e.g., People v. Page (2008) 44 Cal. 4th
1, 57), or (3) it can return a verdict of life in prison if it determines that
aggravation outweigh mitigation (e.g., People v. Jackson (1996) 13 Cal. 4th 1164,
1243–1244). The instruction is not defective for failing to tell jurors that
defendant bears no burden of proving facts in mitigation (e.g., People v. Jones
(2013) 57 Cal. 4th 899, 980) or that unanimity regarding mitigating circumstances
is not required (e.g., McCurdy, supra, at p. 1111). There is no requirement jurors
be instructed there is a “ ‘ “presumption of life” ’ ” or that they should presume
life imprisonment without the possibility of parole is the appropriate sentence.
64
(People v. Combs (2004) 34 Cal. 4th 821, 868; People v. Arias (1996) 13 Cal. 4th
92, 190.)
The use of adjectives such as “extreme” in section 190.3, factors (d)
and (g), or “substantial” in section 190.3, factor (g) (see also CALJIC No. 8.85),
do not serve as improper barriers to the consideration of mitigating evidence.
(E.g., Cruz, supra, 44 Cal.4th at p. 681.) The trial court has no obligation to delete
inapplicable mitigating factors from CALJIC No. 8.85. (E.g., People v. Cook
(2006) 39 Cal. 4th 566, 618.)
There is no constitutional requirement that California’s death penalty
sentencing scheme provide for intercase proportionality review. (People v. Moon
(2005) 37 Cal. 4th 1, 48.)
Because capital defendants are not similarly situated to noncapital
defendants, California law does not deny equal protection by providing certain
procedural rights—such as a unanimity requirement for true findings on
enhancement allegations, a requirement that such findings be made beyond a
reasonable doubt, and a requirement that the sentencer provide written reasons
justifying the sentence—to noncapital defendants but not to capital defendants.
(E.g., Cruz, supra, 44 Cal.4th at p. 681.)
We again reject the argument that this state uses capital punishment “ ‘as
regular punishment,’ ” thereby offending international norms of humanity and
decency and violating the Eighth and Fourteenth Amendments of the United States
Constitution. (People v. Demetrulias (2006) 39 Cal. 4th 1, 43–44.)
G. Cumulative Prejudice
Defendant claims that even if the errors he has asserted were individually
harmless, they were cumulatively prejudicial. We found error with respect to the
trial court’s restriction of defendant’s lack of future dangerousness argument
65
during the penalty phase, and a possible error with respect to the admission of the
broken heart victim impact evidence, but concluded they were both harmless.
There are no additional errors to cumulate and no possible cumulative prejudice
that could have denied defendant a fundamentally fair trial.
66
III. DISPOSITION
For the foregoing reasons, the judgment is affirmed in its entirety.
WERDEGAR, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
KRUGER, J.
67
CONCURRING OPINION BY CANTIL-SAKAUYE, C. J.
I join the majority opinion in full. I write separately to observe that the People
have not requested that we use this opportunity to reconsider our decision in People v.
Smith (1983) 34 Cal. 3d 251 (Smith). In Smith, this court held that the Right to Truth-in-
Evidence provision of Proposition 8, a 1982 ballot initiative (see now Cal. Const., art. I,
§ 28, subd. (f)(2)), curtailing application of the exclusionary rule in criminal proceedings,
does not apply in cases where the tried crimes occurred before the proposition’s effective
date of June 9, 1982. (Smith, at p. 258.)
Were we to revisit Smith, supra, 34 Cal. 3d 251, it is not clear that the decision
would stand. The Smith court premised its holding partially on concerns that application
of the Right to Truth-in-Evidence provision in cases where the charged crimes occurred
before Proposition 8’s effective date could violate the ex post facto clauses of the federal
and state Constitutions. (Smith, at p. 259; see U.S. Const., art. I, § 10; Cal. Const., art. I,
§ 9.) However, the United States Supreme Court’s subsequent clarification of what
constitutes an ex post facto law may have alleviated these concerns.
Specifically, the high court has indicated that changes in the law that affect only
the rules governing the admissibility of evidence do not implicate the federal or state ex
post facto clauses. There are four categories of ex post facto laws: “1st. Every law that
makes an action done before the passing of the law, and which was innocent when done,
criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it
greater than it was, when committed. 3d. Every law that changes the punishment, and
inflicts a greater punishment, than the law annexed to the crime, when committed.
1
4th. Every law that alters the legal rules of evidence, and receives less, or different,
testimony, than the law required at the time of the commission of the offence, in order to
convict the offender.” (Calder v. Bull (1798) 3 Dall. 386, 390, italics omitted.) In
Carmell v. Texas (2000) 529 U.S. 513, the court determined that the fourth Calder
category of ex post facto laws was concerned with changes in legal rules that “govern[]
the sufficiency of [the] facts for meeting the burden of proof,” and not with alterations to
rules that “merely ‘regulat[e] . . . the mode in which the facts constituting guilt may be
placed before the jury.’ ” (Id., at p. 545.) The court observed that, for purposes of the ex
post facto clause, “[t]he issue of the admissibility of evidence is simply different from the
question whether the properly admitted evidence is sufficient to convict the defendant.”
