ALCALA v. SUPERIORCOURTOFORANGECOUNTY

Filed 2/27/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Original proceedings; petition for a writ of prohibition/mandate to challenge an order of the Superior Court of Orange County, Briseno, Judge. Petition granted in part and denied in part.

Richard Schwartzberg and George Peters, for Petitioner and Defendant.

No appearance for Respondent.

Tony Rackaukas, Orange County District Attorney, and Brian N. Gurwitz, Deputy District Attorney, for Real Party in Interest.

* * *

Rodney James Alcala petitions us for an alternative writ of prohibition or mandate to prevent his single trial on multiple charges of murder which occurred in both Los Angeles County and Orange County. Originally, Alcala faced the single prosecution for the kidnapping and murder of 12-year-old Robin Samsoe that occurred in Orange County in 1979. He was convicted, and the death penalty was imposed. That judgment was reversed in People v. Alcala (1984) 36 Cal.3d 604, 621 (Alcala I), which established a new standard for admitting evidence of other crimes. Returned to Orange County for retrial, Alcala was again convicted and the death penalty re-imposed, which was affirmed on appeal. (See People v. Alcala (1992) 4 Cal.4th 742, 755 (Alcala II).) This judgment was reversed by an order of a federal district court, which reversal was upheld by the Ninth Circuit Court of Appeals in Alcala v. Woodford (9th Cir. 2003) 334 F.3d 862 (Alcala III) due to ineffective assistance of counsel. (Id. at pp. 865-866.) Again, Alcala returned to Orange County for retrial on the charges of kidnapping and murdering Robin Samsoe in 1979.

In the interim, the California Legislature passed Penal Code section 790, subdivision (b) (790(b)),[1] which provides that if a defendant is charged with a special circumstance [murder charge], the jurisdiction for any charged murder, and for any crimes properly joinable with that murder, shall be in any county that has jurisdiction . . . for one or more of the murders charged in a single complaint or indictment as long as the charged murders are connected together in their commission, as that phrase is used in Section 954, and subject to a hearing in the jurisdiction where the prosecution is attempting to consolidate the charged murders. . . . With this statute in mind, the prosecution presented evidence to a grand jury which indicted Alcala forthe separate murders of four young women in Los Angeles County in 1977, 1978, and 1979. The prosecution then brought the motion to consolidate the indictment with the case charging Alcala with the kidnapping and murder of Robin under the authority of 790(b).

In addition to the legislative creation of 790(b), the 20-year period between the crimes and the latest trial also saw the passage of Proposition 115. That initiative included a provision, now found in section 954.1 (954.1), that cases in which two or more different offenses of the same class of crimes . . . have been charged together in the same accusatory pleading, or where two or more accusatory pleadings charging offenses of the same class of crimes . . . have been consolidated, evidence concerning one offense or offenses need not be admissible as to the other offense or offenses before the jointly charged offenses may be tried together . . . .

After briefing and argument from both parties, the court granted the motion to consolidate and refused any severance. Alcala petitions us to bar the lower court from proceeding on the consolidated case and to sever the Los Angeles murder counts from the Robin Samsoe charges. We grant his petition in part and deny it in part.

FACTS

Robin Samsoe Case

The facts proving the Robin Samsoe case are taken from those laid out in Alcala II. On June 20, 1979, 12-year-old Robin Samsoe spent the afternoon with her girlfriend, Bridget Wilvert, along the cliffs overlooking the beach in Huntington Beach. A man approached them asking to take their pictures for what he represented to be a school contest. The girls posed for him until Jackelyn Young, Wilverts neighbor, noticed the mans suspicious attention on the young girls and interrupted them. The man hurriedly picked up his equipment and left. The man was identified as Alcala.[2] (Alcala II, supra, 4 Cal.4th at pp. 755-757.)

A few minutes later, Samsoe and Wilvert returned to Wilverts home where Samsoe borrowed Wilverts bike to ride to her beloved ballet class. She was never seen again. (Alcala II, supra, 4 Cal.4th at 755-756.)

