A racist drifter with his roots in northeast Texas, Webb would travel widely in the service of the outlaw motorcycle gangs to whom he owed his first allegiance.
Jailed for a hometown burglary at age 20, in 1972, he reportedly killed his first victim a year later. The victim was gay, selected at random because, as Webb explained, "I don't like homosexuals." There would be other murders in the years to come.
According to his subsequent confessions, Webb agreed to kill a man as part of his initiation to a biker gang, later serving the group as a hired gun, executing at least one murder-for-hire.
A black victim was shot down because of his race, and Webb confessed to killing "one or two" others when they interrupted his looting of their homes. Convicted of robbery and aggravated kidnapping in Utah, during 1981, he struck a plea bargain with prosecutors, serving five and a half years before his parole in December 1986. Webb lasted two months on the street before killing again.
On February 5, 1987, he invaded the home of John and Lori Rainwater, in Atascadero, California. Lori was just home from the hospital, With her five-day-old son, but Webb was deaf to her pleas for mercy as he bound both adults with surgical tape, raping man and woman alike before he shot them to death execution-style. (The newborn infant and his 18-month-old sister were unaccountably spared.)
Tried for his latest rampage in June 1988, Webb was convicted on two counts of first-degree murder, with one count each of burglary and robbery thrown in for good measure.
During the penalty phase of his trial, on July 15, the defendant removed his shirt in court, displaying the various gang tattoos that denoted his murders, begging the jury to recommend death. Facing the panel impassively, he said, "I have no feelings, ladies and gentlemen. My heart is a block of ice."
Taking Webb at his word, jurors deliberated for ninety minutes before granting his wish.
Michael Newton - An Encyclopedia
of Modern Serial Killers - Hunting Humans
Dennis Webb: Sentenced to death in
Dennis Duane Webb was sentenced to
death in 1988 for torturing and killing a young Atascadero couple.
On the night of Feb. 4, 1987, Webb broke into the
home of John and Lori Rainwater, devout Christians who managed a 14-unit
lodge at 8750 El Camino Real. The intent was to rob the couple,
prosecutors said during the trial, but he spent the night beating and
John Rainwater, 25, was bludgeoned five times in the
back of the head. His wife, 22-year-old Lori Rainwater, was struck four
times in the back of the head.
The wounds, which split their scalps to their skulls,
possibly were caused by pistol-whippings, a pathologist testified.
The couple's wrists and ankles were bound with nylon
stockings, duct tape and belts. They also were gagged. The bonds were
left on between 30 minutes and seven hours and were so tight that they
Somehow, the couple got partially loose around 6 a.m.
and ran, screaming, out of their home, only to be gunned down.
John Rainwater was shot in the chest from within a 2-foot
range. He was then shot in the back of the head; the gun that caused
that wound was just a few inches away. The head wound killed Rainwater
Lori Rainwater suffered one gunshot
wound — caused by a gun that possibly was touching her head when fired.
That wound caused an immediate loss of consciousness and death within a
Investigators found blood all over the interior of
the Rainwaters' two-bedroom home. Furnishings were knocked over and
Blood was discovered on a door, a desk, a broken
bookshelf, three walls, a curtain, the floor, a bed, a coat and a
Two trails of blood were found leading from the front
door of the home.
When authorities arrived at the lodge, they found the
Rainwater children, a 15-month-old girl and a 7-day-old baby boy,
underneath their mother's naked body. Although covered with dirt and
broken glass, the girl was not injured and the boy had only slight
scrapes to his head.
The children lived with relatives after their parents
were killed. In 1988, a family member said they were too young to have
suffered any psychological damage from seeing their parents gunned down.
Police did not have any suspects in the case until
Webb's former girlfriend went to the police approximately two months
after the slayings.
Investigators said Webb didn't act alone, and while
they think they know who his accomplice was, they never had enough
evidence to bring a case to trial. The suspect died while a patient at
Patton State Hospital.
During the sentencing phase of the trial, Webb got a
chance to speak — and shocked the courtroom when he claimed
responsibility for five other murders. He also asked for the death
"I'm not here because my conscience is bothering me,"
he said. "I haven't got any remorse. I don't care."
At times during his testimony, Webb laughed. He also
took off his shirt and pointed out tattoos memorializing his past
Webb was convicted of burglary, robbery and two
counts of first-degree murder. He was not charged with sexual assault,
though prosecutors contended throughout the trial that Webb raped Lori
Rainwater and sodomized John Rainwater.
Just before the sentence was read, people in the
courtroom cried out, imploring Webb to reveal who else had been involved
in murdering the couple. Webb refused, but hinted that he an accomplice
when he said, "It's bad enough that I have to ride this beef alone."
In August 1988, Webb was sentenced to die. He laughed
when the verdict was read.
SEX: M RACE: W TYPE: N MOTIVE:
MO: Outlaw blker; killed robbery
victims, and gays from personal spite; contract killer; raped victims of
DISPOSITION: Condemned in Calif.,
PEOPLE, Plaintiff and Respondent,
DENNIS DUANE WEBB, Defendant and Appellant.
(Superior Court of San Luis Obispo County, No. 14497, Warren C. Conklin,
by Baxter, J., with Lucas, C. J., Panelli, Arabian and George, JJ.,
concurring. Separate concurring and dissenting opinion by Mosk, J.
Separate concurring and dissenting opinion by Kennard, J., with Mosk,
Defendant Dennis Duane Webb was convicted by a jury of two counts of
first degree murder (Pen. Code, § 187), fn. 1
one count of robbery (§ 211), and one count of burglary (§ 459). The
jury found that defendant personally used a firearm in the commission of
each offense (§§ 12022.5, 1203.06). Under the 1978 death penalty law (defendant
was sentenced to death), three special circumstances were found true-multiple
murder, robbery-murder, and burglary-murder (§ 190.2, subd. (a)(3),
(17)(i) & (17)(vii)).
find no prejudicial error at the guilt or penalty phases of defendant's
trial. The judgment will be affirmed in its entirety.
I. Guilt Phase Evidence
A. Prosecution Case
victims, John and Lori Rainwater, were a young married couple who lived
in and managed an apartment complex in the city of Atascadero, San Luis
Obispo County. On February 5, 1987, the day of the murders, the couple
had a 15-month-old daughter and a week-old son.
Rainwaters were last seen alive by a neighbor, Tim Clyde, about 9:45
p.m. on February 4. Clyde approached the complex from a phone booth
nearby and saw John and Lori standing with a large man in the beam of
the porch light at their front door.
Clyde noticed that Lori had an
unusual "frown" on her face, but he did not see the face of the large
man. Clyde was certain, however, that he was at least 6 feet tall and
weighed 200 to 220 pounds. Defendant fits this general description. As
explained further below, he met the victims shortly before the crimes
while searching for rental housing.
6 a.m. on February 5, eight hours after the incident described by Clyde,
residents of the complex were awakened by screams and gunshots. On a
walkway outside the units, Lori was found lying face down and dead in
a pool of blood. She was nude and had been
shot once in the head at point-blank range. Her two children were found
pinned underneath her body, essentially unharmed.
John's dead body elsewhere on the grounds. He was also nude, and gunshot
wounds had been inflicted at close range to his head and chest. A trail
of blood led from the Rainwaters' apartment to the spot where each body
condition of the victims' bodies suggested they had been held captive
for some time before their deaths. A nylon stocking was tied as a gag
through each victim's mouth. On John, the stocking ran down his back and
was wrapped around his hands, which were tied behind him with a cloth
belt. Another stocking was tied around one of John's ankles, and one of
Lori's wrists was similarly bound. Ligature marks were found on the
victims' unbound wrists and ankles.
The autopsy physician opined that
some of the bindings had been present for "at least several hours"
before death. In addition, residue consistent with adhesive tape was
found on the back of John's arms and neck.
was evidence the Rainwaters had been beaten during the ordeal. The
autopsy disclosed several deep, blunt force lacerations on each victim's
scalp. Miscellaneous abrasions and bruises were found on both bodies.
Lori's thighs were smeared with blood.
foreign pubic hair was found on Lori's vulva (external genitalia). The
two prosecution experts who examined the hair did not find it to be
consistent with sample hairs taken from Lori's husband or from
.38-caliber bullets of an uncommon variety described further below were
recovered from John's body. (The bullet that killed Lori was not
authorities arrived shortly after the shootings, the Rainwaters' bed was
burning. Expert testimony indicated that the fire burned for only a few
minutes and could have been intentionally set.
apartment was in disarray and the victims' blood was spattered on many
surfaces. The following items were seized: a roll and several yards of
used duct tape; a label for "Shurtape Cloth Tape, K-Mart, $3.97;" two
makeshift "mittens" made from socks wrapped with duct tape; a tan ski
jacket bearing a Sears label; a pack of
Camel Light cigarettes found inside a pocket of the jacket; and a Camel
Light cigarette butt found in the bed.
Investigators discovered a total of $307 in various places in the
apartment. fn. 3
However, other money belonging to the victims appeared to be missing. fn. 4
Defendant's activities during the relevant time period were described in
large part by his girlfriend, Sharon White Bear. Sharon testified that a
month or so before the crimes, defendant moved from Utah to San Luis
Obispo County to be near her. fn. 5
Sharon lived in the town of Paso Robles, and defendant initially rented
a motel room on a weekly basis in nearby Atascadero. He worked for low
hourly wages at a local construction site, and soon started searching
for more affordable housing in the same area.
Because of a vacancy sign out front, defendant and Sharon visited the
Rainwaters' complex four different times in the three weeks preceding
the crimes. A resident of the complex testified that he directed them to
the Rainwaters' unit on one of these occasions. According to Sharon,
spoke with Lori once and with Lori and
John another time. During one of these visits, defendant learned the
couple collected rent from the tenants. Defendant ultimately rented an
Several witnesses testified that they saw defendant with Sharon's .38-caliber
Smith and Wesson revolver a few hours before the crimes on February 4.
Between 5:30 and 6 p.m. that day, defendant retrieved the gun from
Sharon's sister, Davene, and took it to Sharon's apartment. He admired
it in the presence of Sharon and her daughter, Arlene, and then placed
it in the storage room of Sharon's carport. Defendant left in his car
and did not return to spend the night with Sharon-an atypical occurrence.
According to Sharon and her daughter, defendant was first seen on
February 5 between 7 and 7:30 a.m., an hour or so after the Rainwaters
were shot. He arrived at Sharon's apartment freshly showered, asking for
a ride to work.
Sharon testified that later the same day, defendant bought a substantial
amount of cocaine from one Reuben Rangel. Much of the $2,300 or $2,400
purchase price came from money ($1,700) defendant had apparently earned
from prior drug sales and placed in Sharon's safe. An additional $400 or
$500 came from a white envelope he was carrying in his pants pocket at
the time. Sharon explained that defendant used cocaine and also sold it
to earn money for a motorcycle. She purchased three pounds of marijuana
from Rangel on the same occasion.
next day, February 6, a local task force executed a narcotics search
warrant at Sharon's apartment. The officers seized over three pounds of
marijuana and discovered defendant flushing "bindles" of cocaine down
the toilet. Defendant, Sharon, and one of Sharon's adult sons were
arrested at the scene. Officer Miller of the task force seized all three
of Sharon's handguns, including the .38-caliber Smith and Wesson
revolver, which was found in the carport storage spot used by defendant
two days earlier. Defendant told Sharon shortly after their arrest that
the gun could cause "trouble."
