THE PEOPLE, Plaintiff and Respondent, v. RANDY STEVEN KRAFT, Defendant and Appellant, 23 Cal. 4th 978

Opinion WERDEGAR, J. —An Orange County jury convicted defendant Randy Steven Kraft of the first degree murders of Edward Daniel Moore (count 1), “John Doe Huntington Beach” (count 2), Ronald Gene Wiebe (count 3), Keith Daven Crotwell (count 4), Mark Howard Hall (count 5), Scott Michael Hughes (count 6), Roland Gerald Young (count 7), Richard Allen Keith (count 8), Keith Arthur Klingbeil (count 9), Michael Joseph Inderbieten (count 11), Donald Harold Crisel (count 12), Robert Wyatt Loggins, Jr. (count 13), Eric Herbert Church (count 14), Geoffrey Alan Nelson (count 16), Rodger James DeVaul, Jr. (count 18), and Terry Lee Gambrel (count 19). (Pen.

Code, § 187; unless otherwise specified, all statutory references are to the Penal Code.) The jury further convicted defendant of the sodomy of Inderbieten (count 10) (§ 286) and inflicting mayhem on Nelson (count 15) (§ 203). The jury found true an allegation that defendant had personally inflicted great bodily injury in committing sodomy against Inderbieten (§ 12022.7) and the related special-circumstance allegation of murder in the commission of sodomy (§ 190.2, subd. (a)(17)(D)).

With respect to counts 6, 7, 8, 9, 11, 12, 13, 14, 16, 18, and 19, the jury also found true special circumstance allegations of multiple murder (§ 190.2, subd. (a)(3)). The jury acquitted defendant of the charge of sodomy against DeVaul (count 17) and the related special-circumstance allegation. The jury subsequently fixed the penalty at death.

The trial court granted defendant’s motion to vacate as duplicative 10 of the 11 multiple-murder special-circumstance findings and denied his motion to modify the verdict to life imprisonment without possibility of parole. (§ 190.4, subd. (e).) The court sentenced defendant to death for counts 6, 7, 8, 9, 11, 12, 13, 14, 16, 18, and 19; it further imposed consecutive sentences of 25 years to life in state prison for counts 1, 2, 3, 4, and 5, but stayed service of those sentences pending execution of the death sentence.

The court also imposed the middle term of three years for the sodomy conviction in count 10, with a consecutive term of three years for the related great bodily injury enhancement, and the middle term of four years for the mayhem conviction in count 15, and stayed service of the determinate terms pending execution of the death sentence and service of the life sentences. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in its entirety. I. Facts A. Guilt Phase Evidence 1. Overview Defendant was convicted of murdering 16 young White males between December 1972 and May 1983.

Six of the victims were United States Marines. Most were killed by ligature strangulation, and many had ligature marks on their wrists. Defendant sexually mutilated some of the victims, engaged in sexual activity with some of them, and left the bodies of some victims unclothed. Most of the victims had alcohol and prescription drugs (most frequently diazepam, which is sold as Valium) in their systems at the time of death. Defendant left the bodies of most of the victims on or near freeways or other roads.

Physical evidence linked defendant to eight of the murders, but with respect to the remainder, the prosecution relied on the similarity of the modus operandi and the existence of the so-called death list—cryptic notebook entries, penned by defendant, that the prosecution asserted represented the various victims. 2.

Murder of Terry Lee Gambrel Around 1:00 a.m. on May 14, 1983, Sergeant Michael Howard and Officer Michael Sterling of the California Highway Patrol, on patrol together near Interstate 5 in the San Juan Capistrano area of Orange County, were driving northbound on the freeway south of Oso Parkway when they saw a car driven by defendant weaving in its lane.

The officers pulled defendant over and, after conducting field sobriety tests, arrested him for driving under the influence. (The details of the arrest are discussed post, at pages 1037-1038, in connection with defendant’s challenge to the search of his car.) Defendant told Sterling his passenger was a hitchhiker. While Sterling was placing defendant in the patrol car, Sergeant Howard knocked on the passenger window of defendant’s car in an attempt to rouse the passenger, who appeared to be asleep or passed out. There was no response.

Howard, entering the car through the driver’s side, discovered the passenger, later identified as Gambrel, had no pulse and was not breathing. Upon lifting a jacket from Gambrel’s lap, Howard observed that Gambrel’s pants were unbuttoned and pulled down between his waist and his knees so that his penis and testicles were supported by the crotch of the pants. The crotch area was wet. There were indentations on Gambrel’s wrists similar to those a wide rubber band would make. A pill vial, labeled Ativan and prescribed for defendant, lay on the floor between the driver’s seat and door.

A paramedic summoned to the scene asked defendant if Gambrel had taken any drugs; defendant replied he had given Gambrel some of his Ativan. The autopsy was performed by Dr. Walter Fischer, who was deceased at the time of trial. Dr. Robert Richards, who reviewed the autopsy photographs and Dr. Fischer’s reports and testimony at the preliminary hearing, testified at trial that Gambrel’s death resulted from asphyxia due to ligature strangulation. The ligature consisted of a strap that had been tightened around Gambrel’s neck. There were also ligature marks on both of Gambrel’s wrists.

Petechial hemorrhages in the neck organs indicated the killer had repeatedly tightened and loosened the ligature. Autopsy photographs showed a bruise on Gambrel’s lip. Gambrel’s body apparently was missing shoes and socks when removed from defendant’s car. Toxicological analysis showed Gambrel’s blood-alcohol level at the time of his death was 0.067 percent. Also in Gambrel’s blood was .07 micrograms per milliliter of lorazepam, an anti-anxiety drug sold under the trade name Ativan.

Toxicologist Raymond Kelly testified those levels of alcohol and lorazepam would tend to make a person sleepy, confused and uncoordinated. Gambrel was 25 years old at the time of his death and was a United States Marine stationed at El Toro. He stood six feet one inch in height and weighed about 200 pounds. Gambrel was engaged to be married. He was last seen alive on May 13, 1983; around 9:00 p.m., when he told his roommate he needed to find a ride and mentioned something about a party at a friend’s house.

Marine Sergeant Ronald Phillips had invited Gambrel to a housewarming party set for May 13, 1983, but Gambrel did not attend despite having said he intended to do so. Handwritten directions to the party were found in Gambrel’s wallet after his death. 3. Murder and Mayhem of Geoffrey Alan Nelson On the night of Friday, February 11, 1983, between 11:00 and 11:30 p.m., Bryce Wilson saw Geoffrey Alan Nelson and Rodger James DeVaul, Jr., outside Wilson’s home in Cypress, Orange County. When Wilson last saw the two, DeVaul was wearing Nelson’s jacket.

Neither Nelson nor DeVaul had consumed alcohol or drugs before leaving Wilson. About 1:30 a.m. on February 12, 1983, Nelson appeared at Wilson’s front door and asked Wilson’s mother, Sharon House, if he could speak with Wilson. She was unable to awaken Wilson, however, and Nelson left without speaking to him. About 5:15 that morning, Officer Donald Batchelder of the Los Angeles Police Department, who was off duty and driving to work, discovered Nelson’s nude body on the Euclid Street on-ramp to the Garden Grove Freeway in the City of Garden Grove.

As Batchelder got out of his car, he saw Nelson’s foot move slightly. Batchelder got back into his car, drove to a telephone and called the local police. Officer Richard Morales of the Garden Grove Police Department responded to the scene and found the body warm to the touch, although he detected no pulse or respiration. Skid marks on the pavement indicated Nelson’s body had been dumped from a moving vehicle. The front of Nelson’s neck bore ligature marks, and he had been emasculated. Dr. Fischer performed the autopsy. After reviewing autopsy photographs and Fischer’s notes and preliminary hearing testimony, Dr.

Richards concluded Nelson had died as a result of ligature strangulation. There was a ligature mark on the neck consistent with a belt buckle. Nelson’s right wrist also bore a ligature mark. Dr. Richards found that Nelson’s penis and scrotum had been cut off by some type of sharp-edged instrument. Because the bleeding was “not that great,” Richards thought Nelson was “probably dead” when the injury was inflicted, although the emasculation could have occurred perimortem, or around the time of death. Skid marks and road bums on the body reflected Nelson was dead at the time of those injuries.

Toxicological analysis revealed Nelson’s blood-alcohol level to be 0.14 percent at the time of death. Nelson’s blood also contained the anti-anxiety drag diazepam, and his stomach contained propranolol, a cardiac drug available only by prescription. Toxicologist Kelly opined the combination of diazepam and alcohol would have “very, very noticeably sedated” Nelson and could have caused him to fall asleep. Criminalist James White of the Orange County Sheriff’s Department compared a fiber found on Nelson’s body with the maroon socks of victim Eric Herbert Church, whose body had been found on January 27, 1983.

