THE PEOPLE, Plaintiff and Respondent, v. ROBERT MARK EDWARDS, Defendant and Appellant, 57 Cal. 4th 658

Opinion BAXTER, J. Defendant Robert Mark Edwards was convicted of the first degree murder of Marjorie Deeble. (Pen. Code, §§ 187, subd. (a), 189.) The jury also found true the special circumstance allegations of burglary murder and torture murder. (§ 190.2, subd. (a)(17), (18).) The jury was unable to reach a penalty verdict, and the trial court declared a mistrial. At the second penalty phase trial, the jury returned a death verdict, and the trial court entered a judgment of death. This appeal is automatic. (Cal. Const., art.

VI, § 11, subd. (a); § 1239, subd. (b).) For the reasons that follow, we ¿firm the judgment. I. Factual Background A. Guilt Phase 1. Prosecution evidence a. Murder of Marjorie Deeble 1) The crime scene and condition of the victim’s body In the late afternoon of Thursday, May 15, 1986, Marjorie Deeble was found dead in her single-story apartment on Green Street in Los Alamitos, California. The front screen door was closed but unlocked, and the wooden front door was open approximately four inches. There was no sign of forced entry.

The screen from a window next to the door had been removed, and was leaning against the building. Inside the home, loud music was playing in the southeast bedroom. Deeble was discovered in this bedroom. She was lying facedown on the floor between the bed and a dresser. She was wearing a long nightgown that had been pushed up around her waist and no panties. The bottom of the nightgown had either been cut or ripped. Her hands were tied behind her back with material from the nightgown, and with torn telephone cord. Deeble’s neck was in a noose made from a thin belt.

The end of the belt was tied to the top drawer handle of the dresser, so that her neck was suspended about eight inches above the floor. The drawer was open about six to eight inches. Blood had run out of her left ear and mouth, and there was blood around her nose. There were two wounds on her neck, one underneath the belt and one just below. Her left leg was bent and leaning against the bed. Her right leg was fully extended and underneath the bed. Inside Deeble’s thigh was a stain that could have been dried semen. She was barefoot, and her ankles bore marks that might have been ligature marks.

A cylindrical mousse can was found in a bed covering on top of the bed. A substance underneath the ridge around the top of the can appeared to be blood, and gave a positive response to a presumptive test for blood. A cap found on the ground next to Deeble appeared to be one that could fit the mousse can. A substance that appeared to be blood was observed just inside the opening of the cap “in a position that if the cap had been placed upon the mousse can, it might have transferred.” On the floor, a pillowcase, a dress, and a scarf were wrapped together with adhesive tape. The dress was bloodstained.

The pillowcase was also bloodstained. It was tied to resemble a hood, and appeared to have been cut with pinking shears. More blood was inside the pillowcase than was on the outside. A sheet was found on the floor. A strip approximately 66 inches long and 15 inches wide had been cut and tom from the left side of the sheet. The irregular cutting was possibly made by the use of pinking shears. A telephone cord and an electrical cord were found tied together either on the floor or on the bed. The bedroom had been ransacked.

Garments lay in the middle of the room, items were knocked over on the credenza, dresser drawers were open, and the contents of a purse were strewn on the floor. A telephone that appeared to have its cord ripped off was against the wall. Dr. Robert Richards, a pathologist, performed Deeble’s autopsy. Because Dr. Richards had retired by the time of trial, his partner, Dr. Richard Fukumoto, testified regarding the autopsy findings. In light of defendant’s appellate claims that this testimony violated his confrontation clause rights (see post, at pt.

II.B.2.), that the trial court erred in admitting evidence of the uncharged murder of Muriel Delbecq (see post, at pt. II.B.3.), that the evidence is insufficient to support the murder conviction on a theory of torture murder or burglary murder, and that the evidence is insufficient to support the jury’s true findings on the torture-murder and burglary-murder special-circumstance allegations (see post, at pts. II.B.4., 5.), we recount the autopsy findings in detail. Deeble had bruises in her vaginal area, primarily on the labia and vaginal vault.

There was braising and tearing just inside the opening to the vagina, and a tear and hemorrhaging in the area of the posterior fourchette, or the bottom of the opening to the vagina. On one microscopic slide, Dr. Richards had noted an “underlying submucosal hemorrhage.” Dr. Fukumoto testified that the “lining of the vaginal wall is called the mucosa, so a submucosa means the area below that lining of the surface.” A “submucosal hemorrhage” means that “there is bleeding beneath the surface lining of the mucus membrane.” No tissue response was noted, which Dr.

Fukumoto said meant that the injury to the vaginal area was probably less than eight hours old. Deeble’s anus was dilated, and braising and small mucosal lacerations were observed just inside the anus. Dr. Fukumoto opined that the dilation of the anus could have been caused by a finger, penis, or any number of other objects. Dr.

Fukumoto agreed with the prosecutor that the vaginal and rectal areas are “full of lots of nerve endings,” and so trauma to those areas is “highly painful.” He opined the injuries were caused by an object that did not have sharp edges, and that exhibit No. 16, the mousse can found in Deeble’s bed, was consistent with an object that could have caused the injuries. From the microscopic examination, Dr. Fukumoto opined that the injuries to the vaginal and rectal areas were inflicted before death. There was bleeding in the tissues near the tail of Deeble’s pancreas. Dr.

Fukumoto testified that the pancreas is an organ located deep within the body, and it requires a “tremendous amount of . . . localized” blunt force to the area to damage the pancreas. In the stomach area, Dr. Richards had observed food that was virtually untouched by digestion. Dr. Fukumoto opined that such a finding would indicate that Deeble died within an hour after eating. Blood was coming out of Deeble’s left ear, and there was extensive hemorrhaging in the middle ears which extended from the middle ear into the bone of the skull.

The right eardrum was tom, and the left eardrum had a break that according to the autopsy report was “incisional.” Dr. Fukumoto explained: “[A]n incision to a forensic pathologist ... is not a tear. It is something that is caused by a sharp instmment or an instrument that has a point.” Dr. Fukumoto said that “if the ear drums are torn, associated with massive bleeding in the middle ears, this could be due to a massive increase in pressure as a result of the straggle of the victim in his or her attempt to get a breath.” Dr.

Fukumoto opined that an amount of pressure that would tear an eardrum, and the infliction of an incisional injury to an eardrum would, in each case, be extremely painful. Dr. Richards’s most prominent finding from the neck up was “marked engorgement”—which occurs when blood vessels are dilated and filled with blood—in the neck, upper neck, and face area. Dr. Fukumoto testified that strangling can have this effect, and when there is venous but not carotid compression, the face becomes red and eventually bluish or purplish as well as engorged.

The whites of Deeble’s eyes had conjunctival hemorrhages, or bleeding, and there was a marked swelling of the eyelids. There were abraded lacerations in the left chin area. There was a crescent in the bridge area of the nose that was consistent to Dr. Richards with “fracturing of the bridge.” Dr. Richards palpated Deeble’s nose and believed that it was broken, but no fracture was visible to him on an X-ray. Dr.

Fukumoto reviewed X-rays of the nose and testified that one showed “somewhat flattening” that “may reflect fracturing at the bridge of [the] nose.” An internal examination revealed numerous pinpoint hemorrhages in the scalp and muscle tissue which were evidence of trauma, and subarachnoid hemorrhaging inside the skull. Dr. Fukumoto. opined that the injuries above the neck were the result of blunt force trauma, and that Deeble had suffered at least one significant blow to her face.

A substance that appeared to be the residue of adhesive tape was observed in an area extending from the mouth over to the lower left cheek. An autopsy photograph showed a deep furrow created by the ligature around Deeble’s neck. Dr. Fukumoto opined that features of the furrow indicated that there was an “abrasive sideways movement” either by the victim in an attempt to loosen the ligature, or by the perpetrator as he moved the ligature back and forth, and that the ligature and struggling against it would be extremely painful. Dr.

Fukumoto stated that when one is strangled, it takes five to six minutes for the brain to die, and the individual may lose consciousness well before then; in an extreme ligature or manual strangulation, loss of consciousness can occur in less than a minute. He opined that the cause of death was “asphyxiation due to ligature strangulation.” This opinion was consistent with that of Dr. Richards. 2) Circumstances surrounding the Deeble murder Deeble was a real estate agent, and Rebecca Brown was the manager of the office at which Deeble worked.