Although the .38-caliber revolver was inventoried and placed in an
evidence bag during the raid, Officer Miller inadvertently left it
behind in Sharon's apartment. The gun was discovered later the same
Sharon's sister, Davene, and by Michael
Rohde and his wife. Testimony by Davene and Mrs. Rohde indicated that
Michael became "excited" when he saw the gun. He promptly took it home,
buried it, and burned the evidence bag. Michael told defendant over the
phone the same night that the police "only got two [of Sharon's guns].
Everything's okay. Do you understand?"
Sharon was soon released on bail in the drug case, but defendant (a
parolee) remained in custody for four months until his arrest in this
case. Sharon testified that during the three months between the time of
her release and the time she first contacted police about the Rainwater
case, defendant made various statements indicating that he and possibly
Michael were involved in the killings.
first few statements concerned the .38-caliber revolver. In the week
following Sharon's release, defendant repeatedly demanded over the phone
that she retrieve the gun from Michael and "break it down and get rid of
it." Frightened by his tone, Sharon complied. She and her sister removed
the handgrips and some screws and springs, but were otherwise unable to
dismantle the gun. Sharon then drove alone to a coastal location known
as Ragged Point and threw the gun over the cliff. She discarded the
smaller pieces at various places along the highway.
Defendant also inculpated himself in the Rainwater crimes when Sharon
visited him in jail one day. Defendant, who was already "visibly upset,"
confirmed through Sharon that the police had released a composite
drawing of the killer. After first looking furtively in the direction of
jail guards, defendant stroked the spot on his shaven chin where a
goatee had been at the time of the murders. He also pulled the imaginary
trigger of a gun and simultaneously said "boom" three times (the total
number of gunshots sustained by the victims). After defendant made
additional statements of a guilty nature, fn. 7
Sharon expressed concern that both she and defendant had left
fingerprints in the Rainwaters' apartment when they inquired about the
vacancy. Defendant replied, "Trust me. Just trust me. We wiped it down
real good." Sharon did not visit defendant in jail after this exchange.
subsequent phone conversation, defendant told Sharon that he had
considered killing her but felt sympathy for her family. When she asked
if "it" (presumably the capital crime) was motivated by sex or money,
defendant said, "I'm no animal. It was money."
Sharon thereafter learned from defendant that Michael Rohde had been
arrested on unspecified charges. She immediately contacted the police
about the Rainwater crimes. The lead investigator for the district
attorney's office, William Hanley, testified that Sharon provided
information which linked defendant to the crimes but which was not known
by the general public.
example, Sharon gave Hanley the bullets that she kept around her house
at the time of the crimes. fn. 8
Testimony by several firearm and ammunition experts established that
Sharon's bullets were the same type that had been recovered from John
Rainwater's body (Remington .38-caliber 95 grain semi-jacketed hollow
point), and that only 3 percent of Remington's .38-caliber ammunition
fell into this category.
on information provided by Sharon, investigators searched Ragged Point
and found her partially dismantled Smith and Wesson revolver in a clump
of bushes near the water at the base of the cliff. Two expert witnesses
found various similarities between the gun and the fatal bullets but,
because of rust and corrosion, could not conclusively identify it as the
murder weapon. fn. 9
Investigator Hanley searched defendant's car pursuant to a warrant. A
roll of "Shurtape" similar to the duct tape and label found at the crime
scene was found underneath the passenger's seat. In addition, a local
Kmart receipt was found in a bag in the trunk of defendant's car. It
indicated that two $3.97 items (presumably the rolls of duct tape) had
been purchased from the home department about one hour before the
Rainwaters were last seen alive. (The time on the receipt was either
8:37 or 8:57 p.m.)
evidence further established that, a few weeks before the crimes,
defendant's mother sent defendant a tan Sears jacket from Texas similar
to the one found at the crime scene. Sharon and a salesclerk testified
defendant tried to return the jacket at
the Sears store in Paso Robles because it was too small for him. The
return was not processed, however, because the item could not be found
in the California catalog.
In addition, Michael Rohde's wife testified
that defendant was wearing the same type of jacket when he and Michael
left the Rohde home in defendant's car no later than 7:15 p.m. on the
evening of the crimes. Mrs. Rohde remembered the jacket because it was "way
too small" for defendant.
fingerprint expert, Martin Collins, testified that based in part on a
chemical and laser technique described later in part III.F., post, he
detected a partial print of defendant's little finger on a crumpled
piece of duct tape found at the scene.
investigator Hanley's request, Sharon agreed to secretly tape-record her
phone conversations with defendant in the month before he was charged
with the Rainwater crimes. (He was still in custody on noncapital
charges.) With Hanley's approval, Sharon occasionally raised topics
designed to elicit a response about the capital crimes. Defendant never
directly inculpated himself and occasionally said he thought the phones
were "bugged." However, in response to Sharon's false statement during
the first taped call that police found her fingerprint at the crime
scene, defendant said, "I told you there were no prints, what are you
talking about?" Sharon also initiated some dialogue about whether anyone
saw her throw a "dead cat" into the water and about defendant's
retrieval of the "weed" from Davene. Sharon testified that the quoted
phrases were disguised references to the .38-caliber revolver.
in the last phone call, the couple discussed the "advertisement"-an
apparent reference to a composite drawing the police were due to release
of the Rainwater suspect the same day. In response to Sharon's
suggestion that her sister was suspicious about defendant's whereabouts
the night of the crime, defendant falsely said, "Well, I was with you,
Honey." fn. 10
sought to prove in various ways that someone else committed the crimes.
of investigator Hanley, defendant elicited testimony that a neighbor of
the Rainwaters, Tim Lewis, claimed to have seen the killer and was the
focal point of the investigation before Sharon became involved. Lewis
apparently identified as many as three other men and then disavowed
Nevertheless, the defense called
certain witnesses to suggest that one of the suspects identified by
Lewis, Anthony Bradley, might have been involved in the capital crimes.
A grocery store clerk who worked across the street testified that she
saw two trucks parked near the complex at the time of the shootings and
that one of them had chains on the tailgate. (Testimony by Hanley
suggested that Anthony Bradley owned a truck with chains, but different
in color from either of the trucks seen by the witness.) A defense
criminalist also concluded that the foreign pubic hair recovered from
Lori was consistent with a sample provided by Anthony Bradley. fn. 12
In an apparent
effort to undermine Sharon's credibility, defendant also offered
testimony by drug dealer Reuben Rangel disputing certain details of the
drug transaction she had described. fn. 13
In addition, defendant's mother testified that the jacket found at the
crime scene was similar to one she bought at Sears and mailed to
defendant shortly before the crimes, but it did not have the initials
she recalls writing inside.
II. Penalty Phase Evidence
prosecution introduced a certified copy of a burglary conviction entered
upon defendant's guilty plea in Texas in 1972.
violent criminal activity.
couple, the Orrs, testified that on July 3, 1981, they owned a store and
gas station in rural Utah and lived in a trailer nearby. While walking
with the day's receipts towards the trailer one night, Mr. Orr heard a
shot and was accosted by defendant. Defendant threatened to kill and rob
Mr. Orr and said he had been "watching" the couple for a week. Defendant
accurately recounted some of the couple's recent activities and called
Orr by name in the trailer. Once all three people
were inside, defendant continued his profane threats and held Mrs. Orr
at gunpoint while ordering Mr. Orr to place the money in a bag.
Defendant then forced Mrs. Orr into the couple's car and, in the process,
shot Mr. Orr in the back of the neck and took the money. Defendant
stopped the car a short distance away and forced Mrs. Orr into another
vehicle. Meanwhile, Mr. Orr managed to call police. Defendant and Mrs.
Orr were soon stopped by a police roadblock. Mr. Orr testified that he
recognized defendant's weapon as a .38-caliber Smith and Wesson
1. Character and background.
total of 14 witnesses testified on defendant's behalf at the penalty
phase. They included several members of defendant's family, his ex-wife
and her family, a police officer, a former employer, and prison
officials. In addition, a social anthropologist, Dr. Isabel Wright,
researched defendant's hometown and family history and described
possible social and cultural influences on his life. Together, these
witnesses painted the following picture:
conceived out of wedlock when his parents were in their late teens. His
father graduated from high school but his mother did not. Defendant was
born in November 1951 (making him 35 at the time of the capital crimes).
Four more children were born in fairly quick succession.
For the most
part, the family lived in and around Mesquite, Texas. Dr. Wright
testified that the town operated under a strict moral code and was not
racially diverse or tolerant. Corporal punishment was apparently common
in the schools. The area experienced a population explosion between 1950
and 1970. According to Dr. Wright, the school and public safety systems
were "inadequate," and drug abuse was prevalent in the large teenage
During much of
defendant's childhood, his father earned a good living selling real
estate. According to defendant's mother, the family changed houses,
neighborhoods and school districts often, but typically lived in a "nice
home" until defendant's parents separated when he was about 18.
accounts, the family's home life was unstable. Defendant's father was
described by several witnesses, including himself, as a "workaholic" and
a heavy drinker. On the rare occasions he was home, he and his wife
argued. These arguments often became violent and sometimes resulted in
police intervention and serious physical injury to defendant's mother.
She often relied on defendant to defend her physically in these fights.
The father was not affectionate towards his children and his
disciplinary style was harsh.
mother apparently did not stress the value of education, and only one of
her children (not defendant) graduated from high school. Dr. Wright
believed defendant's mother had trouble displaying love towards her
children because she had grown up in an acrimonious and alcoholic home
and because she had married too young. Her disciplinary style was
described as "inconsistent"-sometimes too severe and sometimes too lax.
began having academic problems in the sixth grade. He was often truant
in junior high and high school, and he eventually left school in the
10th grade. As a teenager, he started using drugs and was apparently
detained or arrested by police for several minor offenses.
officer who knew defendant during his teens testified that he was
basically smart and likeable, but that he became hostile on drugs and
alcohol. Both the officer and defendant's uncle suggested that
defendant's life might have been different had he been given positive "direction"
during this period.
parents' divorce, defendant worked odd jobs to help support his mother
and younger siblings. Defendant's father continued to harass defendant's
mother and caused her to lose several jobs. Defendant introduced his
mother to a workmate, Homer, who developed a close relationship with the
family. Defendant's mother apparently bore a child by Homer. The family,
including defendant, grieved when Homer soon died.
At age 18 or 19, defendant married a local
girl. They committed a burglary together, and defendant was convicted
and placed on probation. His probation was later revoked, apparently
because he was involved in a drunkdriving accident. As a result,
defendant served about 20 months in the state prison at Huntsville,
Texas. Family members who visited him there noticed that he had become
withdrawn and sullen. He also experienced skin problems which were
treated only after his father repeatedly complained to prison officials.