White had only a single fiber and could compare only a longitudinal microscopic view; on that basis he concluded the fibers were consistent in color and diameter. The defense presented evidence that on February 11, 1983, one of Nelson’s friends saw him drinking beer and taking Valium tablets. A friend of defendant’s testified defendant had played bridge from about 7:00 p.m. to midnight on February 11, 1983. The next day, defendant worked from 9:00 a.m. to 5:30 p.m. as a computer programmer, on an assignment at St. Ives Laboratory in Palos Verdes. According to a coworker who was also at St.

Ives that day, defendant appeared normal, not disheveled or injured, when he arrived for work. The defense also presented testimony by a female impersonator who worked in a gay bar and who believed a photograph of Nelson depicted a man the witness had met in a bar and with whom he had had a sexual relationship. Detective Shave, however, testified the witness’s identification of Nelson as that man was mistaken. At the time of his death, Nelson, a single White male, was 18 years old. He stood five feet nine inches tall and weighed 129 pounds. 4. Murder of Rodger James DeVaul, Jr.

As noted above, Bryce Wilson saw Rodger James DeVaul, Jr., together with Geoffrey Alan Nelson, outside Wilson’s house in Cypress on the evening of February 11, 1983. About 3:00 p.m. on Sunday, February 13, 1983, a motorist who was driving in the San Bernardino Mountains stopped at a turnout near Glendora Ridge and Mt. Baldy Road. There he saw a dead body lying off the road down a hillside. Deputy James Davis of the Los Angeles County Sheriff’s Department, responding to the scene, observed a body (later identified as that of Rodger James DeVaul, Jr.) about 14 or 15 feet from the side of the road.

The victim’s pants were unbuttoned and partially pulled down. Sergeant Clinton Dillon, who also responded to the scene, noted that the fine sand on the soles of DeVaul’s shoes and his legs and around his penis did not match the sand in the area. DeVaul was wearing Geoffrey Alan Nelson’s jacket. The cause of DeVaul’s death was determined to be asphyxia due to neck compression. An abrasion on DeVaul’s neck measured one and one-quarter inches in length and one-eighth inch in width. The left wrist bore a mark measuring one inch by one-quarter inch.

Anal swabs taken from DeVaul at the autopsy revealed the presence of semen that could not be typed. DeVaul’s blood-alcohol level was 0.07 percent, and his blood also contained propranolol and diazepam at therapeutic levels. The combination of alcohol and drugs would have impaired DeVaul’s consciousness. Some of the photographs found underneath the floor mat of defendant’s car at the time of his arrest, as well as some of the photographs developed from negatives taken from his house, depicted DeVaul.

The photographs variously showed DeVaul’s anal area, a ligature on his wrist, and a pose in which DeVaul was holding his penis. Three photographs developed from the negatives sequenced after the DeVaul shots appeared to depict the area around the St. Ives Laboratory, where defendant was working the day after Nelson and DeVaul disappeared. At the time of his death, DeVaul was 20 years old and single, and had a girlfriend. He stood five feet nine or 10 inches tall and weighed between 160 and 170 pounds. The defense presented witnesses acquainted with DeVaul who testified he was a drug user.

Various members of defendant’s family testified that, on the afternoon of February 13, 1983, defendant had attended a birthday party for his father at defendant’s sister’s house. That morning, defendant had met his niece at a bakery to pick up a birthday cake before proceeding to the party. After leaving the party between 4:00 and 6:00 p.m., defendant drove his niece back to the bakery, where she had left her car. A defense investigator testified that the distance between the places where DeVaul was last seen alive and where his body was found was 47.7 miles.

Between the place where Nelson’s body was found and the St. Ives Laboratory was a distance of 25 miles. The defense also presented evidence that soil samples taken from DeVaul’s clothing and the crime scene did not share a common origin with those taken from defendant’s car following the arrest. Head hairs taken from the groin area and shirt of DeVaul were different from the hairs of defendant, DeVaul or Nelson. Prosecution rebuttal evidence included testimony by John McWilliams, who had attended Claremont Men’s College with defendant, that defendant was familiar with the mountain area around Mt.

Baldy Road and Mt. Baldy Village. Defense surrebuttal evidence included testimony by Mark Gaukler, a friend of DeVaul’s, that Gaukler had visited DeVaul sometime in the week before his death; while he waited for DeVaul to come home, several men who looked like “rough characters” had entered the house and gone to DeVaul’s bedroom. That night, DeVaul telephoned Gaukler, saying he was in trouble and asking that Gaukler come over. DeVaul’s trouble evidently was financial.

The prosecution contended victims Nelson and DeVaul were represented on defendant’s death list, found in the trunk of his car, by the entry “2 IN 1 BEACH.” The whitish sand caked onto the blood around DeVaul’s lips and nostrils was consistent, the prosecution argued, with beach sand. The prosecution theorized defendant met DeVaul and Nelson on the beach after leaving his bridge group. 5.

Murder of Eric Herbert Church Around 11:00 a.m. on January 27, 1983, a California Department of Transportation worker discovered the dead body of a young man, later identified as Eric Herbert Church, off the shoulder of the on-ramp to the northbound 605 Freeway from Seventh Street in Long Beach. The body was clothed and wore burgundy colored socks but no shoes. It appeared to have skidded to the spot where it was found. Death was estimated to have occurred at least 12 hours before the body was found. The cause of death was asphyxia due to ligature strangulation.

Ligature marks were found on the victim’s wrists as well as his neck. Church’s blood-alcohol level at the time of death was 0.08 percent and his blood also contained 2.5 milligrams per liter of diazepam, a potentially fatal amount that would have put him into a mild to moderate coma. Using a microscope, infrared spectrophotometry, and thin-layer chromatography, criminalist White determined the fiber in Church’s socks to be consistent in color, diameter, shape and dye with three balls of maroon fiber recovered from the front floor of defendant’s car following his arrest.

White also compared the fiber in the socks with a single fiber found on the body of victim Geoffrey Nelson and concluded the fibers were consistent in color and diameter. White further compared a photograph of Church’s corduroy pants with a photograph, found in defendant’s car at the time of his arrest, depicting a person wearing corduroy pants. White concluded that a series of three spots on the left leg of the pants and a loose thread at the corner of the watch pocket, each appearing in both photographs, established a match.

White also compared photographs of a belt and a jacket, taken pursuant to search warrant from defendant’s garage, with those depicted in the photographs taken from defendant’s car, again concluding the items were the same. Church possessed an electric shaver that his father had repaired by knotting and soldering a wire. Church’s father identified a shaver found in the search of defendant’s garage as the one he had repaired. Church, 21 years old at the time of his death, stood five feet eight or nine inches tall and weighed 130 to 140 pounds.

In defense, criminalist John Thornton testified a comparison of soil samples from Church’s clothing and the location where his body was found with soil samples taken from defendant’s car at the time of his arrest showed that the samples did not share a common origin. A photographic expert opined the person depicted in the photographs taken from defendant’s car was not Church. Neither defendant’s nor Church’s fingerprints were found on the shaver identified by Church’s father. Defendant’s father also repaired electrical appliances. 6. Murder of Robert Wyatt Loggins, Jr.

In August 1980, Robert Wyatt Loggins, Jr., 19 years old, was a United States Marine stationed in Tustin. He stood five feet nine inches tall and weighed between 145 and 150 pounds. On the evening of Friday, August 22, 1980, Loggins left the base with three other Marines to go drinking. The four went to a location off Laguna Canyon Road and drank from a bottle of Southern Comfort. Later, after the group stopped at a liquor store near the Huntington Beach pier, Loggins stated he wanted to spend the night on the beach and walked off, rebuffing his companions’ attempts to get him to return to their car.

The three men subsequently searched for Loggins at Huntington Beach but did not find him. Loggins did not show up for work the following Monday morning. On the morning of September 3, 1980, some young boys living near Paseo Sombra in El Toro found a body, later identified as that of Loggins, in a large green plastic bag in the foothills. A witness walking in the area around 8:00 p.m. on September 1 had seen no bag there at that time. The body was tied in a fetal position with a rope around the ankles and wrists, and with the feet tied near the head.

A sheet of clear plastic was wrapped over the body and tied at the neck. The body was nude, and the only

article of clothing with the body was a sock near the rectum. The advanced decomposition of the body precluded certainty as to the cause of death; Dr. Peter Yatar, who performed the autopsy, concluded, however, that asphyxia by strangulation or smothering was a possible cause. Postmortem ligature marks were visible on the wrists, neck and ankles, but the pathologist could not determine if antemortem ligature marks were present on the neck.

