PEOPLE v. CLEOPHUS PRINCE, JR
Filed 4/30/07
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE, )
)
Plaintiff and Respondent, )
) S036105
v. )
)
CLEOPHUS PRINCE, JR., )
) San Diego County
Defendant and Appellant. ) Super. Ct. No. CR130018
__________________________________ )
Story continued from Part V .
i. Burglaries of the residences of Depamphillis and Kinney
(Counts 25 and 26)
Defendant contends there was insufficient evidence he was responsible for the Depamphillis and Kinney burglaries. He relies upon evidence reflecting that these burglaries occurred late at night, unlike the other crimes. But the burglarized apartments were located in the vicinity of the other crimes, and a car similar to that used by defendant was observed at the scene. Moreover, items stolen during these burglaries subsequently were traced to defendant.
j. Attempted burglary of the residence occupied by Geralyn Peters Venvertloh (Count 27)
Defendant contends there was insufficient evidence to link him to the attempted burglary of Geralyn Venvertlohs residence, and of his intent to commit theft in the course of that incident. We disagree. Although Venvertloh was unable to make a positive identification at a photo or live lineup, her neighbor Jeffrey Pich witnessed defendant attempting to break into Venvertlohs residence and positively identified defendant and his vehicle. Defendants intent to steal was established by his attempt to gain surreptitious entry to a residence that did not belong to him, and by his having committed numerous other burglaries in the same manner with the intent to commit theft.
k. Felony-murder theory
Defendant contends there was insufficient evidence to support the burglary convictions associated with the murders of Weinhold, Tarr, Keller, and Pamela and Amber Clark, and therefore insufficient evidence to support the murder verdicts as to these victims if the verdicts were based upon a burglary or rape felony-murder theory. (Defendant was not charged with a burglary in connection with the murder of Tiffany Schultz.)
Murder committed in the perpetration of certain felonies, including burglary and rape, constitutes murder in the first degree. ( 189.) We have required as part of the felony-murder doctrine that the jury find the perpetrator had the specific intent to commit one of the enumerated felonies [in section 189] . . . . [Citations.] [Citation.] It also is established that the killing need not occur in the midst of the commission of the felony, so long as that felony is not merely incidental to, or an afterthought to, the killing. (People v. Proctor (1992) 4 Cal.4th 499, 532.) In addition, a homicide occurs in the perpetration of an enumerated felony for the purpose of the felony-murder rule if both offenses were parts of one continuous transaction. (People v. Sakarias (2000) 22 Cal.4th 596, 624.)] There is no requirement of a strict causal [citation] or temporal [citation] relationship between the felony and the murder. (People v. Hart, (1999) 20 Cal.4th 546, 608-609.) In addition, [c]ircumstantial evidence may provide sufficient support for a felony murder conviction. (People v. Elliot, supra, 37 Cal.4th at p. 469 [sufficient evidence supported [a] robbery-murder conviction based on evidence that [the] victim usually carried several $1 bills, no paper currency was found on [the] victim or in his taxi, and defendant had seven $1 bills on his person at the time of his arrest, citing People v. Marks, supra, 31 Cal.4th at pp. 230-231].)
Defendant contends the evidence left open the possibility that he was invited into each murder victims home and did not enter with felonious intent, a necessary element for proof of a burglary. Defendant employs an incorrect test in assessing the sufficiency of the evidence. The test is whether a reasonable juror could have believed from all the evidence that defendant entered the homes with intent to commit an enumerated felony. (People v. Hillhouse, supra, 27 Cal.4th at p. 496; People v. Proctor, supra, 4 Cal.4th at p. 532.) There was ample evidence establishing that defendant entered each residence with the intent to commit theft, considering defendants modus operandi and the other similar burglaries he committed that clearly were theft related. In addition, the jury properly was instructed that felony murder is not proven unless the intent to commit the felony was formed prior to entry into the residence, and that felony murder is not established by proof that the defendant entered with the intent to commit murder.