At age 24, after he was released from prison and divorced
from his first wife, defendant remarried. His second wife, Sandra, two
of her four children, and the children's grandmother described defendant
as a responsible and caring husband and stepfather. The family moved
often during the six-year marriage and defendant held several jobs,
including ranch hand, truck driver,
coal miner. (Defendant survived a cave-in at the mine.) A truck company
owner who employed defendant for a year said he was one of the company's
"best" employees. However, while working away from home in July 1981,
defendant called Sandra and said he had been arrested in Utah. The
couple eventually divorced.
initially engaged in disruptive behavior toward inmates and staff while
imprisoned in Utah. A counselor blamed this period of adjustment on
defendant's harsh experiences in the Texas prison system, where the
inmates apparently performed hard labor. The Utah counselor testified,
however, that defendant's behavior quickly improved. He avoided conflict
with other inmates, seemed remorseful about his crimes, and "pioneered"
a prison art class. He apparently prevented one inmate from being
stabbed and sought medical aid for another stabbing victim. Defendant
also performed well in the prison's minimum security fire-fighting unit,
where he narrowly escaped injury in a forest fire and helped save an
2. Defendant's testimony.
defense counsel's objection and following a competency hearing and
determination, defendant testified in narrative form at the penalty
phase. He told the jury in clear and sometimes graphic terms that he did
not want life imprisonment and believed death was the only "appropriate"
penalty. Defendant explained that he had defied his parents' teaching
and societal mores and chosen a life of crime beginning at age 16. He
described four different murders for which he was never "busted"-a
contract murder, a homosexual murder, a race murder, and a burglary
murder. Defendant pointed to the tattoos on his arms which symbolized
these events. Defendant also indirectly admitted the capital crimes,
saying "[t]hose two kids, you know, all they was trying to do was raise
a family .... They made [the] mistake of crossing the path of me."
Defendant also said he had "manipulated" the prison system by
establishing an art class as a means of smuggling drugs into prison and
by tricking officials into believing he was trying to save the lives of
inmates he had actually stabbed. Finally, defendant made clear that his
testimony was not based on a guilty conscience, but on the realization
that he was heartless and would not change: "Some people are salvageable,
you know. I'm not. [¶] What do you do with a man that does [not] have
any feeling? What do you do with a man that doesn't care? What do you do
with a rabid dog? Put it to sleep."
III. Pretrial and Guilt Phase
Defendant contends the trial court erred in denying his motion to change
venue from San Luis Obispo County. The motion was initially made and
denied without prejudice before jury selection began. Contrary to what
the parties state or imply in their appellate briefs, the motion was
renewed near the close of voir dire and denied a second time.
In determining whether a change of venue is warranted, the trial court
typically considers the nature and gravity of the offense, the size of
the community, the status of the defendant, the prominence of the victim,
and the nature and extent of the publicity. On appeal, the defendant
must show that the court "erred in denying the change of venue motion,
i.e., that at the time of the motion it was reasonably likely that a
fair trial could not be had, and that the error was prejudicial, i.e.,
that it was reasonably likely that a fair trial was not in fact had." (People
v. Edwards (1991) 54 Cal.3d 787, 807 [1 Cal.Rptr.2d 696, 819 P.2d
436].) We sustain any factual determinations supported by substantial
evidence, and independently review the court's determination as to the
reasonable likelihood of a fair trial. (Ibid.)
The charged offenses involved a tragic double slaying and were very
serious. However, as the trial court recognized, all remaining factors
were neutral or weighed against a change of venue.
record indicates that a few months before jury selection began, San Luis
Obispo was a moderately sized county with a total population of almost
200,000. By contrast, motions to change venue have been granted where
the county is relatively isolated and small. (See, e.g., Martinez v.
Superior Court (1981) 29 Cal.3d 574, 582 [174 Cal.Rptr. 701, 629
P.2d 502] [Placer County, population 106,500]; People v. Tidwell (1970)
3 Cal.3d 62, 64 [89 Cal.Rptr. 44, 473 P.2d 748] [Lassen County,
record also does not support defendant's claim that the media
characterized him as a "pariah." His status as a recent parolee from
another state was mentioned, but some articles also observed that he
lived and worked in the local community.
Contrary to what defendant argues, any "posthumous prominence" achieved
by the victims through news accounts of their deaths did not favor a
change of venue. Defendant concedes the Rainwaters led quiet, relatively
obscure lives. As a result, the community was not likely to have
a uniquely heightened sense of loss or
anger which would presumably be alleviated by trial in another county.
Any sympathetic features of the case would be apparent wherever it was
Defendant characterizes the extent of news coverage as "unclear" but
presumably vast, and he points to numerous requests by the media to
cover courtroom proceedings before and during trial. However, the record
discloses only a modest number of printed news stories-19 by our count-most
of which circulated almost a year before jury selection and trial.
Defendant also places great emphasis on a phone survey he conducted
shortly before the first venue ruling suggesting that a high percentage
of county residents recalled the basic facts of the crimes and that many
knew about the community's efforts to help the victims' children.
However, relatively few survey participants indicated that they were
aware of information connecting defendant to the crimes, that they
believed he was guilty, or that they would have been unable to act
impartially as jurors.
one or two exceptions, the articles described the crimes and defendant's
alleged involvement in nonsensational terms. Many accounts simply
reported the procedural progress of the case through the court system.
Some also focused on the lack of any eyewitness identification of
Finally, there is no reasonable likelihood defendant did not receive a
fair trial. He does not dispute that most of the actual jurors and
alternates indicated during jury selection that they knew little or
nothing about the crimes. Defendant specifically complains in his reply
brief about the potential effect of pretrial publicity on only one juror,
Ms. Hall. However, jurors "need not be totally ignorant of the facts and
issues," and we have no reason to doubt statements made by Juror Hall
during voir dire indicating that she could be fair and impartial. (People
v. Cooper (1991) 53 Cal.3d 771, 807 [281 Cal.Rptr. 90, 809 P.2d
865].) fn. 14
conclude defendant has not established error or prejudice in the denial
of his venue motions.
B. Sharon's Psychiatric
Shortly after the complaint was
filed in the municipal court in this case, defendant subpoenaed a
private psychiatrist and a county mental health
center for records relating to psychotherapy administered to Sharon
White Bear before she contacted the police and became a prosecution
witness in this case. The subpoenaed parties transmitted the records to
the court under seal and claimed they were protected under the
psychotherapist-patient privilege. (See Evid. Code, § 1010 et seq.) With
the exception of "sanitized" excerpts discussed below, the contents of
the records have apparently never been seen by defendant, his counsel,
or the People.
Defendant sought disclosure of Sharon's records on three separate
occasions below: in the municipal court before the preliminary hearing,
in the superior court before trial, and in postjudgment proceedings to
correct and settle the record in superior court. (The last two motions
were made before Judge Conklin, who presided at trial in this case.)
Fairly summarized, the same basic arguments, procedures, and rulings
were involved at every stage as follows:
Defendant argued that assuming the psychiatric records showed Sharon
suffered from "delusions" or other mental disorders affecting her
competence or credibility as a witness, defendant's right to "fairly
cross-examine" her under the due process and confrontation clauses of
the federal Constitution would prevail over any state law privilege or
privacy interest Sharon might otherwise claim in the records. The
prosecutor seemed to agree that disclosure could be compelled to the
extent the records contained the type of information identified by the
Following in camera reviews urged by both parties, the magistrate, and
later the superior court, found little "relevant" information in the
psychiatric records and concluded they were privileged in most respects.
At both levels, trial counsel was informed that the records showed
chronic drug and alcohol abuse and a history of depression and anxiety
for which tranquilizers had been prescribed. However, in words uttered
by the magistrate and reiterated by Judge Conklin, there was absolutely
no indication that Sharon suffered from or was diagnosed with any "thought
difficulties, ... delusions, hallucinations," or other "mental illness
that would in any way affect her ability to perceive, recollect or
relate events that she had witnessed."
The magistrate further disclosed
that the records showed Sharon had told her therapist about defendant's
arrest in the capital case. The prosecutor conceded the latter
information was discoverable. In an apparent abundance of caution, the
magistrate also furnished counsel on both sides with confidential "sanitized"
copies of records arising out of Sharon's therapy sessions from the time
of the capital crimes forward.
note that all psychiatric materials are included as sealed exhibits in
the record on appeal. Appellate counsel and the Attorney General have
received access to the same "sanitized" excerpts made available to trial
counsel. fn. 15
fn. 16.) We further note that on crossand redirect examination at trial,
Sharon disclosed that she had been undergoing psychiatric treatment for
anxiety and substance abuse for several years, up to and including the
time of trial, and that tranquilizing medication had been prescribed
throughout that time. fn. 16
Defendant argues here, as below, that limited pretrial disclosure of the
psychiatric records prejudicially undermined his right to cross-examine
Sharon effectively at trial. Defendant relies primarily on Pennsylvania
v. Ritchie (1987) 480 U.S. 39 [94 L.Ed.2d 40, 107 S.Ct. 989] (Ritchie),
which discusses a criminal defendant's federal constitutional rights in
this context. fn. 17
Simply stated, it is not clear whether or to what extent the
confrontation or compulsory process clauses of the Sixth Amendment grant
discovery rights to the accused. (See
Ritchie, supra, 480 U.S. 39, 51-54 [94 L.Ed.2d 40, 53-55] (plur. opn. of
Powell, J.), 55-56 [94 L.Ed.2d 56-57] (maj. opn. of Powell, J.); Delaney
v. Superior Court (1990) 50
Cal.3d 785, 805-806, fn. 18 [268 Cal.Rptr. 753, 789 P.2d 934].) However,
the due process clause requires the "government" to give the accused all
"material" exculpatory evidence "in its possession," even where the
evidence is otherwise subject to a state privacy privilege, at least
where no clear state policy of "absolute" confidentiality exists. (Ritchie,
supra, 480 U.S. at pp. 56-58 [94 L.Ed.2d at pp. 56-58].) When the state
seeks to protect such privileged items from disclosure, the court must
examine them in camera to determine whether they are "material" to guilt
or innocence. (Id., at pp. 57-61 [94 L.Ed.2d at pp. 57-60].)
supra, the high court held that a complete in camera review of
confidential records generated by a state agency as part of a
molestation investigation was required where the defendant claimed they
might undercut the complaining witness's credibility and where state law
did not bar their disclosure under all circumstances. (Id., at p. 61 [94
L.Ed.2d at p. 60].)
At the outset, we question whether records stemming from Sharon's
voluntary treatment by private and county therapists can be deemed "in
the possession" of the "government" in the manner assumed by Ritchie.
The records were not generated or obtained by the People in the course
of a criminal investigation, and the People have had no greater access
to them than defendant. Given the strong policy of protecting a
patient's treatment history, it seems likely that defendant has no
constitutional right to examine the records even if they are "material"
to the case.
However, even assuming Ritchie applies, no error occurred. On three
different occasions, the lower courts examined the records in camera and
concluded that, with minor exceptions, they contained no information
significant enough to override Sharon's privilege of confidential
psychotherapy. Any information having any arguable bearing on defendant,
the capital crimes, and Sharon's ability to testify truthfully and
accurately was disclosed. Our own careful review of the records supports
all prior judicial characterizations of their contents. We therefore
find no error in the restrictions placed on defendant's discovery of
Sharon's psychiatric records.
C. The Revolver
Defendant claims the trial court erred in denying his pretrial motion to
dismiss the case or, alternatively, to suppress the .38-caliber revolver
on the ground that the police failed to adequately preserve it from
destruction within the meaning of California v. Trombetta (1984) 467 U.S.