The level of alcohol in the victim’s brain was 0.25 percent, while the blood-alcohol level was 0.24 percent, the similarity of those figures suggesting putrefaction did not account for the alcohol levels in the body. Antihistamines (chlorpheniramine and diphenhydramine) were found in various concentrations in the blood and certain organs. The combination of drugs and alcohol could have caused Loggins’s death. Loggins had not taken any pills while he was with his fellow Marines on August 22. Photographs of Loggins were found in defendant’s car and in a briefcase found in defendant’s house.

Loggins, who, as noted, was a Marine and was last seen alive in Huntington Beach, had several tattoos. The prosecutor argued to the jury that the entry “MC HB Tattoo” on the list found in defendant’s car referred to Loggins. In defense, Loggins’s mother testified Loggins had a drinking problem; a friend of Loggins’s testified Loggins used all types of drugs. The defense presented evidence that Loggins’s friends had moved his car after his disappearance.

A resident of the area testified he had, on September 1, 1980, seen a car occupied by a man and a woman stopped at the dead end of the street near where Loggins’s body was found, and had seen the man and woman lift something that appeared to be a plastic trash bag out of the back of the car; when the witness returned to the area the next day, he saw a number of trash bags and smelled the odor of something dead. According to pathologist Robert Bucklin, Loggins was alive when the photographs found in defendant’s car and house were taken.

A professor of pharmacy testified the reported level of chlorpheniramine in Loggins’s system must have been incorrect, as it would have required the victim to ingest 351 tablets and at least a gallon of water to reach such a level. 7. Murder of Donald Harold Crisel In June 1979, Donald Harold Crisel, then 20 years old, was a United States Marine stationed in Tustin. He stood five feet 10 or 11 inches tall and weighed 160 or 165 pounds. Around 1:30 a.m. on June 16, 1979, a fellow Marine saw Crisel walking alone near the Marine base. Crisel said he was going to a restaurant near the base.

About 9:30 or 9:45 p.m. that day, a passing motorist saw a body later identified as Crisel’s on the side of the Irvine Center on-ramp to the northbound San Diego Freeway in Irvine. A responding police officer testified Crisel had no pulse, but was warm to the touch and bleeding slowly from the nostrils. Crisel was wearing only undershorts, on which there appeared to be tire tracks. The body evidently had been pushed from a moving vehicle, as it bore road burns. Dr. Richards, who performed the autopsy, determined the cause of death to be multiple drug overdose.

Crisel’s blood-alcohol level at the time of death was 0.06 percent. Potentially fatal levels of acetaminophen, as well as the antihistamines phenylpropanolamine and phenyltoloxamine, were also in Crisel’s blood. The analgesic phenacetin and chlorpheniramine were also present. Postembalming photographs revealed ligature marks, between one-half inch and one inch in width, on the neck. The wrists also bore faint ligature marks. Had the toxicology results been negative, Richards would have found the cause of death to have been ligature strangulation.

Crisel’s left nipple had been lightly burned with a car cigarette lighter after his death. The prosecutor argued to the jury that the entry “Marine Drunk Overnight Shorts” on defendant’s list referred to Crisel, theorizing that defendant encountered Crisel around 1:30 or 2:00 a.m. and kept him overnight until the following evening. The defense presented evidence that Crisel had a history of alcohol abuse and sinus problems, and that military police had information about other possible suspects in Crisel’s murder.

A criminalist testified that the type of tire on the car defendant owned at the time Crisel was murdered would not have left the pattern found on the victim’s under shorts. Another criminalist testified she examined trace evidence, consisting of a hair, a clothing-type fiber and an animal-type fiber, on the undershorts, but could not link any of them to defendant. 8. Murder and Sodomy of Michael Joseph Inderbieten In November 1978, Michael Joseph Inderbieten, then 21 years old, lived in Long Beach. He stood six feet five inches tall and weighed 160 pounds.

On the evening of Friday, November 17, 1978, Inderbieten went with friends to a nightclub on the Pacific Coast Highway some three to five miles from his home. The driver of Inderbieten’s group met a girl at the club and took her home, leaving the group stranded. Another girl agreed to drive Inderbieten and one of his friends home, and they got into her car, which was very full. A girl known as “Cave Woman” sat on Inderbieten’s lap. He began to pinch her in “not a very good area,” and she slapped him. Inderbieten angrily got out of the car and declared he would walk home.

His friends last saw him walking toward the Pacific Coast Highway in the direction of his home. About 6:15 the following morning, a passing motorist saw a body later identified as Inderbieten’s on a transition ramp from Seventh Street leading to the 405 and 605 Freeway on-ramps in Long Beach. The body was dressed only in a pair of pants, which were pulled down, partially exposing his buttocks. The time of death was estimated at 6:00 a.m. The cause of death was determined to be anoxia due to suffocation. Inderbieten’s eyes and nipples had been burned with a cigarette lighter.

His scrotum and testicles had been removed as well as some skin from the penis. The removal of the testicles probably occurred while Inderbieten was still alive. There was no evidence of injury to the rectum, but the anus appeared to be slightly dilated, according to Dr. Richards, who reviewed Dr. Fischer’s autopsy report, photographs and other material. There were ligature marks around both wrists but not the neck. The body bore road bums consistent with having been thrown from a vehicle traveling slowly.

Inderbieten’s blood-alcohol level at the time of death was 0.16 percent, and a low dosage of diazepam was found in his stomach. Secobarbital was found at a low level in Inderbieten’s liver and blood. The combined effect of the alcohol and the secobarbital would have been deep sedation or sleep. Inderbieten consumed only a couple of beers at the nightclub while with his friends. Anal swabs were collected at the autopsy and, upon analysis, revealed the presence of blood type B spermatozoa and semen, which could have come from either a person with type B blood or a nonsecretor.

Inderbieten had type B blood and was a secretor; defendant is a nonsecretor. Based on the location where the victim’s body was found (i.e., near the 405 Freeway), the prosecutor argued to the jury that the entry “Dart 405” on defendant’s list referred to Inderbieten, although he was unable to assign meaning to the word “Dart.” 9. Murder of Keith Arthur Klingbeil About 3:30 a.m. on July 6, 1978, a motorist traveling northbound on Interstate 5 between La Paz Road and Oso Parkway discovered a body, later identified as Keith Arthur Klingbeil, in the slow lane of the freeway.

The body was warm when police arrived, death having probably occurred within one-half hour of the finding of the body. The body was clothed and wearing boots missing the left lace. The cause of death was determined to be acetaminophen overdose, with ligature strangulation a contributing factor. On the right side of Klingbeil’s neck were ligature lines about three-fourths of an inch apart. There were road burns all over the body consistent with ejection from a moving vehicle. Around the time of death, he had been burned with a car cigarette lighter on the left nipple.

Klingbeil was a 23-year-old resident of Everett, Washington, who stood five feet 10 or 11 inches tall and weighed 150 to 160 pounds. He had hitchhiked from his home to Southern California. Four matchbooks were found in Klingbeil’s pants, one of which came from a Chevron station on Lakewood Boulevard in Long Beach. The prosecutor argued to the jury that the entry “Hike Out LB Boots” on defendant’s list referred to Klingbeil, who, as noted, evidently had recently been in Long Beach and was wearing hiking boots at the time of death.

The defense presented evidence that, near the location where Klingbeil’s body was found, Orange County Deputy Sheriff Christopher Leseburg was directed to investigate a Chevrolet pickup truck occupied by a lone male. On rebuttal, however, the prosecution demonstrated that the truck had been stopped around 2:30 or 3:00 a.m. due to an engine problem one-quarter mile short of the location of the body. The defense also showed that sheriff’s employees had inadvertently destroyed evidence concerning the Klingbeil investigation. 10.

Murder of Richard Allen Keith Richard Allen Keith, a 20-year-old United States Marine stationed at Camp Pendleton, stood six feet two or three inches tall and weighed about 190 pounds. On Sunday, June 18, 1978, Keith was visiting at his girlfriend’s mother’s house near the intersection of Avalon Boulevard and the San Diego Freeway in Carson, Los Angeles County. According to the girlfriend, Keith may have been under the influence of drugs at that time. He left the house around 11:00 p.m. Keith had no car and had hitchhiked to his girlfriend’s house.

At 5:15 a.m. the following day, a Los Angeles fireman discovered a nude body, later identified as that of Keith, lying off the side of Moulton Parkway one-half mile north of La Paz Road in Orange County. The body had been pushed out of a moving vehicle. The cause of death was ligature strangulation. Keith’s blood-alcohol level at the time of death was 0.07 percent, and diazepam and flurazepam (a drug similar to, and somewhat more potent than, diazepam) were present in Keith’s system in amounts sufficient to have rendered him very sleepy.

