THE PEOPLE, Plaintiff and Respondent, v. JUSTIN JAMES MERRIMAN, Defendant and Appellant, 60 Cal. 4th 1

Opinion CANTIL-SAKAUYE, C. J., In 2001, a jury convicted defendant Justin James Merriman of the 1992 first degree murder of Katrina Montgomery (Pen. Code, § 187, subd. (a)), and found tme the special circumstance allegations that the murder was committed while defendant was engaged in the commission of rape and oral copulation (§ 190.2, subd. (a)(17)(C), (F)), and the allegation that defendant personally used a deadly weapon (former § 12022, subd. (b)).

The jury also convicted defendant of numerous noncapital crimes that occurred subsequent to the murder, including multiple counts of sexual assault and witness dissuasion. After a penalty phase trial, the jury returned a verdict of death. Defendant moved for new trial (§ 1181), and for modification of his sentence to life without the possibility of parole (§ 190.4, subd. (e)). The trial court denied the motions and sentenced him to death. Defendant’s appeal is automatic. (§ 1239, subd. (b).) For the reasons that follow, we affirm the judgment. I. Facts A, Guilt Phase Evidence 1. Prosecution evidence a.

The murder of Katrina Montgomery i. Katrina’s prior interactions with defendant Katrina Montgomery was 16 years old in 1989 when she started dating Mitch Sutton, one of the founding members of a Ventura County White supremacist gang called the Skin Head Dogs (SHD). Defendant, who also was 16 years of age at that time, belonged to the same gang. Sutton brought Katrina along to SHD parties where she socialized with his fellow gang members and their wives and girlfriends, some of whom became close friends of hers. Early in Sutton and Katrina’s relationship, Sutton enlisted in the Army and was sent to Germany.

Katrina moved to Germany for eight months to be with him. By the time Sutton returned from his three years of military service in 1992, he and Katrina had broken up. On his return, Sutton officially left the SHD gang, although he continued his friendship with defendant. Meanwhile, between January 1990 and March 1992, Katrina was corresponding and conversing with defendant on a regular basis while he was in custody in various juvenile detention facilities and in state prison.

In the beginning, defendant’s letters encouraged Katrina to “stick with Mitch Sutton” and he asked her to send him “neat pictures” of herself. Defendant’s subsequent letters, which sometimes referenced Katrina’s breakup with Sutton, became more sexually explicit and suggested that he believed Katrina was interested in him.

In August 1990, for example, defendant mentioned a photograph Katrina had sent him, indicating that he wanted to “play with the toys you must have under that buttercup suit.” In February 1991, defendant asked Katrina for more photographs “of.. . your fine self so I have something to drool over and think about touching up one great day.” In March 1992, defendant wrote to Katrina after she had visited him in prison, saying, “You know deep down inside you enjoy[ed] saying I was ‘your’ long lost locked-up hubby . . . , secret lover but a real faithful ‘boyfriend.’ ” In the same letter, defendant apologized for his “crude and rude but lewd sexual gestures” during the visit and promised next time “not to toss you around like one of them blowup sex dolls.” From these and defendant’s other letters it can be inferred that Katrina had sent defendant revealing photographs of herself, and that she had had physical contact with him during a prison visit.

But the correspondence also suggested that Katrina had told defendant she wanted to resume her relationship with Mitch Sutton and that she considered defendant only a friend, which were sentiments that appeared to both confuse and anger defendant. For example, in March 1992, shortly before defendant’s release, he wrote “That shit about you need me for a friend just doesn’t cut the mustard anymore,” and he confronted Katrina with his suspicion that she was using him as a means of reigniting her relationship with Sutton.

Defendant also wrote, “I’m burned on the third-grade game and the thought of you trying some kind of snake move like there’s something you have to gain but you’re stringing me along until the time’s right . . . .” Later in the same letter, defendant stated, “I feel you’re up to something and it sure isn’t me . . . .” Notwithstanding Katrina’s apparent indications to defendant that she wanted to be his friend but not his girlfriend, defendant had communicated to others that he was interested in her.

According to Scott Porcho, one of SHD’s founding members and a friend of both defendant and Katrina, it was common knowledge that defendant expected Katrina would be his girlfriend after he was released from prison. Porcho’s wife at that time, Apryl, also was close to Katrina. She knew that Katrina did not want to become involved with defendant. Shortly after defendant’s release from prison in the spring of 1992, Katrina and a high school girlfriend drove in Katrina’s truck to defendant’s home in Ventura where he lived with his mother and sister.

Katrina went inside to “straighten out a couple of things” while her friend waited in the truck. When Katrina returned, there were red marks around her neck and she said defendant had attacked her. Katrina told her friend she was angry not only with defendant but also with defendant’s mother, who had witnessed the attack and done nothing to help her. The prosecutor presented evidence at trial that Katrina disclosed to her mother another incident at defendant’s house after his release from prison, during which he had forced himself upon her. According to Mrs.

Montgomery, Katrina told her that she had gone to visit defendant in Ventura. When the evening grew late, defendant’s mother suggested to Katrina that she spend the night in their guestroom so that she would not have to drive all the way back to Los Angeles at that hour. Katrina accepted the offer and went to sleep in the guestroom but later was awakened by defendant, who had climbed into bed with her and was making sexual advances.

When Katrina asked defendant to stop, he refused, saying, “You know you want it.” Katrina told defendant she felt sick and needed to use the bathroom, and he did not prevent her from getting up. Instead of going to the bathroom, however, Katrina ran from the house, got into her truck, and drove away. When defendant realized she had fled, he went outside and ran after her, yelling angrily. The prosecutor also presented evidence that the incident in the guestroom was not the first time defendant had forced himself upon an unwilling partner.

According to a former girlfriend, Corie G., when defendant was 15 years old, he held her against her will in the camper shell of a pickup truck until she submitted to having sexual intercourse with him, notwithstanding that she repeatedly attempted to leave and was yelling for her friends to help her. ii. Thanksgiving weekend party at the Torchos’ house Katrina spent most of Thanksgiving Day, Thursday, November 26, 1992, celebrating the holiday with her family in Los Angeles. She had plans to meet her parents at another family gathering in Santa Barbara on Saturday, November 28.

On Friday, Katrina left Los Angeles in her truck in the late afternoon to attend a party at the North Oxnard home of SHD gang leader Porcho and his wife, Apryl. The couple had invited Katrina to spend the night at their house and she had brought with her an overnight bag in addition to her purse. According to Porcho, Katrina was one of the first guests to arrive at the gathering, and she was already drunk at that time. Several other SHD gang members and their wives and girlfriends attended the party. SHD founding member Mike Wozny drove his girlfriend and defendant to the gathering.

Although defendant was not one of SHD’s original members, he had joined the gang when he was 14 years old and, now 20 years of age, was considered a leader by the gang’s younger members. Other partygoers included members of a White supremacist gang called the “Sylmar Peckerwood Family” (Sylmar Family). The SHD and the Sylmar Family were on very friendly terms, almost “like one gang.” Five of the Sylmar Family members who came to the party, including Ryan Bush and 16-year-old Larry Nicassio, lived together at a “crash pad” in Sylmar.

Partygoers gave varying accounts regarding the interactions between defendant and Katrina during the evening. Bush saw them hugging and joking with each other about sexual matters. Nicassio noticed that they were initially interacting normally but after a while seemed not to be getting along. According to Porcho, however, defendant did not want Katrina anywhere near him and had asked Porcho to keep her away. Defendant twice summoned Porcho to remove Katrina from his side. On one of those occasions, Katrina had her arm around defendant.

Everyone at the party was drinking alcohol throughout the evening, and some of the partygoers smoked marijuana and ingested LSD. Several arguments and fights occurred. For example, defendant kicked a member of the Sylmar Family in the face for disrespecting their hosts by shaking a can of beer and spraying its contents around the kitchen. At one point during the evening, defendant said to Nicassio that he wanted Nicassio to “get” Katrina and handed Nicassio a steak knife. Nicassio did not take defendant seriously and put the knife down.