L.Ed.2d 413, 104 S.Ct. 2528]. Evidence before and during trial indicated
that the police found and seized the revolver while executing an
unrelated narcotics search warrant at Sharon's apartment the day after
the Rainwater murders, but that they accidentally left the weapon behind
when they departed. Sharon later tried to dismantle and dispose of the
gun at Ragged Point because defendant told her to "get rid of it."
Defendant argues here, as below, that if the police had not failed to
confiscate the gun it would not have undergone deterioration at Ragged
Point and it might have been conclusively eliminated as the murder
weapon. We find no error.
The relevant principles have been discussed many times before. (See, e.g.,
People v. Zapien (1993) 4 Cal.4th 929, 964-965 [17 Cal.Rptr.2d 122,
846 P.2d 704]; People v. Hardy (1992) 2 Cal.4th 86, 165-166 [5 Cal.Rptr.2d
796, 825 P.2d 781]; People v. Cooper, supra, 53 Cal.3d 771, 810-811.) "Whatever
duty the Constitution imposes on the States to preserve evidence, that
duty must be limited to evidence that might be expected to play a
significant role in the suspect's defense. [Fn.]
To meet this standard
of constitutional materiality [citation], evidence must both possess an
exculpatory value that was apparent before the evidence was destroyed,
and be of such a nature that the defendant would be unable to obtain
comparable evidence by other reasonably available means." (California v.
Trombetta, supra, 467 U.S. 479, 488-489 [81 L.Ed.2d 413, 421-422],
italics added.) More recently, the high court held that "unless a
criminal defendant can show bad faith on the part of the police, failure
to preserve potentially useful evidence does not constitute a denial of
due process of law." (Arizona v. Youngblood (1988) 488 U.S. 51, 58 [102
L.Ed.2d 281, 289, 109 S.Ct. 333].) fn. 18
We doubt the foregoing cases create an official duty to protect evidence
from a suspect's own deliberate attempts to destroy it. The due process
principles invoked by defendant are primarily intended to deter the
police from purposefully denying an accused the benefit of evidence that
is in their possession and known to be exculpatory. (Arizona v.
supra, 488 U.S. 51, 58 [102 L.Ed.2d 281,
Here, however, police conduct in leaving the revolver in
Sharon's apartment can "at worst be described as negligent." (Ibid.) It
was defendant who-evidently concerned about the gun's inculpatory value-frightened
Sharon into disposing of it at Ragged Point. Common sense suggests that
defendant, not the police, should be held accountable for any ensuing
damage that made it impossible to conclusively identify or eliminate the
gun as the murder weapon.
constitutional violation occurred for another obvious reason-the
revolver has never had any discernible exculpatory value. Officer Miller
testified that he attempted to confiscate the gun along with two other
weapons because he believed that Sharon and defendant, as ex-felons,
were prohibited from possessing firearms. Thus, in any narcotics
prosecution or parole revocation hearing arising out of the search of
Sharon's apartment, the revolver might have been relevant only insofar
as it formed the basis of additional criminal charges against defendant.
noted by the trial court, the revolver also had no known connection to
the capital crimes at the time the narcotics task force purportedly
mishandled it. Testimony by Officer Miller and investigator Hanley
indicated that officials were not aware of defendant's possible
involvement in the murders until Sharon contacted Hanley three months
after the task force searched her apartment. All evidence that has since
surfaced about Sharon's revolver strongly suggests that it was the
murder weapon. Nothing in the record indicates that ballistics tests
performed under different conditions would have reached a contrary
also reject defendant's claim that the trial court erred in denying his
separate pretrial motion to exclude the revolver as irrelevant and
unduly prejudicial. (Evid. Code, §§ 210, 352.) The motion was premised
on the fact that the gun was never conclusively identified as the murder
However, ample evidence established that the Rainwaters were killed with
special .38-caliber bullets, that defendant had access to the same
bullets and to Sharon's .38-caliber revolver shortly before the murders,
and that he attempted through Sharon to destroy the gun afterwards.
Recovery of the deteriorated gun from a remote location specified by
Sharon corroborated her testimony that she disposed of the weapon at
The gun, expert ballistics testimony, and
Sharon's account tended to confirm the inference that the gun found at
Ragged Point was used to kill the Rainwaters and that defendant was
involved in the crimes. We conclude the trial court did not abuse its
discretion in determining that the probative value of the gun
substantially outweighed any prejudicial impact.
D. The Search of Defendant's
renews his pretrial claim that certain items connecting him to the crime
scene-the Kmart receipt and a roll of duct tape-should have been
suppressed because the affidavit submitted in support of the warrant did
not establish probable cause to search his car.
defendant's suggestion, the magistrate could properly conclude, under
the "totality of the circumstances," that there was probable cause to
believe contraband or evidence would be found in the car. (Illinois v.
Gates (1983) 462 U.S. 213, 238 [76 L.Ed.2d 527, 548, 103 S.Ct. 2317].)
The warrant issued about two weeks after Sharon first contacted
investigator Hanley about the Rainwater crimes. Hanley's affidavit and a
report he had prepared and attached thereto described, at length, the
circumstances surrounding the murders, Sharon's identity and
relationship to defendant, and the information she had provided
concerning defendant's possible involvement in the crimes. The warrant
materials also suggested that defendant had used the car the night and
morning of the crimes, and they identified the evidence likely to be
found therein, including duct tape.
The affidavit also described other
evidence that corroborated Sharon's account, including the jacket found
at the crime scene, the .38-caliber revolver found at Ragged Point, the
results of ballistics tests on the revolver and the fatal bullets, and
the similarity between the fatal bullets and Sharon's bullets. The
affidavit materials noted that defendant had been in custody on drug
charges during the three and a half months since the murders had
occurred, thus suggesting he had not removed any evidence from the car
in the interim.
primarily criticizes the affidavit for failing to adequately disclose
Sharon's "true character," including her prior felony conviction, her
psychiatric treatment history, her alleged perjury at defendant's parole
revocation hearing, the drug charges pending against her as a result of
the search of her apartment, and her attempted destruction of the
probable murder weapon. Defendant insists that these omissions were
deliberate and material, and that the magistrate was misled to believe
Sharon was an "innocent" citizen whose hearsay statements to
investigator Hanley were presumptively reliable. (See Franks v. Delaware
(1978) 438 U.S. 154, 171-172 [57 L.Ed.2d 667, 681-682, 98 S.Ct. 2674].)
The affidavit materials stated that Sharon earned money "dealing
marijuana out of her apartment." The magistrate could reasonably infer
that criminal charges were pending against Sharon based on additional
statements that she and defendant were recently "arrested" by the
narcotics task force and that she "bailed out" of jail on drug charges.
materials also described Sharon as
an "ex-convict" in the possession of three handguns at the time of her
arrest, including a stolen .38-caliber revolver. The materials
identified the revolver as the probable murder weapon and described
Sharon's attempts to keep the police from tracing it to defendant.
In short, we
deem it unrealistic to require that a warrant affidavit include an
informant's detailed drug and psychiatric history, or every past act
that can be considered unlawful or dishonest. As the trial court
concluded in denying defendant's suppression motion, no material
omissions concerning matters bearing on Sharon's reliability as an
informant are apparent. The court did not err in denying defendant's
motion to suppress evidence seized from his car. fn. 19
Conklin ruled on various pretrial motions discussed above (venue,
discovery of Sharon's psychiatric records, admissibility of the .38-caliber
revolver, and suppression of evidence seized from defendant's car). The
case was subsequently assigned to another judge for trial, but he was
recused. The matter was retransferred and assigned to Judge Conklin for
trial. Defendant immediately filed a peremptory challenge under Code of
Civil Procedure section 170.6.
The motion was denied as untimely on the ground that Judge Conklin had
already resolved contested issues closely related to the merits of the
case. (See In re Abdul Y. (1982) 130 Cal.App.3d 847, 857-861 [182
Cal.Rptr. 146].) Defendant's petition for writ relief in the Court of
Appeal was summarily denied.
 We agree
with the Attorney General that defendant's peremptory challenge is not
reviewable on appeal. We recently held that litigants challenging denial
of a judicial disqualification motion must seek mandate as provided in
Code of Civil Procedure section 170.3, subdivision (d), fn. 21
and that this expedited procedure is the exclusive means for reviewing
an unsuccessful peremptory challenge filed under section 170.6 of the
code. (People v. Hull (1991)
1 Cal.4th 266, 268 [2
Cal.Rptr.2d 526, 820 P.2d 1036] [Hull].) Hull relied on the pertinent
statutory language and on the Legislature's obvious intent to promote
judicial economy through speedy pretrial resolution of disqualification
motions. (1 Cal.4th 266, 271-275.)
insists that Hull, supra, 1 Cal.4th 266, cannot fairly be applied to
him because it was decided after his trial. However, judicial decisions
are generally retroactive absent constitutional or equitable reasons
compelling a contrary result. (See People v. Welch (1993) 5 Cal.4th 228,
237-238 [19 Cal.Rptr.2d 520, 851 P.2d 802]; People v. King (1993) 5
Cal.4th 59, 79-80 [19 Cal.Rptr.2d 233, 851 P.2d 27].) No such reason
exists here. Defendant sought pretrial review-albeit unsuccessfully-of
the denial of his peremptory challenge as provided in Code of Civil
Procedure section 170.3, subdivision (d). As in Hull, we conclude
defendant cannot relitigate the issue in the instant appeal.
Defendant contends the trial court erred in denying his motion to
exclude evidence that his fingerprint was found on a piece of duct tape
at the crime scene. Defendant contends here, as below, that the evidence
was based in part on a chemical and laser process not generally accepted
as reliable in the scientific community. (People v. Kelly (1976) 17
Cal.3d 24, 30 [130 Cal.Rptr. 144, 549 P.2d 1240] [Kelly]; see also, Frye
v. United States (D.C. Cir. 1923) 293 Fed. 1013 [54 App.D.C. 46, 34
A.L.R. 145].) For reasons we will explain, no error occurred.
testimony was provided by prosecution witness Martin Collins, a "latent
print analyst" employed for many years by the state Department of
Justice and engaged by the police to examine evidence in the Rainwater
case, including the duct tape. At trial, Collins explained in detail how
he placed the tape in an enclosed tank, exposed it to heat, superglue,
and dye, and then viewed and photographed the item through an orange
filter with the aid of a laser beam.
This process produced a
photographic image of a fingerprint that Collins then compared to a
sample print provided by defendant. Collins found a "positive" match
using settled law enforcement standards calling for "eight points of
similarity." (The two prints had thirteen points of similarity and no
dissimilarities.) Slides and photographs of each stage of the chemical
and laser process were introduced. Using comparative photographs of the
print found on the duct tape, and of defendant's print, Collins also
showed the jury the individual similarities he had found.
Collins's testimony, defendant objected on the ground that no evidence
had been introduced suggesting the laser procedure was a "scientifically
acceptable" means of deriving an accurate and readable fingerprint. On
voir dire, Collins explained how the procedure "luminated" latent prints,
and he indicated that the image of the fingerprint found on the duct
tape had not been altered by mechanical or human means. Defendant
introduced no competing expert testimony. The trial court ultimately
denied defendant's motion to exclude Collins's testimony.