On Monday, May 12, 1986, Deeble mentioned to Brown that she was leaving for an appointment scheduled for about 5:00 p.m. Brown understood that Deeble never arrived at the appointment, and she never saw Deeble alive again. Deeble did not contact Brown on May 13, 14, or 15, which was highly unusual because Deeble was a top agent and the most active agent in the office. Brown recalled that during this time period the real estate market was “[h]ot, hot.” Kathryn Deeble Valentine, Deeble’s daughter, testified she met defendant in about March 1986. They began dating shortly thereafter.

For about two months before her mother’s death, Valentine saw defendant every evening, but only witnessed him drinking once, and once saw him inject cocaine. She never saw him passed out or “blacked out” on alcohol or drugs. Valentine saw her mother for the last time on the morning of Monday, May 12, 1986, between 7:00 and 7:30 a.m. Valentine called Deeble several times between Monday and Thursday of that week and left messages on her answering machine, but never spoke with her. In May 1986 Valentine owned a pickup truck to which only she and defendant had keys.

In early May 1986, defendant borrowed the truck for the weekend and, when the time came to return it, said it was not drivable. Deeble became upset, and arranged for defendant to take the truck in for repair. Deeble would at times leave an apartment key out in a drainpipe in front of the apartment. Defendant knew the key was there. Valentine also told defendant that one could access the apartment through a screen window. Defendant had been inside Deeble’s home on at least two occasions, once when Valentine introduced defendant to her mother (the only time they met), and once with Valentine while Deeble was away.

When Valentine met defendant, his leg was in a cast. During the week of May 11, 1986, his leg was no longer in a cast, and he could run with a limp, and “move fast if he needed to.” Valentine generally parked her truck in her driveway, positioning the truck so that it was either before or beyond some juniper bushes so that she could avoid standing in the bushes when entering or exiting the vehicle. On the night of May 12, 1986, Valentine parked the truck before the juniper bushes. The following morning, she had to stand in the juniper bushes to enter her truck, indicating that someone had moved the truck.

Valentine had not given defendant permission to use the truck the night before. Valentine and defendant continued to date for about a week after Deeble’s body was-discovered. Valentine asked defendant to attend Deeble’s funeral, but he declined. Valentine identified—by looking at photographs of Deeble while she was alive—certain jewelry that Deeble owned but that-Valentine never saw again after Deeble’s death. b.

Murder of Muriel Delbecq The prosecutor relied on the other crimes evidence of Muriel Delbecq’s 1993 murder to demonstrate the identity, common design or plan, and intent of the killer of Marjorie Deeble. On the evening of January 25, 1993, Peggy Ventura dropped off her 67-year-old mother, Muriel Delbecq, at Delbecq’s first floor condominium on Kanoe Street in Kihei, Maui, Hawaii. The following morning, about 7:30 a.m., Ventura knocked at Delbecq’s door and received no response. The front door was closed and locked, and Ventura used a key to enter.

She observed blood on the carpet, and the living room telephone was missing. Delbecq’s bedroom door was closed and locked. Ventura ran outside, alerted neighbors to call 911, and entered her mother’s bedroom through a window. There was a comforter over the window, making the bedroom “pitch black.” The light switch did not work, and Ventura opened the bedroom door to let in light. Ventura discovered Delbecq on the bed under a pile of blankets. She was lying on her back, completely nude. Responding officers testified that Delbecq’s legs were spread, and her hands and feet were not bound.

Defendant’s palm prints were found on the wall, and his bloody right footprint was found on a white T-shirt. Delbecq’s bedroom was ransacked, and the carpet appeared soaked with blood. Cigarette butts were found on the floor of the bedroom and in the bathroom. Ventura testified that Delbecq always wore her wedding ring. Maui County Police Lieutenant Lenie Lawrence, who examined Delbecq at the murder scene, did not observe any jewelry on Delbecq, but did see a white mark around her left ring finger indicating a ring had been there.

After being locked out in December 1992, Delbecq told Ventura she was going to hide a key under a rock outside her condominium. Ventura testified, apparently based on a photograph, that a window screen in the living room was bowed and more damaged than she recalled. A responding officer testified that a comer of the window screen in the living room was slightly bent; it appeared the screen had been taken out and put back improperly. Pieces of dried grass were on the window sill and on the floor under the window sill.

In a dumpster near Delbecq’s residence, police found a bloody pillowcase with a pattern that was consistent with Delbecq’s bedding. In the pillowcase, police found a variety of items, including a check for an account held by Muriel Delbecq and Peggy Ventura, traveler’s checks, two telephones Ventura identified as being her mother’s, two pieces of telephone cord tied together, cut clothing, a flashlight, a wine bottle, two beer cans, a Seattle Seahawks game schedule, a golf tag, golf tees, dishwashing liquid, stain remover, shampoo, lotion, disposable razors, and scissors.

Ventura testified that Delbecq, wearing her swimsuit,, walked to the beach about four blocks away nearly every morning. Lieutenant Lawrence searched defendant’s apartment several days after the murder. He found binoculars on a small table located directly beneath a bedroom window that faced Delbecq’s residence. Using the binoculars, he could clearly see what type of vehicle was entering and leaving the parking lot of Delbecq’s building. Dr. Alvin Omori, who conducted the autopsy on Delbecq, testified that her head and right ear were bruised. There was bruising to the scalp caused by blunt trauma.

Her nose was fractured. There were bruises to her lips, and tears to the inner portion of her lips, indicating force or pressure was placed over the mouth area. Her neck was bruised, and her hyoid bone, or the bone located right above the voice box, was broken. The skin over the voice box had an “incised type of abrasion,” caused by a sharpened or pointed object being scraped horizontally across the skin. Similar abrasions appeared on the lower portion of the left neck, the left anterior chest about the breast, and the breast area, including the nipples of both breasts. Both breasts were bruised.

There was a puncture wound on the left lower chest. Ligature marks on her wrists and ankles indicated she had been bound. The genital area had a pattern of abrasions or scraping of the skin consistent with fingernail marks. The entrance to the vaginal cavity was bruised, and there were internal injuries to both the vaginal and rectal areas. There were two perforations in the vaginal cavity. The first perforation extended into the rectal cavity. The second perforation was to the right upper portion of the vaginal cavity, and extended into the abdominal cavity.

This perforation was caused by a mousse can that was found protruding into the abdominal cavity. The rectum was tom, and the bowel was perforated “into the abdominal cavity.” There was visible bleeding in both the vaginal and rectal orifices, and approximately 100 cc’s, or three and one-third ounces, of blood was in the perforated area of the rectum and the vaginal cavity. The injuries to the rectal and vaginal area appeared to have been inflicted before Delbecq’s death.

The most probable cause of death was “asphyxia or lack of oxygen due to strangulation and/or suffocation.” The injuries to the vaginal area as well as the rectal tear were a contributing factor, but were not life threatening by themselves at the time she was asphyxiated. 2. Defense evidence a. Testimony of defendant and defendant’s family arid friends Laura McFarland, defendant’s mother, testified that she married William Edwards, Sr., in July 1959. Defendant was bom in 1961, and had an older brother William, and a younger sister Elena.

The family lived primarily in Florida until defendant was about nine years old. They then moved to Puerto Rico for about 11 months. Laura left defendant’s father in July 1974, and she and the children returned to California. The couple, divorced in 1975, and Laura remarried in about 1984. Defendant’s father died in December 1992. William, Sr., suspected that defendant was not his child. He first hit defendant when defendant was about six months old. When defendant was a child, his father hit or beat him almost daily.

He nicknamed defendant and his brother “SFB-1” and “SFB-2,” which stood for “shit for brains one and two.” William, Sr., was also violent towards Laura. When defendant was bom, his father worked as a bartender and had an alcohol problem. Laura, who was a registered nurse, also had an alcohol problem, and in 1972 she received a prescription for Valium. She continued to use prescription Valium off and on until about the late 1970’s. When defendant was about 11, Laura was ran over by a car while she was intoxicated. Laura first saw defendant under the influence of drugs when he was 14 years old, in February 1975.

Defendant continued using drags and alcohol. He performed poorly in school, and he and his brother committed burglaries to support their habit. Laura saw defendant’s brother William drank for the first time when he was 14 years of age. Many years later, defendant’s sister Elena began to have problems with drags and alcohol. Defendant’s paternal grandmother was addicted to Ativan, and Laura’s mother was addicted to prescription drugs such as Valium and Percodan. All four of Laura’s siblings had problems with alcohol, and one of her sisters was also addicted to Valium. Defendant testified.