Dana Crappa was a seasonal worker for the United States Forestry Service stationed at Chantry Flats, an area near Sierra Madre. Later on the same day Samsoe disappeared, Crappa was driving in the remote region of those hills and came across a Datsun F10 parked on a turnout. There was a dark-haired man pushing or forcefully steering (Alcala II, supra, 4 Cal.4th at p. 758) a blond-haired young lady towards a dry stream bed. Crappa did nothing about the sighting even though she thought it strange. The next day, she was again returning to her barracks and had the occasion to pass the same area. The same car was parked nearby the original site, and this time the man was leaning against a nearby rock. He appeared to have dirt or stains all down the front of him. She felt there was something wrong with this scenario, but again told no one and did nothing about it. (Id. at pp. 758-759.) Crappa tentatively identified Alcala as the man she saw.

Five days after the original sighting, Crappa again returned to the site, this time to satisfy her curiosity about the scene. She discovered a mutilated body of a young girl whose head had been partially severed from the body and whose hands and feet had been severed. Surprisingly, she did not report this finding nor did she reveal it to anyone, feeling guilt over not having reported what she had seen five days earlier. It wasnt until July 2, 1979, that a colleague of Crappas discovered some bones in the area and reported it to the authorities. By this time, however, wild animals had so disrupted the decomposed remains that it could not be determined what had caused the death or whether the person had been sexually assaulted. At this time, the skull was completely separated from the spine, and the front teeth were smashed in. A Kane Kut kitchen knife was found near the main portion of the remains; and less than a mile away, Samsoes beach towel was discovered with blood on it of a type consistent with that drawn from the bone marrow of the remains. Her personalized tennis shoe was found, too, but that was the sole piece of clothing retrieved. (Alcala II, supra, 4 Cal.4th at pp. 758-760.)

In the interim, Wilvert assisted a police composite artist in drawing up a sketch of the man who took the girls pictures. That composite sketch was distributed by the media on or about June 22. Alcalas parole officer saw the sketch and felt it was a match to Alcala, particularly in light of Alcalas aberrant sexual interest in young girls and his familiarity with the area in which the remains were found, which were matters known to the parole officer. (Alcala II, supra, 4 Cal.4th at p. 756.)

A search warrant was served on the home Alcala shared with his mother in Monterey Park. The police impounded a Datsun F10 parked at the home which was registered to Alcala, inside of which the officers found camera equipment and a briefcase containing a set of keys. Inside the home, they seized sets of Kane Kut kitchen knives and noticedbut failed to seize[3]a receipt for a storage locker in Seattle, Washington. (Alcala II, supra, 4 Cal.4th at pp. 756-761.)

The storage locker was then searched pursuant to a warrant and the authorities made several interesting discoveries: (1) The keys from Alcalas briefcase opened both of the two locks put on the locker; (2) in one of the boxes of photographs inside the locker, they found slides taken of Lorraine Werts at the beach on the same day Robin had disappeared; (3) several items of jewelry were found, including a pair of gold ball earrings often worn by Samsoe and which Samsoes mother identified as her own, based on a modification she had made by using her nail clippers to alter the surface; and (4) the striations found on those earrings were consistent with marks made by those nail clippers in a test. (Alcala II, supra, 4 Cal.4th at p. 761.)

Alcalas girlfriend, Elizabeth Kelleher, testified that she saw Alcala on June 22, at which time he was sporting his usual long, curly hair. The next day, however, the composite sketch was exhibited throughout the area. On June 23, Alcala straightened his hair using a chemical solution and then cut his hair short on June 26. On July 8, he informed Kelleher that he was going to move from southern California to Texas to start a photography business. However, he actually went to Seattlenot Texason July 11. It was at this time he obtained the storage locker. He returned to Monterey Park, informing Kelleher that he planned to leave for Texas permanently on July 24. On the other hand, he told another friend, Leslie Schneider, that he was leaving for Chicago. (Alcala II, supra, 4 Cal.4th at 760.)

