The People v. Scherer CA1/2 ( 2013 )

Filed 8/28/13 P. v. Scherer CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A132585
v.
ERNEST FRANCES SCHERER, (Alameda County
Super. Ct. No. C161707)
Defendant and Appellant.
The parents of 29-year-old Ernest Frances Scherer III (defendant) were found
murdered in their home, bludgeoned and stabbed, their throats slit. After a 55-day jury
trial in which more than 90 witnesses testified, defendant was convicted of two special
circumstance murders with personal use of a sharp instrument: murder for financial gain
and multiple murders. (Pen. Code, §§ 187, 190.2, subd. (a)(1) & (a)(3).) He was
sentenced to two life terms without possibility of parole.
Defendant appeals, and raises issues related to jury voir dire, admissibility of
character evidence, multiple instances of claimed prosecutorial misconduct, and
ineffective assistance of counsel for failing to object to experimental evidence. He
further claims the abstract of judgment must be modified to strike a $10,000 parole
revocation fine (Pen. Code, § 1202.45) because he was sentenced to two life terms
without possibility of parole. We find no reversible error but order the abstract of
judgment amended to strike the parole revocation fine.
1
FACTUAL BACKGROUND
The prosecution’s case
Ernest Scherer, Jr. (Scherer),1 and his wife, Charlene Abendroth (Abendroth) had
two children, defendant and his younger sister Catherine Scherer Gray (Catherine).2
Scherer and Abendroth had separate wills under which, if neither predeceased the other,
Scherer’s sister Carolyn Oesterle would be executor of both estates, which were to be
divided between defendant and Catherine but held in trust until each beneficiary reached
the age of 30. Defendant would turn 30 on July 3, 2008. This, the prosecution would
contend, provided the motive for murder.
On March 14, 2008, the bodies of Scherer and Abendroth were found in their
home in the Castlewood Country Club (Castlewood) in Pleasanton. There was a strong
odor of decay when authorities first entered the house. Based on the decomposition of
the bodies, it was estimated they had been dead for four to 12 days before the autopsy,
which occurred on March 17, 2008. They had been bludgeoned, stabbed in their heads,
arms, and upper bodies, and their throats and wrists had been slit. Scherer had six blunt
force injuries and six incisive wounds. Abendroth suffered similar, but even more
extensive injuries. The forensic pathologist could not tell which of the couple had been
attacked first.
Bloody footprints were found near the bodies and throughout the house. It was
later determined they had been made by Nike Impax Tomahawk shoes, size 12.3 A trail
of blood led to the family room where a bloody warranty card for a Nike baseball bat was
1
Because four generations of Scherers share a common name, we will refer to the
grandfather, Ernest Scherer, Sr., as “Senior,” to the father, Ernest Scherer, Jr., as
“Scherer,” to the defendant, Ernest Scherer III as “defendant,” and to defendant’s son,
Ernest Scherer IV, as “Ernest IV.”
2
Catherine Scherer Gray and defendant’s former wife, Robyn Scherer, will be
referred to by their first names. No disrespect is intended. Catherine’s husband, Joseph
Gray, will be referred to as “Gray.”
3
Defendant’s shoes seized from his Brea home ranged in size from 9-1/2 to 11.
When he was arrested he was wearing size 9-1/2 Nike shoes.
2
found. A Nike representative testified it could have been attached to any one of four
models, including the Ripken youth baseball bat.
Local newspapers dated from March 9 through 12 had collected in the victims’
yard, as had Wall Street Journals dated March 8 through 12. It was stipulated that clocks
were due to be set forward for Daylight Savings Time at 2:00 a.m. on March 9. When
the sheriff’s deputies entered the house on March 14, the clocks had not been set forward.
Scherer had left a phone message for his daughter on March 7 at 7:00 p.m., which was
the last she heard from her parents, though she tried to contact them daily over the
ensuing week. The couple had last been seen having dinner at the club’s restaurant on
March 7; they had left the restaurant before 8:00 p.m. Scherer had a phone conversation
with a former congressman on March 7 at 8:30 p.m. Scherer was scheduled to walk his
precinct at 8:00 a.m. on March 8 for a voter registration drive, but he never showed up.
Based on the foregoing, law enforcement operated on the theory that Scherer and
Abendroth were killed on the night of March 7, sometime after 8:30 p.m., or in the early
morning hours of March 8.
The front door of the Castlewood home was unlocked and there was no sign of
forced entry. The house had been ransacked upstairs, but not downstairs. Scherer’s
wallet, which contained approximately $700, was in a pants pocket in the bedroom, along
with $9,000 in cash in another pocket. His wedding ring was lying on the kitchen floor
near his body. Abendroth was wearing some of her jewelry and the rest was in the master
bedroom. Her purse was on the kitchen table. The sheriff’s deputies found Scherer’s
will in a desk drawer and took it with them.
On March 18, the detectives did a walk-through of the house with Catherine and a
family friend to determine whether anything was missing. Scherer had kept four
ceremonial swords in the hall closet, and one of them was gone. Other missing items
were a silver napkin ring holder, two statues from the basement office, and Scherer’s and
Abendroth’s cell phones. Beyond those few items, nothing appeared to be missing. A
safe in the home was later drilled open and found to be empty.
3
Suspicion fairly quickly turned to defendant, who owed money to his parents and
was in financial trouble generally. Defendant was ultimately arrested nearly a year after
the murders, and the prosecution mounted a complicated circumstantial evidence case
against him. The facts and evidence, in brief, were as follows:
Defendant was a professional poker player. Beginning in 2006, he had a sponsor,
Tanner Scadden, who by 2007 was putting up half the money for his tournament entry
fees in exchange for 40 percent of defendant’s winnings. Defendant had some gambling
success for a time, but for some months before his parents’ murders he had been in a
slump and was losing money and betting larger and larger sums. Abendroth, who was a
Mormon and who had raised defendant in that faith, disapproved of his gambling. One
may surmise she also would have disapproved of other aspects of his lifestyle if she had
known.
For defendant, it is safe to say, had acquired a taste for life in the fast lane. His
gambling took him to Las Vegas often, though his home was in southern California. In
Las Vegas he met a woman named Adrian Solomon and maintained a relationship with
her from April 2006 until February 2008. Solomon lived in North Carolina, and their
dating relationship took place there, in Anaheim when Solomon was there on business,
and on trips to Houston, Mexico, New Orleans, Aruba, Puerto Rico and, of course, Las
Vegas. They spent New Year’s Eve together in Las Vegas in 2006-2007 and again in
2007-2008.
The only problem was that defendant was married with a three-year-old son
(Ernest IV), a fact he actively concealed from Solomon. And Solomon was not
defendant’s only girlfriend: friends in Las Vegas had seen him with 10-15 different
women in the past three years. His friends in Las Vegas did not know he was married.
He kept a separate credit card―which his wife did not know about―to entertain his
mistresses.
Meanwhile Robyn, defendant’s wife, who was a stay-at-home mother, wanted to
move out of their small apartment in Torrance into larger quarters. Over Easter 2007,
defendant won $70,000 on a pick-six horse race at Hollywood Park, which was used as
4
part of the down payment on a house. In the summer of 2007, the couple found a 3600
square-foot house they liked in Brea, east of Los Angeles. Defendant pulled together all
the cash he could for a 20 percent down payment of $176,000, but they still did not
qualify for a loan to purchase the house, which cost $880,000.
When the loan fell through, Scherer and Abendroth agreed to lend defendant and
Robyn 70 percent of the purchase price of the Brea house. With their own 20 percent
down payment and a 10 percent second mortgage carried by the sellers, defendant and
Robyn bought the house in September 2007. The parents’ loan and the sellers’ second
mortgage required monthly repayment of interest only; the principal amount was due on
each loan in five years. Despite that provision, there was testimony by family members
and defendant himself that Scherer hoped defendant would be able to refinance the house
sooner so that Scherer and Abendroth could be repaid. Defendant’s and Robyn’s
monthly mortgage payments (first and second) totaled $4,436. They owed $616,000 to
defendant’s parents.
Defendant continued to win at gambling most of the time until fall of 2007, but
then began to lose. Defendant and Scadden had a good year in 2006, but Scadden lost
$50,000 through their arrangement in 2007. He believed defendant was spending too
much time playing craps and being distracted by multiple women, rather than
concentrating on poker.
In February 2008, a professional poker playing friend, Greg Mascio, saw
defendant at a casino in southern California and noticed that defendant was “losing more
than he was winning.” Twice within an hour defendant asked to borrow money, and
Mascio ended up loaning him $20,000.
In early 2008, defendant and Robyn decided to try to refinance the Brea house, in
part so defendant’s parents could get their cash back out of the house. Scadden, who had
once been a mortgage broker, tried to help them find financing, but lenders were starting
to withdraw stated income loans from the market, and he could not find them a loan.
Defendant could not document sufficient income from his gambling efforts. Scadden,
who was also in contact with defendant’s father for business reasons, told Scherer about
5
defendant’s financial bind. When defendant found out, he became very angry and said it
was none of Scherer’s business.
Up until mid-February 2008, Robyn, who paid the bills, had been able to make the
mortgage payments early with money given to her by defendant. When she asked
defendant for money on February 15 to pay the mortgages, defendant for the first time
was unable to give her money. They also had property taxes and penalties of $6,210 due
on April 10, 2008, some of which had been due but unpaid on December 10, 2007.
In late February, defendant and Robyn applied through mortgage broker
Antoinette Lucero to refinance their Brea home. Defendant wanted to get as much cash
as possible out of the house at refinancing, hopefully $180,000, but Lucero thought the
most they could get was about $150,000, as the appraised value of the house had dropped
to $850,000. By March 1, 2008, defendant’s credit rating had been downgraded. Lucero
testified that on March 3 or 4, 2008, she phoned both defendant and Robyn and told them
they did not qualify for the refinance.
At the same time defendant’s high stakes gambling continued. Within the week
before his parents were killed, defendant sent texts to a gambling buddy referring to bets
he had placed, including bets in amounts of $2,000 and $6,000 placed on individual
sporting events.
As the financial noose tightened, defendant began asking his friends in Las Vegas
to help him buy a gun. He claimed he wanted it for his own protection. As a gambler he
tended to carry large amounts of cash and said he worried he would be robbed leaving the
casinos. By February 14, 2008, he was searching on his cell phone for guns for sale in
Primm, near the California border, and also searched for Baker, California. On March 4,
2008, he offered to pay one friend to do something “slightly illegal” by buying him a gun,
but the friend refused.
On March 6, 2008, another Las Vegas friend, Billy Kraus, accompanied defendant
to a gun shop in Pahrump, Nevada, where (as defendant had researched) there were more
relaxed gun purchasing and registration requirements. After the gun dealer skirted
answering Kraus’s question about the legality of the proposed transaction, Kraus changed
6
his mind and refused to buy the gun. Defendant seemed disappointed and they spoke
very little on their way back to Las Vegas.
On March 7, defendant started the day in Las Vegas, having stayed the night
before at Caesar’s Palace. According to Scadden, the two of them communicated by cell
phone that day, and defendant told him they would have to place their bets that day for
March 9 (Sunday), as defendant would be unavailable by cell phone for a time. This was
an unusual departure from their normal habit of placing bets on a daily basis.
Defendant’s cell phone records do not confirm such a call.
At 10:45 a.m. on March 7, defendant made a $500 ATM withdrawal from his and
Robyn’s checking account. He had also made a $500 withdrawal the day before. At
approximately 12:08 p.m. he used a credit card at McDonald’s in Primm, Nevada, and
sometime prior to12:21 p.m. he used the same card at a nearby Chevron station in Primm,
just across the border from California. Defendant’s phone records showed he stopped in
the vicinity of Primm for approximately one hour and 25 minutes. On most other trips
through Primm to Brea, defendant stopped for roughly half an hour.
Also located in Primm near the McDonald’s and Chevron was a Nike outlet store.
The prosecution believed defendant stopped at the Nike store and bought a pair of Nike
Impax Tomahawk shoes (size 12), a black, orange and silver Ripken youth baseball bat,4
and a pair of flexible soccer goalie gloves. All three items were sold in a single
transaction at the Nike outlet store at 11:38 a.m. on March 7.5 The purchaser paid in
cash.
At 12:27 p.m., defendant called Robyn, who was staying at her parents’ house in
Fair Oaks (near Sacramento), and told her he was getting ready to leave Las Vegas and
head home to Brea. He called her again at 12:50 p.m. At that time his cell phone was
4
The forensic pathologist testified that a Nike Ripken youth baseball bat
introduced at trial could have caused the blunt force injuries to Scherer and Abendroth,
and a ceremonial sword representative of those in Scherer’s collection could have caused
the stab and incisive wounds.
5
The presence of the warranty card at the murder scene suggests the bat was
newly purchased.
7
moving in a southwesterly direction, accessing a cell tower near Baker, California, just
over the border from Nevada and on the way to Barstow, California. At Barstow, some
60 miles southwest from Baker on Interstate 15, one can turn west and proceed to
Interstate 5 and north toward Pleasanton, or else continue south toward Brea. Defendant
has consistently claimed he drove south to Brea.6
After that last phone call, Robyn logged onto their bank’s Web site and realized
defendant had taken money out of their account. She immediately tried to call defendant
back but could not reach him. She texted and called him several times for the rest of the
day with no response from him. She also called the Brea land line repeatedly without
success. One of her text messages asked him why his phone had been turned off at
6:00 p.m. because she thought it was “not normal” for his phone to be off at that time. At
5:30 a.m. on March 8, Robyn finally received a text from defendant in which he told her
he felt “well rested” and ready to play bridge with his grandfather.7
A cell phone expert tracked defendant’s cell phone connection to cell towers
leading in a southwesterly direction from Las Vegas to Primm to Baker. The last
connection near Baker was at 12:50 p.m. The cell towers ceased tracking defendant’s
cell phone after that contact, suggesting the phone was either turned off or the battery was
dead. There was no further network connection to defendant’s cell phone until a call
was placed to his grandfather, Ernest Scherer, Sr. (Senior) at 6:36 a.m. the following
morning from Brea.8 All told, defendant’s phone was out of contact for 17 hours,
6
A sheriff’s deputy drove from Primm to defendant’s Brea home on March 21,
trying to replicate the route defendant most likely took. It took three hours and
twenty-six minutes.
7
There were no records of defendant’s text messages during March 7 to 8, 2008.
Defendant’s carrier, Verizon, maintained records of the content of text messages for only
three-to-five days and a record that a text was sent for only one year. The investigating
officers evidently did not subpoena the records within a year.
8
Pamela Watters Nichols (Watters), a new girlfriend defendant had met through
Craigslist after he and Solomon broke up, testified that she and defendant talked on the
phone on March 7 for ten minutes at about 3:00 p.m. The cell phone records show a call
between them at 12:35 p.m.
8
46 minutes. This was unusual, as defendant normally used his phone more or less
incessantly. Though there had been similar gaps in defendant’s phone’s connection to a
network in the past, no such lengthy gaps occurred from the middle of one day to the
morning of the next, or during trips from Las Vegas to Los Angeles.
Defendant showed up at his grandfather’s house in Laguna Niguel shortly after
7:00 a.m. on March 8. The two men were slated to play in a bridge tournament. At least
one of the bridge players thought defendant behaved normally during the tournament,
which lasted until sometime between 4:00 p.m. and 5:30 p.m., but his grandfather
testified defendant was “more subdued . . . than usual.”
The prosecution’s theory was that defendant drove from Las Vegas through Baker
and then north to Pleasanton on March 7. After he arrived he entered his parents’ house
and killed them. Then he drove home to Brea and on to his bridge game.