He was bom in 1961 in Long Beach, California, and was 35 years old at the time of trial. He dropped out of school when he was in the eighth grade, and earned money doing day labor and odd jobs. When defendant was in his late teens and early 20’s, he and his brother William made money by selling what appeared to be paper LSD, but was actually nothing but paper with a design on it. Defendant testified, “it was a safe way to make money without committing a crime.” Defendant recalled drinking a small amount of beer when he was about eight or nine years old and enjoying the effect of the alcohol.

Defendant had other experiences with alcohol after that. Defendant moved back to California from Puerto Rico when he was 12 or 13. His alcohol use “increased drastically” and he “drank continuously.” He started smoking cigarettes when he was 12 years old, continued to smoke through the mid-1980’s, and had only recently quit at the time of trial. Defendant’s first experience with drugs was using marijuana when he was 11 or 12 years old. He tried hashish and cannabinol when he was about 12 years old. He then tried LSD, cocaine, peyote, methamphetamine, amphetamines, barbiturates, and heroin.

When defendant was about 14 years old, he began injecting drugs. His drug and alcohol use increased throughout his teenage years. Defendant frequently used a technique called “jacking off’ when injecting drugs. After injecting the dmg, he would draw blood into the syringe and then reinject it into his arm. He also used a technique called “shooting water,” which involved attempting to collect and use any residue of a dmg that might be left in a bag.

When he was about 18, he injected an unknown dmg, and “thought [he] was going to die.” Defendant experienced his first alcoholic blackout when he was about 16 years old. Defendant described various situations in which he had blacked out, such as being with friends and making plans to go somewhere, and suddenly finding himself walking apparently alone on the street in Long Beach at 5:00 a.m. and not knowing how he got there. On another occasion he found himself under a kitchen table in an unfamiliar residence.

There was never a time when defendant became aware of his surroundings after blacking out, and he never had reason to suspect he had been involved in a violent crime. In December 1985, defendant was involved in a motorcycle accident and had surgery on his right leg. As a result, his leg was in a cast. In the spring of 1986, defendant met Kathryn Valentine while he was selling fake LSD at a Long Beach bus stop. Valentine drove by in her pickup tmck, saw defendant had a cast, and offered him a ride. The two began dating shortly thereafter.

Valentine gave defendant a key to her tmck, and told him that there was a spare key in a magnetic box hidden on the tmck. Valentine introduced defendant to her mother, Marjorie Deeble, at Deeble’s house. He also saw Deeble when he helped her and Valentine load Deeble’s car for a weekend trip to Palm Springs. Both meetings were cordial. Defendant borrowed Valentine’s truck while she and her mother were in Palm Springs, and the generator died.

When Valentine and Deeble returned from Palm Springs, defendant and Deeble discussed on the telephone what had happened to the truck, and Deeble told defendant to take it to the dealership for repair. During this conversation, Deeble did not raise her voice, and was firm and assertive, but not angry. Defendant was not bothered by the incident, nor did he have any ill will or hostile feelings toward Deeble or Valentine because of it. Defendant subsequently received a blank check from Deeble for the repair and took the truck to the dealership.

Defendant and Valentine once went to Deeble’s residence when she was not home. He and Valentine were intimate. Defendant was not aware of a key hidden outside Deeble’s residence, and never had possession of a key to her home. Defendant continued to use drugs and alcohol during the time he dated Valentine. Valentine did not know anything about drugs, and at her request, defendant once let her watch him inject cocaine. When defendant learned of Deeble’s death, he and Valentine were visiting his aunt and uncle.

Valentine was told she had to go to the Los Alamitos Police Department because something had happened to her mother. Valentine and defendant drove to the police station. Defendant waited in the lobby, and after a few minutes he heard Valentine crying. Valentine and defendant continued to date for a “couple of weeks” after Deeble’s death. They then “drifted apart,” but remained on good terms. Defendant refused police requests for blood, urine, and hair samples. Defendant denied killing Marjorie Deeble.

In May of 1986, defendant had little mobility, could bend his right knee only a small amount, could not put his full weight on his leg, and could not run. On the night of May 12, 1986, defendant and his brother sold fake LSD outside a Judas Priest concert in Los Angeles. They left for the concert about 4:00 p.m., and returned home between 11:00 and 11:30 p.m. He drank alcohol throughout the concert. They then obtained drugs, and defendant went home to inject cocaine and heroin and to drink. At no time that week, including May 12, did defendant go to Deeble’s residence.

Defendant testified he had been convicted of murder and burglary in Hawaii in 1994. He was also convicted of second degree burglary in California in 1984. Janice Hunt testified that she dated defendant in Hawaii. Around December 1992, defendant moved in with Hunt and her 12-year-old daughter. That same month, defendant’s father was killed in an airplane crash. Defendant’s demeanor changed, and he became quiet and depressed. He drank more heavily than before. At times, defendant became so intoxicated he had alcoholic blackouts.

Hunt described two incidents, one when defendant left in his work truck at night, and the next morning she and defendant searched for the truck, and another when he apparently left a bag of groceries outside all night. She did not believe he was using drugs during the time he was living with her. Hunt kept binoculars in her bedroom so that she could watch whales. She had a partial ocean view from her bedroom window. Hunt had difficulty focusing the binoculars, and never saw defendant look through or touch them.

On the evening of January 25, 1993, the night Delbecq was murdered, Hunt was at home with her daughter and defendant. Between 8:00 and 8:30 p.m., an acquaintance informed defendant that his dog had been killed. Defendant found the dog on the road, held it, and sobbed. They buried the dog at sea. Hunt returned home, and when she went to bed between 11:00 and 11:30 p.m., defendant was not yet home. Defendant returned home before morning. The next day Hunt learned of a murder that had occurred nearby and informed defendant; he seemed surprised.

David Long testified that he knew defendant for about a year before January 1993. He observed defendant ingest drugs and alcohol nearly every time he saw him. On the night of January 25, 1993, sometime between 8:30 and 11:00 p.m., defendant came to Long’s apartment, talked about his dog, and injected half a gram to a gram of cocaine. When defendant left, he was more intoxicated with drugs and alcohol than Long had ever seen him. Carl Stevens knew defendant in junior high school in Long Beach.

He saw defendant outside of school approximately 10 to 25 times, and on each occasion defendant was drinking alcohol or using drugs. Stevens had had no contact with defendant for the last 13 years. Vincent Portillo, defendant’s cousin, lived on Maui for a month from 1991 to 1992. One night he, defendant, and defendant’s girlfriend Brenda drank heavily. They got into a vehicle with defendant driving and Brenda in the passenger seat. Brenda and defendant argued, and Brenda hit defendant several times. Defendant did not hit her back, but blocked her hits to maintain control of the vehicle.

The following day, defendant did not appear to be upset with Brenda over her behavior the night before. b. Testimony of other witnesses Orange County Sheriff’s supervising forensic specialist Sharon Krenz testified that on May 15, 1986, she observed baggies of pills on the dresser and the floor of Deeble’s bedroom. She entered a different room and observed a TV Guide that was open to Monday, May 12. She also observed pinking shears on the floor of the bathroom. She did not observe any cigarette butts in the apartment. None of the fingerprints lifted from Deeble’s apartment matched defendant’s.

Richard Brown, a criminalist with the Orange County Sheriff’s Department crime lab, testified that comparison of defendant’s pubic hair to pubic hair found at the crime scene eliminated defendant as a source of the crime scene hair. Brown was unable to compare the crime scene hair to that of seven men other than defendant because the hair standards submitted for those individuals contained too few hairs to make a comparison. He sent a report to the Los Alamitos Police Department stating that the hair standards were inadequate. He was never provided with adequate hair samples.

Sergeant James lessen of the Los Alamitos Police Department testified that he was the lead investigator of Deeble’s murder. He interviewed Deeble’s daughter Kathryn Valentine on May 15, 1986. Valentine told lessen that on Monday night (presumably Monday, May 12, 1986), her brother had borrowed her truck for a short period of time. Valentine also told lessen that she kept a spare key in a magnetic lockbox on the vehicle. Although lessen had looked inside Valentine’s truck, to his knowledge the truck had never been searched, nor had he requested it be photographed or processed for fingerprints or trace evidence.