Alcala relied on an alibi defense, although not testifying himself.[4] He called various witnesses who testified he applied for a photographers position at Knotts Berry Farm on June 20. He also had a defense witness testify that the striations on the gold earrings were consistent with having been made with nail clippers provided by Alcalas mother. He also had a different friend testify that she saw him wear gold ball earrings, although another friend contradicted this assertion. Finally, a jail inmate, who developed an acquaintanceship with Alcala while he awaited his first trial, testified that Alcala told him that Samsoe had screamed, scratched and yelled during the ordeal. Alcala then reputedly described Samsoes body in very salacious terms. (Alcala II, supra, 4 Cal.4th at pp. 761-763.)

The Four Los Angeles Murders

Evidence concerning the four murders from Los Angeles County was presented to an Orange County grand jury which issued an indictment based on the following information:

In July 1977, the body of Jill Barcomb was found on a remote dirt road, essentially nude.[5] She had been badly beaten about the head and face with a substantial size rock lying nearby. A pointed side of it was covered with blood. Her upper face had been crushed, and her front teeth had been fractured. She had a bloodied bite mark on the nipple of her right breast. She also had serious anal injuries with conspicuous bleeding from the anus. Finally, she had been strangled in three different ways: with a buckled belt, with knee-high hose and with one of the legs to the pants she had previously been wearing.

Barcomb was a tiny woman, no more than five feet tall and weighing about 95 pounds. Swabs were taken from her genital region and preserved. Subsequently, the development of deoxyribonucleic acid (DNA) typing technique led to a comparison being made between the DNA in the sperm found in the swabs and that of Alcala. They matched, with a random match occurring only once in 100 billion.

In December 1977, Georgia Wixted was a young single woman, living alone and working as a nurse. The last anyone saw of her was in the early morning hours when she gave her girlfriend, Barbara Gale, a ride home. Gale expected to see Wixted the next day at work. When she failed to appear, the police went to her Malibu apartment and found her lying dead on the floor of her bedroom. She had nylon hose wrapped around her neck several times and so tightly knotted that a furrow was carved into the cartilage of her neck. She died of strangulation and massive head injuries: Her skull had been bashed with a hammer lying nearby. Her face had also been hit, and her genitals were mutilated, possibly with the handle of the same hammer. Her purses contents were strewn around the bathroom and there was evidence of forced entry: scuff marks along one window and a box placed beneath it to assist entry. The cabinet drawers throughout the place were open and their contents in disarray.

Anal swabs were taken from the victim, and a palm print was lifted from the beds brass railing. DNA analysis of the swabs fluids matched that of Alcala, with a random match occurring only once in a trillion. The palm print was later compared with that of Alcala, and that likewise matched.

In June of 1978, a young woman, Charlotte Lamb, was found brutally murdered in a laundry room of an apartment complex. She was nude, and had been strangled with a long shoelace from a sandal she had been wearing. Her head and face had been badly beaten with a heavy piece of wood lying nearby. The shoelace was used as a garrote, so forcefully tightened that the cartilage around her voicebox and thyroid was fractured. Her right breast was scraped and there were lacerations over her eye and to all of her genital area. She had pierced ears but was not found wearing any earrings. Swabs were taken from her vaginal area, which were later compared to the DNA sample provided by Alcala. The DNA found in the semen fluid on the swabs matched that of Alcala with a random match occurring once in 403 trillion persons.

In June 1979, a few days before Samsoe disappeared, Jill Parenteau left work early to attend a baseball game. She failed to appear for work the next day. The police went to her apartment, discovering evidence of a forced entry and her body on the floor of her bedroom.[6] She was nude, and had been beaten severely about the face and head. She had deep wounds to her vaginal and rectal areas, and fingernail scratches on her breast. She had been strangled so brutally that there was a massive hemorrhage throughout the area of the thyroid, voicebox and epiglottis.

Swabs were taken of her genitals and her mouth. Only the oral swab revealed any seminal fluid and the only testing done on it was to define the serological characteristics of the contributor. However, it revealed that Alcala could not be excluded as having left the fluid, and the combination of serological factors was so rare that it would only be present in 3.5 percent of the population.