According to Nicassio, it was common for the older gang members to tease and play jokes on him because he was only 16 years old. A short time later, however, defendant approached Nicassio and again gave him a steak knife, saying, “We’re gonna get that bitch, you’re gonna do it.” Nicassio again discarded the knife, thinking defendant had to be joking. Defendant handed Nicassio a knife a third time while they were socializing with others in the kitchen and said, “This is the last one I’m giving you. You’re gonna do it.” Nicassio was standing behind Katrina as she sat on a kitchen chair.

To make everyone laugh, he held the knife above Katrina’s head and imitated the lead character in the movie Psycho. He then discarded the knife. During the party, Bush saw defendant and Katrina playfully wrestling on the bed in one of the bedrooms. At first, Katrina was giggling when defendant tried to kiss her. However, when Katrina told defendant to stop and he did not, she became angry and started yelling. The party’s hosts heard someone yelling from one of the bedrooms, but their recollections differed as to what they observed on entering the room.

According to Porcho, Katrina was lying on the bed holding her stomach as if she had been punched, with defendant and a number of Sylmar Family gang members standing around her in a semicircle. By contrast, Apryl saw Katrina with only defendant, Bush, and Nicassio, one of whom was holding her down on the bed. Apryl walked Katrina out of the room and took her car keys away from her because she was intoxicated. Porcho and defendant exchanged words over the incident.

After Apryl left the house to drive a partygoer home, defendant and Porcho went to the kitchen and continued their argument about the incident in the bedroom. It was now sometime after 2:00 a.m., and most of the partygoers had departed. According to Nicassio, when defendant said something to the effect that he was going to “get” Katrina, Porcho responded, “You’re not going to fuckin’ touch her,” and then hit defendant on the forehead with a 40-ounce beer bottle. Defendant’s head was bleeding from the blow. Katrina went with defendant to the bathroom where she attended to his wound, cleaning it with a washcloth.

Nicassio was standing in the doorway. While Katrina stood over the sink washing up, defendant pointed to her and silently mouthed to Nicassio, “Are you gonna do it or what? Do it now, do it now.” As before, Nicassio thought defendant was joking with him. Later, as defendant stood outside the house smoking a cigarette, he told Bush, “I’m gonna get that bitch.” When Apryl returned after driving a guest home and saw the mess defendant and her husband had made during the fight, she decided everyone had to leave.

By now, all of the other Sylmar Family members had left the party, and defendant offered to let Bush and Nicassio sleep at his house. Apryl drove the three of them to that destination around dawn. Defendant led Nicassio and Bush upstairs to his bedroom and gave them some blankets, directing them to sleep on the floor at the foot of his bed. While Apryl was driving back to her home after having dropped off the group at defendant’s house, defendant called the Porcho residence and asked to speak with Katrina. Porcho refused to put her on the line.

By the time Apryl returned home, however, Katrina had showered, changed her clothes, and was talking with defendant on the telephone. Apryl picked up another receiver, told defendant to go to sleep, and ended the call. Defendant called back again asking for Katrina but Apryl hung up on him, which upset and angered Katrina. A heated argument ensued, during which Katrina demanded the keys to her truck and angrily accused Apryl and Porcho of trying to run her life. After Katrina and Apryl had argued for about 30 minutes, Apryl retrieved Katrina’s keys and threw them at her.

When Katrina left, Apryl believed she was driving home to Los Angeles. Instead, Katrina went to defendant’s house. According to Nicassio, when Katrina came into defendant’s bedroom, she no longer seemed intoxicated. Shortly after her arrival, she left the room to change into shorts and a T-shirt, and then got into bed with defendant.

Soon after Katrina got into bed, defendant straddled Katrina’s shoulders with his knees, saying, “Come on, just do it.” Katrina protested, “No, not with them in the room.” Defendant responded by smacking her in the face, saying “Do it now, bitch.” As Katrina was being forced to orally copulate defendant, neither Bush nor Nicassio intervened. Nor did they try to stop defendant when he got on top of Katrina and had intercourse with her, notwithstanding that she was pleading with him to stop because he was hurting her.

As Nicassio explained, he failed to do or say anything because he had seen defendant hurt people and he was afraid of him. Bush likewise feared defendant. Bush looked away as the sexual assault moved closer to the side of the bed. When he finally spoke up, he. asked defendant, “What are you doing, man?” Defendant replied, “What the fuck do you think I’m doing.” At one point, defendant left the bed to get a bottle of lotion. After rubbing some of its contents on Katrina’s genital area, he resumed intercourse with her.

Katrina had started crying and continued begging defendant to stop, saying she did not want to get pregnant. Defendant got off of her, said, “There, you’re pregnant,” and again forced her to orally copulate him, this time pushing her onto the floor at the foot of the bed while he dangled his legs over the edge. With Katrina now positioned only a couple of feet away from where Nicassio and Bush were lying down, defendant asked them, “Hey, do you guys want some of this?” Nicassio just looked away, and Bush responded, “No.” A short time later, Katrina asked to use the bathroom.

Defendant refused, telling her to use a trash can that he put down on the ground next to her. Nicassio finally spoke up to defendant, saying, “Why don’t you just let her use the restroom?” When defendant said, “All right,” Katrina retrieved her overnight bag and put her clothes back on. As she was kneeling down to tie her shoes, defendant came up alongside her with a knife and stabbed her in the throat. Katrina was crying and holding her throat, begging defendant not to hurt her, but the attack continued. Defendant covered Katrina with a blanket.

He then retrieved a crescent wrench from his top drawer, kneeled down next to her, and struck a blow to her head. Katrina was still alive but her breathing became loud and labored. Defendant then grabbed her by the hair, asking, “Where is her jugular?” He then slit her throat with a knife, and rolled up the body in blankets and sleeping bags.

At one point during the assault, while Katrina was still alive, Nicassio suggested they call an ambulance and assured defendant that Katrina would not say anything because “she’s afraid of you.” Defendant disagreed, saying, “She’ll rat on me.” Instead, he called the Porcho house, asking if Katrina was there and telling them that she had never showed up at his place. After the killing, when Nicassio and Bush started pacing around the room in a panic, defendant angrily warned them, “You better not fuckin’ say nothing” and “You’re part of this, too.” Nicassio tried to leave, promising not to say anything.

But defendant stood between him and the bedroom door holding the knife and told him, “No, you’re not fuckin’ going anywhere.” He then ordered Nicassio and Bush to help him cover up the crimes, telling them that “[i]f we got caught... we would all go down.” Fearing retaliation from defendant and other gang members if they refused, Nicassio and Bush complied with defendant’s command. At defendant’s direction, Nicassio drove Katrina’s truck to the front of the house.

Meanwhile, Bush helped defendant carry the body downstairs and loaded it into the back of the truck, along with a plastic sack in which defendant had placed the knife and wrench and some of Katrina’s belongings. According to Bush, blood was soaking through the blankets and he was concerned that defendant’s mother had seen them as they passed by her bedroom door on their way downstairs. Defendant assured Bush she would not say anything. Indeed, defendant’s mother did more than simply remain silent.

When defendant’s sister awoke that morning, she saw their mother on her hands and knees using rags and a pot of water to clean up blood that had stained the carpeting at the top of the stairs. Defendant’s sister helped with the cleanup until the stain was no longer noticeable. Defendant, Bush, and Nicassio then set about to further cover up the crimes. Nicassio drove the group in Katrina’s truck to Sylmar where he and Bush lived. Bush collected rags and paint thinner and borrowed a housemate’s truck, signaling Nicassio and defendant to follow him.

The two trucks ultimately stopped near a ravine in a rural area called Sunset Farms, where defendant and Bush unloaded the body, dragged it into a drainage pipe, and covered it with tumbleweeds and garbage. A short time later, they drove to Angeles Crest National Forest and stopped at a turnout. Bush, Nicassio, and possibly defendant wiped down the inside of Katrina’s truck with the paint thinner to destroy fingerprints. Bush then tried to roll the truck off the side of a hill, but he was unsuccessful and they simply abandoned it there, close to the turnout.

The group left the scene in the truck that Bush had borrowed from his housemate and went to a restaurant to discuss the situation. Pursuant to their plan, Nicassio and Bush drove defendant back to his house. While en route, defendant again warned each of them to “keep your fuckin’ mouth shut.” Nicassio and Bush then headed back to Sylmar. Before arriving home, they pulled off the freeway in an industrial area and threw the sack containing the murder weapons and Katrina’s overnight bag into a dumpster.

