THE PEOPLE, Plaintiff and Respondent, v. ROYAL KENNETH HAYES, Defendant and Appellant, 21 Cal. 4th 1211

Opinion BAXTER, J. On December 3, 1984, a jury in the Santa Cruz County Superior Court convicted appellant Royal Kenneth Hayes of the December 29, 1981, first degree murders (Pen.

Code, §§ 187, 189) of Lauren de Laet and Donald MacVicar, and found true a multiple-murder special-circumstance allegation (§ 190.2, subd. (a)(3)) and an allegation that Hayes personally used a firearm during the commission of the murders. (§ 12022.5.) The same jury convicted appellant of the March 9, 1982, false imprisonment (§ 236) of and assault with a deadly weapon (§ 245, subd. (a)) on Deborah Garcia, and of possession of cocaine (Health & Saf. Code, § 11350) on March 10, 1982, the date of his arrest. The jury was unable to agree on the penalty for the murders.

On May 29, 1986, a jury in the Stanislaus County Superior Court, to which county the case had been transferred on a change of venue, returned a penalty verdict of death. The trial court denied appellant’s motion for modification of the penalty (§ 190.4) and imposed a judgment of death on August 8, 1986. This appeal is automatic. (§ 1239.) We shall affirm the judgment in all respects.

I The Prosecution Guilt Phase Case Briefly summarized, the evidence, insofar as it relates to the murder counts, established that Donald MacVicar and Lauren de Laet were shot by defendant at a remote location on the Santa Cruz campus of the University of California where shallow holes, in which the victims were to be buried, had been prepared. The victims were lured to the location by defendant to whom MacVicar had given $250,000 for cocaine, which the victims had been led to believe was to be delivered at a house near the site of the killings.

The victims were taken individually from the vehicle in which they had been driven to the location. Diane Weller, an accomplice who testified under a grant of immunity, was instructed to remain in the vehicle. The victims were told that each had to be searched before going to the house where delivery of the cocaine was to occur. Deborah Garcia, another prosecution witness, who had prepared the holes and testified under a grant of immunity, was present.

Appellant ordered her to search each victim and, as a victim leaned forward against a tree to submit to the search, appellant shot the victim in the back of the head. MacVicar, the first to be taken to the site, was killed by a single shot. De Laet, who was brought to the site after MacVicar had been shot, did not die at once and was shot in the head a second time. Garcia then brought Weller to the scene. Appellant removed the victims’ heads and hands, after which the bodies were placed in the holes, which had to be enlarged.

What appellant believed was quicklime that would hasten decomposition was spread over the bodies. The graves were then covered with dirt, brush, and leaves. The severed body parts were placed in plastic bags and left nearby. Appellant, Garcia, and Weller later disposed of the perpetrators’ clothes, the guns, and other evidence at other locations. On February 20, 1982, a mushroom hunter discovered fragments of what was later determined to be de Laet’s skull. He marked the location and took the skull fragments to a sheriff’s deputy.

He returned to the site with two deputies who, while they awaited the coroner, pieced the fragments together and observed a hole that appeared to be the size of a .44- or .45-caliber slug. On the following day, sheriff’s deputies and other investigative personnel located more bone fragments, a small amount of hair, a shovel, a kitchen or steak knife, and a green garbage bag near the place at which the bone fragments were found. MacVicar’s body was found on March 10, 1982, de Laet’s the next day. Each torso had a white clay-like substance clinging to it.

MacVicar’s skull was found in the same area by another mushroom hunter on March 18, 1982. An autopsy surgeon later removed a .45-caliber slug from this skull. De Laet’s skull was found to have holes from two bullets which were .44- or .45-caliber. Neck and wrist wounds indicated that the heads and hands had been removed with a slicing or chopping instrument like a hatchet, machete, or cleaver. Identity of the victims was confirmed through past X-ray and dental records.

Appellant’s involvement became known when Garcia, fearing for her life and the safety of her family, disclosed her participation to her brother-in-law, who arranged for her to meet with an agent of the Federal Bureau of Investigation and local law enforcement officials. Weller and Garcia, each of whom claimed to have acted under the domination of appellant and to have feared him, testified about their relationship with him and about various drug-related criminal activities in which they and others had participated with appellant over a period of years prior to the murders.

It is necessary to state in greater detail the evidence received during the guilt phase of the trial, although much of it is not relevant to establishing appellant’s guilt, because the evidence goes both to the credibility of the chief prosecution witnesses, Weller, an accomplice, and Garcia, whom the jury may have found to be an accomplice, and to whether Garcia was an accomplice as a matter of law.

In addition, at the penalty phase the jury was permitted to consider much of this evidence, which reflected criminal activity involving force and violence and both express and implied threats to use force and violence. (§ 190.3.) A. Weller’s Testimony. 1. Events preceding December 29, 1981. Weller met appellant in Minneapolis in 1977. She became infatuated with him, and he moved into her apartment. Appellant dressed well, had expensive jewelry, and seemed to be a “big spender.” He initially told Weller he was a real estate salesman, but spoke about his relationship with the Teamsters Union and the Mafia.

At that time Weller believed appellant’s money came from connections appellant had with the Mafia. He told her he could have people followed and could make things happen to them. He did not like “snitches” and people who stole from him. Weller felt she would be killed if she did either, but was not afraid of appellant at that time because she did neither. Appellant and Weller moved to Kailua-Kona on the island of Hawaii late in 1977.

He now claimed that he was connected with the “Hawaiian Mafia” where he was a “man of respect.” He told Weller that a person should never argue with a “man of respect” and screamed at her if she talked back to him. Appellant used the code name “Penguin.” His credit cards bore a “Central States’ Properties” logo. He used other persons’ names for two telephones and had a post office box registered to “Mr. Church.” He told Weller not to ask questions about his business and said he was having her followed for her own personal safety.

She believed appellant because he was aware of things she had done about which she had not told him. Early in 1979 Weller left appellant’s house because appellant required her to report everything she did. Appellant told her again that he was having her followed for her own safety and she saw persons she thought were following her. In April 1981 appellant was living in a small one-bedroom house across the road from the beach on Alii Drive in Kailua. Deborah Garcia had been living with appellant at that location.

Weller first met Garcia at a time when Garcia was living with appellant, sometime before January 1981, and saw her again that month when Garcia was living in the Alii Drive house. One of appellant’s telephones was in Garcia’s name. Garcia left for the mainland United States in April 1981. Appellant called Weller. He said Garcia had left, told Weller that he was ill and unhappy, and asked her to visit him. At appellant’s request, Weller, who was then living in a small trailer on the beach, moved back in with appellant. When Weller moved back in with appellant, appellant was using cocaine on a regular basis.

For two months both Weller and appellant used two to three grams of cocaine daily. They left the house only for necessities. Appellant often spoke “gibberish” and Weller believed he was having a mental breakdown. In the summer of 1981, appellant began to speak of connections with the CIA and continued to talk about connections with the Teamsters Union and the Mafia. He said that “Penguin” was a code name from the CIA, and told her that two of his friends who came to the house during this period and used cocaine with them were CIA agents. He also showed her purportedly secret documents.

Appellant, who stayed awake and talked for days during the two-month period of heavy cocaine use, told Weller that the head of the Teamsters Union was to have a physical examination at the hospital and would never leave the hospital. When the official died on the day appellant said he would, Weller was afraid and believed that appellant did have something to do with the Mafia. At the time they were living on Alii Drive, appellant often used pay phones to make and receive calls, explaining that his own telephone was probably tapped.

Weller began to doubt her own sanity because appellant often accused her of forgetting instructions. He was then receiving and selling cocaine regularly and she helped him “cut” it. Lauren de Laet mailed a package of cocaine to appellant during the summer of 1981. He hid the cocaine, which may have been a quarter of a pound, in a lava-rock wall in the garden. Appellant told Weller he had met de Laet on the beach during the summer of 1980 when she was living in Hawaii. De Laet wrote cards to appellant and Weller.

Weller talked to de Laet often on the telephone when de Laet called to speak to appellant, and, at appellant’s direction, Weller wrote to her weekly. Weller did not meet de Laet in person until Christmas Eve, 1981. In late June or early July 1981 appellant and Weller stopped using cocaine. The decision to do so was appellant’s. They both began eating normally and appellant worked out and jogged daily to get back in shape. His mental state did not return to normal, however. He was tense and easily became angry. He continued to speak of the CIA and about his phones being bugged. He spoke of bombs in the cars.

