THE PEOPLE, Plaintiff and Respondent, v. RICHARD LACY LETNER and CHRISTOPHER ALLAN TOBIN, Defendants and Appellants, 50 Cal. 4th 99

Opinion GEORGE, C. J. Defendants Richard Lacy Letner and Christopher Allan Tobin were convicted of first degree murder (Pen. Code, § 187), burglary (§ 459), robbery (§§ 211, 212.5), attempted rape (§§ 664, 261, subd. (a)(2)), and theft of an automobile (Veh. Code, § 10851, subd. (a)), arising from the murder of Ivon Pontbriant in her home in Visalia, California, on March 1, 1988.

As to each defendant, the jury found true three special circumstance allegations—that the murder was committed in the course of the burglary, attempted rape, and robbery (§ 190.2, subd. (a)(17)(A), (C), (G))—and returned a verdict of death. The trial court, having denied defendants’ motions for new trial and the automatic applications to modify the verdicts (§ 190.4, subd. (e)), sentenced defendants to death and to consecutive prison terms of six years eight months for the noncapital offenses. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment as to each defendant in its entirety. I. Facts A.

Guilt Phase 1. Prosecution Evidence Ivon Pontbriant, then 59 years of age, lived with Walter Gilliland, with whom she was romantically involved, in a residence located at 804 North Jacob Street in Visalia in Tulare County. On Wednesday, March 2, 1988, Ted and Ida Blevins, Pontbriant’s parents, became concerned because Ivon had not telephoned them as she had planned. That evening, the Blevinses contacted Pontbriant’s cousin, Jack Cantrell, and with him went to the house on North Jacob Street.

After they knocked on the door without receiving any response, Cantrell looked through a window and saw Pontbriant sprawled on the floor of the living room. When the police arrived, they found Pontbriant’s body lying facedown in a pool of blood on the floor between a couch and a coffee table. She was unclothed except for her socks and a brassiere that was pulled down to her waist. Her hands were tied behind her back with a telephone cord that also was looped around her neck. The cord was tied tightly enough to have made ligature marks upon her neck and wrists.

A large, deep cut on the back of her neck had severed her spinal cord and lacerated several blood vessels including the right carotid artery, causing her death. Death from the severed spinal cord could have been essentially instantaneous; she would have bled to death within minutes. Pontbriant also had suffered three stab wounds to her neck— two on the left and one on the right—that narrowly missed her blood vessels, and three superficial lacerations on the right side of the neck.

Had these other wounds severed Pontbriant’s carotid arteries, she would have lost consciousness almost immediately, and would have died within minutes. Pontbriant’s face had sustained severe blunt force trauma, as though she repeatedly had been kicked or punched in the face while alive, and there were defensive wounds on her arms. Portions of her hair had been ripped out of her head. A Heineken beer bottle, which had fecal matter on it, was wedged between Pontbriant’s buttocks, near her genitals.

A pile of clothing found in the living room included a pair of pants and underwear that also had fecal matter on them, and a sweater that appeared to have been cut or ripped open. There was no blood on the clothing. Several hairs were found on Pontbriant’s chest. An ashtray on the coffee table contained several Marlboro and Camel cigarette butts and a Lowenbrau beer bottle cap. The top of the coffee table had a cut that could have been made by stabbing a knife into it. Nearby was a photograph of Pontbriant with a hole in it that matched the cut in the table.

Two of Pontbriant’s purses were on the floor; the entire contents of one purse had been dumped on the floor, and the contents of the other purse, which contained Pontbriant’s checkbook, had been only partially removed. The checkbook did not contain any money, but more than $18 in bills and change were found at the bottom of the purse. The kitchen area appeared to have been wiped down, and in the bathroom was a washrag that appeared to have had blood on it and to have been rinsed. A distinctive wine bottle opener of a type sold at a local liquor store was on the kitchen counter.

Gilliland testified that he never had seen the bottle opener in the house. In the bedroom, which was in disarray, the police found a blue baseball cap, blood smears on a pillow on the bed and on a doily on the dresser, and semen stains on the carpet. Pontbriant’s automobile, a red-and-white Ford Fairmont, was missing. A quilt that Pontbriant used to cover the front seat of her car was found on a bush near the location where the passenger’s side door would be when the car was parked in the driveway.

Gilliland testified that Pontbriant was very protective of her car; very rarely would she allow anyone else to drive it. Gilliland testified that three days earlier, on the morning of Sunday, February 28, 1988, defendants drove to the Jacob Street residence in a car they said belonged to Tobin’s girlfriend. For somewhat more than a month prior to that Sunday, Letner had worked for Gilliland two or three days a week helping him repair appliances in the garage behind the house. Gilliland and Pontbriant had befriended Letner; Pontbriant told people that he reminded her of her son.

On that Sunday morning, defendants gave Pontbriant and Gilliland a bottle of Kahlua liqueur and a couple of cartons of Marlboro cigarettes. Defendants went inside the house and had coffee with Pontbriant and Gilliland. In defendants’ presence, Gilliland mentioned that he was planning to go to Modesto to visit his family. Pontbriant reminded him that the rent was due soon, and Gilliland gave her approximately $340 in cash. She placed the cash in her checkbook and put the checkbook inside her purse. Defendants left after approximately one hour. Letner and Tobin were long-standing, very close friends.

They had known each other for several years while attending high school in the City of Napa, California. Sometime during 1984, Tobin moved to Visalia, where he met and became romantically involved with Jeanette Mayberry. Tobin and Mayberry lived in a residence at 248 South Crenshaw Street, which they shared with Darlene Jolly and Mike Kinnett. Letner also stayed at the house for approximately one month. Sometime during 1986, Tobin and Mayberry moved to an apartment at 301 East Murray Street, and Letner later joined them.

After relocating to a different apartment in the building on Murray Street, in March of 1987 the three moved to an apartment on Stevenson Street. Mayberry was pregnant with Tobin’s child and gave birth in May of that year. Soon after the baby was bom, Letner moved back to the Murray Street apartment. A couple of months later, Tobin also moved back to Murray Street, while Mayberry moved to an apartment at 720 North Bridge Street. Mayberry testified that she and Tobin separated because of Letner’s interference with their relationship.

Tobin and Mayberry continued to see each other, however, and in December 1987, Tobin moved to the Bridge Street apartment. In May 1987, Tobin had begun working for a company that manufactured prefabricated buildings. Letner started working for the same company in June. Defendants were laid off near the beginning of 1988, however, and had no steady employment after that time. Defendants, who did not own a car, occasionally borrowed Mayberry’s car to get around. On Sunday, February 28, 1988, Mayberry lent defendants her vehicle to attend a local swap meet in order to attempt to sell various items.

When Letner returned the car that afternoon, he told Mayberry that Tobin was meeting with Tobin’s ex-wife at a nearby park. Mayberry was angered by this report, and twice confronted Tobin and his ex-wife that day. At one point Mayberry angrily threw away the engagement ring Tobin had given her. On the next day, Monday, February 29, 1988, Mayberry returned to her apartment and discovered that the bedroom window was broken. She suspected that Tobin had broken the window in order to enter the apartment, because she had removed his house key from his keyring after their quarrels on the previous day.

Within a few moments, Tobin (who was intoxicated) and Letner arrived at the apartment. Tobin and Mayberry began to argue, and Tobin struck her and pulled out some of her hair. Letner yelled insults at Mayberry and encouraged Tobin to continue to strike her. After Mayberry managed to get away from Tobin, she ran to an upstairs apartment. The neighbors admitted her and called the police. When the neighbors informed defendants that the police had been summoned, Tobin broke the living room windows of Mayberry’s apartment, retrieved his shotgun, and used it to break the windows of her car in the parking lot.

He then reentered the apartment, obtained his ornamental sword, and departed with Letner. Tobin returned to the apartment the next day to search for his driver’s license and to apologize to Mayberry. Mayberry did not accept Tobin’s apology and left. Mayberry returned to the apartment the following day, Tuesday, after the windows had been repaired. Tobin’s personal belongings were still there. Mayberry believed Tobin would return and they would reconcile; he had not mentioned anything regarding moving away.

Meanwhile, also on Sunday, February 28, Gilliland and Pontbriant had a disagreement, and Gilliland decided to leave for Modesto. He arranged to meet his son at a motel, so that his son could drive him to Modesto. Gilliland’s son picked him up early the next morning, and they drove to the residence on Jacob Street. Gilliland testified that he retrieved several items, including a toolbox and a puppy, and that Pontbriant was asleep while he was at the house. Gilliland’s son drove with Gilliland to Modesto and dropped him off at his ex-wife’s house.

