Robin Samsoe was twelve. At about ten past three on the afternoon of June 20, 1979, she left a friend's apartment in Huntington Beach to ride her bicycle to a ballet lesson, and she never arrived. Her body was found in a ravine in the mountains above Sierra Madre, more than forty miles from home. Rodney James Alcala, a photographer already convicted of molesting a child, was arrested on July 24, and the four opinions on this page are the record of how long it took the courts to make a conviction for her murder stand.
Orange County juries sent him to death row in 1980 and again in 1986, and neither verdict survived. In 1984 the Supreme Court of California reversed the first because the jury had been told about his earlier attacks on young girls, which the court held proved his character rather than who took Robin. In 1992 the same court upheld the second conviction over the dissent of Justice Mosk. The federal courts disagreed, and in 2003 the Ninth Circuit affirmed a writ of habeas corpus: his trial lawyers had botched an alibi that put him at Knott's Berry Farm that afternoon, and the trial judge had kept out a psychologist's testimony about the hypnosis of the forest service worker whose account was central to the prosecution.
By then DNA had tied Alcala to four more killings in Los Angeles County: Jill Barcomb, eighteen, and Georgia Wixted, twenty-seven, in 1977; Charlotte Lamb, thirty-two, in 1978; and Jill Parenteau, twenty-one, in 1979. In 2008 the Supreme Court of California ruled that all five murders could be tried together in Orange County, and in 2010 a jury there convicted him on every count and he was sentenced to death a third time. He pleaded guilty in New York in 2013 to the murders of Cornelia Crilley and Ellen Jane Hover, was charged in Wyoming in 2016 with the killing of Christine Ruth Thornton, and died of natural causes at a hospital in Kings County on July 24, 2021, at seventy-seven.
These are decisions, not arguments. Each was written by a court with the power to settle the question in front of it, and the sections headed as facts are that court's summary of the trial record, not the record itself. The summaries do not always line up. The 1992 opinion says Dana Crappa found the body on June 25, 1979, and told no one; the 1984 opinion dates the discovery by her spraying crew to July 2; the Ninth Circuit says only that it was found almost two weeks after Robin disappeared. All three are describing the same evidence, and the difference is Crappa's own shifting account, which is one of the things the 2003 court held the jury should have been able to test.
Four opinions are printed in date order. People v. Alcala, 36 Cal. 3d 604 (1984), with the dissent; People v. Alcala, 4 Cal. 4th 742 (1992), with a concurrence by Justice Kennard and Justice Mosk's dissent; Alcala v. Woodford, 334 F.3d 862 (Ninth Circuit, 2003); and Alcala v. Superior Court, 43 Cal. 4th 1205 (2008). Nothing later is here. The 2010 trial, the New York pleas and the Wyoming charge produced no published opinion in this set, so the story after 2008 rests on the California Department of Corrections and Rehabilitation's announcement of his death and on press reports.
Where the court itself protected a child it attacked, the opinion already gives her only a first name and an initial, as with Tali S. in 1968 and Monique H. in 1979, and that is left as printed. We have gone one step further for five girls the opinions name in full: Robin's twelve-year-old friend, two teenagers he approached on the beach the day before she vanished, and two girls he photographed at Sunset Beach the day she did. Each now appears by first name and last initial, ninety-one times in all. Adult witnesses, police officers, experts, lawyers, judges and the murdered women are named as the courts named them.
Published opinions of American courts are government edicts and belong to no one, so there is no rights question: the text is free to copy in full. It comes from the Caselaw Access Project's digitized edition of the official reporters, which is typeset text, and we ran no spelling repair over it, because on a document like this every odd-looking word is either correct or a flaw in the reporter's own digitization and not ours to guess at. One such flaw survives in the 1992 opinion, where case-in-chief prints as case-in-cMef. The changes are for reading only: spacing tidied, the reporter's opinion markers turned into headings, and footnotes kept beneath the opinion they belong to.
[Crim. No. 21532.
Aug. 23, 1984.]
THE PEOPLE, Plaintiff and Respondent, v. RODNEY JAMES ALCALA, Defendant and Appellant. In re RODNEY JAMES ALCALA on Habeas Corpus.
[Crim. No. 23258.
Aug. 23, 1984.]
Counsel
Keith C. Monroe, under appointment by the Supreme Court, David A. Zimmerman and Monroe & Riddet for Defendant and Appellant and Petitioner.
Quin Denvir, State Public Defender, Michael G. Millman and Joseph Levine, Deputy State Public Defenders, Samuel R. Gross and Robert C. Vanderet as Amici Curiae on behalf of Defendant and Appellant.
George Deukmejian and John K. Van de Kamp, Attorneys General, Robert H. Philibosian, Chief Assistant Attorney General, Daniel J. Kremer, Assistant Attorney General, Michael D. Wellington, Harley D. Mayfield, Patricia D. Benke, Bruce Daniel Rosen and Louis R. Hanoian, Deputy Attorneys General, for Plaintiff and Respondent.
Edwin L. Miller, Jr., District Attorney (San Diego), Richard D. Huffman, Chief Deputy District Attorney, and Paul M. Morley, Deputy District Attorney, as Amici Curiae on behalf of Plaintiff and Respondent.
Opinion
GRODIN, J.
Defendant Rodney James Alcala was convicted on one count of first degree murder (Pen. Code, §§ 187-189) with use of a deadly weapon (id., § 12022, subd. (b)) and one count of forcible kidnaping (id., § 207). (All statutory references are to the Penal Code unless otherwise indicated.) Defendant admitted a prior conviction and prison sentence for lewd and lascivious conduct upon a child under 14. (§§ 288, 667 et seq.) Under the 1978 death penalty law, a special circumstance that the murder occurred in the course of a kidnaping (§ 190.2, subd. (a)(17)(ii)) was found true, and defendant was sentenced to death. This appeal is automatic. Defendant has also filed a related petition for habeas corpus.
We will conclude that the convictions and special circumstance finding must be reversed, since the admission of prior offenses constituted prejudicial error on those issues. However, we will reject defendant’s contention that the double jeopardy clause bars retrial of certain allegations because the valid evidence at the first trial was legally insufficient to support them. We will also hold that defendant may be retried on all counts of the current information regardless of asserted irregularities at his preliminary hearing.
Investigation
On the afternoon of June 20, 1979, 12-year-old Robin Samsoe left the Huntington Beach apartment of her friend Bridgett W. to bicycle to a ballet lesson. On July 2, William Poepke, a member of a forest service spraying crew, came upon Robin’s scattered remains in a remote mountain ravine above Sierra Madre. The skull was separated from the neck, and the lower teeth were fractured in a manner consistent with a blow from a hard object. The left foot and portions of the hands were missing.
A “Kane Kut” kitchen knife was found nearby. It bore a minute drop of human blood, type unknown. A beach towel discovered in the vicinity contained “wipe” stains of type A blood. Type A blood was mixed with rocks and leaves in the area. No clothing was found except for one tennis shoe which bore the name Robin. Because of the advanced state of decomposition, it was impossible to determine medically the time and cause of death, or whether Robin had been sexually molested.
The police learned that, shortly before Robin’s disappearance, she and Bridgett had been accosted at the beach by a strange man. With their permission, the stranger had taken several pictures of the two girls, including a carefully posed photograph of Robin. He walked or ran away quickly when Jackye Young, an adult acquaintance of Bridgett’s, approached. Young and Bridgett helped the police prepare a composite sketch of the photographer. Defendant’s former probation officer recognized the drawing.
Based on defendant’s record as a child molester, his known penchant for prurient photography of children, and indications that he frequented the area where Robin’s body was found, the police obtained a warrant to arrest defendant and search his home and car. On July 24, defendant was arrested in his bedroom in Monterey Park, and the residential search was carried out. A receipt for a Seattle storage locker was found; the receipt was dated after Robin’s death. There was a Kane Kut knife set in the house, which defendant shared with his mother, but no knife was missing from the set.
The Seattle storage locker was later searched under warrant. Police discovered cold-weather clothing and kitchenware, quantities of photographs and film, and a pair of gold-coated earrings.
Guilt Trial
A. People’s case.
Toni E., then 15, and Joanne M., then 14, testified they were at Huntington Beach on June 19, 1979. A man they both identified as defendant asked to take their pictures for a “bikini photo contest.” He also offered them a ride and marijuana, and he tried to get their phone numbers. They contacted police when they saw defendant’s picture on television news.
Lorrie W., 15, told of a similar experience with defendant at the beach on June 20. Police had found her photo in the Seattle storage locker. Her narrative was confirmed in large part by her companion, Patty E.. Several other people testified to seeing defendant at the beach in early to mid-afternoon on the 20th, though details of clothing and appearance varied.
In court, Bridgett W. positively identified defendant as the photographer she and Robin had met at the beach on June 20 between 2 and 3 p.m. Jackye Young confirmed that identification.
According to Bridgett, she and Robin returned to Bridgett’s apartment about 3:10. Robin said she had to hurry to a 4 p.m. ballet lesson; she was excited because she was “moving up to toe.” Bridgett offered Robin her bike, a yellow Schwinn 24-inch model with turned-up handlebars, which was in the laundry room of the apartment building. Robin left dressed lightly in a red T-shirt, shorts, and tennis shoes. The bike has been missing since.
Marianne Frazer, Robin’s mother, and Beverly Fleming, who owned a children’s dance studio in Huntington Beach, confirmed that Robin was due but never arrived at a 5 p.m. dance class. She had taken ballet and gymnasties since she was four and was serious about her dancing. After her mother’s recent accident, Robin had arranged to answer phones at the studio to pay for her classes. Both Bridgett and Fleming said Robin would never miss a class from disinterest.
Dana Crappa, a forest service worker, presented key evidence. She was a member of the spraying crew which had discovered Robin’s body on July 2. She had been uncooperative in police interviews and evasive at the preliminary hearing. Much of what she said at trial was new, and she displayed great distress on the witness stand.
Crappa had previously admitted a near-collision with a distinctive Datsun like defendant’s on the evening of June 21. The Datsun was parked at Rendezvous Turnout, less than a mile from the crime scene. Beside the car was a man wearing levis and a stained T-shirt. The car appeared to have dirt kicked up under the tires.
Crappa confirmed that information, but now revealed under persistent questioning that she had seen the same Datsun on the previous evening, June 20, between 5 and 5:30 p.m. The June 20 encounter took place at “Marker 11,” a turnout less than 300 feet from where Robin’s body was found. Crappa said two people with their backs to her, a man and a small girl with long blonde hair, were walking up the ravine away from the road. The man, wearing levis and a T-shirt, was “sort of forcefully steering” the girl up the gully. Crappa could not see whether he was touching her or holding a weapon. The man turned and looked “straight through” Crappa, who thought something might be wrong but continued on.
Crappa had testified at the preliminary hearing that the June 21 encounter occurred between 10 and 10:30 p.m. Having since retraced her activities for that day, she now thought it was more like 8 to 8:30. In court, Crappa declared she was almost certain, but not “100 percent positive,” that defendant was the man she had seen on both occasions.
Crappa further testified for the first time that she returned to Marker 11 between 7 and 7:30 on the evening of June 25 and walked up the ravine with a flashlight. With extreme difficulty, the prosecutor elicited that she had discovered a body. Part of the face was gone, and the corpse, apparently unclothed, was “pretty cut up.” The hands and feet were missing, but Crap-pa could not say whether they had been cut off and could not “remember” whether the legs were hacked up. The head was “next to” the body, and she could not tell if it was severed. Nearby she saw a blue and yellow tennis shoe and what looked like shorts and a T-shirt. She found no knife. There were tire tracks in the area. Horrified, she left quickly and told no one.
Four days later, Crappa recounted, she was part of a spraying crew which included William Poepke. Poepke came upon a pile of bones in the same area. Thinking the remains were those of a deer, he picked up a bone and tossed it at her. She knew it was no deer.
That night, said Crappa, she visited the scene again. It was dark, but, closer to the roadway, her flashlight beam caught a shiny object. She could not say for sure that it was a knife but believed now that it was. She saw the body, “drawn out” and skeletal by then, the right arm missing. She found some blonde hair. The shorts, T-shirt, and tennis shoe were still there. Three days later Poepke discovered the skull, and the authorities were called.
Marianne Frazer, Robin’s mother, confirmed that the earrings recovered from defendant’s Seattle storage locker looked like a pair Robin may have borrowed from her. Frazer explained that after a “dangle” was lost from one of the pair, she pinched off the other dangle with nail clippers so the earrings would match. Robin sometimes borrowed them, and they had been missing since her disappearance. According to Frazer, the recovered earrings closely resembled her pair after the dangles had been removed, and a blemish on one of the earrings looked like the pinch mark left by her clippers. Laboratory tests to discover whether Frazer’s clippers caused the blemish were inconclusive.
Two Orange County jail inmates appeared as prosecution witnesses. Robert Dove testified he overheard a conversation between defendant and another inmate, Michael Herrera. According to Dove, defendant denied stabbing Robin, saying he had only “slapped her unconscious.”
Later, defendant told Dove himself that “nobody seen me take her.” They would never convict him, said defendant, without the “film” and the “bike,” and they would not find the bike. In a conversation about photography, defendant said vaguely that he liked to go to a place in the mountains near water towers where one could see city lights. He also mentioned Big Tujunga Canyon. (The death scene was in Santa Anita Canyon, not Big Tujunga, but it was fairly near water towers, and city lights were visible from the road nearby.) Defendant said the victim’s friend—apparently Bridgett W.—had been unable to identify him “even under hypnosis.”
Herrera testified that defendant said he had seen a lawyer who thought the case was weak because “it’s no crime to take pictures at the beach,” and there was no positive identification anyway. Defendant said he had gotten Robin into his car by offering to pay her for magazine photos, which wouldn’t take long. In any event, he told her he would drop her at her appointment. He had trouble getting the bicycle into the car. Once underway, he locked Robin’s door. Defendant was evasive about the route he took, but talked about the Pacific Coast Highway and said “the scenery was nice.” Herrera indicated that he “thinks” Robin was “worried, scared” and “wanted to get out of the car.”
At some point, according to Herrera, defendant asked her if she had ever posed nude. She was crying, and defendant started “slapping the shit out of her”; it was a “weird situation” and “a trip.” Robin became “unconscious,” and defendant thought about taking her to “some mountains”; Herrera remembered the name San Gabriel. Defendant finally decided to leave her where she was. Later he abandoned the bike behind a “Thrifty Drug Store or Thriftimart or some kind of thrift store,” and he believed the police would not find it. As in Dove’s version, defendant denied shooting or stabbing Robin.
The missing bicycle was never found. However, the manager of a charity thrift store in El Monte testified he had found a yellow Schwinn bicycle with turned-up handlebars behind the store during July and sold it. The bike was in unusually good condition for a charity donation.
Over defendant’s strenuous objection, evidence of his conduct on prior occasions was introduced. It tended to show that defendant had a history of enticing young girls into his car, taking them to isolated places, and subjecting them to forced sexual activity and violence. This evidence is discussed in greater detail below.