Two nights later, also according to plan, Bush and Nicassio returned to the site where Katrina’s body had been hidden in a drainage pipe so they could bury her. Bush dug a grave about five feet from the pipe while Nicassio kept a lookout. Meanwhile, Katrina’s mother was becoming increasingly concerned regarding her daughter’s whereabouts. Around 2:00 p.m. on the day after the Porchos’ party, she received a call from Apryl asking if Katrina was at home.

Several hours later, she received a call from the Los Angeles County Sheriff’s Department informing her that Katrina’s truck had been discovered over an embankment. Katrina’s purse was inside the cab and there was blood on the outside of the tailgate and in the truck bed. Later testing showed that the blood belonged to the biological child of Mr. and Mrs. Montgomery. Mrs. Montgomery immediately started calling family and Katrina’s friends, but none knew where she was. When Mrs. Montgomery spoke with Apryl again, Apryl told Mrs. Montgomery that she had not seen Katrina for several months.

But, in a telephone call to defendant about five hours later, Mrs. Montgomery learned that defendant had seen Katrina the night after Thanksgiving at the Porchos’ home. When Mrs. Montgomery confronted Apryl with that information a short time later, Apryl admitted that Katrina had been at her house. Thereafter, the Montgomery family reported Katrina missing and continued to search for her, distributing flyers and organizing search parties in Ventura and Oxnard and in the area where her truck had been abandoned. iii.

The investigation A police investigation into Katrina’s disappearance began almost immediately, and defendant was a suspect from the outset. When Porcho told fellow SHD gang member Wozny that Katrina’s truck had been found abandoned, Wozny left an anonymous message on a tip hotline saying defendant, Nicassio, and Bush might be responsible for Katrina’s disappearance. When detectives interviewed Porcho and Apryl at their home on the Sunday after Thanksgiving, they learned that Porcho had gotten into a fight with defendant for slapping Katrina.

When one of the detectives asked Porcho whom he should speak to in the event something had happened to Katrina, Porcho replied, “I’d talk to [defendant]. That’s all I’m gonna say.” Detectives went to defendant’s home the same day. A carpet cleaner who was finishing a job there told them he had been called to the house to clean a coffee spill. Defendant’s mother was nervous and asked the detectives whether they had a search warrant to go inside her home. They did not.

She eventually told the detectives that defendant had come home early Saturday morning with “a couple of boys.” Over the course of the next several days, investigators were able to obtain more information about some of the incidents at the Porchos’ party, including Katrina’s argument with Apryl and her abrupt departure from the house. But efforts by defendant’s mother, sister, and fellow SHD gang members to protect defendant by being untruthful, coupled with the SHD and Sylmar Family gangs’ strict code prohibiting interactions with law enforcement, hampered the investigation, which languished for years.

This is not to say that no one was discussing the crimes. The day after the killing, Bush told his older brother, also a gang member, what had happened to Katrina. A short time later, Nicassio gave his girlfriend at the time a detailed account of the incident. Defendant also spoke about the crimes.

Days after the killing, when defendant’s sister became aware of Katrina’s disappearance and confronted defendant about the blood on the stairs, defendant told her that she did not want to know and said he was “going to hell for sure for the things he had done.” About one month later, defendant mentioned to Nicassio that his mother had cleaned up the blood in his bedroom, and he sought confirmation from Nicassio that the body had been disposed of. As the investigation continued, some witnesses started coming forward.

For example, in July 1997, almost five years after Katrina’s disappearance, Apryl (now divorced and remarried) met with the prosecutor, telling him that defendant had called Katrina at the Porcho home and asked her to come to his house after the party. However, most of the individuals with knowledge of the case, including Nicassio and Bush, were not forthright with investigators, and many witnesses brought before a grand jury in November 1997 either failed to disclose what they knew or lied outright. No indictment was handed down.

The prosecution’s case quickly revived, however, when Bush, Nicassio, and Nicassio’s girlfriend were arrested in November 1997, one or two days after the first grand jury had failed to hand down an indictment. Nicassio’s girlfriend disclosed what Nicassio had told her about the crimes, and she urged Nicassio to likewise cooperate with the prosecution, which he eventually agreed to do in exchange for being permitted to plead guilty to voluntary manslaughter.

The prosecutor later received a letter from an incarcerated SHD gang member, John Crecelius, revealing a statement defendant had made while they were both out of custody. According to Crecelius, defendant expressed concern on learning that his “crime partner” or “buddy” had been arrested for raping and murdering “a girl that he had cut five years ago.” Defendant also had told Crecelius that he expected the police would be coming for him soon because he had a strong feeling that Nicassio “was gonna tell on him.” The wall of silence that had protected defendant for many years finally started to give way.

In exchange for an early release from prison, SHD gang member Wozny, who had called in the anonymous tip, agreed to drive defendant around in a “bait car” equipped with recording devices that would be monitored by police.

While in the bait car in December 1997, defendant solicited Wozny’s help in “getting” the Porchos’ housemate, John Cundiff, who defendant believed had “ratted on him.” When Wozny and defendant discussed the investigation into Katrina’s disappearance, defendant said he “wasn’t going to do any more time behind this.” Wozny attempted a second encounter with defendant in the bait car that same night, but decided to abandon the operation after defendant, with a box cutter in hand, patted Wozny down to see if he was wearing a wire.

Also in December 1997, a prison inmate named Christopher Bowen disclosed to investigators that defendant had asked him during casual conversation four years earlier whether he had ever killed anyone. When Bowen said no and asked defendant the same question, defendant told him that he had killed “Trina.” Defendant made other admissions after being taken into custody in January 1998 following an hours-long standoff with law enforcement that led to a number of separate criminal charges. (See post, pt.

I.A.1.c.) All of the incriminating statements were elicited surreptitiously and many, but not all, of them were the result of agreements between the prosecution and inmates who agreed to cooperate in exchange for leniency in their cases. For example, in April 1998, SHD gang member John Crecelius wore a wire while in a courthouse holding cell with defendant. Crecelius told defendant that Nicassio, who was his county jail cellmate, was going to reveal defendant’s involvement in the killing.

Defendant told Crecelius to beat up Nicassio, and expressed the opinion that Nicassio should take the “rap” for the crimes because he was the youngest. Also in April 1998, Kristin S. agreed to help the prosecution in its case against defendant. Specifically, she agreed to wear a wire during conversations with defendant’s mother, who wanted Kristin to request a jail visit with Nicassio at the same time defendant’s mother was visiting defendant so that defendant and Nicassio would be placed in the same visiting area and could communicate with one another.

Kristin had spoken with investigators after defendant’s arrest, telling them that in December 1997, the month before he was apprehended, defendant told her the police were looking for him and that he was afraid he would go to jail and “never get out.” Kristin also described an incident that had occurred several years earlier in which defendant, who was wearing only boxer shorts at the time, cornered her in a bathroom while he injected drugs and tried to get her to touch his penis.

When Kristin got upset and tried to leave, defendant told her to shut her mouth or he would “slit [her] throat like Trina’s.” Kristin decided to assist the prosecution because she hated defendant for what she claimed he had done to her on an even earlier occasion. According to Kristin, sometime in 1994 or 1995, defendant had kept her in his bedroom for two days without food and forced her to masturbate him for hours at a time while he looked at pornographic magazines.

As previously mentioned, Nicassio ultimately entered into an agreement with the prosecution, the terms of which required him to provide information regarding the location of Katrina’s body and assist in the ongoing investigation. Pursuant to that agreement, Nicassio directed investigators to the area where he and Bush buried the body, but the land had since been developed and they were unable to locate the body. Nicassio also wore a wire while interacting with defendant on a number of occasions.

During the first operation, Nicassio showed defendant an altered version of a probation report that falsely stated Nicassio had refused to cooperate with the prosecution. Defendant told Nicassio to continue refusing to cooperate and he wondered aloud who was talking to the prosecution. Many of the recorded conversations between Nicassio and defendant occurred in the jail visiting area, interactions that were made possible by Kristin’s participation in defendant’s mother’s plan to have Nicassio and defendant brought to the same visiting area at the same time.