Defendant reiterates that there was no evidence indicating he entered Janene Weinholds residence with the intent to steal or rape. He notes the absence of evidence of a forced entry, the absence of evidence that property was missing from the residence, and the absence of direct evidence concerning the interaction between Weinhold and defendant when he presented himself at her door. But the jury may rely upon circumstantial evidence to find that a felony murder occurred (see People v. Elliot, supra, 37 Cal.4th at p. 469, People v. Marks, supra, 31 Cal.4th at pp. 230-231), and specifically to establish the intent of the defendant. The defenses claim that defendant may have been invited into the apartment before he formed the intent to rape Weinhold or steal from the apartment is inconsistent with the voluminous evidence of defendants stalking behavior, including his acts prior to the commission of the Weinhold murder, his statement that he had forced himself on a victim, his many similar burglaries, the circumstance that he was evidently unknown to Weinhold and that she was not interested in dating, and the circumstances that his encounter with her was accompanied by loud sounds and that she bore defensive wounds. The evidence suggests that the sexual contact between defendant and his victim was not consensual, that Weinhold did not voluntarily admit defendant to her home, and that he did not form an intent to commit a theft or rape only after he entered and on the spur of the moment, as a purely incidental objective. A forced entry was not necessary to support the burglary verdict. (See People v. Frye, supra, 18 Cal.4th at p. 954.) The jury reasonably could conclude that defendant, well before he gained admission to the apartment, intended to force himself upon the victim or at least steal from her.
Defendant also contends there was insufficient evidence to demonstrate that he formed the intent to steal prior to his entry into the Tarr apartment. Again, the absence of evidence of a forced entry is not determinative. The evidence of defendants modus operandi constituted evidence of a common intent to steal that was formed prior to entry into the residences of his victims. As noted, defendant did steal an opal ring from Tarr. The jury reasonably could believe that when he entered, defendant already intended to steal rather than forming such intent only after the death of his victim.
The prosecutor suggested that defendant took the ring as a souvenir, and defendant contends the evidence supports the view that he stole a single ring from Keller merely as a souvenir rather than entering her residence with a preexisting intent to steal. The murder of Keller followed that of Tarr, and the acquisition of a second souvenir reasonably could be viewed as one of the objects of defendants entry into Kellers home rather than as a reflection of a spontaneous impulse experienced following entry into the home.
With respect to the Clark murders, defendant reiterates there was insufficient evidence of an intent to steal prior to entry into the residence because, as he views the matter, there was no evidence concerning the circumstances under which the perpetrator entered the home, whereas there was evidence indicating that defendant was dating persons who met the description of the Clarks. The jury reasonably could conclude defendant was not dating the Clarks, but entered their home with intent to commit theft an intent he carried out in this and many other instances.
Defendant contends that because his convictions were based upon insufficient evidence, he was deprived of his federal constitutional rights to a fair jury trial in accordance with due process of law, to be free from conviction of any crime absent proof beyond a reasonable doubt [citation], and to reliable fact-finding underlying capital guilt and penalty phase verdicts. The evidence was sufficient to support each of the felony-murder verdicts, as we have explained. That the evidence in some instances might be reconciled with a contrary finding or that a jury reasonably could have determined that each murder was not a felony murder is not a basis for reversal of any of defendants conviction. (See People v. Lewis (2001) 26 Cal.4th 334, 368.)
Defendant also contends that because in his view the evidence in support of the burglary convictions involving the murder victims was inadequate, it was improper for the court to instruct on felony murder. We disagree, having found the evidence of preexisting intent to commit an enumerated felony to be sufficient with regard to each of the murders.
Defendant next claims still under his general challenge to the sufficiency of the evidence that it was improper for the court to instruct on felony murder, because the thefts necessarily were merely incidental afterthoughts to planned murders and thus could not support a felony-murder verdict. (See People v. Green (1980) 27 Cal.3d 1, 52-54; People v. Thompson (1980) 27 Cal.3d 303, 321-325.) This claim is untenable in view of the number of occasions on which defendant entered residences with the intent to steal and either pawned the proceeds or used them as gifts for friends.