In August 1981, appellant told Weller that he was going to the mainland to spend more time with de Laet, and that he expected de Laet to move in with him in Hawaii. He told Weller to remove items that would clash with de Laet’s nonviolent character from the home. He specified a plastic handgun, handcuffs, a knife, and a picture of appellant wearing a bandoleer of bullets. He told Weller she was to live with Tonya Tate, to whom appellant had introduced her. Weller moved out of the Alii Drive house.

Appellant was with de Laet in San Rafael for about a month in August and September 1981, but de Laet did not accompany him on his return to Hawaii. Appellant asked Weller to move back in, stating that de Laet was just a good friend. Appellant brought LSD back with him. Weller and Tate used LSD with appellant once a week at the Alii Drive house. Appellant had become edgy and short-tempered. He struck Weller in the face twice. He told her the importance of “respect” and claimed that because people were afraid of him they would be afraid of her.

He said he would tell people that she was capable of killing and that he had taught her to kill and shoot a gun. She never disagreed with appellant in front of anyone because that would be disrespectful. In October 1981 when she told him that his lies about her were not a good idea, he repeatedly struck her, saying she should never disagree with him and threatened to kill her if she told anyone he had struck her. Although appellant’s attitude toward Weller had changed from understanding and kindness to violence, she stayed with him because she was afraid to leave.

She also thought that appellant needed help because something had happened within him and she could not just leave him. Appellant flew to California a week before Thanksgiving in 1981. He told Weller he was tired of Hawaii and was going to buy a house and move to California. Weller was going to Minnesota for Christmas, but appellant asked her to stop in California and meet de Laet. Weller flew to San Francisco on December 21, 1981. Appellant and MacVicar met her at the airport and the group traveled to the Millbrae Travelodge. At appellant’s direction, Weller rented a room for 10 days.

While they were at the motel, MacVicar visited and the three ingested cocaine daily. In MacVicar’s presence, Weller gave appellant two guns, one of which was a .45-caliber Colt Combat Commander appellant had instructed her to bring from Hawaii. The second gun was a .22-caliber derringer. Appellant had told her that the guns, which had been in the possession of Tommy Pyne in Hawaii, were registered to Garcia. Appellant appeared to like MacVicar, put his arm around MacVicar, and called him his brother. He told Weller that MacVicar' was a wonderful person.

Appellant did not leave the room during their 10-day stay at the Millbrae Travelodge. De Laet arrived at the motel with MacVicar on December 24. While MacVicar was away on December 26, appellant became angry with de Laet, accused her of partying with cocaine he had given her, and hit de Laet several times, demanding that she apologize on her knees to Weller, who was a “lady.” He also ordered Weller to hit de Laet. Later he put his arms around de Laet, told her she was a good girl, and told her that everything would be all right.

On December 27, 1981, MacVicar brought $160,000 in cash in a black bag to the motel room where he counted it and packaged it for appellant. The money was payment for cocaine. Appellant stated that he thought they had agreed on $250,000. MacVicar replied that he could get the remainder in a day or two. Following appellant’s instructions Weller, de Laet, and MacVicar, wearing gloves, washed the money using towels and rubbing alcohol to remove any fingerprints, and then repackaged the money in thousand-dollar packs. By this time it was obvious to Weller that appellant was not pursuing a real estate transaction.

Appellant had mentioned going to Santa Cruz and at this point Weller thought she knew what was going to happen to de Laet and MacVicar. Weller was directed to address packages of the money she had put together. One envelope containing $20,000 was for Deborah Garcia. After MacVicar left, appellant told Weller that he planned to kill MacVicar and de Laet in Santa Cruz on December 29 and she was to go with him. A friend in Minnesota had a gun and had made a silencer for him. They were to be delivered on the 28th. He had set MacVicar up for $250,000, promising MacVicar the best cocaine he ever had.

MacVicar and de Laet had been led to believe that to make the deal, they had to go to Santa Cruz because people who did not want their names disclosed were going to deal with appellant on their farm in Santa Cruz. The $20,000 for Garcia was for going to Santa Cruz with them. Weller did not go to the police because she did not believe she could stop the killings and feared that appellant would kill her if she did so. Larry Dahl, a friend of appellant, arrived from Minnesota with a pistol equipped with' a silencer on December 28.

Minutes before Dahl arrived, Weller had taken a telephone call for “Penguin” from a caller who said: “Tell him it’s L.D.” Appellant told Weller that Dahl was a “man of respect” whom she was to hug when he entered. Appellant and Dahl embraced, spoke of “old times,” and Dahl showed appellant how to attach the silencer and use the gun. The silencer looked like a car muffler and was about a foot long. Dahl stated that Jim Johnson could not guarantee that the silencer would work because appellant had not given him much time to work on it. Appellant hid the gun before MacVicar returned.

MacVicar and Weller left to mail the packages of money, except that for Garcia, at different post offices and purchase food. After they returned, MacVicar left to get an ounce of cocaine for appellant. While he was gone, appellant told Weller that he was going to pay Dahl $5,000 for delivering the pistol and silencer. Appellant also offered to pay Dahl’s hotel expenses at the San Francisco Airport Hilton. 2. December 29, 1981. On December 29, 1981, appellant told Dahl and Weller to rent a four-door sedan, with Dahl signing as the renter and Weller as the second driver, for the drive to Santa Cruz.

He ordered Dahl and Weller to get knit caps, gloves, a saw, and a hatchet. He explained that he was going to cut up the corpses of MacVicar and de Laet so the bodies could not be identified if found. After they had obtained the items and Dahl had left, appellant told Weller to wear gloves and the stocking cap with all of her hair underneath it. She was also told to bring a change of clothes to wear after the killings, to shower, and to avoid use of deodorant or perfume.

Appellant and Weller left the motel at noon on December 29 with the hacksaw and plastic garbage bags in one suitcase, the remainder of the money in a briefcase, the gun with silencer in a second briefcase, and the change of clothes in a second suitcase. All of these items were put in the trunk of the rental car, and the couple drove to the San Francisco Airport Hilton Hotel where they met de Laet and MacVicar in the parking lot. The four then drove to Santa Cruz in the rental car, de Laet at the wheel. In Santa Cruz, the group met Garcia in the parking lot of a doughnut shop at 3:00 p.m.

Appellant had told Garcia earlier that he would say she was a teacher, to put de Laet and MacVicar at ease. Weller was told to refer to Garcia as “Bebe,” as de Laet and MacVicar knew Garcia by that name. Leaving the others in the rental car, appellant spoke with Garcia at her Bronco automobile for 10 to 15 minutes. He then told Weller, de Laet, and MacVicar to join Garcia. They would use the Bronco because Garcia knew the way and to avoid getting stuck in the mud as it was raining. Appellant brought the luggage to the Bronco.

The five then drove in Garcia’s Bronco to a place on Empire Grade Road where Garcia parked on the shoulder. Garcia and appellant walked into the woods adjacent to the road, appellant explaining they were going to “check out” the exact location of the house where the cocaine transaction would occur and to see if they could walk or drive in. Appellant took a suitcase and a briefcase with him. Garcia returned in about 10 minutes and told MacVicar he could get out, but when de Laet started to follow, Garcia told her that appellant wanted MacVicar to come by himself. Weller and de Laet waited in the Bronco.

Before Garcia returned again to the Bronco about 10 minutes later, Weller heard a single gunshot which sounded like a branch breaking. Garcia then told de Laet she could get out and went with de Laet into the. woods. After another 10 minutes Garcia again returned and told Weller she could get out. Weller told Garcia she really did not want to, but Garcia said appellant wanted to see her. Weller believed she was going to be killed because she knew what was to happen to the two people ahead of her.

When Weller reached appellant, he was holding the gun in his hand and was standing over the bodies of MacVicar and de Laet, each of whom had been shot in the head. Appellant told Weller and Garcia that they were “really good girls,” and told them that they were never to discuss the matter with anyone, even themselves, and that he owed it to each of them to kill the other if either did so. Garcia and Weller were ordered to take the clothing off the bodies and to place the clothing in one of the garbage bags and the victims’ jewelry and any metal objects in another with the expended shells.