Marilyn Reid testified that on Sunday evening, Gilliland appeared with a suitcase at the Break Room Bar in Visalia. Letner, who already was there, talked and drank beer with Gilliland; later, they departed at the same time. On Tuesday, March 1, 1988, Pontbriant drove her friend Flourene Gentry to shop for groceries, as she always did on the first of the month. Later that evening, Pontbriant telephoned Gentry three times, telling her that she (Pontbriant) was concerned because Gilliland had not returned, and a person who had purchased a stove from Gilliland had come by the residence to complain.

Gentry testified that during the third telephone call, at approximately 9:30 p.m., Pontbriant told her that two individuals, one of whom reminded her of her son, had just arrived and were entering her house, and everything would be all right. Pontbriant also mentioned that she was “feeling no pain.” On that Tuesday evening, Marilyn Reid saw defendants drinking together at the Break Room. They departed together sometime between 7:30 p.m. and 9:30 p.m. Frank’s Liquors was located directly across the street from the Break Room.

A clerk at the liquor store, who recognized defendants because they were frequent customers of the store, was working one night (which he could identify only as a night in Mar. 1988), when one of the two defendants purchased a six-pack of Heineken beer, a bottle of inexpensive wine, and a distinctive wine bottle opener of the type later found at Pontbriant’s house. The same person returned later that night and bought a six-pack of Lowenbrau beer. Later that Tuesday evening, Pontbriant and Letner made a series of angry telephone calls to Edward Burdette and his common law wife, Kathy Coronado.

Pontbriant accused Burdette of helping Gilliland take the dog and a toolbox that apparently belonged to Letner. Letner threatened to “kick [Gilliland’s] ass” and to harm Burdette if Letner’s tools were not returned. In the later calls, Pontbriant became increasingly upset, and at one point, while crying, told Coronado that “He will hurt me” if the tools were not returned. Because the calls were obscene and threatening, Burdette and Coronado ultimately unplugged their telephone.

On the same night at approximately midnight, Visalia Police Officer Alan Wightman was in his patrol car when he observed a red-and-white Ford Fairmont automobile at a stop sign on Garden Street. The car was facing south, and the driver turned east on Main Street in front of the patrol car. Officer Wightman followed in his vehicle. The car turned south on Bridge Street, west on Mineral King Avenue, and then continued west onto State Highway 198. Officer Wightman conducted a vehicle stop. Letner was driving the car and Tobin was in the front passenger seat.

Letner told the officer that he had borrowed the car from the owner, Ivon Pontbriant, in order to drive Tobin home. Tobin separately told the officer they were going to his home on South Crenshaw Street, where he resided with a woman named Jeanette. Letner did not have a driver’s license, and there was no registration card in the vehicle. Letner said that Pontbriant lived on North Jacob Street, but that he did not know the exact address or her telephone number. Officer Wightman provided a police dispatcher with Pontbriant’s name, but obtained only her post office box and prior address.

At the time the officer approached the vehicle, he noticed a six-pack container with four unopened green bottles located behind the front passenger’s seat. After Tobin got out of the car, Officer Wightman saw an opened bottle half filled with beer under Tobin’s seat. He also conducted a brief search of the trunk of the vehicle for any other open containers of alcoholic beverages. Officer Wightman conducted a patdown of Letner and found a folding pocketknife in Letner’s pants pocket, which the officer temporarily confiscated while questioning defendants.

Because Letner smelled as if he had been consuming an alcoholic beverage, Officer Wightman conducted a series of sobriety tests. Officer Wightman determined that Letner was not under the influence of alcohol to the degree that his driving was illegal, and therefore the officer merely issued a citation for driving without a license. Nonetheless, because Tobin appeared not to be in a condition to drive, Officer Wightman told defendants to lock the vehicle and continue on foot. Defendants walked west along the highway.

Officer Wightman noticed that Pontbriant’s vehicle remained parked alongside the highway when he drove past on his way home Wednesday at 4:00 a.m., and also when he returned to work at 5:30 p.m. that evening. Upon receiving the report of Pontbriant’s murder, Officer Wightman contacted the investigating officers and guided them to her car, which subsequently was impounded and searched.

The items found in the trunk, which included several bags, some clothing, and a sword, appeared to be the same items that were in the trunk the previous night when Officer Wightman conducted a brief search for open containers of alcohol. Tobin’s shotgun, which Officer Wightman did not remember seeing earlier, also was found in the trunk. After the vehicle was impounded, a more thorough search was conducted during which the police also found on the floor of the car a white rag that had blood on it. One Heineken and three Lowenbrau beer bottles, all unopened, were found behind the passenger’s seat.

The opened bottle that had been under the seat was a Heineken bottle as well. At approximately 4:00 a.m. on Wednesday, March 2, 1988, Pamela Loop heard her dogs barking and then noticed two men in her front yard. One of the men said that John Novotny was supposed to give them a ride to work and asked where he resided. Loop told the men that Novotny’s house was behind hers, and they began walking in that direction. Loop telephoned the Novotny residence, and told Denise Novotny, who was awakened by Loop’s telephone call, that two men were on the way to her house.

At the same time, Novotny observed the shadow of a person approaching her front door. She looked out of the window and saw Letner, whom she recognized from picnics hosted by the company that had employed her husband and defendants. After Novotny stepped outside, Letner told her they wanted John to give them a ride to work. Novotny responded that Letner should have known John was out of town on a work assignment. Letner told her they believed John might have returned early. Another man asked Novotny whether she could give them a ride to work, and offered to give her money for the cost of gasoline.

When Novotny refused, the man became more insistent, and said it was an “emergency.” Novotny continued to say she could not drive them. Eventually, Letner looked at the other man, appeared to make a decision, and said, “Okay, that’s fine.” The men then departed. On March 3, 1988, Letner made a collect telephone call from Reno, Nevada, to his grandmother in Council Bluffs, Iowa, and told her he was coming to Iowa to seek employment. Despite her urging to the contrary, on March 6 Letner and Tobin arrived in Council Bluffs.

They told her they had hitchhiked from Reno, and had been robbed of all their belongings on the way. Letner’s grandfather gave them some clothes, drove them to the Iowana Motel, and paid for one week’s rental of a room on their behalf. Earl Bothwell, who then was staying at the Iowana, met defendants there. Bothwell, who owned a contracting business, hired Tobin to perform some work for him. At some point, defendants mentioned that they were wanted for murder in California, and asked Bothwell if he could assist them in obtaining false identification.

When Bothwell later asked Letner what had happened, Letner explained that he had stolen $12 or $14 and a red-and-white Ford vehicle from a woman. Letner stated he would have driven the car to Iowa, had the police not stopped him for driving erratically or too slowly. During this conversation, Tobin entered the room, and when Bothwell asked whether he was wanted for murder, Tobin replied, “Yeah, I killed the old bitch” because she was yelling and threatening to call the police. Tobin confirmed they had taken approximately $12 to $13 from her. Bothwell told Tobin he had no work for Tobin that day.

During the early morning hours of the following day, the police responded to a report of a disturbance at the Iowana Motel involving defendants and Bothwell. Discovering defendants’ outstanding murder warrants, the police arrested them. At the time of his arrest, Letner had in his pocket a “buck” knife that appeared to be the same as the one seen by Officer Wightman on the night of the murder. Jeanette Mayberry testified that Letner regularly carried that knife with him. Investigators from Tulare County arrived in Iowa and returned with Tobin to California.

A private extradition company was hired to escort Letner to California. While in Texas, however, Letner escaped by stealing the van in which he and several other prisoners were being transported. More than one week later, Letner, who was driving a stolen pickup truck, was arrested at a border patrol checkpoint after providing the checkpoint officer with a known alias recorded in information pertaining to wanted persons. The Tulare County investigators then transported Letner back to California.

While in jail awaiting trial, Tobin told another inmate, Gregory Garrard, that of.all the evidence against him, Tobin was most concerned about a bloody rag found in Pontbriant’s car. At trial, Jeanette Mayberry identified, as belonging to defendants, most of the items found in the trunk of Pontbriant’s car. The items included three bags of stolen cosmetics and hair care products, all belonging to Letner. Mayberry also identified as belonging to Letner the blue baseball cap found in the bedroom of Pontbriant’s house. Mayberry testified that Letner usually smoked Camel cigarettes, but that Tobin did not smoke.