A deputy coroner testified that Robin’s remains had been chewed by animals, which accounted for much of their scattered and mutilated state when found on July 2. However, a forensic dentist opined that chips in the lower teeth were very likely produced by forceful contact with a blunt object, whether before or after death.
At the conclusion of the prosecution’s case, defendant moved for acquittal. (§ 1118.1.) The motion was denied, except that an allegation of child molestation as a special circumstance was stricken from the information.
B. Defense case.
Tim Fallen testified that on June 21, the day after Robin disappeared, he saw her riding a yellow bicycle in Huntington Beach only 20 minutes before a policeman showed him her picture. Fallen was sure she was wearing a white T-shirt, though all other witnesses said she was last seen in a red one. When asked to compare Robin’s photo with that of another blonde girl, he identified them as the same person.
The defense sought to cast suspicion on one Raul Vasquez. Vasquez and Sierra Madre Police Officer Gerald Crawford each described his encounter at the Marker 11 turnout at 11:15 on the night of June 22. According to Crawford, Vasquez was walking toward the road from the ravine. Crawford asked what he was doing, and Vasquez replied that he was relieving himself and waiting for his girlfriend. Vasquez did not give his name when asked. Crawford patted him down and found a heavy wrench in his back pocket.
In Crawford’s opinion, Vasquez seemed “shaky,” “nervous,” and “upset,” as though “he didn’t want me to locate someone or something, either inside his car or in the area.” The left rear passenger window of Vasquez’ car was broken out, and a large brown beach towel covered the back seat. There was broken glass on the rear seat floor and a six-pack of Budweiser on the front floorboard. Crawford conceded that the turnout is often used for drinking and illegal drug activities.
The prosecution produced a rebuttal witness, Robert Rose, the owner of a body shop where Vasquez was employed in June 1979. According to Rose, Vasquez’ time card showed he had worked full days on June 20 through June 22, always leaving after 5 p.m.
The defense presented several alibi witnesses. Christine De La Cerda, defendant’s sister, stated that she saw him at her home near Montebello at 4:30 p.m. on June 20. Marie Troiano, another sister, testified that defendant called her collect at her Fremont home at 5:54 p.m. on June 20. Her bill reflects that a call was made to her number from the Monterey Park house at that time.
Elizabeth Kelleher, defendant’s former girlfriend, stated that defendant made a one-minute call to her home at 9:15 p.m. on the 21st, leaving a message. That call appears on the bill for defendant’s residence. At 10:08 she called him back, speaking 19 minutes.
Defendant’s mother, with whom he shared the Monterey Park residence, denied making either the Fremont call or the one to Beth Kelleher. She admitted that many of the Fremont calls on her bill were hers, and that she had spoken by phone with Beth Kelleher on a number of occasions since defendant’s arrest. She also conceded that her daughter Christine often used her phone.
David Carpenter, a defense investigator, testified he drove from Marker 11 to the Monterey Park residence by way of the El Monte thrift store. On counsel’s instructions, he left Marker 11 at 5:15 on a Thursday afternoon, used the most logical route, and drove at the speed limit. He arrived about 5:58.
Next, the defense concentrated on discrediting Dana Crappa. William Poepke testified that, just after their first payday as firefighters, he cooked a pizza dinner for Crappa “from [their] first paycheck.” She mentioned she had just had a near-accident at Rendezvous Turnout. They received their first checks on June 13 or 14, and June 21 was in the middle of a pay period. She never mentioned another accident, and they both agreed that the incident must have occurred during the first two weeks of Juné.
Under intense cross-examination, Crappa had testified that her extreme reluctance to come forward with her evidence was caused by overwhelming feelings of horror, guilt, denial, and depression, She had described recurring nightmares about the things she had seen. The nightmares were never quite identical in all details, she said, giving rise to some concern that they had confused her actual memory. She wanted to be completely certain of her facts before she revealed them to the authorities.
The defense now sought to show that much of Crappa’s testimony was confabulated, a product of improper police interrogation methods which played upon Crappa’s confusion and emotional turmoil. Tapes were introduced of extensive interviews conducted separately with Crappa by Detectives Droz and Robison. Defense and prosecution experts gave conflicting views on whether the tapes suggested that Crappa had been “brainwashed” or otherwise led, while in a suggestible state, to false memories.
Finally, the defense produced witnesses intended to undermine the evidence given by Dove and Herrera. Joseph Drake, another inmate, insisted that defendant had given no information while in jail awaiting trial. Rather, said Drake, he, Dove, and Herrera had fabricated defendant’s “admissions” from television and newspaper reports, as part of a plan to strike an informers’ bargain with the authorities. Gregory Jones, a former deputy public defender, declared that he had represented Herrera in a probation revocation matter; court and counsel there had discussed consideration for Herrera’s testimony in this case. The prosecution responded with two law enforcement witnesses who had used Drake as an informant. They stated that his reputation for credibility was low.
Principal Guilt Phase Issues
Defendant argues that because the valid evidence at trial was legally insufficient to show either premeditated murder or forcible kidnaping, the convictions and special circumstance finding must be set aside, and that further proceedings on the unproved allegations are barred by the double jeopardy clause. (E.g., Burks v. United States (1978) 437 U.S. 1, 16-18 [57 L.Ed.2d 1, 12-14, 98 S.Ct. 2141]; People v. Green (1980) 27 Cal.3d 1, 62 [164 Cal.Rptr. 1, 609 P.2d 468].) He also urges that the information must be quashed insofar as it charges kidnaping, since the evidence at his preliminary hearing was insufficient to establish probable cause on that count. (See § 995 et seq.)
We reject both contentions. However, we accept defendant’s alternate premise that improper disclosure at trial of his prior crimes may have affected the jury’s deliberations. We must therefore reverse the guilt and special circumstance determinations. We discuss our reasoning in detail.
A. Evidence of forcible kidnaping.
All parties concede that, at the time of Robin’s disappearance, force or fear was a necessary element of kidnaping unless asportation was from outside the state, or done for slavery, robbery, or extortion. (§ 209; former § 207; People v. Green, supra, 27 Cal.3d 1, 64; People v. Camden (1976) 16 Cal.3d 808, 813-814 [129 Cal.Rptr. 438, 548 P.2d 1110].) Defendant vigorously contends that proof of force or fear was lacking. We think a rational trier of fact could find beyond a reasonable doubt that force or fear was used to transport Robin. (People v. Johnson (1980) 26 Cal.3d 557, 578 [162 Cal.Rptr. 431, 606 P.2d 738, 16 A.L.R.4th 1255].)
Even if the victim’s initial cooperation is obtained without force or the threat of force, kidnaping occurs if the accused “ ‘subsequently restrains his victim’s liberty by force and compels the victim to accompany him further.’” (People v. Camden, supra, 16 Cal.3d 808, 814, quoting People v. Gallagher (1958) 164 Cal.App.2d 414, 420 [330 P.2d 464]; Parnell v. Superior Court (1981) 119 Cal.App.3d 392, 402 [173 Cal.Rptr. 906].) “The force used against the victim ‘need not be physical. The movement is forcible where it is accomplished through the giving of orders which the victim feels compelled to obey because he or she fears harm or injury from the accused and such apprehension is not unreasonable under the circumstances.’” (Parnell, supra, quoting People v. Stephenson (1974) 10 Cal.3d 652, 660 [111 Cal.Rptr. 556, 517 P.2d 820].)
Imprisonment for any substantial distance in a moving vehicle is forcible asportation. Thus, where the victim expresses the desire to leave the car, or not to accompany the defendant in the direction he is going, but the defendant ignores the plea and continues to drive so fast that the victim cannot escape, force or fear is established. (People v. Camden, supra, 16 Cal.3d 808, 811-812; People v. La Salle (1980) 103 Cal.App.3d 139, 146-147 [162 Cal.Rptr. 816].) Such a situation is particularly threatening to a child. (Parnell v. Superior Court, supra, 119 Cal.App.3d 392, 402.)
Here, there is both direct and circumstantial support for the charge of forcible kidnaping. The People introduced evidence that Robin was a responsible child, highly motivated to meet her late-afternoon ballet appointment. Yet she never arrived for that appointment, and Dana Crappa claimed to have seen her in defendant’s company at the scheduled time, some 40 miles distant from both her home and the dance studio. Defendant was a virtual stranger, and Jackye Young testified that Robin had found him “strange.” The jury could reasonably infer that she had not accompanied him voluntarily.
Moreover, inmate Herrera testified to defendant’s statement that he had lured Robin into his automobile with a ruse about magazine photos, then locked the car’s only passenger-side door. Under the circumstances, the jury could conclude that the door was locked to prevent Robin’s escape.
Thereafter, defendant told Herrera, he drove toward Pacific Coast Highway. During this period, Robin said she “wanted to get out of the car” and asked to be let out at the next corner. Defendant failed to comply.
The death scene was far from Pacific Coast Highway, suggesting that Robin was kept in the car for a substantial period and distance after she asked for her freedom. The jury was not required to assume that she gave new consent to the asportation by voicing no further protest. Her motivation to be elsewhere, and the coercive atmosphere created when defendant ignored her original plea, make the possibility of new consent remote.
We need not be convinced beyond a reasonable doubt that defendant kidnaped Robin by force. We must merely determine whether “any rational trier of fact” at all could be so persuaded. (People v. Johnson, supra, 26 Cal.3d 557, 576, quoting Jackson v. Virginia (1979) 443 U.S. 307, 318-319 [61 L.Ed.2d 560, 573-574, 99 S.Ct. 2781], rehg. den., 444 U.S. 890 [62 L.Ed.2d 126, 100 S.Ct. 195, italics in original.) The factfinder may weigh the credibility of witnesses and draw all reasonable inferences from the evidence. (People v. Reilly (1970) 3 Cal.3d 421, 425 [90 Cal.Rptr. 417, 475 P.2d 649].) Herrera’s testimony, supported by circumstantial evidence suggesting Robin would not have gone voluntarily to Sierra Madre, furnish an ample basis for a finding of forcible kidnaping.
Defendant asserts, however, that Herrera’s testimony about what actually happened in the car must be disregarded, since it is not directly corroborated. Because of a jailhouse informant’s motive to lie, defendant suggests the informant’s uncorroborated testimony is unworthy of “full credit” as a matter of law.
The contention lacks merit. Evidence Code section 411 provides that “[ejxcept where additional evidence is required by statute, the direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact.” (Italics added.) The Penal Code sets forth the exceptions applicable in criminal cases. They include treason (§ 1103; see also Cal. Const., art. I, § 18 [court confession or two witnesses]), perjury (§ 1103a [contradiction of testimony by single other person insufficient]), abortion or enticing away for prostitution (§ 1108 [uncorroborated testimony of prosecutrix insufficient]), theft by pretense without false token (§ 1110 [false writing or two witnesses required]), and accomplice testimony (§ 1111 [insufficient for conviction if uncorroborated]). Moreover, the corpus delicti of a crime may not be proved solely by the accused’s admissions. (People v. Beagle (1972) 6 Cal.3d 441, 455 [99 Cal.Rptr. 313, 492 P.2d 1]; see discussion, post.)
But for these exceptions, an interested witness’ “entitle[ment] to full credit” under section 411 is a matter for the trier of fact. (E.g., Thompson v. Occidental Life Ins. Co. (1973) 9 Cal.3d 904, 918-919, and fn. 6 [109 Cal.Rptr. 473, 513 P.2d 353].) Thus, for example, there is no bar to conviction of a sex crime solely on the uncorroborated testimony of the complaining witness. (E.g., People v. Scott (1978) 21 Cal.3d 284, 296 [145 Cal.Rptr. 876, 578 P.2d 123]; People v. Sylvia (1960) 54 Cal.2d 115, 122 [4 Cal.Rptr. 509, 351 P.2d 781], disapproved on other grounds, People v. Kelley (1967) 66 Cal.2d 232, 242 [57 Cal.Rptr. 363, 424 P.2d 947].)
The exception for accomplice testimony, which defendant deems most analogous, arises from the accomplice’s overwhelming motive to shift blame to defendant. He must do so, either to minimize his own liability at trial, or to convince the authorities it is worth immunizing him to obtain his testimony against the defendant. Whatever consideration a jailhouse informant may expect for testifying, the direct, compelling motive to lie is absent.
Here, the jury was fully apprised of the possible selfish motives for Herrera’s testimony, and it was labeled false by another inmate. (9) (See fn. !9*) No basis appears for a judicial exception to the clear policy of section 411.
Though defendant does not address the point, we note that the corpus delicti of a crime must be proved independent of the accused’s extrajudicial admissions. (People v. Beagle, supra, 6 Cal.3d 441, 455; see 1 Witkin, Cal. Crimes (1963) § 89, p. 85.) Thus, before the jury could find that defendant kidnaped Robin, a case of force or fear must appear from evidence other than Herrera’s account of his conversation with defendant. The jury was so instructed. (CALJIC No. 2.72, as modified.)
The independent proof may be by circumstantial evidence (People v. Manson (1977) 71 Cal.App.3d 1, 25 [139 Cal.Rptr. 275]), and it need not be beyond a reasonable doubt. A slight or prima facie showing, permitting the reasonable inference that a crime was committed, is sufficient. (People v. Towler (1982) 31 Cal.3d 105, 115 [181 Cal.Rptr. 391, 641 P.2d 1253]; People v. Mehaffey (1948) 32 Cal.2d 535, 545 [197 P.2d 12], cert. den., 335 U.S. 900 [93 L.Ed. 435, 69 S.Ct. 399].) If the independent proof meets this threshold requirement, the accused’s admissions may then be considered to strengthen the case on all issues. (People v. McMonigle (1947) 29 Cal.2d 730, 738 [177 P.2d 745].)
Measured by this standard, there was adequate preliminary evidence, aside from defendant’s admissions, to suggest that Robin was abducted by force or fear. As we have seen, the circumstantial evidence presented made it highly unlikely that Robin had accompanied defendant willingly to the death scene.
An inference of force or fear on this basis is not “speculative,” “conjectural,” or “fantastic” in the context of establishing the corpus delicti. (Compare, e.g., Jones v. Superior Court (1979) 96 Cal.App.3d 390, 395-396 [157 Cal.Rptr. 809]; People v. Schuber (1945) 71 Cal.App.2d 773, 776-777 [163 P.2d 498].) The corpus delicti rule was satisfied, and there was sufficient evidence of forcible kidnaping.
B. Evidence murder was premeditated.
Defendant argues that the evidence of premeditation and deliberation is insufficient to sustain a verdict of first degree murder. We disagree.
People v. Anderson (1968) 70 Cal.2d 15 [73 Cal.Rptr. 550, 447 P.2d 942] (Anderson) isolated three categories of circumstantial evidence which, in appropriate combination, might justify the finding that an intentional killing was calculated rather than impulsive. The first concerns “planning”—“facts about how and what defendant did prior to the actual killing which show that [he] was engaged in activity directed toward, and explicable as intended to result in, the killing... .” The second involves “motive”—“facts about the defendant’s prior relationship and/or conduct with the victim from which the jury could reasonably infer a ‘motive’ to kill... .” The third focuses on methodology—whether “the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a ‘preconceived design’ to take his victim’s life in a particular way for a ‘reason’ which the jury can reasonably infer... .” (Pp. 26-27, all italics in original.)