As they were doing so, appellant tried to use the hacksaw to cut off MacVicar’s head, but the blade broke. Commenting that “they don’t make them like they used to,” he then used the hatchet to chop off the heads and hands of both victims. The body parts were placed in a third garbage bag. The women were ordered to place MacVicar’s body into the larger of the two holes Garcia had previously dug. The three then placed de Laet’s body in the second hole. Each hole had water in it and had to be made deeper. Garcia then opened a bag of lime and poured half of the lime over each body before the holes were covered.

Appellant said the lime would decompose the bodies. The holes were filled with dirt and the area was then covered with leaves and branches so it looked like the rest of the forest area. The three garbage bags were placed by a tree deeper in the woods. The hacksaw and hatchet had been placed in the bag with the metal objects. Appellant, Weller, and Garcia then drove back to the doughnut shop. The guns Weller brought from Hawaii were in the console of the Bronco with the envelope of money for Garcia.

The three changed clothes in the Bronco and put the clothes they had removed into a garbage bag which was placed in the trunk of the rental car. Garcia did not have a second pair of shoes and wanted to keep hers on, but appellant did not allow that. Appellant and Weller then followed Garcia who drove the Bronco to the Dream Inn Motel in Santa Cruz where Weller registered in her name at appellant’s direction and paid for the room with money he had given her. She did not report the murders at that time because she was terrified. She believed appellant would kill her if she did so.

On the way to the Dream Inn appellant told Garcia to call Garcia’s mother, Mrs. Diane Edwards, and have Edwards join them at the motel. He told Weller that Edwards knew “some old school people” of respect in Las Vegas. She understood this to be a reference to Mafia people. Garcia called her mother, asked her to come over, and asked her to bring shoes for Garcia. Garcia assured appellant that her mother did not know what they had done that day and Weller assured him that no one knew what she had done. He again told them they were never to talk about it, even to him. Garcia’s mother then arrived, with the shoes.

Garcia and Weller remained in the Dream Inn room for one or two hours. Appellant was consuming cocaine which he had in one briefcase. Before Garcia’s mother arrived at 6:30 p.m., appellant, who had been in the bathroom with Garcia, told Weller that Garcia had lied about whether Garcia had stopped drinking and directed Weller to go into the bathroom and slap her. When she went into the bathroom Garcia was crying and said “I’m sorry.” Appellant’s treatment of Garcia was similar to his earlier treatment of de Laet. Appellant then went back into the bathroom to talk to Garcia.

At 9:00 or 10:00 p.m., appellant said he wanted to be alone with Edwards and directed Weller and Garcia to take a room at another Santa Cruz hotel and return to the Dream Inn the next morning at 9:00 or 9:30 a.m. Weller and Garcia left. Garcia took the guns out of the Bronco, which belonged to Edwards and put them in a knitting basket in the trunk of Garcia’s small sports car which Edwards had driven to the Dream Inn. Garcia drove the pair, in her car, to a Holiday Inn where Weller again registered in her name and paid for the room with money provided by appellant.

Garcia brought the knitting basket with the guns. Weller believed that Garcia was guarding her. She was terrified. During the evening, Garcia told Weller that she had recently married an armored truck driver and was not taking drugs or drinking anymore. Weller did not tell the hotel manager or call the police to tell them of the day’s events because she was afraid. 3. Post-December 29, 1981, California events. Weller and Garcia returned to the Dream Inn the morning of December 30, 1981. Edwards opened the door. After two or three hours, the four left the hotel. Garcia drove her own car.

Her mother drove the Bronco. Weller drove appellant in the rental car back to the Millbrae Travelodge. The garbage bags of clothing, the suitcases, and the briefcases were all taken into the original room where appellant, using a hunting knife, cut up the soiled clothing, clothing MacVicar and de Laet had brought down for the Santa Cruz visit as well as de Laet’s soft luggage bag, and the items used to wrap the money, all which was put into trash bags. Weller was directed to call Dahl from a nearby phone.

When Dahl arrived a few hours later, appellant gave him and Weller detailed instructions about disposal of this clothing in various Dumpsters around town using the rental car. He also directed them to purchase ammonia and rubber gloves. Dahl told Weller he did not want any blood leaking from the bags. They completed the tasks and returned in about two hours. Weller called the airport and made a reservation in her own name for a December 31, 1981, flight to Minneapolis. Sometime before December 29 appellant had told Weller that he had directed de Laet to write a letter to him in Hawaii.

The letter was to arrive after her death and cover up her murder, referring to Lauren and Don in Florida having a wonderful time and preparing to leave the country. Weller saw appellant hand a letter, wrapped in tissue to avoid fingerprints, to Dahl on December 31 and heard him ask Dahl to mail the letter from Florida. Using the ammonia and rubber gloves, appellant, Weller, and Dahl cleaned the hotel room to remove any trace of hair or fingerprints. Later that day, Weller drove to the San Francisco Airport Hilton, where Dahl was staying, to return the rental car.

Dahl and appellant followed in a rental car Dahl had driven from Minnesota. They stopped on an access road and Dahl joined Weller. After returning the California rental car, Weller and Dahl took a taxi to the waiting Minnesota rental car, and, with appellant, drove to the airport to drop Weller off for her 1:00 p.m. flight to Minneapolis. Appellant had asked Weller to reserve the room at the Millbrae Travelodge for three more days, but the management would not do so. Appellant said he and Dahl were going to drive up to Washington and that he would fly back to Hawaii from Washington.

Before she left, on appellant’s instruction, Weller had called Jim Johnson, whom appellant had often referred to as a friend, and who was to pick her up at the Minneapolis airport. She was told to identify herself as “Big Red.” She was to stay with Johnson long enough to tell him how the silencer worked. She made no attempt to notify authorities of the murders after appellant and Dahl dropped her off at the airport or during the two or three stops on the flight to Minneapolis. She was still afraid that appellant would kill her and simply wanted to be away from him. 4. Minnesota events and return to California.

Jim Johnson’s wife, Sondra Johnson, and Sondra’s daughter met Weller at the Minneapolis airport at 10:00 p.m. on December 31, 1991, and took Weller to their apartment in Edina. Weller met Johnson, who had just returned from Florida, the next day at another person’s home. Later in the day, at the Johnsons’ apartment, Weller told him that the silencer did not work the first time, but did work for the second and third rounds. Johnson indicated he knew what she was talking about. Weller did not go to authorities at this point as she was terrified by appellant’s threats to kill her.

She believed that the Johnsons were watching her for appellant. When appellant called and asked if she was going to return to Hawaii, she told him she would do so in a month, after seeing relatives. She did not intend to return, but did not tell appellant that, as she feared appellant would come to Minneapolis and kill her. Appellant began calling repeatedly in the middle of the night asking when she was returning, saying that he missed her, and saying he was lonely. She thought he was trying to lure her back in order to kill her.

Dahl appeared a few days after Weller arrived in Minnesota and had a private meeting with Jim Johnson. Weller then saw the Johnsons in possession of a number of guns she recognized as having belonged to appellant, including what appeared to be the gun used to kill de Laet and MacVicar. One gun described to her as a Datonic firearm looked like a gun that had been in California. Appellant had told Weller that Johnson was a cocaine dealer, and Johnson himself told her that he had been to prison, that he dealt drugs, and that he manufactured firearms and firearms parts. He showed her a machine gun.

Weller decided not to go home as she believed appellant was going to kill her and she did not want to present problems to her family. After being with the Johnsons for two weeks, she trusted them more. She became fond of Jim Johnson and a sexual relationship developed between them. This occurred notwithstanding her knowledge that Johnson himself had killed a man and was a cocaine dealer. She believed Johnson could help keep her from being killed. Weller then told Johnson that appellant had gone crazy and had killed two people in a drug setup and that she was certain he would kill her because she was a witness.

Johnson seemed surprised and said he thought he had made the silencer for appellant to “kill snitches.” He had originally gotten the parts for the gun and silencer from appellant for use in a robbery, but he was later asked to get the gun ready immediately because appellant had to “kill some snitches in California.” Appellant and Garcia arrived at the Minneapolis airport on February 19 or 20. Jim and Sondra Johnson, Weller, and Dahl, all armed because they feared appellant, met them at the airport in the Johnsons’ van. Garcia had a black eye. Garcia said a karate opponent caused it.