The parties stipulated that Sergeant lessen’s report did not state that Valentine had told him she had “shown [defendant] a hidden key, he knew where one was” at her mother’s residence. When lessen met with defendant on May 20, 1986, he observed defendant walked with a noticeable limp and appeared to have difficulty standing on his right leg for a long period of time. There was no indication in lessen’s report that he asked defendant for permission to search his living quarters.

On approximately October 21, 1987, Sergeant lessen spoke with Maggie Black of the Orange County Sheriff’s Department crime lab regarding elimination prints. Black was dissatisfied with the quality of the prints taken of five individuals other than defendant and said they would have to be redone. Gloria Dangerfield, an employee of the facility manager for the Los Angeles Sports Arena and Coliseum, testified that on May 12, 1986, Judas Priest performed at a concert at the sports arena between about 8:00 and 11:00 p.m.

Paul Roy dated Deeble at some point after August 1985 On May 12 or 13, 1986, Roy called Deeble at her home at 8:20 p.m. One or two days later, Roy went to Deeble’s apartment and knocked on her door. When no one answered, he placed a greeting card for Deeble between the screen door and the closed wooden door. He did not recall a window screen leaning up against the wall of the house. Alden Olson testified that he dated Marjorie Deeble during the eight weeks before her death. He saw her do her laundry, including her sheets, three or four times.

Deeble always locked the doors to her apartment—including her front screen door—before going to bed. Leonard Hirsch, who dated Deeble on a regular basis from about 1980 to 1983, and less frequently after that, testified that Deeble’s sheets were generally fresh and clean. She also vacuumed once a week, and often more than once a week. Vivian Camp, who sold Avon products, went to Deeble’s home on Thursday May 15, 1986, between 11:00 and 11:15 a.m. The door to Deeble’s residence was open about a foot, and Camp could see inside the residence.

She did not notice a screen off of the window that was facing the walkway. c. Expert testimony Defense expert Dr. Paul Wolf, a clinical professor of pathology, a trauma and transplant pathologist at the University of California San Diego Medical Center, and director of autopsy at the Veterans Administration medical center in La Jolla, testified as an expert on pathology. He had reviewed Deeble’s autopsy report. According to the report, Deeble had hemorrhaged from bbth ears. Dr.

Wolf stated this is a common finding after ligature strangulation because the blood vessels in the ears are engorged, and the eardrums are perforated and bleed. There also can be tears in the middle ear that are either, sharp or jagged. Strangulation, which causes asphyxia, creates pressure on the veins so great that small blood vessels in the nose, mouth, and ears will rupture. Because Dr.

Richards, the pathologist who performed Deeble’s autopsy, had not taken any microscopic sections of the ears, there was no way to ascertain whether the damage to the right eardrum was caused by a sharp object or by the increased pressure that followed the ligature strangulation. Moreover, “incisional” was not a term of art, and its use in an autopsy report did not ineluctably mean that the damage had been caused by a sharp object. Dr.

Wolf further testified that when an individual is strangled, he or she can lose consciousness within 15 to 30 seconds, and it takes about four minutes of lack of oxygen for the heart and “respiratory center” to die. Dr. Wolf agreed with Dr. Fukumoto that an incision, which Dr. Richards did not perform, “would have been the best procedure to confirm or disprove that there was a fracture” of the nose. He also agreed that the possible fracture was more likely from a blow rather than a fall. A blow to the head of sufficient force to break a nose could cause immediate unconsciousness.

A person unconscious from either strangulation or a blow would not feel pain. Ligature strangulation and bleeding from the ears as a result of ligature strangulation were not necessarily consistent with extreme or prolonged pain. Nor were the ligature marks on Deeble’s ankles consistent with extreme or prolonged pain. Dr. Wolf stated that a “laceration” and a “hemorrhage” can be microscopic in size. He described the injuries to Deeble’s vagina and rectum as microscopic and “[e]xtremely minor.” He opined they could have been caused by a finger or a penis. Deeble was menopausal, and Dr.

Wolf opined that was the reason the vaginal mucosa (or lining of the vaginal wall) was so thin. When the mucosa is thin, any kind of manipulation by a finger, penis, or other foreign object is more likely to cause microscopic lacerations. Although Dr. Richards' reported lacerations and tears, he did not measure them. Dr. Wolf noted that there are “ruga folds” in the vagina that can be mistaken for a laceration, and that the only slide from the vagina showed “a very minor removal of a mucosa.” Dr.

Richards had reported submucosal hemorrhage (or bleeding beneath the surface of the lining of the vaginal wall) in the vagina, and Dr. Wolf confirmed this in his examination of a slide of a vaginal tissue section. It was “such a small amount that it wouldn’t be too visible,” and Dr. Richards did not report seeing any blood in the vagina. For a criminalist to see a visible substance all the way around the top of a can that he thought might be blood was inconsistent with the microscopic quantity of blood that was reported in the vagina.

Moreover, because no blood was observed in the rectum, there was not enough blood to go around the edge of a cap area. Dr. Alex Stalcup testified as a specialist in addiction medicine. He did not interview defendant and had not diagnosed him, although he had interviewed members of defendant’s family. He had also received a record of defendant’s contacts with police, and transcripts of interviews with family members and individuals familiar with defendant’s drug use in the 1980’s. He was not given any information about the Deeble and Delbecq murders. Dr.

Stalcup testified that alcoholism and drug addiction are illnesses. Signs of the disease of addiction include inability to control intake of the drug or alcohol and'continued drug or alcohol use despite adverse consequences. He opined that predisposition based on genetics or child abuse, early drug experiences and the circumstances of the first experience, and whether the individual is in an enabling environment in which drugs are easily available, widely used, and not discouraged, are factors that contribute to certain individuals becoming addicts while others do not.

Genetics were the most, and child abuse was the second most, prevalent risk factor for addiction or alcoholism. Considering defendant’s hypothetical risk factors of genetic background, horrific childhood abuse, lack of supervision, and an environment in which drugs were available, Dr. Stalcup opined: “I frankly don’t see how he escaped being an addict. This fellow didn’t have a chance.” Dr. Stalcup testified that one study indicated that individuals with a history on both sides of the family of alcoholism or drug addiction had half of the normal amount of endorphin.

This meant “they are very different in their ability to feel normal. . . . Pleasure is hard to get ... . For them pleasure is b[l]unted.” “[T]he term for the way they feel is called chronic dysphoria. Dysphoria is the opposite of euphoria. ... A lot of these kids from a very young age feel off.” “Once these kids discover alcohol and drugs, unless there is early intervention, it is all over.

Because they feel pleasure, they feel satisfaction, they feel normal for the first time in their life.” “[N]ow for the first time [they] don’t feel dysphoria.” When drugs such as amphetamines are injected, they reach the brain instantly, and “there is such an explosive release [of] dopamine and endorphin that it damages the pleasure centers.

It literally damages or overwhelms the part of the brain responsible for feeling normal pleasure. . . . [Individuals who use drugs . . . will progressively injure their ability to feel normal pleasure.” This explains why many individuals do not stay sober, and instead relapse. Dr. Stalcup found use of alcohol and drugs at a young age significant. He also found it significant that defendant did not have a drug of choice, and that once he was exposed to alcohol and drugs, he immediately lost control. “[H]e is telling us that something was wrong with sobriety. Something was wrong with how he felt.” Dr.

Stalcup also noted that injecting drugs by the age of 13 or 14 was “quite unusual,” and “indicative of extremely rapid progression of addiction.” He said: “What I interpret when I hear these stories is . . . that something is really wrong with this kid. Something is really intolerable for him or her. That something is either happening in their home or as we mentioned earlier, they are chronically dysphoric. They feel really bad.” Based on these factors, Dr. Stalcup opined that defendant would fall in the 1 or 2 percent of the most severely affected drug addicts. Dr.

Stalcup agreed with the prosecutor that he was “not saying that a person who is addicted to drugs or alcohol [was] not responsible for the violent crimes they commit.” Dr. Stalcup testified that anyone who drinks can have an alcoholic blackout. Such an individual has had enough alcohol that an average person can tell he or she is intoxicated because of slurred speech and unsteadiness on his or her feet. An individual who uses alcohol with cocaine is “far, far, far more likely to go into an alcoholic blackout.” Sixteen is an early age for an individual to experience his first alcoholic blackout. 3.