At the time of her death, Pontbriant’s blood-alcohol content was 0.29 percent. Based upon the lividity of her body, it was estimated she had been killed late on the evening of Tuesday, March 1. Three of the hairs found on Pontbriant’s chest matched hair samples obtained from Letner. Two of these hairs appeared to have blood on them, and to have been forcibly removed from his head.

Two of the other hairs found on Pontbriant’s chest could have been “fringe hairs,” meaning they would have come from an area near the pubic region of the donor, but these hairs were not sufficiently distinct to confirm their type or source. The other hairs found on or near Pontbriant’s body were not of human origin, or matched Pontbriant’s hair, or could not be identified. Many of the hairs belonging to Pontbriant had been forcibly removed. Six hairs found inside the blue baseball cap recovered from the bedroom also matched Letner’s hair.

The blood on the pillowcase and on the doily recovered from Pontbriant’s bedroom, and the blood on the rag found in her car, was consistent with both Tobin’s and Gilliland’s blood type. The semen stains found on the carpet of the bedroom manifested antigenic activity, and therefore were consistent with Tobin’s having deposited them, because he was a “secretor” of blood antigens in his bodily fluids. It could not be confirmed, however, whether the semen contained the same antigen that Tobin secreted, nor when the semen had been deposited. Letner and Gilliland were not secretors.

The cuts in the coffee table and the photograph could have been made by Letner’s buck knife. In addition, that knife could have inflicted the stab wounds to the side of Pontbriant’s neck, but the probability was that a larger knife had been used to render the fatal cutting wound to the back of her neck. 2. Defense Evidence In their defenses, both defendants attempted primarily to discredit the witnesses who had provided incriminating evidence during the prosecution’s case. Defendants also presented experts whose opinions concerning the forensic evidence conflicted with the opinions of the prosecution’s experts.

In addition, Tobin testified in his own defense, essentially to the effect that he and Letner were both present at Pontbriant’s house on the night of the murder, but he (Tobin) left earlier than Letner, and, when Tobin departed, Pontbriant had not been harmed. a. Evidence Concerning Walter Gilliland Jerry Gilliland, Walter Gilliland’s son from his prior marriage, testified that a few minutes after he and his father stopped at the Jacob Street residence on the way to Modesto, he heard a woman yelling loudly, and what sounded like objects being thrown against the walls.

Jerry Gilliland did not recall taking a dog when he and his father took that trip to Modesto. Danny Mendoza testified Walter Gilliland told him that after the murder, Gilliland found defendants in an alley and fought with them, resulting in injuries to Gilliland’s head and ribs. According to Mendoza, Gilliland had a very bad drinking problem, was drunk most of the time, and consistently lied.

Sandra Saulque, the custodian of records at Coast Savings and Loan, testified that during the period in which the murder occurred, Gilliland’s bank account balances never exceeded $55, and a withdrawal in the amount of $40 on March 1 was the sole withdrawal made close in time to the murder. Visalia Police Detective Richard Logan, the lead detective in this case, testified that Gilliland had provided several statements to the police that were somewhat inconsistent with his testimony at trial.

For example, initially Gilliland did not mention his having given Pontbriant the rent money in defendants’ presence, and in subsequent interviews when he did mention the money, he assertedly provided inconsistent accounts of the amount involved. Gilliland also said that he met Tobin in the garage, rather than in the house, and that Pontbriant normally left the keys to her car on the kitchen counter so that Gilliland could use the car whenever he needed it. Gilliland inconsistently identified the dates on which certain events transpired.

Gilliland also told the police he wanted to kill defendants, and was reluctant to help the police because he wanted to catch defendants and punish them himself. Detective Logan testified in addition that several items of value, including a television and a videocassette recorder, a jar of coins, and just over $18 in cash found in Pontbriant’s purse, remained in her house after the murder. Similarly, a watch, a ring, and a pair of earrings had not been removed from Pontbriant’s body.

Investigator John Johnson of the Tulare County District Attorney’s Office testified Gilliland told him that on Sunday, February 28, Tobin had waited in the garage while Letner brought the Kahlua and cigarettes inside the Jacob Street residence. Gilliland also stated to Johnson that Pontbriant had been asleep when Gilliland stopped by the house on his way to Modesto. b. Evidence Concerning Earl Bothwell Letner’s defense investigator, Cliff Webb, testified that Bothwell informed him investigator Johnson had provided him (Bothwell) with details of the murder prior to interviewing him.

Tobin’s investigator, James Dunham, testified that Bothwell said he intentionally avoided becoming involved after defendants were arrested, because he feared defendants and believed he might be held responsible for not promptly contacting the police regarding defendants’ admissions. Bothwell also had refused to allow Dunham to record the interview. According to Dunham, Bothwell also told him that investigator Johnson had briefed Bothwell thoroughly regarding the facts of the case prior to taking his statement.

Detective Logan testified that on the day after the arrests, Bothwell checked out of the motel where he and defendants had been staying. When Logan arrived in Iowa he observed that the local media in Council Bluffs had provided some coverage of defendants’ arrests. In Tobin’s case in surrebuttal, Mercedes Brasel testified that she wrote a check payable to Bothwell on March 28, 1988, as payment for work she had hired him to do on her house. A copy of the check was admitted into evidence. Part of the work included a painting project, which, according to Brasel, Tobin completed on the day she wrote the check.

Brasel testified that after Bothwell dropped off Tobin at her house, Tobin started the work. Bothwell picked him up that evening when the work was completed. During the prosecution’s case, Bothwell had testified that Letner and Tobin confessed to the murder on March 28, 1988, and that Bothwell had told Tobin that Bothwell did not have any work for him that day—that is, according to Bothwell’s testimony, Tobin would not have painted Brasel’s house on that day. c.

Evidence Concerning Jeanette Mayberry Tobin’s ex-wife, Cheryl Williams, testified that she traveled to Visalia on February 27, 1988, so that their daughter could visit with Tobin. When Jeanette Mayberry confronted Tobin and Williams at the park the following morning, Mayberry was extremely upset and was screaming and using foul language. When Williams, Tobin, their daughter, and Williams’s friend drove away from the park, Mayberry followed them in her car, driving in an unsafe manner, until Tobin got out of the car and walked.

When Williams and Tobin met for the second time at a different park later that day, Mayberry arrived at the park and tried to attack Williams. Visalia Police Officer Jeff McIntosh responded to the report of a disturbance involving Mayberry and Tobin at the Bridge Street apartment on Monday, February 29. He testified that Mayberry did not appear to be injured and, not wishing to file charges against Tobin, she said Tobin merely had slapped her face. d.

Evidence Concerning Flourene Gentry Visalia Police Officer Jay Frame testified that Gentry told him the telephone calls she received from Pontbriant on the night of the murder occurred at times other than the times given in her testimony. She told Frame that to the best of her recollection, the third telephone call, during which Pontbriant mentioned two men were then entering her house, occurred at approximately one o’clock in the morning.

Detective Logan testified, however, that Gentry told him she was certain that the final telephone call was made between 9:00 p.m. and 10:00 p.m., and that Gentry had been very distraught during her earlier interview with Officer Frame. e. Evidence Concerning Gregory Garrard Defense investigator Dunham testified that Garrard told him Tobin denied having participated in Pontbriant’s murder.

In the prosecution’s case-in-chief, Garrard had testified he told a defense investigator that Tobin said he “had nothing to do with it.” Investigator Johnson had testified, however, that when he interviewed Garrard, Garrard did not tell him that Tobin had said he had nothing to do with the murder. f. Forensic Evidence Gary Cortner, a criminalist at the California Attorney General’s office, was called as a witness for Letner, and testified that most of Pontbriant’s sweater, “if not all,” had been ripped, not cut with a knife.

He could not determine whether the area near the neck had been cut or ripped; a hole in that area could have been made by a thumb or other object having poked through the fabric. Cortner also testified that he generally was unable to distinguish between the hair samples collected from Letner and Tobin because each defendant had a “tremendous range” of hair types on his head. That circumstance also accounted for his inability to match any of the hairs found at the scene to defendants.

Cortner agreed, however, that a person with more experience and a more powerful microscope than the one he had used might reach a different conclusion. Letner also called as a witness Gary Sims, a criminalist hired by the defense, who testified he was present when Letner’s buck knife was disassembled and examined. Tests for the presence of blood on the knife parts and debris found in the knife were negative.

In addition, Letner re-called Michael Malone, the prosecution’s hair analysis expert, who testified that one of the hairs identified as belonging to Pontbriant had been broken in the laboratory while being mounted on a slide. Malone previously had testified that a break in a hair indicates that the hair has been removed by force from a person’s body. g.