Defendant correctly observes that California courts have long been
willing to forego admission of "new" scientific methods used to detect,
analyze, or produce evidence absent a credible threshold showing that "the
pertinent scientific community no longer views them as experimental or
of dubious validity." (People v. Stoll (1989) 49 Cal.3d 1136, 1156
[265 Cal.Rptr. 111, 783 P.2d 698], citing Kelly, supra, 17 Cal.3d 24,
31.) This approach is intended to prevent lay jurors from being unduly
influenced by procedures which seem scientific and infallible, but which
actually are not. (People v. Stoll, supra, 49 Cal.3d at p. 1156.)
[10b] We agree
with the Attorney General that such concerns are not implicated here.
The reliability of the laser procedure in producing an image commonly
recognizable only as a human fingerprint was manifest at trial. The
photographic result of Collins's method was seen by the jury, and there
was no dispute that the method produced this result without tampering or
alteration of any kind. Since the laser process produced a directly
recognizable image of defendant's fingerprint, it is unreasonable for
defendant to suggest that the process might somehow have captured a
fingerprint which did not exist, transformed some other image into a
fingerprint, or changed the fingerprint of another person into one which
here, a procedure isolates physical evidence whose existence, appearance,
nature, and meaning are obvious to the senses of a layperson, the
reliability of the process in producing that result is equally apparent
and need not be debated under the standards of Kelly, supra, 17
Cal.3d 24. We therefore conclude that the laser-derived fingerprint
image could not properly have been excluded on grounds it was derived by
scientifically unproven means. fn. 22
defendant and Sharon were arrested the day after the Rainwater murders
on unrelated narcotics charges. Sharon was soon released but
defendant remained in custody on a
"parole hold" for four months until his arrest in the instant case.
About one month before defendant's arrest herein, Sharon contacted
investigator Hanley about defendant's possible involvement in the
Sharon agreed to tape-record her telephone
conversations with defendant and to elicit information about the crimes.
Counsel had apparently been appointed to represent defendant in the drug
and/or parole violation case before Sharon recorded any telephone calls.
occasions during the ensuing month, defendant used the jail telephone to
call Sharon at home. She recorded these calls, most of which concerned
personal matters such as the couple's mutual devotion. However, Sharon
occasionally prompted defendant to discuss the Rainwater case by talking
in "code" on certain subjects (e.g., the murder weapon and composite
drawing), and by fabricating stories about evidence which purportedly
linked defendant to the capital crimes.
As previously disclosed,
defendant made several statements which tended to incriminate him in the
crimes. The contents of the tape-recorded conversations were fully
disclosed at trial, and Sharon interpreted the couple's "code" words for
the jury. fn. 23
[12a] On appeal,
defendant contends the trial court erred in denying his pretrial motion
to exclude evidence of his telephone conversations with Sharon during
the time she worked as a police informant in this case. Defendant claims
that admission of this evidence violated his privilege against self-incrimination
and his right to counsel under the Fifth and Sixth Amendments to the
United States Constitution, and under parallel provisions of the
California Constitution. We conclude that even assuming Sharon was a "police
agent" subject to these provisions, the trial court correctly determined
that they did not bar admission of the taped conversations and related
argues that Sharon's efforts to elicit incriminating statements about
the capital crimes while he was incarcerated on unrelated charges
violated Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct.
1602, 10 A.L.R.3d 974] (Miranda). Miranda requires that a suspect be
given certain advisements to preserve the privilege against self-incrimination,
ensure its voluntary and
intelligent waiver, during the inherently coercive circumstances of a "custodial
interrogation." (Id., at p. 444 [16 L.Ed.2d at p. 706].) Defendant
insists that his statements to Sharon were inadmissible at trial because
he did not receive or waive his Miranda rights beforehand.
high court recently rejected a similar claim involving a government
agent posing as the defendant's cellmate. "Conversations between
suspects and undercover agents do not implicate the concerns underlying
Miranda. The essential ingredients of a 'police-dominated' atmosphere
and compulsion are not present when an incarcerated person speaks freely
to someone whom he believes to be a fellow inmate. Coercion is
determined from the perspective of the suspect.... When a suspect
considers himself in the company of cellmates and not officers, the
coercive atmosphere is lacking.... [¶] ... We reject the argument that
Miranda warnings are required whenever a suspect is in custody in a
technical sense and converses with someone who happens to be a
government agent." (Illinois v. Perkins (1990) 496 U.S. 292, 296-297
[110 L.Ed.2d 243, 251, 110 S.Ct. 2394], internal citations omitted.)
similarly conclude that statements defendant made to Sharon over the
jail telephone were not the product of "custodial interrogation."
Defendant sensed that the telephones available to inmates were "bugged,"
but he did not know Sharon was cooperating with law enforcement and
recording their conversations. From defendant's perspective, he was
talking with a friend and lover. "Miranda forbids coercion, not mere
strategic deception by taking advantage of a suspect's misplaced trust
in one he supposes to be a fellow prisoner" or ally. (Illinois v.
Perkins, supra, 496 U.S. at p. 297 [110 L.Ed.2d at p. 251].) Under the
circumstances, defendant's tape-recorded statements were completely
voluntary and compulsion-free. The trial court correctly denied
defendant's motion to exclude this evidence under the Fifth Amendment.
2. Right to
next relies on the rule prohibiting the government from using an
undercover agent to "deliberately elicit[ ]" incriminating statements
from an accused in circumvention of his Sixth Amendment right to counsel.
(Massiah v. United States (1964) 377 U.S. 201, 206 [12 L.Ed.2d 246, 250,
84 S.Ct. 1199] [Massiah].) [14a] The right attaches at the " 'initiation
of adversary judicial criminal proceedings-whether by way of formal
charge, preliminary hearing, indictment, information, or arraignment.' "
(United States v. Gouveia (1984) 467 U.S. 180, 188 [81 L.Ed.2d 146, 154,
104 S.Ct. 2292].) [12c] Defendant suggests that because counsel had
appointed to assist him with
narcotics and/or parole revocation charges, statements surreptitiously
elicited and recorded by Sharon concerning the Rainwater murders were
inadmissible in the capital trial.
[14b] It is
settled, however, that the Sixth Amendment right to counsel is "offense-specific,"
i.e., it attaches only to those offenses for which adversary judicial
criminal proceedings have begun. (McNeil v. Wisconsin (1991) 501 U.S.
171, 175 [115 L.Ed.2d 158, 166-167, 111 S.Ct. 2204]; People v. Clair
(1992) 2 Cal.4th 629, 657 [7 Cal.Rptr.2d 564, 828 P.2d 705].) [12d]
Here, defendant was not arrested on capital charges until the day after
Sharon taped the couple's last phone conversation.
Thus, under the
foregoing authorities, defendant's Sixth Amendment rights had not yet
attached in this case and could not have been violated when Sharon
performed her undercover work. No contrary conclusion is compelled by
the fact that defendant had already been charged, incarcerated, and
appointed counsel on wholly unrelated offenses. (People v. Wader (1993)
5 Cal.4th 610, 636 [20 Cal.Rptr.2d 788, 854 P.2d 80]; People v. Clair,
supra, 2 Cal.4th 629, 657; cf. In re Wilson (1992) 3 Cal.4th 945,
949-955 [13 Cal.Rptr.2d 269, 838 P.2d 1222].)
insists the police had "sufficient evidence" to arrest him on capital
charges at a much earlier point in time and that they unreasonably "delayed"
doing so in order to give Sharon more time in which to elicit
incriminatory statements. Defendant emphasizes testimony by investigator
Hanley and Sharon at trial indicating that Hanley told Sharon before the
last taped conversation that defendant would be arrested the next day,
and that she should intensify her questioning about the Rainwater crimes.
has waived the Massiah claim to the extent it rests on this trial
testimony. No similar evidence was introduced at the pretrial
suppression hearing, and defendant failed to formally renew his Massiah
motion in light of the new testimony at trial. (See People v. Morris
(1991) 53 Cal.3d 152, 189-190 [279 Cal.Rptr. 720, 807 P.2d 949].)
In any event,
any conscious delay in arresting defendant in this case did not violate
defendant's Sixth Amendment right to counsel. In Hoffa v. United States
(1966) 385 U.S. 293 [17 L.Ed.2d 374, 87 S.Ct. 408] (Hoffa), defendant's
colleague, acting as a paid government informant, acquired information
over a two-month period about the defendant's efforts to bribe the jury
in an ongoing criminal trial. In a subsequent prosecution on jury
tampering charges, the defendant sought to exclude the informant's
testimony on the ground that the government improperly delayed arrest in
the bribery matter in order to obtain incriminating information in
violation of his Sixth Amendment right to counsel under Massiah, supra,
377 U.S. 201.
court rejected the claim. "There is no constitutional right to be
arrested. [Footnote omitted.] The police are not required to guess at
their peril the precise moment at which they have probable cause to
arrest a suspect, risking a violation of the Fourth Amendment if they
act too soon, and a violation of the Sixth Amendment if they wait too
long. Law enforcement officers are under no constitutional duty to call
a halt to a criminal investigation the moment they have the minimum
evidence to establish probable cause ...." (Hoffa v. United States,
supra, 385 U.S. 293, 310 [17 L.Ed.2d 374, 386].) A contrary rule would
similarly impinge upon prosecutorial discretion to decide whether and
when to file criminal charges. (See United States v. Lovasco (1977) 431
U.S. 783, 790-796 [52 L.Ed.2d 752, 759-763, 97 S.Ct. 2044].)
In light of
the foregoing, the trial court did not err in admitting evidence of the
telephone conversations recorded by Sharon. fn. 24
and Burglary Issues
raises several claims concerning the admissibility and sufficiency of
evidence of robbery and burglary. For the most part, the arguments focus
on whether property belonging to the victims was taken during the
alleged robbery and whether an intent to rob existed at the time of the
burglary. We conclude that none of the claims has merit. fn. 25
Defendant argues the trial court erred in rejecting his attempt to
exclude testimony by Lori's mother, Charlotte Martinez, about Lori's
habit of storing money in baby food jars and envelopes. (See Evid. Code,
§ 1105.) fn. 26
The prosecution introduced this evidence to bolster the inference that
money was present in the victims' apartment at the time of the crimes.
An inference that defendant took the money was raised, in turn, by
evidence that two baby jars marked "spending money" were found empty in
the apartment after the crimes, and that defendant was carrying a cash-filled
envelope after the murders.
We see no error.
"The question whether habit evidence is admissible is essentially one of
threshold relevancy [and] is addressed to the sound discretion of the
trial court. [Citations.]" (People v. McPeters (1992) 2 Cal.4th
1148, 1178 [9 Cal.Rptr.2d 834, 832 P.2d 146] [McPeters].) Here, ample
evidence of "repeated instances of similar conduct" supported the
court's determination. (Ibid.)
Mrs. Martinez indicated that she
regularly visited her daughter's apartment in the six months before the
crimes and saw money stored in jars and envelopes. Lori's conduct was
evidently prompted by an ongoing concern over money management and her
mother's advice that she adopt a system for "segregating" funds.