Garcia was quiet, appeared to be very scared, and throughout her stay was robot-like, doing what appellant told her to do. At the apartment appellant accused Weller of calling him a punk and became angry when she denied the accusation. He demanded that she apologize to Johnson for being disrespectful in his house and ignored Johnson, who protested that Weller was not disrespectful. Appellant followed Weller into the bathroom, grabbed her, slapped her into the tile wall, twisted her arm, and held a comb to her throat as if to slash it. He stopped only when Johnson intervened.

Weller finally apologized to Johnson in response to appellant’s demands. Appellant then threatened to kill her if she told anyone about the California murders and told her to consider herself “hunted.” When she opened a vitamin bottle, clicking off the safety cap, appellant ran toward her, pulled a gun, and pointed it at her. He put the gun down at Johnson’s direction. Appellant and Garcia left the apartment shortly afterwards. Weller did not see them again until the murder prosecution commenced. Early in March 1982, Weller moved into an apartment with the money supplied by the Johnsons.

She did so because she believed Johnson could no longer protect her from appellant. The apartment was rented in the name of Tonya Tate. Johnson stored cocaine and equipment used for cutting, pressing, and packaging the drug, which had previously been kept in Dahl’s apartment, in this apartment. Weller remained in the apartment until April 22, 1982, when she surrendered to the Federal Bureau of Investigation (FBI) in Minneapolis.

She did so on the advice of an attorney, although still afraid of being killed by appellant or his associates, after learning that the Johnsons had been arrested, appellant had been arrested, and a warrant had been issued for her arrest. When contacted by Santa Cruz law enforcement officers a day or two later, she refused to talk to them because she was afraid. At the end of June 1982, having been charged with being an accessory to murder, she agreed to talk to them after her Minnesota attorney explained her options and she was promised immunity from prosecution for anything in her statement.

The only exceptions to the grant of immunity were perjury and if the prosecutor discovered that she had actually shot someone. Weller agreed to make a statement even though she still feared that appellant would have her killed either in or outside of jail. Weller first talked to California authorities on June 30 and July 1, 1982, giving taped statements while in the Hennepin County (Minnesota) jail. She had been advised that the charges against her would not be dismissed until she arrived in California.

She was returned to Monterey County in protective custody and held in the county jail, first in Santa Cruz and then in Salinas under another name, until August 2, even though the charges against her had been dismissed earlier. The Johnsons pleaded guilty to state and federal charges in Minnesota and Weller did not testify against them, but she did testify against Dahl in Minnesota. For three months she received funds from the California Witness Protection Program during which time she found a job. The Federal Witness Protection Program rejected her request for an identity change.

Weller conceded that she had initially told representatives of the district attorney’s office that she did not know that MacVicar and de Laet were going to be killed until the murders occurred. She also testified to that effect at the preliminary hearing and denied that she had seen the hatchet, hacksaw, and garbage bags in the Millbrae Travelodge. Although she had originally denied seeing Dahl in California, because she did not know where he was and was afraid, at the preliminary hearing she testified that she had seen him.

On cross-examination at trial she conceded that she had not been truthful in her preliminary hearing testimony when she denied involvement in and knowledge of many of the Johnsons’ unlawful activities. The defense also brought out occasions during which Weller was in proximity to law enforcement personnel and could have alerted authorities to the criminal conduct of appellant and the Johnsons, but did not do so, and the many occasions on which there was no impediment to her leaving appellant. B. Garcia’s Testimony. 1. Events before December 29, 1981.

Deborah (Debbie) Garcia (then Deborah Chichiletti) met appellant in December 1979 in Kailua-Kona, Hawaii. She began dating appellant in or about January 1980. After she had lived for about two months in a house next door to him, appellant asked her to move into his house and assist with household chores. Appellant first told Garcia about the Mafia in January 1980, and stated that a lawyer he helped her retain for her divorce had helped appellant in his Mafia dealings. Before she moved in with him appellant asked Garcia if she knew anyone who could get large quantities of cocaine.

At appellant’s request she arranged, through an acquaintance, to purchase one pound of cocaine for $22,000. Appellant supplied the money and she flew to California to complete the purchase. Appellant told her that someone would be watching her on the plane and that she would be killed if anything went wrong. Due to an apparent misunderstanding, the contact had only four ounces of cocaine for which she was charged $2,200 an ounce.

When she returned with only four ounces of cocaine, contrary to appellant’s instructions, he said he would kill her within the week if she did not make up the difference between what had been paid and what he believed the “crummy cocaine” was worth. She borrowed money from a friend and gave it to him. From early 1980 to early 1981, while Garcia lived with appellant, he assaulted her at least six times, tried to strangle her, and poisoned her with adulterated cocaine. While she was hospitalized recovering from the poisoning, he hit her in the face during a visit.

He said she opened her mouth too much, threatened her with his Mafia connections, and told her she was being watched. She knew the last was true because he knew exactly where she had been even when she had been all alone with no one around. She once thought about leaving and confided in Judith Lindquist, without knowing that Lindquist was appellant’s former wife.

Soon thereafter, apparently aware Garcia had spoken to Lindquist,- appellant told Garcia that he would have Garcia’s nephews or nieces killed if she tried to leave, would chop off her brother’s head or cut his fingers off, and would hang her sister’s child and her brother on meat hooks while forcing Garcia to watch. After her divorce, appellant had Garcia bring him as many firearms from the marital settlement as possible. She provided appellant with a .45-caliber Colt pistol and a .22-caliber derringer. Appellant buried the guns in an ice chest in the backyard with money and drugs.

Later appellant brought home two Datonic .45-caliber guns. He said they were “good killing guns” and that the guns were not registered; they had come direct from the factory somehow. Appellant had a “cowboy” gun in his bedroom. Appellant repeatedly threatened to kill Garcia if she did not obey or left without his permission. He claimed to be one of seven “men of respect” in the country. He threatened to kill her family if she committed suicide. After she called a friend and discussed moving out, appellant repeated to her everything she had said on the phone, reminding her that the phone was tapped.

He boasted that he was the biggest marijuana grower in Hawaii, and began using cocaine heavily in December 1980, even while he lectured Garcia about taking pills or drinking alcohol. He said she would be killed by the Mafia if she used drugs or alcohol, but later when she lived in his house he let her smoke marijuana with him and take cocaine. Toward the end of 1980, she saw him in possession of as much as a pound of cocaine at the Alii Drive house. Garcia met Weller in Hawaii in 1980. She first saw appellant using cocaine with Weller and Tonya Tate.

Appellant forced her to apologize to his friends for her shortcomings. He also told her under the penalty of death to take care of Bennett Cleff to whom he claimed to be selling real estate under the name “Central States Properties,” sending her to a hotel where she engaged in degrading sexual acts with Cleff. She believed she or someone in her family would be killed if she did not comply with Cleff’s demands. Appellant sent Garcia to California in March 1981. During the previous two months he had told her many times that he could or would have her killed.

When he sent her back to California he told her he was doing so because the Mafia said she talked too much and had to be killed. He made an agreement with the Mafia to have her watched so she would not talk rather than killed outright. Appellant gave Garcia a package containing guns and told her to mail them to the mainland to be waiting for her on arrival. She mailed the guns with some of her clothing in a beer cooler provided by appellant. In California she retrieved the package and moved in with her mother as appellant had instructed.

Appellant monitored her with frequent phone calls to her and her mother, and told her he had assigned someone to follow her. She never questioned appellant and followed his instructions to wait at phone booths for scheduled calls. Appellant told her she would be followed. She believed him because several times in Santa Cruz she saw a man whom appellant had asked to carry her bag onto the plane in Kona and who had been on the plane to San Francisco. On one occasion, she saw him near her mother’s house. On another he was watching her.

Appellant also instructed her to wait at a phone booth each Wednesday at 5:00 p.m. and called her there. In April 1981 appellant instructed Garcia to open the package of guns, which she had assumed contained her guns. Inside she found instead the Datonic guns and the “cowboy” gun. Appellant directed her to wipe down the weapons with a cloth and store them in the packing until someone arrived at her door using the code name Penguin and asked for the package. When she moved out of her mother’s house, appellant directed Garcia to take the package back to her mother’s house because Garcia could not be trusted.