(Carmell, at p. 546.) Thus, under Carmell, “changes in the law that do no more than alter
the rules for admissible evidence” do not implicate the federal or state ex post facto
clauses. (People v. Flores (2009) 176 Cal. App. 4th 1171, 1178; see also In re Vicks
(2013) 56 Cal. 4th 274, 287 [observing that the ex post facto clause found at article I,
section 9 of the California Constitution “provides the same protections and is analyzed in
the same manner as the federal provision”].)
Although a definitive resolution of this question is unnecessary here, it is arguable
that the application of the Right to Truth-in-Evidence provision in cases such as this one
would not run afoul of ex post facto principles. Nevertheless, because Smith is still
binding precedent and defendant’s charged crimes took place in 1978 and 1979, the
majority opinion and Justice Liu’s concurring and dissenting opinion must apply our pre-
Proposition 8 case law to defendant’s claim of error under Miranda v. Arizona (1966)
384 U.S. 436. As the majority opinion determines, defendant’s claim of Miranda error
fails even though our pre-Proposition 8 case law guides that decision. (Maj. opn., ante, at
pp. 38-49.) But crimes that preceded Proposition 8 continue to be investigated and tried
(see, e.g., People v. Cordova (2015) 62 Cal. 4th 104, 109 [describing a 2002 “cold hit” of
DNA evidence that connected the defendant with a 1979 murder]; People v. Nelson
2
(2008) 43 Cal. 4th 1242, 1248-1249 [relating the 2001 and 2002 investigation of a murder
that occurred in 1976]; People v. Shamblin (2015) 236 Cal. App. 4th 1, 5-6 [discussing an
investigation, culminating in 2011, of a 1980 murder].) The outcome in a future case
may be affected by whether this court or a lower tribunal applies the law as it stood prior
to Proposition 8, or principles that have developed since the effective date of that
measure.
CANTIL-SAKAUYE, C. J.
3
CONCURRING AND DISSENTING OPINION BY LIU, J.
I respectfully disagree with today’s holding that the police did not violate
defendant Gerald Parker’s right to remain silent under Miranda v. Arizona (1966)
384 U.S. 436. California law, as it existed in the late 1970s and early 1980s when
Parker committed the murders for which he was convicted, required the
prosecution to prove beyond a reasonable doubt the voluntariness of a defendant’s
confession. The Attorney General has not carried that burden here. But because
the error was harmless with respect to all the murder convictions except one, I join
the court in affirming Parker’s death sentence.
As the court explains (maj. opn., ante, at p. 39 & fn. 13), the law governing
Parker’s confession is the law this court articulated before the “Right to Truth-in-
Evidence” took effect in 1982. (Cal. Const., art. I, § 28, subd. (f)(2).) Our
doctrine encompassed three principles that are relevant here.
First, the prosecution must prove the voluntariness of a confession beyond a
reasonable doubt. (People v. Jimenez (1978) 21 Cal. 3d 595, 608.)
Second, “[a]ny words or conduct which ‘reasonably appears inconsistent
with a present willingness on the part of the suspect to discuss his case freely and
completely with police at that time [fn. omitted]’ [citation] must be held to amount
to an invocation of the Fifth Amendment privilege.” (People v. Burton (1971) 6
Cal. 3d 375, 382 (Burton).) “To strictly limit the manner in which a suspect may
assert the privilege, or to demand that it be invoked with unmistakable clarity
1
(resolving any ambiguity against the defendant) would subvert Miranda’s
prophylactic intent.” (People v. Randall (1970) 1 Cal. 3d 948, 955.)
Third, “after a defendant has once demonstrated he does not wish to waive
his privilege against self-incrimination, the police cannot lawfully subject him to a
new round of interrogation even if they repeat the Miranda warnings: ‘By his
refusal to waive his constitutional rights initially, defendant indicated that he
intended to assert his rights –– the privilege had been once invoked –– and all
further attempts at police interrogation should have ceased.’ ” (People v. Pettingill
(1978) 21 Cal. 3d 231, 238 (Pettingill), quoting People v. Fioritto (1968) 68 Cal. 2d
714, 719 (Fioritto).) The reason for the Fioritto rule “ ‘is to prevent the police
from wearing down a prisoner’s resistance by repeated pressuring until he finally
makes the statement desired in order to get peace.’ ” (Pettingill, at p. 250, fn. 11.)