Defendant drove a 2001 red Camaro convertible with a black top. A security
video surveillance tape from the gatehouse at Castlewood showed a similar car entering
Castlewood at 8:27 p.m. on March 7 and leaving at 12:42 a.m. on March 8. Detectives
were aware that such a car appeared on the Castlewood videos by March 25, but they did
not tell defendant about the surveillance tape.
The prosecution ultimately produced an expert witness who testified the video was
of a fourth generation Camaro, meaning it was manufactured between 1993 and 2002.
However, there was a “freshening up” of the body style in 1998. A total of 8,281 bright
red Camaros were manufactured in the United States between 1998 and 2002.
A sheriff’s detective testified that, according to his analysis of DMV records, there
were 960 2001 V6 Camaro convertibles in California. Twenty-eight 2001 V6 Camaros
were registered in Alameda County. In counties adjoining Alameda there were 75 2001
V6 Camaros. It was not possible to narrow down the list by color of the vehicle. Only
one 2001 V6 Camaro (a gold or champagne color) was registered in Pleasanton. There
were 13 such Camaros registered in adjoining cities. Again, though, these were not
necessarily red.
9
The expert on Camaros testified that defendant’s car (which he saw after it was
impounded by the sheriff’s office) was the same car in the still photos taken from the
video surveillance tape. He made that judgment based in part on the wheels and
headlights, which were added after market. A prosecution expert on video enhancement
noted there were similarities in shape, body design, and tonality between the car on the
videotape and defendant’s car, but he testified it was not possible, even by enhancing the
surveillance video, to definitively identify the Camaro on the video tape as defendant’s.
On July 9 and 10, 2008, a pair of detectives (using a single driver) drove the route
they think defendant traveled, leaving Primm, Nevada at 12:09 p.m., driving 67.3 miles
per hour, and they reached the Scherer-Abendroth home at 7:42 p.m. The trip took seven
hours and 33 minutes. The detectives then drove (with the same driver) from the
Castlewood home to defendant’s house in Brea, leaving at 12:42 a.m. and arriving in
Brea at 6:36 a.m. The trip took five hours and 54 minutes at an average speed of
67.4 miles per hour. The driver of the vehicle stayed up until 8:00 p.m. the night
following the drive and did not feel tired until about 7:00 p.m.
Beginning March 24, 2008, defendant left his family and went into hiding. Robyn
continued to communicate with him for a time by telephone and email. She did not see
him, however, from March 23, 2008, until the day she testified at his trial nearly three
years later.
By late March 2008, defendant’s and Robyn’s bank accounts were dwindling, and
on April 4, 2008, the bank closed their accounts. Robyn sent defendant an email at the
end of May 2008 telling him the Brea house was in foreclosure. They owed $2,743.22 on
the second mortgage and would need $10,555.10 by June 15 to avoid additional fees.
The house was scheduled to be auctioned in August 2008. Robyn asked defendant to
either pay what they owed or to list the house for sale so they could recover some of their
equity. After April 2008, Robyn went on county assistance and food stamps, as well as
getting a part-time job, to support herself and Ernest IV.
Defendant was apparently in Oregon for at least part of the time he was evading
law enforcement. During this period, which lasted about 11 months, defendant placed
10
many personal ads on Craigslist under the heading “men seeking women.” Typically the
ads said something like this: “I enjoy the finer things in life. A perfect evening for me is
sharing a bottle of wine over an excellent dinner. I love the theater, and I love to travel.”
These types of ads appeared for the locales of Medford, Portland, Seattle, Denver,
Minneapolis, Rochester, Buffalo, Las Vegas, Baton Rouge, Memphis, and New Orleans.
Defendant was arrested in Las Vegas in late February 2009. In the meantime
Robyn had begun cooperating with law enforcement and had filed for divorce, which was
final in June 2010.
No physical evidence linked defendant to the crimes. DNA tests were run on
several blood samples collected from the crime scene and compared to known reference
samples.9 Because of the family relationship, when both Abendroth’s and Scherer’s
DNA were present in a sample, defendant and Catherine could not be excluded as
contributing to the sample. Many of the samples showed only family members as
sources of the DNA, and some were too small or too degraded to provide a usable profile.
One DNA sample from a shoe print (evidence item 13J) contained both a major
and minor donor, the minor profile being too small to provide usable information. That
sample, in particular, was controversial at trial in that a criminalist from the Alameda
County crime laboratory concluded the major profile was contributed by an unknown
source, not among the reference samples that had been collected by law enforcement. A
retesting by a different lab at the prosecution’s request showed that the major profile was
Abendroth’s. When the sample was returned to Alameda County, it was retested by a
different criminalist, with the same results obtained the first time at the county’s crime
lab. The sample profile was run through local, state, and nationwide DNA databases,
with no matches. The prosecution’s theory was that the unidentified profile could have
been a result of contamination, possibly contributed by a law enforcement source who
may have coughed or sneezed in the area, could have been tracked in on a first
9
Reference samples included the two victims, as well as defendant, Catherine,
Gray, Jill Lam, and Man San Lam.
11
responder’s shoes, or could have been literally something the cat dragged in, as a cat was
found running around the crime scene when the sheriff’s officers first entered. The
defense theory, argued vigorously in closing, was that it was DNA from the blood of an
unidentified killer.
In addition to the foregoing evidence, there was more circumstantial evidence
tending to a greater or lesser degree to point to defendant’s guilt in that it tended to show
defendant’s high-flying financial aspirations and his increasing financial desperation, as
well as his parents’ increasing concern about his gambling and financial troubles. The
evidence also suggested defendant spent time developing a murder plan. After the crimes
he showed knowledge of details not imparted by the sheriff’s office and an inclination to
destroy or cover up evidence. He also demonstrated bizarre and inappropriate behavior
after the murders. And finally, he offered a friend a bribe to testify in a specified manner.
We recite the main points emphasized by the parties in more or less chronological order:
 In late 2007 Scherer told Senior he feared defendant had become a compulsive
gambler and could not be trusted with any significant amount of money.
 In January 2008, Synhilde MacMillan, Senior’s housemate, showed defendant her
stock portfolio and he seemed impressed. She told him it had taken her a lifetime
to build it up, but “you want it next week.” Defendant smiled and said, “You got
that right.”
 There was evidence that Scherer had been trying to see defendant in February
2008 and defendant may have been avoiding him. Scherer came to visit at the
Brea house on February 20 or 21. Defendant told Scherer and Robyn he was
going to Las Vegas, but instead he stayed in a hotel in Commerce with Solomon.
Defendant and Solomon checked out on February 22 and drove to Las Vegas,
where they broke up amicably. On February 24, 2008, Scherer left Brea, telling
Robyn he was “going to Las Vegas to find his son.” Scherer and defendant met in
Las Vegas and drove back to Brea together. When Robyn asked defendant why
Scherer needed to see him so urgently, he said Scherer just wanted to catch up, as
he and Abendroth had been traveling for the past month.
12
 There was also evidence that Abendroth had experienced unusual bouts of
tearfulness around this time.
 On three occasions, including February 28, 2008 (before the murders), defendant
did an Internet search for “what foreign countries have nonextradition?”
 On March 8, before the bridge tournament, defendant arrived at Senior’s house
looking, according to MacMillan, a little disheveled. While watching a business
program on television, defendant shouted out three times, “Give me a chance!”
MacMillan and Senior, who also overheard the remarks, had never before heard
defendant make such a loud outburst.
 On March 9, 2008, defendant paid $140 to have his Camaro washed and waxed
and the interior detailed, though he had never before been meticulous about the
cleanliness of his car. He also followed his car through the wash tunnel, even
though he was told it was not allowed. No other customer had ever done that.
 On March 9, defendant had new tires put on his car, even though its tires were still
in good condition.
 The odometer reading on March 9 showed he had driven 2,647 miles since the last
reading less than three weeks earlier.
 On March 14, the date his parents’ bodies were discovered, defendant told friends
his parents’ house had been burglarized (though investigators had not made that
determination, and his sister, who informed him of their deaths, had not told him
there had been a burglary).
 Although he sounded like he was crying during the phone call in which Catherine
informed him of their parents’ deaths, within fifteen minutes he sounded
“detached” and “level-headed” when he told Watters and Kraus about the murders.
 Just over an hour after the phone call from Catherine, defendant called Ralph
Rudd, a professional gambler and bookie to whom he owed $31,500, and told
Rudd he had “good news and bad news.” The good news was that he would soon
13
be able to pay back the debt. The bad news was that his parents had been brutally
murdered. He did not sound emotional.
 Defendant was in Las Vegas when he received the phone call from Catherine. He
then drove directly to Pleasanton from Las Vegas. A cell phone expert tracked his
phone from Las Vegas to Pleasanton and estimated the trip took six hours and
33 minutes.
 On March 15, while in the Bay Area, defendant opted to stay with a bachelor
friend, while Robyn, Ernest IV, Oesterle, Catherine, Gray, and their children
stayed in the home of Alameda County Superior Court Judge Joseph Hurley and
his wife, Linda, who was a good friend of Abendroth’s.
 Beginning on March 15 (the day after the bodies were discovered), defendant
showed a determined and pronounced interest in getting access to the Castlewood
house so he could get his hands on his parents’ wills. He also tried to enlist Judge
Hurley’s assistance, and he went to Scherer’s bank trying to get into the safe
deposit box.
 Even though the officers had not told defendant exactly how his parents were
killed, defendant said during a sheriff’s department interview on March 16 that it
“sounds like they were bludgeoned to death, they were hit in the head with a
baseball bat.”
 On March 15 or 16 defendant went for a walk with Oesterle and told her he
thought the police would “come after” him for the murders because he was an
heir. When she said he could not possibly have done something like that, he
pumped his fist in the air and said, “Yes, I knew it!” When Oesterle looked at
him, his face “changed from this big grin to a perfectly flaccid face,” which she
found “very odd.”
 On March 17, Mascio learned from a friend at a casino that defendant’s parents
had been murdered. When he called defendant to offer his condolences, defendant
seemed “nonchalant and kind of matter of fact about the details.” When Mascio
14
asked defendant who had killed them, defendant said the police did not know, “but
I have an airtight alibi.”
 On March 17, 2008, defendant asked Robyn to delete the text messages she had
sent him during the 18 hours his phone had not been reachable, and she complied.
 On March 18, Solomon happened to be in San Francisco on business, and
defendant took her out for dinner at the Carnelian Room, paying $446 for dinner
and wine on his secret credit card. Defendant wanted to stay in Solomon’s hotel
room, but she refused. Defendant still did not tell Solomon he was married.
 Also on March 18, defendant called Mascio and asked to borrow another $30,000
to $40,000 to pay off debts to other gamblers. He said he could pay back the
money after his inheritance from his parents came through. Mascio turned him
down because defendant “seemed a little too risky credit wise.”
 On the night of March 20 defendant went out to a piano bar with two male friends.
After midnight he sent a cheerful text message to Solomon about the outing and
later went to an Irish pub. Robyn was not with him.
 The funerals for Scherer and Abendroth were held on March 22. Oesterle paid for
the services and was later reimbursed by the Victims Compensation Board and the
estate. Defendant gave her no money for the funerals. He told her handling the
estates should be easy because Catherine did not care about money and he already
had money.
 After the funerals, Oesterle, defendant, and Robyn walked through the Castlewood
house without any officers present. Defendant pointed out where Abendroth’s
body had been found and pointed to some indentations in the wall, saying,
“Somebody was swinging something.”
 On the night of the funerals, Robyn and defendant drove back to her parents’
house in Fair Oaks in separate cars. After learning from Robyn by telephone that
the police had searched the Brea house and were then at Robyn’s parents’ house,
defendant suggested they stop in Fair Oaks and pick up a bottle of wine. They
15
stopped at Raley’s, and Robyn saw defendant leave a pair of relatively new
Rockport shoes, with a distinctive design on the soles, in the parking lot. She went
back a few days later to look for the shoes, but they were not there. She told the
detectives about this incident on April 1, 2008, and the deputies thereafter
retrieved the shoes from Raley’s lost and found. Forensic testing showed the
presence of defendant’s DNA inside the shoes, but there was no blood evidence or
other DNA found on the shoes.
 Defendant’s Camaro was seized by the sheriff’s office on the evening of
March 22. A search of the vehicle turned up a map of the western United States,
defendant’s passport, a Lending Tree letter, a knife, one pair of Speedo shoes, two
pairs of golf shoes, and a golf bag containing clubs and two sex toys.
 On the evening of March 22, when Robyn’s father offered to let defendant choose
a movie to watch on DVD, defendant chose “Hitman” from an extensive movie
collection.
 On Easter Sunday, March 23, defendant told Robyn that he was going away for a
while. He asked Robyn to meet him outside a comedy club in Hermosa Beach
over Memorial Day weekend. He told her to wear sunglasses and to have them on
her face if she felt she was being followed, but to hang them on the front of her
shirt if she was not being followed.
 On March 24, defendant asked a casino host in Commerce to borrow $10,000. He
said he needed the money because he had just paid for his parents’ two funerals.
He promised he could pay it back in a few months because he would soon inherit
over a million dollars. The host gave defendant two $5,000 chips, which he
immediately exchanged for cash and left the casino.
 On the same date defendant withdrew $2,000 from his and Robyn’s bank
accounts.
 On March 24 or 25 defendant began driving to Dallas to see Solomon, who was
there on business. She warned him it would “look bad” if he ran from the police
16
but said he was welcome to join her if he got his own hotel room. She was called
by a detective in the meantime and learned for the first time that defendant was
married and had a young child. When she confronted defendant, he reassured her
he was married “in name” only. He told her he would soon be getting about
$3 million and offered to pay off her car loan. He continued driving to Dallas,
where he stayed in a separate hotel room until March 27. On that date he returned
to Las Vegas, telling Kraus he left Texas because Solomon had not been happy to
see him.
 Defendant talked to Oesterle on the phone on March 25 and told her he was going
into hiding. She had previously given defendant $5,000 of her own money to
retain an attorney, but she told him if he ran from the law she would no longer pay
for the attorney. He initially said he would return to Robyn but two days later
again told her he was going into hiding because the police were asking
Castlewood residents if they had seen a red Camaro on the night of the murders.
Oesterle warned him that he would look guilty if he ran away. The next day she
asked the lawyer to return her retainer.
 Defendant talked to Mascio on March 26 and told him the police were looking at
him as a suspect because there was an inheritance involved. Mascio suggested if
that were true then Catherine would be a suspect, too. Defendant said she had an
alibi but he did not, which contradicted what he had told Mascio the week before.
Defendant also told Mascio, if the authorities questioned him, not to tell them he
owed Mascio $20,000. Mascio refused to go along with that request.
 On March 27 the detectives told Kraus defendant had a wife and child, and he
teared up. When he saw defendant that night he told him he no longer wanted to
socialize with him.
 Sometime after March 27, defendant told Kraus “his mother went quickly, but his
father put up a struggle or fight.”
 On April 11, after Robyn began cooperating with the sheriff’s office, she
participated in a telephone conversation with defendant while one of the detectives
17
sat next to her and wrote down questions for her to ask. She questioned defendant
about the Camaro seen on Castlewood’s video surveillance tape; he responded
with silence, denials, and requests that she provide him with further details about
the video. She exaggerated the clarity of the video and suggested the driver
looked like defendant in order to try to get him to talk. Defendant refused to
discuss the video further, expressing the belief that the police were listening to the
phone call, and they were. Robyn told defendant she had consulted a divorce
attorney, and defendant asked her to remain married to him in part because, he
said, a wife could not be forced to testify against her husband. He also expressed
remorse over the “double life” he had been living and said all he really wanted
was to reunite with Robyn and Ernest IV as a family. Robyn said she needed time
to think. A recording of the call was played for the jury.