Testimony Regarding Defendants’ Plans to Leave California Burt Arnold, who for a period of time shared the apartment on Murray Street with defendants, testified that three weeks prior to the murder, defendants spoke of moving to the Midwest, where Letner had family. Jacklynn Tobin, Tobin’s mother, also testified that prior to the murder, Tobin said he was thinking of going to Iowa with Letner. Following the murder, Jeanette Mayberry found, in the Murray Street apartment, an unmailed letter written by Letner to his grandparents, asking how they would feel if he moved to Iowa.

Cheryl Williams, however, testified that she had not heard anything concerning Tobin’s plans to leave California. h. Defendant Tobin’s Testimony Tobin testified in his own defense. According to his testimony, on Monday, February 29 (the day after his fight with Jeanette Mayberry, arising from his visits with Cheryl Williams), he and Letner went to the Bridge Street apartment so that Tobin could attempt to reconcile with Mayberry. Finding the apartment unlocked, they went inside, and several minutes later Mayberry returned to the apartment.

During the ensuing argument, Tobin merely slapped Mayberry, which he did because she had kicked him in the groin. Tobin admitted, however, that he broke a window in the apartment by throwing a hammer through it, and broke a window in Mayberry’s car with his shotgun. Tobin testified that Letner had been planning to go to Iowa for some time and, after his fights with Mayberry, Tobin decided to accompany him. Accordingly, the next day, Tuesday, March 1, Tobin returned to the Bridge Street apartment to retrieve his clothing, but Mayberry refused to admit him.

Later that day, Tobin saw Mayberry with another man at the Break Room Bar. The man was wearing Tobin’s shirt, which angered Tobin somewhat. At that point, Tobin assumed that Mayberry had given away all of the belongings he had left at the Bridge Street apartment. Tobin testified that at approximately 6:30 p.m. that night, he and Letner were at the Break Room when Letner received a telephone call. Letner said that Pontbriant had called and invited him over to her house. They left the bar and proceeded to her house, where they drank a number of beers. At some point, Tobin departed in order to purchase more beer.

He rode his bicycle to the Oval Liquor Store—not Frank’s Liquors—and purchased one six-pack each of Lowenbrau and Heineken beer. He did not purchase any wine or a bottle opener that night. Tobin testified that Pontbriant was upset because Gilliland had left, taking with him their dog and all of their money. Later, she and Letner made a number of angry telephone calls to someone named “Ed.” According to Tobin’s testimony, when the stock of beer again was depleted, he returned to the Oval Liquor Store and purchased another six-pack each of Lowenbrau and Heineken beer.

When he returned to the house, Pontbriant and Letner were on the couch with their arms around each other. When they began to kiss, Tobin left and rode his bicycle to the Murray Street apartment, purchasing a quart of beer on the way. He fell asleep soon after he arrived at the apartment. Tobin testified that sometime later, Letner woke him up and asked him to help load Letner’s belongings into Pontbriant’s car. Letner said he was taking the items to Pontbriant’s house to store them there while Letner and Tobin were in Iowa.

According to Tobin, earlier that night Letner had asked Pontbriant whether he could borrow her car to bring over his belongings. In addition to the items that were Letner’s, Tobin put his sword and his shotgun in the car because he planned to try to sell them to Mike Kinnett, who Tobin believed still was living at the house on South Crenshaw Street. En route after leaving the apartment, however, Officer Wightman pulled them over. After the officer directed them to leave the car on the side of the highway, defendants walked to the bar at the Marco Polo Hotel, where they consumed more beer.

Tobin testified he suggested that Letner telephone Pontbriant to advise her where the car was parked. Letner went to a telephone and appeared to place a call, but on returning Letner said no one had answered the telephone at Pontbriant’s residence. After leaving the bar, defendants walked to the house on South Crenshaw Street. Finding it unoccupied, they forced open the back door and spent the night there, sleeping on the floor. Tobin testified that the next morning, they went to Denise Novotny’s house and asked her for a ride to the bus station in Goshen, not for a ride to work.

After Novotny declined, they hitchhiked to the bus station. Tobin purchased bus tickets to Sacramento, and then tickets from Sacramento to Reno, using severance pay from his last job. Tobin testified that he never told Earl Bothwell he had killed anyone in California. During the altercation at the Iowana Motel, Tobin took Bothwell’s shotgun from him, angering and embarrassing Bothwell. Tobin denied ever having been in the residence on North Jacob Street prior to the night Pontbriant was killed, and asserted he never saw Gilliland give Pontbriant any money.

Tobin testified he had nothing to do with Pontbriant’s murder, and did not plan to take anything from her when he visited her house. 3. Prosecution Rebuttal Evidence Terry Wood testified that in 1988, when he was incarcerated with Tobin at the Tulare County jail, Tobin told him that he (Tobin) and Letner had been at Pontbriant’s house on the night of the murder. In contrast to Tobin’s trial testimony that he had left Pontbriant’s house on his own and Letner later arrived at their apartment with her car, Tobin told Wood he had borrowed Pontbriant’s vehicle to move some items.

Tobin did not say he had departed from Pontbriant’s house prior to borrowing the car. Investigator Johnson denied giving Bothwell any details concerning the Pontbriant murder before interviewing him. Johnson also testified that Wood informed him that Tobin told Wood he had borrowed Pontbriant’s car at her residence. Jeanette Mayberry testified she had spoken with Tobin when he was in jail following his arrest. Tobin told Mayberry that on the night of the murder, he left the house twice to buy beer, purchasing one six-pack of Heineken on the first trip, and one six-pack of Lowenbrau on the second trip.

Tobin told her he later returned to the Murray Street apartment. Letner woke him up two or three hours later, telling him Pontbriant had loaned them the car to travel to Iowa. Tobin had advised Letner he wanted to sell Tobin’s shotgun before departing for Iowa. In his defense case, during direct examination, Tobin had testified that he did not make the foregoing statement to Terry Wood, and that Mayberry’s statement was inaccurate, probably “because [she] heard it wrong.” B. Penalty Phase 1.

Prosecution Evidence The prosecution’s evidence in aggravation consisted of numerous instances of defendants’ unadjudicated violent criminal conduct, admitted pursuant to

section 190.3, factor (b). Evidence concerning two victims was admitted against both defendants; evidence concerning one other victim was admitted solely against Tobin, and evidence concerning five other victims was admitted solely against Letner. a. Incidents Involving Both Defendants David Bendowski testified that he knew defendants when he lived in Napa in 1978 and 1979. Bendowski dated Tobin’s ex-girlfriend for a period of time. Bendowski and his sister, Julie Bryant, testified that approximately in June of 1978, defendants appeared at Bendowski’s residence and entered by force.

They confronted Bendowski in the hallway, and Tobin kicked Bendowski in the face, bloodying his nose. Tobin told Bendowski he was angry that Bendowski had been dating Tobin’s ex-girlfriend. Several months later, defendants, accompanied by Letner’s brother John, returned to Bendowski’s residence. John Letner asked Bendowski to come outside to talk, and promised there would be no trouble. When Bendowski went outside, however, defendants threatened to beat him up if he did not get into their car. Bendowski entered the vehicle, and Letner drove them out of town.

Defendants demanded that Bendowski pay them for his dates with Tobin’s ex-girlfriend. Tobin told Bendowski that “[i]f she was gonna act like a whore, [Tobin] was gonna treat [her] like one.” Defendants told him they were taking him out of town so that they could hang him from a tree and beat him. Bendowski attempted to escape when the car stopped at a traffic light, but one of the defendants slammed the car door closed before he succeeded. Defendants eventually took Bendowski 10 to 15 miles out of town and left him on the side of the road. On January 20, 1979, defendants again appeared at Bendowski’s residence.

When Julie, who then was 14 years of age, told them that Bendowski was not there, Tobin threatened to “work [her] over” if she did not check to make sure he was not in the house. She did so, and told them again that Bendowski was not at home. Defendants told her to tell Bendowski they were looking for him. Later that day, Bendowski was walking home when he saw defendants driving in a car. He tried to run away, but defendants followed him in their vehicle. Eventually, Bendowski decided to talk to defendants in an attempt to avoid being assaulted.

After he entered their car, defendants again demanded that Bendowski pay them for his dates with Tobin’s ex-girlfriend, and on this occasion threatened to break his fingers if he did not pay them. Defendants eventually dropped off Bendowski near his home. On November 29, 1986, William Healer was at a gas station in Napa, getting fuel for the pickup truck he was driving, when he was approached by defendants. Healer, who ran an auto body repair shop, had performed some repair work on a vehicle owned by Tobin’s mother.