We rejected the approach taken in Michigan v. Mosley (1975) 423 U.S. 96, 104,
which permits subsequent interrogation after a defendant’s initial Miranda
invocation under some circumstances. (Pettingill, at pp. 249–251.)
Importantly, we held in Pettingill that it does not matter if the subsequent
attempt at interrogation is made by a different law enforcement agency. In that
case, a burglary suspect in Eureka was found with some items that appeared to
come from Santa Barbara, leading to notification of the Santa Barbara police. The
Eureka police interrogated him several times despite his statement that he did not
wish to talk. Three days later, he was questioned by a Santa Barbara detective and
finally confessed. In his testimony at the motion to suppress, he explained: “ ‘I
just wanted to get them off my back, and I figured the only way I could is to say
something, and when the last officer talked to me, you know, for a pretty long
time, I figured the only way I could was to go ahead and say something.’ ”
(Pettingill, supra, 21 Cal.3d at p. 236.) In addition to noting that the record did
not show Pettingill was willing to speak to one police department but not another,
2
we rested our holding on the “broader grounds” that “the large majority of
suspects . . . see the uniform only as a symbol of police authority, . . . neither know
nor care about the precise jurisdictional competence of their interrogators, and . . .
do not want to talk to any of them. Little would remain of the Fioritto rule if it
could be evaded simply by sending in an officer from a different police or sheriff’s
department every time a suspect asserts his right to remain silent, or by changing
the subject of the questioning from one of the crimes under investigation to
another.” (Id. at p. 245.)
In this case, Costa Mesa Police Detectives Giesler and Redmond
interrogated Parker. Detective Giesler asked, “Why don’t you tell us what
happened?” Parker replied, “The thing is, I will reserve the right to speak at
another time, . . . .” When the detectives urged Parker to “speak the truth” and
“[g]et the monkey off your back,” Parker replied, “Yeah, the day is not today
though.” Detective Giesler asked, “Why is today not the day?” Parker replied, “I
can’t take it.” When Detective Redmond urged Parker to “get it off your chest,”
and to explain the reason for his actions, Parker replied, “Yeah, but there’s also a
reason for wanting to wait too.” Parker added, “[L]ike I say, once again, . . .
there’s I think for me, there’s a time, and a place for saying what I have to say,
and, in reference to what happened, I, I there’s nothing else that I can tell you.”
Detective Giesler pressed on: “Gerald, I can guarantee you, they’re going
to say, Lynda, did he say why? Can you tell me why? Can you try to tell me
why? Did you know any of these women?” Parker replied, “Like I say, I think I
should wait until later on before . . . .” At that point, Detective Giesler said: “I
don’t understand what you’re saying to me, are you saying, okay Lynda, when I
get to Orange County, come and see me? . . . . Are you saying, Lynda, I don’t
want to talk to you?” Parker replied: “No, no, this, this, I, I just need some time
to call upon myself, to bring, to draw up on some strength. . . . To say what I have
3
to say. . . . When they take me down there, yes, you can come back.” After
Detective Giesler clarified Parker’s willingness to talk to her after being
transferred from state prison to the Orange County jail in 23 or 24 days, Detective
Giesler informed Parker that there was “an investigator from Tustin . . . who wants
to talk to you.” Parker asked whether “Tustin was the only one here?”
If there is an ambiguity about whether a suspect is invoking the right to
remain silent, the police may continue to question him for the limited purpose of
determining whether he is invoking the right. (People v. Box (2000) 23 Cal. 4th
1153, 1194.) At least some of the colloquy between the Costa Mesa detectives
and Parker can be characterized as an attempt at clarification. Parker’s invocation
may have been unclear at first, particularly because he was willing to talk for a
while. But by the end of the interrogation, he had made clear — repeatedly — that
he no longer wished to talk about the crimes he was accused of committing.
The fact that Parker said he would be willing to speak to Detectives Giesler
and Redmond in Orange County in three weeks does not vitiate his invocation of
the right to remain silent at the time of the initial interrogation. No doubt some
suspects, uncomfortable with irrevocably refusing to speak with police
interrogators, will invoke the right to remain silent while leaving open the
possibility of talking at some later point. What matters, however, is whether the
suspect has made clear he is not presently willing to talk to the police. (Burton,
supra, 6 Cal.3d at p. 382; see People v. Peracchi (2001) 86 Cal. App. 4th 353, 361
[suspect’s statements that he did not want to discuss the crime under investigation
“ ‘right now’ ” “clearly indicat[ed] that he intended to invoke his right to remain
silent”].) Once a suspect has said he does not wish to speak at the present time, all
questioning — including questioning by a different law enforcement agency —
must cease. (Pettingill, supra, 21 Cal.3d at pp. 245–251.) Here, the Costa Mesa
detectives understood by the end of their interrogation that Parker did not wish to
4
talk at the time. Under Pettingill, the subsequent interrogation by the Tustin
detective violated Parker’s right to remain silent.
