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Dennis Duane
WEBB
Classification: Murderer
Characteristics: Outlaw
biker -
Raped victims of
both sexes
- Robbery
Number of victims: 2 - 7
Date of murders: 1973 - 1987
Date
of arrest:
February 6, 1987
Date of birth: 1952
Victims profile: John
Rainwater, 25, and his wife, Lori Rainwater, 22
Method of murder:
Shooting
Location: Texas/California, USA
Status: Sentenced to death in California in August 1988
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
1988
SanLuisObispo.com
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
raping them.
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
drew blood.
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
instantly.
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
few minutes.
Investigators found blood all over the interior of
the Rainwaters' two-bedroom home. Furnishings were knocked over and
scattered.
Blood was discovered on a door, a desk, a broken
bookshelf, three walls, a curtain, the floor, a bed, a coat and a
child's playpen.
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
penalty.
"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
killings.
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:PC/Sex./CE
MO: Outlaw blker; killed robbery
victims, and gays from personal spite; contract killer; raped victims of
both sexes
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)).
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.
For
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.
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 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.
In Ritchie,
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].)
[7]
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
Defendant
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.
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].)
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].)
The record
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.
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
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.
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
"pro-death" testimony.
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.
In my
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.
FN 1.
All further statutory references are to the Penal Code unless otherwise
indicated.
FN 2.
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.
FN 3.
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.
FN 4.
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.
FN 5.
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.
FN 6.
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.
FN 7.
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.
FN 8.
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.
FN 9.
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.
FN 10.
The jury heard the tapes of these conversations, received written
transcripts of their contents, and heard Sharon testify about them.
FN 11.
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.
FN 12.
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.
FN 13.
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).
FN 14.
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.)
FN 15.
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.
FN 16.
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].)
FN 17.
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.
FN 18.
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.
FN 19.
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
court.
FN 20.
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."
FN 21.
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."
FN 22.
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
S.Ct. 2786].
FN 23.
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.
FN 24.
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.
FN 25.
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.
FN 26.
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."
FN 27.
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.
FN 28.
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
not err.
FN 29.
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."