Healer had not completed the work when he moved his repair shop, and defendants, apparently believing that Healer purposefully had attempted to avoid completing the work even though he already had been paid by Tobin’s mother, were “going to take care of this in their . . . own way.” Defendants ordered Healer to drive them in his truck to the store where Tobin’s mother worked. On the way, defendants picked up their friend Dan Hlobick, who needed a ride in order to purchase drugs. When they arrived at the store, Tobin took the keys to the truck and ordered Healer to go with him inside.

Learning that Tobin’s mother was not there, defendants ordered Healer to drive to another store where she worked. During the drive, Letner threatened Healer, and said he should not have “burned” Tobin’s mother. When they arrived at the store, Tobin entered to locate his mother, and while in the truck Letner continued to threaten Healer. When Tobin returned, Letner opened the truck door next to Healer and struck him in the face. After Healer begged defendants not to hurt him, defendants asked him whether he or his family had any money.

When Tobin’s mother arrived, Healer, who was crying, apologized to her for any misunderstanding concerning her car. Mrs. Tobin said there was no misunderstanding and asked him why he was so upset. When Healer explained what had happened, Mrs. Tobin offered to drive him home in her car, but Healer declined because he was afraid defendants might steal valuable tools in the truck. Tobin intervened, denying that anyone had struck Healer, and stating they would let him leave. After Mrs.

Tobin left and the men drove away, however, Letner again told Healer to give them money in order not to be hurt further, and he demanded Healer’s wallet. When Healer said he did not have it with him, Tobin accused him of lying and ordered him to pull over and get out of the truck. Outside the truck, Letner kicked Healer in the chest and continued to demand the wallet. When Healer said he would give him money at his house, they all reentered the truck. As Healer was driving, Letner said he needed to stop and pick up a gun because he was afraid Healer might do something when they reached his house.

Letner ordered Healer to drive to the address where the gun was located. During the drive, Tobin grabbed the back of Healer’s head and Letner began hitting him in the face. Tobin grabbed Healer’s neck and choked him. When they arrived at the address, defendants again struck Healer several times and discussed who would go inside to retrieve the gun. At this point Healer noticed his door was unlocked, exited the truck, and ran to a nearby car. Pounding on the hood of the car, he pleaded with the driver to let him in, saying, “Help me. Help me. They’re going to kill me.” The driver let him in and drove away.

One of the defendants chased after the car on foot before the driver accelerated. Moments later, Healer realized that a house they were passing was occupied by persons he knew. The driver stopped the car and Healer ran to the house, whose occupants let him in and called the police. Healer was treated at the hospital for injuries to his throat and chest. His ribs were permanently “disfigured,” and he had ongoing emotional problems arising from the incident. b.

Incident Involving Tobin Sometime in May 1981, Kenny Warren and a group of friends went to Letner’s house to confront defendants concerning an altercation that had occurred earlier in the day. Warren’s group had an ongoing dispute with defendants and previously had been involved in several fights with them. After a member of Warren’s group knocked on and kicked Letner’s door, someone inside the house fired a shotgun through the door. As he ran away, Warren heard one or two additional shots. Approximately two weeks later, Warren was approached by Tobin and Robert Nance in an auto parts store.

Tobin told Warren to come outside and attempted to punch him. Warren told Tobin they could talk inside because he was afraid he would be “jumped” if he went outside. After Tobin assured him nothing would happen if they went outside, Warren agreed. Once outside the store, Nance kicked Warren in the face. Tobin said Warren should fight Nance “one on one,” but when Warren turned to confront Nance, Tobin kicked him in the back, saying, “It’s two on one now, fucker.” When Warren attempted to run away, Nance tackled him.

Tobin and Nance kicked Warren repeatedly in the head and chest, and Tobin pulled handfuls of hair from the back of Warren’s head. Nance took Warren’s wallet, which contained $85 in cash. After allowing Warren to get up, Nance held out the wallet and dared Warren to take it. Warren snatched the wallet from Nance and tried to run away, but Nance again tackled him. Tobin and Nance resumed kicking him and again took his wallet, and Tobin began dragging him toward a nearby car.

Richard Baker, an employee of the auto parts store, saw Tobin kicking Warren in the head and face, and heard him threaten to kill Warren if anyone ever shot at his house again. When Tobin stopped dragging Warren and returned to the car in which Nance was waiting, Tobin told Baker that Warren “got what he deserved” because he had shot at Tobin’s house. Warren sustained a broken nose and several contusions and other injuries in the attack, and lost his wallet and money. c.

Incidents Involving Letner In June 1978, Stephan Frame, who attended high school in Napa, received a telephone call from Letner, who said he was “after [Frame’s] ass.” The following Monday, in the school’s parking lot, Letner approached him and inquired whether he was Steve Frame. When Frame responded affirmatively, Letner punched him in the face, rendering Frame momentarily unconscious. When Frame regained consciousness, Letner was kicking him in the face with his work boot. Letner ceased after Frame repeatedly asked him to stop.

As a result of the attack, Frame was hospitalized for a concussion, a broken nose, and a broken cheekbone. On July 21, 1983, at approximately 11:45 p.m., Andrew Emberton, an off-duty police officer, was driving on University Avenue in Berkeley when he noticed a person standing in the road who appeared to be hitchhiking. Emberton had to stop his vehicle because the person was blocking the lane. Emberton motioned for the person—who turned out to be Letner—to move out of the street. When Letner approached the car and became confrontational, Emberton decided to drive away.

As he did so, Letner hit the side of his car. When Emberton stopped again, Letner, assuming a karate stance, challenged Emberton to fight him. Emberton said he did not want to fight, but merely wanted Letner to move onto the sidewalk. Letner continued to challenge Emberton, twice pushing him in the chest. An on-duty police officer then arrived, and Letner was arrested. During the arrest, Letner resisted to the extent that both Emberton and the other officer had to struggle with him in order to apply handcuffs.

On the afternoon of January 14, 1985, Alexander McAdams visited his girlfriend Susan Forsythe at a restaurant in Benicia. McAdams and Letner had a history of physical confrontations. Moments after leaving the restaurant in his pickup truck, McAdams saw Letner driving his pickup truck on the wrong side of the road straight toward McAdams’s truck. McAdams attempted to avoid Letner, but Letner changed lanes and continued to drive directly at McAdams. Eventually, McAdams drove his truck in reverse to avoid Letner, but Letner hit McAdams’s truck, bumper to bumper.

When Letner exited his truck carrying a rifle, McAdams drove across an open field, hearing several shots as he drove away. McAdams went to a police station to report the incident. Evidently possessing information concerning Letner’s whereabouts, police officers went to Anthony Hockney’s apartment. When the officers first arrived, Letner’s truck was not there, but when they returned approximately one hour later, it was parked in front of the apartment.

A woman who answered the door told the officers she was alone, but when they heard noises in the back of the apartment they entered and found Hockney sitting on the bed next to a .44-caliber Ruger rifle. Hockney said the rifle belonged to Letner, who had been in the apartment when the police arrived, but departed as they entered. The officers went outside but did not find Letner. Approximately 15 minutes later, however, Letner returned to his truck and drove away without activating his headlights, although it was now dark. A police officer followed, arresting him a short distance away.

Letner was verbally confrontational with the officers, and after his arrest said, “You think you got me because you’ve got my gun. But my gun’s clean.” The officers had not mentioned anything concerning a gun prior to Letner’s comment. Letner also told the officers that “I’ll be out of this soon, and then I’ll get Alexander McAdams.” At the police station, Letner admitted having a dispute with McAdams over a girl, and driving head on into McAdams’s truck. Although Letner denied using, possessing, or owning the rifle, officers found a receipt for purchase of the rifle in Letner’s pocket.

Sheila W. met and became romantically involved with Letner in July of 1987. On December 27, 1987, when they had an argument, Letner hit her in the back of her head and on her neck and back, and choked her until she became unconscious. On January 1, 1988, Sheila and Letner had another argument. Letner departed, but on returning he repeatedly made sexual advances to Sheila, which she rejected. Eventually, Letner forced her onto the floor and had nonconsensual sexual intercourse with her. Sheila did not report the incident to the police because she was afraid of Letner.