 Within a week, defendant started posting a new barrage of Craigslist ads under the
heading “men seeking women.”
 Scadden continued to sponsor defendant in poker tournaments after he went into
hiding but never again made money doing it. Defendant told Scadden his parents
had been beaten to death and his father had been found in a fetal position.
(Defendant had declined to see photographs of his parents’ bodies when
interviewed by sheriff’s detectives.) Scadden loaned approximately $15,000 to
defendant after the murders for bail, hotels, gambling, and rent; neither those loans
nor other sums defendant owed Scadden were ever repaid.
 Defendant’s computer showed that on April 20 and 24, he searched for Web sites
offering false identification, as well as proxy servers that would allow him to send
e-mails while masking the location from which they were sent.
 On April 26, 2008, defendant met a woman named Katie Flash in New Orleans
who had responded to one of his Craigslist ads. His ad listed his name as “Bill
Franks,” and that is how he introduced himself. He told her over dinner in a
matter-of-fact way that his parents had been killed in a home invasion robbery in
18
the past eight months. He said he stood to inherit from them on his 30th birthday
in July and estimated their estate was worth $4 to $4.5 million.
 He told Flash his parents had been killed in their pajamas and the house had been
ransacked, but his father had a lot of cash on him that was not taken. Some things
had been taken, but defendant told Flash it “really wasn’t a robbery.”
 Defendant and Flash went to the Jazz Fest together and he left his parka containing
$7,000 in cash at their seats while they walked around. Defendant told Flash he
was not worried about getting robbed.
 Defendant told Flash he was a freelance writer working on a novel about a
professional gambler who lives in southern California and whose parents are
murdered in northern California. His wife, who found out he was cheating on her,
leaves him while he is driving home from Las Vegas at the time of the murders.
The fictional gambler is unjustly accused of murdering his parents. But defendant
assured Flash that the protagonist in the novel would track down the real killer and
be vindicated.
 Flash testified that defendant stacked furniture against his hotel room door to try to
secure it and kept a 25-foot bungee cord near the window, in case he needed to
make a “quick escape.”
 Defendant, acting through attorneys, tried several times to access money from his
parents’ estate while he was on the lam.
 On June 1 Oesterle told defendant during a phone conversation that the family
wanted no further contact with him and specifically told him not to contact Senior.
 Defendant showed up unannounced at Senior’s house on Father’s Day, June 15.
Senior called the police. Among the things defendant told the responding officer
was that he would soon receive two life insurance checks for $150,000 each and
hoped to avoid foreclosure on the Brea house.
19
 On July 7 and 8, defendant also did computer searches for the “Hans Reiser trial” ,
and he watched videos of the Scott Peterson trial over and over again while
visiting Scadden in July 2008.
 Defendant’s hotel room in Las Vegas and his car10 were searched on July 11,
2008, and a passport application was found, along with a U.S. Department of State
document relating to lost or stolen passports. The officers also found three knives
in a box designed to hold four knives. In addition, they found a list that appeared
to be talking points for a conversation with Robyn, including items such as “do
you think I’m dangerous,” “what have you told them,” “what have they told you,”
“what happened that Friday,” “seen any video,” and “I think they know where I
am.” Defendant explained on cross-examination that these were notes he used
during the April 11 phone call with Robin.
 In mid-August 2008, defendant offered $50,000 to Scadden to lie in court if
defendant were charged with the murders by claiming that someone to whom
defendant owed money had threatened defendant and his family. Scadden initially
played along with defendant and suggested using Rudd’s name, as defendant owed
Rudd $31,500. On September 4, 2008, Scadden told the police about this
conversation with defendant.
The defense case
Defendant testified on his own behalf, asserting he was at home in Brea when the
murders occurred. The defense incorporated the explanation that he had first given the
police―that he could not have committed the crimes because he would not have had time
to drive from Las Vegas to Pleasanton, kill his parents and ransack their house, and then
drive back to Brea by 6:36 a.m. on March 8. And even if he had been able to physically
make that trip, he would not have had enough energy left to play in a bridge tournament
10
After his Camaro was seized, defendant asked Oesterle if he could borrow his
father’s car, a silver Honda. Oesterle agreed but required defendant to execute a
promissory note to the estate. Defendant ultimately sold the Honda for living expenses
while he was in hiding.
20
with his grandfather. He testified he had played “vigorous” bridge during the
tournament.
Defense counsel argued in closing that the investigation had focused exclusively
on defendant from early on, and the authorities failed to properly investigate other
potential suspects.
Third-party witnesses
Defendant also attempted to undercut the prosecution’s evidence regarding the
rarity of defendant’s car by putting on a defense investigator who testified there were
28 1998-2002 Camaros in Pleasanton, Dublin, Livermore and Castro Valley. In
Pleasanton there were eight. There was even a fourth generation (1999) red Camaro
registered near Castlewood, owned by Toby Baird. A Castlewood resident also testified
she regularly saw a red Camaro convertible parked in the club’s upper parking lot for
about a year prior to the murders and believed it belonged to a resident of the club.
Defendant also presented evidence of others who may have had a motive to kill his
parents, including Steven Shaffer, a poker-playing friend of Scherer’s. Shaffer had
borrowed $50,000 from Scherer to keep up the mortgage on his Santa Cruz condominium
and another $75,000 to fix up the property. The condominium was eventually lost to
Scherer by foreclosure. Shaffer expressed gratitude to Scherer and denied committing
the murders.
Hermann Welm, a poker-playing friend of Scherer’s, knew Scherer carried a large
amount of cash in a wad of $100 bills. He testified that the Castlewood house was hard
to find, so the killer must have been someone who knew Scherer and Abendroth. The
defense tried to show the killer could have been a follow-home from one of Scherer’s
poker games.
A public defender’s investigator testified that Jill Lam, a childhood friend of
Catherine’s, told him she had seen a gold bar in Scherer’s safe when she and Catherine
opened it a month or two before the crimes occurred, while Lam and her husband were
housesitting for Scherer and Abendroth. Lam testified about having attempted to open
the safe with Catherine, who thought she knew the combination, but Lam said the
21
investigator’s report was wrong. She and Catherine were not able to open the safe. Lam
had an alibi in that she was working on the date of the murders and spent March 8 with
her family. She drove a silver Corolla.
Lam’s husband, Man San Lam, also was called by the defense. He testified that
when he was housesitting for Scherer and Abendroth with his wife, he learned that
Scherer left the outer garage door unlocked, as well as the door from the garage into the
house. He confirmed his wife’s alibi. He said his wife had not told him about the safe
during the time they were housesitting.
A Castlewood resident testified there had been a suspicious fellow around the club
on March 8, 2008, trying to sell meat to the residents. Another Castlewood resident, who
shared a driveway with Scherer and Abendroth and could see into their house, claimed he
had seen a woman in their kitchen on March 9, 2008, thereby casting doubt on the police
theory about when the killings occurred.
Finally, defendant presented testimony of Arisa Kim, who had attended a trapeze
class in the Los Angeles area with him on March 10. After the class the two went to a
comedy club where defendant dropped his trousers at the comedian’s urging. Kim did
not see any cuts, injuries or bruises on defendant’s upper or lower body, either then or
when he was in a sleeveless shirt at the trapeze class. In addition, Detective Michael
Norton authenticated multiple photographs of defendant’s unclothed limbs and torso
taken on March 23, 2008, which evidently showed only a minor injury or sore on
defendant’s back.
Defendant’s testimony
Defendant also took the stand and testified about his background as an Eagle
Scout, soccer player, and active member of the Mormon Church through his high school
years. His father was a certified public accountant and real estate investor and his mother
taught accounting at California State University East Bay. He described a
family-centered upbringing in which the whole family often played cards together.
Nevertheless there was tension between his parents over Scherer’s consumption of
alcohol and his gambling. Defendant and Catherine also had a difficult relationship.
22
Defendant graduated from Brigham Young University with a bachelor’s degree in
economics.
He testified about the early days of his marriage to Robyn, describing how they
drifted apart until they were leading “parallel lives.” He claimed he wanted to divorce
Robyn to be with Solomon, but his father talked him out of it. He also said he broke up
with Solomon in September 2007 but they got back together on New Year’s Eve in Las
Vegas. They broke up finally in February 2008.
Defendant also acknowledged that his mother had become very upset with him
when he told her sometime in his mid-twenties that he was no longer a practicing
Mormon. She also disapproved of his poker playing.
Defendant started playing poker when he was 21. He described his early days as a
professional poker player beginning in 2003. Defendant claimed he was still winning at
gambling in September 2007. He admitted he began “struggling” at poker in January
2008 and had to borrow $20,000 from Mascio. He claimed the text messages he sent to
his friend about sports bets in March 2008 may have been his view of the likely outcome
of the games and not actual bets. He also could have exaggerated the amount of the bets.
He did admit that in March 2008 he was carrying the most debt he had ever
carried, but he also testified he had more assets than ever before, and he therefore
believed he was not having financial problems. He admitted he had lied to police about
the Brea house, his success at gambling, and his financial situation in general during
interviews. He claimed he did so because he did not want further police suspicion
focused on him. On redirect, he explained that he had enough equity in the Brea house
($146,000) and in the three cars owned by him and Robyn ($21,000 to $23,000) to pay
off his $40,000 to $60,000 credit card debt, the $20,000 he owed Mascio, and $10,000 he
owed to others.
He admitted, however, that he had tried to refinance the Brea house in February
2008 and had not been successful. He claimed, though, that neither Robyn nor Lucero
23
had told him the refinance application had been denied prior to his parents’ murders.11
He testified that on March 10, Robyn told him the loan was still in progress. Throughout
the month of March he remained ignorant of the status of their refinance application.
Defendant said he withdrew $500 from his ATM on March 6, 2008, so he could
pay for the gun he was hoping Kraus would buy him. He had originally begun trying to
purchase a gun in 2006 in Mexico. He wanted to buy a gun somewhere outside of
California because he disagreed politically with the California waiting period for gun
purchases and the registration requirements. He wanted an unregistered gun to comport
with his political philosophy.
Defendant spent the evening of March 6, 2008, with Watters. He stayed up late
that night, drinking until 3:15 a.m. or 3:30 a.m. He did not tell Watters he was married.
On March 7 he was hung over when hotel housekeeping awakened him. He left
Caesar’s Palace without checking out, as was his custom. He took another $500 out of
his ATM. He could not recall why he needed $500 on March 7 when he had $500 left
over from March 6. He thought he probably withdrew the second $500 to play craps or
place a sports bet.
It was his custom to stop in Primm to get gas and food, but he could not recall
whether he stopped there on that trip. He was certain, however, that he did not go to the
factory outlet mall in Primm where the Nike store was located, and he denied buying
shoes, soccer gloves, or a baseball bat at the Nike store.
During the beginning of his drive from Las Vegas to Brea on March 7, defendant
said he called his grandfather to assure him he would be at a bridge tournament in which
they planned to compete on March 8, but Senior did not remember such a call. Cell
phone records confirm a call was made by Senior to defendant on that date. Defendant
claimed he then drove home to Brea, arriving between 4:00 p.m. and 6:00 p.m., when it
11
This contradicted the testimony of the refinance mortgage broker, as well as that
of a real estate broker friend of Scherer’s, who testified that on the morning of March 7
Scherer told him defendant’s efforts to refinance his house had been unsuccessful and
asked if he could perhaps help defendant obtain a loan.
24
was still daylight. He could not recall the exact route he took to Brea that day, but his
usual route was to take Interstate 15 to Highway 210, to Highway 57 south.
Defendant responded to the prosecution’s proof about his cell phone being dead
for nearly 18 hours by explaining that he had been having a battery problem with the
phone ever since mid-January 2008, when he was pushed into a swimming pool by Kraus
while fully clothed.12 His cell phone went in with him, and he claimed the phone had
been plagued by battery problems ever since. Nevertheless, he claimed he called Robyn
twice and Watters once on his way home on March 7 and sent additional text messages.
He insisted he was using his phone most of the way home. Defendant testified that he did
not notice, on his trip from Las Vegas to Brea, that his phone had gone dead. He told the
detectives on March 18 that it died when he was fairly close to home.
Once back home, he had something to eat, watched television, and fell asleep
early. He noticed his cell phone had gone dead and put it on the charger. He set the
alarm for 5:30 on the morning of March 8. He turned his phone off while he was
sleeping and testified this was his normal routine. He did not turn his cell phone back on
until the morning of March 8. He explained his failure to answer Robyn’s calls to the
Brea land line by saying he would never answer that phone because the only people who
called it were telemarketers. Despite having charged his phone, he took a charger with
him when he went to meet his grandfather for the bridge tournament because the phone
had gone dead the day before.
Defendant claimed it was Robyn’s idea for him to get work done on his car on
March 9. She urged him to get it done while he was in town because she knew his check
engine light was on, and he was taking a break from high stakes poker until the refinance
came through. He denied that he had previously been less concerned about the
cleanliness of his car. He claimed it was “normal” for him to walk through the car wash
with his car. He also claimed he put new tires on his car because on the last visit to
12
The cell phone expert testified this would be damaging to the phone but should
not have affected the battery life.
25
Big O Tires they had shown him bald spots on his tires where the steel fibers were
showing through.13
Defendant continued to try to cast suspicion on Rudd by testifying he had received
a very nasty voice mail message from Rudd on March 14, 2008. Defendant’s debt to
Rudd of $31,500 was never repaid, but Rudd denied killing Scherer and Abendroth.
Defendant claimed the debt was really owed by Scadden to Rudd for a gambling debt in
which defendant simply acted as a middle man.
When defendant talked to Catherine on March 14 and learned their parents had
been killed, she told him the house had been “ransacked” and that’s why he told friends
the place had been burglarized. He pressured the police to let him into the house on
March 15 because he needed to get contact information for relatives to let them know
about the funerals and he wanted to help the police identify any missing items. He
claimed he did not ask about the wills at that time.
He said the reason he stayed with his bachelor friend while the rest of his relatives
stayed with the Hurleys was because the Hurleys had only one bed for his family.
He denied going for a walk with Oesterle on March 15 or 16 and denied her entire
account of the fist-pumping incident.14
In an interview with detectives on March 16, defendant said it sounded like his
parents were “bludgeoned to death” with a “baseball bat.” He admitted at trial that no
13
This contradicted the testimony of Senior, who had accompanied him to
Big O Tires in January or February 2008 and inspected the Camaro’s tires, as was his
habit, having been an automotive engineer. He testified they were in “fairly good shape.”
A Big O Tires employee also testified there had been no recommendation to replace the
tires at the time of the previous service and the tires he replaced on March 9 were in good
condition.
14
The defense also sought to impeach the testimony of Oesterle, Senior and
MacMillan by establishing that in early police interviews they had failed to report
circumstances that they testified at trial appeared suspicious to them. To that end
defendant called Detective Norton, who testified that in an interview on March 16,
Oesterle had not mentioned the fist-pumping incident, and during their initial interview
Senior and MacMillan had not mentioned any odd behavior or appearance on the
morning of the bridge tournament.
26
one had told him they were killed with a baseball bat, but testified he had already been
made aware they had been bludgeoned before he made that comment.
He falsely told the police that he had had a good year financially in 2007 because
he did not want them to think he needed cash. He also told them he did not owe anyone
any money aside from mortgages and credit card debt. These were admittedly lies.