If defendants claim is that, because he committed premeditated killings, he could not also have committed burglary for the purpose of the felony-murder rule, his assertion is unconvincing. The felony-murder rule do[es] not apply to a burglary committed for the sole purpose of assaulting or killing the homicide victim. [Citations.] (People v. Ramirez, supra, 39 Cal. 4th at p. 463, quoting People v. Seaton (2001) 26 Cal.4th 598, 646.) On the other hand, concurrent intent to kill and to commit the target felony or felonies does not undermine the basis for a felony-murder conviction. (People v. Gutierrez, supra, 28 Cal.4th at p. 1141, italics added; see also People v. Mendoza (2000) 24 Cal.4th 130, 183.)
l. The murder of Schultz
Still pursuing his instructional claims under the general heading of the sufficiency of the evidence, defendant challenges the first degree murder instruction as it applied to the murder of Schultz. The trial court gave the jury a general instruction that first degree murder could be established by proof of premeditation and deliberation or by proof that the killing was committed in the perpetration of an enumerated felony. Defendant complains the court did not instruct the jury that the felony murder theory would not apply to the charge that defendant murdered Schultz. Defendant contends the jury even though a burglary was not charged in connection with the Schultz murder nonetheless might have determined that defendant entered Schultzs home with the intent to commit theft, and therefore may have applied the felony-murder theory. We are not persuaded that any error occurred. The jury may convict on a felony-murder theory if the felony is proved beyond a reasonable doubt even if the underlying felony has not been charged. (People v. Davis (1995) 10 Cal.4th 463, 514; see also People v. Kipp (2001) 26 Cal.4th 1100, 1131.) Moreover, in light of the other murders, the evidence taken as a whole was sufficient to permit a reasonable jury to conclude that defendant entered Schultzs home with the intent to commit theft.
10. Failure to instruct on second degree murder
The prosecutor requested that the court instruct on second degree murder. His concern was to avoid any possibility of an issue on appeal concerning instructional error. Defense counsel agreed the instruction should be given, voicing a desire that the jury have something to consider other than an all-or-nothing choice between first degree murder convictions and acquittal. At the courts request, defense counsel proposed an evidentiary basis for a second degree murder instruction. Counsel stated: I can envision, with respect to the first homicide, the defendant being invited inside, there being an argument, something brewing in between himself and the perpetrator and Tiffany Schultz, and the state of mind of the perpetrator that is not indicative of premeditation, deliberation, because of a fight, something being found, some argument, then a struggle there and grabbing hold of the knife which was inside the apartment and stabbing, but in a semi-heat-of-passion as opposed to during the commission of a rape or during the commission of a burglary where hes been invited inside. Thats the scenario that could quite possibly have happened. That could be carried through to at least one other homicide, maybe the Holly Tarr homicide as well as the Keller homicide.
The court responded that counsel had provided at least a plausible argument, explaining: Although Im skeptical, [counsel], you have provided at least a scenario that could be based upon this evidence. Thats as to count one. Other counts, the Clark counts, for example, I cant imagine any scenario . . . that would be anything other than first degree. The court reflected that to instruct on second degree murder as to the Schultz murder alone might cause the jury to conclude the court was directing a verdict on the other murder counts, so the court concluded it would instruct on second degree murder without limiting the instruction to the Schultz murder.
Although defense counsel favored instruction on second degree murder, defendant himself vigorously opposed such instruction. During extensive hearings, the court went to great length to ensure that defendant understood the issue and that he knowingly and voluntarily wished to forego instruction on second degree murder. Defense counsel conceded he had no intention of arguing a second degree murder theory to the jury but, contrary to his client, believed the instruction would serve to give the jury choices.[1]
On the basis of language set forth in People v. Frierson (1985) 39 Cal.3d 803, the trial court concluded that the ultimate authority as to whether lesser included offense instructions should be given was the defendant himself, not his or her attorney. The court took additional steps to ensure that defendant understood the choice he was making by opposing instruction on second degree murder, including that defendant would not be able to claim error on appeal. The court again asked defense counsel to state the evidentiary basis he believed supported the instruction. Defense counsel maintained that he could conceive of a state of facts where a person was invited in. That is, there was no burglary, no felony burglary which would be the basis of an automatic first degree murder finding where the individual inside is confronted by the female, either after having been invited in by her for whatever reasons, got that person inside. There was an argument, a discussion. Counsel surmised that perhaps somehow there was a struggle, struggle over the knife [obtained from inside the home]. At least one blow caused death . . . . Could have been a killing absent premeditation and deliberation. Counsel concluded that such a theory would apply to all the killings except the Clark murders.