In October 1981 appellant visited Garcia and told her to date Donald Garcia, whom she had met earlier and to learn as much as she could about Donald Garcia’s employer, an armored car service. He gave her Donald Garcia’s Social Security number. In November 1981 appellant ordered Garcia to marry Donald Garcia so that he could more easily arrange to rob Donald Garcia’s armored car. She married Donald Garcia on December 5, 1981. Appellant had then developed a relationship with Edwards. Garcia met de Laet in November 1981. Appellant had then returned to the mainland.

At his direction Garcia took the Styrofoam container in which the guns were packed to the Corte Madera Inn in Corte Madera where she met appellant. Garcia drove appellant to the Jack Tar Hotel in San Francisco. He asked her for the keys to the car and they went to the cocktail lounge of the hotel. Appellant left. She remained in the cocktail lounge for about two hours. When appellant returned, the Styrofoam package was no longer in the car. She did not see the container again, but on December 29, 1981, on the university property at the Empire Grade Road, saw one of the Datonic guns it had held.

Appellant and Garcia then returned to the Corte Madera Inn. It was late, but appellant was using cocaine and would not let Garcia sleep. De Laet and MacVicar arrived the next day at 11:00 or 12:00 a.m.. Appellant introduced Garcia as “Bebe,” a name he had given her in Hawaii, but did not introduce Garcia to them. At that point she did not know their names. The three used cocaine and appellant told them he could get “some really pure stuff.” He ordered Garcia to leave the room while they talked, and when she returned about 30 minutes later, de Laet and MacVicar were gone. She next saw them on December 29, 1981.

Garcia returned to Santa Cruz, but two or three days later, appellant ordered her to come to Millbrae. There he told her that two “snitches” had been killed, chained together, and dumped in 200 feet of water. Over the next two days in appellant’s motel room, he repeatedly showed Garcia her “death card,” forced her to her knees, and made her pray to a picture of a man. Garcia again returned to Santa Cruz. Appellant continued to call her at a telephone booth, and in a December 1981 call ordered her to dig two holes in a remote area in which to bury two packages, and to purchase two sacks of quicklime.

Because appellant had often buried guns and drugs in Hawaii, she assumed this was the purpose of the holes she was to dig. She dug the holes off Empire Grade Road on University of California at Santa Cruz property on or about December 26 or 27, 1981. She was familiar with the area because she was a member of the California Rescue Dog Association and had worked her search and rescue dogs there in the past. Later, not knowing what quicklime was, she purchased oyster shell gardening lime at a garden shop.

Shortly before December 28, appellant called Garcia and directed her to take him to the holes so they could bury the packages. She arranged to meet him at a doughnut shop near Highway 1. He did not give her any instructions regarding what she should wear or tell her not to use deodorants or perfume. He did not tell her that he was bringing anyone with him. 2. December 29-31, 1981. Garcia met appellant at the doughnut shop at 3:00 p.m. on December 29, 1981. It was raining. She saw that he had three other people in his car. He came to the car she was driving, her mother’s Ford Bronco.

Appellant gave Garcia two envelopes. He told her that her guns were in one envelope. The other was money he gave her to help her out because her house was not selling. Appellant told Garcia that he was going to take the people with him to the place where she had dug holes. He would tell the people that they were going to meet Tony, a Mafia acquaintance, at Tony’s secluded shack in the woods and would bury money on Tony’s property. He went back to his own car, and returned with Weller and the two people she later learned were de Laet and MacVicar.

The group then drove in Garcia’s Bronco vehicle to the location at which Garcia had dug the holes, a 15-minute drive. Appellant told de Laet and MacVicar that he and Garcia would check the site first. Appellant was angry when he found the holes filled with water and accused Garcia of failing to follow his directions. He directed her to bring the man (MacVicar) to the woods to count the money before it was buried. She did so. Appellant had MacVicar lean against a tree for a weapons search by Garcia. While she was searching MacVicar, appellant shot him. Garcia did not see him prepare to do that.

MacVicar just dropped to the ground and when Garcia turned she saw appellant with a gun with “a long black thing” on the end. Appellant then ordered Garcia to help him drag MacVicar to one of the holes, about 30 feet away. She was “scared to death” and complied. At appellant’s direction, Garcia then returned to the Bronco and brought de Laet back. Asked at trial if she knew at that point what was going to happen to de Laet, Garcia testified that she thought so but did not remember what she was thinking. Appellant shot de Laet while Garcia was performing another weapons search.

As de Laet was gasping on the ground, appellant shot her in the head a second time. He then directed Garcia to bring Weller and the two sacks of lime to the site. When Garcia returned appellant directed the two women to dig the holes bigger and deeper, undress the bodies, and put the clothing and jewelry of the victims in one green garbage bag, their clothing in another, and paper things in a third. He was holding what Garcia believed was one of the Datonic firearms in his hand.

Garcia thought it was a Datonic because it had a shiny barrel, but conceded that she would not know the difference between a shiny Datonic and a shiny Colt .45-caliber or other kind of gun. Appellant produced a hacksaw, stating that he was going to remove the heads and hands of the victims to prevent identification. The hacksaw broke. He used a hatchet to complete the task. The body parts were put into a fourth garbage bag, which was left under a bush. Appellant told Garcia to return the next day and hide that bag in a different location.

He told Garcia that the heads and hands should not be found in the same area as the bodies. The other three bags were left just inside the barbed wire fence near the road for Garcia to pick up the following day. Garcia was told to bum anything in the bags that was paper, to put paint or something on the clothing before disposing of it so that no one could use it if it were taken from the garbage, and to dump the bag with the metal items into the ocean. Appellant told her she had better take care of this as he was having her followed and her family would be killed if she did not comply.

The bodies were covered with the lime and with dirt. Brash was used to cover the area. These events took between two and three hours. Appellant threatened to kill the women if they talked and threatened to kill Garcia’s family if she did not follow his instructions. Appellant, Weller, and Garcia returned to the doughnut shop, where the rental car had been left. Appellant and Weller changed clothes. Garcia had to take her shoes off. She also took off all of the clothes she was wearing except her jeans and a top. Her clothes were passed back to Weller, who was in the backseat.

At appellant’s direction Garcia drove the Bronco to the Dream Inn in Santa Cruz. He and Weller followed in the rental car. Weller was directed to get a room. Garcia was told to call her mother and have her mother bring Garcia a new pair of shoes. The two women dried their hair and cleaned mud and dirt from their fingernails. While the three waited in the hotel room, appellant snorted cocaine and slapped Weller when she tried to take some.

He took Garcia into the bathroom where he beat her, accusing her of having champagne on her wedding night and stating that he had warned her that the Mafia would kill her the next time she drank alcohol. He then ordered Garcia to apologize to Weller for drinking champagne. When Garcia’s mother arrived, appellant ordered Garcia and Weller to spend the night at a nearby Holiday Inn, saying that Weller was being sent to guard Garcia. They were told to return at 9:00 the next morning.

Garcia made no effort to contact police because she was sure Weller would kill her and appellant would have her family killed if she did so. When Garcia returned the next morning, appellant, still taking cocaine, shut Garcia in the bathroom, beat her, and. threatened to kill her brother and her sister’s children if she talked. Garcia was confined in the bathroom for hours. During that time she begged her mother to save her brother’s life. At 1:00 p.m., all four left the motel. Garcia drove to the site of the murders, reached through the fence and retrieved the three bags left there.

She did not move the bag containing the body parts. She drove to Monterey, rented a room with a fireplace at the Del Monte Hyatt, burned the victims’ credit cards, passports, and papers, including the sacks that had held the lime, and, on the following day, threw the metal items, the bullet casings, and the hacksaw into Monterey Bay near Cannery Row. After putting paint on them, she put the victims’ clothing in trash bins in a Carmel Valley shopping center. She did everything she was told except take care of the heads and hands. 3. Subsequent events.

Garcia did not hear from appellant again until February 16, 1982, when he called her mother and told her to have Garcia call him in Las Vegas. Garcia did so and appellant ordered both women to come immediately to his room at the Riviera Hotel in Las Vegas. He insisted that they come even though Garcia’s mother had fallen and broken her ankle. They flew to Las Vegas and joined appellant in his room at the Riviera Hotel where he was taking cocaine and tried to keep the women awake for a day and a half. When she fell asleep appellant beat Garcia until her face was bloody.