On April 16, 1988, Mike Mohrhauser was driving his pickup truck from El Paso, Texas, to Las Cruces, New Mexico, when he picked up a hitchhiker, who proved to be Letner. Letner recently had escaped from the custody of an extradition company that was charged with returning him to California. Mohrhauser invited Letner to stay at his house, and the two “partied” the next two nights at the homes of Mohrhauser’s relatives. On the second evening, when returning to Mohrhauser’s house, Letner, who was driving, pulled over so that Mohrhauser, who was intoxicated, could urinate.

When Mohrhauser got out of the truck, Letner struck him on the head with an object, rendering him unconscious. When he awoke, Mohrhauser was lying facedown in a watery irrigation ditch approximately 30 feet from where he was hit by Letner. Mohrhauser’s truck, wallet, and watch had been taken. When Mohrhauser recovered the truck, his tools, worth approximately $3,000, were missing. 2. Defense Evidence a. Letner’s Case in Mitigation Letner’s younger brother John testified that their father was an alcoholic. Because of his alcoholism, their father frequently moved the family while the boys were growing up.

Their parents fought over his drinking, eventually separating when Letner was 19 years of age. Alcoholic beverages always were present in the home, and Letner was drinking consistently by the time he was 15 years of age. Letner also smoked marijuana, but John was not aware of his using other drugs. When Letner was growing up, he constantly was teased by other children concerning his appearance. At one point, his parents considered having him undergo cosmetic surgery to improve the appearance of his face, but ultimately his father decided not to proceed.

John believed that Letner acted suicidal on several occasions. John testified that Letner assaulted Stephan Frame because Frame and two other boys previously had confronted John in school and threatened to beat him up. John did not inform Letner of the incident, because he knew their father would expect Letner to do something to protect John, and would beat Letner if he did nothing. Letner found out, however, and John overheard a telephone call during which Letner told Frame to leave John alone.

According to John’s testimony, Frame told Letner that if Letner confronted him, Frame would shoot Letner once he had the chance. John testified that he was present during the first incident when David Bendowski was with defendants in their car. John testified that no one forced Bendowski into the vehicle—he willingly joined them in order to drink beer and smoke marijuana. Tobin and Letner did not discuss money other than to remind Bendowski that he owed them money for marijuana. According to John, no one threatened or abandoned Bendowski; he simply chose not to ride back to town with them.

John also testified that Letner and Tobin met in 1977 and became close friends. After they began to engage in frequent fights and other types of trouble, John told Letner he should stay away from Tobin. Eventually, John told Letner that he no longer wanted to be around Letner unless Letner ended his friendship with Tobin. Other witnesses testified on Letner’s behalf along similar lines concerning the relationship between Letner and Tobin. Earl Bothwell’s preliminary hearing testimony, which was read to the jury, was to the effect that Letner bought various things for Tobin and appeared to idolize him.

Sheila W. also testified that Letner idolized Tobin. Burt Arnold testified that defendants sometimes had physical confrontations with each other, and it was Letner who usually would back down. In addition, the jury heard Bothwell’s preliminary hearing testimony indicating that during the fight in the motel room prior to defendants’ being arrested, Tobin had threatened to shoot Bothwell with his shotgun, but Letner removed the ammunition from the gun. Bothwell believed that had Letner not done so, Tobin might have shot him.

John Letner testified that defendant Letner telephoned him in late 1987 and said he wanted to leave Visalia because Tobin was “acting crazy” and was scaring him. In April 1988, after Pontbriant’s murder, Letner telephoned John and their mother several times and said he had “done nothing wrong” but doubted he would be acquitted of Pontbriant’s murder. John told Letner not to contact them again unless he was willing to turn himself in to the authorities. Derrin Clenny testified he was hitchhiking with Letner at the time of the incident involving Officer Emberton.

According to Clenny, Emberton was the aggressor—Letner did not hit Emberton’s car and merely was acting defensively throughout the confrontation. Clenny stated that Letner did not resist the officers at the time of his arrest. Letner testified on his own behalf. Regarding the incident with Stephan Frame, Letner testified he assaulted Frame because Letner’s father had told him that he either must confront Frame to protect John, or find a new place to reside. Letner testified he was not present when Tobin entered David Bendowski’s house and kicked him in the face.

According to Letner, he and Tobin never forced Bendowski to enter their vehicle, and never threatened him or demanded money because Bendowski had dated Tobin’s ex-girlfriend. Moreover, Letner testified, they did not abandon him outside of town; Bendowski had said he wanted to walk back. Similarly, Letner testified that he merely slapped William Healer once while they were driving him to meet Tobin’s mother, and Letner may have hit him on one other occasion because he did not like Healer. Letner asserted he did not attempt to obtain money from Healer by threatening to harm him.

Letner testified that Officer Emberton nearly hit Derrin Clenny when Emberton pulled his car over to the side of the road. Letner claimed that when Emberton left his vehicle, he was very aggressive and grabbed Clenny’s arm. When Letner slapped Emberton’s arm away, Emberton swung at him. Letner hit him back, knocking Emberton to the ground. Then two police cars arrived, and Letner was arrested. According to Letner, on the day of the incident involving Alexander McAdams, Letner drove Susan Forsythe to work at a restaurant. On the way, he saw McAdams drive through a red traffic signal.

To avoid a collision, Letner was forced to accelerate, despite the red signal. Later, when he saw McAdams, Letner drove toward him in order to scare him. Letner asserted he did not have a rifle with him and did not shoot at McAdams. Letner explained he had left his rifle with a neighbor of Anthony Hockney named Rodney, and since had learned that the rifle was in Hockney’s apartment. Letner did not know why the police were searching for him at the time he left Hockney’s apartment. Letner testified that on the night of December 27, 1987, he became intoxicated and lost consciousness.

At some point while he slept, Sheila W. poked Letner in the eye. Letner was startled and reacted by punching her, not realizing exactly what he was doing. Letner admitted having sexual intercourse with Sheila on January 1, 1988, but believed it was consensual. Letner testified concerning the incident with Mike Mohrhauser. Mohrhauser, who had consumed heroin that night, had been beaten up by Mohrhauser’s brother and was unable to drive. When Letner drove Mohrhauser home, he punched Letner for not having helped Mohrhauser during the fight with his brother.

According to Letner, when Mohrhauser told Letner to leave the truck, Letner stopped and instead pulled Mohrhauser out of the truck and drove away. Letner did not hit Mohrhauser or remove Mohrhauser’s wallet or watch from his person; those items already were in the truck when he left Mohrhauser on the side of the road. Letner also testified that Tobin alone killed Pontbriant. Letner and Tobin went to Pontbriant’s house on the night of the murder to drink beer with her, and he and Pontbriant made several telephone calls to Ed Burdette.

After Tobin left to buy more beer, Letner and Pontbriant sat on the couch and hugged and kissed each other. Letner and Pontbriant had had sexual intercourse on three occasions prior to the night of the murder, but that night Letner merely acted to console Pontbriant. Letner testified that he, not Tobin, went to the liquor store on the second occasion to buy more beer. When Letner returned, Pontbriant asked him to tell Tobin to go outside and remain there for approximately one hour. Tobin took several beers and went outside to the front yard.

Letner and Pontbriant disrobed and were “intimate” on the couch, but did not have sexual intercourse. After approximately 35 minutes, while Letner and Pontbriant were dressing, Tobin reentered. Pontbriant became angry because Tobin had not been invited to come back inside the house. Tobin told her that he knew what she and Letner were doing, and then asked Letner whether he already had asked to borrow Pontbriant’s car. Pontbriant became angrier and slapped Letner, who reflexively slapped her back, knocking her onto the couch.

When Letner went to use the bathroom, he heard Pontbriant threatening to call the police. After Letner returned to the living room, he observed Tobin kicking Pontbriant’s arm as she sat on the couch. Letner attempted to pull Pontbriant to safety by grabbing her hair. According to Letner, Tobin tried to remove Pontbriant’s sweater. Tobin somehow had obtained Letner’s buck knife, which may have fallen out of Letner’s pants pocket when he sat on the couch. Tobin cut the collar of the sweater and ripped off the remainder of the garment. Tobin removed Pontbriant’s pants and observed that she had defecated.

Pontbriant laughed at Tobin, who then pulled out some of Pontbriant’s hair and forced her down upon the floor. He then removed a telephone cord from his pocket and tied it around her wrists and neck. Tobin had his foot on Pontbriant and was strangling her with the cord when Letner intervened by wrestling with Tobin. Tobin bit Letner on the top of his head, and Letner hit his head against Tobin’s nose, causing it to bleed. Letner noticed that his buck knife was stuck in the table and retrieved it. Tobin went into the kitchen, returned with a butcher’s knife, and threatened to kill Letner if he interfered again.