The court then stated its view that, despite defense counsels recitation, the evidence was not sufficient to place a sua sponte duty on the court to instruct on second degree murder, commenting that all of the evidence supported guilty verdicts as to first degree murder, if any. The court nonetheless undertook further discussion with defendant designed to ensure that defendants decision to forego instruction on second degree murder (despite defense counsels request) was knowing and voluntary. The court asked him whether he would waive any right that you would otherwise have to . . . [] [a] second degree [murder] . . . instruction being provided to the jury, and defendant responded in the affirmative. The court determined that it would not instruct on second degree murder and announced that its decision stemmed both from its view of the evidence and from defendants request.
Defendant now contends, despite his request at trial that the instruction not be given, that the courts failure to instruct on second degree murder constituted reversible error, assigning various constitutional bases for his argument.
[A] defendant has a constitutional right to have the jury determine every material issue presented by the evidence [and] . . . an erroneous failure to instruct on a lesser included offense constitutes a denial of that right. . . . [Citation.] (People v. Elliot, supra, 37 Cal.4th at p. 475.)
The trial court has authority to determine whether to instruct on a lesser included offense such as second degree murder, and if the court determines that there is sufficient evidence to warrant such an instruction, the court should give the instruction. It is for the court alone to decide whether the evidence supports instruction on a lesser included offense. (People v. Barton (1995) 12 Cal.4th 186, 196.) As we have stated, neither the prosecution nor the defense should be allowed, based on their trial strategy, to preclude the jury from considering guilt of a lesser offense included in the crime charged. (Ibid.) Indeed, California decisions have held for decades that even absent a request, and even over the parties objections, the trial court must instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser. [Citations.] ( People v. Carter (2005) 36 Cal.4th 1114, 1184, italics added, italics in Carter.)
Despite the circumstance that it is the court that is vested with authority to determine whether to instruct on a lesser included offense, the doctrine of invited error still applies if the court accedes to a defense attorneys tactical decision to request that lesser included offense instructions not be given. (People v. Barton, supra, 12 Cal.4th at p. 198; see also People v. Horning (2004) 34 Cal.4th 871, 905.) Such a tactical request presents a bar to consideration of the issue on appeal. (Ibid.) In the present case, however, defense counsel did not make such a tactical decision on the contrary, counsel requested the instruction.
We need not determine whether this procedural bar to our consideration of the issue on appeal applies when defense counsel has requested the instruction but the defendant objects. As we shall explain, we believe that the trial court correctly concluded that the evidence adduced at trial was not such that the trial court was required to instruct on second degree murder as a lesser included offense.
Instructions on lesser included offenses are required whenever evidence that the defendant is guilty only of the lesser offense is substantial enough to merit consideration by the jury. [Citations.] Substantial evidence in this context is evidence from which a jury composed of reasonable [persons] could . . . conclude[] that the lesser offense, but not the greater, was committed. [Citations.] (People v. Hughes (2002) 27 Cal.4th 287, 366-367, italics omitted.) In the present case, the evidence in support of any second degree murder conviction was not substantial enough to warrant consideration by the jury. There was no sua sponte duty to instruct, and the court did not err in refusing a request for an instruction that was not supported by substantial evidence. (People v. Flannel (1979) 25 Cal.3d 668, 684-685; People v. Ceja (1994) 26 Cal.App.4th 78, 85.)