During the first such visit, Nicassio asked defendant what would happen if Katrina’s body was found. Defendant replied, “If that shit comes out of the ground, we’ll both be going to L.A. County.” On another occasion, defendant suggested how they could explain away the presence of blood on the stairs in his house and in the bed of Katrina’s truck. The prosecution stepped up its efforts at obtaining an express admission from defendant by instructing Nicassio to inform defendant that Katrina’s body had been discovered.

During the visiting room conversation in which Nicassio gave defendant the “bad news,” defendant reacted by saying, “Oh, God,” but then told Nicassio not to believe the “trick.” If the body had been found, defendant said, “they would already have charged me.” Defendant repeatedly told Nicassio that he had to keep his mouth shut about Katrina being at defendant’s house, even when talking to his lawyer or at trial if he was charged, because it would drag defendant and Bush into it.

As defendant walked away upset and agitated, he turned back and approached Nicassio with his fists clenched as if to hit him, then turned again and left the visiting area. Defendant changed his approach with Nicassio several months later, after learning that his sister told investigators that she helped clean up blood on the stairs of their home and that she had been subpoenaed to testify at another grand jury proceeding.

Noting that his mother was “involved in this” because of the blood on the stairs, defendant told Nicassio that if Nicassio were to cooperate with police he should say that Katrina was taken out of the house over the “bridge,” that is, the catwalk leading directly to defendant’s room, and not through the main house. When Nicassio protested that he “didn’t do this and [didn’t] want to do the time for it,” defendant told him to stop saying that.

Defendant also told Nicassio that his claim of innocence was making him nervous, and he reminded Nicassio that Nicassio had “fuckin’ hauled that shit.” From the time of his arrest in November 1997, Bush had steadfastly refused to cooperate with the prosecution. Around the time defendant was indicted for murder in January 1999, however, he decided he no longer wanted to “live a lie” and agreed to tell investigators what he knew about Katrina’s disappearance. Like Nicassio, he led investigators to the general location where Katrina’s body was buried. b.

Sexual assaults subsequent to the murder Defendant was prosecuted for a number of other crimes in addition to the murder of Katrina, including sexual assault offenses against two other women. The following evidence was presented not only to support these sexual offense counts but also the murder charge and the rape-murder and oral-copulation-murder special-circumstance allegations. i. Robyn G. Robyn G. and defendant used drugs together and sometimes engaged in sex. One day between November 1994 and January 1995, defendant joined Robyn and others on the boat where Robyn was living at the time.

Robyn and her visitors were injecting heroin and methamphetamine. At one point, Robyn went downstairs with defendant into one of the boat’s bedrooms to use more drugs. After doing so, they started kissing. Defendant then started acting aggressively toward Robyn. When Robyn became uncomfortable and said she wanted to leave, defendant ordered her to sit on the bed. He then demanded that she orally copulate him. Robyn complied because she was afraid. Defendant was flipping through pornographic magazines while Robyn orally copulated him.

When she tried to leave, defendant called her names and kept her from getting off the bed. Defendant continued the sexual assault by forcing Robyn to have intercourse. At various points, Robyn communicated to defendant that she was sore and wanted to stop. Defendant responded by ordering her to assume different positions. At one point, defendant inserted a gun into Robyn’s vagina. The assault lasted two to three hours. ii. Billie B. Billie B. met defendant in 1988 when she started attending parties with her SHD gang member boyfriend, Mitch Buley.

In March 1992, Billie became involved with defendant after having split up with Buley, who was then in prison. Defendant directed her not to tell Buley about them, or he would hit her. Billie did not attend the Thanksgiving weekend party at the Porchos’ house in 1992, but she learned from her roommate, SHD gang member Wozny, that Katrina was missing. When defendant called Billie’s house on the Sunday after Thanksgiving, Wozny told him to “ ‘not call here anymore.’ ” Defendant showed up at the door a short time later anyway, but Wozny would not let him inside.

During this period of time, Billie’s relationship with defendant started to change, and defendant became increasingly violent and sexually abusive. For example, sometime after August 1994, defendant was visiting Billie in her new apartment when her former roommate Wozny knocked on the door. Not wanting Wozny to know he was alone with Billie, defendant pushed Billie down in the hallway to prevent her from letting Wozny inside. Defendant then forced Billie to orally copulate and masturbate him by repeatedly pushing her head and hand to his penis. Defendant would not let Billie stop or leave.

The incident lasted for several hours. Billie’s subsequent sexual encounters with defendant sometimes started as consensual vaginal intercourse but then turned assaultive. An incident occurring at defendant’s house between August 1994 and January 1995 is illustrative. After Billie and defendant had engaged in intercourse for four or five hours, Billie indicated that she wanted to stop because she was tired and he was hurting her. At one point she had started to bleed from her vagina. Defendant told her to shut up and continued having intercourse.

When he was finished, he became enraged at Billie for having stained his sheets with blood and he dragged her downstairs by the hair to the laundry room, calling her “sick” and angrily disparaging her. On many occasions, defendant’s sexual assaults on Billie were not preceded by consensual sex. Between August 1994 and January 1995, for example, defendant repeatedly forced Billie to orally copulate and masturbate him for hours at a time while he looked at pornography, using the weight of his body to keep her from leaving.

In an incident that occurred in Billie’s apartment in October or November 1995, defendant kept pulling Billie onto the couch and shoving her hand into his pants. The more she resisted, the angrier defendant became. Billie finally left the couch and went into her daughter’s room, trying to avoid defendant. Defendant followed her in and tackled her to the floor. Billie explained that she did not resist having intercourse with defendant at that time because she was afraid he would hurt her if she did not submit. c.

Standoff with police prior to arrest As previously mentioned, defendant was taken into custody in January 1998 after an hours-long standoff with police officers. The prosecution charged defendant with a number of crimes in connection with the incident and also argued at trial that defendant’s conduct evidenced his consciousness of guilt concerning the murder count. The evidence showed the following events.

Ventura County Sheriff’s Deputies Howe and Miller were patrolling a high-crime area in Ventura on a Friday night in late January 1998 when they saw two bicyclists, defendant and a woman, riding without headlights. The officers pulled alongside them, but defendant ignored Officer Howe’s repeated orders to stop and continued riding. Officer Howe gave chase on foot, joined by other officers who were nearby at the time. Meanwhile Officer Miller pursued defendant in the patrol car, cornering him several blocks away. He grabbed defendant by the shirt, but defendant managed to break free.

Other officers joined the chase on foot through a vacant lot, shouting for defendant to stop. They stopped abruptly after one officer yelled, “Gun!” Defendant had pulled out a revolver and was holding it to his own head, warning the officers not to approach or he would shoot himself. Defendant then walked to a chain-link fence in a dark area of the lot, climbed over it, and ran to the house where his girlfriend at the time, Annette Berryhill, was visiting Janette Trembley-Rail.

When defendant arrived, he banged on the door, yelling, “Let me in, you gotta let me in, there’s cops all over the place.” Berryhill opened the door but did not remove the chain lock. Defendant pushed his way inside and ran into Trembley-Rail’s bedroom. When Trembley-Rail told defendant to leave, he refused and ordered her to do as he said. According to Trembley-Rail, defendant was agitated, hostile, and out of breath, and he was holding a triangular object under a dish towel. Meanwhile, police had surrounded the house.

When defendant began to barricade himself inside by moving furniture, throwing items around, and trying to cover the windows with blankets, a SWAT team was called in. Berryhill distracted defendant long enough for the other people in the house, including Trembley-Rail, Trembley-Rail’s daughter, and young granddaughter, to escape. Berryhill eventually exited the house through a window, telling officers at a command post that defendant was not coming out. After a seven-hour standoff, when all attempts at communicating with defendant had failed, officers fired tear gas into the house.

At one point, defendant opened the front door coughing and gagging, took a breath of fresh air, and went back inside. He did the same thing a second time. Defendant ultimately left the house blinded by the tear gas and crawling on all fours. Officers approached defendant to apprehend him, but saw that he was holding a knife and slashing with it in the direction of any noise. The officers backed off and tried to subdue defendant with rubber bullets, which did not have the desired effect. Defendant then crawled back into house. A short time later, defendant opened the door and emerged from the house again.