Defendant claimed Robyn’s deleting the text messages on her phone was her own
idea, not his. He testified he left his Rockport shoes in the parking lot of Raley’s on the
day of his parents’ funeral by accident. He denied choosing to watch “Hitman” from
Robyn’s father’s movie collection and said he selected “Lady in the Water” instead.
Defendant explained he had been searching the Internet for countries without
extradition because he and Robyn wanted to take a trip together and he did not want to
get arrested in a foreign country and sent back to California. (This did not explain his
search prior to the murders.)
Defendant admitted he lied to the host at the Commerce casino when he said he
had paid for his parents’ funerals. He claimed he intended to use the $10,000 he
borrowed to pay bills.
He also acknowledged he had lied to many women in order to carry on
relationships with them. He admitted he lied to the IRS on his tax returns; he really made
more money gambling than he reported to the IRS. Of course, he had lied to his wife
about Solomon and lied to Solomon about being single. He also told police, when asked
whether there were any problems in his marriage, that he and Robyn got along “very
well.” He admitted this interview occurred just days after he had been posting Craigslist
ads, dating Watters, and dating Kim.
He testified he intended to tell Solomon that he was married, but the detectives
beat him to it. When she confronted him he told her the truth. He did not tell her it was a
marriage “in name only.”
He also intended to tell Kraus he was married, but the detectives beat him to it.
He testified he became concerned when he heard on the radio that the police were
looking for anyone who had seen a red Camaro at Castlewood on the night of his parents’
27
murders. There was a $25,000 reward for information leading to the killer’s arrest and
conviction, and he worried that someone would take the video of his car entering
Castlewood the preceding Christmas and change the date on the video to frame him and
collect the reward. On cross-examination he admitted that he and Robyn had driven her
car to his parents’ house the preceding Christmas, not his Camaro. He still insisted that
he could have been recorded entering and leaving Castlewood on a different occasion,
perhaps after the murders, and someone could have falsified the videos to make them
appear they were recorded on March 7 and 8.
Defendant described his time on the lam, saying he camped out near Sacramento
at first, then rented a room in Medford, Oregon for three weeks. He drank a lot of
alcohol and ran a computer search for anything that came to mind, including countries
without extradition. He supported himself with the $10,000 he had borrowed in
Commerce, an additional $5,000 chip he had from the Bellagio, and $2,000 he had
withdrawn from the couple’s bank accounts on March 24. While in Oregon, he ran
Craigslist ads all over the country because he did not know where he was going next.
In late April he drove from Oregon to Louisiana to attend the Jazz Fest, stopping
at casinos along the way to earn money playing blackjack. He spent about two weeks in
New Orleans, stayed a few nights in Mississippi, then returned to Las Vegas in late May.
He stayed in Las Vegas for six or seven weeks. In July he stayed with Scadden for a
week in Ogden, Utah. He moved to Mesquite, Nevada in August 2008, where he met a
woman named Kim Olson. He was living with Olson in her apartment in Las Vegas at
the time of his arrest.
In about January 2009, defendant filed, through his lawyer, a motion to attempt to
get his share of his parents’ estate. The hearing was scheduled for February 27.
Defendant was arrested on February 23, 2009.
Defendant was aware when he was a child that his parents had made arrangements
for him to share in the inheritance of their assets in the event of their deaths, but he would
not get the money until he turned 30. He claimed, however, he had forgotten all about
that prior to his parents’ murders.
28
Defendant denied killing his parents, denied that either he or his car were in
Pleasanton on March 7 or 8, 2008, denied going to the Nike outlet store in Primm, and
denied owning a pair of Nike Impax Tomahawk shoes or a Nike Ripken youth baseball
bat. He denied seeing or talking to MacMillan on March 8, and denied he engaged in the
outburst she described while watching television. He denied telling Scadden on March 7
that no bets could need to be placed on March 7, denied telling Scadden not to talk to his
father about his finances, and denied he offered Scadden $50,000 to lie to the police
about a threat supposedly made by Rudd.
Rebuttal
Another Castlewood resident, who had “car recognition” as a childhood hobby,
testified she had never seen a red Camaro convertible in the club’s upper parking lot. She
had, however, seen a red Acura NSX with a black roof parked there.
Baird testified in rebuttal that his 1999 Camaro was not the car he normally drove
in March 2008. Baird testified he would not have been driving his Camaro in
Castlewood for any reason between 8:00 p.m. on March 7 and 1:00 a.m. on March 8.
Robyn’s father confirmed that defendant had chosen to watch “Hitman” on DVD
on March 22, 2008, and testified he did not own the movie, “Lady in the Water.”
A family friend who had been defendant’s scout leader testified that when
defendant was a teenager he said his father had set up a large trust fund, which defendant
would get when he was 30 years old. Defendant said that was “too long to wait.”
Defendant thought he should get the money by age 18, or 21 at the latest.
As for the cell phone dead time, the prosecution produced evidence in rebuttal that
the moisture sensor inside defendant’s cell phone had not been activated.
PROCEDURAL HISTORY
On September 2, 2009, defendant was charged by information with two counts of
murder with use of a deadly weapon, to wit, a “sharp instrument” (Pen. Code, §§ 187,
subd. (a), 12022, subd. (b)(1)),15 and special circumstances of murder for financial gain
15
Further statutory references without code designation are to the Penal Code.
29
and multiple murders. (§ 190.2, subd. (a)(1) & (a)(3).) The prosecution did not seek the
death penalty.
The case was the subject of intense media attention and publicity, and was
assigned for trial before the Honorable Jeffrey Horner, a most experienced and most
respected judge. As will be seen, Judge Horner (hereinafter, for convenience, the court)
presided over the lengthy trial with great care and concern, conscientiously and carefully
analyzing each of the issues that arose.
Jury trial commenced on November 1, 2010, and continued for some 55 days. On
March 28, 2011, the jury found defendant guilty on both counts, found he personally used
a deadly weapon, and found the special circumstance allegations true.
On May 20, 2011, the court sentenced defendant to two consecutive terms of life
in prison without possibility of parole, plus two years for the weapon use. It imposed
several fines and fees, including a $10,000 parole revocation fine, suspended pending
successful completion of parole.
Defendant filed a timely notice of appeal.
DISCUSSION
Refusal to conduct voir dire on jurors’ opinions about gambling and infidelity
Factual background
Defendant first contends that the trial court committed reversible error by refusing
to conduct voir dire on certain questions suggested by the defense relating to jurors’
attitudes about gambling and womanizing.
The court employed written jury questionnaires for the voir dire in this case, and
solicited input from both counsel as to areas it should cover, including questions
regarding the prospective jurors’ feelings about gambling:
“During the case, you may hear that Mr. Scherer earned his living playing poker.
Is there anything about this way of earning a living that will cause you to be unfair to
Mr. Scherer or to be prejudiced against him?
“If so, please explain:
30
“Have you ever played poker?
“Have you ever played poker online?
“Do you watch poker tournaments or games on television, such as the World
Poker Tour, the World Series of Poker, or High Stakes Poker?
“Do you have any opinions about the players that you see on televised poker?
“Do you gamble?
“What games of chance have you played?
“Have you played craps?
“Do you know other people who gamble?
“Do you have opinions on whether gambling is moral?
“What are your opinions?
“Do you have opinions on whether gambling should be legal?
“What are your opinions?
“Do you have opinions about people who gamble?
“What are your opinions?
“Do you have any bias or prejudiced [sic] against people who gamble?
“If so, please explain?
“Have you been to Las Vegas?
“Do you possess any special knowledge about Las Vegas that we should know
about?”
Defendant also proposed the following questions be asked about his extra-marital
affairs:
“During the trial, you may hear that Mr. Scherer had extramarital affairs, or met
women for dates through CraigsList and other sites while he was married. Would this
fact alone prejudice you against Mr. Scherer or make you unable to be fair to him?
Would this fact alone cause you to evaluate his testimony, should he testify, differently
than other witnesses? If so, in what way?”
31
The trial court said it was not inclined to give defendant’s proposed questions
because “it’s a pinpoint questionnaire, and more importantly it asks jurors to prejudge
evidence in the case. . . .”
The final version of the written questionnaire was 22 pages long. An entire
section of the questionnaire was entitled “Gambling,” and asked the following questions:
“Have you, or a family member, or anyone you know, ever had any experience
with gambling? Yes ____ No ____ If yes, who and under what circumstances:
“Have you, or a family member, or anyone you know ever had any specific
experience with poker, craps, or sports book betting? Yes ____ No ____ If yes, who
and under what circumstances.” Beneath each question were three blank lines for
prospective jurors to elaborate on their experiences. The questionnaire also inquired
whether the juror or a family member had ever been to Las Vegas or Primm. No other
questions about gambling were asked, and no questions were asked about infidelity or
extramarital affairs.
The issue was raised again when the court presented its proposed questionnaire to
counsel, at which time the defense argued it was entitled to ask questions that go to
peremptory challenges and specific doctrines or things controversial to the case, while
noting that people have strong opinions about gambling and marital infidelity, and
arguing that knowledge of this bias is appropriate information to consider. But citing
People v. Carasi (2008) 44 Cal.4th 1263, 1286 (that a “defendant cannot insist upon
questions that are ‘ “so specific” ’ that they expose jurors to the facts of the case. . . .”),
the court again found that questions about gambling and marital infidelity might cause
jurors to prejudge the evidence. After reviewing a number of recent cases, predominantly
capital cases, the trial court ruled that defendant’s proposed questions were inappropriate
because marital infidelity and gambling were not “grossly inflammatory issues,” and the
questions were “designed to have jurors prejudge evidence in the case . . . .”
The law
Defendant claims these limitations on voir dire amounted to a constitutional
infringement because they prevented him from intelligently exercising his peremptory
32
challenges and thereby deprived him of an impartial jury, relying largely on People v.
Williams (1981) 29 Cal.3d 392 (Williams).
The short answer to defendant’s argument is that Williams is no longer controlling
on this point. (See People v. Mendoza (2000) 24 Cal.4th 130, 168, fn. 5; People v. Leung
(1992) 5 Cal.App.4th 482, 493-494.) In fact, Williams is directly at odds with Code of
Civil Procedure section 223,16 adopted as part of Proposition 115 in 1990, which limits
voir dire in criminal cases to discovering grounds for a challenge for cause.
Beyond that, even Williams left “intact the considerable discretion of the trial
court to contain voir dire within reasonable limits.” (Williams, supra, 29 Cal.3d at
p. 408; see also People v. Ramos (1997) 15 Cal.4th 1133, 1158.) Indeed, both parties
agree the appropriate standard of review is abuse of discretion (People v. Jenkins (2000)
22 Cal.4th 900, 990; People v. Taylor (1992) 5 Cal.App.4th 1299, 1314), and in light of
Code of Civil Procedure section 223 it would be difficult to argue otherwise. (See fn. 16,
ante.)
“ ‘[T]he adequacy of voir dire is a matter “ ‘ “not easily subject to appellate
review. . . .” ’ ” [Citations.] The applicable standard is a demanding one: “Unless the
voir dire by a court is so inadequate that the reviewing court can say that the resulting
trial was fundamentally unfair, the manner in which voir dire is conducted is not a basis
for reversal. [Citation.] . . . ” [Citations.] [¶] . . . “The right to voir dire, like the right to
peremptorily challenge [citation], is not a constitutional right but a means to achieve the
end of an impartial jury. [Citation.]” ’ [Citations.]” (People v. Fuiava (2012) 53 Cal.4th
16That section governs voir dire in criminal cases and provides in relevant part:
“Examination of prospective jurors shall be conducted only in aid of the exercise of
challenges for cause.
“The trial court’s exercise of its discretion in the manner in which voir dire is
conducted, including any limitation on the time which will be allowed for direct
questioning of prospective jurors by counsel and any determination that a question is not
in aid of the exercise of challenges for cause, shall not cause any conviction to be
reversed unless the exercise of that discretion has resulted in a miscarriage of justice, as
specified in Section 13 of Article VI of the California Constitution.” (Code Civ. Proc.,
§ 223, italics added.)
33
622, 653-654.) And, of course, the purpose of voir dire is to ensure a fair and impartial
jury―one composed of “indifferent” jurors― not one favorable to the party proposing
additional voir dire. (Press-Enterprise Co. v. Superior Court of Cal. (1984) 464 U.S.
501, 510, fn. 9; Irvin v. Dowd (1961) 366 U.S. 717, 722.)
Moreover, the rule has often been “reaffirm[ed] that it is not ‘a function of the
examination of prospective jurors to educate the jury panel to the particular facts of the
case, to compel the jurors to commit themselves to vote a particular way, to prejudice the
jury for or against a particular party, to argue the case, to indoctrinate the jury, or to
instruct the jury in matters of law.’ [Citation.] Therefore, a question may be excluded if
it appears to be intended solely to accomplish such improper purpose.” (People v.
Williams, supra, 29 Cal.3d 392, 408, fn. omitted; see also People v. Carter (2005)
36 Cal.4th 1114, 1178; People v. Cash (2002) 28 Cal.4th 703, 721-722.) The law is
“clear that ‘[i]t is not a proper object of voir dire to obtain a juror’s advisory opinion
based upon a preview of the evidence’. . . . [Citation.]” (People v. Butler (2009)
46 Cal.4th 847, 860.) Rather, a proper inquiry must be “ ‘ “directed to whether, without
knowing the specifics of the case, the juror has an ‘open mind’ ” ’ ” on the issues
presented. (Id. at p. 859.)
Analysis
The Attorney General cites several death penalty cases in which the issue was the
extent to which the specific facts of the case were either allowed or disallowed as the
subject of voir dire. (People v. Solomon (2010) 49 Cal.4th 792, 837-840; People v. Tate
(2010) 49 Cal.4th 635, 654-660; People v. Carasi, supra, 44 Cal.4th at p. 1286; People v.
Zambrano (2007) 41 Cal.4th 1082, 1121; People v. Cash, supra, 28 Cal.4th at p. 719.)
The trial court, too, relied upon those cases.
The outcome of those cases turned on the degree to which the subject upon which
the defendant desired voir dire was so inflammatory as to cause a “reasonable”
“otherwise qualified” juror (based on his or her views on the death penalty) to vote
“invariably” for death, without regard to mitigating evidence. (Compare Cash, supra,
28 Cal.4th at pp. 717, 719-720 [fact that defendant had killed both his grandparents as a
34
teenager was so inflammatory that he should have been allowed voir dire to determine
whether the fact that he committed murder previously (without revealing the victims were
his grandparents) would influence the jurors to vote for death without regard to
mitigation] with People v. Zambrano, supra, 41 Cal.4th at pp. 1122-1123 [that defendant
dismembered the victim after killing him was not so inflammatory that it would cause
such an invariable reaction on the part of jurors; voir dire was properly denied] and
People v. Tate, supra, 49 Cal.4th at pp. 642, 658-660 [defendant had cut off murder
victim’s finger to steal her wedding rings; not proper voir dire] The court in Cash noted
that the matter must be of such an inflammatory nature that a juror subject to its influence
could be challenged for cause. (Cash, supra, 28 Cal.4th at pp. 719-720.) Moreover,
denial of fact specific voir dire is improper only if the denial was “categorical,” with no
questions being allowed on the subject. (People v. Carasi, supra, 44 Cal.4th at p. 1286;
People v. Solomon, supra, 49 Cal.4th at pp. 839-840.) As these cases demonstrate, the
court has repeatedly distinguished Cash in the years since it was decided. (See also,
People v. Valdez (2012) 55 Cal.4th 82, 164-169 [fact that two prior victims killed by a
codefendant were children not so inflammatory as to require fact specific voir dire].)