Murder is the unlawful killing of a human being . . . with malice aforethought. ( 187, subd. (a).) Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. ( 188.) Murder that is committed with malice but is not premeditated is of the second degree. (People v. Ramirez, supra, 39 Cal.4th at p. 464; 189.)
Despite the strong evidence of premeditation discussed above, defendant insists the evidence was such that the jury could have concluded that the People had failed to prove premeditation and deliberation or felony murder, the two bases upon which the first degree murder verdicts rested. Defendant argues it was entirely possible that the killings occurred in a quick explosion of violence after the encounters be[gan] in a friendly fashion with the perpetrator invited inside. He urges that there was slight evidence of planning or motive, and that the manner of the killings according to the defense, potentially representing an explosion of violence would suggest malice but not premeditation. He notes that the prosecutor suggested the perpetrator of the murders was mentally disturbed, and claims it would be difficult to prove premeditation on the part of a deranged person. Defendant also points to the prosecutors argument that the thefts may have been afterthoughts, in support of his claim that there was evidence suggesting he entered the victims homes without criminal intent.
We disagree. Defendant was not entitled to have the jury instructed on all possible lesser included offenses, but only on those offenses as to which there was evidence of substantial weight. (People v. Hughes, supra, 27 Cal.4th at pp. 366-367.) In the present case, such evidence of lesser included offenses would have to suggest that defendant killed the victims with the general intent to kill or with a reckless disregard for human life, but that he did not kill in the course of committing a felony or with premeditation and deliberation. But the evidence demonstrating premeditation was overwhelming, and there was no evidence that defendant happened upon the victims and rashly decided to kill them. There was no evidence of substantial weight indicating that defendant entered the victims home at their invitation; defendant relies upon only speculation in making such a claim. Although an unpremeditated explosion of violence may constitute a second degree murder, evidence of defendants motive and modus operandi supplied overwhelming proof that he did not kill on a rash impulse, but according to a premeditated design. As the trial court observed, defense counsels request for a second degree murder instruction was based upon speculative scenarios without any evidentiary basis. Finally, we observe that the defense was alibi and mistaken identity, not that defendant intended to kill but did not premeditate. Defense counsel announced the defense had no intention of arguing a second degree murder theory to the jury even if the court were to instruct on it.
We reached a similar conclusion in People v. Carter, supra, 36 Cal.4th 1114. In that case, within a period of a few days, three women were fatally strangled under closely similar circumstances. Not only does the manner in which each of these three killings was perpetrated strongly indicate in itself that each of the killings was willful, premeditated, and deliberate, but the entire course of conduct clearly revealed by the evidence, taken as a whole, is inconsistent with any suggestion that the killings were not willful, premeditated, and deliberate. (Id. at pp. 1184-1185; see also People v. Valdez (2004) 32 Cal.4th 73, 116 [speculation that the victim might have been shot during a struggle did not require a second degree murder instruction].)
Defendant refers to his statements that he was dating the Clarks and a woman named Janene, and suggests in this court that this evidence would support a claim that he entered the Clark and Weinhold residences without intent to commit a felony and without a premeditated intent to kill. But the jury, having convicted defendant of burglary in connection with the Clark and Weinhold murders and of rape in connection with the Weinhold murder, specifically rejected the theory that he entered the Clark and Weinhold residences without intent to commit a felony. In addition, there is no evidence that defendant entered the residences and then suddenly decided to kill the victims in an explosion of violence. All the evidence pointed to premeditation.