Letner then watched Tobin repeatedly stab the back of Pontbriant’s neck. After Pontbriant was dead, Tobin forced Letner to help clean up the house and remove their fingerprints. At some point, Tobin put the beer bottle in Pontbriant’s buttocks and kicked the bottle. Tobin retrieved the car keys from Pontbriant’s purse and said, “Well, we don’t have to steal the car now.” The two men, departing with the remaining beer and the murder weapon, proceeded to the Murray Street apartment.

After they disposed of the knife and loaded their belongings into Pontbriant’s car, they drove off but soon afterward were stopped by Officer Wightman. The final witness on Letner’s behalf was Dr. Richard Blak, a psychologist. Dr. Blak interviewed Letner and several members of his family, and performed a number of psychological examinations. In Dr. Blak’s opinion, Letner, who was average to above average in intelligence, suffered from chronic depression, alcohol dependence, and polysubstance dependence, resulting from a “borderline personality disorder” (BPD) that Letner had developed at a very early age. Dr.

Blak testified that symptoms of BPD include unstable interpersonal relationships, self-damaging impulsiveness, mood swings, aggressive behavior with an absence of anger control, suicidal or self-mutilating behavior, an unstable self-image, chronic feelings of emptiness and boredom, and extreme fear of abandonment. In Dr. Blak’s experience, a person with BPD also may have a distorted sense of reality and may act upon imagined threats with an inappropriate sense of right and wrong. In Dr. Blak’s opinion, Letner exhibited all of these symptoms. Dr.

Blak observed that Letner had suffered a head injury in a car accident when he was seven years of age, but Blak was unable to form an opinion concerning any resulting effect upon Letner’s brain functioning, because no records existed of any testing performed following the accident. In response to a hypothetical question describing a murder similar to that recounted in Letner’s testimony, Dr. Blak testified that a person’s failure to intervene during such an event would be consistent with such a person’s having BPD. b.

Tobin’s Case in Mitigation Dan Hlobick testified that he accompanied Letner, Tobin, and William Healer on their excursion to discuss with Tobin’s mother the repair work Healer had performed on her car. According to Hlobick, Letner slapped Healer a “few times” on the way to meet Tobin’s mother. Tobin did not hit or choke Healer. After they left Tobin’s mother, Healer simply stopped the truck and ran away for no apparent reason. Letner and Tobin did not threaten Healer or attempt to obtain money from him. Tobin’s mother also testified that Healer did not appear to be upset when they met that day.

She testified that Healer told her during a subsequent telephone call that the reason he had told the police Tobin had assaulted him was to teach Tobin a lesson, but that Healer would be dropping the charges. Raymond Dudley, Tobin’s brother-in-law, testified that he overheard a similar conversation between Healer and Tobin’s sister, in which Healer again said he had complained to the police in order to teach Tobin a lesson, but would be dropping the charges because Tobin had not done anything improper. According to Dudley, Healer said Letner had hit Healer, but Tobin had told him to stop.

John Dean testified he was driving the car when Letner and Tobin picked up David Bendowski. According to Dean, no one struck, threatened, or demanded money from Bendowski. Robert Hernandez, an inmate at the Tulare County jail, testified that Letner told him that he and a person named Christopher went to Pontbriant’s house to steal $300 in cash and other items. Letner said he had killed Pontbriant to keep her quiet, and he demonstrated to Hernandez how he had used the knife on her neck.

Leo Pike, another inmate at the jail, testified that, contrary to Letner’s testimony, Letner and Hernandez occasionally spoke with each other. Tobin’s father, mother, and sister each testified that they loved him and hoped the jury would reach a verdict of life imprisonment without the possibility of parole. II. Discussion A. Pretrial Issues 1. Failure to Set Aside the Burglary Charges and Special Circumstance Allegations (Letner, Tobin) Following the filing of the complaints and amended complaints, a preliminary hearing was held.

At the conclusion of the hearing, the magistrate declined to hold defendants to answer on the burglary charges and the burglary special circumstance allegations, finding the evidence did not establish that defendants intended to commit a felony when they entered Pontbriant’s house. The magistrate held defendants to answer on the remaining charges of murder, robbery, attempted rape, and theft of a vehicle, and the remaining special circumstance allegations.

The information subsequently filed in the superior court, however, included the burglary charges and burglary special circumstance allegations, despite the earlier ruling. Defendants each filed a motion under

section 995, seeking to set aside the burglary charges and special circumstance allegations in the information on the ground the magistrate’s determination was a factual finding that precluded the refiling of the burglary charges. The trial court denied their motions, finding “there was sufficient evidence to hold the defendants to answer on all charges, and on all special allegations.” Tobin challenged the trial court’s denial of his motion by seeking a writ of prohibition from the Court of Appeal, but that court denied the petition. Letner did not file such a petition.

On appeal, defendants contend the magistrate’s ruling precluded the prosecution from refiling the burglary charges. We do not reach the merits of the question whether the trial court erred by denying the

section 995 motions, because defendants cannot establish that any error in this regard was prejudicial. In People v. Pompa-Ortiz (1980) 27 Cal.3d 519 [165 Cal.Rptr. 851, 612 P.2d 941] (Pompa-Ortiz), we reconsidered the rule announced in People v.

Elliot (1960) 54 Cal.2d 498 [6 Cal.Rptr. 753, 354 P.2d 225], which we described as “advancing] the broad proposition that if the defendant has not been ‘legally committed’ and the trial court nonetheless erroneously denies the motion to set aside the information and permits the action to proceed to judgment, the resulting conviction must be reversed.” (Pompa-Ortiz, supra, 27 Cal.3d at p. 527.) We observed that the Elliot rule was based upon the notion that the absence of a legally proper commitment deprived the trial court of “jurisdiction” over the defendant, and therefore reversal on appeal was warranted even in the absence of a showing of prejudice at trial.

We further explained, however, that the “source of the difficulty in Elliot is the uncritical use of the term ‘jurisdiction’ when assessing the effect of an illegal commitment on the trial in superior court.” (Pompa-Ortiz, at p. 528.) We therefore discarded the Elliot rule, and held the following: “Henceforth irregularities in the prehminary examination procedures which are not jurisdictional in the fundamental sense shall be reviewed under the appropriate standard of prejudicial error and shall require reversal only if defendant can show that he was deprived of a fair trial or otherwise suffered prejudice as a result of the error at the preliminary examination.

The right to relief without any showing of prejudice will be limited to pretrial challenges of irregularities.” (Pompa-Ortiz, at p. 529, italics added; see also People v. Stewart (2004) 33 Cal.4th 425, 461-462 [15 Cal.Rptr.3d 656, 93 P.3d 271].) We acknowledge that our statement of the rule in Pompa-Ortiz reflects the circumstance that we were addressing an alleged irregularity that occurred during the prehminary hearing itself, whereas in the present case we are concerned with an alleged error that occurred in the trial court subsequent to the prehminary hearing.

We conclude the rule nonetheless should apply in these circumstances as well. The error complained of in the present case— that the trial should not have proceeded on charges the magistrate ruled were unfounded—is not “jurisdictional in the fundamental sense,” as we have defined that term.

As we recently explained, “[a] lack of jurisdiction in its fundamental or strict sense results in ‘ “an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.” [Citation.] On the other hand, a court may have jurisdiction in the strict sense but nevertheless lack “ ‘jurisdiction’ (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites.” [Citation.] When á court fails to conduct itself in the manner prescribed, it is said to have acted in excess of jurisdiction.’ [Citations.]” (People v.