Evidence in only one of these areas most often is insufficient. Where fewer than all three indicia are present, we require “at least extremely strong evidence of (1) [planning] or evidence of (2) [motive] in conjunction with either (1) or (3) [deliberate manner of killing].” (P. 27.)
The fact that a slaying was unusually brutal, or involved multiple wounds, cannot alone support a determination of premeditation. Absent other evidence, a brutal manner of killing is as consistent with a sudden, random “explosion” of violence as with calculated murder. (Pp. 24-25; People v. Robertson (1982) 33 Cal.3d 21, 48 [188 Cal.Rptr. 77, 655 P.2d 279]; People v. Smith (1973) 33 Cal.App.3d 51, 64 [108 Cal.Rptr. 698], overruled on other grounds, People v. Wetmore (1978) 22 Cal.3d 318, 324 [149 Cal.Rptr. 265, 583 P.2d 1308].)
Here the evidence, viewed most favorably to the People, suggests that defendant met and photographed Robin, devised and executed a scheme to abduct her, kept her in his car by force or fear, drove her a considerable distance from urban surroundings to a rural area, then took her on foot away from the road to an even more secluded spot “where others were unlikely to intrude.” (Anderson, supra, 70 Cal.2d 15, 27.) The jury could conclude he carried a knife with him to the death scene and used it to kill Robin. Dana Crappa testified that Robin’s body was “all cut up.” A Kane Kut knife containing human blood, and a towel with “wipe” stains of type A blood, were found nearby. There was a set of similar knives at defendant’s home.
Of course, use of a deadly weapon is not always evidence of a plan to kill. (E.g., Anderson, supra, 70 Cal.2d 15, 21-22 [knife].) Moreover, as defendant points out, not all “planned” conduct with the victim is “actively directed toward, and explicable as intended to result in, [a] killing... .” (Id., at p. 26.) Defendant suggests his conduct prior to the homicide was “highly ambiguous” (id., at p. 31) and, however felonious, showed no preconceived “intention to kill his victim” (id., at p. 33, italics in original).
However, when one plans a felony against a far weaker victim, takes her by force or fear to an isolated location, and brings along a deadly weapon which he subsequently employs, it is reasonable to infer that he considered the possibility of homicide from the outset. (Compare, e.g., People v. Haskett (1982) 30 Cal.3d 841, 850 [180 Cal.Rptr. 640, 640 P.2d 776]; People v. Hillery (1965) 62 Cal.2d 692, 704 [44 Cal.Rptr. 30, 401 P.2d 382]; cf., People v. Quicke (1964) 61 Cal.2d 155, 158-159 [37 Cal.Rptr. 617, 390 P.2d 393].) Thus, there is substantial evidence of a “planned” killing—the most important prong of the Anderson test.
The record also discloses a plausible motive for the killing. Apparently there were no eyewitnesses to the abduction except defendant and his victim. If defendant saw Dana Crappa drive by as he walked up the ravine at Marker 11 with Robin, he may not then have attached any significance to the encounter. According to Robert Dove, defendant felt safe even after his arrest because “nobody seen me take her,” and they would “never find the bike.”
The evidence thus suggests that defendant had committed a serious felony, kidnaping, on the victim and believed she was the only person who could implicate him. “[H]ence he could [surmise] that by killing her.. ., he would eliminate the only [witness] to his [crime].” (.People v. Haskett, supra, 30 Cal.3d 841, 850.)
Finally, Dana Crappa’s description of the body—“all cut up”—conveys the impression of multiple stab wounds. Damage to the teeth and jaw also indicated a blow to the head with a blunt object. When considered in light of the planning and motive evidence, this brutal method of killing supports the inference of a calculated design to ensure death, rather than an unconsidered “explosion” of violence. (See Anderson, supra, 70 Cal.2d 15, 29-30.) Under all the circumstances, we find ample evidence of premeditation and deliberation.
C. Motion to quash information for lack of probable cause.
Defendant filed a pretrial motion under section 995 to set aside the information on grounds that the preliminary hearing had failed to establish probable cause. He challenges the court’s refusal to strike on this ground the charge and special circumstance of kidnaping.
Illegalities in pretrial commitment proceedings, other than those which are “jurisdictional in the fundamental sense,” are not reversible error per se on an appeal from the subsequent trial. Rather, “defendant [must] show that he was deprived of a fair trial or otherwise suffered prejudice as a result of the error at the preliminary examination. ” (People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529 [165 Cal.Rptr. 851, 612 P.2d 941].)
Defendant suggests that a failure of evidence at the preliminary hearing is a jurisdictional defect. Such, of course, is not the case; were it so, the jurisdictional exception would swallow the rule.
Prior to Pompa-Ortiz, People v. Elliot (1960) 54 Cal.2d 498 [6 Cal.Rptr. 753, 354 P.2d 225] had established that all material errors in pretrial commitment proceedings were “jurisdictional,” since they meant defendant had been “illegally committed.” In overruling Elliot, Pompa-Ortiz rejected the prior case’s “uncritical use of the term ‘jurisdiction’ ” in the context of matters correctible by pretrial writ, rather than to mean “legal power to hear and determine a cause.” Under Pompa-Ortiz, only an absence of this latter kind of jurisdiction can furnish grounds for reversal per se after a fair trial. (27 Cal.3d at pp. 528-529.)
An evidentiary deficiency at the preliminary hearing does not meet that standard. The statutes have long provided that lack of probable cause at the preliminary hearing is waived for all purposes if not timely pursued prior to trial. (§§ 995, 996, 999a; Elliot, supra, at p. 505.) It follows that a failure of probable cause is not an unwaivable “jurisdictional” defect in the commitment which warrants reversal, or a quashing of the information, even though defendant’s trial was fair.
Defendant claims he was prejudiced at trial by the superior court’s failure to strike the kidnaping charge for lack of probable cause. At the preliminary hearing, jail inmate Ricky Rodriguez provided the only direct evidence on the kidnaping charge; his description of alleged conversations with defendant suggested that Robin had not been kept in defendant’s car by force or fear. The People urged to the magistrate that no proof of force or fear was necessary to show kidnaping. The magistrate demurred, correctly citing People v. Stephenson, supra, 10 Cal.3d 652, and People v. Camden, supra, 16 Cal.3d 808, but still bound defendant over on kidnaping charges.
At trial, the People produced inmates Robert Dove and Herrera, who testified that defendant admitted keeping Robin in his car forcibly. Defendant urges that the People thus “misled” the magistrate, then improperly “changed the facts” at trial to “fit the law.”
However, the People are not bound at trial by the factual theories, evidence, or testimony adduced at the preliminary hearing. (But cf., Coleman v. Alabama (1970) 399 U.S. 1, 9-10 [26 L.Ed.2d 387, 396-397, 90 S.Ct. 1999]; Hawkins v. Superior Court (1978) 22 Cal.3d 584, 588 [150 Cal.Rptr. 435, 586 P.2d 916] [general value of preliminary hearing as defense discovery tool].) Defendant does not claim he was surprised at trial by the use of Dove and Herrera rather than Rodriguez, or by their different testimony. If error occurred on the section 995 motion, we can find no prejudice.
D. Introduction of prior crimes.
As in the trial court, defendant urges strenuously that evidence of prior uncharged conduct was improperly admitted and considered as evidence of his guilt. He relies on the general rule against use of prior conduct to show a “disposition to commit” the crime charged. (Evid. Code, § 1101, subds. (a), (b).) He also argues the prior crimes should have been excluded in any event as more prejudicial than probative. (Id., § 352, subd. (b).)
In response, the People invoke the statutory exception which allows admission of prior conduct to show “motive,... intent,... plan,... [or] identity,.. .” (Id., § 1101, subd. (b).) The jury was instructed that it could consider the evidence on each of those issues. (See fn. 19, post.)
We conclude that the prior acts were inadmissible on all of these theories, and that the error was prejudicial on all charges. We summarize the challenged evidence.
Witnesses testified that on the morning of September 25, 1968, defendant stopped Tali S., an eight-year-old girl who was walking to school along Sunset Boulevard in Los Angeles. He offered her a ride, and she entered his car. When he proposed a short detour to his nearby home, she panicked but could not get out of the moving auto.
Inside the house, defendant showed her a psychedelic poster of forests and trees. Meantime, a witness who had followed defendant called the police. They arrived 10 minutes later and saw defendant, unclothed, peering out the front window. They broke down the door. Tali was found lying on the kitchen floor, naked, unconscious, and barely breathing. She had a severe head wound and blood was coming from her vagina. There was a steel bar over her neck. The house was full of photography equipment.
Defendant escaped through the rear door and became a fugitive. In 1972, he was returned to California and convicted of violating Penal Code section 288 (child molesting).
Defendant was paroled on the section 288 conviction in August 1974. On the morning of October 13, he approached Julie J., a small, undeveloped 13-year-old, as she was waiting for a bus to school in Huntington Beach. According to her testimony, he ingratiated himself with conversation, and, after some hesitation, she accepted his offer of a ride to school. They passed her building, and she asked several times to be let out. At first, defendant said he was checking an apartment in the area and wouldn’t take long, but he finally told her rudely to be quiet. She became frightened.
When defendant stopped at the cliffs overlooking the beach (apparently the same general area where he photographed Robin Samsoe), Julie tried to get out and run, but defendant had come around to her door, and he grabbed her arm. He steered her on foot to a spot along the cliffs, forced her to smoke marijuana, and seized her leg when she tried to leave. He then put his arms around her, gave her a French kiss, and asked if she liked boys and was passionate when she was “loaded.” The incident ended when a ranger arrested them both for the marijuana violation. Defendant’s parole was revoked. He was returned to prison until 1977, when he was paroled again.
According to defendant’s taped confession, not challenged on this appeal, he picked up Monique H., who was hitchhiking in Riverside County on February 12, 1979. Monique was a well-developed 15-year-old. The two drove to defendant’s residence and spent the night together, engaging in consensual sex. The next morning, they went to some mountains, where defendant took pictures of Monique in the nude, and of the two performing simulated sex acts together. At some point, Monique became frightened and began to scream and struggle. Defendant tied her up, stuffed a T-shirt in her mouth, beat her unconscious, and raped her vaginally and anally. He said he had not planned the violence, but was “incoherent” and frightened about a situation that had gotten out of hand. Ultimately, he drove Monique back to civilization, where she notified the police.
The rule excluding evidence of criminal propensity is nearly three centuries old in the common law. (1 Wigmore, Evidence (3d ed. 1940) § 194, pp. 646-647.) Such evidence “is [deemed] objectionable, not because it has no appreciable probative value, but because it has too much.” (Italics added.) Inevitably, it tempts “the tribunal ... to give excessive weight to the vicious record of crime thus exhibited, and either to allow it to bear too strongly on the present charge, or to take the proof of it as justifying a condemnation irrespective of guilt of the present charge.” (Id., at p. 646; quoted in People v. Schader (1969) 71 Cal.2d 761, 773, fn. 6 [80 Cal.Rptr. 1, 457 P.2d 841].)
California’s codification of the common law rule (Evid. Code, § 1101, subd. (a)) is absolute where it applies. However probative to common sense, evidence must be excluded under section 1101, subdivision (a), if the inference it directly seeks to establish is solely one of propensity to commit crimes in general, or of a particular class. (People v. Thompson (1980) 27 Cal.3d 303, 317 [165 Cal.Rptr. 289, 611 P.2d 883].)
This absolute rule of exclusion does not apply to prior conduct, even if criminal, which is relevant to prove more than mere criminal predisposition. The test of relevance is whether the evidence “tend[s] logically, naturally, and by reasonable inference, to establish any fact[s] material for the people [such as identity, intent, plan, motive, preparation, or opportunity] or to overcome any material matter sought to be proved by the defense.” (People v. Peete (1946) 28 Cal.2d 306, 315 [169 P.2d 924], cert. den., 329 U.S. 790 [91 L.Ed. 677, 67 S.Ct. 356], rehg. den. (1947) 329 U.S. 832 [91 L.Ed. 705, 67 S.Ct. 490], cert. den., 331 U.S. 783 [91 L.Ed. 1815, 67 S.Ct. 1185].)
However, because other-crimes evidence is so inherently prejudicial, its relevancy is to be “examined with care.” It is to be received with “extreme caution,” and all doubts about its connection to the crime charged must be resolved in the accused’s favor. (People v. Sam (1969) 71 Cal.2d 194, 203 [77 Cal.Rptr. 804, 454 P.2d 700]; Peete, supra.)
Moreover, because of its inflammatory impact, evidence of other offenses sometimes must be excluded “[e]ven if [it] is relevant under a theory... that does not rely on proving disposition... .” (People v. Thompson, supra, 27 Cal.3d 303, 318.) Thus, it is inadmissible if not relevant to an issue expressly in dispute (Thompson, supra, at p. 315), if “merely cumulative with respect to other evidence which the People may use to prove the same issue” (People v. Guerrero (1976) 16 Cal.3d 719, 724 [129 Cal.Rptr. 166, 548 P.2d 366], quoting People v. Schader, supra, 71 Cal.2d 761, 775), or if more prejudicial than probative under all the circumstances. (Thompson, supra, at p. 318; People v. Haston (1968) 69 Cal.2d 233, 246 [70 Cal.Rptr. 419, 444 P.2d 91].)
The fundamental issue in this case was the identity of Robin Samsoe’s abductor and killer. The People contend that evidence of defendant’s prior crimes was admissible on that question since the similarity of the earlier offenses to the current ones suggests strongly that the same person committed them all. We cannot agree.
Where the prosecution seeks to fix responsibility for a particular crime on defendant by showing a consistent modus operand!, there must be common marks which, considered singly or in combination, support the strong inference that the current crime bears his signature. (People v. Thornton (1974) 11 Cal.3d 738, 756 [114 Cal.Rptr. 467, 523 P.2d 267], cert. den. (1975) 420 U.S. 924 [43 L.Ed.2d 393, 95 S.Ct. 1118], overruled on other grounds, People v. Flannel, supra, 25 Cal.3d 668, 684, fn. 12; People v. Sam, supra, 71 Cal.2d 194, 204; Haston, supra, 69 Cal.2d 233, 247.) The People point to various common elements in the charged and uncharged offenses here. They note that defendant’s pattern is to approach underage girls, engage them in conversation, entice them into his automobile, restrain them by force when they wish to leave, and take them to remote locations, often scenic outdoor settings, where he assaults them and commits forcible sexual acts. In many instances, the People emphasize, he uses photography as a ploy to gain the victims’ cooperation.