The prosecutor argued to the jury that the entry “Marine Carson” on defendant’s list referred to Keith, who, as noted, was a Marine and was last seen in Carson. 11. Murder of Roland Gerald Young About 8:19 p.m. on Saturday, June 10, 1978, the Orange County Sheriff’s Department released Roland Gerald Young from its jail, where he had been confined since his arrest for public drunkenness earlier that day. Young, 23 years of age, stood five feet seven or eight inches tall and weighed 155 to 160 pounds.

About 3:20 the following morning, a passing motorist saw what appeared to be a dead body on Irvine Center Drive in the City of Irvine but, as she was unsure what she had seen, she made no report until a later time. At 4:00 a.m., a Santa Ana firefighter saw Young’s body at that location and called police. The responding officer observed the body was shirtless and saw a large amount of blood, still wet, in the crotch area of the pants. Blood on the pavement indicated the body had bounced as it hit the roadway after being ejected from a fast-moving vehicle.

The left shoe was missing a lace, and there was no belt on the pants. A jail release form was in one of the pants pockets. The socks and shoes were labeled “LACO,” indicating they had been issued by the Los Angeles County jail. The cause of death was determined to be blood loss following four stab wounds to the chest, all of which entered the heart. At or near the time of death, a sharp knife had been used to cut the scrotal sac and remove one testicle and some skin from the penis. There were also antemortem lacerations over the left eyebrow and left eyelid.

A faint mark was present on the back of the right hand and wrist. Young’s blood-alcohol level at the time of death was 0.09 percent. There was diazepam in his blood and stomach in nontoxic concentrations. The combined effect of the alcohol and diazepam would have been extreme drowsiness or mild coma. The prosecutor argued to the jury that the entry “Jail Out” on defendant’s list referred to Young.

The defense presented evidence that Young was a user of any available type of drug and that, after his release from jail, he telephoned a friend, seeking a ride home from Santa Ana because he was in trouble with his supplier for using drugs for which he could not pay. Young’s belt was not found among the belts taken from defendant’s house. Nor did shoelaces taken from defendant’s house match the lace in Young’s right shoe. The defense also presented the testimony of Carmen Custer, who, while in custody on a petty theft charge in September 1982, had spoken to police concerning a June 1978 murder.

He related that in June 1978 he had taken some prostitutes to a residence on South Birch Street in Santa Ana to buy heroin. The seller told the prostitutes he had stabbed someone the previous night and dumped him off Culver Road near the dump. Custer gave police the information in the hope of obtaining release from jail on his own recognizance. The manager of the South Birch Street apartment buildings identified by Custer testified that, in June 1978, a heroin dealer did live in the buildings, but not in the specific apartment identified by Custer.

That apartment was occupied by an 87-year-old man who did not sell drugs. Custer had been arrested four times between June 1978 and September 1982, but did not give his information to police on those occasions. The dump off of Culver Road mentioned by Custer was “quite a way” from the location where Young’s body was found. The defense also presented evidence that in April 1978 defendant had bailed his friend Wayne Wooden out of jail (implying this was the significance of the “Jail Out” entry).

On rebuttal, however, Wooden testified defendant never referred to him as “Jail Out”; nicknames were not used for members of their poker and bridge group. In rebuttal, a criminalist testified he had compared a hair found on Young’s pants to a hair sample from defendant’s head. His examination showed that physical characteristics (color, thickness, curliness, and root and tip characteristics) and microscopic characteristics (pigmentation distribution) were consistent in the two samples. He could not, however, state definitively that the hair found on Young’s pants came from defendant.

One of defendant’s sisters testified defendant’s hair was bleached in the late 1970’s. .12. Murder of Scott Michael Hughes In April 1978, Scott Michael Hughes, 18 years old, was a United States Marine stationed at Camp Pendleton. He stood five feet IQV2 inches tall and weighed 170 to 180 pounds. On Friday, April 14, 1978, Hughes told a fellow Marine he was going to travel to the State of Washington to visit his brother, who was suffering from cancer. The following Sunday, around 7:00 a.m., Hughes’s dead body was found about four feet from the eastbound on-ramp to the Riverside Freeway in Anaheim at Euclid.

There were no laces in Hughes’s shoes. The cause of death was found to be cerebral anoxia due to ligature strangulation. Ligature marks, consistent with a belt, appeared on the neck, most prominently on the left side. There were antemortem abrasions to the left temple, left eye, and left side of the chin. Hughes’s scrotum had been cut and the left testicle excised, probably after death. There were road bums on the body. No alcohol was present in Hughes’s blood, but diazepam was present at about three times the therapeutic level. This would have caused sleepiness and mental confusion.

Trace evidence consisting of fibers was collected from Hughes’s clothing and compared with fibers from the carpet in the apartment on Molino Avenue in Long Beach where defendant lived in April 1978. (Defendant and his roommate/lover, Jeff Seelig, had moved to a different house, but the carpet had not been changed between April 1978 and June 1983, when the samples were collected.) The fiber taken from Hughes’s shorts and fibers from the Molino Avenue apartment carpet did not differ in terms of color, fiber type, diameter of the fibers, cross-sectional appearance, longitudinal appearance, delustrance or melting points.

It could not be conclusively established, however, that the fiber on Hughes’s shorts came from defendant’s apartment on Molino Avenue. Fibers from a throw mg at defendant’s house on Roswell Avenue were also compared with fibers taken from Hughes’s clothing; they were found to be consistent with each other in terms of material, shape, melting points, and delustrance. The prosecutor argued to the jury that the entry “Euclid” on defendant’s list, alluding to the location of the body, referred to Hughes.

Terry Goodman testified he and defendant had a mutual friend who lived on Euclid Avenue in Long Beach, but Goodman had never heard defendant refer to the friend as “Euclid.” 13. Murder of Mark Howard Hall On December 31, 1975, Mark Howard Hall went drinking with his friend Philip Holmer. Hall, 22 years old, stood five feet eight or nine inches tall and weighed 160 to 170 pounds. After visiting a bar and attending one party, where Hall became dmnk and smoked some marijuana, Holmer and Hall went to a second party, about two blocks from Interstate 5 in San Juan Capistrano.

Because Hall was so drunk, he lay down on a sofa at the second party. Holmer last saw him alive around midnight and only later discovered Hall was no longer at the home where the party was taking place. On January 3, 1976, an off-duty Santa Ana police officer was riding dune buggies with friends in the mountains near Silverado Canyon and Bedford Peak in the area of Saddleback Mountain. About 3:00 p.m., the group discovered the dead body of Mark Hall about 25 feet from a road in that area and summoned police. Hall’s body was nude, and his genitals had been removed.

Near the body was an open package of Half-and-Half brand cigarettes. The cause of death was a combination of suffocation and acute alcohol intoxication. Hall’s mouth and trachea had been densely packed with dirt. Repeated filling of the mouth with dirt, followed by choking, swallowing or inhaling, could have accounted for the degree of compaction; it was unlikely that intentional forcing of dirt down the trachea would have resulted in the degree of compaction of the dirt, and there was no tissue damage to indicate a rod had been used. Hall’s blood-alcohol level at the time of death was 0.67 percent.

For most people, a blood-alcohol level of 0.45 or 0.50 percent would be fatal. Diazepam, as well as the over-the-counter cold remedies phenacetin and methapyriline, were found in Hall’s system. A cigarette lighter had been used to bum Hall’s eyes, nose, moustache, left nipple and other parts of his body. The injuries to the eyes and nipple and the removal of the penis and scrotum had occurred postmortem. A swizzle stick had been shoved up the urethra of the penis into the bladder, and the genitals had been inserted into the rectum. Only one testicle was found.

There were ligature marks on the right side of the neck. A 12-inch cut had been inflicted on Hall’s leg postmortem. About 11 inches from Hall’s head, police found a broken bottle neck with dried type B blood on it. Hall had type B blood. About 20 feet from the body, police found a number of pieces of broken glass that appeared consistent with the bottle neck. A latent print made by defendant’s right thumb was on one of the pieces of glass.

That latent print lift was misplaced in the sheriff’s department’s filing system for a period of time; while it was missing, a forensic specialist used a new technique to lift the same latent print from the glass again, and the print was again matched to defendant’s right thumb. A separate latent fingerprint, also identified as defendant’s right thumb, was lifted from another piece of glass found at the scene. A criminalist fitted together the pieces of glass on which defendant’s right thumbprint was found, along with other pieces, concluding they had come from the bottom of the bottle.