As before, officers approached to place him under arrest. This time, defendant did not have a knife in his hand. When he reached into his jacket as if to retrieve a weapon, however, one of the officers aimed his rifle, then ordered defendant to lie down. Defendant refused, but he was grabbed from behind and dragged to the ground. It took six officers to finally subdue him. When Trembley-Rail returned to her home, she found the entire residence “knee deep in debris” and estimated the total damage to be $55,000.

Defendant’s mother told Trembley-Rail’s daughter she would pay for the damage if she agreed not to cooperate with police. Defendant was transported to the hospital. During the ride, he was unresponsive and seemed to be under the influence. A blood test showed the presence of amphetamines. After defendant’s arrest, he stated in a telephone call to an acquaintance that “If [he] would have known it was for a headlight, [he] wouldn’t have ran like that.” During the defense closing argument, defense counsel conceded defendant’s guilt of all charges stemming from the incident that culminated in his arrest. d.

Postindictment witness intimidation Defendant was first indicted for Katrina’s murder and other crimes in January 1999. For the next two months, he undertook efforts to silence the fellow gang members and others who were cooperating with the prosecution.

At trial, which was held in 2001, the prosecutor pointed to these efforts not only as evidence of defendant’s culpability for the murder but also as the basis for five later-added counts charging defendant with various witness dissuasion crimes, including conspiracy to intimidate witnesses and soliciting the intimidation of witnesses. (§§ 136.1, subd. (c), 182, subd. (a)(1), 653f, subd. (a).) During the defense closing argument, defense counsel conceded defendant’s guilt of these charges. • In connection with the conspiracy count, the prosecution presented expert testimony to support an associated sentencing allegation that the conspiracy occurred to benefit and in association with a criminal street gang. (See § 186.22, subd. (b).) One gang expert testified about the SHD gang’s violent White supremacist philosophy and the criminal convictions of its members, which included attempted murder and assault with a deadly weapon.

The expert also described the SHD gang’s structure and strict code of noncooperation with law enforcement, explaining to the jury how the gang had been heavily influenced by prison culture in this regard. According to the expert, it was incumbent upon all members of the SHD gang to take appropriate action against any person who had been identified as a “rat,” so long as there was “paperwork,” that is, written proof of cooperation with the police.

As one SHD gang member later explained to the jury, gang members were obligated to do “anything necessary” to silence a member of their own gang who had been labeled a rat. The prosecution also presented extensive evidence regarding defendant’s postindictment activities in jail, where, by using his mother and others as go-betweens, he managed to collect information regarding the individuals he believed were “ratting” on him and disseminate that information to fellow gang members. Some of this evidence consisted of letters written by defendant that were seized by jail and prison authorities.

In one letter to an SHD gang member incarcerated at Wasco State Prison, defendant told the recipient that Bowen and Nicassio had worn a wire on him. Another letter from defendant that was found during a search of an SHD member’s cell in the same prison stated that fellow SHD member Mike Wozny had taken him for a drive in a “wired cop car” prior to his arrest. In a letter to an SHD gang member being housed at Tehachapi State Prison defendant gave a “rundown on all these wire-wearing pieces of poop,” naming Wozny, Bowen, Crecelius, and Kristin S.

The paperwork on the individuals who were cooperating with the prosecution came from the transcripts of the grand jury proceeding at which the informants had testified. A search of defendant’s mother’s home disclosed nine volumes of the grand jury transcripts, one of which had been unbound. Several pages of that volume were found during a search of defendant’s cell conducted on the same day. Also recovered from defendant’s cell, hidden inside the mattress, were two pieces of paper listing the names, telephone numbers, and addresses of victims and witnesses.

On the pages of defendant’s Bible were written, in tiny print, the names of a couple who were close to Nicassio and Bush. Defendant’s communications with his fellow gang members were facilitated by a number of persons outside the jail, including defendant’s mother, sister, girlfriend, and various women who associated with the SHD gang. The facilitators’ roles ranged from simply mailing or dropping off defendant’s letters under their own names to “spreading the word” regarding the informants.

For example, after learning from defendant that Nicassio was wearing a wire to help investigators, Jennifer Wepplo communicated that information directly to an incarcerated SHD gang member, who later wrote to her saying someone had to “get” Nicassio from inside the jail. According to Samantha Medina, another SHD associate who agreed to assist defendant in his efforts to dissuade witnesses, defendant directed her to inform an SHD gang member named Spencer Arnold that Arnold’s girlfriend, Kristin S., was wearing a wire.

Defendant also sought the involvement of John Hernandez, a member of the Ventura Avenue Gangsters who was housed in the cell next to defendant at the county jail. Defendant gave Hernandez grand jury transcripts so that Hernandez could “pass the word around” that Crecelius was “ratting” on him. Defendant also supplied Hernandez with a handwritten list of the individuals who had cooperated with the prosecution, asking Hernandez to circulate the names of the “rats” among his “homeboys” for the purpose of having them assaulted. The list named Nicassio, Crecelius, Bowen, Wozny, and Kristin.

Nicassio was shown the list by an inmate who said Hernandez had given it to him. Defendant’s list was successfully circulated pursuant to his request. When Nicassio was in the courtroom’s holding tank during the grand jury proceedings that led to additional charges of witness intimidation, Nicassio was approached by a member of the Nazi Low Riders prison gang who told him there was paperwork on him throughout the state’s prison system and that he would be killed for being a rat.

After defendant’s efforts to dissuade witnesses had come to light, however, the prosecution made arrangements with officials at the Ventura County jail and California’s Department of Corrections for the protection of its incarcerated witnesses and no harm ever came to Nicassio or any of the other individuals who defendant sought to silence. 2. Defense case The defense called defendant’s mother to testify regarding her recollection of events at her home around the time of Katrina’s disappearance.

She remembered nothing remarkable about the Friday after Thanksgiving Day 1992, only that defendant came home late at night. She heard male voices coming from defendant’s room, but no female voice, and no unusual sounds like someone running, banging, yelling, or moving about the house. According to defendant’s mother, when she arose around 7:00 a.m. on Saturday, she noticed blood on the stairwell, which she and her daughter cleaned.

When she asked defendant a short time later who had gotten hurt, he pointed to his forehead and said, “Check this out,” then returned to his room, ignoring her advice that he needed stitches. She testified further that she saw no one with defendant that morning and that defendant did not leave the house prior to 1:30 p.m. Defendant’s mother confirmed that she had arranged to have the carpets in her home cleaned by an SHD gang member on the Sunday after Thanksgiving, the day after she had discovered the blood on the stairwell. She explained, however, that the cleaning had nothing to do with the blood.

Rather, it was because defendant’s room “smelled like a brewery.” Contrary to the testimony of the officers who came to defendant’s home to investigate Katrina’s disappearance, defendant’s mother told the jury that she did allow the officers inside and that they went upstairs to defendant’s room. She also denied having unbound the grand jury transcripts to copy pages. According to defendant’s mother, at the time she was in possession of the transcripts, defendant’s girlfriend was living with her and had access to the room where she kept those documents.

Defendant’s mother testified that, to her knowledge, defendant was not in a gang. As she saw it, defendant’s association with his friends was “just some kids having a good time.” As previously mentioned, defense counsel conceded defendant’s guilt of the charges stemming from the incident that culminated in defendant’s arrest and the counts involving defendant’s postindictment attempts to dissuade the witnesses who had testified against him at the grand jury proceeding. 3.

Prosecution’s rebuttal The prosecution attempted to cast doubt upon defendant’s mother’s version of events with evidence of her contradictory statements and outright lies. For example, one of the officers who interviewed defendant’s mother three years after Katrina’s disappearance testified that she said the stains on the carpet were from a coffee spill, which was consistent with a statement by the carpet cleaner the day after Katrina had disappeared.

The prosecutor also presented a tape-recorded conversation between defendant’s sister and a friend in which defendant’s sister said that when she told her mother she was planning to talk with the prosecutor, defendant’s mother “got really scared” and admitted she was “living a lie.” B. Penalty Phase Evidence 1. Prosecution’s case in aggravation The prosecution’s case in aggravation focused primarily on the circumstances of the murder and the other crimes of which defendant had been convicted at the guilt phase.

In addition, members of Katrina’s family testified regarding their memories of her and how her disappearance and death had affected them. The prosecution also presented evidence of eight prior incidents involving defendant’s use of violence or threat of violence, some of which occurred while defendant was incarcerated at a juvenile detention facility and the Ventura County jail. a.