But the alleged similarities break down under examination. Monique H. was never restrained in defendant’s car by trick, force or fear. Neither outdoor settings nor the use of photography figured in the Tali S. incident (though there was camera equipment in the house). The People’s strained theory that defendant supplied those elements by showing Tali a psychedelic poster of forests and trees is not persuasive. There was no element of photography at all in the Julie J. incident. In none of the three cases was photography used as an introductory ploy, and there seems nothing consistent or unusual in the techniques defendant used to ingratiate himself.
Despite the People’s suggestion that locale was important to defendant, the sites of his offenses were widely scattered and dissimilar. Moreover, defendant’s pattern of sexual conduct in the other cases was not consistent or distinctive. He gave Julie J. a “French kiss” but made no further physical advances before he was arrested. Monique H. was physically mature, and the acts committed on her occurred only after lengthy sessions of consensual sex. Most importantly, Robin was killed, while the earlier victims were not.
To the extent a “pattern” can be found in these incidents, it is entirely unremarkable. The similarities noted by the People must be common to a substantial portion of the population of child molesters. By definition, their victims are children, who must be induced to submit under circumstances in which escape or detection is unlikely. The use of charm or deception, and transportation to places of privacy, are logical means of accomplishing those aims. So, tragically, is violence. The People have not convinced us that a peculiar pattern in defendant’s past conduct establishes his identity as Robin’s killer by setting him apart from the general class of violent sex offenders against children.
Nor can admission of the prior crimes be justified by their asserted relevance to the question of defendant’s “intent” when he approached Robin and her friend at the beach. Aside from modus operandi, the prosecutor urged the jury to consider the crimes on the theory that this “intent” was an intermediate fact bearing on the ultimate issue of identity. (See People v. Thompson, supra, 27 Cal.3d 303, 315, and fn. 14.) However, in seeking to connect the events on the beach and the charged crimes, he simply assumed the critical fact at issue, namely that defendant “actually [did] get Robin ... to go with him.”
The beach encounter certainly has some relevance on the question of identity. It is suspicious that, within hours before her disappearance, defendant had approached Robin, a child he did not know, and had hurried away when another adult intervened. There is no question that evidence of this encounter was properly admitted.
However, the prior crimes add nothing valid to that evidence. They exhibit no specific points of probative similarity which might suggest that defendant’s approach to Robin was a precursor to her unobserved abduction some hours later. In fact, they invite such an inference, if at all, only by exposing defendant’s penchant for child molestation. To that extent, the prosecutor’s theory of “intent” was but a euphemism for proving the identity of Robin’s killer by establishing defendant’s general disposition to commit similar crimes. Of course, any effort to use prior crimes for that purpose is expressly forbidden by Evidence Code section 1101. (Thompson, supra, at pp. 320-321; see also People v. Guerrero (1976) 16 Cal.3d 719, 728 [129 Cal.Rptr. 166, 548 P.2d 366].)
For similar reasons, the evidence could not be bootstrapped in on the theory that it showed defendant’s “plan or scheme.” Mere use of those words adds nothing to a case for the admission of prior offenses. The proffered evidence must still be analyzed to determine whether it proves something material, disputed, and beyond bare disposition. (Thompson, supra, 27 Cal.3d at pp. 315-318.)
There was no contention in this case, nor could there be, that Robin’s kidnap and murder were part of a single conspiracy, conception, or plot of which the 1968, 1977, and February 1979 incidents were also integral components. (See, e.g., People v. Covert (1967) 249 Cal.App.2d 81, 85-86 [57 Cal.Rptr. 220].) Rather, “plan or scheme” was used here synonymously with the theories of admissibility already discussed. Indeed, both the prosecutor’s argument and the modified instruction employed the phrase “characteristic method, plan, or scheme” as though it was interchangeable with modus operandi on the one hand, and with defendant’s intent in approaching Robin on the other. Accordingly, no different rules apply to use of the prior-crimes evidence than those we have previously outlined.
Finally, we reject any implication that the prior crimes were admissible to establish a motive for premeditated murder. Common sense indicates that one who commits a felony upon another wishes to avoid its detection. That may lead him to the calculated murder of his victim. Here, the jury could consider the possibility that defendant killed Robin in cold blood to prevent her from naming him as her kidnaper. (See discussion, ante.)
However, the prosecutor argued in effect that defendant’s prior crimes increased his incentive to eliminate Robin as a witness, since they might result in more severe punishment for the current offense. We cannot accept the notion that evidence of past offenses is admissible on this basis. If it were, one’s criminal past could always be introduced against him when he was accused of premeditated murder in the course of a subsequent offense. The accused’s mere status as an ex-criminal would place him under an evidentiary disability not shared by first offenders. The prejudicial effect of the prior-crimes revelations would vastly outweigh their slight and speculative probative value. It is just such dangers which the restrictions on evidence of past offenses seek to avoid.
People v. Durham (1969) 70 Cal.2d 171 (cert. den., 395 U.S. 968 [74 Cal.Rptr. 262, 449 P.2d 198], cert. den. sub nom. Robinson v. California (1972) 406 U.S. 971 [32 L.Ed.2d 671, 92 S.Ct. 2416]) is not contrary. There, defendants shot and killed a police officer during a routine automobile stop. This court held that the jury could hear evidence of outstanding uncharged offenses for which defendants feared apprehension. (Pp. 186-189; see also People v. Robillard (1960) 55 Cal.2d 88, 100 [10 Cal.Rptr. 167, 358 P.2d 295, 83 A.L.R.2d 1086], cert. den. (1961) 365 U.S. 886 [6 L.Ed.2d 199, 81 S.Ct. 1043], overruled on other grounds, People v. Morse (1964) 60 Cal.2d 631, 648-649 [36 Cal.Rptr. 201, 388 P.2d 33, 12 A.L.R.3d 810].) In cases like Durham and Robillard, the motive of escape is central, and it can be shown in no other way. Here, the issue of witness elimination was before the jury in any event; speculation that defendant was also worried about the implications of his past record is remote and cumulative. Under these circumstances the trial court erred in admitting evidence of prior crimes.
We cannot say the error was harmless. The other evidence that defendant kidnaped and killed Robin was fairly strong, but not overwhelming, and it was largely circumstantial. Besides defendant’s approach to Robin, and his placement at the crime scene by Dana Crappa, the People’s case centered on (1) his “admissions” to jailhouse informants whose credibility was hotly disputed, (2) his “guilty behavior” in travelling to Seattle, where he rented and filled a storage locker, (3) his possession in the locker of earrings the victim might have worn, and (4) discovery of the Kane Kut knife near Robin’s body. Defendant presented a plausible alibi based in part on telephone calls he allegedly made or received in his home at crucial times; bills confirmed the calls were made. He also mounted a vigorous challenge to the credibility of Dana Crappa and pointed up material inconsistencies in her testimony. There was no knife missing from the Kane Kut set in his residence.
Under these circumstances, the jury may well have been influenced by improper consideration of the other crimes, which were highly prejudicial in their nature, in deciding that defendant was the person who abducted and killed Robin. It thus appears reasonably probable that, absent the instructional error, a result more favorable to defendant would have been reached. (People v. Watson (1956) 46 Cal.2d 818, 836-837 [299 P.2d 243], cert. den. (1957) 355 U.S. 846 [2 L.Ed.2d 55, 78 S.Ct. 70].) Accordingly, we set aside the convictions of murder and kidnaping, and the related finding of kidnaping as a special circumstance.
Other Issues
Defendant raises numerous other claims of error at the jury selection, guilt, and penalty phases of his trial. In light of our analysis above, we need not reach them.
In his related petition for habeas corpus, defendant contends that two witnesses, Robert Dove and Michael Herrera, gave perjured testimony against him at his trial. Any resulting prejudice is dispelled by our reversal on other grounds, and the petition is therefore moot.
The judgment is reversed. The petition for habeas corpus is denied as moot.
Bird, C. J., Kaus, J., Broussard, J., and Reynoso, J., concurred.
Robin’s blood type was apparently type A.
The timing is significant, since the defense presented evidence that defendant spoke by telephone to his girlfriend, Beth Kelleher, from his home around 10 p.m. on the 21st.
Beverly Fleming, the dance studio operator, had testified that Robin wanted to be a movie star or a model so her mother would not have to work so hard.
The apparent purpose was to suggest defendant could not have gotten home from Marker 11, where Crappa allegedly saw him between 5 and 5:30 on the 20th, in time to make his 5:54 call to Fremont. Simple mathematics demonstrate that the proof is not persuasive.
During cross-examination, there had been much sparring about whether her evasive responses to police questioning, and at the preliminary hearing, were outright lies. For example, she was asked at the hearing whether the Datsun “[had] its lights on” when she confronted it on the 21st and whether “there [was] anybody inside that [she] could see.” She answered that “[t]he only thing I remember is seeing that car.” At trial, Grappa characterized this as “answering [literally] the question I was asked” but conceded the response was misleading in light of her true knowledge.
Confabulation is a process by which the witness fills gaps in memory with false and imaginary information, often implanted by others, and comes to believe in the truth of his reconstruction. (See People v. Shirley (1982) 31 Cal.3d 18, 31, 64 [181 Cal.Rptr. 243, 641 P.2d 775].)
The petition for habeas corpus filed herein also urges that Herrera’s and Dove’s trial testimony was perjured.
Section 207 was amended in 1982 to provide that any asportation of a child under 14 for purposes of molesting him or her is kidnaping. (See new subd. (b).)
Defendant develops the argument more fully in his petition for habeas corpus, but we consider it as properly raised on appeal.
Even if Herrera’s statements must be “corroborated” as a matter of law, such corroboration exists here. There need not be independent support for each fact testified to by the suspect witness; corroboration is sufficient for this purpose if it “tends to connect the defendant with the commission of the offense [charged] in such a way as reasonably may satisfy a jury that the [witness] is telling the truth. ” (E.g., People v. Holford (1965) 63 Cal.2d 74, 82 [45 Cal.Rptr. 167, 403 P.2d 423], quoting People v. Lyons (1958) 50 Cal.2d 245, 257 [324 P.2d 556] [overruled on other grounds, People v. Green, supra, 27 Cal.3d 1, 32-34].) Circumstantial evidence is sufficient, “although such evidence ‘is slight and entitled, when standing by itself, to but little consideration. ’ ” (Holford, supra, quoting People v. McLean (1890) 84 Cal. 480, 482 [24 P. 32].) The circumstances surrounding the abduction here serve that purpose. Moreover, the jury was entitled to believe the truth of defendant’s statement to Herrera that he refused to release Robin, even if it disbelieved other portions of the remarks Herrera attributed to defendant.
Premeditation was the sole theory available for a verdict of murder in the first degree, since there was no charge or evidence of any one of the specific additional crimes (arson, rape, robbery, burglary, mayhem, or child molesting) which will support a first degree finding under the felony-murder doctrine. (§ 189.) The jury was instructed on second degree felony murder, based upon the charge of forcible kidnaping. (§§ 187-189.)
We recognize that, in both Dove’s and Herrera’s accounts of their jailhouse conversations with defendant, he denied stabbing Robin. His comments to Dove and Herrera also suggested that he reacted with sudden violence only when she became upset and resisted him. Nonetheless, the jury was not obliged to accept defendant’s version.
Because there was substantial evidence of an intentional, premeditated killing, on which evidence the jury must have relied to find first degree murder (see fn. 11, ante), we do not face the problem addressed in Carlos v. Superior Court (1983) 35 Cal.3d 131 [197 Cal.Rptr. 79, 672 P.2d 862], i.e., “whether a defendant can be charged or convicted of murder with the special circumstance of felony murder [here, murder in the course of a forcible kidnaping; see §§ 207, subd. (a), 190.2, subd. (a)(17)(ii)] under the 1978 death penalty initiative if he did not intend to kill or to aid in the commission of a killing.” (Italics added; see People v. Sedeno (1974) 10 Cal.3d 703, 720-721 [112 Cal.Rptr. 1, 518 P.2d 913], overruled on other grounds, People v. Flannel (1979) 25 Cal.3d 668, 684-685, fn. 12 [160 Cal.Rptr. 84, 603 P.2d 1].)
Indeed, it was a probable cause case which began the confusion about the effect on appeal of errors in pretrial commitment proceedings. As Pompa-Ortiz noted, Greenberg v. Superior Court (1942) 19 Cal.2d 319 [121 P.2d 713], had used “jurisdictional” terminology simply to establish the right to pretrial writ review of probable cause determinations. (Pp. 321-322.) Elliot then “utilized the Greenberg language in fashioning the per se reversal rule, thus introducing into the field of appellate review the [much broader] concept of jurisdiction used in the prohibition context... .” (Pompa-Ortiz, supra, 27 Cal.3d at pp. 528-529.)
However venerable and sound, the rule can cause frustration. “Reasonable persons may fret over the wisdom of permitting an incorrigible scoundrel to ‘start his life afresh’ when charged with the umpteenth repetition of some particular offense. ...” (People v. Wills-Watkins (1979) 99 Cal.App.3d 451, 457 [160 Cal.Rptr. 289], fn. omitted [conc. opn. of Kaus, P. J.].)
The evidence suggests that Tali S. was left for dead. She was in bed for two and a half months and out of school for four.
As the prosecutor declared in his closing argument: “The court will instruct you that [the] other offenses may be offered to show intent, to determine his method of operation, to determine a plan or scheme... similar to the method, plan or scheme ... in this case, which would tend to further show the existence of the intent,... and the identity of the person who committed the crime .... [t] The other acts are also available to you to consider the defendant’s motive. ... It is important, we felt, to show you this, so that you would know that we don’t just have a man down at the beach taking pictures of young girls. [1] There is a tremendous difference between a man down at the beach taking pictures of young girls and a man who is a sex pervert, who is a child molester, who is down at the beach taking pictures of young girls and trying to get those girls to go with him; especially when just a very short period of time after he tries to get a girl to go with him [this could refer to Joanne M., Patty E., or Lorrie W.], he actually does get Robin Samsoe to go with him. [f] It shows motive. It shows why he was kidnapping Robin, why he was taking her up to the hills and why he had to kill her afterwards, so that she would not report him.”
A separate rule had developed in sex cases that prior sex offenses may be admitted to show “common plan, scheme or design,” without further examination of their bearing on intent, identity, or any other disputed issue, if they “are not too remote and are similar to the offense charged and are committed with persons similar to the prosecuting witness... .” (See People v. Thomas (1978) 20 Cal.3d 457, 465 [143 Cal.Rptr. 215, 573 P.2d 433]; People v. Kelley, supra, 66 Cal.2d 232, 243.) Whatever relevance the Thomas-Kelley rule has in this case, where no sex offense is charged, People v. Tassell (1984) 36 Cal.3d 77 [201 Cal.Rptr. 567, 679 P.2d 1] has effectively overruled it. (Pp. 87-89, & fn. 8.)
Defendant also argues that prior sex crimes are never admissible unless there is evidence of sexual misconduct in the current case. (See People v. Guerrero, supra, 16 Cal.3d 719, 727-728.) He claims the trial court allowed the challenged evidence only because, in pretrial proceedings under section 995, the prosecutor misled the court to believe he would produce evidence that Robin Samsoe had been sexually molested. Our conclusion that the prior incidents were inadmissible in any event because they exhibited no distinct pattern of similarity bearing on identity, intent, plan, or motive makes it unnecessary to explore this related contention.