The prosecutor argued to the jury that the entry “New Years Eve” on defendant’s list referred to Mark Howard Hall. In defense, several members of defendant’s family testified he had attended a New Year’s Eve party at the Westminster home of one of defendant’s sisters until about 12:30 a.m. Those same family members testified they saw defendant again at his parents’ house around 7:00 or 8:00 a.m. on January 1, 1976. He was wearing the same clothes as the night before, and nothing appeared amiss.

A defense investigator drove from the location of the party defendant attended to San Juan Capistrano, from there to the location where Hall’s body was found, and from there to defendant’s parents’ house; he concluded at least two hours and 35 minutes of driving time was required to cover the route. 14. Murder of Keith Daven Crotwell In March 1975, Keith Daven Crotwell was 19 years old, stood six feet or six feet one inch tall, and weighed 195 to 200 pounds.

On the night of March 29, 1975, Crotwell and his friend Kent May, 15 years old, went to Big John’s Fun Hall near Belmont Pier and the Olympic swimming pool in Long Beach. In the course of the evening, Crotwell and May, who had both been drinking, walked to a seawall near Big John’s and talked about an argument Kent had just had with a girl. Defendant approached and began to converse with them. The area was frequented by homosexuals, and May asked if defendant were homosexual; defendant denied it, stating he was merely out for a leisurely stroll. Defendant offered drugs to Crotwell and May.

They went to defendant’s Mustang automobile, where he gave them pills with the number “10” imprinted on them. May took six or seven of the pills, Crotwell three or four more than May, downing, them with beer. Defendant then drove off with Crotwell and May in his car. May then lost consciousness, waking up with a hangover the next morning at his home. Michael Ditmar and Randy Cooper, friends of Crotwell’s, had also been at Big John’s on the night of March 29, 1975, and sometime after 3:00 or 4:00 a.m. the next day they returned in Cooper’s truck to the area of Big John’s to look for Crotwell and May.

In the Big John’s parking lot, Ditmar saw a white Mustang with its passenger door open and defendant pushing May out of the backseat. May took a few steps and fell down. Defendant pushed May away from the car. Ditmar and Cooper yelled at defendant to stop and wait, but defendant drove off at a relatively fast speed toward Seal Beach with Crotwell in the front passenger seat, slumped toward defendant and possibly unconscious. Ditmar never saw Crotwell alive again. On May 8, 1975, two young boys discovered a human skull near a jetty in the Long Beach Marina about 1,000 feet from a parking lot.

Through dental X-rays, the skull was later identified as Crotwell’s. Following Crotwell’s disappearance, Ditmar and Cooper looked for the Mustang in which defendant had driven off with their friend. They found it in Long Beach and forwarded information about the car to the Long Beach Police Department. Upon learning that the vehicle was registered to defendant, Detective Michael Woodward of the Long Beach Police Department contacted defendant and invited him to come to the police department for an interview.

On May 19, 1975, Detective Robert Bell of the Long Beach Police Department interviewed defendant concerning Crotwell’s disappearance. The tape recording of the interview was played to the jury. Defendant acknowledged he had, within the last couple of months, picked someone up in the Granada Avenue parking lot (which was near Big John’s). Defendant described encountering two males in that location, drinking beer with them, driving around the Belmont Heights area for about 20 minutes, and returning to the parking lot, where one of the two got out of his car.

The other wanted to remain in the car, so defendant drove away again, going southbound on the San Diego Freeway. Defendant said he allowed his passenger to drive, and the car became stuck on an embankment. Defendant walked to some gas stations, which were closed, and telephoned his “other half,” Jeff Graves, for assistance. Defendant then had coffee at the restaurant from which he had called Graves. Because Graves had only a Volkswagen, and may have been unable to assist him, defendant asked for help from a man and his wife at the restaurant, who had a pickup truck.

The man drove defendant in the pickup truck back to defendant’s car. The man who had been with defendant was no longer there. The man with the pickup truck used a rope defendant found to free the car. Defendant looked around unsuccessfully for the man who had been in his car. He then went back to the restaurant to wait for Graves, who arrived later. Defendant had to go to work the next day, and Detective Bell determined that defendant indeed did work that day. Bell was aware of cars becoming stuck in the area defendant described. Defendant denied killing Crotwell or disposing of his body.

On October 19, 1975, some children in the City of Laguna Hills discovered skeletal remains, minus the skull and hands, wrapped in a rug in a large pipe. The remains were later identified as Crotwell’s. The prosecutor argued to the jury that “Parking Lot” on defendant’s list referred to Crotwell. The defense presented evidence that on May 31, 1983, Jeff Graves told detectives that defendant had telephoned him early one morning, probably in May 1975, saying he had had car problems and needed help. Graves said he had gone to defendant’s location and assisted him. 15.

Murder of Ronald Gene Wiebe About 8:30 or 9:00 p.m. on Friday, July 27, 1973, Ronald Gene Wiebe left his mother’s house in Los Alamitos to go to the Sportsman’s Lodge for a few beers. He was 20 years old, five feet five inches in height, and weighed 125 to 130 pounds. About 6:30 a.m. on July 30, 1973, Seal Beach police officers were dispatched to the Seventh Street on-ramp to the San Diego Freeway, where a body later identified as Wiebe’s was found. There was no belt in the pants; the right foot was bare, but there was a sock on the left foot. The top of Wiebe’s pants was undone, exposing his penis.

There was a ligature mark on the victim’s neck about one-quarter-inch wide. Death had occurred about two days earlier, caused by asphyxia due to ligature strangulation. Postmortem road bums were all over the body. A sock had been stuffed into the victim’s rectum, apparently postmortem. The victim’s penis had been “pinched” after his death. His blood-alcohol level was 0.02 percent at the time of death, and no drags were detected in his system. The prosecutor argued to the jury that “7th St.” on defendant’s list referred to Wiebe.

The defense presented evidence that Officer Earl Potter of the Los Alamitos Police Department knew Wiebe and was familiar with his car. While on bicycle patrol outside the Sportsman’s Lodge during the early morning hours of July 28, 1973, Potter did not see Wiebe’s car. Later that day or the following day, however, the car was found at a nearby Firestone Tire store. Latent fingerprints taken from Wiebe’s car did not match defendant’s. 16.

Murder of “John Doe Huntington Beach” About 1:00 a.m. on Saturday, April 14, 1973, a passing motorist saw a dead body on Ellis Avenue between Goldenwest and Gothard Streets in Huntington Beach and called the police. There was no identification with the body, which remained unidentified at the time of trial. The victim appeared to be between 18 and 25 years old. He wore socks but no shoes, and there was no belt in his pants. The cause of death was suffocation, perhaps caused by a gag or something put over the nose and mouth.

The victim’s penis and scrotum had been removed antemortem, and the loss of at least two pints of blood may have been a contributing factor in the death. There were gag marks on the mouth and ligature marks on both wrists. The victim’s nose and lips had been bruised before death. There were postmortem road bums on the body. A sharp instrument had inflicted cuts on various parts of the body after death. The victim’s blood-alcohol level was 0.07 percent. Rectal swabs taken from the victim at the autopsy were found to contain spermatozoa.

William Smith, a resident of the City of Huntington Beach since 1946, worked for the city on traffic signals at the time of trial. Smith testified that, when he was in elementary school, the area where the body of “John Doe Huntington Beach” was found was known as “Airplane Hill.”' Children would try to ride their bicycles down one side and up the other without stopping, and high school students would try to drive their cars down the hill fast enough to get a feeling of becoming airborne. The bottom of the hill was filled in in 1960.

The prosecutor argued to the jury that “Airplane Hill” on defendant’s list referred to “John Doe Huntington Beach.” The defense presented evidence that latent fingerprints on beer cans along the side of the road near where the victim’s body was found did not match defendant’s.

A witness, who had grown up in Long Beach, knew the area where the victim’s body was found as “Shell Hill” rather than “Airplane Hill.” Another witness testified that a different location, between the Pacific Coast Highway and Colorado Boulevard on Manila Avenue, was known as “Airplane Hill.” Benjamin Paniagua, a friend of defendant’s, testified defendant used to visit him in his apartment in Long Beach and that a nearby area on Manila Avenue was called “Airplane Hill.” Paniagua acknowledged, however, that defendant never referred to him as “Airplane Hill.” A defense investigator unsuccessfully looked for associates of defendant who were aware that defendant knew the area where the victim’s body was found as “Airplane Hill.” 17.