Applying corollary standards, the defendant’s proposed questions were proper
only if the subject matter was so inflammatory that it would lead a reasonable, otherwise
qualified juror to vote to convict invariably, regardless of the evidence, and only if he
was allowed no voir dire on the subject. We cannot say the evidence of gambling and
womanizing met that standard or otherwise justified what the court called “pinpoint” voir
dire questions highlighting specific evidence in the case for the jury to “prejudge.”
Moreover, there were questions about gambling on the jury questionnaire. The trial court
did not abuse its discretion in denying additional voir dire.
We reject defendant’s analogy to Ham v. South Carolina (1973) 409 U.S. 524,
which involved a trial court’s refusal to allow voir dire on jurors’ racial attitudes in a case
involving a drug charge against a bearded local Black man known to be active in the civil
rights movement. (Id. at pp. 524-525.) The case involved issues directly linked to the
right to equal protection under the Fourteenth Amendment. Ham’s holding―that
35
questions about racial prejudice should have been allowed―is a far cry from that which
defendant asks us to adopt. (Id. at pp. 526-527.) Furthermore, the Supreme Court
resolved the question of beards otherwise, holding voir dire about jurors’ attitudes toward
bearded individuals was not a matter of constitutional right. (Id. at p. 528.) Like the
questions about beards in Ham, defendant’s proposed voir dire did not involve racial
attitudes or anything else rising to the level of a constitutional right or touching upon
such rights. (Ham, supra, 409 U.S. at p. 528.) Nothing in Ham compels us to reverse
defendant’s convictions. The proposed voir dire on gambling and extramarital affairs
was closer to the question of beards in Ham than it was to the question of racial prejudice.
The lower federal court cases cited by defendant are materially
distinguishable―and in any event not binding on us. (People v. Clark (2011) 52 Cal.4th
856, 967.) United States v. Dellinger (7th Cir. 1972) 472 F.2d 340 (Dellinger), involved
the criminal prosecution of Vietnam War protesters at the 1968 Democratic Convention
for conspiracy to incite and participate in riots. (Id. at pp. 349-350.) The protesters
claimed their actions were allowable under the United States Constitution. (Id. at p. 354.)
The court found it was reversible error to disallow voir dire on, among other subjects,
jurors’ attitudes about protests against the war in Vietnam and about youth culture in
general because of the deeply divisive nature of those issues in our country at that time.
(Id. at p. 368-370.)
Notably, the Seventh Circuit was interpreting the scope of voir dire under the
federal rules, not that required as a matter of constitutional right.17 (Dellinger, supra,
472 F.2d at p. 368.) Dellinger adopted the rule that defendants were entitled to conduct
17
The federal courts apply a different voir dire statute, which provides in relevant
part as follows: “(a) Examination. [¶] (1) In General. The court may examine
prospective jurors or may permit the attorneys for the parties to do so. [¶] (2) Court
Examination. If the court examines the jurors, it must permit the attorneys for the parties
to: [¶] (A) ask further questions that the court considers proper; or [¶] (B) submit further
questions that the court may ask if it considers them proper.” (Fed. Rules Crim. Proc.,
rule 24, 28 U.S.C.; see also Fed. Rules Civ. Proc., rule 47, 28 U.S.C.) Thus, a more
open-ended inquiry is authorized under federal law.
36
voir dire so as to “intelligently exercise their peremptory challenges” (ibid.), unlike
California’s statutory system, as discussed above. Moreover, the opinion was no doubt
influenced in part by the fact that the questions pertained to the defendants’ First
Amendment rights, which formed a large part of the defense to the charges faced by the
group. (Dellinger, supra, 472 F.2d at p. 354.) Again, no such constitutional rights are
implicated here.
Even federal cases cited by defendant that are more akin to ours factually are not
persuasive. In Lurding v. United States (6th Cir. 1950) 179 F.2d 419, a tax evasion case,
the Court of Appeal said in dictum that defendant should have been allowed to voir dire
the jurors on their moral opposition to illegal bookmaking. But the trial court had not
only prohibited such voir dire, but had also commented that in its opinion “any person
who is qualified to be a juror should be opposed to” illegal gambling. (Id. at p. 421.)
The judge’s comment on the moral issue, together with similar comments and
instructions, tended to encourage the jury to judge the defendant based upon his possible
bookmaking activities rather than the tax evasion for which he was on trial. No similar
circumstances exist in this case.
In United States v. Clancy (7th Cir. 1960) 276 F.2d 617, 632, reversed on other
grounds in Clancy v. United States (1961) 365 U.S. 312, the defendants were tried for
making false statements to the IRS, attempting to evade wagering excise taxes, and
conspiracy to avoid those taxes. (Id. at p. 622.) The judge conducted voir dire “designed
to uncover prejudice against gamblers and religious scruples against gambling,”
including whether the jurors taught Sunday school and whether they would “be
prejudiced against anyone who accepts wagers?” (Id. at p. 632 & fn. 8.) But the
defendants wanted further voir dire on the subject, including “ ‘Do you believe that
gambling itself is immoral, per se, or morally wrong?’ [and] ‘Do you have a prejudice
against people engaged in the business of operating horse books?’ ” (Id. at p. 632, fn. 9.)
The Seventh Circuit specifically approved the court’s refusal to allow the additional
questions (which, not incidentally, closely correspond to those defendant requested in this
case) finding them “cumulative and argumentative.” (Id. at p. 632.)
37
With respect to marital infidelity we also believe the trial court acted within its
discretion in finding such evidence was not so inflammatory as to cause an otherwise
qualified juror to vote to convict regardless of the evidence. Defendant has cited no cases
in which the court held that defendants who have committed adultery have the right to
voir dire jurors on their attitudes about that subject. In Donovan v. Davis (4th Cir. 1977)
558 F.2d 201, the defendant had been portrayed as a “putative Don Juan” and a skirt
chaser in a trial for a theft related offense. (Id. at p. 203.) He was later tried on an
attempted rape charge, and seven of the jurors from the theft trial were also on his
attempted rape jury. The case holding was not related to the adequacy of voir dire.
Rather, the defendant’s attempted rape conviction was reversed on due process ground
because several jurors had been exposed to “evidence outside of the record” that might
have affected their impartiality on the attempted rape charge. (Id. at p. 204.) No similar
extrajudicial information was involved here.
Again, in United States v. Napoleone (3d Cir. 1965) 349 F.2d 350, the defendant
was convicted of falsely representing he was an employee of the Veterans Administration
while actually conducting a “pretext interview” for purposes of investigating a railroad
accident for a private company. (Id. at p. 351.) The Third Circuit found the trial court
had erred in denying voir dire on jurors’ “moral or ethical repugnance to liars and lying,”
where the defense involved an admission that the defendant had lied about the purpose of
his investigation, but the defendant denied representing himself as an employee of the
Veterans Administration. (Id. at p. 354.) Again, the court was operating under a system
that allowed voir dire to serve as a predicate to the exercise of peremptory challenges.
(Id. at p. 353.) Still, the case was decided on an abuse of discretion standard, not as a
matter of constitutional magnitude. (Id. at pp. 353-354.)
In sum, the cases defendant has cited are entirely distinguishable and do not
persuade us that the court abused its discretion in limiting voir dire. Defendant was not
deprived of an impartial jury or a fair trial as a result of the court’s rulings.
38
Evidence of defendant’s extramarital affairs
Defendant’s second claim of error is that the trial court erroneously admitted
evidence of his extramarital affairs over his objection and in violation of Evidence Code
section 1101.18 Defendant insists that his extramarital affairs played no role in
motivating his crimes. He claims this was solely character evidence, irrelevant to issues
in the case and unduly prejudicial, which deprived him of a fair trial in violation the due
process clause of the Fourteenth Amendment.
This issue was litigated via an in limine motion. Defendant had requested
exclusion of evidence of his dating relationships with Solomon, Watters, and Kim prior
to his separation from Robyn, as well as his Craigslist ads after he had last seen Robyn.
He argued the evidence was inadmissible character evidence, irrelevant to motive, flight,
or intent, and more prejudicial than probative under Evidence Code section 352.
The trial court refused these requests. The court found the evidence of his
extramarital affairs both before and after the murders was relevant to the murder for
financial gain special circumstance allegation. The evidence showed that both before and
after the murders defendant “had an intent to live an astonishingly high level, flamboyant
and potentially expensive lifestyle.” His Craigslist ads talked about his love of theater,
good food, and fine wine. “[T]hose are indications of a lifestyle that is simply expensive
to maintain.” That defendant stood to inherit a significant amount of money through his
parents’ deaths made evidence of his jet setting lifestyle, including his affairs, relevant.
18
Evidence Code section 1101 provides as follows: “(a) Except as provided in
this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character
or a trait of his or her character (whether in the form of an opinion, evidence of
reputation, or evidence of specific instances of his or her conduct) is inadmissible when
offered to prove his or her conduct on a specified occasion. [¶] (b) Nothing in this
section prohibits the admission of evidence that a person committed a crime, civil wrong,
or other act when relevant to prove some fact (such as motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake or accident, or whether a
defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act
did not reasonably and in good faith believe that the victim consented) other than his or
her disposition to commit such an act. [¶] (c) Nothing in this section affects the
admissibility of evidence offered to support or attack the credibility of a witness.”
39
And his Craigslist ads seeking to meet women all over the country after his parents’
murders―using untraceable email addresses―also tended to show consciousness of guilt
through his flight from law enforcement.19
After finding the evidence relevant for a purpose other than proof of defendant’s
poor character, the trial court proceeded to weigh its probative value against its potential
for prejudice under Evidence Code section 352. The court rejected defendant’s argument
that its prejudicial effect was great, noting the crimes for which defendant was on trial
were particularly vicious and violent. The court continued: “To somehow think that in
view of those kind of charges the jury is going to somehow be impassioned and inflamed
to an irrational state where they reject the law regarding the burden of proof and so on by
the fact that [defendant] is dating other women while he’s married is just preposterous to
me. I don’t think that’s a reasonable expectation here.”
Admissibility of evidence of prior misconduct, being essentially a question of
relevance, is reviewed solely for abuse of discretion. (People v. Carter, supra, 36 Cal.4th
at p. 1149; People v. Kipp (1998) 18 Cal.4th 349, 369.) We find none here.
We are cognizant that evidence of marital infidelity is in many cases irrelevant,
but it nevertheless may be relevant to the issue of motive, as in cases of spousal murder.20
The same is true here, where it was also relevant to motive.
19
Relying on People v. Mills (2010) 48 Cal.4th 158 (Mills), the court ruled that the
evidence was inadmissible with respect to intent, but was admissible as relevant to
motive and flight. Mills involved admission of evidence that the defendant took a trip to
San Francisco and went snowboarding just days after committing a brutal rape and
murder. (Id. at pp. 192-194.) The Supreme Court held the evidence was relevant
because, based on his engagement in such leisure activities, the jury could rationally find
he had “in fact acted with malice aforethought and not in the heat of passion,” as he
contended. (Id. at p. 194, italics omitted.) Similarly, the evidence of defendant’s affairs
even after the crimes was relevant to proving his desire for a flamboyant lifestyle,
including multiple women, motivated the murders.
20
See Winfred D. v. Michelin North America, Inc. (2008) 165 Cal.App.4th 1011,
1026. In that case evidence that plaintiff had a “second family” in Las Vegas was
deemed irrelevant in a lawsuit seeking damages for a tire blowout and consequent
40
Obviously, as set forth in our discussion of the facts, a great number of
unflattering details of defendant’s lifestyle came before the jury, including his
compulsive gambling and unabashed philandering. But these facts were not put before
the jury to portray defendant as unlikeable or morally depraved. These were the very
behaviors that, according to the prosecution’s theory, led defendant to kill his parents so
as to expedite his inheritance. As such, they were not introduced solely as character
evidence―which is forbidden under Evidence Code section 1101, subdivision (a)―but
rather as evidence of motive, which is allowed under subdivision (b) of that same section.
(See fn. 18, ante.)
“Evidence that ‘tends “logically, naturally, and by reasonable inference” to
establish material facts such as identity, intent, or motive’ is generally admissible.
[Citation.] Although motive is normally not an element of any crime that the prosecutor
must prove, ‘evidence of motive makes the crime understandable and renders the
inferences regarding defendant’s intent more reasonable.’ ” (People v. Riccardi (2012)
54 Cal.4th 758, 815.)
“ ‘ “[B]ecause a motive is ordinarily the incentive for criminal behavior, its
probative value generally exceeds its prejudicial effect, and wide latitude is permitted in
admitting evidence of its existence.” [Citation.]’ ” (People v. McKinnon (2011)
52 Cal.4th 610, 655.) “ ‘In a case where the identity of a person who commits a crime is
attempted to be proven by circumstantial evidence, such as in the case at bar, evidence of
a motive on the part of a defendant charged is always a subject of proof, and the fact of
motive particularly material.’ ” (People v. Kovacich (2011) 201 Cal.App.4th 863, 896.)
Defendant argues that a distinction must be drawn between “lifestyle” evidence
(such as gambling and overspending), which he concedes was admissible, and evidence
of his infidelities, which he claims was not relevant to motive. He claims the evidence
injuries. (Id. at p. 1026.) The court allowed that it might have reflected on plaintiff’s
credibility, but it was more prejudicial than probative. (Id. at p.1029.)
41
shows much of his dating activity was free of charge because he had “comps” through the
casinos for hotel rooms, shows, food, and drinks.
Although defendant’s financial problems were largely related to his gambling,
they were no doubt compounded by his lavish lifestyle in general, including spending to
conduct his extramarital affairs. He traveled to multiple destinations to carry on his affair
with Solomon, and there is no reason to think the airfare was free. He took her out for an
expensive dinner in San Francisco just days after the bodies of his parents were
discovered. After he abandoned his family, he traveled around the country meeting
women through Craigslist, luring them in with promises of “the finer things in life” and
predictions of an inheritance in the offing. Contrary to defendant’s argument in his reply
brief , the prosecutor did establish the necessary nexus between defendant’s adultery and
the financial motivation for the murders.
And though the evidence was admitted for its relevance to motive, since defendant
did ultimately testify, it was also admissible as to credibility to the extent it involved
dishonesty. (Evid. Code, § 1101, subd. (c).) Because his extramarital affairs involved
frequent deception, such evidence also was relevant to credibility. Winfred D. v.
Michelin North America, Inc., supra, 165 Cal.App.4th 1011, opined that a presumption
that “ ‘promiscuity engenders prevarication’ ” was only a weak indication of credibility.
(Id. at pp. 1031-1032.) It held specific acts of infidelity were not to be introduced to
prove character. (Id. at p. 1037, see also Evid. Code, § 787.) But that rule has been
abrogated in criminal cases since the adoption of Proposition 8 in 1982, which added the
truth-in-evidence provision of article I, section 28(f)(2) to the state Constitution.
Defendant also claims error in the admission of testimony that two sex toys were
found in his golf bag when his car was impounded. The sex toys were, according to
Flash, something he told her he used in his relationship with Solomon. The court
admitted the testimony as corroboration of Flash’s testimony.
Even assuming this testimony should not have been admitted, we cannot find any
assumed error was prejudicial. The jury heard a great deal of evidence during this 55-day
trial. We cannot imagine the presence of two sex toys in his golf bag, either considered
42
in isolation or cumulatively with the other complained-of evidence, could have so
inflamed the jury that it would have convicted him of two horrific murders on the basis of
this mildly embarrassing evidence.