The claim of perjury is based on Dove’s recantation under oath after the trial. If the prosecution recalls either accused witness on any retrial, and the witness testifies as he did at the first trial, defendant may seek to impeach him with the intervening recantation.
MOSK, J.
I dissent.
I cannot conclude, with the assurance of my colleagues, that the admission of evidence of prior offenses committed by defendant was erroneous, or that its admission requires reversal under People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243]. There were sufficient similarities in the prior offenses, all against female children, to permit their introduction on the issue of identity.
That the prior offenses against little girls did not result in a killing is not sufficient justification to find dissimilarity and to conclude that the trial court improperly exercised its discretion in admitting the evidence. (People v. McCarty (1958) 164 Cal.App.2d 322, 326 [330 P.2d 484].)
I would affirm the conviction on the ground that there has been no miscarriage of justice. (Cal. Const., art. VI, § 13.)
Respondent’s petition for a rehearing was denied October 4, 1984. Mosk, J., and Lucas, J., were of the opinion that the petition should be granted.
[No. S004724. Crim. No. 25693.
Dec. 31, 1992.]
THE PEOPLE, Plaintiff and Respondent, v. RODNEY JAMES ALCALA, Defendant and Appellant.
Counsel
Marshall Warren Krause and Joseph Baxter, under appointments by the Supreme Court, for Defendant and Appellant.
John K. Van de Kamp and Daniel Lungren, Attorneys General, Steve White and Richard B. Iglehart, Chief Assistant Attorneys General, Harley D. Mayfield, Assistant Attorney General, Michael D. Wellington, Robert M. Foster and Louis R. Hanoian, Deputy Attorneys General, for Plaintiff and Respondent.
Opinion
GEORGE, J.
This case reaches us again after a retrial following this court’s reversal of defendant’s convictions. At the initial trial in 1980, a jury found defendant Rodney James Alcala guilty of first degree murder, with a kidnapping-murder special circumstance, and other related offenses. Following the jury’s penalty-phase verdict, defendant was sentenced to death. In reversing defendant’s convictions, this court concluded that the trial court committed prejudicial error at the guilt phase of the trial by admitting evidence of defendant’s prior offenses. (People v. Alcala (1984) 36 Cal.3d 604, 629-636 [205 Cal.Rptr. 775, 685 P.2d 1126] [hereafter Alcala I].) This court rejected defendant’s contention that retrial was barred by the double jeopardy clause (id,., at p. 614), holding that defendant could be retried on all counts.
At the ensuing retrial in 1986, the jury found defendant guilty of one count of first degree murder (Pen. Code, §§ 187, 189), one count of kidnapping (§ 207), one count of false imprisonment (§ 236), and one count of use of a deadly weapon (a knife) (§ 12022, subd. (b)). The jury also found true the special circumstance of murder in the course of a kidnapping (§ 190.2, subd. (a)(17)(ii)). Defendant admitted an alleged prior felony conviction for lewd and lascivious conduct upon a child under the age of 14-years. (§§ 288, 667.) At the penalty phase, the jury fixed the penalty at death, and thereafter the court imposed a sentence of death.
The case is before us again on automatic appeal. (Cal. Const., art. VI, § 11; § 1239, subd. (b).) For the reasons that follow, we conclude that the judgment should be affirmed in its entirety.
Facts
I. Guilt Phase Evidence A. The prosecution’s case 1. Overview
We begin with a brief summary of the prosecution’s case, and then set forth a more detailed chronological account of the facts established by the evidence introduced in the prosecution’s case-in-chief.
Approximately 3:10 p.m. on June 20, 1979, 12-year-old Robin Samsoe left the Huntington Beach apartment of her friend, Bridget W., also aged 12, to bicycle to a ballet lesson. Robin did not arrive at her ballet lesson and never again was seen alive by her family or friends. Five days later, on June 25, 1979, Dana Crappa, a forest service employee, discovered Robin’s mutilated body more than 40 miles away, in a remote mountain ravine above Sierra Madre.
Crappa told no one of her discovery, however, and it was not until one week later, July 2, 1979, that another person, her colleague William Poepke, encountered Robin’s remains. Poepke notified the police, who had learned that midafternoon on the day of Robin’s disappearance, she and Bridget had been sitting on the cliffs above the beach in Huntington Beach. While there, they were approached by a man who stated he was taking photographs for a school contest. He asked whether he could photograph the girls. They agreed and posed for him. Jackelyn Young, an adult neighbor of Bridget, noticed the girls on the cliffs and walked toward them to investigate. Her approach startled the man taking the photographs. He departed quickly, more than once looking over his shoulder. Young later identified the man as defendant.
Young escorted Robin and Bridget to Bridget’s apartment building and continued home. At the apartment, Robin asked Bridget whether she could borrow Bridget’s bicycle in order to reach the dance studio on time. Robin left on the bicycle, but never reached the studio.
A police search for Robin commenced that evening. Bridget assisted a police artist in developing a composite drawing of the man who had photographed her and Robin. The drawing appeared in several Southern California newspapers, and was broadcast on television news shows.
The police investigation led officers to obtain warrants to arrest defendant and search his residence and his automobile. On July 24, 1979, the police arrested defendant at his home in Monterey Park and conducted a residential search. During the search of defendant’s home, the police found a Seattle, Washington, storage locker receipt which was dated subsequent to the day of Robin’s disappearance. After obtaining additional warrants, law enforcement officials searched the locker. Among the items found were photographs of another girl, Lorraine W., taken at Sunset Beach the day Robin disappeared, and gold ball earrings that Robin’s mother identified as ones she had seen Robin wearing.
Having described the broad outline of the prosecution’s case, we now review, in chronological sequence, the prosecution’s evidence of the events preceding and following Robin’s disappearance and murder.
2. Defendant’s activities at the beach, June 19-20, 1979
Fifteen-year-old Toni E. and fourteen-year-old Joanne M. spent much of June 19, 1979, on the beach near the Huntington Beach pier. A man they identified at trial as defendant approached the girls in a nearby parking lot, inquiring whether he could take their photographs. He told them he was entered in a “bikini of the month” photography contest. Both girls were wearing bikinis. The girls agreed, and defendant appeared to take five to ten photographs. Defendant said he had some “joints,” and asked the girls whether they would like to go for a ride to get “loaded” as payment for posing for him. When the girls declined defendant’s offer, he requested their telephone numbers in case he won the contest. The girls refused to give defendant their phone numbers and quickly walked away.
Teenagers Lorraine W. and Patty E. went rollerskating at Sunset Beach, a few miles north of Huntington Beach, on the following day, June 20. A man asked them to stop so that he could take some photographs for a class contest. Patty refused. Lorraine, clad in a new bikini, allowed him to photograph her. Patty subsequently identified the man as defendant.
Richard Sillett, a City of Huntington Beach survey-party chief, told police officers that in the early to midafternoon of June 20, while he was on the beach below the cliffs, studying the alignment of a bicycle trail, he observed a man walking down the incline toward the ocean. Sillett, an amateur photographer who owned several cameras, habitually noticed the cameras used by others, and observed that the man carried a 35-millimeter camera with a telephoto lens. The two briefly made eye contact. Sillett later informed the authorities that the composite sketch closely resembled the man with the camera and, both at a photo lineup and at trial, identified defendant as the man he had observed at the beach.
Robin Samsoe and Bridget W. arrived at Bridget’s residence approximately 3:10 p.m., after posing for three photographs on the cliffs above the beach. Robin was anxious to reach the dance studio on time and was excited because she would be advancing to toe shoes that day. Bridget allowed Robin to borrow her bicycle, a yellow Schwinn 10-speed boy’s bike with the handlebars turned up.
Robin was expected at Beverly Fleming’s dance studio by 4 p.m. to answer the telephones; Robin’s ballet class at the studio began one hour later. Robin never arrived at the studio. Approximately 5:15 p.m., Fleming telephoned Robin’s home in an unsuccessftil effort to locate her.
3. Defendant’s activities in the mountains, June 20-21, 1979, and subsequent observations by forestry service personnel
In June 1979, Dana Crappa, 20 years of age, was employed as a seasonal firefighter for the United States Forestry Service, stationed at Chantry Flats. While driving back to the Chantry Rats barracks in the late afternoon of June 20, Crappa noticed a blue Datsun F10 automobile parked on the uphill side of a sharp turnout at mile marker 11 on Santa Anita Canyon Road. She subsequently identified this vehicle as one later determined to be registered to defendant. A few feet in front of the automobile, a medium-built man with dark brown hair was “forcefully steering” or “pushing” a young girl with long blond hair, like Robin’s, toward a dry stream bed. The man looked at Crappa as she slowly drove around the curve. Crappa testified the man resembled defendant, but she was “not 100% positive.” The sight of the man and the girl appeared odd to Crappa, but she proceeded to the barracks without stopping.
On June 21, in the early evening, Crappa again was driving back to the barracks. At Rendezvous Turnout, approximately 1.6 miles from mile marker 11, she swerved her vehicle to avoid being hit by an automobile coming down the mountain. As she swerved, Crappa’s vehicle nearly struck a blue Datsun F10 parked at the side of the road; it was the same vehicle she had observed the previous afternoon. The rear tires and rear portion of the vehicle appeared to have had dirt “kicked up” on them. As she drove by, she glimpsed a dark-haired man near the blue Datsun F10, leaning against a rock wall. The man wore pants that may have had dirt on them, and a white T-shirt that “appeared to be sort of dirty or have a stain on it.” Crappa believed something was wrong when she saw the same vehicle in such a remote area two weekdays in a row.
On June 25, approximately 7 p.m., Crappa parked her vehicle at the mile marker 11 turnout, left the engine running, and walked up a path. The area was permeated by a foul smell. Crappa came upon a tennis shoe, a pair of shorts, and a T-shirt. She also saw a body, bloated and unclothed, missing part of its head, and missing its hands and feet. The torso was “pretty cut up.” Terrified, Crappa ran back to her vehicle and drove to her parents’ house. Consumed by a sense of guilt, she believed that had she stopped to investigate on June 20 when she observed the man pushing the girl, perhaps the girl would not have been killed. She therefore refrained from telling anyone, including the police, about what she had discovered on June 25. The first time she revealed her observations of June 25 to anyone was when the information was elicited from her during her testimony at defendant’s first trial, after she testified concerning her observations of June 20 and 21.
On June 29, a forestry service crew that included Crappa and Poepke was spraying fire retardant near mile marker 11. About 100 feet from the road, Poepke found what he thought was a deer bone which, in jest, he tossed toward Crappa. Crappa was not amused; she knew the bone was human.
That night, approximately 7 p.m., Crappa returned to the area again, apparently to confirm that the remains Poepke had thrown were the human remains she had seen. They were. Crappa saw a small skeleton, missing one arm. Near the skeleton were six .22-caliber shells, which Crappa placed in her pocket and threw away. Because shotgun shells commonly were found in the area, along with broken clay pigeons, she believed the shells had nothing to do with the body of the little girl. Crappa also saw the tennis shoe, shorts, and T-shirt in a pile together. She did not touch them.
On July 2, the forestry service crew returned to mile marker 11 to continue spraying fire retardant. Poepke and two other fire crew members discovered a human skull and some bones. Law enforcement officers were summoned, and the scattered remains later were identified as Robin’s.
4. Crime scene evidence
Robin’s skull had separated from her body. Her lower teeth were fractured in a manner consistent with a traumatic blow to the mouth. Because her remains were found in an advanced state of decomposition, with several of her bones showing signs of having been gnawed by animals, the cause of her death could not be determined from her skeletal remains. Nor could it be determined whether Robin had been sexually molested. No clothing was found, save for the single tennis shoe that bore her name.
Law enforcement officers recovered a Kane Kut kitchen carving knife a few feet from Robin’s remains. The knife bore a small film of human blood, which was insufficient for further analysis. Officers gathered bloodstained leaves, rocks, and soil from the immediate area; subsequent analysis revealed the blood to be of a type consistent with the type indicated by bone marrow extracted from Robin’s remains. Approximately one mile away, officers found Robin’s beach towel, also stained with blood consistent with the type indicated by Robin’s bone marrow. The stains also were consistent with someone having taken a bloody, straight-edged instrument and wiping it on the towel. The towel was found crumpled up in a ball.
5. Defendant’s conduct, June 20-July 24, 1979
Defendant spoke by telephone with his girlfriend, Elizabeth Kelleher, on June 20 at 9:41 p.m., and on June 21, at 10:08 p.m. On June 22, defendant visited Kelleher’s home in Long Beach; at the time, his hair was long and curly. On June 23, he straightened his hair with the aid of a product that he purchased at a store. On June 26, he cut his hair. On July 8, he told Kelleher he had decided to leave Southern California for Dallas, Texas, where he planned to set up a photography business. Kelleher accompanied defendant to the Monterey Park residence he shared with his mother, Anna Maria German, to help him pack for the trip.
On July 11, defendant rented a storage locker in Seattle, Washington. When he returned to California three days later, he did not tell anyone where he had been, instead informing Kelleher that he had been to Dallas. On July 23, defendant told her he was leaving for Dallas the following day. Defendant told another acquaintance, Leslie Schneider, he was leaving for Chicago.
6. Arrest of defendant and search for evidence
Police officers arrested defendant at his home a day later, July 24, impounded his automobile, and searched the premises pursuant to a search warrant. During the course of the search, the officers observed a receipt for a storage locker located in Seattle, Washington. One of the officers copied down the information on the receipt but did not seize it. Officers returned the next day to retrieve the receipt. It was gone. Officers seized full sets of Kane Kut knives. Inside defendant’s Datsun F10, the police found a briefcase containing camera equipment and keys.
Officers went to Seattle and obtained a warrant to search the storage locker. The locker was secured with two padlocks, which the officers opened with the keys seized from the briefcase found in defendant’s vehicle. The locker contained boxes of photographic material, including slide photographs of Lorraine W. taken at the beach. The locker also contained jewelry, including a pair of small, gold ball earrings which Robin’s mother testified matched a set that had belonged to her and that Robin often wore. Robin’s mother said she had looked for the earrings after Robin’s disappearance, but never had found them. She further testified she had used nail clippers to trim the earrings; a prosecution expert testified that the earrings seized from the locker contained a pattern of striations similar to those produced by the nail clippers that belonged to Robin’s mother.
7. Inmate testimony
In 1979, defendant and Frederick Williams were inmates at the Orange County jail. Williams had a long history of providing reliable information to law enforcement personnel. Early in 1981, after defendant’s initial trial, when Williams was not in custody, he contacted Susanne Shaw, who was employed as an Orange County Deputy District Attorney. He told Shaw he had some information regarding defendant’s case.