Rebuttal Evidence Sergeant Jessen agreed with the prosecutor that he began to focus on defendant to the exclusion of individuals mentioned by the defense because defendant refused to supply the police with hair, saliva, and blood samples, and because in his mind, based on information he had received from laboratory personnel, the individuals who had provided inadequate hair and fingerprint samples were eliminated as donors of semen and fluids at the crime scene. It was not until Jessen learned of a 1993 murder in Hawaii that he felt he had enough evidence to arrest defendant. B. Second Penalty Phase 1.

Prosecution evidence At the penalty retrial, the prosecution introduced much of the evidence from the guilt phase. The prosecution also introduced evidence that defendant had suffered murder and sexual assault convictions in Hawaii and a burglary conviction in California. > N.T., a former girlfriend of defendant’s, testified that she met defendant on Maui. One night in 1990, after their romantic relationship had ended, defendant, who sounded drunk, called N.T. and asked to come over. N.T. said no. She later awoke to find defendant trying to insert a bottle into her vaginal and rectal areas.

She ordered defendant out of the house. Orange County Sheriff’s Deputy Timothy Martin testified that on July 8, 1997, in the Orange County Central Men’s Jail, he observed defendant sharpen a shank and hand it to another inmate. Kathryn Valentine testified regarding the friendship with her mother that she had lost when Deeble was murdered, and the guilt she felt for bringing defendant into her family. She also testified regarding several family photographs. Lorraine Johnston, Deeble’s sister, testified that she was eight years older than Deeble, and like a mother to Deeble when she was an infant.

They were close as adults, spoke often on the telephone, and visited each other. Because of Deeble’s murder, Johnston had been physically ill, had been through counseling, and had seen a trauma therapist. 2. Defense evidence Fifty witnesses, including defendant, testified for the defense or their testimony was read into the record. Much of the evidence from the defense portion of the guilt phase was introduced. a. Testimony of defendant and other character witnesses Defendant testified that in 1983, he was convicted of second degree burglary in Los Angeles County after breaking into a vehicle.

Around November 1988, he was convicted of taking or driving an automobile without the consent of the owner. In 1993, he was convicted of the second degree murder and sexual assault of Muriel Delbecq in Hawaii, and was currently serving five consecutive life sentences in that case. He had never been sentenced for a violent act before his Hawaii sentence. In about September 1996, defendant was written up for heroin use in the Orange County jail. At times, defendant feared for his life at the jail. The “worst time” was the summer of 1997 when racial tensions were exacerbated.

Defendant saw an individual who had received medical treatment after his face was slashed. After that incident, defendant tried to make the shank described by Deputy Martin. Defendant reasoned that if an aggressor knew he was armed, he would be less likely to attack defendant. He did not plan to be an aggressor and assault anyone with the weapon. In defendant’s approximately nine years of incarceration, he had never been written up for weapon possession before. Defendant’s father was a pilot in the Army and served two tours of duty in Vietnam.

Defendant moved frequently as a child—living in California, Florida, Georgia, and Puerto Rico—because of his father’s work. When defendant was young, his father would strike him with his fist. He once knocked defendant out of his chair and drew blood because defendant had missed a number while counting. Defendant’s father drank heavily, and became increasingly abusive as he drank more. Defendant first got drunk when he was about eight years old. Defendant’s parents separated when he was about 11 or 12 while the family was living in Puerto Rico.

Defendant, his mother, and his siblings returned to Long Beach, where they had close relatives. Defendant’s mother worked and attended night school. Defendant began to skip school, and he dropped out of school in the eighth grade. He abused alcohol and drugs. After his parents’ separation, defendant had no contact with his father for several years. In about the summer of 1992, the two began communicating. In December 1992, defendant’s father sent him a Christmas card, and signed it “Love, Dad,” something he had not done for years. Defendant’s father died on December 19, 1992, in a plane crash.

Defendant subsequently suffered bouts of depression. Defendant had experienced alcoholic blackouts, and described some of those experiences. At the time of Deeble’s death, defendant was heavily abusing drugs and alcohol. Defendant was not in an alcoholic blackout when he committed burglary in 1983, or when he made the shank. In about November 1989, defendant moved to Maui, Hawaii, to be with his sister, Elena, and to stop his drug abuse. He attended Narcotics Anonymous (NA) and Alcoholics Anonymous (AA) meetings, remained drug and alcohol free for seven or eight months, and worked for a roofing company.

He then began to use drugs again and became homeless. Defendant’s son, Robert Mark Edwards, Jr. (“Robbie”), was bom on January 23, 1985. Defendant described his efforts since 1985 to visit with his son and to communicate with him by telephone and letters. Defendant had counseled his son to refrain from using drags, and was proud that his son had refused offers to try them. Robbie had also sought his father’s advice in other matters, and shared his achievements with his father.

Defendant did not want Robbie to testify on his behalf in part because he did not want him to feel “maybe he said the wrong thing or something like that.” Defendant enjoyed reading while incarcerated, including books on parenting and spirituality. He had also written several short stories for Robbie. While incarcerated in Hawaii, he had attended GED classes and assisted other inmates with their schoolwork. Defendant also enjoyed art, and some of his work was shown to the jury. He had participated in NA and AA meetings while in custody, and encouraged others who were not in custody to stay sober.

Defendant could not guarantee that he would not be under the influence of drags or alcohol while in prison, but said, “My sobriety I take one day at a time.” Defendant testified that he now believed he had killed Deeble and Delbecq, although he had no recollection of their murders. Defendant felt “horrible,” fasted, meditated, and prayed on the dates of the murders, and “always pray[ed] for the families.” Laura McFarland, defendant’s mother, testified to many of the details in her guilt phase testimony.

In addition, she testified she married defendant’s father, William Edwards, Sr., when she was 19 years old and had known him three months. At the time, Edwards was in the Marines. When defendant was bom Edwards was a bartender and did not live at home. When defendant was about one, Edwards joined the Army. Edwards was gone nearly all of the time from defendant’s birth until he was about three and a half years old. After Edwards returned from being stationed abroad, his family joined him while he attended officers’ candidate school in Georgia.

Edwards was cruel to defendant, who was about four, and struck him at least once or twice a week. McFarland did not protect him from this abuse. Once, when defendant had a bowel movement during a bath, Edwards called him a “filthy little boy,” and made defendant pick up the stool and rub it over defendant’s chest. Defendant began to have night terrors. He said a puppet was trying to attack him, and described the puppet as wearing a sport coat similar to one his father had. Defendant had a G.I. Joe doll, and would leave it in the street and wait for' cars to mn over it.

In December 1966, when defendant was about five and a half, Edwards left for Vietnam. When defendant was six, after his father returned from his first tour of duty in Vietnam, defendant regressed in his development. He would have bowel movements in his pants, and if Edwards became aware of it, he would whip defendant, and make him wash out his shorts in the bathtub. If Edwards disapproved of a child’s manners at the table, he would stab his or her hand with a fork. Once, when defendant was about 10 and had braces, Edwards punched him in the mouth, causing defendant’s mouth to bleed and swell.

Defendant frequently observed his father physically abusing McFarland. McFarland never observed Edwards praise defendant for anything he had done, or be nurturing in any way. Edwards was unfaithful, and he would drive by the house with a girlfriend and wave to his children. He once introduced defendant’s little sister, Elena, to a woman he said was going to be her next mother. After McFarland and Edwards divorced, Edwards told his children, “[N]ow you’re out of my life and I’ve never been so happy.

Don’t bother me.” After McFarland left Edwards, she took defendant to a psychiatric clinic in Long Beach “off and on” for a “long time.” At one point defendant went to live with his father. Edwards was dissatisfied with everything defendant did, and sent him back to live with his mother. Defendant continued to try to establish a relationship with his father until his father died, and was “[absolutely devastated” by his death. McFarland described several incidents in which defendant had been kind to individuals less fortunate than himself, and to stray animals.

McFarland testified that for some period of time she received substantial child support. When Edwards married his second wife, he reduced McFarland’s child support so that she could no longer afford to stay at home, and she began to work for a construction company. McFarland later married her current husband, Jack McFarland, who assisted her in attending nursing school. At the time of trial, McFarland had cared for defendant’s son, Robbie, for about four years. Once defendant was returned to California, he saw his son nearly every week, spoke to him on the telephone, and corresponded with him.