Contrary to what defendant suggests, evidence that Lori moved the jars
from the kitchen to the bedroom a week before the murders in preparation
for the victims' impending move does not negate, as a matter of law, the
finding that she habitually stored money therein. (See McPeters, supra,
at pp. 1166, 1178 [victim's habit of earmarking funds for certain
purposes by carrying cash in envelopes].)
delicti and sufficiency of evidence.
Defendant argues that evidence adduced at trial failed to establish the
corpus delicti of robbery and burglary exclusive of his extrajudicial
statement to Sharon admitting that he did "it" for "money." Of course,
the corpus delicti rule requires only a prima facie showing that a crime
occurred and does not require independent proof that the defendant was
the perpetrator. (People v. Wright (1990) 52 Cal.3d 367, 403-404
[276 Cal.Rptr. 731, 802 P.2d 221].) We conclude that even in the absence
of defendant's statement, there was sufficient evidence not only to
satisfy the corpus delicti rule but to sustain the jury's findings that
defendant murdered the Rainwaters in the course of committing a robbery
indicated that defendant planned to rob the Rainwaters at the time he
was seen entering their apartment. He knew they managed the
complex and collected rent from
the other tenants. The crimes occurred soon after the first of the month,
a time when rent is commonly due. A few hours beforehand, defendant
obtained the gun and duct tape that were used to subdue the victims.
There was no legitimate reason for defendant to be at the victims'
residence at the time.
evidence established that money was taken from the Rainwaters during the
eight-hour ordeal. In addition to the "habit" evidence discussed above,
the testimony established that four cash-filled jars and a greeting card
containing six $20 bills were seen in the apartment the day before the
attack began. Afterwards, no money was found in the damaged card or the
two remaining jars. The jury could also reasonably infer that the
victims were robbed of the "roll of bills" that Lori had attempted to
use as a down payment on a new apartment earlier the same day. Defendant
incorrectly suggests that a robbery cannot be found absent evidence of
the precise amount possessed by the victim at the time. (See McPeters,
supra, 2 Cal.4th 1148, 1183.)
emphasizes that crime scene investigators found money in Lori's purse
($50) and in envelopes labeled so as to suggest that the money was
intended for church ($22) and collected from a tenant ($235). Defendant
speculates that this was the same money that witnesses had previously
seen in the baby food jars and greeting card, and that no money was
therefore stolen from these two places.
However, there was no evidence
money was moved in the manner suggested by defendant, and such a theory
seems improbable in light of Lori's careful practice of "segregating"
funds. In any event, the jury could have premised its robbery
determination solely on evidence that the "roll of bills" intended for
the victims' new apartment was taken.
also suggests that the presence of any money in the apartment after the
crimes necessarily means that none was taken. We disagree. The jury was
aware of such competing inferences and presumably considered them in
rendering its verdict.
robbery determination is also supported by evidence that defendant had a
large and unexplained amount of cash in his possession several hours
after the murders. Sharon testified that he bought cocaine from Reuben
Rangel with $400 or $500 which he had not saved from past drug sales or
his low-paying job. Defendant separately carried this money in an
envelope-evidence linking him to Lori's habit of placing money in
insists that Sharon's testimony about the drug deal with Rangel was "unreliable."
However, the jury heard and presumably considered evidence which might
bear on her credibility, including her prior criminal
history and Rangel's contradictory
testimony that the transaction occurred before the Rainwater crimes. We
do not find Sharon's testimony to be inherently improbable.
jury could infer from the circumstances surrounding the shootings that
the victims were killed to prevent them from escaping the scene of a
violent robbery and identifying the perpetrator. Hence, defendant is
incorrect in suggesting that there is no evidence to suggest the murders
occurred during the commission of an underlying felony.
Reasonable Doubt Instruction
objection from the defense, the jury was given the standard instruction
defining "reasonable doubt" at the close of the guilt phase. (CALJIC No.
2.90 (1979 rev.); see also § 1096.) Shortly before oral argument on
appeal, defendant filed a supplemental brief arguing that the
instruction permitted the jury to find against him based upon a degree
of proof below that required by constitutional standards of due process.
(See Cage v. Louisiana (1990) 498 U.S. 39 [112 L.Ed.2d 339, 111 S.Ct.
328].) We have previously rejected similar claims (People v. Noguera
(1992) 4 Cal.4th 599, 633-634 [15 Cal.Rptr.2d 400, 842 P.2d 1160];
People v. Jennings (1991) 53 Cal.3d 334, 385-386 [279 Cal.Rptr. 780, 807
P.2d 1009]), and do so again here.
of Prior Felony Conviction
noted, the prosecution introduced evidence in aggravation at the penalty
phase that defendant was convicted of burglary in Texas in 1972.
Defendant argues that the trial court erred in not granting his motion
to strike the conviction on the ground that the record of the hearing at
which he pled guilty to burglary did not show that he had knowingly and
intelligently waived his jury trial, confrontation, and self-incrimination
rights. (Boykin v. Alabama (1969) 395 U.S. 238 [23 L.Ed.2d 274, 89 S.Ct.
1709]; In re Tahl (1969) 1 Cal.3d 122 [81 Cal.Rptr. 577, 460 P.2d
449]; see also People v. Howard (1992) 1 Cal.4th 1132, 1175 [5 Cal.Rptr.2d
268, 824 P.2d 1315] [trial courts must "expressly advise defendants on
the record of their Boykin/Tahl rights," and "errors in the articulation
and waiver of those rights shall require the plea to be set aside only
if" it was not "voluntary and intelligent under the totality of the
circumstances"].) The court denied the motion to strike following an
evidentiary hearing. In so doing, it implicitly rejected
defendant's claim that he never
expressly waived his rights in the prior plea hearing.
supports this determination. The prior burglary conviction is, of course,
presumptively valid. (Curl v. Superior Court (1990) 51 Cal.3d 1292,
1303-1304 [276 Cal.Rptr. 49, 801 P.2d 292].) No reporter's transcript of
the hearing at which defendant pled guilty apparently exists. However, a
certified copy of a "Stipulation of Evidence" form personally signed by
defendant, his attorney and the Texas trial judge stated, among other
things, that defendant "in writing and open court ... expressly waives
the appearance, confrontation and cross-examination of witnesses ... [and]
waived [his] federal and state constitutional right against self-incrimination."
Another certified document, signed in similar fashion and entitled "Waiver
of Jury," stated in several places that defendant "in writing, in person,
and in open court, waives his right to trial by jury" on the burglary
charge. Thus, the documentary record of the prior proceeding shows an
explicit and personal waiver of all three Boykin/Tahl rights.
evidentiary hearing in this case, defendant gave varying testimony in an
attempt to contradict this evidence. On the one hand, he stated that "all
I can remember" was the act of signing documents which his attorney said
would lead to a grant of probation on the burglary charge. On the other
hand, defendant purportedly recalled that his attorney never advised him
of his right to a jury trial and that he never waived such right.
Obviously, the trial court did not credit the latter testimony, and we
defer to that determination. We see no error in the trial court's
refusal to strike the prior burglary conviction on Boykin/Tahl grounds.
Miscellaneous Instructional and Prosecutorial Misconduct Claims
Defendant contends the trial court erred in rejecting his request to
delete assertedly inapplicable mitigating factors from the list of
sentencing factors read to the jury. (See § 190.3; CALJIC No. 8.84.1
(1986 rev.).) fn. 28
repeatedly rejected this claim. "Sentencing discretion is best guided
where the jury is fully apprised of the factors which the state deems
relevant to the penalty
determination. The jury is entitled to know that defendant's crimes lack
certain characteristics which might justify more lenient treatment than
other offenses in the same general class. [Citations.] The jury itself
decides which of the listed factors apply in the particular case. [Citation.]"
(People v. Whitt (1990)
51 Cal.3d 620, 653 [274 Cal.Rptr. 252, 798
next contends the prosecutor impermissibly argued that the absence of
mitigating evidence in certain statutory categories was aggravating. (See
People v. Davenport (1985) 41 Cal.3d 247, 288-290 [221 Cal.Rptr.
794, 710 P.2d 861] [Davenport].) Defendant also suggests for the first
time in his reply brief that the prosecutor took an improper "arithmetical
approach" towards the sentencing factors in closing argument. (See
People v. Brown (1985) 40 Cal.3d 512, 541 [220 Cal.Rptr. 637, 709 P.2d
penalty trial occurred in mid-1988, after Davenport and Brown were
decided. His failure to object on such grounds below waives the claims
on appeal. (People v. Montiel (1993) 5 Cal.4th 877, 937 [21 Cal.Rptr.2d
705, 855 P.2d 1277].) In any event, both claims clearly lack merit.
proposed penalty instructions with the court outside the jury's presence,
counsel on both sides agreed, consistent with Davenport, that the mere
absence of a mitigating circumstance "cannot be" considered aggravating.
The prosecutor promised to adhere to this principle in argument to the
jury. During closing argument, the prosecutor observed that evidence had
been introduced in three potentially aggravating categories under
section 190.3-factors (a) (circumstances of the crime), (b) (other
violent crimes), and (c) (prior felony conviction)-and in one
potentially mitigating category, factor (k) (character and background).
He urged the jury to find that the remaining sentencing factors did "not
apply" and that the applicable factors, once weighed, favored death. The
prosecutor never said the absence of mitigating evidence in some
categories was aggravating, and, instead, specifically told the jury
that the opposite was true-"just because [a factor] does not apply
doesn't mean it's aggravating." No violation of Davenport occurred.
prosecutor asserted that a certain number of aggravating and mitigating
circumstances were present in this case, nothing in his argument
contravened Brown by suggesting that the appropriate penalty was to be
determined through mechanistic
means. The prosecutor made clear that "you don't just count them up,
three on the prosecution side and one on the defense side. It's not a
mere counting of factors and arbitrary assigning of weights. [You are]
free ... to assign whatever moral or sympathetic value you determine
appropriate to each and all of the factors." In other words, the
prosecutor's argument faithfully tracked the standard post-Brown
instructions given in this case. No misconduct of the sort urged by
also avers, in passing, that the instructions failed adequately to
inform the jury that it could give "independent mitigating weight to
aspects of [defendant's] character and record." (See Lockett v. Ohio
(1978) 438 U.S. 586, 605 [57 L.Ed.2d 973, 990, 98 S.Ct. 2954].) Not so.
As to factor (k) under section 190.3, the jury was instructed that this
category includes any "circumstance which extenuates the gravity of the
crime" and "any sympathetic or other aspect of the defendant's character
or record that the defendant offers as a basis for a sentence less than
death." (See People v. Easley (1983) 34 Cal.3d 858, 878, fn. 10 [196
Cal.Rptr. 309, 671 P.2d 813].)
The jury also learned that it could
assign any weight to each of the factors, that a death judgment could be
imposed only if aggravation substantially outweighed mitigation, and
that "one mitigating circumstance may be sufficient" to impose life
imprisonment even where more than one aggravating circumstance was found
to exist. There was no possibility the jury misunderstood its obligation
to consider defendant's character and background evidence, or believed
it lacked power to spare his life on the basis of that evidence alone.