Even if we were to agree with defendant that the court should have instructed on second degree murder (and that this issue was not forfeited), any error in failing to give such instructions would have been harmless. The erroneous failure to instruct on a lesser included offense generally is subject to harmless error review under the standard of People v. Watson (1956) 46 Cal.2d 818, at pages 836-837. Reversal is required only if it is reasonably probable the jury would have returned a different verdict absent the error or errors complained of. [Citations.] (People v. Rogers (2006) 39 Cal.4th 826, 867-868, fn. omitted; and see id., p. 868, fn. 16 [the footnote describes potential exceptions for certain federal constitutional violations]; see also People v. Ledesma (2006) 39 Cal.4th 641, 716; People v. Sakarias, supra, 22 Cal.4th at p. 621 [a violation of the duty imposed by state law to instruct on lesser included offenses is evaluated under the Watson standard]; People v. Breverman (1998) 19 Cal.4th 142, 165 [same]; but see People v. Elliot, supra, 37 Cal.4th at p. 475 [characterizing erroneous failure to instruct on a lesser included offense as a denial of due process of law to be evaluated on appeal under the standard set forth in Chapman v. California (1967) 386 U.S. 18, 24].) Having considered whether the evidence supporting the existing judgment is . . . relatively strong, and the evidence supporting a different outcome is . . . comparatively weak (People v. Rogers, supra, 39 Cal.4th at p. 870), we do not believe it is reasonably probable that the absence of a second degree murder instruction could have affected the outcome of the jurys deliberations. Indeed any error would have been harmless beyond a reasonable doubt. As we have seen, the evidence in support of second degree murder verdicts not only was weak ― it was insubstantial, whereas the evidence relating to the manner and circumstances of each crime and the modus operandi and common marks among all the crimes overwhelmingly established premeditation.
Even assuming the existence of some evidence in support of defendants claim that he killed in a sudden, unpremeditated explosion of violence, we observe that the jury also convicted defendant of burglary as to five of the murders all but the Schultz murder, as to which burglary was not charged thereby necessarily determining that, contrary to defendants suggestion on appeal, defendant did not enter the victims residences lacking felonious intent. The verdicts also strongly indicate, in view of the facts underlying the crimes, that the jury believed defendant had committed five felony murders. In addition, the jury found true the special circumstance allegation that he killed Janene Weinhold in the course of a rape or attempted rape ( 190.2, subd. (a)(17)), thereby specifically establishing that the jury determined that the Weinhold murder was a felony murder. (See People v. Elliot, supra, 37 Cal.4th at pp. 475-476; People v. Chatman (2006) 38 Cal.4th 344, 392; see also People v. Hinton (2006) 37 Cal.4th 839, 883 [the jury necessarily rejected defendants sole defense of duress when it convicted him of attempted robbery, so that any lack of clarity in the second degree murder instructions was harmless].)
Further, we already have rejected defendants claim that there was insufficient evidence to support the burglary and rape verdicts involving the murder victims, and his renewal of this claim in the context of the present argument does not alter our conclusion. As for the remaining murder count involving the murder of Schultz, we do not believe the jury would have convicted defendant of second degree murder of Schultz had it been instructed on that offense, in light of the jurys verdicts as to the five other homicide charges.
Defendant contends that omission of the second degree murder instruction constituted federal constitutional error. Specifically, he asserts that if his state law instructional error claim is barred by the invited error doctrine, he still must prevail because the courts failure to instruct on second degree murder constituted a violation of his rights under the Eighth and Fourteenth Amendments to the United States Constitution. He relies upon Beck v. Alabama, supra, 447 U.S. 625, and related cases.[2] We have not relied upon the invited error doctrine in rejecting defendants instructional claim, however. Defendant adds that his federal constitutional argument applies regardless of the cause of the courts failure to instruct, relying upon the same principles. We also reject this claim. Beck v. Alabama, supra, 447 U.S. 625, and its progeny do not require that a court instruct upon a lesser included offense as to which substantial evidence is lacking. (People v. Valdez, supra, 32 Cal.4th at p. 118 [Because there was no substantial evidence supporting an instruction on second degree murder, the high courts decision in Beck is not implicated].) Nor, unlike the situation in the Beck case, does our state prohibit the giving of lesser included offense instructions in capital cases. Nor under our state law can the absence of a lesser included offense instruction force the jury into a choice between acquittal and a murder conviction that necessarily would lead to the death penalty; even after finding true an alleged special circumstance, a California jury may elect to sentence the defendant to life in prison without the possibility of parole. (People v. Valdez, supra, 32 Cal.4th at pp. 118-119.)[3]
Defendant further contends that the absence of a second degree murder instruction violated the federal constitutional principle that the jury, not the court, must decide the factual basis for every element of a criminal charge, and essentially constituted a directed verdict of first degree murder. He urges that the standard of review for federal constitutional error established in Chapman v. California, supra, 386 U.S. 18, 24, should apply.