Defendant took an active role in helping Robbie make decisions about his life, and was nurturing, loving, and very proud of his son. McFarland testified that if defendant were to be given a sentence of life imprisonment without the possibility of parole, his life would have value to her. She begged the jury to spare her son’s life. Elena Edwards, defendant’s sister, testified that their father was “very scary,” and would hit her brothers and was often verbally abusive to them. Their father struck defendant about five times more than he struck defendant’s brother.

In Elena’s opinion, their father’s behavior “broke [defendant’s] being before his being was established.” Elena had once been a substance abuser, but at the time of trial she had been clean and sober for eight years. She found a new way of life at NA in Hawaii, and encouraged defendant to move there. Defendant did so, and began attending NA and AA meetings. After defendant was arrested in Hawaii, Elena visited him in jail every weekend. During one visit, defendant looked down and told Elena, “[I]f I did do this, I don’t ever want to get out.” Elena and defendant were still close at the time of trial.

Ana Guthridge, defendant’s aunt, knew defendant as a child. Defendant was a sweet little boy, very quiet and gentle, who was often overlooked because he was well behaved. Scott Deeble, Marjorie Deeble’s son, testified that at the time of his mother’s death, he was a pilot in the Marine Corps. His mother’s death was a huge loss. Deeble felt compassion for defendant, and said that in the nearly 12 years since his mother’s death, he had learned, “I cannot appreciate the ecstasy of my joy if I do not embrace the depth of my grief.

I have learned the big lesson in forgiveness.” Bridget Briggs testified she was a childhood friend of defendant’s sister, Elena, and met defendant when she was about 11 years old and defendant was about 18 years old. When defendant arrived at the Orange County jail in 1994, he told Briggs that he “didn’t remember doing any of the things that they were saying that he did. But if he did, ... he should be punished accordingly.” Linda Lauer testified that she met defendant in late 1989 or early 1990 while she was working on a research project for the Hawaii department of health.

Lauer was a community health outreach worker trying to prevent the spread of AIDS by educating and assessing intravenous drug users and their sexual partners. Getting intravenous drug users to answer a lengthy questionnaire was difficult because “of the nature of I.V. drug users and the illegal things they do.” Defendant was the first person to agree to be interviewed. Lauer interviewed defendant at his apartment one evening, and did not feel threatened or vulnerable. Defendant appeared to be clean and sober, and responded thoughtfully to deeply personal questions.

He then encouraged others to participate, and “it opened up the project for us on Maui.” Craig Furtado, a roofing contractor on Maui, met defendant when Furtado lost his briefcase containing valuables at an airport on Maui. Defendant found the briefcase, and called Furtado to return it to him. When the two met, nothing was missing from the briefcase, and defendant refused a reward. Furtado subsequently hired defendant in his business for about five months. Defendant worked hard, was prompt and honest, and got along with everyone.

Despite his two murder convictions, Furtado would hire defendant again if he had the opportunity. Geraldine Jakeway testified she met defendant on Maui in about 1992. Jakeway was in a wheelchair, and often swam at the beach. On one occasion, when no lifeguards were present to carry her into the water, she asked a group of individuals if anyone could assist her. Defendant immediately volunteered, and also assisted Jakeway out of the water when she was done swimming. Jakeway saw defendant on other occasions at the beach when he again assisted her in and out of the water.

William Farmer testified he met defendant in 1989 on Maui at an NA dance. They immediately became friends, and Farmer hired defendant to perform construction. Defendant was a religious person, and a loyal and hard worker. For six to 12 months in 1992, defendant lived in Farmer’s home. Farmer asked defendant to leave one night when he came home drunk, which was against the house rules. Defendant did not appear to be the same person, and Farmer felt threatened. The following morning, defendant returned to the house in a sober state, and had no recollection of the night before.

He appeared surprised when Farmer informed him he was not welcome in the home. Albert Terry met and became close friends with defendant in 1989 while participating in AA and NA programs. Defendant was a loving, caring, and respectful person. Terry visited the Maui Community Correctional Center to assist in AA meetings while defendant was incarcerated there. Defendant participated in the meetings, and appeared to be sincere in his comments about drug and alcohol abuse. Terry believed defendant would be of benefit to other recovering addicts in a custodial setting.

Orange County Sheriff’s Deputy Robert Taft testified he worked at the Orange County jail. On two different occasions he was assigned to the administrative segregation area in which defendant was housed. He never saw defendant act disrespectfully to any deputies or have problems with any inmates. Orange County Sheriff’s Deputy Matthew Johnson testified he worked at the Orange County jail while defendant was incarcerated there. He wrote up defendant once for possession of contraband, which consisted of extra clothing and pictures on the wall.

Johnson otherwise observed that defendant followed the jail rules, was respectful toward and communicated well with Johnson, and got along with the other inmates. Sergeant Robert Morris worked at the Maui Community Correctional Center, and testified that defendant was an “ideal inmate” who was respectful to guards, never gave “anybody problems,” kept his cell clean and neat, and was helpful to new inmates. Defendant had no “write-ups” on Morris’s watch, which was unusual for an inmate. During the time defendant was there, there were two escape attempts.

Both times the individuals who escaped were in defendant’s housing area, but he did not go with them. Defendant enjoyed drawing, and attended NA and AA meetings and church services while incarcerated. Sergeant Herbert Aguiar, who worked at the Maui Community Correctional Center, testified that when defendant first came to the facility, he was dirty, very thin, had long hair, and his eyes were always moving like he was trapped somewhere. Aguiar was leery of him, and his first impression was “dirt bag.” Defendant then started cleaning himself up, got a haircut, and started filling out.

Aguiar described defendant as a “model inmate,” whom he had never seen be disrespectful to anyone. Defendant engaged in many activities at the facility, including beginning work on his GED. Reverend Diane Winter, a ministerial counselor, met defendant while conducting classes and counseling inmates in the Maui Community Correctional Center. Defendant took classes with Winter, and was respectful, kind, and interested in learning. Winter perceived defendant as genuine and not manipulative in class. Winter had observed defendant with his girlfriend, Janice Hunt, and he was kind, respectful, and loving.

Winter said that defendant had cried sometimes and been very depressed. There were numerous occasions on which defendant' felt a lot of pain, and sometimes he would break down and cry because he said he did not remember what he had done.

Defendant said that if he had killed Delbecq, he was a “monster.” He also said, “if I had done that ... it is horrible, I shouldn’t be allowed to live in society.” Defendant would ask Winter “to pray for the family,” and “we would pray together, and he would cry.” Defendant took full responsibility for his addiction and did not offer drugs and alcohol as an excuse for his situation. Defendant was respectful and kind to guards and staff at the jail, and helpful to other inmates. During her years working in a jail setting, Winter had been asked 80 to 90 times to testify on a prisoner’s behalf.

She had only testified about four or five times, including once before for defendant. Karen Phaneuf, an adult educator, testified she taught defendant in GED classes at the Maui Community Correctional Center. Defendant was friendly and helpful. He had a “great mind,” and was interested in reading at a much higher level than a GED. Most of the students other than defendant were working at a very remedial level, and defendant would assist Phaneuf with those students so that they could pass their GED exams. Defendant was not shackled or handcuffed during class, but Phaneuf had no fear of him.

Defendant was always cordial to other inmates, as well as to custodial officers who would walk through the classroom, and was a calming influence in the classroom. Phaneuf had corresponded with defendant since he left Maui, and assisted him on several stories defendant had written. She described defendant as a “gifted writer.” Dominic Bagarozzi testified he met defendant while they were both incarcerated at the Orange County jail in about August 1994. Bagarozzi agreed with counsel that at that time Bagarozzi was “a bad guy who had given up” and who had a drug problem.

Bagarozzi and defendant were dayroom partners in administrative segregation, and knowing defendant made Bagarozzi a better person and changed his outlook on life.

Bagarozzi had appeared on television and in film as a child, and wanted to return to that profession but did not think it was “cool.” Defendant told him he could do anything he wanted to do, and while he could be a convict and stay in prison for the rest of his life, “it would be more of a challenge to try to achieve my goals.” Bagarozzi was now out of jail, and in the past few months had appeared on Ally McBeal, a television pilot with Sam Elliott, and in a television commercial. Jean Bagarozzi, Dominic’s mother, testified that when her son went to jail, he was a drug addicted, angry, and immature person.