At the time of defendant’s second trial, Williams was back in custody, but was scheduled for release a few weeks hence. Williams, stating he had neither sought nor received any consideration for his testimony, testified defendant told him in 1979 that defendant regretted having spoken with inmate Ricky Rodriguez, who had given damaging pretrial testimony against defendant. Later, defendant showed Williams a photograph of his girlfriend and “made a comment about the young lady that was supposedly involved in his case, Robin, and said [the girlfriend] was nothing like Robin when he was with Robin. She was—scratching, yelling and acting like a little wild cat, and had a butt like a grapefruit.” Williams testified defendant told him that he first noticed Robin at the beach area in Huntington Beach.
Williams also described a jailhouse incident that took place during the course of defendant’s first trial. He testified that defendant, in recalling a demonstration for the jury of how defendant might have placed Robin’s bicycle inside his automobile, “was sort of laughing to himself, making fun of the jury as if they were not too competent.” According to Williams, defendant said “they were all acting like a bunch of ducks trying to get the bike in the car and wasn’t doing too good of a job of it.” Williams testified defendant told him that when he placed Robin’s bicycle inside the vehicle, he “just threw it in there like a snap.”
B. The defense case 1. Alibi
Defendant presented an alibi defense, attempting to establish that he was at Knott’s Berry Farm in Buena Park during the early to midafternoon of Robin’s disappearance, seeking employment as a photographer for a disco dance contest to be held at the park. Defendant did not testify in his own behalf, but several employees of Knott’s Berry Farm testified that they remembered seeing defendant at the park near the date of Robin’s disappearance, although none could testify specifically to having seen him there on June 20.
Defendant’s sister, Marie Christine De La Cerda, testified she saw defendant at her home in Monterey Park between 4:00 and 4:30 p.m. on June 20. (De La Cerda’s testimony subsequently was contradicted by that of a prosecution rebuttal witness, Sergeant Edward McErlain of the Huntington Beach Police Department. McErlain testified he had interviewed De La Cerda the day of defendant’s arrest, July 24, when she stated she did not recall seeing defendant on June 20.) On cross-examination, De La Cerda confirmed that on July 24, after checking her calendar during the interview with McErlain, she told him she could not recall seeing defendant on June 20. She also acknowledged visiting her brother in jail on July 25, prior to another interview that she had with McErlain later that day. De La Cerda testified that during this second interview, she told McErlain she had seen her brother at her house approximately 4:00 p.m. on June 20. An acquaintance of De La Cerda, Richard Mason, testified on rebuttal that he was at her home on June 20 until 4:30 or 5:00 p.m. and never saw defendant that day.
Defendant’s other sister, Marie Therese Troiano, testified that defendant had telephoned her from his home in Monterey Park at 5:54 p.m. on June 20. On cross-examination, after reviewing defendant’s telephone bill for June 1979, she acknowledged that the telephone call in question was the only one she could remember from that month. Defendant’s mother, Anna Maria German, denied making the call. (On rebuttal, McErlain testified that on July 25, 1979, he reviewed the telephone bill with German, who told him she had made the telephone call to Troiano on June 20 at 5:54 p.m.)
2. Changed appearance
Defendant sought to prove his changed appearance was unrelated to Robin’s murder. The defense presented evidence that prior to June 20, Kelleher had encouraged defendant to change his hairstyle. On cross-examination, however, Kelleher admitted that defendant did not act on her wishes until June 23, a date following the local media’s publication of composite sketches of the prime suspect connected with Robin’s disappearance.
3. Physical evidence
Defendant also attempted to discredit the physical evidence introduced by the prosecution. Defendant’s mother testified the knife found near Robin’s remains was not hers. Defendant established that neither Robin’s fingerprints, nor any other physical evidence linked to Robin, was found inside his vehicle. Defendant introduced testimony from friends and employees at the Los Angeles Times, where defendant had been employed, to establish he wore earrings. Although one acquaintance, Jeanette Westenhaver, testified she never had seen defendant wear a gold ball earring or any of the other jewelry recovered from the Seattle storage locker, another acquaintance, Sharon Gonzales, believed defendant had worn such an earring. An expert witness called by the defense testified there was a strong probability that one of the earrings seized from the Seattle storage locker was trimmed with the nail clippers provided to the defense by defendant’s mother.
4. Inmate testimony
Defendant introduced evidence from inmate David Vogel in an attempt to discredit Williams’s testimony. Vogel claimed he and Williams had discussed the possibility of providing information regarding an inmate named Tommy Thompson, and that Williams wanted Vogel to “put him in,” i.e., give Williams the information so that Williams might bargain to reduce the length of his incarceration in exchange for his testimony. Vogel testified that Williams was “desperate” and “wanted to testify in a murder trial.”
The prosecution impeached Vogel’s testimony by playing a tape recording of a police interview of Vogel conducted in September 1979, when Vogel and defendant were inmates in the Orange County jail. In the tape recording, Vogel said defendant had admitted having parked alongside the beach and having “happened to see [Robin] again on the bike.... That’s when he got out of the car and he stopped her and he offered her some money. ... He said he took a couple of pictures... [a]t a park... [then] offed [killed] her.” According to Vogel, defendant said: “I don’t think they can convict me of it, David, to tell you the truth.” Vogel said defendant, when asked whether he was guilty, replied: “[H]e was guilty and that uh.. .he don’t think they can convict him of it... .No evidence.... [H]e asked me... what I had thought about the case. He was really concerned about if he could beat it or not.”
After the jury heard the tape recording of the interview, Vogel testified that although he had informed law enforcement officials in 1979 that defendant had told him he had “offed” a girl named Robin after photographing her at the beach, he (Vogel) had made up that story in an unsuccessful effort to strike an informer’s bargain. “I was a selfish, selfish, sleazy dope fiend,” Vogel added, “And I wanted to get back to the street, to shoot dope.”
II. Penalty Phase Evidence A. The prosecution’s case
The prosecution introduced evidence of three prior offenses involving minor females.
1. Tali S.—1968
Tali S. was eight years of age on September 25, 1968. She testified that while walking to school in Hollywood that morning, a man in an automobile followed her and inquired whether she wanted a ride. Tali told the man her parents did not want her to talk with strangers. The man replied, “Oh, I know your parents.” He told Tali he would take her to school.
A passerby, Donald Haines, testified he observed the conversation between Tali and the man—whom he identified at the penalty phase as defendant—and moments later saw the girl seated in the back of defendant’s vehicle. His suspicion aroused, Haines followed the vehicle, observed defendant escort Tali into a house, and then summoned the police.
Los Angeles Police Officer Christopher Camacho responded to the call. After the officer knocked on the door of the residence, defendant, in the nude, told him, “Wait a minute. I will be right back.” When defendant failed to return promptly, Comacho kicked in the front door and saw Tali lying on the floor, apparently dead, “in a semi spread eagle position with a bar across her neck.... There was blood between her legs... blood all over the floor.” As he was searching the house, Camacho heard a muffled cough, returned to where Tali’s body lay, and discovered that the bar had moved from her neck. He summoned an ambulance, then searched the neighborhood for defendant, who eventually was apprehended and convicted of child molestation. Tali emerged from a coma several weeks after the incident, unable to sit up, and was bedridden for months.
2. Julie J.—1974
Julie J. was 13 years of age on October 16,1974. She testified that while waiting for a bus to take her to school in Huntington Beach that day, a man approached her, introducing himself as “John Ronald.” The two engaged in a conversation, during which the man—whom the police later identified as defendant—learned Julie’s age and persuaded her to allow him to drive her to school. As they passed Julie’s school, defendant ignored her requests to be dropped off, and continued toward Pacific Coast Highway. There, defendant parked his automobile and escorted the frightened girl toward the cliffs overlooking the ocean. When Julie attempted to walk away, defendant grabbed her. He then invited her to smoke marijuana. Julie never had smoked marijuana but acquiesced out of fear. Defendant “French-kissed” Julie and told her he wanted to be “passionate.” The police arrived and arrested the two for smoking marijuana.
3. Monique H.—1979
Monique H. was 15 years of age on February 12, 1979, when defendant picked her up as she was hitchhiking in Pasadena. Law enforcement officials from Riverside County testified Monique encountered them the next day in a beaten, hysterical state, and identified defendant as her assailant. Defendant was arrested and, after being advised of his constitutional rights, agreed to speak to the police. In a tape-recorded interview introduced at the penalty phase, defendant described taking Monique to a dirt road in the mountains. He said he photographed her in the nude, and as she simulated sexual acts with him. At some point, these allegedly consensual activities ceased, and defendant admitted that he thereafter choked Monique until she was unconscious, tied her wrists and ankles with rope, and, after she revived, stuffed her shirt in her mouth to force her to stop screaming, finally raping and sodomizing her. Defendant faced criminal charges arising from his assault of
Monique and had been released on bail when he was arrested for the murder of Robin Samsoe.
B. The defense case
At the penalty phase, the defense presented evidence relating to four separate points. First, evidence was introduced indicating that defendant was a model prisoner and a skilled typist who could be useful as a prison clerk were he to receive a life sentence. Second, defendant’s mother testified that he was born in 1943, had been a quiet, studious boy who ultimately joined the Army, and always had been kind to her. Third, the defense sought to establish that defendant had not molested Julie J„ and presented the testimony of Julie’s school counselor, who testified Julie had a truancy problem and was prone to dishonesty. Fourth, the defense presented evidence intended to demonstrate that defendant had not killed Robin.
With regard to this final point, defendant testified on his own behalf (not having done so at the guilt phase), stating that on June 20, 1979, he had driven by the area where Robin had been photographed but had not stopped at Huntington Beach. He stated he went to a photography store, to a friend’s home in Seal Beach and, upon discovering that the friend was not home, to Knott’s Berry Farm amusement park. He admitted photographing Lorraine W. at Sunset Beach around midday but denied going to the mountains and denied telling inmate Williams anything about the case. He testified he had made the telephone call from his home on June 20 at 5:54 p.m. He further testified he had purchased the gold ball earrings found in the Seattle storage locker, and had used fingernail clippers to alter them. He denied his Datsun automobile resembled the Datsun described by Crappa. Finally, he said he had rented the Seattle storage locker and had planned to leave Southern California in order to flee the charges stemming from his assault of Monique H., not because he had committed any offense against Robin.
Defendant was impeached with evidence regarding his background and prior conduct. On cross-examination, he testified that after attacking Tali S. in 1968, he eluded law enforcement officials, withdrew his life savings, and moved to New York, where he changed his name to Jon Berger. He worked at a camp in New England with teenage girls. When arrested on a fugitive warrant stemming from his assault on Tali S., he lied to the Federal Bureau of Investigation about his identity in an effort to avoid imprisonment. In March 1972, he was convicted of child molestation and sentenced to state prison.
Defendant was released from prison in August 1974. Ten weeks later, he was arrested on the Huntington Beach cliffs with Julie J. Although defendant claimed Julie furnished the marijuana and suggested they smoke it, he ultimately pleaded guilty to felony possession of marijuana and was returned to state prison for three years.
Defendant was released on parole in June 1977. Nine months later, defendant was found in possession of marijuana; a search of his briefcase and residence revealed photographs depicting nude male and female children. Defendant was placed in custody for a few weeks, released, and discharged from parole in June 1978.
Eight months after his discharge from parole, defendant met Monique H., who he learned was 15 years of age. To avoid returning to prison for attacking Monique, defendant was preparing to skip bail. The incident involving Monique led to defendant’s conviction in September 1980 of rape and assault with intent to inflict great bodily injury.
On redirect examination, defendant again professed his innocence and requested that the jury impose a sentence of life imprisonment without the possibility of parole. “In prison,” he said, “I’m not a threat to children.... I am absolutely harmless.”
Discussion
I. Issues Related to the Guilt and Special Circumstance Phase A. Admissibility of testimony of hypnotized witnesses
Defendant contends the trial court committed reversible error in permitting Bridget W. and Lorraine W. to testify at trial. Each witness had been hypnotized during the police investigation following Robin’s disappearance. Defendant argues that our decisions in People v. Shirley (1982) 31 Cal.3d 18 [181 Cal.Rptr. 243, 723 P.2d 1354] and People v. Guerra (1984) 37 Cal.3d 385 [208 Cal.Rptr. 162, 690 P.2d 635] require reversal. In those decisions, we held that a witness who previously has been hypnotized may not testify concerning matters recalled under hypnosis. (See 31 Cal.3d at pp. 66-67, 70; 37 Cal.3d at p. 390.) As explained below, we conclude that reversal is not warranted.
1. The evidentiary hearing
Prior to trial, defendant moved to exclude the testimony of Bridget W. and Lorraine W., based on uncontroverted evidence that police investigators had hypnotized the witnesses in 1979. The trial court conducted an evidentiary hearing, at which the parties contested whether our decisions in People v. Shirley, supra, 31 Cal.3d 18 and People v. Guerra, supra, 37 Cal.3d 385 barred introduction of the proffered testimony.
a. Bridget W.
On June 21, 1979, the day following Robin’s disappearance, Jim Bogdanoff of the Huntington Beach Police Department interviewed Bridget regarding the events of the preceding day. After the interview, Bridget met with police artist Marilyn Droz for the purpose of creating a composite drawing. No hypnosis of Bridget was attempted on this date. On the basis of Bridget’s recollection, the police artist created a composite drawing, which was photographed by the police.
On the following day, June 22, Droz’s husband and colleague, investigator Arthur Droz, met with Bridget. Investigator Droz had received formal training in hypnosis. He was joined by Marilyn Droz and Sergeant Ron Jenkins, who was supervising the department’s investigation of the case. The purpose of this interview was to hypnotize Bridget with the objective of enhancing the June 21 composite drawing. Die interview was conducted pursuant to specific department guidelines and was audio tape-recorded. In accordance with Bridget’s recollection under hypnosis, the police artist slightly modified the June 21 drawing to show a light moustache and a “five-o’clock shadow.”
b. Lorraine W.
When the police investigators opened the Seattle storage locker in July 1979, they seized hundreds of photographs and slides, five of which showed a girl posing at what appeared to be Sunset Beach, just north of Huntington Beach. At the police investigators’ request, Los Angeles and Orange County newspapers published one of the photos with a plea for assistance. Lorraine W. responded, identifying herself as the girl in the photograph. Police investigators interviewed her regarding the circumstances surrounding her having posed. Lorraine described the photographer but was unable to pinpoint the exact date the photos were taken, except to say she thought they were taken between June 19 and June 23, 1979. In an effort to assist Lorraine in recalling the precise date she was photographed, Grover Payne, a Huntington Beach Police Department captain, hypnotized Lorraine according to department guidelines, in a session that was audio tape-recorded. During this hypnotic session, Lorraine identified the date she was photographed as June 18.
c. The court’s ruling
After considering the foregoing facts, the trial court denied defendant’s motion to exclude the girls’ testimony. The court found all of the information relating to the June 21 composite drawing to have come from Bridget: “[T]here’s nothing to indicate [that] there is any tainting by law enforcement here to improve her recollection... .” Similarly, with respect to Lorraine, the court found the testimony she might offer at trial to be unrelated to the focus of the hypnotic session. The court concluded: “I’d be stretching Shirley beyond what it was intended, if I would rule out” the proffered testimony.