Victim impact evidence Katrina’s parents, brother, sister, and grandmother testified briefly about their close relationships with Katrina and described how difficult it was to cope, first, with her disappearance and later, with the realization that she was no longer alive. According to Katrina’s parents, when Katrina returned home after living in Germany for six months with her then boyfriend Sutton, she had “turned a corner,” and started working full time and attending community college classes to pursue a career in photography.

Midway through examining Katrina’s mother, the prosecutor played a videotape of Katrina dancing and socializing at a large family celebration. When questioning resumed, Katrina’s mother said she always feels Katrina’s absence when the family gathers for such events. b. Prior convictions and incidents involving force or violence Much of the prosecution’s evidence regarding defendant’s commission of other crimes involving violence or threat of violence was introduced pursuant to stipulations read aloud by the prosecutor, which the court instructed the jury to accept as proved.

The parties stipulated that in July 1989, defendant pushed a 32-inch wooden club into the face of a man who was engaged in a verbal altercation with defendant’s friend, threatening to “beat the crap outta [him].” In connection with this incident, defendant was charged with battery and brandishing a deadly weapon. (§§ 242, 417, subd. (a).) The prosecution presented evidence of another incident that occurred about one year later in June 1990 while defendant was a ward at the California Youth Authority facility in Paso Robles.

A high school teacher at that institution, Ronald Jenkins, testified that defendant entered his classroom embroiled in a racially charged argument with an African-American ward. At Jenkins’s directive, the wards took their seats and quieted down. At one point, defendant got up and walked toward the bathroom. After passing the ward with whom he had argued, defendant picked up a chair and used it to hit him in the back of his neck and shoulder blades. A brief fight ensued and lasted until security officers arrived on the scene.

The parties stipulated to defendant’s involvement in another altercation at the same California Youth Authority facility one month later. In July 1990, defendant and two other wards were instructed to come out of their cells and walk to the showers. Defendant started walking toward the showers, then turned and struck the escorting officer multiple times with closed fists. As the officer and his coworkers attempted to wrestle defendant to the ground, defendant continued to swing and kick at the officer until he was finally subdued and handcuffed. Two officers were injured in the incident.

Defendant said he attacked the officer because he believed he had been talking about his sister and mother, but the officer denied having done so. In connection with the attack, defendant pleaded guilty to forcibly resisting or deterring an officer in the performance of his duties and was sentenced to a two-year prison term. (§ 69.) The parties further stipulated that on Halloween night in 1992, Deputy Van Davis responded to a party noise complaint and observed defendant and a companion getting up off an individual who was lying on the ground motionless and bleeding heavily from his lip.

For that attack, defendant was convicted of misdemeanor battery. (§ 242.) The prosecutor presented the testimony of two witnesses who described a June 1994 attack on an inmate in the Ventura County jail. June Marsh, a service technician at the jail, testified that while monitoring the inmates’ movements within the jail, she observed defendant and two other inmates who were ready to return from the visiting area to their cells. Pursuant to jail procedure, the inmates were instructed to line up in single file with their hands behind their backs.

Marsh testified that as she activated the door for them to reenter the cell area, defendant turned around with a raised fist and punched the inmate behind him in the face, knocking him to the ground. According to Marsh, defendant knelt down and continued striking the inmate in the face for several seconds, then walked away as officers began responding to the scene.

Marsh heard someone ask defendant, “ ‘What did you do that for?’ ” She recalled that defendant replied, “ ‘Because I felt like it.’ ” The prosecution also presented testimony by Sergeant Steven Cargile, the first officer to arrive on the scene of the June 1994 incident in the Ventura County jail.

Cargile testified that when he reached the inmate who had been attacked, he overheard the inmate say to defendant, “ ‘That was a sucker punch, a real P.C. [(protective custody)] move.’ ” Defendant responded, “ T got you though, didn’t I?’ ” Another stipulation by the parties concerned defendant’s April 1996 attack on a patron at a Santa Barbara nightclub. The victim, a university student, was drunk and dancing in the “mosh pit.” After being assaulted by skinheads, he left that area of the club and went to the lobby. Defendant approached and punched him in the nose, causing him to fall to the floor.

Defendant’s companion, fellow SHD gang member Scott Porcho, continued the attack by kicking the victim two or three times in the head. The victim suffered a broken nose, a swollen eye, and lacerations that required 13 stitches. In connection with this incident, defendant pleaded guilty to misdemeanor battery causing serious bodily injury. (§ 243, subd. (d).) The parties further stipulated that during a January 1998 vehicle stop, an officer discovered a small knife concealed in defendant’s front pants pocket while he searched defendant incident to arrest. The knife was admitted into evidence.

The prosecution concluded its case in aggravation with a final stipulation by the parties regarding another incident at the Ventura County jail in November 1998. On that occasion, defendant intervened in a fight between a Black inmate and a White inmate, punching the Black inmate in the face. When another Black inmate told defendant he should stay out of it, defendant became angry and slammed the inmate against a jail cell door, knocking him down. Before officers responding to the fight finally subdued defendant, he broke away from a control hold and attempted to kick the inmate he had knocked down. 2.

Defense case in mitigation a. Defendant’s upbringing and background The defense evidence regarding defendant’s background emphasized his tumultuous homelife, his drug use, fighting, and problems in school beginning at an early age, and his frequent bouts of detention and incarceration that were triggered mostly by his use of drugs. In brief testimony, defendant’s grandmother told the jury that defendant’s biological parents separated when he was two years old, and that she had been his primary caregiver off and on for his entire life.

She indicated that defendant had always showed her love and respect, and she did not believe he committed the crimes of which he was convicted. One of the defense experts, Psychologist Patrick Barker, Ph.D., offered the jury a more detailed account of defendant’s upbringing and family history, which was based on information provided by defendant, his mother, and his adoptive father. Dr. Barker reported that defendant’s biological father was an alcoholic with whom defendant had little contact after his parents’ separation. When defendant was five years old, his mother married Dean Merriman, who adopted defendant.

Merriman likewise was an alcoholic and their homelife was “badly dysfunctional.” When Merriman drank heavily, which was often, he would swear angrily, break things, and abuse defendant’s mother both verbally and physically. He often belittled defendant in front of others. According to Dr. Barker, defendant’s mother and adoptive father frequently separated and reunited. When they were together, they fought much of the time. When they separated, defendant would move back and forth between the two households. Defendant told Dr.

Barker that to escape the domestic turmoil and instability, he often stayed away from home. At one friend’s house, drugs were readily accessible and, at age 11, defendant first began using methamphetamine. When defendant was in his very early teens, he was sexually molested by a woman at a neighbor’s house. Dr. Barker learned that beginning at an early age defendant had significant problems in school that were attributable to his behavior, truancy, and learning difficulties. He attended seven or eight different schools before eventually dropping out of high school.

Defendant’s mother indicated that because defendant did so poorly in school, he became the class clown. Starting in his early teens, defendant also established a reputation as a good fighter, and prided himself for not backing down in a fight. Dr. Barker’s review of defendant’s school records confirmed that defendant’s behavior, attendance, and performance were poor. One notation indicated that in seventh grade defendant was caught distributing methamphetamine to his fellow students. Defendant’s association with skinheads and White supremacists likewise began in his early teens.

Defendant’s mother believed defendant’s involvement was influenced by Dean Merriman’s racist views and an incident at a party in which defendant was stabbed by an African-American. Defendant’s criminal history began at 15 years old when he was arrested for vandalism and other crimes and sent to a medium-security juvenile detention facility. Defendant spent most of the next 10 years as an inmate at one sort of facility or another, including prison. Most of his detentions were due to his use of drugs. Defendant told Dr. Barker that he was addicted to heroin and abused other drugs and alcohol. b.

Expert testimony The defense sought to show through its mental health experts that defendant suffered from severe brain damage that was further exacerbated by his drug and alcohol use, and that these serious mental deficits were the source of a long history of unplanned, impulsive behavior, including Katrina’s murder. Dr. Barker, a forensic and clinical psychologist, testified regarding the results of various tests he administered to defendant to assess his intelligence and pinpoint dysfunctional personality traits.