Defendant insists the trial court prejudicially undermined the
reliability of the penalty verdict by allowing him to testify in favor
of a death sentence. He suggests no reasonable jury could independently
weigh the aggravating and mitigating evidence and determine the
appropriate penalty in the face of such testimony.
concedes we have previously rejected this claim (People v. Guzman (1988)
45 Cal.3d 915, 961-963 [248 Cal.Rptr. 467, 755 P.2d 917] [Guzman]),
and we do so again here. In Guzman, the defendant described his life of
tragedy and violent crime in great detail, and urged the jury to impose
death to spare him from what he believed was an intolerable sentence of
life imprisonment. This testimony was given over defense counsel's
objection and in the absence of any other evidence in mitigation. In
rejecting any notion that the penalty verdict was "unreliable," we
reaffirmed that a competent defendant "has a fundamental right to
testify in his own behalf, even
if contrary to the advice of
counsel." (Id., at p. 962, citing People v. Robles (1970)
2 Cal.3d 205, 215 [85 Cal.Rptr.
166, 466 P.2d 710].)
Guzman suggested that to the extent a defendant's
preference for death might mislead the jury as to its sentencing
responsibility, the trial court may, "in appropriate cases," inform the
jury that it "remains obligated" to independently weigh aggravation and
mitigation and determine the appropriate penalty "despite the
defendant's testimony." (Guzman, supra, 45 Cal.3d at p. 962.) We held
that such an instruction was not required sua sponte in Guzman because
the jury otherwise fully understood its sentencing duty under the
instructions and argument presented in that case.
attempts to distinguish Guzman on the ground that his testimony was
uniquely "repugnant" and was purportedly calculated to "inflame" the
jury. However, as Guzman implies, a defendant's absolute right to
testify cannot be foreclosed or censored based on content. Rather, any
potentially improper effect is to be alleviated with a limiting
instruction where "appropriate." At defendant's request, such an
instruction was given here. fn. 29
We assume the jury followed the instruction and fully considered the
penalty evidence, including the extensive case in mitigation presented
by witnesses other than defendant. We therefore reject the claim that
the jury's sentencing responsibility was diminished as a result of the
Constitutionality of the Death Penalty Law
In his reply
brief, defendant argues that the individual sentencing factors contained
in section 190.3, particularly factors (a) (circumstances of the crime)
and (i) (age), are unconstitutionally vague under Stringer v. Black
(1992) 503 U.S. __________ [117 L.Ed.2d 367, 112 S.Ct. 1130]. Defendant
also claims that the statute violates Stringer because it does not
identify which factors are aggravating and which are mitigating.
that need not be repeated, we recently rejected similar claims. (People
v. Bacigalupo, ante, p. 457 [24 Cal.Rptr.2d 808, 862 P.2d 808].)
Bacigalupo and other cases make clear that the statute adequately guides
the sentencer's discretion. (See People v. Montiel, supra, 5 Cal.4th
877, 944-945; People v. Tuilaepa (1992) 4 Cal.4th 569, 595 [15 Cal.Rptr.2d
382, 842 P.2d 1142], cert. granted Dec. 6, 1993, __________ U.S.
__________ [126 L.Ed.2d 563, 114 S.Ct. 598] (Dock. No. 93-5131); People
v. Noguera, supra, 4 Cal.4th 599, 648-649; People v. Proctor (1992) 4
Cal.4th 499, 550-551 [15 Cal.Rptr.2d
340, 842 P.2d 1100], cert. granted
Dec. 6, 1993, __________ U.S. __________ [126 L.Ed.2d 564, 114 S.Ct.
598] (Dock. No. 93-5161).)
also argues that the 1978 death penalty statute is unconstitutional
because it lacks certain procedural "safeguards" necessary to protect
against arbitrary death judgments and ensure guided sentencing
discretion. Defendant contends such safeguards include requirements that
the prosecution prove the existence of all aggravating factors and the
appropriateness of the death penalty beyond a reasonable doubt, and that
penalty jurors agree unanimously on the presence of any aggravating
circumstances. Defendant concedes we have rejected these claims before.
(People v. Rodriguez (1986) 42 Cal.3d 730, 777-779 [230 Cal.Rptr.
667, 726 P.2d 113].) We do so again here.
Defendant asks us to undertake a comparative or intercase
proportionality review as to penalty. He assumes that statistical
information allegedly possessed by various federal and state agencies
will show that many first degree murderers of equal or greater
culpability have received sentences less than death in California and
sentence review, statistical or otherwise, is not required by the
federal Constitution. (Pulley v. Harris (1984) 465 U.S. 37, 50-51 [79
L.Ed.2d 29, 40-41, 104 S.Ct. 871].) Defendant recognizes that we have
also consistently declined to undertake such review under the due
process, equal protection, and cruel or unusual punishment clauses of
the state Constitution. (People v. Bacigalupo (1991) 1 Cal.4th 103,
151 [2 Cal.Rptr.2d 335, 820 P.2d 559]; People v. Andrews (1989) 49
Cal.3d 200, 234 [260 Cal.Rptr. 583, 776 P.2d 285]; People v. Babbitt
(1988) 45 Cal.3d 660, 725-726 [248 Cal.Rptr. 69, 755 P.2d 253].) We
adhere to these decisions.
Eighth Amendment of the United States Constitution and article I,
section 17 of the California Constitution preclude punishment that is
disproportionate to a defendant's individual culpability. (People v.
Turner (1990) 50 Cal.3d 668, 718 [268 Cal.Rptr. 706, 789 P.2d 887];
People v. Dillon (1983) 34 Cal.3d 441, 477-484 [194 Cal.Rptr. 390, 668
P.2d 697]; In re Lynch (1972) 8 Cal.3d 410, 423-429 [105 Cal.Rptr. 217,
503 P.2d 921].)
Here, in an apparent attempt to obtain drug money,
defendant robbed and killed two people. The crimes involved planning,
and the prolonged torment of the victims in their home with their
children present. By his own account, defendant had killed before. He
admitted a prior burglary-murder and three other calculated killings,
and insisted he deserved death. We cannot conclude that the death
penalty is disproportionate to defendant's individual culpability.
is affirmed in its entirety.
J., Panelli, J., Arabian, J., and George, J., concurred.
and Dissenting.-I concur in the judgment.
agree with the majority's analysis. On two points, however, I must take
a contrary position.
join in the majority's dictum unnecessarily "question[ing] whether
records stemming from [Sharon White Bear's] voluntary treatment by ...
county therapists" at a county mental health center (maj. opn., ante, at
p. 518) are within the coverage of Pennsylvania v. Ritchie (1987) 480
U.S. 39 [94 L.Ed.2d 40, 107 S.Ct. 989]. That decision applies broadly to
the "government" (id. at p. 57 [94 L.Ed.2d at p. 57])-which obviously
includes agencies such as that involved here.
I join in the majority's conclusion brushing aside the serious question
defendant has raised as to whether the standard instruction defining
reasonable doubt derived from Penal Code section 1096 violates the due
process clause of the Fourteenth Amendment to the United States
I have long
been convinced that the standard instruction is unnecessarily confusing,
that it purports to define, at some length, a term-"reasonable doubt"-that
numerous courts across the country have held to be self-explanatory.
concurring opinion in People v. Brigham (1979) 25 Cal.3d 283 [157
Cal.Rptr. 905, 599 P.2d 100], I urged the Legislature to delete the
definition and to return the law to the uncomplicated state that
prevailed in the period from 1850 to 1927.
Legislature has not seen fit to act, I believe it is time we intervened.
We should not wait for the federal judiciary to grapple with the
standard instruction's potential constitutional infirmity.
and Dissenting.-I concur in the majority's affirmance of defendant's
judgment of conviction and sentence of death.
from that portion of the majority's opinion asserting, albeit in dictum,
that a defendant in a criminal case is not "likely" to have a
constitutional right to the compulsory process of the court in seeking
discovery of a prosecution witness's psychiatric records that contain
material information favorable to the defense but are not in the
prosecution's possession. (Maj. opn., ante, p. 518.)
pertinent inquiry, in my view, is not whether such records are in the
possession of the government. Rather, as several decisions of the Courts
Appeal in this state have
recognized, the critical question is whether the records contain
information that is favorable to the accused and material to the issue
of guilt, and thus necessary for effective cross-examination of the
prosecution witness whose psychiatric records are being sought. (Rubio
v. Superior Court (1988)
202 Cal.App.3d 1343, 1348-1351
[249 Cal.Rptr. 419]; People v. Boyette (1988) 201 Cal.App.3d 1527,
1531-1534 [247 Cal.Rptr. 795]; People v. Caplan (1987) 193 Cal.App.3d
543, 557-558 [238 Cal.Rptr. 478]; People v. Reber (1986) 177 Cal.App.3d
523, 531-532 [223 Cal.Rptr. 139]; see also Vela v. Superior Court (1989)
208 Cal.App.3d 141, 147 [255 Cal.Rptr. 921]; Farrell L. v. Superior
Court (1988) 203 Cal.App.3d 521, 527-528 [250 Cal.Rptr. 25].)
The cases I just
cited acknowledge that the constitutional right of a defendant to
confront and cross-examine his or her accusers is not absolute, but must
be balanced against the privacy interests of the witness in the records
that the defendant seeks to discover. Those interests, these authorities
point out, can be safeguarded by having the trial court conduct an in
camera review of the records to determine whether they contain
information that is material to the defense and therefore essential to
the fairness of the trial.
case, defendant used the compulsory process of the court in an effort to
obtain from a private psychiatrist and a county mental health center all
records pertaining to psychotherapy undergone by Sharon White Bear,
defendant's girlfriend, before she became a key witness for the
prosecution. Arguing that the psychotherapist-patient privilege (Evid.
Code, § 1010 et seq.) served to protect the records, the subpoenaed
parties submitted the records to the trial court under seal. After
conducting an in camera review of those records, the trial court allowed
defendant access to those portions of the records that were material to
the defense. Because the remainder of the records contained no
information favorable to defendant and material to the issue of guilt,
the trial court's refusal to disclose those records did not violate
defendant's constitutional rights.
petition for a rehearing was denied January 26, 1994. Mosk, J., and
Kennard, J., were of the opinion that the petition should be granted.
All further statutory references are to the Penal Code unless otherwise
The Rainwaters did not smoke and they did not allow visitors to smoke in
the apartment. However, defendant commonly smoked the type of cigarettes
found at the scene.
An envelope containing $22 and marked "chapel" was found among other
items on the bedroom dresser. Almost $50 was found in Lori's purse,
which was sitting on the coffee table in the living room. There was also
$235 in an envelope marked "Jack Emerich #1," which was found underneath
some papers in a living room drawer.
Money from several possible sources was never accounted for. First,
investigators found a scorched greeting card but not the six $20 bills
which a family friend, Rita Fernandez, had enclosed inside and given to
the Rainwaters while visiting their apartment on February 3, the day
before the crimes.
mother, Charlotte Martinez, testified that Lori had developed a "system"
of storing money in baby food jars and envelopes, and that Martinez had
seen four baby food jars containing cash and coins in the apartment on
February 3. Only two baby food jars, marked "spending money," were found
in the apartment after the crimes and both were empty.
February 4, the day before the crimes, Lori attempted to pay cash for a
new apartment which she and John planned to lease and occupy within a
week. The manager of the new place, Vivian Perry, testified that Lori
displayed a "roll of bills" that could have represented the security
deposit ($315) or the entire move-in amount ($630). Perry refused the
cash and Lori arranged to return in two days with a check or money order
for $630. Bank records showed a modest withdrawal ($86) but no deposit
to the Rainwaters' accounts that day.