Parenteaus girlfriend, Katharine Bryant, testified that she recognized Alcala. Bryant and Parenteau had gone clubbing one evening and had encountered him at a club less than a month before the murder. They had seen him and socialized with him at the club on more than one occasion.

One last test was done on the other pieces of jewelry found in the cloth bag in Alcalas storage locker in Seattle. One earringnot related to the gold ball earrings recognized by Samsoes motherwas in the shape of a rose and designed to be worn with pierced ears. DNA testing was done on it, revealing that fluids from Lamb were still present on the pierced earring although it had been taken from her ear more than twenty years before.

DISCUSSION

Consolidation of Murder Charges Under 790(b)

The consolidation of the Robin Samsoe charges with the murders of Barcomb, Wixted, Lamb and Parenteau was based on the authority of 790(b), according to the trial courts statement at the time of the order. Alcala contends the trial court erred in its conclusion and its rationale; the Orange County District Attorney responds the trial court properly ordered the joinder and did so employing the proper standard.

Alcala argues that a review of an order consolidating charges or denying severance[7] is governed by the abuse of discretion standard. (Cf. People v. Valdez (2004) 32 Cal.4th 73, 119-120 [burden on defendant to show clear prejudice from joint trial on review of denial of severance]; see also People v. Ochoa (1998) 19 Cal.4th 353, 408 [granting of consolidation or denial of severance reviewed for abuse of discretion].) An abuse of discretion is that which fall[s] outside the bounds of reason. [Citation.] (Ibid.)

Under 790(b), all California murderscommitted in any countymay be tried within a single county in which one of the murders occurred, providing there is a special circumstance allegation that multiple murders were committed pursuant to section 190.2, subdivision (a)(3), and that all the murders are connected together in their commission as that is defined under section 954.[8] That phrase is not limited to a single course of criminal conduct or the achievement of a single criminal objective. (4 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Pretrial Proceedings  208, pp. 412-413.) Rather, it is a broad concept encompassing all offenses having a common element of substantial importance in their commission, for the joinder prevents repetition of evidence and saves time and expense to the state as well as to the defendant. [Citations.] (Ibid.)

Alcala disagrees, contending case law such as Alcala I and Williams v. Superior Court (1984) 36 Cal.3d 441 essentially eliminated such an expanded definition of connection by crafting a distinctly new basis for severance: mandatory cross-admissibility. Recent authority indicates otherwise: In People v. Mendoza (2000) 24 Cal.4th 130, at page 160, the court held that [o]ffenses committed at different times and places against different victims are nevertheless connected together in their commission when they are, as here, linked by a common element of substantial importance. [Citations.] Such common elements can be proximity of time or place or even the common intent with which the same general type of offense is committed. In Mendoza, the court noted the common element of an intent to feloniously obtain property runs like a single thread through the various offenses. . . . (Ibid.; see also People v. Meneley (1972) 29 Cal.App.3d 41, 51 [two crimes share common element when both involved young women, walking alone, who were assaulted and abducted].)

Likewise here. The common element of an intent to brutally kill young females ties all the crimes together. This common element provides a reasonable and rational basis for the court to apply 954.1 and consolidate the pleadings.

Alcala concedes section 954 authorizes the prosecution to charge all the homicidesall offenses of the same class of crimesin one proceeding in Orange County. However, he contends federal due process bars such an action and mandates a severance of the Los Angeles murders. He invokes both a four-part test for discretionary abuse (see People v. Bradford (1997) 15 Cal.4th 1229, 1315) and the mandatory cross-admissibility concepts which preceded the passage of Proposition 115, positing he is entitled to all due process considerations in effect at the time of the commission of the offenses.

1.      Ex Post Facto Concerns

Our first step in resolution of this complicated matter is to determine whether 790(b) and 954.1 may be applied, as the passage of those statutes postdated the commission of all of these offenses. Although not originally addressed by the parties, the issue was briefed upon our request.