The Wechsler Adult Intelligence Scale, a test of intellectual functioning, showed defendant in the low-average range with a full-scale IQ of 88. The results of two tests for traits associated with personality disorders, the Minnesota Multiphasic Personality Inventory (MMPI) and the Millón Clinical Multiaxial Inventory, showed defendant matched a profile type that is thought to be among “the most difficult of the criminal offenders.” Such individuals are distrustful, antisocial, cold, unstable, impressionable, hostile, and violent. His answers on the tests further reflected alcoholic and addictive tendencies. Dr.

Barker emphasized that individuals with defendant’s personality profile have poor impulse control, that they act without thinking about the consequences, and blame others when they do get in trouble rather than learn the consequences of their actions. He further believed that, in defendant’s case, his heavy drug and alcohol use would make him even more impulsive and unpredictable. But even were defendant not under the influence, Dr. Barker observed, he likely would exhibit a lack of respect for others and fail to take into account the consequences of his behavior. On cross-examination, Dr.

Barker indicated that he had diagnosed defendant as suffering from antisocial personality disorder. Jordan Witt, Ph.D., a clinical psychologist with special training in clinical neuropsychology, conducted a neuropsychological examination of defendant in order to assess brain function. His conclusion was that defendant suffered from brain damage, which manifested itself in his very limited concentration span, his extreme hyperactivity, his inability to properly manage, process, and react to information, and his memory difficulties. According to Dr.

Witt, defendant’s brain dysfunction leads him to operate in “kind of a living present,” in which he acts at the whim of his impulses and emotions and cannot rely upon his memories, reasoning, and information from his environment. Based on defendant’s background and the results of the battery of neurological tests, Dr. Witt believed that defendant’s brain was defective at birth and that his dysfunction worsened over time due to both his substance abuse and multiple head injuries with loss of consciousness from fights and an automobile accident. Like Dr. Barker, Dr.

Witt diagnosed defendant as suffering from antisocial personality disorder, as well as other cognitive and learning disorders and polysubstance dependence. The defense bolstered its argument that defendant suffered from brain damage by calling Psychiatrist Joseph Wu, M.D., who testified in relevant part regarding the results of a positron emission tomography (PET) brain imaging scan that was performed on defendant in August 2000, prior to the start of the guilt phase of trial. Dr.

Wu found brain activity abnormalities in defendant’s scan that showed “more likely than not” that defendant had brain damage or disease in the frontal lobe of the brain, the area involved with functions such as the regulation of aggression, long-term planning, and judgment. His findings from the PET scan were corroborated by the results of an earlier electroencephalogram, which showed abnormal electrical activity in the brain’s frontal and temporal lobes, and which was consistent with possibility of complex partial seizures, a type of epilepsy that can affect certain emotions and movements.

The defense called its fourth expert, Forensic Psychologist Leonard Diamond, Ph.D., to show that the adverse effects of defendant’s serious brain deficits had begun to manifest themselves many years before the capital crime. Dr. Diamond first evaluated defendant in 1989 while he was in a juvenile detention facility. According to Dr. Diamond’s report, defendant operated on pure impulse, had no insight into his own actions, and, because he lacked an orderly progression of thoughts, was incapable of planning. After reevaluating defendant prior to the penalty phase, Dr.

Diamond concluded that defendant had changed little during the intervening 12 years. For example, Dr. Diamond explained, defendant still showed no insight into his behavior and still had extremely poor judgment and very poor social skills. Also like before, defendant was impulsive, “acts out,” and “blows up easily.” According to Dr. Diamond, defendant is not psychotic but rather has “a long-standing characterological disorder” that was formed early in life, possibly at the time of birth. During cross-examination, Dr.

Diamond agreed with the prosecutor that it would be fair to characterize defendant as having antisocial personality disorder and to describe him as a very violent, dangerous, and vengeful person. 3. Prosecution rebuttal evidence The prosecutor presented two mental health expert witnesses who disagreed with the methodology and findings of the defense experts. Neuropsychologist Ari Kalechstein, Ph.D., evaluated Dr. Witt’s opinion that defendant suffered from brain damage. In his view, Dr. Witt had an inadequate basis on which to reach that conclusion and committed errors in scoring the diagnostic tests. Dr.

Kalechstein observed, for example, that Dr. Witt failed to take into account that defendant was in solitary confinement for the two months prior to their meeting, which, in Dr. Kalechstein’s view, would have explained why defendant seemed distracted and inattentive. According to Dr. Kalechstein, Dr. Witt also failed to properly explore the possibility that defendant was faking his mental status, and should either have obtained information from sources other than defendant’s self-reporting or be tested for malingering. When Dr. Kalechstein scored some of the neurological tests administered by Dr.

Witt, the results showed defendant in the average range of neurological functioning. Neurologist Helen Mayberg, Ph.D., offered her views regarding Dr. Wu’s opinion that the results of PET brain imaging showed an abnormality in defendant’s frontal lobes. Dr. Mayberg’s critique began with concerns regarding the normal control group against which Dr. Wu had compared defendant’s scan. For example-, as she pointed out, normal brains have tremendous variability in shape and activity levels, and she was unsure whether defendant’s scan actually deviated from an expected pattern. She also faulted Dr.

Wu for not taking into account defendant’s medical conditions and medications, which, she explained, can suppress activity in the frontal lobe. Dr. Mayberg was leery of Dr. Wu’s opinion that defendant had brain damage in the frontal lobe because, in her view, a diagnosis cannot be made solely on the basis of a PET scan. She believed furthermore that any lower activity in defendant’s frontal lobes could be explained by an infolding of the brain at that spot, and she saw no pattern of variations in defendant’s brain activity or anything appearing on the scan itself that could be considered abnormal. 4.

Defendant’s statement In an unexpected development just before closing arguments, the court reopened the penalty phase trial so that defendant could testify on his own behalf. Defendant took the witness stand against counsel’s advice, and read from a rambling statement he had prepared the previous night in which he offered his sympathies to Katrina’s family, complained that his counsel did not provide him with a proper defense, and maintained his innocence. Before testifying, defendant indicated to the court he was aware he likely would be subject to cross-examination.

After reading his statement, defendant nonetheless refused to answer any of the prosecutor’s questions. II. Discussion A. Refusal to Sever Trial on Murder Charge from Trial on Other Counts Defendant contends that the trial court abused its discretion by refusing to sever trial on the murder count from trial on the rest of the charges against him. He furthermore asserts that a joint trial on all charges deprived him of his constitutional rights to a fair trial and due process. His claim fails, as we explain below. 1.

Background The Ventura County Grand Jury initially returned a 25-count indictment against defendant in January 1999. The first three counts of the indictment charged defendant with special circumstance murder and other crimes involving Katrina. Seven of the counts charged defendant with sexually assaulting Robyn G. and Billie B., and nine counts arose from the circumstances surrounding defendant’s attempt to evade arrest in January 1998. The remaining six counts charged defendant with being under the influence of a controlled substance at various times predating his arrest.

A second, five-count indictment was issued in May 1999, about four months after the first indictment, charging defendant with crimes stemming from various attempts to dissuade witnesses who had testified at the earlier grand jury proceeding. In 2000, the court conducted a hearing on two pretrial motions by the parties, granting the prosecution’s motion to consolidate the two indictments, and granting as to certain counts a defense motion to sever trial on the murder charge from trial on the other charges in the first indictment.

The court denied the request to sever the murder count from all other charges, however. In making that determination, the court found the evidence that supported the charges involving defendant’s attempt to evade arrest was cross-admissible to show his consciousness of guilt as to the murder, and that the evidence underlying the sexual offense charges involving women other than Katrina appeared to be cross-admissible because sexual assault was part of the murder case. 2. Statutory requirements for joinder of charges

Section 954 authorizes the joinder of “two or more different offenses connected together in their commission ... or two or more different offenses of the same class of crimes or offenses, under separate counts . . . .” The statute further provides that “if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated.” (§ 954.) As a threshold matter, we conclude that the charges in question met the statutory requirements for joinder.

The sexual offense charges were properly joined with the murder count because they are assaultive crimes against the person and therefore belong to the same class of crimes. (People v. Maury (2003) 30 Cal.4th 342, 395 [133 Cal.Rptr.2d 561, 68 P.3d 1]; People v.