Prosecutorial misconduct
Defendant next argues the prosecutor committed misconduct in several respects.
He claims the errors were so pervasive as to amount to federal constitutional error,
thereby requiring analysis for prejudice under Chapman v. California (1967) 386 U.S. 18,
24. But even if not regarded as federal constitutional error, he claims it was state law
error and was prejudicial even under a Watson standard (People v. Watson (1956)
46 Cal.2d 818, 836).
“ ‘A prosecutor’s conduct violates the Fourteenth Amendment to the federal
Constitution when it infects the trial with such unfairness as to make the conviction a
denial of due process. Conduct by a prosecutor that does not render a criminal trial
fundamentally unfair is prosecutorial misconduct under state law only if it involves the
use of deceptive or reprehensible methods to attempt to persuade either the trial court or
the jury.’ [Citation.] When a claim of misconduct is based on the prosecutor’s
comments before the jury, . . . ‘ “the question is whether there is a reasonable likelihood
that the jury construed or applied any of the complained-of remarks in an objectionable
fashion.” ’ [Citation.] To preserve a claim of prosecutorial misconduct for appeal, a
defendant must make a timely and specific objection and ask the trial court to admonish
the jury to disregard the improper argument. [Citation.].” (People v. Gonzales and Soliz
(2011) 52 Cal.4th 254, 305.)
In an apparent attempt to argue there was pervasive misconduct, defendant points
to instances of alleged impropriety throughout the various phases of the trial. We address
those arguments in turn, although they are to some extent duplicative.
43
During opening statement
1. “Narcissistic, sociopathic killer”
First, defendant claims the prosecutor committed misconduct when he referred to
defendant as a “narcissistic, sociopathic killer” at several points during the trial, including
opening statement, initial closing argument, and rebuttal.
In opening statement during the morning session, the prosecutor, referring to the
date defendant was born to Scherer and Abendroth, said, “Little did they know that some
29 years later, that that baby boy would grow, and the evidence will show that he grew
into a narcissistic, sociopathic killer.” Defense counsel did not object. At the beginning
of the afternoon session, outside the jury’s presence, he did object to the statement as
improper argument and requested a curative admonition. The judge agreed it was
improper argument in an opening statement and offered to admonish the jury, but he
suggested it might only reinforce the prosecutor’s statement to give an admonition so
disconnected from the offending phrase. Defense counsel agreed and requested that the
prosecutor be admonished. The court told the prosecutor, “Don’t do that again.”
Any argument that this was reversible misconduct was waived by failure to make
a contemporaneous objection and is in any event unmeritorious. (People v. Gonzales and
Soliz, supra, 52 Cal.4th at p. 305.)
Defendant claims the words “narcissist” and “sociopath” constitute explicit
psychological diagnoses, and since there was no psychiatric testimony proving defendant
suffered from narcissistic personality disorder or antisocial personality disorder (and no
good faith belief on the prosecutor’s part that such evidence would be presented), the
prosecutor’s comments constituted an improper appeal to the jury’s passions and
prejudices. But the jury could not have reasonably understood the prosecutor’s remarks
in a technical clinical sense. The word “narcissistic” is defined in the Oxford English
Dictionary as “characterized or produced by excessive self-admiration.” The word
“sociopathic” is defined in the Oxford English Dictionary as “exhibiting antisocial,
violent, or selfish behaviour,” (available online at [as of August
28, 2013]) and our Supreme Court has noted that “sociopath” is commonly understood to
44
mean “someone who acts without conscience or remorse.” (Zambrano, supra, 41 Cal.4th
at p. 1173.)
As we shall discuss, we find no misconduct in the prosecutor’s use of such terms
to describe the defendant in closing argument. To the extent the language was too
argumentative for an opening statement the court acceded to the defense request to
admonish the prosecutor. The prosecutor did not thereafter repeat the words during his
opening statement. There was no prejudice from the brief reference, which the evidence
ultimately supported.
2. Griffin error
Next defendant contends that the prosecutor committed error under Griffin v.
California (1965) 380 U.S. 609, based on comments made during opening statement.
The prosecutor referred to Scherer’s attempt to see defendant by coming to Brea to visit
defendant and Robyn in February 2008. Defendant, meanwhile, left his Brea home to
check into the Doubletree Hotel in Commerce with Solomon (having told Robyn and
Scherer that he was going to be in Las Vegas). The following comments, objections and
rulings followed:
“[MR. NIETO, prosecutor]: Where were you, Mr. Scherer? Was it Las Vegas or
Commerce, California, February 19, 2008?
“MR. FOXALL [defense attorney]: Objection, your honor.
“THE COURT: Sustained. Could you rephrase that, Mr. Nieto?
“MR. NIETO: Yes. Where was Mr. Scherer from February 19 to February 22, 2008?
“THE COURT: Give me just a second. Just to clear the record, I’m going to strike the
comment there. It was ambiguous. And I would ask Mr. Nieto to rephrase it. So
whenever I strike matters, as I said, ladies and gentlemen, disregard them. Treat it as
though you didn’t hear it.
“Thank you.
“Go ahead, Mr. Nieto.
“MR. NIETO: So the question is where was Mr. Scherer on February 19 to February 22,
2008?”
45
A few minutes later at the next break, defense counsel asked for an admonishment
on his sustained objection. He argued that posing a question to defendant constituted
Griffin error in violation of his Fifth Amendment rights and as such was misconduct. “It
was insufficient to ask the jury simply to disregard what [the prosecutor] did when he
addressed a question to [defendant] in his opening. What he did was improper. And the
jury needs to be told it was improper. He is not entitled to address questions to a
defendant, who has a Fifth Amendment right and that rhetorical device was plainly
designed to get the jury to expect that [defendant] will answer that question. And I think
there needs to be a stronger and proper admonition, because I think that qualifies as
misconduct.” The prosecutor responded that he was commenting on the evidence and
was not directing a question to defendant. Indeed, defense counsel seemed to
acknowledge that the prosecutor had simply misspoken. He said, “Mr. Nieto quickly did
rephrase when he was stopped short and said, ‘Where was Mr. Scherer?’ That is the
question. The question isn’t ‘Where were you, Mr. Scherer?’ directed at Mr. Scherer.”
The trial court considered the prosecutor’s question a rhetorical one that had been
dealt with adequately by instructing the prosecutor to rephrase his comment and by
striking the prior comment. Trial counsel insisted the jury be admonished that defendant
had no obligation to testify and the failure to do so could not be considered against him.
The trial court again refused stating, “I don’t believe that that comment was intended to
nor did it have the effect of being a comment on failure to testify, an invitation to testify
or anything of the like.” It found the comment did not even “come close” to Griffin error.
We agree. The jurors were admonished to disregard the comment , and we
presume they followed that instruction. (United States v. Olano (1993) 507 U.S. 725,
740; People v. Avila (2009) 46 Cal.4th 680, 719; People v. Sisneros (2009)
174 Cal.App.4th 142, 152-153.) The prosecutor immediately rephrased his remark to
indicate the rhetorical nature of the question. We see no Griffin error.
Moreover, since defendant did testify, the comment could not have been
understood by the jury to be a comment on defendant’s exercise of his right to remain
silent. He did not exercise that right and by testifying waived it. (People v. Redmond
46
(1981) 29 Cal.3d 904, 911.) And even if this single passing comment could somehow be
conceived of as Griffin error, we would find it harmless beyond a reasonable doubt.
(People v. Turner (2004) 34 Cal.4th 406, 421; People v. Hovey (1988) 44 Cal.3d 543,
572.)
3. Commenting on Craigslist ads
The trial court ruled in limine that the Craigslist ads were admissible because they
were relevant to motive, flight, and consciousness of guilt through use of an alias.
During opening statement the prosecutor commented that the Craigslist ad posted in Las
Vegas through which defendant met Watters (before the murders) was placed at a time
when “we know he’s married and has a child back home in Brea.” Second, he
commented that when defendant met Flash in New Orleans through such an ad, she spent
the night in his hotel room. Trial counsel had objected on grounds the reading of
Craigslist postings by the prosecutor was beyond the scope of the in limine ruling, but the
court overruled the objections.
Defendant now raises those two specific comments as prosecutorial misconduct.
Counsel raised no objection to the specific comments of which he now complains,
however, and the issues have not been preserved for appeal.
On the merits, too, we find the arguments unpersuasive. Citing cases for the
proposition that a prosecutor may not intentionally introduce inadmissible evidence
(People v. Chatman (2006) 38 Cal.4th 344, 379-380; People v. Smithey (1999) 20 Cal.4th
936, 960), defendant contends the prosecutor improperly used the evidence that had been
ruled admissible under Evidence Code section 1101, subdivision (b), to lead the jury to
draw impermissible character inferences. But we deal here with an opening statement,
not the introduction of inadmissible evidence.
The purpose of an opening statement in a criminal trial is to inform the jury of the
evidence the prosecution intends to present and to prepare the minds of the jury to follow
and to more readily discern the materiality, force, and effect of such evidence. (People v.
Farnam (2002) 28 Cal.4th 107, 168; People v. Wash (1993) 6 Cal.4th 215, 257.) The
Supreme Court has said, “ ‘remarks made in an opening statement cannot be charged as
47
misconduct unless the evidence referred to by the prosecutor “was ‘so patently
inadmissible as to charge the prosecutor with knowledge that it could never be
admitted.’ ” ’ ” (People v. Dykes (2009) 46 Cal.4th 731, 762.) Having received an in
limine ruling that allowed evidence of defendant’s relations with Watters to be
introduced, it was not misconduct simply to remind the jury that he was married at the
time.
The fact that defendant sought out further contact with women within roughly two
weeks after breaking up with Solomon was relevant to motive. Even after ending one
lengthy affair, defendant was already seeking to initiate another as part of what he
himself called his “double life.” Dating Watters fit exactly into the prosecutor’s theory
that defendant was so attached to his high roller lifestyle that he was driven to kill to
maintain it.
Moreover, even if the remark were to be deemed improper, the prospect of
prejudice is remote. There is no question but that defendant was married when he was
carrying on with Watters. Given that Robyn was a witness against him at trial, his
marital status could not have escaped the jury’s notice as the trial progressed, and the
verdict could not possibly have been influenced by this simple statement of fact. Nor do
we think the jury would have convicted defendant of two heinous murders simply
because it found his philandering distasteful. The remark neither infected the trial with
unfairness nor constituted a “deceptive or reprehensible” tactic.
As for the comment about Flash spending the night with him in New Orleans, it
was clearly brought up for the purpose of showing defendant barricaded his hotel room
and prepared an escape via bungee cord through the hotel window in the event the police
tracked him down. To the extent some jurors may have disapproved of his
unceremonious intimacy with Flash, there is no reason to think the prosecutor’s passing
remark could have carried much weight in relation to the whole of the evidence. Even if
we could agree there was misconduct―and we do not―it would not have been
prejudicial because “there is no reasonable likelihood that the prosecution’s line of
48
argument misled the jury as to its task in determining” whether defendant murdered his
parents. (People v. Samayoa (1997) 15 Cal.4th 795, 842-843.)
During trial
1. Failing to advise the court a juror had smiled at defendant during trial
Defendant claims the prosecutor committed misconduct by failing to promptly
report juror misconduct to the court. The juror misconduct in question was the fact that
one of the jurors smiled at defendant at various times during the trial. Indeed, this juror
wrote letters to defendant after the trial, which he produced at the sentencing hearing.
The prosecutor remarked, “it was clear that there were nonverbal communications going
on between the defendant and the juror in terms of smiles and things of that nature
throughout the trial.” Defense counsel agreed he had noticed such conduct by the juror,
but asserted defendant did not return her nonverbal communication.
Defendant claims on appeal that the prosecutor’s failure to report the juror’s
misconduct during the trial violated rule 5-320(G) of the Rules of Professional Conduct
and Business and Professions Code section 6068, subdivision (a). The former provides:
“A member shall reveal promptly to the court improper conduct by a person who is either
a member of a venire or a juror, or by another toward a person who is either a member of
a venire or a juror or a member of his or her family, of which the member has
knowledge.” The latter merely requires an attorney “[t]o support the Constitution and
laws of the United States and of this state.”
“It is serious misconduct for jurors to engage in discussion with the parties, their
counsel, or witnesses.” (7 Witkin, Cal. Procedure (5th ed. 2008) Trial § 331, p. 385,
citing Wright v. Eastlick (1899) 125 Cal. 517, 519-520 [parties socialized with two
jurors]; Garden Grove School Dist. of Orange v. Hendler (1965) 63 Cal.2d 141, 144
[counsel talked with jury foreman during recess].)
49
In this case, there was no evidence that the juror actually exchanged words with
defendant or anyone associated with him before the verdicts were entered.21 We have
been directed to no case holding that a juror’s merely smiling at a party rises to the level
of “improper conduct” under rule 5-320(G) of the Rules of Professional Conduct.
Whatever other “nonverbal communications” occurred are not described in the record.
The juror may have been nonverbally communicating a sympathetic attitude toward
defendant. But even assuming for purposes of argument that nonverbal communication
between a juror and a party may amount to juror misconduct, we would not find
reversible error on this record.
First, there was no objection in the trial court, and the issue has therefore been
forfeited. (People v. Bolden (2002) 29 Cal.4th 515, 562-564; Dimmick v. Alvarez (1961)
196 Cal.App.2d 211, 216-217.) Had defense counsel objected to the prosecutor’s failure
to report the juror’s nonverbal communications as misconduct at the time the subject first
arose, a more complete record could have been made as to exactly what kind of
“nonverbal communication” was observed.
Second, defense counsel was equally obligated to report such misconduct (if it
amounted to that) and failed to do so, evidently believing the juror’s smiles reflected a
favorable disposition toward his client. Though we know prosecutors are held to an
especially high standard of conduct, in this circumstance there should not be one standard
for prosecutors and a different standard for defense counsel who, for tactical reasons,
violates the same professional rule.
Third, the juror, if she had a bias, evidently had a bias in defendant’s favor, and it
is difficult to imagine how he was prejudiced thereby. The juror ultimately found
defendant guilty of both matricide and patricide, evidently overcoming whatever
21
There was actual communication (written and perhaps otherwise) between the
juror and defendant after the jury’s verdict was returned and the jury had been dismissed.
Such communications could not have been prejudicial because they occurred exclusively
after the verdicts had been rendered. (Cf. Wooddall v. Superior Court (1986)
185 Cal.App.3d 399, 401 [§ 95, attempting to influence a verdict, does not apply after
verdict rendered and jury dismissed].)
50
attraction she may have felt towards him during the trial. It therefore appears her initial
partiality in favor of defendant did not translate into an impact on the verdict. We
certainly will not reverse the judgment because defendant was unable to parlay this
flirtation (if that’s what it was) into a hung jury.
2. Cross-examination of defendant
Defendant testified on his own behalf and denied killing his parents. At the
beginning of his cross-examination, the prosecutor showed defendant pictures of his
parents’ dead bodies and asked the following series of questions, which defendant now
claims constituted misconduct:
“BY MR. NIETO:
“Q. Do you see that photograph?
“A. I do.
“Q. Did you give your mother the opportunity to say your name before you hit her the
first time?
“Mr. Foxall: I would object as argumentative and improper.
“The Court: No, overruled. This is cross-examination.
“The Witness: I did not hit my mother.
“BY MR. NIETO:
“Q. Did you give her the opportunity to ask you why?
“Mr. Foxall: It is an improper question, your Honor.
“The court: Overruled. You may answer.