As declared in Tapia v. Superior Court (1991) 53 Cal.3d 282, certain provisions of Proposition 115 can be applied to defendants whose criminal charges occurred prior to its effective date, but other parts could not, due to the ex post facto guarantee. Employing its method of determining first the application of the presumption of prospectivity and then examining the definition of retrospective effect, Tapia divided the different aspects of Proposition 115 into four groups: (A) provisions which change[d] the legal consequences of criminal behavior to the detriment of defendants; (B) provisions which address[ed] the conduct of trials; (C) provisions which clearly benefit[ted] defendants; and (D) a single provision which codifie[d] existing law. (Id. at p. 297.) Those parts of the initiative that changed the legal consequences of criminal behavior could not be applied to offenses committed before its effective date. (Ibid.) The aspects that fell under the three other groups, however, could be applied to cases in which the crimes were committed before the date of its passage. Because 954.1 addressed the conduct of trials[,] it could be applied to offenses committed before the laws effective date. (Id., at pp. 299-300.)

As 790(b) likewise addresses only the conduct of trials, it may also be applied even though the offense may have occurred prior to its passage. Statutes of this sort do not implicate the definition of, punishment for, or defenses to crimes[,] thus eliminating any possible ex post facto concern. (1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Introduction to Crimes 12, p. 28.) Nonetheless, as Tapia arguedas does Alcalasuch laws may appear to have a retrospective effect, necessitating a review for a potential ex post facto violation. (Tapia v. Superior Court, supra, 53 Cal.3d at 299-300.)

Thus, we must examine the second prong of the Tapia test as it applies to Alcala because these statutes, by permitting the consolidation of charges and eliminating the mandatory cross-admissibility of evidence, may arguably result in an alter[ation of] the legal rules of evidence, and [thereby] receive[] less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender. (Carmell v. Texas(2000) 529 U.S. 513, 522 [quoting Calder v. Bull (1798) 3 U.S. 386, 390], italics removed.)

There is no dispute that 954.1 lacks any explicit provision for retroactivity. Because of this silence, the presumption of prospectivity applies. We note that the California Supreme Court in some recent cases has exercised extreme caution, approaching this issue in dicta by applying the law as it existed at the time of the trial. In each instance, however, the consolidation, severance or cross-admissibility motion was resolved in the trial court before passage of Proposition 115. For this reason, the provisions of 954.1 could not be applied on appellate review. (See e.g., People v. Gutierrez, supra, 28 Cal.4th at 1120, fn. 5; People v. Catlin (2001) 26 Cal.4th 81, 111, fn. 3; People v. Cunningham (2001) 25 Cal.4th 926, 984, fn.7; People v. Bradford, supra, 15 Cal.4th at 1314, fn. 13.) That situation is not present here: Both 790(b) and 954.1 became effective before Alcala III was issued and thus were discussed in the trial court below.

The Tapia approach has been applied consistently with other, similar provisions. For instance, in juvenile delinquency proceedings, changes in the laws concerning the type and timing of charging documents were applied, notwithstanding that the crimes were committed before the particular laws passage. Even though applied to the prosecution of a crime committed before the laws effective date, a law addressing the conduct of trials still addresses conduct in the future. . . . Such a statute is not made retroactive merely because it draws upon facts existing prior to its enactment . . . . [Instead, t]he effect of such statutes is actually prospective in nature since they relate to the procedure to be followed in the future. [Citations.] (John L. v. Superior Court (2004) 33 Cal.4th 158, 169-171, original italics.)

Both 790(b) and 954.1 address the conduct of trials. (See Tapia v. Superior Court, supra, 53 Cal.3d at p. 299.) Laws that change the rules of evidentiary admission or competenceas distinct from the quantum of evidence to convictdo not violate the ex post facto guarantee. (See Carmell v. Texas, supra, 529 U.S. at pp. 542-547.) It is only when a law changes the quantum of evidence required to convict an offender (id. at 532-533) that the evidentiary modification triggers constitutional concern.