2. The witnesses’ testimony at trial
At trial, Bridget and Lorraine each testified briefly. Bridget recounted the events of June 20, stating that upon leaving Bridget’s residence, she and Robin went to the cliffs overlooking the beach, that a man approached to photograph them for a contest and left immediately after Bridget’s adult neighbor, Jackelyn Young, arrived, and that Bridget and Robin left the cliffs for Bridget’s residence, where Bridget loaned her bicycle to Robin. Bridget also reviewed the events of June 21, explaining that she spoke with police officers and assisted an artist in preparing a composite drawing of the photographer. Bridget was shown a photograph of a composite drawing, which she identified as the one she helped create on June 21. The prosecution did not ask Bridget to testify regarding the hypnotic session of June 22 or to testify regarding any corresponding enhancements that were made to the composite drawing. Nor did the prosecution ask Bridget to identify the person shown in the drawing.
In her testimony, Lorraine recounted the events of a date in June 1979 when she and her friend, Patty E., were rollerskating at Sunset Beach and were stopped by a man who asked to take their photograph. Patty declined and skated away to a bathroom; the man, explaining that he wanted to enter a contest, took some photographs of Lorraine. The man also asked her “personal questions” and invited her to have lunch with him at a nearby Jack-in-the-Box, but she declined. Lorraine identified five photographs showing her at Sunset Beach as the ones she believed were taken by the man. When the prosecution asked her to provide a general description of him, Lorraine replied she was unable to do so. The prosecution refrained from asking her to pinpoint the date of the incident.
The trial court, however, then asked Lorraine whether she recalled the date the photographer had encountered her and Patty, and Lorraine answered, “June 20.”
3. The applicable case law
In People v. Shirley, supra, 31 Cal.3d 18, the prosecution subjected the key complaining witness, a rape victim, to hypnosis on the eve of trial “for the purpose of ‘filling the gaps’ in her story.” (Id., at p. 23.) The trial court denied defendant’s motion to exclude the witness’s testimony, and at trial the victim testified to several matters that she had been unable to recall prior to being hypnotized. (Id., at pp. 29-30.) In Shirley, this court reversed the defendant’s conviction, finding, inter alia, that the use of hypnosis to restore the memory of a potential witness is not generally accepted as reliable by the relevant scientific community. (Id., at pp. 66-67.) We held that the “testimony of a witness who has undergone hypnosis for the purpose of restoring his memory of the events in issue is inadmissible as to all matters relating to those events, from the time of the hypnotic session forward.” (Ibid.)
Significantly, we noted in Shirley, supra, that our disapproval of testimony from a previously hypnotized witness was not absolute. We set forth several limitations on the rule excluding such testimony. (31 Cal.3d at pp. 67-68.) First, we observed, when the prosecution seeks “to question such a witness on a topic wholly unrelated to the events that were the subject of the hypnotic session, his [or her] testimony as to that topic would not be rendered inadmissible... .” (Id., at p. 67, original italics.) Second, we recognized a valid purpose in allowing hypnosis by the police “for purely investigative purposes,” subject to our caveat that any person so hypnotized “will not be allowed to testify as a witness to the events that were the subject of the hypnotic session.” (Id., at pp. 67-68.) Third, we noted that the improper admission of testimony from a previously hypnotized witness is not reversible per se; its effect is measured under the prejudicial-error standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243]. (People v. Shirley, supra, 31 Cal.3d at p. 68.)
We took no position in Shirley, supra, with respect to the admissibility of testimony from witnesses who had been hypnotized prior to the date our decision was filed, March 11, 1982. (31 Cal.3d at p. 67, fn. 53.) In People v. Guerra, supra, which also involved a hypnotized rape victim, we held the principles set forth in Shirley applied to all cases not yet final on March 11, 1982. (37 Cal.3d at p. 390.) Because defendant’s case was on appeal and therefore not final on March 11, 1982, Shirley is applicable to the present appeal. (See also People v. Hayes (1989) 49 Cal.3d 1260, 1269 [265 Cal.Rptr. 132, 783 P.2d 719] [reaffirming Shirley's retroactivity].)
Guerra, supra, foreshadowed our consideration of the question whether “prehypnotic evidence,” i.e., matters recalled and related by a witness prior to the hypnotic session, is admissible. (37 Cal.3d at pp. 427-429.) In a concurring opinion, Justice Kaus explained why he believed such evidence should be admissible, observing “the probable reliability and potential importance of the evidence justifies its admission.” (Id,., at p. 431 (conc. opn. of Kaus, J.).) Because the issue was unnecessary to the resolution of the Guerra appeal, the majority in Guerra left the question unanswered. (Id., at p. 429.)
We revisited the issue of prehypnotic evidence in People v. Hayes, supra, 49 Cal.3d 1260. The defendant in Hayes was charged with murder, rapé of the murder victim’s spouse, and other offenses occurring in 1979. Marie G., the rape victim, furnished the responding police officer with a description of her assailant and his accomplice. Within hours, the police hypnotized her to assist a police artist in creating a composite sketch of the assailant, and to develop more information regarding the offenses. (Id., at p. 1262.)
Pursuant to decisions in Shirley, supra, 31 Cal.3d 18, and Guerra, supra, 37 Cal.3d 385, this court in Hayes, supra, 49 Cal.3d 1260, held that the admission at trial of Marie’s posihypnotic testimony, notably her positive identification of defendant as her assailant, required reversal of the convictions. (Id., at pp. 1262-1263, 1270; see also People v. Clark (1992) 3 Cal.4th 41, 149-151 [10 Cal.Rptr.2d 554, 833 P.2d 561]; People v. Miller (1990) 50 Cal.3d 954, 982-986 [269 Cal.Rptr. 492,790 P.2d 1289].) With regard to her prehypnotic testimony, we held it would be admissible at retrial as to events the trial court found were “recalled and related prior to the hypnotic session.” (People v. Hayes, supra, 49 Cal.3d at pp. 1263, 1270-1273.) In reaching this conclusion, the Hayes opinion agreed with Justice Kaus’s view that cases in which the prehypnotic evidence was obtained prior to this court’s decision in Shirley, evoked “ ‘a special need to ensure that in our zeal to protect the citizenry from the hazards of hypnosis, we do not create a greater injustice by an after-the-fact disqualification of crucial witnesses who have relevant—frequently vital—information that is not tainted by the hypnosis.’ ” (People v. Hayes, supra, 49 Cal.3d at p. 1271, quoting People v. Guerra, supra, 37 Cal.3d at p. 431 (conc. opn. of Kaus, J.).) Our holding in Hayes governs the admissibility of all prehypnotic evidence predating January 1, 1985. (49 Cal.3d at p. 1273.)
With the foregoing principles in mind, we turn to defendant’s contention that the trial court committed reversible error in admitting the testimony of the previously hypnotized witnesses, Bridget W. and Lorraine W..
4. The testimony was admissible under Hayes
As noted, defendant contends that under this court’s decisions in Shirley and Guerra, it was error for the trial court to permit Bridget and Lorraine to testify and that the admission of their testimony requires reversal of the judgment. We disagree.
Bridget’s testimony regarding the composite sketch she helped create prior to her June 22 hypnotic session was properly admitted under the principles set forth in our decision in People v. Hayes, supra, 49 Cal.3d 1260. The police investigators preserved her prehypnotic recollection by photographing the June 21 composite drawing of the suspect, which clearly established that Bridget’s testimony pertained to matters that she had both recalled and related to other persons prior to undergoing hypnosis, thus meeting the test of admissibility set forth in Hayes. (49 Cal.3d at pp. 1272-1273; compare People v. Miller, supra, 50 Cal.3d at pp. 983-984 [Hayes “prehypnotic evidence” rule held inapplicable where all copies of prehypnotic composite drawing were lost prior to trial and witness testified the drawing was inaccurate].) The prosecution confined its questioning concerning the composite sketch to prehypnotic evidence.
Similarly, Bridget’s testimony regarding the events of June 20, with the exception of a single response, was admissible under Hayes, supra, 49 Cal.3d 1260. The exception is as follows. The prosecution asked Bridget at trial whether defendant touched Robin when he had her pose for the photographs taken on the cliffs above Huntington Beach. Bridget replied affirmatively, recalling that defendant had touched Robin’s leg. The defense did not interpose an objection to this testimony. Several days after Bridget had testified, however, defendant requested that her response be stricken on the ground that, because she had not mentioned prior to her June 22 hypnotic session that defendant had touched Robin, Bridget’s testimony on this particular point was the product of a posthypnotic recollection and was therefore inadmissible. The trial court viewed the request as untimely but nevertheless admonished the jury to disregard Bridget’s testimony that defendant had touched Robin when they were on the cliffs. In light of the trial court’s admonition, and the relative insignificance of the challenged testimony, any error committed by the trial court in admitting Bridget’s response to this single question was harmless. (Watson, supra, 46 Cal.2d at p. 836.)
Lorraine’s testimony, with two exceptions, was confined to matters that she had both recalled and related to other persons prior to her hypnosis, and thus was properly admitted under Hayes, supra, 49 Cal.3d 1260. The exceptions are as follows.
First, Lorraine’s response to the question posed by the trial court—that she identify the date she was photographed—was inadmissible under Shirley, supra, 31 Cal.3d 18, because the inquiry involved a matter identical to the subject of her hypnosis. Nonetheless, under the applicable Watson standard, the court’s error in eliciting this testimony was not prejudicial. (Watson, supra, 46 Cal.2d at p. 836.) At trial, in addition to presenting the testimony of Lorraine, the prosecution called as a witness Patty E., the friend of Lorraine’s who was rollerskating with her when the two were approached by defendant. Patty testified that the date on which the incident occurred was June 20, 1979, the same date related by Lorraine in her testimony. Patty was certain of the date in light of an entry in her diary, and the diary itself was received in evidence. Patty further identified defendant as the photographer who had confronted the two girls on that date. In view of Patty’s testimony, it is not reasonably probable that the trial court’s erroneous elicitation of Lorraine’s reference to June 20 affected the jury’s verdict.
Second, several days after the conclusion of Lorraine’s testimony, defendant requested that the portion of her testimony relating the photographer’s request that she accompany him to lunch and provide him with her address be stricken as posthypnotic recollections. The trial court granted the request, admonishing the jury to disregard this testimony. In light of the court’s admonition and the marginal relevance of the testimony in question, any error in admitting this evidence was harmless. (Watson, supra, 46 Cal.2d at p. 836.)
Our decision in Hayes, supra, also disposes of defendant’s additional contention that the testimony of the hypnotized witnesses should have been excluded because the hypnotic sessions did not conform to the procedures set forth in Evidence Code section 795. In Hayes, supra, we concluded that Evidence Code section 795 properly should be interpreted to apply only to hypnotic sessions conducted on or after January 1,1985, the effective date of the statute. (49 Cal.3d at pp. 1273-1274.) We also explained that our holding in Hayes regarding prehypnotic evidence “shall govern the admissibility of all prehypnotic evidence predating January 1, 1985—regardless of when such evidence was or may in the future be offered at trial.” (Id., at p. 1274.) Thus, defendant’s reliance on Evidence Code section 795 is misplaced.
In sum, we find no prejudicial error in the admission of the challenged testimony. (People v. Shirley, supra, 31 Cal.3d at p. 68; see also People v. Caro (1988) 46 Cal.3d 1035, 1048, fn. 4 [251 Cal.Rptr. 757, 761 P.2d 680] [Watson test applicable to erroneous admission of testimony by previously hypnotized witness]; People v. Watson, supra, 46 Cal.2d at p. 836.)
B. Admissibility of Dana Crappa transcripts
Defendant contends the trial court committed reversible error in declaring Dana Crappa unavailable as a witness pursuant to Evidence Code section 240, subdivision (a)(3), and in permitting transcripts of her testimony at defendant’s first trial to be read to the jury pursuant to Evidence Code section 1291, subdivision (a)(2). Defendant also argues the court’s rulings denied him his constitutional right to confront and cross-examine the only witness who tied him to the scene of Robin’s murder. For the reasons set forth below, we find these contentions to be without merit.
1. Crappa’s loss of memory a. Evidence at the Evidence Code section 402 hearing
Shortly before Crappa was scheduled to testify at trial, the prosecutor informed the court, outside the presence of the jury, that Crappa “is not going to testify because she doesn’t have any recollection about the events in this case... .” The prosecutor moved that the trial court declare Crappa unavailable as a witness (Evid. Code, § 240, subd. (a)(3)), and permit Crappa’s testimony from defendant’s first trial to be read to the jury pursuant to tiie prior-testimony exception to the hearsay rule. (Evid. Code, § 1291, subd. (a)(2).) Before ruling on the motion, the trial court requested that Crappa testify at a foundational hearing held pursuant to Evidence Code section 402.
A hearing was conducted outside the presence of the jury, during which Crappa testified she had no recollection of her activity at Chantry Flats or, more specifically, of the events to which she testified at defendant’s first trial. The trial court made a preliminary determination that Crappa was “unavailable to testify within the meaning of the [Evidence Code] statutes at this time.” The court determined, however, that the jury should be allowed to evaluate her demeanor and hear why she was unable to testify.
Proceedings were resumed in the presence of the jury. As she had at the foundational hearing, Crappa testified to a complete loss of memory with regard to the events that related to this case. She testified she could not recall appearing in court to testify at defendant’s first trial. She acknowledged having consulted a psychiatrist or psychologist regarding her memory lapse.
Thereafter, the trial court excused the jury. The court informed the parties that Crappa “probably has a preexisting mental infirmity so as not to recall her testimony. „.. And it seems to me that infirmity is such as to permit the introduction of her former testimony. And I don’t think she’s refusing by her own choice.” The court observed that the prosecution had the burden of proving unavailability and, prior to issuing its final ruling, gave the parties five days to prepare the necessary arguments for a full evidentiary hearing.
At the evidentiary hearing, the prosecution presented testimony of Dr. Anthony Staiti, a psychiatrist who had examined Crappa on three occasions in 1985, one year prior to defendant’s second trial. Staiti testified Crappa had been referred to him by another psychiatrist for a determination whether she would be capable of working as a police dispatcher. He testified Crappa complained of memory lapses that impeded her efficiency. Staiti affirmed that she had described to him “periods of waking up suddenly screaming and shaking, totally panicked without knowing why.” Crappa told him that after awakening in a frightened state, she usually could not return to sleep but would, instead, remain awake, waiting for the time to go to work.
Staiti diagnosed Crappa as suffering from “posttraumatic stress disorder chronic delayed,” one of the symptoms of which is memory impairment arising at least six months following the initial trauma. Based on his consultations with Crappa in 1985, he opined her memory lapse with respect to events in 1979 “had something to do with a murder... .”