“The Witness: I did not hit my mother.
“BY MR. NIETO:
[¶] . . .[¶]
“Q. Did you give your father the opportunity to say anything before you hit him the first
time?
“MR. FOXALL: Objection.
“THE COURT: Over—
“MR. FOXALL: I have a motion.
51
“THE COURT: Overruled. You may answer.
“THE WITNESS: I did not hit my father.
“MR. NIETO: Did you give him the opportunity to ask you why?
“MR. FOXALL: Objection; it’s improper.
“THE COURT: Same ruling. Overruled. You may answer.
“THE WITNESS: I did not hit my father.”
Defendant contends that this series of questions improperly asked the jury to view
the crime through the eyes of the victims, was argumentative, and improperly “appealed
to the emotions of those jurors who had children.” Contrary to defendant’s claims, this
brief series of questions was within the limits permitted for cross-examination.
True, it is misconduct for a prosecutor to ask the jury to view the crime through
the victim’s eyes. (People v. Stansbury (1993) 4 Cal.4th 1017, 1057 (Stansbury);
People v. Fields (1983) 35 Cal.3d 329, 362-363; People v. Vance (2010) 188 Cal.App.4th
1182, 1188 (Vance).) But the cited cases deal with misconduct in closing argument, not
the allowable scope of cross-examination of a testifying defendant, which is very wide.
(People v. Hawthorne (2009) 46 Cal.4th 67, 99-100; People v. Mayfield (1997)
14 Cal.4th 668, 754; People v. Cooper (1991) 53 Cal.3d 771, 822.) The prosecutor’s
questions concerned defendant’s actions on the night of the murders, not the victims’
feelings about his actions. We find no misconduct, but even assuming it occurred, we
would not find it prejudicial, given the wealth of evidence against defendant. These few
questions cannot reasonably be seen as affecting the outcome of this lengthy and complex
trial.
During closing argument
1. “Narcissistic, Sociopathic Killer”
The prosecutor opened his closing argument with these words: “At varying points
throughout this trial, particularly as you exited and entered this courtroom, you have been
within feet of a narcissistic, sociopathic . . . [¶] . . .[¶] killer.” He returned to this theme
at several points during his argument with phrases such as “narcissistic personality,”
52
“self-righteous narcissistic sociopath,” and “narcissistic view of the world.” Defense
counsel again objected, but this time the objections were overruled.
The trial court acknowledged it had ruled the use of these words was improper
during opening statement because at that stage of the proceedings they were
argumentative. During closing argument, though, “[t]he district attorney is allowed to
use graphic and colorful language to describe the defendant.” Having had his initial
objections overruled, defense counsel stopped objecting to such references. We do not
consider the issue waived. We do, however, believe it lacks merit.
“A prosecutor is allowed to make vigorous arguments and may even use such
epithets as are warranted by the evidence, as long as these arguments are not
inflammatory and principally aimed at arousing the passion or prejudice of the jury.”
(People v. Pensinger (1991) 52 Cal.3d 1210, 1251; see also People v. Wharton (1991)
53 Cal.3d 522, 567.) On the evidence presented the prosecutor could fairly argue that
defendant was a self-obsessed, remorseless killer. Both the words “narcissist” and
“sociopath” are used in common conversation without any technical psychiatric
implications. The prosecutor elaborated on the “narcissist” label, arguing that defendant
would “take[] advantage of other people to achieve his own goals,” had “excessive
feelings of self importance,” “exaggerate[d] [his] achievements and talents,” was
“[p]reoccupied with fantasies of success, power, beauty, intelligence or ideal love,” had
“unreasonable expectations of favorable treatment,” “need[ed] constant attention and
admiration,” “disregard[ed] the feelings of others,” “ha[d] obsessive self-interest” and
“pursue[d] mainly selfish goals,” giving examples of defendant’s behavior that fell into
each category. By including this list of narcissistic traits the prosecutor made clear he was
using the term in its everyday sense and not in a technical diagnostic sense.
The evidence supported his arguments. For instance, both in his testimony about
his marriage and in his Craigslist ads, defendant suggested he needed a well-educated
woman to keep up with him intellectually. Robyn, he complained, did not enjoy reading
The Economist, as he did, nor did she enjoy news and business television programs, but
rather liked soap operas and reality shows. When defendant dropped out of sight,
53
although he was living on borrowed money, he continued to attempt to lure women to
him by boasting about his life of leisure and high style and his fabricated
accomplishments (such as his “novel”). The prosecutor argued he also showed himself to
be narcissistic by referring to himself as an “economist” simply because he has a
bachelor’s degree in economics. That he thought he could outsmart the police was also
evident from his planning of the crime. And he apparently believed he could convince
the jury to believe him, even though he denied or flatly contradicted the testimony of
many witnesses, including his own family members. The label “narcissist” was a fair
comment on the evidence.
Likewise, labeling a defendant a “sociopath” has been specifically held not to
amount to misconduct. (People v. Friend (2009) 47 Cal.4th 1, 84; Zambrano, supra,41 Cal.4th at p. 1173.) In Friend, the court stated that in describing the defendant as a
“sociopath” the prosecutor was not improperly stating an expert opinion but rather was
“using language in common currency to describe his interpretation of the evidence. . . .”
(47 Cal.4th at p. 84.) And in Zambrano the court found “the label of sociopath . . .
certainly fit defendant, based on the facts of his crimes.” (Zambran, supra, 41 Cal.4th at
p. 1173.) So, too, here.
The nature of the crime was particularly heinous. Defendant killed his own
parents in a brutal attack, driven by greed and an unquenchable desire to live a hedonistic
lifestyle. His conduct following the murders was callous and inappropriate―one could
easily say “remorseless.” And he continued trying to collect his inheritance from
Oesterle even after he disappeared and abandoned his family. We find no misconduct in
any of the references to these terms in closing argument.
2. Purporting to supply Abendroth’s testimony
During closing argument the prosecutor referred to a letter written by Abendroth
to defendant in August 1999, asking him to stop gambling. The letter was in evidence.
In it Abendroth said, among other things, that gambling “is extremely destructive to a
marriage” and, “If you want your marriage to be eternal, you must quit gambling.”
“Gambling,” she said, “can be psychologically addictive,” warning that she and Scherer
54
both had a “high tolerance for risk” and that defendant “probably picked it up.” “The
problem with seeing how close to the edge of the cliff you can walk is that you may slip
and fall off.” She advised him, “Get your life in tune with your spirit and listen to it.”
The prosecutor argued: “The evidence has shown that [defendant] had no concern
for anybody but himself for virtually his entire life. And it led him to the edge of the cliff
that his mother, in a letter, in a voice from the grave, prophetically expected and
anticipated that his lifestyle . . . .” At that point defense counsel objected that it was
improper argument. The trial court overruled the objection, and the prosecutor
continued: “On March 7th, 2008, in the days leading up to it where he planned the
murders of his parents, [defendant] got too close to the edge of that cliff that his mother
spoke of.”
Defendant relies on Drayden v. White (9th Cir. 2000) 232 F.3d 704, 712-713, to
argue this was misconduct, claiming the “voice from the grave” comment “improperly
suggest[ed] the dead victim [was] giving testimony in this case.” But in Drayden the
prosecutor’s conduct was much more blameworthy. He sat in the witness chair during
closing argument and delivered a hypothetical soliloquy through the voice of the dead
victim. (Drayden, supra, at pp. 711-713)
The prosecutor in defendant’s case characterized the letter as “prophetic[]” and
therefore steered clear of fabricating testimony on behalf of defendant’s dead mother.
The letter itself was written by Abendroth, so the jury knew what her words were and
when they had been written. It was clear this was not her “testimony” “from the grave”
but rather her fearful prediction, which the prosecutor argued had come true. This was
not improper argument.
3. Violating the prohibition on “Golden Rule” arguments
Defendant next asserts that in references to his murder of Abendroth, the
prosecutor referred to facts not in evidence and appealed to the jury’s passions, and in
doing so violated the prohibition on a prosecutor’s use of such “Golden Rule” arguments.
In a “Golden Rule” argument, “a prosecutor invites the jury to put itself in the victim’s
position and imagine what the victim experienced. This is misconduct, because it is a
55
blatant appeal to the jury’s natural sympathy for the victim.” (Vance, supra,
188 Cal.App.4th at p. 1188; see also, Stansbury, supra, 4 Cal.4th at p. 1057; People v.
Fields, supra, 35 Cal.3d at p. 362.)
In his closing argument, the prosecutor reviewed the elements of murder, noting
that one factor influencing the element of malice could be “[t]he types of weapons used, a
sharp instrument, and a Nike youth baseball bat. You can’t get any more personal or up
close than with the types of weapons used. [¶] This is not something that’s sanitized
from a distance with a long-range rifle or even a hand gun that separates the murderer
from his victims. Think about the number of times that Charlene Abendroth’s skull was
hit with a baseball bat just like this one. [¶] Very personal. Compare the number times
that Charlene Abendroth was hit in the skull with this baseball bat with the number of
times that her husband was hit. She was hit much more. Many more times. It was
something personal there. Very personal. So when you consider malice, you think of the
types of weapons used. [¶] Did Charlene Abendroth have time to call out her son’s
name? [¶] Did she have time to ask him why after everything she and her husband had
done for him? [¶] What it must have sounded like to hear this bat hit their skulls. [¶] The
sound the defendant heard repeatedly―”
At that point trial counsel objected that it was improper argument. His objection
was overruled.
The prosecutor’s argument may have bordered on improper territory in the last
few sentences. But when he asked the jury to imagine “[w]hat it must have sounded like
to hear this bat hit their skulls,” he immediately clarified that he was talking about what it
must have sounded like to defendant, who heard it “repeatedly.”
This was not a situation like that in Stansbury where the prosecutor asked the jury
to consider how the child victim must have felt as she was sexually assaulted and
murdered. (Stansbury, supra, 4 Cal.4th at p. 1057.) Nor is it similar to Vance, where the
prosecutor told the jury “to literally relive in your mind’s eye and in your feelings what
[the victim] experienced the night he was murdered.” (Vance, supra, 188 Cal.App.4th at
p. 1194.) Given the entire context, the argument here was not improper, but was meant to
56
emphasize the element of malice in defendant’s actions by pointing out some calculated
and callous aspects of the crimes. And even if considered misconduct, it was not
prejudicial. (Watson, supra, 46 Cal.2d at p. 836; see Stansbury, supra, 4 Cal.4th at
p. 1057.)
4. Commenting on defendant’s testimony as appealing to jury’s passion
Next defendant argues that certain parts of closing argument improperly appealed
to the passions and prejudices of the jury. We see it differently.
During cross-examination, defendant admitted that part of being a professional
poker player is being able to deceive other players. He testified that a “tell” is “a visual
or audio cue” of the strength or weakness of a player’s hand. The prosecutor asked
defendant what his tell was and defendant replied, “I don’t know.” He added that if one
knows something is a tell, then it would cease to be a tell.
During closing argument, in attempting to persuade the jurors not to believe
defendant’s explanation that his phone was out of service because it had fallen into a
swimming pool, the prosecutor argued: “The defendant says to the detectives that you
can track me almost to my door. Why does he say that? Not because it is true. We know
that. [¶] But he says it because he wants them to believe it. Maybe they won’t check.
And even if they do, he’s got the explanation. Remember the . . . phone in the pool? So
he’s got it all figured out. All these little pieces, he’s going to explain it all away. [¶] But
we know that his communication ceases just past Baker. [¶] We asked [defendant],
‘Where is Baker?’ [¶] ‘Well, I don’t know. I don’t know where Baker is.’ [¶] Lie.
Absolute lie. [¶] He researched it. He knows exactly where it is. And he’s driven
through it countless times before. [¶] ‘Is Baker near Brea?’ [¶] ‘Well, I would have to
see it on a map. I would have to see all three locations on a map.’ [¶] The absolute
indignation, the self-righteousness. It’s offensive. His demeanor when he testified about
that is just absolutely offensive. It makes my blood boil and it should make your blood
boil.”
At that point trial counsel objected that it was improper argument. The trial court
overruled the objection, and the prosecutor continued: “He can’t handle the truth when
57
it’s presented to him. Okay? Remember when he first testified, I said, ‘What’s your tell
Mr. Scherer? What’s your tell? Everybody’s got a tell. What’s yours?’ [¶] . . . [¶] I will
tell you what his tell is. He needs time to think about what to say. You go off script, he
can’t handle it. You get close to the truth, he can’t recall. That’s his tell. [¶] . . . [¶] It’s
clear that he’s trying to think. He’s trying to buy time. He has to come up with an
explanation of why his communication ceases at Baker. And there is no reasonable
explanation. There’s lots of tells.” The prosecutor then argued that defendant’s
statements to the police and his testimony were clearly false, but defendant felt he could
say whatever he wanted because he “thinks he’s smarter than everyone.”
Defendant emphasizes the passage about defendant’s demeanor being so
“offensive” that it should “make [the jurors’] blood boil . . . .” He compares the case to
People v. Boyette (2002) 29 Cal.4th 381, 434, where the Supreme Court said that
“comment during the guilt phase of a capital trial on a defendant’s courtroom demeanor
is improper.” But that was a case in which the defendant chose not to testify, and the
prosecutor argued that his apparently pleasant demeanor in the courtroom should not fool
them into thinking he did not commit the crimes. (Ibid.)
In our case, the defendant took the witness stand. It is perfectly proper for a
prosecutor to comment on the demeanor of a defendant while testifying. That is one of
the things the jury may―indeed, was instructed to―consider in evaluating the
believability of his testimony. (People v. Jackson (1989) 49 Cal.3d 1170, 1205; Evid.
Code, § 780; CALJIC 2.20 [given to the jury in this case].)
To argue that defendant’s profession of ignorance about the location of Baker was
an “absolute lie” also was not improper. (Zambrano, supra, 41 Cal.4th at p. 1172 [not
misconduct to call defendant a “liar”].) When a defendant’s testimony contradicts the
strong evidence of his guilt, it is not improper to call him a liar. (People v. Edelbacher
(1989) 47 Cal.3d 983, 1030 [“ ‘snake in the jungle,’ ” “slick,” “tricky,” a “ ‘pathological
liar,’ ” and “ ‘one of the greatest liars in the history of Fresno County’ ”]; People v. Reyes
(1974) 12 Cal.3d 486, 505 [“ ‘monstrous lie,’ ” “ ‘garbage,’ ” “ ‘cocky’ ” and “ ‘ice
running through his veins’ ”].) This is especially true because the prosecutor then gave a
58
reason why defendant’s profession of ignorance could be recognized as a lie: “He
researched it. He knows exactly where [Baker] is. And he’s driven through it countless
times before.” There was no misconduct.
5. Vouching
Defendant argues the prosecutor improperly vouched for Senior as a witness.
Senior was 95 years old at the time of trial. At one point in closing argument, the
prosecutor was reviewing factors to be considered in assessing the credibility of a
witness. In discussing factors that made Senior credible, the prosecutor referred to him as
“A man described as from perhaps the greatest generation.” The comment passed
without objection.
Soon thereafter, in discussing the testimony about the condition of defendant’s
tires when he replaced them on March 9, 2008, the prosecutor recalled that Senior
testified he had examined defendant’s car not long before that date and the tires were in
good shape. Defendant himself testified the tires were so worn they had steel fibers
protruding. In arguing that Senior was more credible, the prosecutor said: “This is a man
who knows a little thing about cars, a thing or two about cars. [¶] Despite his
automotive―or in addition, I should say, to his automotive engineering career, you saw
him sit there on the witness stand. And when I tried to broach the subject of what he had
done on his way up here to testify, he was very humble, modest, and didn’t want me to
bring it up. [¶] But I brought it up anyway, because it shows the caliber of the man, the
quality of his testimony, and the character of the man. A man from what has been
described as the greatest generation.” Defense counsel’s “improper argument” objection
was overruled.