In concluding that Parker did not invoke his right to remain silent, today’s
opinion cites In re Joe R. (1980) 27 Cal. 3d 496 and People v. Hayes (1985) 38
Cal. 3d 780. In Joe R., the suspect participated in the interrogation for 30 to 40
minutes, giving exculpatory answers to questions posed by the officers. When
confronted by adverse evidence, the suspect stated, “ ‘That’s all I have to say.’ ”
(Joe R., at p. 516.) This court upheld as reasonable the trial court’s conclusion
that this statement was not an invocation of the right to remain silent but merely an
assertion that he was standing by his previous story. (Id. at pp. 513–516.) Parker,
by contrast, conveyed no exculpatory version of events; instead, he repeatedly
communicated a present unwillingness to talk about the crimes at all, culminating
in termination of the interrogation. Hayes is even farther afield; the suspect there
confessed to the crimes, and we refused to interpret his expression of reluctance to
go into the details of the crime as an invocation of his Miranda rights. (Hayes, at
pp. 784–786.) No similar facts are presented here.
The court further explains that “although defendant made statements
suggesting he did not want to talk further with the Costa Mesa detective and
investigator, he also indicated a willingness to speak with them in the future, and
made no objection when they told him that another detective from Tustin wished
to speak with him. Under these circumstances, even assuming defendant sought to
invoke his right to terminate the questioning by Redmond and Giesler at that time,
that limited invocation did not bar [the Tustin detective] from interrogating
defendant about the Tustin offenses after readvising him of his Miranda rights and
obtaining a waiver of those rights.” (Maj. opn., ante, at p. 48.)
5
However, as in Pettingill, nothing in the record supports a conclusion that
Parker’s refusal to continue talking applied only to the Costa Mesa detectives and
did not extend to the Tustin detective. In refusing to talk about the crimes, Parker
conveyed a general unwillingness that was not limited to the Costa Mesa murders.
There is no reason to infer that his acquiescence to the subsequent interrogation
after again being read his Miranda rights showed that he differentiated between
the Tustin detective and the Costa Mesa detectives. Pettingill, which involved
similar facts, forecloses any such inference; the defendant there had also been
readvised of his Miranda rights and had expressly waived those rights before the
subsequent interrogation in which he confessed. (Pettingill, supra, 21 Cal.3d at
pp. 236, 245.) The fact that Parker responded to questions about the Debora
Green murder during the course of the Tustin detective’s interrogation (maj. opn.,
ante, at p. 48) cannot support an inference that Parker wanted to speak to him, but
not the Costa Mesa detectives, when he told the Costa Mesa detectives he no
longer wanted to talk. (See Pettingill, at p. 240 [“ ‘After the initial assertion of the
privilege, the defendant is entitled to be free of police-initiated attempts to
interrogate him. Any statements made by a defendant in response to such
questioning cannot be characterized as voluntary.’ ”]; id. at p. 242 [“[T]he
Miranda-Fioritto line of decisions is premised on the perception that ‘the setting
of in-custody interrogation’ of a suspect without counsel is inherently coercive.”].)
In sum, the record does not show beyond a reasonable doubt that Parker’s
confession was voluntary.
Although the trial court improperly denied Parker’s motion to exclude his
incriminating statements, I would nonetheless affirm the death judgment. As the
Attorney General correctly argues, except for one victim, Marolyn Carleton, there
was compelling DNA evidence that tied Parker to the murders. I would therefore
uphold five of the six murder convictions, along with the special circumstances of
6
multiple murder and murder during the commission or attempted commission of
rape and burglary. Further, in light of the aggravating evidence presented at the
penalty phase, including the five brutal murders themselves and Parker’s violent
criminal history, it is clear beyond a reasonable doubt that the absence of the
Carleton conviction would not have altered the jury’s death verdict.
I join today’s opinion except for its treatment of the Miranda issue, and
with the exception of Parker’s conviction for the Carleton murder, I join the court
in affirming the judgment.
LIU, J.
I CONCUR:
CUÉLLAR, J.
7
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Parker
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S076169
Date Filed: June 5, 2017
__________________________________________________________________________________
Court: Superior
County: Orange
Judge: Francisco P. Briseño
__________________________________________________________________________________
Counsel:
Michael J. Hersek, State Public Defender, and Jeffrey J. Gale, under appointment by the Supreme Court,
for Defendant and Appellant.
Edmund G. Brown, Jr., Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette, Chief
Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Annie Featherman Fraser and
Holly D. Wilkens, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Jeffrey J. Gale
111 Bank Street, #303
Grass Valley, CA 95945-6518
(530) 320-2777
Holly D. Wilkens
Deputy Attorney General
600 West B Street, Suite 1800
San Diego, CA 92101
(619) 738-9031