Lara (2010) 48 Cal.4th 216, 224-225 [106 Cal.Rptr.3d 208, 226 P.3d 322].) “ ‘[Fundamental jurisdiction cannot be conferred by waiver, estoppel, or consent . . .’ [whereas] ‘an act in excess of jurisdiction is valid until set aside, and parties may be precluded from setting it aside by such things as waiver, estoppel, or the passage of time.’ ” (Id. at p. 225.) Defendants’ claims, which they were required to raise at trial by way of their

section 995 motions in order to preserve them (see § 996), cannot be considered as raising a challenge to the trial court’s fundamental jurisdiction over the case. (Cf. People v. Lewis and Oliver (2006) 39 Cal.4th 970, 990-991 [47 Cal.Rptr.3d 467, 140 P.3d 775] [“Errors in the denial of a

section 995 motion claiming insufficiency of the evidence are not jurisdictional in the fundamental sense.”]; People v. Mattson (1990) 50 Cal.3d 826, 873 [268 Cal.Rptr. 802, 789 P.2d 983].) Indeed, we observe that a magistrate’s ruling pursuant to

section 871 that certain charges have not been sustained, even if that decision is properly supported by the facts and the law, does not absolutely deprive the prosecution of the opportunity to bring the charges at issue. As long as the restrictions of

section 1387 on the number of times charges may be dismissed and refiled are satisfied, the prosecution may move to dismiss the case and either file a new complaint that includes all the charges, which would lead to a second preliminary hearing, or seek an indictment by the grand jury. (See, e.g., Burris v. Superior Court (2005) 34 Cal.4th 1012, 1019 [22 Cal.Rptr.3d 876, 103 P.3d 276]; Ramos v. Superior Court (1982) 32 Cal.3d 26, 29 [184 Cal.Rptr. 622, 648 P.2d 589].) Accordingly, pursuant to the rule we set forth in Pompa-Ortiz, on appeal defendants are required to establish not only that the denial of their

section 995 motions was erroneous, but also that they were prejudiced by such error. Letner and Tobin cannot do so, because the jury convicted them of the burglary charges and found the burglary special circumstance allegations true after a trial in which, as discussed, post, in part H.B.2.C., the prosecution presented sufficient evidence as to those matters. (See People v.

Crittenden (1994) 9 Cal.4th 83, 137 [36 Cal.Rptr.2d 474, 885 P.2d 887] [“Even ‘ “ ‘[i]f there is insufficient evidence to support the commitment, the defendant cannot be said to be prejudiced where sufficient evidence has been introduced at. . . trial’ ” ’ to support the jury’s finding as to the charge or as to the truth of the allegation.”].) We therefore conclude defendants’ claims are without merit. 2. Failure of the Information to Charge First Degree Felony Murder (Letner, Tobin) Defendants were charged with murdering Pontbriant willfully and unlawfully and with malice aforethought, in violation of

section 187. Defendants were not charged specifically with first degree murder in violation of

section 189, that is, murder committed in the course of committing an enumerated felony. Defendants raise on appeal a number of familiar claims related to the failure separately to charge felony murder pursuant to

section 189, in addition to charging murder with malice, pursuant to

section 187. We previously have rejected claims identical to defendants’ claims, and discern no reason to reconsider those decisions. (See People v. Morgan (2007) 42 Cal.4th 593, 616-617 [67 Cal.Rptr.3d 753, 170 P.3d 129] [holding “a defendant may be convicted of first degree murder even though the indictment or information charged only murder with malice in violation of

section 187,” in rejecting claims that the trial court lacked jurisdiction, that the court improperly instructed the jury regarding theories of first degree murder, and that defendant received inadequate notice of the prosecution’s theory of the case]; People v. Hughes (2002) 27 Cal.4th 287, 369-370 [116 Cal.Rptr.2d 401, 39 P.3d 432] (Hughes) [rejecting the claim that People v. Dillon (1983) 34 Cal.3d 441 [194 Cal.Rptr. 390, 668 P.2d 697] implicitly overruled People v. Witt (1915) 170 Cal. 104 [148 P. 928], which held that murder with malice and felony murder are not separate crimes].) 3.

Denial of Motions to Suppress Evidence (Letner, Tobin) Prior to trial, defendants moved to suppress all evidence obtained as the result of the vehicle stop conducted by Officer Wightman on the night of the murder, when defendants were driving in Pontbriant’s vehicle. Defendants asserted that Officer Wightman lacked a reasonable suspicion of criminal activity, and therefore his seizure of defendants was unreasonable under the Fourth Amendment of the United States Constitution. The trial court denied the motions, finding that Officer Wightman’s observations gave rise to a reasonable suspicion of criminal activity.

On appeal, defendants contend that the trial court erred in finding the traffic stop was supported by reasonable suspicion, and that the court’s failure to suppress evidence obtained as a result of the stop violated their rights under the Fourth Amendment. We are not persuaded. a. Background The evidence considered in ruling upon the motions to suppress was as follows. Officer Wightman was patrolling the downtown area of Visalia on the night of Tuesday, March 1, 1988, in a marked police vehicle.

At approximately midnight, Officer Wightman was traveling westbound on Main Street, approaching its intersection with Garden Street. As Officer Wightman drove to the comer of Main Street, he saw a red Ford Fairmont traveling southbound on Garden Street also approaching the intersection. Officer Wightman’s attention was drawn to the Fairmont because its exterior was beaded with water.

Although it had rained heavily earlier that night, the rain stopped at approximately 9:30 p.m., and other vehicles traveling on the roads were not beaded with water, whereas the exteriors of cars parked nearby in a car lot and on the street were still wet. Officer Wightman testified he became “somewhat suspicious” because the beaded water on the Fairmont indicated to him that it had been driven only a short distance from where it had been parked when it had been raining hours earlier, and he was aware that during the past three months there had been “heavy” criminal activity within that area of downtown.

This area included approximately 10 car dealerships that had filed numerous reports of a “considerable amount of vehicle tamperings and stolens [Vc] and vehicle burglaries in the general car lot areas of downtown.” Indeed, a Ford dealership with several car lots and a body-repair shop in the immediate area had reported “quite a few” incidents, including the theft of a vehicle from one of its lots about one week earlier. The reports of criminal activity in the area were summarized in daily bulletins that Officer Wightman received at work.

Officer Wightman testified that “there was a used Ford car lot at Center, between Garden and Bridge, that we’ve had numerous problems with as far as vehicle tamperings and burglaries,” and his “first thought was this car was being removed from that lot because all the other cars that were traveling on the roadway at the time were free of moisture.” After the Fairmont turned in front of Officer Wightman into the eastbound lane of Main Street, he made a U-turn and followed as it proceeded to turn south on Bridge Street and then west on Mineral King Avenue, before entering the on-ramp to westbound State Highway 198.

The Fairmont traveled “consistent with” the speed limit and made appropriate stops at the stop signs and traffic signals on the city streets. Despite the circumstance that the on-ramp was, as Officer Wightman testified, “quite long enough to build proper speed to enter the freeway, [so as not to] make a danger to oncoming traffic that is going faster,” upon entering the highway the Fairmont proceeded at 40 miles per hour, well below the posted speed limit of 55 miles per hour.

Although Officer Wightman also noticed that the Fairmont’s engine sounded as though it was “running rough,” he testified he did not believe that the sound of the engine indicated mechanical problems accounting for the vehicle’s slow speed on the highway.

Officer Wightman testified the “main reason” he was becoming more suspicious about the occupants of the vehicle was that “they turned onto [Highway] 198 and were traveling only forty miles an hour with no other vehicles in sight, except for my own.” Officer Wightman further testified his suspicions also were aroused because, based upon his experience, the Fairmont’s slow speed possibly indicated that the driver was intoxicated.

During his years of service as a patrol officer, which involved “hundreds” of “DUI” traffic stops, he became familiar with common signs and symptoms of intoxicated drivers, one of which was driving at an abnormally slow speed for no apparent reason. As he followed the Fairmont, Officer Wightman radioed a police dispatcher to check its registration, and was informed that Pontbriant was the registered owner and that the vehicle had not been reported stolen.

After the Fairmont had traveled on the highway at 40 miles per hour for approximately one mile, Officer Wightman initiated a traffic stop by activating his patrol vehicle’s emergency lights, and the Fairmont pulled over. When questioned by the prosecutor at the hearing on the motions to suppress, Officer Wightman agreed that his suspicion that the driver was intoxicated was the “main reason for the stop,” but it was “[absolutely” the case that his “suspicions concerning the possible theft of that vehicle [were] part of the reason why” he stopped it.

Officer Wightman identified the driver and the passenger as Letner and Tobin, respectively. During his subsequent inquiries concerning why defendants were in possession of be car, and whether Letner had been driving while under the influence of alcohol or a drug, Officer Wightman conducted a brief search of defendants and the car, which uncovered items belonging to defendants, beer bottles of the same brands later found at the murder victim’s house, and Letner’s buck knife, which Letner was carrying in his pants pocket.

Leber told Officer Wightman that the Fairmont belonged to Ivon Pontbriant, and that she had given him permission to drive it. Letner said bat Pontbriant lived on Jacob Street, but he claimed he did not know the exact address or her telephone number. In addition, defendants each made inconsistent and apparently untruthful statements concerning their destination. When the car subsequently was impounded and more thoroughly searched, a rag with blood on it consistent with Tobin’s blood, and a hat belonging to Letner, also were found in the car.

The trial court denied defendants’ motions to suppress, finding “there was reasonable suspicion, based on be tot

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