He told her that her brother would now be killed and made a telephone call in which he said: “OK, take care of it now.” Garcia was then forced to sit outside the room. He took her to the bathroom in the hotel room where he again beat her. Appellant told her that she was to go to Minnesota with him because there was nothing he could do to keep her alive. Weller, Jim Johnson, Sondra Sellinger (Johnson), and Larry Dahl, whom Garcia had not met before, met the pair at the airport in Minnesota. Garcia had met Jim Johnson in Hawaii.

At the Johnsons’ apartment, appellant became angry with Garcia and ordered her to apologize on her knees “convict style.” He then admitted that Garcia’s brother had not been killed, but said it would be easy to do if she talked to the police. Later he became angry with Weller and beat Weller. Later, appellant had Johnson’s nephew drive him ajid Garcia to a hotel where they stayed for two days. While there, Garcia called her mother, Edwards, who told her a skull had been found near the University of California at Santa Cruz campus. Appellant took the phone and sought details.

Appellant and Garcia flew back to California. Her mother met them outside the Burlingame Hyatt Hotel. Garcia drove home with her mother to Soquel. Appellant telephoned the following morning and ordered Garcia to come to the Peninsula. She met appellant in his Millbrae hotel room where he took drugs, cut pieces of paper, mixed up cards, and told Garcia the queen of spades, the death card, was her card. After two or three days, Garcia returned to Santa Cruz County. Appellant accompanied her, spent a night or more at her mother’s home, and then moved to the Holiday Inn in Santa Cruz.

When Garcia took her mother to a hospital emergency room because her mother, who had cancer, had developed a blood clot, appellant nonetheless insisted that he needed Garcia immediately as he was having a heart attack. He threatened to kill her brother, father, grandfather, and everyone in her family if she did not come immediately. On March 9, after her mother had left the hospital, on appellant’s order Garcia went to the Holiday Inn. He told her he was a member of the CIA and said that since she talked too much there was nothing he could do to save her.

He handcuffed Garcia’s right ankle to her left hand and said he would chop off her fingers one at time if she lied while he gave her a lie detector test. He put scissors to her eye and then her vagina, exerting pressure as he did so. He used cocaine, forced her to take cocaine and threatened to hang her upside down and slit her throat if she did not take it. He burned her hair and said she had to be killed. He put pills he said were cyanide in her mouth. He released her after several hours.

Garcia went to the FBI on the following day with her brother-in-law Keith Geiger, attempting to obtain protection for herself and her family. At trial she denied doing so in order to obtain immunity, saying that all she wanted was to obtain protection from appellant for her family and herself. She made several statements regarding the murder case before immunity was offered at the time of the preliminary hearing in 1982. Garcia has since had the marriage to Donald Garcia annulled and has married William Grundherr. C. Other Evidence. 1. Diane Edwards.

Garcia’s mother, Diane Edwards, was terminally ill and unable to testify at the trial. Her preliminary hearing testimony was read to the jury. That testimony was consistent with Garcia’s testimony regarding many of appellant’s activities in Santa Cruz and Las Vegas, his threats, domination and abuse of Garcia, his possession of large amounts of money and drugs, and his claims that he was affiliated with the Mafia. On the night of December 29, Edwards went to appellant’s room at the Dream Inn. Garcia had borrowed Edwards’s Bronco that day.

Garcia called her at 7:00 or 8:00 at night, said she was there with appellant and another woman, and asked Edwards to bring her some shoes. When Edwards arrived at the Dream Inn that night, Weller and Garcia were there. Both had wet hair, but their clothing was not wet. Appellant asked Garcia, “Does your mother know anything?” When Garcia indicated that she had not spoken to her mother, Edwards was asked to wait in the bathroom. She remained there for about 30 minutes. At one point Edwards saw Weller putting large sums of cash away. She saw appellant wiping money with alcohol or water.

She also saw a sandwich bag half full of what appellant said was cocaine. At another time during the evening appellant took Garcia into the bathroom. After some time he came out and told Edwards to straighten Garcia up. Edwards found Garcia in the bathroom with welts on her face, crying. Garcia said she was scared and asked Edwards to help her. Appellant later said that Garcia had problems and he had to keep her in line. Finally he gave Garcia and Weller money and directed them to go and have a good time and to stay somewhere else. Edwards spent the night with appellant.

When Garcia and Weller returned the next morning, appellant took Garcia to the bathroom for a “disciplinary talk.” Later, in appellant’s absence, Garcia said she was scared but could not talk about the problem without involving the rest of the family as there was no safe place to talk because “everything was bugged.” When they checked out of the Dream Inn the following morning, Edwards spent about an hour with Garcia at Garcia’s home. Garcia again told Edwards that she was afraid but could not talk to Edwards as someone was listening to everything she said.

Edwards accompanied Garcia to Las Vegas because she did not want Garcia to go alone and Garcia asked her to go with her. Edwards saw appellant using cocaine frequently, and saw him physically abusing Garcia, including threatening her life. Appellant hit Garcia with his fist and his hand. She saw that Garcia’s nose was bleeding and an eye was swollen shut. She heard appellant tell Garcia that he would see that her brother was hung from a meat hook and cut up in small pieces if Garcia did not behave.

When Edwards told Garcia (in the telephone call to Minnesota) that a skull had been found on the University of California at Santa Cruz campus and appellant took the phone from Garcia, appellant had expressed an unusual interest in the subject, saying, “What the hell’s somebody doing up there hunting mushrooms in the rain?” At appellant’s request, Edwards collected newspapers with stories about the skulls and gave them to appellant on his return to California. During the ride home to Sequel with Garcia, Garcia told Edwards that if she talked her family would be killed.

While Edwards was hospitalized, appellant visited and threatened Edwards’s life. 2. Sondra Johnson. At the time she testified, Johnson, then confined in the federal correctional facility in Pleasanton, was serving a federal sentence for a federal firearms violation concurrently with a Minnesota term for conspiracy to commit the unrelated murder of Thomas Carroll. She had agreed in a plea bargain with Minnesota and federal authorities to speak to any authorities who wanted to speak to her and to be open and honest about everything.

Johnson testified, under a grant of immunity, that in the fall of 1981 appellant wrote to Jim Johnson about a planned armed robbery of an armored car. Jim Johnson then tried to buy guns and make silencers for the robbery. He succeeded in making one silencer, but did not complete a second. In early December 1981, after a telephone conversation with appellant, Johnson told her there had been a change in plans and rushed to meet a new deadline for the silencer. Appellant told the Johnsons that he would pay $5,000 and expenses for someone to drive to California the day after Christmas.

Sondra Johnson contacted Dahl and rented a car for him with money later reimbursed by appellant. On December 26, 1981, after receiving a phone call, Dahl left the Johnsons’ house. She did not see the gun and the silencer again after he left. Dahl returned on January 4 or 5, 1982. After Dahl returned, Sondra Johnson saw two Datonic .45-caliber weapons that she had not seen before in her apartment. She also saw another gun that Dahl possessed. Dahl gave Sondra Johnson an envelope addressed to appellant in Hawaii and wrapped in a paper napkin. She mailed that letter from Miami on January 10, 1982.

Appellant reimbursed her for the airfare and later thanked her for handling the matter. Appellant had told Sondra Johnson in mid-December that Weller, whom she knew as “Big Red,” would be coming to Minneapolis. Weller called the night before she arrived and told Sondra Johnson the flight number. Sondra met Weller at the Minneapolis airport on December 31, 1981. Weller stayed with the Johnsons until March. When appellant and Garcia arrived on February 19, Garcia had a black eye. Garcia appeared to be totally under appellant’s control.

Appellant boasted that he had “pulled a fantastic job” in California, and had “killed two people” whose bodies would never be found as they had been chopped up. That night Sondra Johnson saw appellant pull Weller into the hallway bathroom and heard Weller screaming while in the bathroom with appellant. Two weeks or so after she arrived at the Johnsons’ apartment, Weller described the details of the California murders to Sondra and Jim Johnson and admitted having advance knowledge that they would take place. Weller believed appellant would kill her because of what she had witnessed.