Alvarez (1996) 14 Cal.4th 155, 188 [58 Cal.Rptr.2d 385, 926 P.2d 365].) The counts involving defendant’s attempts to evade arrest and to dissuade and intimidate the witnesses who testified at the grand jury proceeding were connected together in their commission with the murder count because defendant’s apparent motive for resisting arrest and intimidating witnesses was to avoid criminal liability for Katrina’s murder. (Cf. People v.

Alvarez, supra, at p. 188 [the charged rape was connected in its commission to the vehicle theft count because the theft may have been motivated by a desire to avoid arrest for the rape]; People v.

Valdez (2004) 32 Cal.4th 73, 119 [8 Cal.Rptr.3d 271, 82 P.3d 296] [notwithstanding the passage of time, a charge of escape from custody was connected in its commission to the murder charge because the apparent motive for the escape was to avoid prosecution for murder].) We observe that the one count charging defendant with being under the influence of a controlled substance at the time of his arrest is neither in the same class of crimes nor connected together in its commission with the murder charge.

Because the drug offense occurred in conjunction with the other crimes stemming from defendant’s arrest, however, it was connected together in its commission with those offenses and therefore properly joined. (See People v. Johnson (1988) 47 Cal.3d 576, 587 [253 Cal.Rptr. 710, 764 P.2d 1087] [concluding that joinder of an additional charge connected in its commission to one of several properly joined counts met the requirements of § 954].) Defendant does not suggest there was any failure in meeting the statutory requirements for joinder.

He points out, however, that a court has discretion to order severance of charges “in the interests of justice and for good cause shown,” even when the requirements of

section 954 are satisfied. (§ 954.) Defendant contends that the court abused its discretion by refusing to sever trial on the murder charge from trial on all other joined counts. 3. A court has discretion to order separate trials The law favors the joinder of counts because such a course of action promotes efficiency. (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220 [78 Cal.Rptr.3d 272, 185 P.3d 708].) Nonetheless, as defendant correctly observes, a trial court has discretion to order that properly joined charges be tried separately. (§ 954; People v.

Sapp (2003) 31 Cal.4th 240, 257-258 [2 Cal.Rptr.3d 554, 73 P.3d 433].) Likewise, although a trial court is authorized to consolidate two or more accusatory pleadings for trial in an appropriate case, it is not required to do so. (§ 954; People v. Marlow (2004) 34 Cal.4th 131, 143 [17 Cal.Rptr.3d 825, 96 P.3d 126].) In exercising its discretion in this regard, the court weighs “the potential prejudice of joinder against the state’s strong interest in the efficiency of a joint trial. [Citation.]” (People v.

Arias (1996) 13 Cal.4th 92, 126 [51 Cal.Rptr.2d 770, 913 P.2d 980].) To succeed on a claim that the trial court abused its discretion in denying severance or ordering consolidation, the defendant must make a “ ‘clear showing of prejudice’ ” and establish that the ruling fell “ ‘ “ ‘ “outside the bounds of reason.” ’ ” ’ ” (Alcala v. Superior Court, supra, 43 Cal.4th at p. 1220, italics omitted; accord, People v. Soper (2009) 45 Cal.4th 759, 774 [89 Cal.Rptr.3d 188, 200 P.3d 816]; People v.

Lucky (1988) 45 Cal.3d 259, 277 [247 Cal.Rptr. 1, 753 P.2d 1052].) An appellate court evaluates such claims in light of the showings made and the facts known by the trial court at the time of the court’s ruling. (People v. Avila (2006) 38 Cal.4th 491, 575 [43 Cal.Rptr.3d 1, 133 P.3d 1076]; People v. Mendoza (2000) 24 Cal.4th 130, 161 [99 Cal.Rptr.2d 485, 6 P.3d 150]; People v.

Balderas (1985) 41 Cal.3d 144, 171 [222 Cal.Rptr. 184, 711 P.2d 480].) If the evidence underlying the joined charges would have been cross-admissible at hypothetical separate trials, “that factor alone is normally sufficient to dispel any suggestion of prejudice and to justify a trial court’s refusal to sever properly joined charges.” (People v. Soper, supra, 45 Cal.4th at p. 775; see Alcala v. Superior Court, supra, 43 Cal.4th at p. 1221; People v.

Mendoza, supra, 24 Cal.4th at p. 161.) Relevant to our inquiry here, it is sufficient that evidence supporting the various noncapital crimes would be admissible in a separate murder trial. As this court has explained, “ ‘two-way’ cross-admissibility is not required.” (People v. Zambrano (2007) 41 Cal.4th 1082, 1129 [63 Cal.Rptr.3d 297, 163 P.3d 4]; accord, Alcala v.

Superior Court, supra, at p. 1221.) As we explain in greater detail below, the evidence known to the court at the time of its rulings that supported the charges of sexual crimes against Robyn G. and Billie B., resisting arrest, and the dissuasion of witnesses generally would have been cross-admissible in a hypothetical separate trial of the murder charge. Accordingly, defendant fails to make the requisite clear showing of prejudice to establish that the court abused its discretion in denying severance and ordering consolidation. a.

Joinder of the sexual assault counts The initial indictment charged seven sexual assault counts involving victims other than Katrina: one count each of rape, forcible oral copulation, and penetration with a foreign object against Robyn G. (§§ 261, subd (a)(2), 288, subd. (c), 289, subd. (a)), and three counts of rape and one count of attempted forcible oral copulation against Billie B. (§§ 261, subd. (a)(2), 664, 288, subd. (c).) The charges involving Robyn G. were based upon her testimony at the grand jury proceeding, which was similar to her testimony at trial.

According to Robyn G., during the course of what had started out as a consensual sexual encounter in the bedroom of the boat where she was living at the time, defendant prevented her from leaving, forced her to orally copulate him while he viewed pornographic magazines, raped her, and put a gun into her vagina. Billie B.’s trial testimony likewise tracked her earlier testimony at the grand jury proceeding. Billie B. described an hours-long incident in which defendant forced her to orally copulate and masturbate him by repeatedly pushing her head and hand to his penis.

She also recounted a different incident lasting four to five hours that began as- a consensual encounter. On that occasion, defendant ignored Billie’s protestations that she was tired and that the intercourse was hurting her, telling her to shut up while he continued having intercourse. On still another occasion, Billie related, defendant repeatedly pulled her onto the couch with him and shoved her hand into his pants. He became angry when she resisted. When Billie eventually got up and went into her daughter’s room to avoid defendant, he followed her and tackled her to the floor.

As Billie explained, she did not resist having intercourse with defendant at that time because she was afraid he would hurt her if she refused. The grand jury testimony regarding the sexual assaults against Robyn G. and Billie B. was known to the court at the time of its ruling on the defense motion to sever. At the hearing on the severance motion, the prosecutor argued that the evidence supporting the sexual assault counts was cross-admissible in the murder trial to show a common plan or scheme and the propensity to commit sexual offenses.

Defense counsel countered that the evidence was inadmissible because its prejudicial effects substantially outweighed its probative value. The court made no finding in that regard, noting only that the prosecutor had indicated he intended to file a motion regarding the admissibility of the sexual assaults evidence. For purposes of ruling on the severance motion, the court assumed cross-admissibility and denied severance subject to reconsideration of the issue in light of later rulings.

The court observed, however, that given the statements of Nicassio and Bush describing the events that occurred in defendant’s bedroom on the night in question, sexual assault was part of the murder case. During a later pretrial hearing at which the court considered the prosecution’s offer of proof supporting admission of both charged and uncharged sexual assaults, the court ruled in relevant part that the evidence underlying the seven sexual offense charges was cross-admissible as to the special circumstance allegations associated with the murder count.

Specifically, the court found that the evidence regarding the crimes against Robyn G. and Billie B. had distinctive, unusual, and significant similarities to the sexual assault special circumstances, for example, the involvement of drugs and alcohol, and victims who were “skinhead groupies . . . who come back for more no matter how badly they’re treated.” The court further found that the probative value of the evidence was “very significant” and not prejudicial, and that the evidence was therefore admissible both under Evidence Code

section 1101, subdivision (b), and under Evidence Code

section 1108. (See Evid. Code, §§ 1101, subd. (b), 1108, 352.) The court did not revisit its denial of severance at the time of those rulings, and the defense did not thereafter

[…]