Murder of Edward Daniel Moore Around 1:45 a.m. on December 26, 1972, a California Highway Patrol officer driving in the area of the Seventh Street off-ramp from the 405 and 605 Freeways saw a group of pedestrians near a dead body later identified as that of Edward Daniel Moore. The body was on the shoulder of the off-ramp, about one-quarter mile from Seventh Street. The victim’s body was identified through his fingerprints. Moore was a United States Marine stationed at Camp Pendleton. When his body was found, Moore was wearing a jacket, T-shirt, sweater, pants with no belt, and one sock.

The other sock was found in his rectum. Moore’s boxer shorts had his name, as well as another person’s name, stenciled on the back. Moore had died about three days before his body was found. The cause of death was asphyxiation through strangulation. There were ligature marks on Moore’s neck and two scratch marks on the left side of his scrotum. A fist or blunt instrument had caused antemortem trauma to Moore’s nose and lip. Moore’s blood contained only a trace of alcohol and no drugs. The prosecutor argued to the jury that the entry “EDM” on defendant’s list referred to Moore. 18.

Defense Evidence Relating to the Charges Generally Defendant’s neighbors on Roswell Avenue, Pennie De Wees and Willy Sadler, did not see anything out of the ordinary with respect to visitors at defendant’s house. De Wees considered defendant a “wonderful neighbor.” Thomas Schardt, a commercial photographer specializing in forensic reconstruction, photographed a Mustang manufactured in the same year (1974) as defendant’s and testified it would be extremely difficult to push open a passenger door from the driver’s side because one would have to pull up on the lever and push out on the door at the same time.

The prosecution, however, contended the Mustang Schardt examined was significantly different from defendant’s Mustang. B. Penalty Phase Evidence 1. Overview of Prosecution Case The prosecution presented evidence that defendant had committed an uncharged sexual assault and eight additional murders in Oregon and Michigan. In 1970, defendant befriended 13-year-old Joseph F., who had just run away from home, took him to defendant’s house, drugged him and sodomized him. From 1980 to 1982, while on business trips to Oregon, defendant murdered six young men in separate incidents.

One night in December 1982, while on a business-related trip to Grand Rapids, Michigan, defendant murdered two young men. Items belonging to the Oregon and Michigan victims were found in the search of defendant’s house. A jacket taken from one of the Oregon victims was found just outside defendant’s Grand Rapids hotel room. References to all eight out-of-state victims, the prosecutor argued, were included on the list found in defendant’s car after his arrest. 2. Sexual Assault on Joseph F. In March 1970, 13-year-old Joseph F. ran away from his Westminster home on his bicycle.

He rode his bicycle up and down the boardwalk in Huntington Beach, where he encountered defendant. He asked defendant for a cigarette, which defendant gave him. After learning Joseph was a runaway, defendant offered to let him stay at his apartment. Joseph hid his bicycle and accompanied defendant on his motorcycle to defendant’s apartment in Long Beach. There, defendant gave Joseph some red capsules. Joseph swallowed four capsules initially and four more a short time later, washing them down with wine. Joseph felt drowsy and started to black out.

Defendant asked Joseph if he had ever had sex with a man before and showed him photographs of men having sex with one another. Defendant was depicted in some of the photographs. Defendant began masturbating in front of Joseph and asked him to take off his clothes. Joseph was unable to resist because of the pills and alcohol he had ingested. Defendant forced Joseph to orally copulate him, slapped him and sodomized him twice, causing him pain. Afterward, defendant said something about going to work and left the apartment.

Joseph then left the apartment and went to a bar across the street, narrowly missing getting hit by a car. Someone called an ambulance, and Joseph was taken to a hospital, where his stomach was pumped. His face was bruised and his rectum was sore. Joseph never revealed to anyone that defendant had sexually assaulted him until he was interviewed by detectives in August 1983. At the time of trial, Joseph was in custody on a parole violation.

Joseph acknowledged that after telling detectives about the incident he asked for money, a vehicle and a loan, but testified he did not receive anything from any law enforcement agency. In defense, Joseph’s mother acknowledged she had told personnel at her son’s school and others that Joseph was a pathological liar. 3. Murder of Michael O’Fallon In July 1980, Michael O’Fallon left his home in Golden, Colorado, a suburb of Denver, and hitchhiked to Canada. O’Fallon, then 17 years old, stood five feet seven inches tall and weighed 135 pounds.

When he left on his trip, O’Fallon took a camera with his mother’s initials, “MJO,” scratched on the front. About 12:10 a.m. on July 17, 1980, a passing motorist encountered O’Fallon hitchhiking on Interstate 5 in Oregon. About 5:00 a.m. that day, O’Fallon’s body was found at the Talbot Road interchange with Interstate 5, some 10 miles south of Salem, Oregon. There were no clothes or identification with the body. The cause of death was ligature strangulation. A ligature consisting of a red shoelace bound O’Fallon’s wrists together, while his ankles were bound by another lace.

A white ligature connected the other two ligatures with O’Fallon’s scrotum. Blood and fecal material were visible from a laceration to the anus. O’Fallon’s blood contained alcohol (0.04 percent) and diazepam. On a number of occasions defendant’s employer, Lear Siegler Corporation (Lear-Siegler), sent him to its Peerless Division in Tualitin, Oregon, to help install a computer system. Defendant worked at that location between July 16 and July 18, 1980, and rented a car for that period at the Portland airport. Defendant returned the rental car to the airport.

Although the Peerless building was only 25 miles from the airport, defendant drove his rental car a distance of 993 miles between July 16 and July 18. A camera bearing the initials “MJO” and identified by O’Fallon’s mother and brother as the camera Michael O’Fallon took with him on his trip was found in the search of defendant’s garage. The prosecutor argued to the jury that the entry “Portland Denver” on defendant’s list referred to O’Fallon. 4.

Murder of “John Doe Oregon” About 4:20 a.m. on July 18, 1980 (the day after O’Fallon’s body was found), the body of another deceased White male was discovered on the side of Interstate 5 about a mile south of Woodbum, Oregon. The victim, whose age was estimated at 35 to 40 years, was never identified. The victim’s belt and bootlaces were missing. The cause of death was ligature strangulation. A ligature mark about one-half-inch wide was around the victim’s neck. The victim’s blood contained alcohol (0.06 percent) and diazepam.

The prosecutor argued to the jury that the entry “Portland Elk” on defendant’s list referred to “John Doe Oregon”; he reached this conclusion by process of elimination as all the other “Portland” entries appeared to represent the other Oregon victims. 5. Murder of Michael Duane Cluck On April 9, 1981, Michael Duane Cluck, then 17 years old and living in Kent, Washington, told his mother he was going to hitchhike to Bakersfield or Southern California to get a job. Cluck stood five feet eight inches tall and weighed 160 pounds. Cluck took with him a shaving kit his grandmother had given him.

Cluck’s name was on the kit. About 8:39 a.m. the next day, Cluck’s body was found in a ditch on the side of Pebbles Road about 500 feet from Interstate 5 in Oregon. The body was nude from the waist down. There was considerable blood in the facial area and blood smears on other exposed portions of the body. When found, the body was still warm to the touch. Death had resulted from 16 wounds to the back of the head, which had caved in the victim’s skull. There was a laceration and blood loss in the area of the rectum.

The victim’s blood contained alcohol (0.09 percent), bromodiphenylhydramine, chlorpheniramine and codeine. His urine contained norephedrine, codeine metabolites, flurazepam metabolites and chlorpheniramine. On the day Cluck’s body was found, defendant sought medical attention in Tualitin, Oregon. He reported to the physician that he had badly bruised his toe about 3:00 a.m. that morning while moving about barefoot in his motel room to turn on the television to watch the launching of the space shuttle. Cluck’s shaving kit was found underneath some clothes in a drawer in the hallway of defendant’s house.

The prosecutor argued to the jury that the entry “Portland Blood” on defendant’s list, alluding to the large quantity of blood at the murder scene, referred to Michael Cluck. 6. Murder of Brian Whitcher In the early morning hours of November 24, 1982, a dead body later identified as that of Brian Whitcher was found south of Wilsonville, Oregon, on the fog line of Cambry-Hubbard Road, which runs parallel to Interstate 5. There was no belt in the victim’s pants, and the victim’s feet were bare. The body had been thrown from a moving vehicle.

The cause of death was asphyxiation, and there was a ligature mark on the victim’s neck about two and one-half inches long and one-half inch wide. Whitcher’s blood contained alcohol (0.31 percent) and diazepam. Defendant was working at Peerless in Tualitin, Oregon, on November 23 and 24, 1982. He drove a rental car 232 miles during that period. A friend of Whitcher’s, Earl Davis, last saw Whitcher around noon on November 23, 1982, at which time Whitcher was wearing a distinctive brown velour pullover Davis had purchased and later given to Whitcher. That pullover was later found in the garage of defendant’s home.