The prosecutor’s reference was to Senior’s reluctant testimony that, while he and
Oesterle were driving up to the trial, Oesterle’s car had a flat tire. Senior got out of the
car and changed the tire.
The trial court later explained its reasoning in overruling the objection, stating that
the prosecutor had made an implicit reference to Tom Brokaw’s book entitled, The
Greatest Generation, which described people in Senior’s age group. The court concluded
59
this was a “generalized literary reference, I think it falls well within the kinds of
references to things which are in the public domain and there’s nothing I think offensive
to legal principles. . . .” The trial court was correct. The prosecutor’s reference was one
permissibly “ ‘drawn from common experience, history or literature.’ ” (People v.
Wharton, supra, 53 Cal.3d at p. 567.)
People v. Martinez (2010) 47 Cal.4th 911 (Martinez), does not support defendant’s
argument that this was improper vouching. In Martinez, the prosecutor argued that a
witness was credible because she had given prior consistent statements to the police.
Those prior statements were not in evidence. The Supreme Court held, even assuming
this was misconduct, it was harmless. (Id. at pp. 958-959.)
This case is different. A prosecutor is said to vouch for the credibility of a witness
when he or she “ ‘ “attempt[s] to bolster a witness by reference to facts outside the
record.” ” [Citation.] Thus, it is misconduct for prosecutors to vouch for the strength of
their cases by invoking their personal prestige, reputation, or depth of experience, or the
prestige or reputation of their office, in support of it. [Citations.] . . . Nor may
prosecutors offer their personal opinions when they are based solely on their experience
or on other facts outside the record. [Citations.]” (People v. Huggins (2006) 38 Cal.4th
175, 206-207.) However, a “prosecutor may comment upon the credibility of witnesses
based on facts contained in the record, and any reasonable inferences that can be drawn
from them . . . .” (Martinez, supra, 47 Cal.4th at p. 958.)
The reference to Senior being part of the “greatest generation” was not a reference
to facts outside the evidence, nor was the prosecutor voicing an opinion based on his own
experience. It was a literary reference to a widely known book. Senior’s age was a
matter of record, and his place in the “greatest generation” was therefore an inference the
jury could properly draw.
When the prosecutor argued that Senior should be believed because of the “caliber
of the man, the quality of his testimony, and the character of the man,” he was basing
those conclusions in part on Senior’s gentlemanly conduct during the tire-changing
incident and in part on his demeanor at trial (noting the jury had seen him “sit there on
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the witness stand”). The argument did not employ deceptive or reprehensible means. It
was not improper and was in any case harmless. (Martinez, supra, 47 Cal.4th at
pp. 958-959)
6. Inviting jury to sympathize with Senior
Next defendant argues that the prosecutor improperly invited the jury to
sympathize with Senior. During closing argument the prosecutor discussed the point at
which the evidence had come back from Nike showing that the bloody warranty card
found at the crime scene was from a Nike youth baseball bat and such a bat had been
purchased with cash at the Primm outlet during the time defendant was in the area. He
described giving the news to Senior: “Imagine that you were a 94-year-old gentleman and
you receive a phone call describing the exact nature in which your son and his wife met
their demise.”
Trial counsel objected to the statement as referring to facts not in evidence and as
improper argument. The objection was sustained and the trial court instructed the
prosecutor to move ahead. No admonition was requested or given.
The prosecutor then made one further reference to Senior having to testify on his
95th birthday in a case in which his grandson was charged with murdering his son. The
prosecutor then moved ahead with his argument.
On this point, the Attorney General acknowledges the prosecutor may have
committed misconduct. Indeed, it is improper for the prosecutor to encourage the jury to
view the crime through the eyes of the victims’ family. (Vance, supra, 188 Cal.App.4th
at p. 1193.) But viewing the comments in the context of the whole closing argument we
cannot find the error was cause for reversal.
Because this isolated remark did not amount to a due process violation, the proper
standard of prejudice is the state law standard. (Stansbury, supra, 4 Cal.4th at p. 1057.)
Even if some of the prosecutor’s statements must be considered misconduct, any
prejudice was at least partially offset by the fact that he also emphasized in closing
argument that the jury must not “decide this case based on emotion,” including Senior’s
emotional testimony, but rather the jury’s “job is to be neutral, objective, finders of fact.”
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Given the strength of the evidence and the whole of the argument, there is no reasonable
likelihood the verdicts would have been different had the prosecutor omitted the
references to the impact of the crimes on Senior.
7. “Narcissistic Sociopath”
This claim has been fully discussed, ante.
8. Appealing to jury’s passions, while disparaging defense counsel
In discussing the testimony of MacMillan, Senior’s housemate, the prosecutor
commented on what he considered to be an overzealous cross-examination: “I have
never seen the treatment of a witness like I did with Hilde MacMillan. It made my blood
boil.” A defense “improper argument” objection was overruled and the prosecutor
continued, “The way he treated her. A woman who did nothing but try her best to simply
come in here and tell what she knew.”
Defendant claims these statements wrongfully appealed to the passions of the jury
and unfairly disparaged defense counsel. It is misconduct for a prosecutor to disparage
defense counsel’s honesty or integrity or to suggest he or she has fabricated a defense.
(Cash, supra, 28 Cal.4th at p. 732; People v. Hill (1998) 17 Cal.4th 800, 832; People v.
Thompson (1988) 45 Cal.3d 86, 112; Bruno v. Rushen (9th Cir. 1983) 721 F.2d 1193,
1194-1195 [“absent specific evidence in the record, no particular defense counsel can be”
accused of “underhanded” or “unethical” conduct].)
But not every criticism of defense counsel falls into that category. When such
criticism is limited to commenting on a particular defense attorney’s conduct at trial, the
rule is different. There is no misconduct if a prosecutor’s arguments constitute fair
response to something defense counsel himself has said or done at trial. (People v.
Pearson (2013) 56 Cal.4th 393, 431-432.)
Indeed, a prosecutor enjoys “wide latitude in describing the deficiencies in
opposing counsel’s tactics and factual account.” (People v. Bemore (2000) 22 Cal.4th
809, 846.) Our state courts have repeatedly rejected misconduct claims when confronted
with negative comments about defense counsel’s conduct at trial. (See, e.g., Zambrano,
supra, 41 Cal.4th at pp.1154-1155 [calling defense counsel’s argument a “ ‘lawyer’s
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game’ ”]; People v. Huggins, supra, 38 Cal.4th at p. 207 [prosecutor argued defense
counsel “ ‘tried to smoke one past us’ ”]; People v. Stitely (2005) 35 Cal.4th 514, 559
[telling jurors to “avoid ‘fall[ing]’ for [defense] counsel’s argument” and to view it as a
“ ‘ridiculous’ attempt to allow defendant to ‘walk’ free” and as a “ ‘legal smoke
screen’ ”]; People v. Young (2005) 34 Cal.4th 1149, 1193 [calling defense counsel’s
argument “ ‘idiocy’ ”]; People v. Cunningham (2001) 25 Cal.4th 926, 1002-1003
[prosecutor said defense counsel’s “ ‘job is to put up smoke, red herrings’ ”]; People v.
Gionis (1995) 9 Cal.4th 1196, 1215-1216 [saying defense counsel was “arguing out of
both sides of his mouth”].) A prosecutor may “use[] colorful language to permissibly
criticize counsel’s tactical approach.” (People v. Huggins, supra, 38 Cal.4th at p. 207.)
Here the prosecutor’s sole accusation was that defense counsel was a bit hard on
an elderly witness during cross-examination. There was no name-calling. There was no
suggestion that counsel was unethical or tried to hide the truth from the jury. The jury
had been present during the cross-examination of MacMillan and could judge for itself
whether defense counsel’s treatment of her was too harsh.
Moreover, even if they assessed defense counsel’s questioning as overzealous, no
spillover effect to defendant would be expected. Nor do we think it would have so
reduced defense counsel’s standing in the jury’s eyes as to threaten his ability to present
defendant’s case. The remarks were not intended to or likely to distract the jury from the
evidence itself or the serious issues to be decided. And even if the remarks were
regarded as misconduct, they were nonprejudicial in light of the whole argument and the
evidence in the case. (Watson, supra, 46 Cal.2d at p. 836.)
9. “Narcissistic Sociopath” at end of rebuttal
This claim was rejected, ante.
In sum we find that none of the alleged misconduct, individually or considered in
combination, rose to the level of a federal constitutional violation; whatever comments
bordered on misconduct or crossed the line did not render the trial fundamentally unfair.
To the extent there was misconduct under state law, it was harmless. (People v. Hill,
supra, 17 Cal.4th at pp. 844-845; Watson, supra, 46 Cal.2d at p. 836.)
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Ineffective assistance of counsel for failure to object to demonstrative evidence
Defendant’s next claim is that his attorney provided ineffective assistance of
counsel because he failed to move to exclude testimony by the detectives who drove the
routes from Las Vegas to Pleasanton to Brea. He claims the evidence was objectionable
as an improper experiment because it was not “substantially similar” to the actual events
it sought to replicate. The lack of similarity, we are told, is due primarily to the fact that
the driving experiment did not take account of the time and energy it would have taken
defendant to kill his parents and ransack their home.
Ordinarily, failure to object to the admission of evidence constitutes a waiver of
that issue on appeal. (Evid. Code, § 353; People v. Samuels (2005) 36 Cal.4th 96, 113.)
There was no defense objection (and thus the issue of admissibility has been forfeited),
but defendant claims his attorney provided ineffective assistance of counsel by failing to
challenge the evidence. (Strickland v. Washington (1984) 466 U.S. 668 (Strickland).) He
raises the issue on appeal, which is appropriate only if there was no conceivable
legitimate basis for counsel’s failure to object. (People v. Mendoza Tello (1997)
15 Cal.4th 264, 266-267.)
A defendant claiming ineffective assistance of counsel must demonstrate both
deficient performance and resulting prejudice. (Strickland, supra, 466 U.S. at pp. 687,
691-692; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) On the first prong he must
show that “counsel’s representation fell below an objective standard of reasonableness”
measured by “prevailing professional norms.” (Strickland, supra, 466 U.S. at p. 688.)
Under the second prong, the defendant must show that in the absence of the error it is
reasonably probable that a result more favorable to him would have obtained. (Id. at
p. 694.) “[A] reasonable probability is a probability sufficient to undermine confidence
in the outcome.” (Ibid.)
Experimental evidence may be admitted if (1) it is relevant, (2) its conditions and
those existing at the time of the alleged occurrence are shown to be substantially similar,
and (3) the evidence will not consume undue time or confuse or mislead the jury.
(People v. Bonin (1989) 47 Cal.3d 808, 847; People v. Boyd (1990) 222 Cal.App.3d 541,
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565.) A trial court enjoys wide discretion in deciding whether to admit such evidence,
and its decision is reviewed only for abuse of that discretion. (People v. Boyd, supra,
222 Cal.App.3d at p. 566.)
Defendant claims the prosecution could not have borne its burden of showing the
conditions at the time of the test were “substantially similar, although not necessarily
absolutely identical conditions” to those at the time leading up to and following the
murders. (People v. Bradford (1997) 15 Cal.4th 1229, 1326.) By appellate counsel’s
assessment, there is no conceivable tactical reason for trial counsel’s failure to move to
exclude such evidence as it directly contradicted the defense theory and was clearly
inadmissible. But “a mere failure to object to evidence or argument seldom establishes
counsel’s incompetence.” (People v. Ghent (1987) 43 Cal.3d 739, 772.)
As we see it, the primary point of the experiment was to determine whether it was
physically possible to drive from Primm, Nevada to Pleasanton, California between the
last time defendant’s credit card was used in Primm and 8:27 p.m. when a car resembling
defendant’s was video-recorded entering Castlewood. Secondly it was intended to prove
that it was physically possible to drive from Castlewood to Brea between 12:42 a.m.,
when a car resembling defendant’s was recorded leaving Castlewood, and 6:36 a.m.,
when defendant’s cell phone was reactivated in Brea.
Defendant posits that the experiment was also intended to show that someone who
had done all that driving could also be alert enough to play “vigorous” bridge in a
tournament the next day. In that regard, defendant claims the experiment was faulty
because it omitted the murder and the physical exhaustion that would have accompanied
the beating and stabbing of two able-bodied people. Secondly, he suggests the drive test
performed by the detectives was faulty because they did not play intense competition
bridge after completing the drive.
This argument assumes the evidence was admissible only if it replicated every
aspect of the murders and ensuing events. The test drive evidence was relevant and
therefore admissible if it tended to prove the two legs of the drive could have been
completed within the timeframe available to defendant, regardless whether it was also
65
relevant to showing that defendant would have been alert enough to play in a bridge
tournament the next day.
The jury was in no way misled and the evidence was not inflammatory. Had it
included a mock murder there may have been all the more reason for objection. (Cf.
People v. Rivera (2011) 201 Cal.App.4th 353, 360-361, 363-367 [courtroom
demonstration of strangulation].) And finally, defendant’s argument assumes facts not in
evidence, namely the psychological and physical effects of beating one’s parents to death
and slitting their throats. For all we know such an experience may produce an unusual
rush of adrenaline sufficient to sustain one through a few hands of bridge. Besides, it
certainly may be doubted how much physical “vigor” is required to compete in a bridge
tournament.
As for the argument that the detectives did not play bridge after completing the
drive, again, we find it did not materially alter the similarity of the experiment for
purposes of its admissibility. The officer who had done the driving did stay up until
8:00 p.m. and reported she did not feel tired until approximately 7:00 p.m. The jury was
free to determine for itself whether this was convincing evidence that defendant would
have been physically capable of committing the murders within the timeframe derived
from his cell phone records. Defendant’s argument takes us far beyond the requirement
of “substantially similar but not identical” circumstances.
The defects now pointed out by defendant went to the weight to be accorded the
evidence, not to its admissibility. “[W]e must assume that the jurors were intelligent
people and that they understood and took into account the differences identified . . . on
appeal.” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1115-1116.) We find no basis
upon which the evidence could realistically have been excluded. And because the
evidence was properly admissible, defense counsel was not ineffective for failing to
attempt to have it excluded. In any event, defendant’s own investigator conducted the
same experimental drives with the same results: he was able to drive from Primm to
Pleasanton in seven hours and 9 minutes and from Pleasanton to Brea in six hours and 48
minutes.
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Parole revocation fine
Defendant claims it was error for the court to impose a parole revocation fine
under section 1202.45, since he was sentenced to prison for life without possibility of
parole. The Attorney General agrees, as do we. The fine is not applicable to a person
sentenced only to a term of life imprisonment without the possibility of parole. (People
v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183.) But such a fine must be imposed
where a defendant receives both a sentence of life without possibility of parole and a
determinate sentence. (People v. Brasure (2008) 42 Cal.4th 1037, 1075.) Since the only
determinate terms in this case were for weapon enhancements attached to the two life
terms, not for separate offenses, a parole revocation fine was not appropriate. We will
therefore order the abstract of judgment modified to strike that fine.
DISPOSITION
The abstract of judgment is ordered modified to strike the parole revocation fine
imposed under section 1202.45. In all other respects the judgment is affirmed.
_________________________
Richman, J.
We concur:
_________________________
Kline, P.J.
_________________________
Haerle, J.
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