Everyone in the apartment was afraid of appellant. 3. Gerda Fox. Gerda Fox, a resident of Minneapolis, was a friend of the Johnsons and knew Dale Nelson. She testified, under a grant of immunity, that she, her husband, and the Johnsons had been guests of appellant in a house he provided for them on the beach in Hawaii. She met Garcia at that time. Every four or five weeks she received mail for Jim Johnson at her address. In January 1982 she received a certified package containing money from “Mr. Church” in Hawaii. Sondra Johnson was present and opened the envelope from which she took money.

Also in January 1982, in Fox’s home, Dale Nelson and Sondra Johnson packed a duffel bag in a box Fox supplied and sealed the box. Fox was told the item was something they had to get rid of fast. Sondra Johnson left with the package, returned and left the box with her for an hour and then returned again and took the box away. Other evidence established that this box contained a Datonic gun that Johnson tried to dispose of. D. Law Enforcement Investigation Evidence.

Garcia described appellant’s false imprisonment of her and the two murders to Special Agent Over of the Santa Cruz Office of the FBI when she and her brother-in-law met with him on March 10, 1982. He notified Santa Cruz County law enforcement personnel. Sheriff’s Investigator Henard, who had investigated the discovery of MacVicar’s skull on February 20, met Garcia and Geiger at the FBI office the same day. Garcia told him about the murders and led Henard and other officers to the location of the bodies, which were disinterred the following day.

On the same day, Henard participated in the first interrogation of appellant, who had been arrested at the Santa Cruz Holiday Inn after Garcia reported the murders and the assault on her, and retrieved a packet of cocaine appellant discarded in the interview room. Appellant made a taped statement to investigating officers in which he refused to answer questions, was evasive, and claimed to have no knowledge of the murders in which he denied participation. He claimed he was not in California at the time of the murders. At the time of his arrest appellant’s blood had traces of Quaaludes.

His urine indicated that he had taken cocaine as well as Quaaludes within the previous 24 hours. A March 11, 1982, search of appellant’s hotel room turned up cocaine, $7,020 in cash, and a set of handcuffs. Numerous small snippets of paper were strewn around the room. A March 11, 1982, search of the Johnsons’ apartment turned up a box containing a Datonic firearm, a silencer, silencer parts, and a gun barrel. Other firearms and narcotics were also seized. The Datonic Firearms company had no record of the two Datonic firearms, which had consecutive serial numbers.

This suggested that the weapons had been taken in an unauthorized manner, such as theft or embezzlement. Edward Peterson, an agent of the Federal Bureau of Alcohol, Tobacco and Firearms, examined the .45-caliber slug taken from the skull of MacVicar, another slug found nearby, the items in the box seized in the Johnson residence, the two Datonic firearms, a .45-caliber Colt Commander pistol, a .45-caliber barrel with silencer adapter, and two silencers.

He testified that the slug taken from MacVicar’s skull had the general class characteristics of the Colt barrel type, but the surface was so abraded as to make comparison to any individual firearm impossible. The other slug was in better condition and also displayed rifling class characteristics of the Colt barrel type. Both silencers had gunshot residue in them. The Datonics and the Colt were in operating condition.

Peterson substituted the barrel with the silencer adapter on each of the three firearms, mounted the silencer, and test-fired all three weapons, but could not match the projectiles to any of the three weapons. II Defense Guilt Phase Case Appellant did not testify. Several defense witnesses were called to support the defense theory that appellant was not the person who killed MacVicar and de Laet. The defense argued that the testimony of Weller, Garcia, and Sondra Johnson implicating appellant in the murders should not be believed.

The idea that MacVicar, an experienced drug dealer, and de Laet went to the Empire Grade site to bury a quarter of a million dollars was incredible. There were parallels between the manner in which Thomas Carroll had been killed by Jim Johnson and the killing of MacVicar and de Laet. Appellant also argued that Garcia was an accomplice whose testimony implicating appellant had to be corroborated and who could not corroborate Weller. Glen Murta, an acquaintance of MacVicar’s, testified that MacVicar was a drug dealer and a gambler.

He stopped seeing MacVicar after October 1980 because he owed MacVicar money for a consignment of narcotics. Warren Pierce testified that de Laet had shared an apartment with Pierce and his wife, Margaret Voss-Pierce. He met appellant when appellant was a houseguest of de Laet. De Laet was a drug user. He also met a man whose first name was “Bennett” who was a narcotics dealer. John Bradley, a state prisoner who had been convicted of conspiracy to sell cocaine, testified that MacVicar once had been a very good friend.

MacVicar had been a large-quantity dope dealer who associated with Bennett Cleff, another large narcotics supplier. MacVicar also had two San Francisco businesses—New Wave Graphics, which put graphic designs on postcards, stationery, T-shirts and sweatshirts, and Party Dog, a party facilitator, which rented party favors and novelties. Gary Rochelle, a former roommate of Donald Garcia, testified that Garcia and Donald Garcia had a boyfriend-girlfriend relationship for three or four months before they married. They appeared to have a loving relationship.

James Perlin, an acquaintance of Garcia who visited her in Hawaii in 1980, testified that Garcia appeared to be in a loving relationship with appellant. Garcia’s new husband, William Grundherr, testified that he met Garcia at a dog training class in May 1981 and saw her on two later occasions at training classes for the California Rescue Dog Association. She never mentioned appellant until appellant’s arrest. In November 1981, while working his dogs, Grundherr saw Garcia near the Empire Grade Road site (from which the victims were taken into the woods and shot).

Later he was working his dogs on the University of California at Santa Cruz campus when he saw sheriff’s deputies searching for bodies. He identified himself as a member of the rescue dog association and as a reserve deputy and offered to help. His presence at the scene was a coincidence. Officers who were at the scene testified that Grundherr assisted them and that dog handlers were never left alone. A pathologist testified that he exhumed the body of Thomas Carroll on an island in the Mississippi River south of St. Paul, Minnesota.

Carroll died from five gunshot wounds to the head and back, four of which were to the face. Blunt injuries to the skull, possibly to disfigure it and prevent identification, had been inflicted after death. The face and shoulder were covered with hydrated lime, which is not caustic and helped to preserve the body. m Guilt Phase Issues Appellant seeks reversal of the judgment of conviction of murder on nine grounds. He does not challenge the convictions of false imprisonment, assault with a deadly weapon, or possession of cocaine.

In each assignment of error appellant .asserts that he was denied a fair trial and/or due process as a result of the challenged trial court rulings. We address his claims in the order of presentation. A. Change of Venue. Appellant moved for change of venue at the time of his arraignment in the superior court. The motion was based on the extensive countywide publicity in the print media, radio, and television regarding the discovery of the victims’ remains, the arrest of appellant, and subsequent events.

Appellant noted that the media had disclosed highly prejudicial information which would not be admissible at trial, including the fact that appellant had been acquitted of a prior Oregon homicide on grounds of insanity, that he had been acquitted of a murder charge in Minnesota, and that the chief prosecution witnesses had passed lie detector tests. The trial court agreed that if trial were to commence at the time of the motion, a change of venue would be appropriate.

The court nonetheless denied the motion without prejudice to renewal closer to the time of trial, stating that as time went by there was less likelihood that appellant could not receive a fair trial in Santa Cruz County. The motion was renewed 18 months later after almost 3 weeks of voir dire of prospective jurors. Two months after that, appellant supplemented the motion with additional supporting materials reflecting current publicity about jury selection, commencement of the trial, and appellant’s then recent marriage. The motion was denied the day before trial began.

In denying the motion the court commented that while there had been exposure to pretrial publicity, the exposure was less than the court anticipated, many prospective jurors knew nothing about the case, and the court had passed the selected jurors for cause because the judge was satisfied that the jurors selected would be fair. Those who had been exposed to pretrial publicity recalled very little about the case, would disregard the publicity, and had not formed opinions as to appellant’s guilt or innocence.

A trial court must order a change of venue for trial of a criminal case to another county on motion of the defendant “when it appears that there is a reasonable likelihood that a fair and impartial trial cannot be held in the county.” (§ 1033, subd. (a).) The defendant bears the burden of proof that the jurors chosen have such fixed opinions that they cannot be impartial. (People v.

Sanders (1995) 11 Cal.4th 475, 505 [46 Cal.Rptr.2d 751, 905 P.2d 420].) In determining whether it is reasonably likely that, because of pretrial publicity, a fair trial cannot be held in the county, the trial court will consider, in addition to the nature and extent of the publicity, the nature and gravity of the offense, the size of the community, and the status of the defendant and the victim in the community. (People v.