According to Davis, Whitcher occasionally smoked marijuana. The prosecutor argued to the jury that the entry “Portland Head” on defendant’s list referred to Brian Whitcher, in an apparent allusion to Whitcher’s fondness for marijuana. 7. Murder of Anthony Silveira In December 1982, Anthony Silveira, then 29 years old and a member of the National Guard Reserve, lived in Eagle Point, Oregon, with his wife. He owned an army jacket with his name tag sewn on it. On December 4, 1982, Silveira was supposed to travel from Cannon Beach, in the northwest part of Oregon, to Medford for guard duty. He did not own a car.

Silveira had telephoned his wife on December 3, 1982; she never heard from him again. Defendant was working for Lear-Siegler near Portland between December 1 and December 4, 1982. On December 18, 1982, Silveira’s dead body was found off Boone’s Ferry Road near Interstate 5 west of Hubbard, Oregon. There was no clothing on the body, which appeared to have been there for a period of time as there were signs of putrefaction and nibbling by animals. Death was caused by ligature strangulation, with a ligature mark, consistent with a belt, visible at the autopsy.

A toothbrush was removed from the victim’s anus at the autopsy; the rectum was dilated and spermatozoa and blood were found in the anal canal. The victim’s blood contained alcohol (0.23 percent) and diazepam. On December 4, 1982, defendant visited his friend Gary Newell at the latter’s home in Seattle, Washington. Defendant arrived in a rental car and, soon thereafter, returned to the car and retrieved an army jacket that was either Silveira’s or very similar to it. Both Newell and his housemate, Leonard Brouette, recalled that the name on the jacket began with “S” and was a “Hispanic-sounding” name.

The next morning, defendant said he was leaving for the airport and Grand Rapids, Michigan. Defendant stayed in room 1169 on the 11th floor of the Amway Grand Plaza Hotel in Grand Rapids from December 5 through December 8, 1982. About 10:00 a.m. on December 8, hotel security officer Ronald Ortega found Silveira’s army jacket draped over a couch located in the 11th floor elevator lobby area, about 12 to 15 feet from defendant’s room. Ortega turned the jacket in to the hotel’s lost-and-found department. The prosecutor argued to the jury that the entry “Portland Reserve” on defendant’s list referred to Silveira.

In defense, pathologist Robert Bucklin reviewed photographs and autopsy reports concerning the Silveira case and concluded Silveira had been dead no more than three days when his body was found, although he acknowledged he had not considered the fact Silveira had failed to report for reserve duty on December 5 as scheduled. Banking and business records showed defendant was in Southern California from December 10 through December 18, 1982.

Analysis of the semen found on the toothbrush in the victim’s anus established it was equally likely the semen donor was a type B secretor, a type O secretor, or a type O nonsecretor. Defendant was a type O nonsecretor, and the victim was a type B secretor. In rebuttal, pathologist Robert Richards testified, based on the temperatures in the low 30’s and 40’s at the scene where the body was discovered, Silveira’s body could have been there for two or three weeks before it was found, despite the relative lack of deterioration of the body. 8.

Murders of Dennis Alt and Christopher Schoenborn In December 1982, Dennis Alt, then 24 years old, lived on a farm in Kent County, Michigan, about seven miles from Grand Rapids. He stood five feet 10 inches tall and weighed 160 pounds. Christopher Schoenborn, then 20 years old, also lived on a farm near Grand Rapids, and knew and was related to Alt. Schoenborn stood six feet two inches tall and weighed 190 pounds. On December 7, 1982, Alt and Schoenborn attended an agricultural convention at the convention hall near the Amway Grand Plaza Hotel.

Schoenborn was wearing a “Mighty Mac” jacket with his name inscribed on a label. Defendant was in Grand Rapids from December 5 through December 8 to attend a seminar for his employer. The seminar concluded on the afternoon of December 7, after which defendant had a business dinner with fellow employee Ronald Titgen and two others. Following the dinner, defendant and Titgen went to Tootsie Van Kelly’s bar in the Amway Grand Plaza Hotel, where they spoke with Christopher Schoenborn, a local resident whom they happened to meet, for about an hour.

Titgen and defendant spoke with Schoenborn until sometime between 11:00 p.m. and midnight, when Schoenborn left and defendant said he had to make a couple of telephone calls. Titgen then went to his hotel room. Dennis Alt was also in Tootsie Van Kelly’s that evening. Dennis’s cousin, Thomas Alt, saw Dennis in the bar around 11:00 p.m. Dennis had been drinking and asked Thomas to take him home. Thomas agreed but, after going back into the bar to retrieve his jacket and then paying for a round of drinks for some people he knew, Thomas could not find Dennis.

On the morning of December 9, 1982, the bodies of two men, later identified as those of Christopher Schoenborn and Dennis Alt, were found five feet from a road in a vacant field about four miles from the Alt farm and nine miles from the Amway Grand Plaza Hotel. Alt’s pants were unbuttoned and his genitals were exposed. He was wearing socks but no shoes. His death was the result of asphyxiation by choking; there were linear pressure marks on the right side of his neck. Alt’s blood contained alcohol (0.15 percent) and diazepam.

Like Alt, Schoenborn had been choked to death, and there were parallel pressure marks on the left side of his neck. A pen with the insignia of the Amway Grand Plaza Hotel had been inserted up Schoenborn’s urethra into the soft tissue of the pelvis, causing extensive hemorrhaging. Schoenborn’s blood contained alcohol (0.16 percent), and there was diazepam in his stomach. After defendant checked out of room 1169 of the Amway Grand Plaza Hotel, a housekeeping supervisor found a set of keys, which she turned in to the hotel’s lost-and-found department. The keys were for Alt’s Ford Bronco and Yamaha snowmobile.

Schoenborn’s Mighty Mac jacket, identified at trial by his mother, was found in a search of defendant’s garage. Schoenborn’s key chain and bottle opener were found in the pocket of a sports coat in defendant’s home. Schoenborn’s boots and belt were also recovered from defendant’s home. The prosecutor argued to the jury that the entry “GR 2” on defendant’s list referred to Alt and Schoenborn. 9. Murder of Lance Taggs About 10:45 p.m. on December 8, 1982, Lance Taggs, 19 years old, five feet seven inches in height and 160 pounds in weight, left his home in Tigard, Oregon. Taggs had no car and sometimes hitchhiked.

Taggs carried a blue nylon tote bag, printed with “Kaneohe, Hawaii,” into which he had packed his surfing clothes and his distinctive set of nunchakus. Having previously lived in Hawaii, Taggs possessed some clothes with “Hawaii” printed on them and a Hawaii state identification card. A body, later identified as Taggs, was found the next day several feet off a road a half-mile east of Interstate 5 between Wilsonville and Canby in Oregon, less than a quarter-mile from the location where Brian Whitcher’s body had been found (see ante, at p. 1024).

The words “Local Motion” and “Hawaii” were printed on the red shirt Taggs was wearing. There were no shoes or socks on the body, which had been ejected from a moving vehicle. The cause of death was asphyxiation from the obstruction of the airway by a foreign object (an orange sock had been stuffed down Taggs’s throat). The waistband of the swimming trunks Taggs was wearing was unsnapped, and it appeared he had been redressed, as the inside of the swimming trunks was dirty. Taggs’s blood contained alcohol (0.07 percent), diazepam and nordiazepam (a metabolite of diazepam).

Defendant claimed reimbursement from his employer, Lear-Siegler, for expenses incurred in Portland, Oregon, on December 8 and 9, 1982. Taggs’s tote bag and nunchakus were found in the search of defendant’s house. The prosecutor argued to the jury that the entry “Portland Hawaii” on defendant’s list referred to Taggs. The defense tried to show that another person was responsible for Taggs’s murder. Robert Hayes, the former proprietor of a security business in Wilsonville, Oregon, testified that in the early evening hours of December 8, 1982, he had encountered Taggs hitchhiking by the freeway near Wilson-ville.

Hayes told Taggs to get out of the area, as a couple of murders had occurred there. Some disreputable persons, including one Lloyd Hawes, frequented a rest stop south of Wilsonville. That same evening, Hayes saw Hawes and three other men near where Taggs had been hitchhiking. The next day, Hayes learned Taggs’s body had been found between one and two miles from where Hayes had seen Hawes’s truck. Thereafter, Hayes quietly approached Hawes’s pickup truck through some woods.