The jury did not learn at any phase of trial that defendant was on
parole when he moved to California, or that he had been convicted of
kidnapping in Utah. However, the jury did hear about Sharon's criminal
history at the guilt phase, including the fact that she had been
convicted of armed robbery 22 years earlier, that she routinely sold
marijuana to support herself, and that she possessed 3 handguns. One of
the guns, a stolen .38-caliber Smith and Wesson revolver, was identified
as the probable murder weapon in the Rainwater crimes and will be
discussed further in the text.
Defendant was accompanied that evening by his friend, Michael Rohde, who
was much thinner and shorter than defendant. The prosecutor theorized in
argument to the jury that Michael was defendant's partner in the
Rainwater crimes. Michael was apparently incarcerated for an unrelated
offense at the time of defendant's trial, and was not charged or called
as a witness herein.
According to Sharon, defendant said that if he "ever got caught" he
would "never see the streets again." He also cautioned Sharon against
giving any information about his clothes to police. Defendant further
noted that if Sharon's sister, Davene, ever learned "what he did," she
would "hate" him. The last statement apparently referred to a fact
learned by both Sharon and defendant shortly after the murders, namely,
that Davene (who was actually Sharon's half sister) was a distant
relative of John Rainwater.
Some of the bullets were stored in a bedroom dresser and others came
from a box Sharon discovered wedged behind the spare tire in the trunk
of her car. Sharon recognized the box of bullets as hers, but neither
she nor any family member had placed it there. Sharon testified, however,
that defendant had borrowed her car a few hours before the crimes when
he and Michael Rohde retrieved the .38-caliber revolver from Davene.
The weapon was examined and test-fired both before and after "derusting"
work was performed on it. The experts involved in the testing process
concluded that the murder weapon was probably a Smith and Wesson and
that it could have been the one found at Ragged Point. First, the test-fired
bullets bore the same general "rifling" characteristics as the bullets
recovered from John's body. These characteristics (number, width, and
rotation of grooves) are most common among revolvers manufactured by
Smith and Wesson. Second, the fatal bullets bore very fine "striations"
(scratch marks) typical of Smith and Wesson weapons and atypical of
other weapons that could have produced the rifling marks. Third,
individual striation marks on the test-fired bullets and one of the
fatal bullets corresponded in one or two areas, but not enough
correspondence was found to indicate a positive match.
The jury heard the tapes of these conversations, received written
transcripts of their contents, and heard Sharon testify about them.
Lewis was not called as a defense witness at trial. Hanley testified
that investigators found him "extremely" unreliable because, among other
things, his identifications were equivocal and his descriptions of the
killer were inconsistent.
This opinion contradicted testimony by a prosecution expert, who
conclusively excluded Bradley as a possible donor of the foreign pubic
hair. According to investigator Hanley, Bradley was a convicted rapist
who sometimes visited friends near the Rainwater complex. Bradley was
eliminated as a suspect because he had an alibi, no significant physical
evidence connected him to the scene, and Lewis ultimately recanted his
identification of Bradley.
Rangel testified that the transaction occurred before (not after) the
Rainwater crimes, and that defendant had as much as $4,400 in his
possession (not $2,300 or $2,400 as estimated by Sharon).
Defendant observes that Juror Hall suggested during voir dire that early
news accounts about the crime made defendant look "guilty." She
explained, however, that she did not follow these accounts "closely,"
that she still had an "open mind" as to guilt, and that she could follow
instructions requiring jurors to consider the evidence and to avoid all
publicity. We find it "significant" that defendant did not challenge
Juror Hall for cause, and that defendant exercised only 16 of his 26
peremptory challenges. (People v. Cooper, supra, 53 Cal.3d 771, 807.)
As suggested earlier, appellate counsel sought disclosure of the
psychiatric materials from Judge Conklin during postjudgment record
settlement proceedings. Judge Conklin reviewed the records in camera and-as
both he and the magistrate had done before-found that their wholesale
disclosure was prohibited under the psychotherapist-patient privilege.
Judge Conklin also denied appellate counsel access to the "sanitized"
excerpts that the magistrate had made available to trial counsel. Before
appellate briefs were filed, appellate counsel asked this court for
permission to examine all psychiatric records, whether "sanitized" or
not. We reviewed the records in their entirety and granted appellate
counsel and the Attorney General permission to examine the "sanitized"
excerpts only. Thus, in deciding the privilege question on direct
appeal, this court is actually reviewing the sealed psychiatric
materials for the second time.
In his reply brief, defendant claims that Sharon waived the privilege as
to her entire psychiatric file by providing information about her
treatment and medication at trial. We disagree. Because defendant never
raised this issue in the trial court and never formally renewed his
disclosure motion in light of Sharon's testimony, the contention has not
been preserved on appeal. In any event, Sharon's brief testimony about
treatment and medication did not extend beyond information found
relevant to her credibility and disclosed to the parties following in
camera review below. Hence, no broad waiver of the privilege as it
applies to any other topics contained in her records can be inferred.
(Cf. People v. Mickle (1991) 54 Cal.3d 140, 189-190 [284 Cal.Rptr. 511,
814 P.2d 290] [prosecution successfully renewed request for access to
defendant's psychiatric records after defendant tendered complete
psychiatric history on the stand].)
The Attorney General seems to argue that defendant has waived the
Ritchie claim because he failed to challenge the magistrate's ruling on
this ground in the superior court. We disagree. While defendant
articulated his position most precisely before the magistrate, it was
clear in the superior court that the same federal constitutional claim
was being presented as a basis for discovering the psychiatric records
before trial. We note that defendant also has raised the Ritchie claim
in all posttrial discussions of the psychiatric records, i.e., during
record settlement proceedings in the superior court, in his motion to
examine the sealed records in this court, and in his briefs on appeal.
The Attorney General argues that any official duty to "preserve"
evidence did not arise here because police officers never physically
removed the revolver from Sharon's apartment and it was not in their
possession at the time the complained of deterioration occurred. (See
People v. Daniels (1991) 52 Cal.3d 815, 855 [277 Cal.Rptr. 122, 802 P.2d
906] ["the police duty to obtain exculpatory evidence is not as strong
as its duty to preserve evidence already obtained"].) However, Officer
Miller testified that he seized, inventoried, and bagged the revolver
during the narcotics search and that, but for an admitted oversight, he
would have taken it into police custody with other guns and evidence
seized at the same time. Hence, it appears the revolver had been "obtained"
by the police.
In light of the foregoing analysis, we need not address the Attorney
General's alternative claim that the search of defendant's car was valid
because investigator Hanley obtained the prior consent of defendant's
parole officer. Testimony in support of this theory was introduced at
the hearing on defendant's motion to quash the warrant in the superior
Code of Civil Procedure section 170.6, subdivision (1) states in part:
"No judge, court commissioner, or referee of any superior, municipal or
justice court of the State of California shall try any civil or criminal
action or special proceeding of any kind or character nor hear any
matter therein which involves a contested issue of law or fact when it
shall be established as hereinafter provided that the judge or court
commissioner is prejudiced against any party or attorney or the interest
of any party or attorney appearing in the action or proceeding."
Code of Civil Procedure section 170.3, subdivision (d) provides: "The
determination of the question of the disqualification of a judge is not
an appealable order and may be reviewed only by a writ of mandate from
the appropriate court of appeal sought within 10 days of notice to the
parties of the decision and only by the parties to the proceeding."
Since we have concluded that Kelly does not apply, we need not address
the Attorney General's alternative request that Kelly be reexamined in
light of the high court's recent decision in Daubert v. Merrell Dow
Pharmaceuticals, Inc. (1993) 509 U.S. __________ [125 L.Ed.2d 469, 113
In his written pretrial suppression motions, defendant targeted the
contents of the taped conversations and any other evidence obtained as
the "fruit" thereof. The latter category logically includes Sharon's
testimony interpreting "code" phrases used in the conversations.
Although defendant did not reiterate the constitutional basis of his
objection at trial, he specifically asked the court to exclude Sharon's
"code" testimony. Thus, contrary to a suggestion by the Attorney
General, defendant has adequately preserved the right to challenge this
portion of Sharon's testimony on appeal.
In making his Fifth and Sixth Amendment claims, defendant relies upon a
pre-Miranda case, Escobedo v. Illinois (1964) 378 U.S. 478 [12 L.Ed.2d
977, 84 S.Ct. 1758] (Escobedo). Escobedo purported to recognize a
prearrest right of counsel where, among other things, an "investigation
is no longer a general inquiry into an unsolved crime but has begun to
focus on a particular suspect." (Id., at p. 490 [12 L.Ed.2d at p. 986];
see also People v. Dorado (1965) 62 Cal.2d 338 [42 Cal.Rptr. 169, 398
P.2d 361].) Despite contrary language in Escobedo itself, later
authority makes clear that Escobedo rests solely on Fifth Amendment
principles. (Moran v. Burbine (1986) 475 U.S. 412, 429 [89 L.Ed.2d 410,
426, 106 S.Ct. 1135].) In "reaffirm[ing]" and expanding upon Escobedo,
the Miranda court also made clear that both cases were concerned solely
with prophylactic measures, including the right to counsel, available to
suspects undergoing "custodial interrogation." (Miranda, supra, 384 U.S.
436, 442, 444, & fn. 4 [16 L.Ed.2d 694, 705-706].) Hence, Escobedo does
not support defendant's claim that his Sixth Amendment right to counsel
was violated, nor does it give rise to any Fifth Amendment claim not
otherwise available under Miranda.
Appellate counsel makes these arguments in an effort to invalidate the
special circumstance findings of murder in the commission of a robbery
and burglary. However, as trial counsel recognized in making similar
arguments below, other aspects of the jury's verdict are also
theoretically implicated, namely, the robbery and burglary counts, and
the first degree murder counts (which were submitted to the jury on both
premeditation and felony-murder theories). All claims discussed in this
section were timely raised by motions in limine or to dismiss the case.
Evidence Code section 1105 provides that evidence of "habit or custom is
admissible to prove conduct on a specified occasion in conformity with
the habit or custom."
On appeal, defendant focuses on three constitutional rights-the
privilege against self-incrimination, the right to jury trial, and the
right to confront and cross-examine witnesses. In the trial court,
however, defendant only challenged the adequacy of his waiver of the
right to jury trial. We agree with the Attorney General that defendant
has therefore not preserved any other claim. Nevertheless, as our
discussion makes clear, defendant's Boykin/Tahl rights were not violated
in any respect in the burglary case.
This request was part of a broader attempt by defendant to present the
jury with a modified version of CALJIC No. 8.84.1. Defendant's version
substantially reworded some factors, omitted others, and purported to
identify each factor's mitigating or aggravating nature. The court
refused the proposed modification, and instead gave the standard
instruction listing all 11 statutory factors and directing the jury to "consider"
them "if applicable." For reasons explained in the text, the court did
The jury was instructed in terms nearly identical to the language
suggested in Guzman, supra, 45 Cal. 3d 915, 962, as follows: "You are
instructed that despite the defendant's testimony, you remain obligated
to decide for yourself, based upon the factors in aggravation and
mitigation, whether death is the appropriate penalty."
Dennis Duane Webb