Pride (1992) 3 Cal.4th 195, 224 [10 Cal.Rptr.2d 636, 833 P.2d 643].) On appeal the appellant must demonstrate that the ruling was error because it was reasonably likely that a fair trial could not be had and that the error was prejudicial because a fair trial was in fact denied. The reviewing court independently reviews the record and must sustain the trial court’s determination of ultimate fact if that determination is supported by substantial evidence. (People v.

Hart (1999) 20 Cal.4th 546, 598 [85 Cal.Rptr.2d 132, 976 P.2d 683].) Having undertaken that review, we are satisfied that substantial evidence supports the ruling of the trial court. The population of Santa Cruz County was under 200,000 at the time of the trial, but the jury was selected from both rural and urban areas of Santa Cruz County, and many prospective jurors did not subscribe to the Santa Cruz newspaper which had the heaviest coverage of events related to the murders.

Several prospective jurors had moved to the county after the murders and many others had no recollection of reading about or seeing television news coverage about them. Few prospective jurors who did recall the initial publicity remembered anything other than the fact that the bodies had been found on the campus of the university. Few were aware from media reports of the potentially prejudicial and inadmissible evidence regarding appellant’s acquittal of the prior Minnesota murder charge or of the not guilty by reason of insanity verdict in the prior Oregon prosecution.

The record fails to support appellant’s assertion that the judge was influenced by the cost to the county of a change of venue and that the jury pool was necessarily tainted by the cost of the trial to the county because three other high-profile murder cases had been transferred to other counties for trial. When the initial motion was denied without prejudice, the judge indicated that were he satisfied that a fair trial could not be held in Santa Cruz County, he would grant the motion notwithstanding the cost to the county.

And the voir dire of prospective jurors did not suggest that any seated juror had any knowledge of or had considered the cost to the county of trying appellant, let alone any bias arising from such cost. That one prospective juror believed that calling hundreds of prospective jurors from whom to select only twelve was a waste of their time and taxpayers’ money does not support appellant’s premise. While the offenses were serious, that factor is not dispositive (People v.

Howard (1992) 1 Cal.4th 1132, 1167 [5 Cal.Rptr.2d 268, 824 P.2d 1315]), and the print and television media articles were factual, not inflammatory. There was no sensationalism beyond reporting the fact that the heads and hands had been removed from the bodies. Much of the publicity occurred almost three years before jury selection began in August 1984. Passage of time since the initial, heavy publicity weighs against a change of venue. (People v. Pride, supra, 3 Cal.4th at p. 225.) Appellant and the victims were strangers to the community.

Thus the press coverage was much more sporadic than is often the case when the victim is a prominent local resident. The trial court did not err in denying the motion for change of venue. Neither the publicity nor the small size of the community was reasonably likely to, and neither did, result in a jury pool from which appellant could not select a number of jurors unaffected by the publicity. He did not challenge for cause any of the jurors who sat at the guilt phase.

At the time the motion for change of venue was denied, appellant had not carried his burden of demonstrating that it was reasonably likely that a fair trial could not be had in Santa Cruz County. Moreover, as discussed in more detail below, the record does not establish prejudicial juror exposure to publicity either before or during trial. B. Jury Misconduct. After the Santa Cruz County jury was unable to reach a penalty verdict and a mistrial had been declared as to the penalty phase, appellant moved for a new trial asserting that Juror Nancy C.

Wynn had admitted to defense counsel, to his investigator, and to the guilt phase prosecutor that Wynn had read a newspaper

article about the trial that included highly prejudicial information that the court had ruled was inadmissible. Wynn had also claimed that other jurors disobeyed the court’s admonition and had learned of this information from the media. Appellant asserts that the trial court erred in failing to inquire further into allegations of juror misconduct—violation of the court’s repeated admonitions that jurors not read or listen to news accounts of the trial during the guilt phase trial.

He contends further that the court erred in denying his motion for a new trial predicated on that misconduct in that the misconduct was inherently prejudicial, requiring reversal of the judgment. We do not agree. There was no abuse of discretion. Appellant failed to present substantial competent evidence of jury misconduct in support of the motion for new trial, either with the motion itself or at the hearing on the motion.

He offered only hearsay declarations in the papers supporting the new trial motion and, when the court ruled at the hearing on the new trial motion that evidence of the content of Wynn’s out-of-court statements was inadmissible hearsay, did not seek to present any additional evidence. We therefore reject any suggestion that the trial judge may have believed that he lacked authority to conduct an evidentiary hearing and that we should remand the case to the trial court to permit the court to exercise its discretion.

The state of the law at the time did not clearly prohibit calling a juror who had refused to execute an affidavit regarding misconduct to testify at an evidentiary hearing, and nothing the judge said suggests that he believed he could not hold such a hearing.

Moreover, the record suggests that the judge had no reason to even consider ordering an evidentiary hearing because appellant initially submitted the juror misconduct issue on the record made in the moving papers, did not attempt to call Juror Wynn, did not ask for a separate evidentiary hearing, and never sought to present evidence other than, possibly, testimony by defense counsel and his investigator about the content of Wynn’s out-of-court statements to them. 1. Misconduct Allegations.

Appellant’s new trial motion alleged that news accounts during the trial frequently referred to appellant’s prior history and in particular to his acquittals in two prior murder trials and to his incarceration at Leavenworth federal penitentiary.

Appellant also asserted in the motion that, during interviews with defense counsel and his investigator, Juror Nancy Wynn had admitted reading such news accounts and learning from them about appellant’s criminal record, had stated that she became aware from statements they made that Juror Norlene Hawley was aware that appellant had “murdered” before and had “met Jim Johnson at Leavenworth,” and had said that other jurors also knew about appellant’s criminal history.

He also asserted that Wynn had stated that eventual Jury Foreman Harvey Solomon had made statements indicating violation of the court order that jurors not discuss the case with persons outside the court proceedings, and had made statements which indicated that he had formed an opinion as to guilt before all of the evidence had been presented. The motion for new trial was supported by written statements from defense counsel and the investigator, neither of which was executed under penalty of perjury. Jon C.

Minsloff stated: On February 25, 1985, after a mistrial had been declared, Investigator Kevin Love interviewed Wynn. The information she disclosed led to a second interview by Minsloff and Love on March 5, 1985, at which time Wynn stated that she had read news stories in the Santa Cruz Sentinel during the trial, as “It was too tempting not to want to read about the case.” As a result she was familiar with appellant’s prior criminal record, including his two previous trials for murder.

It was apparent to Wynn that Hawley was reading the same articles because of the timing of the articles and Hawley’s comment during guilt phase deliberations that appellant met Johnson at Leavenworth, that appellant had “done it twice before” and “[tjhis isn’t the first time he’s done it.” Wynn believed that most jurors had been reading newspaper accounts of the trial during the trial. Wynn always saw Juror Ed Wagner carrying a copy of the San Jose Mercury during the trial and his comments during deliberations made her sure he was reading about the case.

Both Wagner and Juror Clarence Hedrick stated during the penalty phase that “We’ve got to stop him now. We can’t let him get away with it again.” Foreman Solomon had acquired the nickname “Hang ’em High Harvey” from fellow teachers at school as a result of discussions about the case (on Fridays when the court was not in session). Minsloff also stated that he met with Madeleine Boriss (the deputy district attorney who prosecuted the Santa Cruz County proceedings) on September 12, 1985, and advised her of this information.

Boriss told Minsloff that she had also interviewed Wynn and Wynn had related the same information about jury misconduct to Boriss. On September 17, 1985, Minsloff gave all of the information to District Attorney Arthur Danner III in a meeting at Danner’s office. In October 1985, Deputy District Attorney Jon E. Hopkins (who prosecuted the Stanislaus County proceedings) and Investigator Dennis Clark met with Wynn in her home. On October 31, 1985, when Minsloff and Love again met with Wynn, Wynn said that under no circumstances would she submit an affidavit regarding the matters she had discussed.

Investigator Love stated that when he interviewed Wynn on February 21, 1985, Wynn said that on February 15, 1985, Deputy District Attorney Boriss had told her that Love w

[…]