As he did so, he heard Hawes state: “That one sure bounced a long way last night, didn’t he?” Later, Hayes, accompanied by a deputy sheriff, secretly searched under Hawes’s camper shell, finding some clean Hawaiian shirts and a clean pair of blue jeans that would not have fit anyone in Hawes’s group. These were unlikely items to find in Hawes’s camper, as Hawes was a “cruddy, greasy, dirty-looking person” one could “smell ... a block away.” 10.

Defense Penalty Phase Evidence Forty-four friends, family members, former coworkers and former teachers of defendant’s testified he was an intelligent, peaceful, caring person who should not be executed. Four clergymen who interviewed defendant and his family believed the death penalty should not be imposed on defendant. Thirteen correctional officers from the Orange County jail testified defendant had caused no problems at the jail. Dr. Monte Buchsbaum, a professor of psychiatry, performed a positron emission tomography (PET) scan on defendant.

The scan revealed abnormalities that could have been caused by a head injury or vascular problem. Similar results have been associated with obsessive-compulsive disorder. According to members of defendant’s family, when defendant was a child he suffered a fall on his head that rendered him unconscious. Dr. Craig Haney, psychologist, testified defendant would make an excellent adjustment to prison if sentenced to life imprisonment without the possibility of parole. II. Discussion A. Guilt Phase Issues 1.

Denial of Severance Motion Defendant contends the trial court erred in denying his motion to sever the homicide counts and try them separately, in 16 separate trials. In support of the motion, the defense presented expert testimony by Dr. Steven Penrod, a professor of psychology who has researched the effects of joinder on jury decisionmaking. Penrod concluded that joining multiple charges against a defendant increases the likelihood of conviction, probably not because of confusion of the evidence but rather because the jury tends to infer a criminal disposition.

Section 954 provides in relevant part: “An accusatory pleading may charge . . . two or more different offenses of the same class of crimes or offenses, under separate counts, . . . provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately.” Because the charges in this case all alleged offenses of the same class, the statutory requirements for joinder were satisfied.

Defendant, therefore, can predicate error in denying the motion only on a clear showing of potential prejudice. (People v.

Bradford (1997) 15 Cal.4th 1229, 1314-1315 [65 Cal.Rptr.2d 145, 939 P.2d 259].) We review the trial court’s ruling on the severance motion for abuse of discretion. {Id. at p. 1315.) “'“The burden is on the party seeking severance to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.” [Citation.] [H] “The determination of prejudice is necessarily dependent on the particular circumstances of each individual case, but certain criteria have emerged to provide guidance in ruling upon and reviewing a motion to sever trial.” [Citation.] Refusal to sever may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a “weak” case has been joined with a “strong” case, or with another “weak” case, so that the “spillover” effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case. [Citations.]’ ” {People v.

Bradford, supra, 15 Cal.4th at p. 1315.) Our determination whether defendant was prejudiced by joinder requires us first to examine whether evidence on each of the joined charges would have been admissible, under Evidence Code

section 1101, in separate trials on the others. If so, any inference of prejudice is dispelled. {People v. Bradford, supra, 15 Cal.4th at pp. 1315-1316.) Conversely, however, the absence of cross-admissibility does not, by itself, demonstrate prejudice. {Id. at p. 1316.) In denying the severance motion, the trial court in this case noted most of the evidence on the various charges would be cross-admissible. Defendant disputes that conclusion. We find his arguments unpersuasive.

In a trial on each individual murder count, evidence of the other charged murders generally would have been admissible to show defendant committed the charged murder as part of a common scheme or plan, which was relevant to the element of intent. (Evid. Code, § 1101, subd. (b); Pen. Code, § 187.) The victims shared certain characteristics, all being White males between the ages of 18 and 25, all but one being single, and most being, at the time of the offense, vulnerable by virtue of lack of transportation.

The method of obtaining control over the victims was similar in most of the charged offenses: Defendant generally supplied the victims with alcohol and drugs, often diazepam, to the point they could no longer resist, whereupon defendant generally bound their wrists with ligatures, frequently using shoelaces. After gaining control over the victims in such a manner, unless they were already succumbing from the effects of the drugs, defendant killed them, often by ligature strangulation.

After the victims’ deaths, defendant disposed of the bodies generally by dumping them from his car, usually on or near a freeway or other roadway. And each murder involved some type of arguably sexual activity or aberration, whether taking the form of sodomy, mutilation or stripping the victim of clothing. As this court noted in People v.

Ewoldt (1994) 7 Cal.4th 380 [27 Cal.Rptr.2d 646, 867 P.2d 757]: “To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual. For example, evidence that a search of the residence of a person suspected of rape produced a written plan to invite the victim to his residence and, once alone, to force her to engage in sexual intercourse would be highly relevant even if the plan lacked originality.

In the same manner, evidence that the defendant has committed uncharged criminal acts that are similar to the charged offense may be relevant if these acts demonstrate circumstantially that the defendant committed the charged offense pursuant to the same design or plan he or she used in committing the uncharged acts.

Unlike evidence of uncharged acts used to prove identity, the plan need not be unusual or distinctive; it need only exist to support the inference that the defendant employed that plan in committing the charged offense. [Citation.]” (Id. at p. 403.) In general, the charged offenses in this case were sufficiently similar to each other to support an inference that defendant acted according to a plan. Indeed, some aspects of each of the offenses were sufficiently similar to each other as to support instructions on modus operandi, as discussed post, at pages 1061-1062.

We reject defendant’s contention that the evidence in each charged murder had to be so similar as to establish a distinctive “signature” for cross-admissibility under the common plan theory pursuant to Evidence Code

section 1101, subdivision (b). As we observed in People v. Ewoldt, supra, 7 Cal.4th at page 403, a lesser degree of similarity is necessary to admit evidence of other offenses to prove a common design or plan than to prove identity. That all of the charged murders were not committed in exactly the same way, therefore, does not preclude cross-admissibility. The Attorney General contends evidence of the charged murders was also cross-admissible to refute certain anticipated defenses.

For instance, the Attorney General contends evidence of other murders involving the provision of drugs to the victims would have been admissible in a trial of the Crotwell charge to refute the explanation defendant offered to police, i.e., he merely provided drugs to Crotwell and took him for an automobile ride, but played no role in his death.

To the contrary, the Attorney General reasons, evidence that defendant murdered other persons whom he had supplied with alcohol and drugs would be admissible to show that defendant gave Crotwell drugs and took him for a drive, not as a gesture of friendship, but in order to render him vulnerable to an attack by defendant.

The Attorney General additionally contends evidence of the DeVaul, Church and Loggins homicides (those in which photographs of the victims were found in defendant’s car and house) was cross-admissible to refute any suggestion the defense might offer in a severed trial that the photographs were innocently obtained on dates preceding the victim’s death. In this regard, the Attorney General observes that the prosecution presented evidence the photographs of Loggins were taken after his death, a proposition the defense disputed.

The Attorney General contends further that evidence of all of the charged murders was cross-admissible to refute any possible defense of accident in the cases of those victims whose death may have been caused by drug or alcohol intoxication, i.e., Loggins, Crisel and Klingbeil. Defendant contends that because he did not, at trial, actually take the stand to proffer these explanations in avoidance of murder liability, they may not now support the denial of severance.

He overlooks, however, that in assessing whether the trial court abused its discretion in denying severance, we examine the state of the record at the time of the ruling. (People v. Price (1991) 1 Cal.4th 324, 388 [3 Cal.Rptr.2d 106, 821 P.2d 610].) For the foregoing reasons, we conclude the trial court did not abuse its discretion in denying defendant’s motion to sever the murder charges. 2. Admission of Death List Defendant contends the trial court erred in admitting into evidence a handwritten document the prosecution characterized as a coded list of defendant’s victims.

The list, he argues, lacked probative value because any connection between the entries on the list and particular victims was speculative. Defendant also contends any relevancy the list possessed was outweighed by its prejudicial impact. Additionally, he asserts the list constituted inadmissible hearsay. He further argues that admission of the list violated the heightened evidentiary reliability requirements in capital cases, established by the Eighth and Fourteenth Amendments to the federal Constitution. We find no abuse of discretion in the admission of the list.

After defendant was arrested on May 14, 1983, Orange County Sheriff’s deputies searched defendant’s car pursuant to a warrant. Among the items recovered in the search was a notebook containing a sheet of paper bearing 61 cryptic entries in defendant’s handwriting. The prosecution contended the list memorialized defendant’s various murder victims and that 13 of the entries corresponded to murder counts tried in the guilt phase of this case. The prosecution further contended eight additional entries referred to murders defendant committed in Oregon and Michigan, evidence of which was presented in the penalty phase.

The prosecution also asserted 21 additional

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