Contrary to defendants claim, the courts failure to instruct on second degree murder did not constitute a directed verdict of first degree murder. Defendants reliance on People v. Figueroa (1986) 41 Cal.3d 714, is misplaced. In that case the trial court instructed the jury on all the elements of the charged securities law violation, including the requirement that the item at issue actually be a security. Then the court instructed the jury that the item was a security, thereby improperly removing that element from the jurys consideration. In the present case, however, the court did not instruct the jury that any element of the crime of murder had been established.
Finally, defendant contends that omission of the second degree murder instruction caused the jury to fail to fix the degree of the crime as required by section 1157, which requires that when a defendant is convicted of a crime that is divided into degrees, the fact finder must find the degree of the crime and that failing such action by the fact finder, the crime will be deemed to be of the lesser degree. ( 1157.) This claim lacks merit. The question of degree properly was not before the jury, and section 1157 had no application. (See People v. Mendoza, supra, 23 Cal.4th at p. 910.) That statute does not require the jury to make a determination of the degree of the murder when substantial evidence does not exist that would warrant the jurys considering the homicide to be anything less than first degree murder. Defendant fails to provide any authority or persuasive argument to the contrary.
11. Testimony of Anna Cotalessa-Ritchie
Over defense objection that the evidence was more prejudicial than probative and should be excluded pursuant to Evidence Code sections 352 and 1101, Anna Cotalessa-Ritchie testified as follows. She resided in the Buena Vista Gardens apartment complex. At approximately noon on March 25, 1990, a few days prior to the April 3, 1990 murder of Holly Tarr, the witness walked from her residence to a nearby convenience store. On her way to the store she saw defendant, whom she later identified, standing at a bus stop across the street from the store. On her return, at first she did not see defendant, but then observed him walking toward her as she walked toward her home. He stared at her during the time it took for her to proceed approximately 50 yards, until they crossed paths. Several times she looked away and looked back, and he still was staring at her. She passed him and proceeded 20 to 30 yards to the door of her second-story apartment. She fumbled for her keys for a moment, then noticed defendant, now standing at the foot of the stairs staring at her. When she looked at him, he bent over as if to tie his shoes, which already were tied, but continued to stare at her. She entered the apartment and locked the door. The incident made her nervous, and she informed her husband of it. She reported the incident to the police the day after the Tarr murder. In June 1991, she identified defendant at a video lineup, having been instructed not to view any publicity regarding the case prior to the lineup. In his offer of proof, the prosecutor stated that the witness was a young woman in her early 20s.
The prosecution offered the foregoing testimony on the issue of identity and as evidence of modus operandi, relying upon the asserted similarity between the incident and the crimes committed against Tarr and Weinhold. The court overruled defendants objection, explaining that the incident occurred close in time and place to the Tarr and Weinhold murders, adding its determination that the evidence was not more prejudicial than probative.
Ordinarily, evidence of a persons character is inadmissible to demonstrate his or her conduct on a particular occasion (Evid. Code, 1101, subd. (a)), except that evidence is admissible to establish that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act. (Evid. Code, 1101, subd. (b).) Evidence going to the issue of identity must share distinctive common marks with the charged crime, marks that are sufficient to support an inference that the same person was involved in both instances. (People v. Gray (2005) 37 Cal.4th 168, 202.) A somewhat lesser degree of similarity is required to show a common plan or scheme . . . . (People v. Ewoldt (1994) 7 Cal.4th 380, 402-403.) . . . [W]e review the trial courts ruling . . . for abuse of discretion. [Citation. (People v. Gray, supra, 37 Cal.4th at p. 202.)