After he was placed in administrative segregation and met defendant, he began to “talk sense,” and Jean heard about defendant and the advice he gave her son. Dominic followed defendant’s advice, and he was now an employed, mature, and drug-free person. Charles Quesnel testified he met defendant in February 1993 while incarcerated in Hawaii. Quesnel had a history of drug and alcohol abuse, and defendant encouraged him to attend AA and NA meetings, and a self-awareness class.

As a result of defendant’s influence, Quesnel, who had previously been in and out of custody apparently because of his drug usage, had been clean for over five years. Jimmy Ekstrom testified he met defendant in March 1993 while serving six months for vehicular manslaughter in the Maui Community Correctional Center. Ekstrom had never been in custody before, and was frightened. Defendant talked to him about how to get along with other inmates and the guards, and had his sister, Elena, give Ekstrorii money so that he could purchase items at the jail store.

Defendant also encouraged Ekstrom to attend GED classes and helped him with the assignments. Mark White testified that he met defendant while he was incarcerated on Maui pending trial on a robbery charge. When White arrived, he went through withdrawal from heroin and cocaine. After he was brought to the general population he was still sick, and defendant would talk to him, bring him sweets which White craved, and share cigarettes. Defendant also helped White get along with the other inmates. White never saw defendant argue with anyone, and he once was able to calm an aggressive inmate who was upset at White.

Defendant encouraged White to attend NA and AA meetings. White was struck at the meetings by how defendant shared from his heart his experiences, and White subsequently continued his involvement in the NA and AA programs when he went to prison. Lynn Pendzik, a retired schoolteacher, testified she began to correspond with defendant while he was incarcerated in the Maui Community Correctional Center. After several months, defendant asked her to visit, and the two became friends. Once while defendant was on trial in Hawaii he refused a visit with Pendzik.

Defendant subsequently wrote to her: “Remember during the trial when it was at the most horrible testimony? You came up that weekend and I refused your visit. Do you know why I did that? I did it because I was utterly appalled by what they had shown in court and that I was responsible for it. And I hated myself, and I felt that you certainly must hate me. I was ashamed and I did not want to face you.” b. Expert testimony Dr.

Roberta Falke, a clinical psychologist, testified that she was asked to observe the nature of the relationship between defendant and his son Robbie, and defendant’s ability to parent effectively while incarcerated. Falke had visited defendant in jail about every other week for two years. She had spent about 70 hours with defendant and 50 hours with Robbie. On four occasions Falke had also taken Robbie to visit defendant and observed their interaction. Defendant and Robbie were separated by glass and spoke to each other on the telephone.

In addition, Falke met with Laura and Jack McFarland, Robbie’s grandmother and her husband and Robbie’s custodians, defendant’s sister Elena, Robbie’s biological mother Gina Stevens, and Gina’s mother Bernice. Dr. Falke believed defendant and Robbie had a strong relationship. Defendant knew a great deal about what Robbie was studying in school, what problems he was having in school, and what his special needs were. Robbie had been attending the Sylvan Learning Center before Falke was hired, and defendant requested that she meet with individuals there and take notes about what Robbie was working on.

Defendant then requested Falke facilitate contact between the Sylvan tutors and Robbie’s school teachers so they could coordinate their efforts. Falke became defendant’s arms and legs in the community, and he “constantly” kept her running on issues concerning Robbie’s academics. Defendant was also concerned about Robbie’s low self-esteem. He sought Dr. Falke’s advice as to what to say to Robbie when he made self-deprecating remarks, and Falke advised defendant about techniques for speaking with Robbie in other situations. Dr.

Falke opined that defendant was a “remarkable” parent because of his “unflagging devotion.” “[T]hat man put me to work for his son, and I barely got a break.” In her view, defendant was at the top of the list of individuals who were important to Robbie in terms of support systems, and it was essential their relationship continue. Dr. Kara Cross, a clinical psychologist and Robbie’s therapist, testified that when she began to treat Robbie about three years earlier, when he was about 10, he was very depressed, had learning disabilities, and had an adjustment disorder.

The treatment plan was to incorporate Robbie’s relationship with defendant, which was the “strength” in Robbie’s life that affected him the most, and use that relationship to help Robbie overcome depression and learn better coping skills. Cross gave Robbie assignments to complete with defendant from workbooks designed to improve psychosocial communication within a family. Defendant would frequently telephone Cross and tell her how he had addressed a particular assignment and ask if he had done it correctly and how he could do it better next time.

Although contact visits were generally not allowed, Cross was able to arrange a 30-minute contact visit between defendant and Robbie. After that visit, Robbie was a changed child; he was animated and would reach out and touch others in a teasing manner. Cross opined that defendant’s relationship with Robbie was the “bedrock of Robbie’s emotional stability,” and that it was vital that the relationship continue. Father John McAndrew, a Roman Catholic priest, testified that he was a recovering alcoholic, and about a third of his ministerial time was devoted to working with individuals in recovery.

McAndrew testified that blackouts are often symptomatic of the disease of addiction. McAndrew had experienced alcoholic blackouts, and was ashamed of things he was told he had done during them. Father McAndrew knew defendant, and had visited him many times at the Orange County jail. McAndrew gave defendant assignments to complete with regard to a 12-step program, and was defendant’s only regular contact for an alcohol or drug recovery program. McAndrew was aware that about a year and a half earlier defendant had been found to be under the influence of heroin in jail.

It is much harder to return to a recovery program after a relapse, and so when an individual returned, that told McAndrew “there is a willingness there.” McAndrew found defendant inspirational, and believed he had “an awful lot to offer to other people in recovery.” Dr. Stalcup testified as a specialist .in addiction medicine in a manner similar to his testimony at the guilt phase.

In addition, he testified that a blackout is referred to as “anterograde amnesia,” which means that “from the time of onset of the drug until the time the drag effect wears off, there is no recording in memory of the events that happened during that time.” “[TJhere’s immediate memory,” and “[tjhen you have long-term memory, which is where things are stored. There is a transfer step, and alcohol and tranquilizers and barbiturates block the transfer step.

So immediate memory is happening, but it’s not written down in permanent memory.” Acts performed during a blackout are immediately remembered and intentionally done, such as walking down a beach, seeing the waves, and hearing a seal bark, but are not recorded. In mild blackouts, individuals have brief images in their minds of what they were doing. In moderate blackouts, individuals wake up the next day and cannot remember what they did the previous day. In severe blackouts, individuals cannot remember what they are doing now.

Generally, to have a blackout, one has to drink enough to appear and know one is intoxicated. Dr. Stalcup also agreed with the prosecutor that there are individuals who would try to counter dysphoria by sexually causing suffering in others. 3. Rebuttal evidence Dr. Park Dietz, a clinical professor of psychiatry and biobehavioral sciences at the University of California at Los Angeles School of Medicine, testified.

He had reviewed defendant’s testimony in this case, crime scene and witness reports of the crimes, witness and background statements, and crime scene and autopsy photographs from the Deeble and Delbecq homicides. An alcohol blackout is the term “used to refer to loss of memory during periods of intense drinking, especially among people who are very heavy chronic alcohol users.” A blackout is a period of time “for which an individual no longer has the memory because while they were doing what they were doing, their brain did not permanently record the information into” long-term memory.

Assuming defendant committed both murders, and that he now had no memory of either homicide because of the effect of alcohol, this would mean that he “is now in a blackout for both homicides.” Dr.

Dietz added, “But it doesn’t tell us anything about his mental state at the time of the homicides except that he was drunk.” He also opined, “looking at what happened in each homicide, . . . that shows if intoxicated he wasn’t too intoxicated to engage in a very orderly sequence of complicated behaviors.” These included the “things done to gain access to each victim, to do things to the victims and their property and to leave the scene.” Dr.

Dietz agreed with the prosecutor that “the blackout does not affect his mental state while he was perpetuating the acts,” noting that the “blackout doesn’t begin until later.” The blackout “begins at least seconds after each action, maybe minutes, but the blackout is what he is later in. It is not something he is in while he is doing it.” Dr. Dietz agreed with the prosecutor that “the blackout simply means that short-term memory has not been recorded into long-term memory.” Dr. Dietz stated: “[A]s he is committing the homicides, ... he is behaving intentionally [and] voluntarily.