For example, in Carmell, the defendant engaged in a four-year pattern of molesting his teenaged stepdaughter. Before he was charged with the criminal offenses, the law was amended that had formerly required a victim to report a sexual offense within six months of its occurrence or the state had to provide corroboration of the incident. (Id. at pp. 516-518.) Carmell was tried and convicted of certain charges solely on his stepdaughters testimony. The laws revision was deemed a violation of ex post facto protection because the evidentiary change affected the minimum quantum of evidence necessary to sustain a conviction. (Id. at pp. 517-518.) Carmell explained that the issue of the admissibility of evidence is simply different from the question whether the properly admitted evidence is sufficient to convict the defendant. Evidence admissibility rules do not go to the general issue of guilt, nor to whether a conviction, as a matter of law, may be sustained. . . . Sufficiency of the evidence rules (by definition) do just thatthey inform us whether the evidence introduced is sufficient to convict as a matter of law (which is not to say the jury must convict, but only that, as a matter of law, the case may be submitted to the jury and the jury may convict). (Id. at pp. 546-547.)

Examining the situation before us, 790(b) and 954.1 on their face address only the manner in which a trial is conducted. Indirectly, it affects some general evidentiary matters, but it does not establish or change the minimum quantum of evidence to convict. Thus, they do not trigger any ex post facto concern. The trial court, therefore, had the statutory authority to consolidate the offenses under section 790(b), irrespective of the evidentiary provisions of 954.1.

TO BE CONTINUED AS PART II.

Publication Courtesy of California lawyer directory.

Analysis and review provided by Escondido Property line Lawyers.

[1] All further statutory references are to the Penal Code unless otherwise stated.

[2] Several other young girls at the beach were approached by Alcala for pictures, either on that day or the next. In each case, someone was able to identify Alcala as the man taking photographs of young girls in bikinis. One young lady, Lorraine Werts, in company with her girlfriend, Patty Elmendorf, was on a beach adjacent to that occupied by Samsoe and Wilvert on the same day Robin disappeared. Alcala took several pictures of her in her bikini, and those pictures were found in Alcalas storage locker in Seattle.

Alcala was also identified by Richard Sillett, a survey-party chief for the Huntington Beach recreational area. He remembered Alcala because he was carrying a 35 millimeter camera with a telephoto lens, an item of particular interest to Sillett.

[3] When the police returned to the Monterey Park home the next day, the receipt was nowhere to be found. Alcalas sister spoke with Alcala on the phone immediately after his arrest, went to the home and got the receipt, giving it to his mother. The receipt could not be found thereafter. (Alcala II, supra, 4 Cal.4th at p. 761, fn. 7.)

[4] Although he did not testify in the guilt phase of the second trial, Alcala testified as to this alibi in the penalty phase. (Alcala II, supra, 4 Cal.4th at p. 766.) He also admitted molesting a child in 1972and serving time in prison for itand assaulting Tali S., one of three child molestation victims the prosecution presented in the penalty phase to prove he committed other, uncharged crimes. He likewise admitted possessing child pornography, which resulted in his spending more time in custody, having violated his parole. He also admitted he raped and beat another 15-year-old girl, Monique H. Nonetheless, he appealed to the jury to send him to prison for life, arguing that he was absolutely harmless away from children. (Id., at pp. 766-767.)

[5] The only clothing on the body was a sweater and top which were pulled up around the shoulders. The body itself was entirely exposed.

[6] The Burbank Police Department investigator who arrived on the scene described Parenteaus apartment as very neat and clean, sparsely furnished but having her bicycle directly inside the front door, which was unusual because everything else was so neatly closed away. The perpetrator had entered the apartment by removing glass louvers in a side window and then slicing through the screen.

[7] Some decisions concerning the charging site of the crime are deemed that of jurisdiction, which is a question of fact and for which the prosecution has the burden of proving by a preponderance of the evidence. On review, a trial courts determination of territorial jurisdiction will be upheld as long as there is some evidence to support its holding. [Citations.] (People v. Gutierrez (2002) 28 Cal.4th 1083, 1117.) However, the order of a court either consolidating or severing counts within a pleading are held to be procedural in nature, not jurisdictional. (See In re Pearson (1947) 30 Cal.2d 871, 874.)

[8] Section 954 provides, in pertinent part, that an accusatory pleading may charge two or more different offenses connected together in their commission, . . . and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated[]. . . . provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately. . . .