The trial court did not abuse its discretion. Cotalessa-Ritchies testimony provided evidence of defendants other act that was relevant to issues apart from his character or disposition, namely identity and common scheme or plan. There was evidence that defendant had followed other victims including witnesses who testified at trial to their homes during the middle of the day; Tarr and Weinhold were murdered in their apartments in the same complex where Cotalessa-Ritchie resided and at the same time of day. The women had been murdered within a short time of the Cotalessa-Ritchie incident, and Schultz was murdered in an adjacent complex. There was evidence that murder victims Tarr and Schultz both had been followed home by a young African-American man after they left their apartments for a brief period, and murder victim Weinhold had gone in and out of her apartment while doing laundry. Schultz, Tarr, and Weinhold had been followed up a flight of stairs to their second-story apartments; defendant followed Cotalessa-Ritchie to the bottom of the stairway leading to her second-story apartment. Finally, Cotalessa-Ritchie was of a similar age and belonged to the same race and gender as all the murder victims and most of the other burglary or attempted burglary victims. It was within the trial courts discretion to conclude that the Cotalessa-Ritchie incident was highly similar to the stalking activity engaged in by the perpetrator of several of the other charged crimes, thereby providing evidence that it was defendant and not some other man who committed the charged crimes. The trial court properly could find that the similarity of the incident to the evidence of defendants stalking behavior in many other instances provided evidence of a common scheme or plan. Nor was the evidence of the incident more prejudicial than probative.[4]
12. Exclusion of third party culpability evidence
Defendant contends the trial court erred in excluding certain third party culpability evidence. Specifically, defendant made an offer of proof that Faie Fiorito would testify that a young African-American man watched her as she worked out at the Family Fitness Center located on Balboa Avenue in San Diego at approximately 6:30 p.m. on April 9, 1990. When she emerged into the parking lot some minutes later, the man was seated behind her automobile and seemed to be trying to examine her vehicle license plate and write something down. She watched for two minutes, then drove home and telephoned the police. She participated in the live lineup and would testify that defendant was not the person who had watched her on that occasion, although that person met the general description of the assailant in the series of murders with which defendant was charged.
Story continues as Part VII .
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[1] We note defendants statement to the trial court: I do not want second degree at all. Ill use the courts words, all or nothing. The court pressed him on his understanding of the issue, and defendant responded, What youre trying to tell me, your honor, is that if I was to be found guilty and I have to go back to the appeal, I cant say that it was your fault on the error because those are my wishes. [] But I still say [] the same thing. I do not want second degree. Because I feel that second degree is telling the jury that I [did] something. I do not want that at all. Later he said: I havent done anything. So why should I go any lower to second degree.
[2] The law at issue in Beck prohibited giving lesser included offense instructions in capital cases while they remained available in noncapital cases. Additionally, the jury was instructed that if they found the defendant guilty, they were mandated to impose the death penalty. (Beck, supra, 447 U.S. at p. 639, fn. 15.) In such a case, the jury was left with only two options: to convict the defendant of the capital crime, in which case they were required to impose the death penalty, or to acquit. (Hopkins v. Reeves (1998) 524 U.S. 88, 95.) (People v. Valdez, supra, 32 Cal.4th at p. 118, fn. 23.)
[3] Because the court must instruct on lesser included offenses for which there is evidence of substantial weight without respect to the wishes of the prosecution or the defense, we need not reach defendants claim that it would constitute a denial of equal protection and other constitutional rights to adopt an arbitrary system whereby some, but not all, defendants are permitted to control instruction of the jury on lesser included offenses, depending upon the policy of the individual court in which the defendant happens to appear. We need not respond to defendants claim that the courts failure to instruct on second degree murder removed an element of the offense from the jurys consideration and constituted an impermissible directed verdict, because there was no substantial evidence suggesting that defendant had committed second degree murder.
[4] Defendant contends admission of the evidence arbitrarily deprived him of a state entitlement in violation of federal 5th and 14th Amendment due process rights . . . and affected the reliability of the guilt verdict that later supported a death judgment, violating [defendants] federal 8th and 14th Amendment rights. Because we have not found a violation of state law and because the evidence did not undermine the reliability of the guilt verdict, we reject this claim.