He knows where he is, what he- is doing, who he is with, why he is engaging in each action, what he wants to do next, which things please him and which things don’t. . . . Now, he may not know what he did five minutes ago or ten minutes ago. He may be in a blackout already for those. But for what he just did and what he is going to do next, he is not in any blackout at all. He is right there in the present tense in the moment doing as he pleases.” Dr.

Dietz agreed with the prosecutor that the circumstance that defendant placed a comforter over Delbecq’s window demonstrated that “at that moment he knows what he is doing is wrong. He is trying to hide it from the outside world.” H. Discussion A. Pretrial Issues 1. Asserted Wheeler error Defendant contends that the prosecutor exercised a peremptory challenge in a discriminatory manner to exclude a Black prospective juror in violation of his rights under the Sixth, Eighth, and Fourteenth Amendments of the federal Constitution, and

article I,

section 16 of the state Constitution. (Batson v. Kentucky (1986) 476 U.S. 79, 89 [90 L.Ed.2d 69, 106 S.Ct. 1712]; People v. Wheeler (1978) 22 Cal.3d 258, 272, 276-277 [148 Cal.Rptr. 890, 583 P.2d 748].) We agree with the trial court that defendant made no prima facie showing that Prospective Juror M.M. was challenged because of her race. a. Factual background On Prospective Juror M.M.’s questionnaire, when asked her general feelings about the death penalty, she responded: “I’ve thought about it on a personal level without coming to a conclusion as to whether society should or should not have the death penalty.

As the law now states we have it so therefore I am prepared to obey the law of the land. On a personal level I will continue to ponder.” On voir dire, the prosecutor read part of this response, and asked M.M., “Have you resolved that issue in your own mind since you [have] been here the last few days?” She responded, “Not really.” The prosecutor asked no other questions and passed M.M. for cause. The defense accepted the panel, and the prosecutor exercised a peremptory challenge against M.M. Defense counsel made a Wheeler motion.

Counsel stated that Prospective Juror M.M. was Black, there appeared to be only two Black prospective jurors in the panel, and only one Black woman, who was Prospective Juror M.M. He also observed that M.M. “clearly passed for cause.” The court found no prima facie case of discrimination, stating that it had not seen anything to indicate the prosecutor excused the prospective juror because of her race. b. Analysis The use of peremptory challenges to exclude prospective jurors based on race violates both the federal and state Constitutions. (People v.

Bonilla (2007) 41 Cal.4th 313, 341 [60 Cal.Rptr.3d 209, 160 P.3d 84].) “There is a rebuttable presumption that a peremptory challenge is being exercised properly, and the burden is on the opposing party to demonstrate impermissible discrimination.” (Ibid.) To do so, the following procedure applies; “First, the defendant must make out a prima facie case ‘by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.’ [Citation.] Second, once the defendant has made out a prima facie case, the ‘burden shifts to the State to explain adequately the racial exclusion’ by offering permissible race-neutral justifications for the strikes. [Citations.] Third, ‘[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.’ ” (Johnson v.

California (2005) 545 U.S. 162, 168 [162 L.Ed.2d 129, 125 S.Ct. 2410], fn. omitted.) Although the trial court here used the since disapproved “strong likelihood” standard, “[r]egardless of the standard employed by the trial court,” we independently review the record and determine whether it “supports an inference that the prosecutor excused a juror on the basis of race.” (People v.

Cornwell (2005) 37 Cal.4th 50, 73 [33 Cal.Rptr.3d 1, 117 P.3d 622].) Here, to establish a prima facie case, defense counsel merely asserted that Prospective Juror M.M. was Black, and that there appeared to be only one other Black prospective juror. That is insufficient. (People v. Box (2000) 23 Cal.4th 1153, 1188-1189 [99 Cal.Rptr.2d 69, 5 P.3d 130]; see People v. Bell (2007) 40 Cal.4th 582, 598, fn. 3 [54 Cal.Rptr.3d 453, 151 P.3d 292] (Bell).) On appeal, defendant asserts that the prosecutor asked Prospective Juror M.M. a single question.

Under certain circumstances perfunctory voir dire can be indicative of hidden bias. (Bell, supra, 40 Cal.4th at p. 598.) Here, however, the prosecutor’s question focused on M.M.’s ambivalence about the death penalty, which she confirmed on voir dire remained unresolved. Contrary to defendant’s assertion, this inquiry does not constitute “powerful circumstantial evidence that the challenge was exercised upon a prohibited race basis.” Moreover, before voir dire, M.M. had completed a 14-page questionnaire containing 38 questions with subparts. (People v.

Dement (2011) 53 Cal.4th 1, 20-21 [133 Cal.Rptr.3d 496, 264 P.3d 292] (Dement) [relying on circumstance that before voir dire, the prosecutor had reviewed a 21-page questionnaire containing 87 questions with subparts filled out by each prospective juror to reject claim that the prosecutor’s limited or no individual questioning of challenged prospective jurors created an inference of discrimination]; Bell, supra, 40 Cal.4th at pp. 598-599, fn. 5 [noting the trial court’s comment that “ ‘when you have a questionnaire, it can never be a perfunctory examination’ ”].) “Under these circumstances, we place little weight on the prosecutor’s failure to . . . more thoroughly question a prospective juror before exercising a peremptory challenge.” (Dement, at p. 21.) Defendant also asserts that the prosecutor’s single question to Prospective Juror M.M. must be'contrasted with the prosecutor’s more detailed questions to Caucasian prospective jurors.

The racial identity of each prospective juror is not in the record. Moreover, although it is true that the prosecutor questioned some prospective jurors at greater length than he did M.M., he also engaged in perfunctory questioning of other prospective jurors, and at times declined to ask any questions at all. The record therefore provides no indication that there was any discernible racial pattern to the prosecutor’s questioning. 2.

Denial of motion to dismiss the panel Defendant contends the trial court erroneously denied his motion to dismiss the panel in violation of his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the federal Constitution, and

article I, sections 15 to 17 of the state Constitution. We disagree. a. Factual background At the outset of Prospective Juror RB.’s voir dire, which was conducted in front of other prospective jurors, the trial court observed that R.B. was a peace officer, and asked, “[C]an you be an objective juror in this type of case?” R.B. answered: “I am very fair. I can be objective, but ... I am a correctional peace officer, so ... I know a lot of murderers. I have dealt with a lot of people who have been convicted of murders, and I have seen a lot of people who are there ... for death or 25 to life.

And since I think I filled the questionnaire out... I sit at nighttime thinking about it. I deal with all these people, and . . . they are hard to deal with if they just have life, you know, because they are still affecting people. . . . [TJhere are still victims inside correctional institutes . . . and prisons. But I see there are some people that can be in for life and they are fine, you know. It is hard because I have to deal with it.

The thing we just had a few weeks ago someone in for 25 to life that beat one of us officers to death.” The trial court asked if the incident happened inside the California Youth Authority (CYA), and Prospective Juror R.B. responded: “Yeah, out there in Chino. So that is hard to deal with because I think that gentleman, young man, he is 24, 25, he . . . beat someone to death. So there is another victim he created while he was in. So it is hard to say, but I could make that decision. ... I don’t know what else to really say. I would have to listen to everything, hear everything.

And if ... he is found guilty, then it would be hard not to go for the death penalty, very hard because again I see the people that are locked up. I deal with hundreds of them that are in for life, and I know what it is like in there. And I know that it is a lot easier than these people know ... it is not as bad as what these people think it is.” The trial court said, “[T]hat is a different view.” Prospective Juror R.B. continued, “See, I am in there. I am locked up every day with them, and what society sees and what people. . . .” The trial court then cut R.B. off and said, “Let’s stay to the bottom line.

Can you be an objective juror in this case if you get to a penalty phase?” R.B. answered that he would have to listen to everything. When asked if he could conceive of voting for life imprisonment without the possibility of parole in this case, R.B. assured the court, “I would have to listen to the attorneys. I wouldn’t say I would automatically jump to [a] conclusion. I don’t jump to conclusions.” The trial court said: “There is another problem. One, we’re not talking about the California Youth Authority here. We are talking about other places.

And it wouldn’t be proper for you to educate the jurors in the jury room what it is like to be incarcerated in a state prison. I know what the Youth Authority is, okay? I am not educating the jury either. [B]ut do you understand what I am saying? You would have to keep those thoughts to yourself?” R.B. said, “Exactly.” Subsequently, outside the presence of the prospective jurors, defense counsel

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