Following the prosecution’s direct examination of Dr. Staiti, defense counsel informed the court that the defense had yet to complete its review of the psychiatric reports that Dr. Staiti had brought to court, which consisted of between 20 and 30 pages. The defense requested an opportunity to review this material before cross-examining Dr. Staiti. The prosecutor argued that approximately one-half of the material appeared to be comprised of an M.M.P.I. (Minnesota Multiphasic Personality Inventory) examination, which Staiti testified he had not considered. The court recessed to allow the defense to review Dr. Staiti’s reports, after which defense counsel proceeded with cross-examination, without requesting any further continuance in order to prepare. At the conclusion of the cross-examination, defense counsel reiterated a request (set forth in moving papers opposing a finding that Crappa was unavailable) that the trial court order an independent psychiatric examination of Crappa to assist the court in ascertaining the validity of Crappa’s memory loss. The court denied the request.
Defendant called as a witness, at the hearing, Judge Philip E. Schwab, who presided over defendant’s first trial. Judge Schwab testified that during Grappa’s testimony at the first trial, there were “substantial delays between the question and an answer, sometimes running perhaps close to a minute, perhaps even longer.”
After hearing the testimony presented at the hearing, the trial court indicated it was adhering to its preliminary determination that Crappa was unavailable as a witness within the meaning of Evidence Code section 240, subdivision (a)(3).
b. Defendant’s challenge
On appeal, defendant’s challenge to the trial court’s ruling admitting testimony from the first trial is based on three distinct arguments. First, defendant contends the trial court’s conclusion that Crappa was unavailable within the meaning of the statute was not supported by substantial evidence. Second, defendant contends his interest and motive in cross-examining Crappa at the first trial were not the same as at the second trial, and therefore, the trial court erred in admitting the prior testimony pursuant to Evidence Code section 1291, subdivision (a). Third, defendant contends the admission of Crappa’s prior testimony violated his constitutional right to confrontation. We shall address each of defendant’s contentions in turn.
1. Whether Crappa was unavailable within the meaning of Evidence Code section 240, subdivision (a)(3)
Dana Crappa testified (in essence) that a loss of memory precluded her from offering any relevant testimony at defendant’s second trial. The prosecutor and the trial court questioned Crappa extensively to determine whether she possessed any recollection whatsoever relevant to the case. She claimed she had none. The prosecution also presented evidence that Crap-pa’s memory loss had existed for at least one year and was connected to a stress-related disability. Over defendant’s objection, the trial court admitted Crappa’s prior testimony under Evidence Code section 1291, subdivision (a), because the court found Crappa “unavailable” to testify within the meaning of Evidence Code section 240, subdivision (a)(3), which defines witness unavailablity to include being “unable to attend or to testify at the hearing because of then existing physical or mental illness or infirmity.”
On appeal, defendant contends the prosecution failed to meet its burden of proving that Crappa was unavailable. Further, defendant contends Dr. Staiti had insufficient contact with Crappa to render an expert opinion, and therefore the trial court’s ruling was not supported by expert testimony connecting Crappa’s memory loss to a mental illness or infirmity. Defendant also contends the trial court erred in denying defendant’s request for an independent psychiatric examination of Crappa to assist in determining the veracity of Crappa’s asserted memory loss. We reject these arguments for the following reasons.
a. Substantial evidence supports the trial court’s finding of unavailability
Defendant challenges, on substantial evidence grounds, the trial court’s finding that Crappa was unavailable. We find this contention to be without merit. In response to thorough questioning by the prosecution and the trial court, Crappa testified unequivocally that she had lost all memory of relevant events. Although the trial court was not required to credit Crappa’s testimony, the court made clear that it found her credible and believed that she lacked recollection. On this basis, we reject defendant’s argument that Crappa’s own testimony at the Evidence Code section 402 hearing, attesting to her total inability to recall any relevant information, did not constitute substantial evidence in support of the trial court’s finding of unavailability.
Defendant contends the total memory loss to which Crappa testified fails to constitute a “mental infirmity” within the meaning of Evidence Code section 240, subdivision (a)(3). We cannot agree. The unusual situation presented here, in which a witness who testifies in considerable detail at one trial, but—ostensibly due to the intervening onset of memory loss—claims a complete inability to recall relevant events at retrial, is analogous to that presented in People v. Rojas (1975) 15 Cal.3d 540 [125 Cal.Rptr. 357, 542 P.2d 229, 92 A.L.R.3d 1127], a case in which a witness who testified at one trial refused to testify at retrial based upon an intervening fear of retaliation.
In Rojas, supra, 15 Cal.3d 540, we affirmed the trial court’s ruling admitting the witness’s former testimony under Evidence Code section 1291, subdivision (a), after the trial court found that the witness’s fear rendered him “unavailable” to testify under Evidence Code section 240, subdivision (a)(3). (15 Cal.3d at p. 552.) In that situation, we held that a witness’s fear of retaliation permitted a trial court to find that the witness suffered from a “mental infirmity,” which we defined as “ ‘a defect of personality or weakness of the will.’ ” (Id., at p. 551, citing Webster’s Third New. Internat. Dict.; see also People v. Francis (1988) 200 Cal.App.3d 579, 587 [245 Cal.Rptr. 923] [witnesses, who refused to testify despite trial court’s extensive efforts to persuade them to testify, found to be unavailable]; People v. Quaintance (1978) 86 Cal.App.3d 594, 596 [150 Cal.Rptr. 281] [witness who “had seen ‘seven deaths’ while in the state prison... feared he would meet the same fate if he allowed a ‘snitch jacket’ to be placed on him by giving testimony”].) We adopted the view, set forth in People v. Gomez (1972) 26 Cal.App.3d 225, 229-230 [103 Cal.Rptr. 80], that the showing required to establish unavailability based on illness or infirmity must be left to the trial court’s discretion. (People v. Rojas, supra, 15 Cal.3d at pp. 550-551.)
Similarly, in the situation presented here, Crappa’s professed inability to remember any relevant information—an inability that postdated defendant’s first trial, and had compelled Crappa to seek a medical diagnosis for purposes unrelated to the present case—does not offend the Rojas definition of “mental infirmity.” The referenced colloquy between the prosecution and Crappa revealed the witness’s unequivocal refusal or inability to provide relevant testimony. (See fn. 14, ante.) Although Crappa’s professed loss of memory was factually distinct from the fear of retaliation experienced by witnesses in Rojas, Francis, and Quaintance, the result was identical: the prosecution was precluded from obtaining requested testimony from a witness present in court, and the court thus was justified in determining that Crappa was unavailable.
Defendant’s reliance on People v. Sul (1981) 122 Cal.App.3d 355 [175 Cal.Rptr. 893] is misplaced. In Sul, the witness voluntarily declined to testify, leading the trial court to find him in contempt, send him to jail, and declare him to be unavailable. (Id., at pp. 358-359.) The appellate court concluded the trial court should have taken further action to coerce the witness to testify before ruling as to his availability. (Id., at pp. 365-367.) By contrast, the trial court in the present case participated in extensive questioning of Crappa and observed her closely in order to determine whether she possessed any relevant recollection. The trial court believed her memory loss to be genuine and not of her own choice. In view of the trial court’s finding, the ability of Crappa to testify in the present case—unlike that of the witness in Sul—would not have been influenced by any amount of coercion from the court.
Defendant further contends, however, that even if Grappa’s condition constituted a “mental infirmity” within the meaning of the statute, such mental infirmity could be established only by expert medical evidence, and not by the testimony of Crappa, herself. We reject this contention. In Rojas, supra, we upheld a finding of witness unavailability on the basis of the witness’s “mental infirmity” in the absence of expert medical testimony. (15 Cal.3d at pp. 548-552.) Other decisions have similarly so held. (See, e.g., People v. Stritzinger (1983) 34 Cal.3d 505, 516-517 [194 Cal.Rptr. 431, 668 P.2d 738] [“Reviewing courts have typically and properly required either expert testimony on the witness’s present condition, or the witness’s own express refusal to testify at trial.” (Italics added.)]; compare People v. Bojorquez (1880) 55 Cal. 463, 463-464 [undersheriff’s testimony that witness was unwell and “not able” to leave his room held insufficient to permit introduction of witness’s deposition]; People v. Rinesmith (1940) 40 Cal.App.2d 786, 790 [105 P.2d 1021] [police officer’s testimony that witness was “too ill to attend the trial” insufficient to permit introduction of witness’s preliminary-examination testimony]; see also Sanchez v. Bagues & Sons Mortuaries (1969) 271 Cal.App.2d 188, 193 [76 Cal.Rptr. 372] [elderly witness’s deposition statement regarding his physical infirmity could not be used to establish his own unavailability because witness’s condition at time of deposition “was not proof of his physical infirmity at time of trial,” and no medical testimony was presented indicating that the witness was unable to appear in court].)
Accordingly, we conclude that Grappa’s own testimony at retrial, believed by the trial court, was sufficient to support the trial court’s finding that she was unavailable to testify. Thus, we need not reach defendant’s contention that the testimony of Dr. Staiti, who had interviewed Crappa one year prior to defendant’s retrial, was not sufficiently probative with regard to Crappa’s mental condition at the time of the second trial to support the trial court’s finding that Crappa was unavailable. Under the facts of this case, Dr. Staiti’s medical testimony was not required. (See People v. Stritzinger, supra, 34 Cal.3d 505; People v. Rojas, supra, 15 Cal.3d at pp. 550-551; People v. Gomez, supra, 26 Cal.3d at p. 230.)
b. The trial court did not err in refusing to order an independent psychiatric examination of Crappa
Defendant contends the trial court erred in rejecting defendant’s request for an independent psychiatric examination of Crappa to ascertain the veracity of her professed amnesia. He suggests that Crappa may have feigned memory loss to avoid reliving painful memories and stressful cross-examination. Although past cases have suggested that “[a]mnesia is very easy to feign and hard to disprove” (People v. McBroom (1968) 264 Cal.App.2d 242, 247 [70 Cal.Rptr. 326]), we conclude that defendant’s argument lacks merit. The trial court found that an independent psychiatric examination would neither “add [n]or detract” in the court’s evaluation of her claim of lack of recollection, and neither the facts of this case nor the relevant case law suggests that the trial court was required to order such an examination. The trial court’s finding that Crappa was unavailable to testify was based on its own close observation of Crappa’s demeanor and responses. Because we have held that expert medical evidence was not required under the facts of this case, we conclude the trial court did not abuse its discretion in denying the request for an independent psychiatric examination.
In an analogous context, neither the Evidence Code nor relevant case law requires our trial courts, when confronted with a witness who claims to have no recollection of a matter as to which he or she previously testified, to interrupt the proceedings in order to enable experts to testify for each side as to whether the witness’s claimed lack of recollection is genuine. (See Evid. Code, § 1235; People v. Sam (1969) 71 Cal.2d 194, 208-210 [77 Cal.Rptr. 804,454 P.2d 700] [right of impeachment does not exist where witness lacks recollection].) Similarly, with regard to a witness who appears to be “unavailable” due to a total loss of memory, we see no reason to require that expert testimony be heard on this issue.
Furthermore, the trial court’s rejection of defendant’s request for an independent examination of Crappa is consistent with the judicial policy disfavoring attempts to impeach witnesses by means of psychiatric testimony. (See People v. Cooks (1983) 141 Cal.App.3d 224, 302 [190 Cal.Rptr. 211]; In re Darrell T. (1979) 90 Cal.App.3d 325, 335-336 [153 Cal.Rptr. 261]; People v. Manson (1976) 61 Cal.App.3d 102, 135-138 [132 Cal.Rptr. 265]; see also § 1112.) California courts have viewed such examinations with disfavor because “ ‘[a] psychiatrist’s testimony on the credibility of a witness may involve many dangers: the psychiatrist’s testimony may not be relevant; the techniques used and theories advanced may not be generally accepted; the psychiatrist may not be in any better position to evaluate credibility than the juror; difficulties may arise in communication between the psychiatrist and the jury; too much reliance may be placed upon the testimony of the psychiatrist; partisan psychiatrists may cloud rather than clarify the issues; the testimony may be distracting, time-consuming and costly.’ ” (People v. Manson, supra, 61 Cal.App.3d at pp. 137-138, citation omitted.) We therefore find no error in the trial court’s rejection of defendant’s request.
c. A continuance was not required
We also reject defendant’s argument, raised for the first time on appeal, that the trial court should have granted defense counsel an extended continuance to allow the defense to consult with its expert prior to examining Dr. Staiti. Defendant did not seek a continuance below, so the argument is not properly before us. (See People v. Clark (1990) 50 Cal.3d 583, 626, fn. 34 [268 Cal.Rptr. 399, 789 P.2d 127].) Moreover, on the merits, the claim is untenable. When defense counsel sought additional time in which to review Dr. Staiti’s notes at the evidentiary hearing, the trial court granted a recess for that specific purpose. The trial court was under no obligation to volunteer, sua sponte, that the defense could have an unrequested continuance. Thus, we discern no error.
d. The requirements of Evidence Code section 240 were satisfied
Based on the foregoing, the record supports the trial court’s ruling that Crappa was “unavailable” in that she was “unable ... to testify,” and that this inability was the result of a “then existing... mental... infirmity.” (Evid. Code, § 240, subd. (a)(3).)
2. Whether defendant’s opportunity to cross-examine Crappa satisfied the requirements of Evidence Code section 1291, subdivision (a)(2)
Defendant contends that even if the trial court was correct in finding Crappa unavailable within the meaning of Evidence Code section 240, subdivision (a)(3), the court should have barred introduction of Crappa’s prior testimony because the testimony failed to satisfy the requirements of Evidence Code section 1291, subdivision (a)(2). The latter statute provides that former testimony from an unavailable declarant is not barred by the hearsay rule if “[t]he party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.” Defendant contends his “interest and motive” in cross-examining Crappa at the second trial were not “similar” to his “interest and motive” at the initial trial.
More specifically, defendant argues that he lacked a “complete” opportunity to cross-examine Crappa at his initial trial. (See Pointer v. Texas (1965) 380 U.S. 400, 406-407 [13 L.Ed.2d 923, 927-928, 85 S.Ct. 1065].) Defendant cites three areas of inquiry—Grappa’s possible hypnosis (see, post, pp. 785-789), her competency, and her conversations with a former colleague—in which he claims his cross-examination of Crappa at the second triad might have differed from his cross-examination at the first trial in light of events that postdated his initial trial. Thus, defendant contends, the trial court’s finding that Crappa was unavailable denied him the full opportunity to “pierce the veil” of the prosecution’s case.
We reject defendant’s argument. Crappa’s prior testimony was given at defendant’s first trial, a proceeding in which he faced identical charges and the identical potential punishment. Grappa’s testimony was important to each trial, and defendant’s interest and motive in cross-examining her were identical at each. Indeed, at his first trial, defendant subjected Crappa’s testimony to cross-examination which this court characterized as “intense.” (Alcala I, supra, 36 Cal.3d at p. 620.) The defense concentrated on attempting to discredit Crappa and, in particular, challenged her evasive and occasionally inconsistent responses to police questioning during the 1979-1980 pretrial investigation. (Id., at p. 620, fn. 5.) Under these circumstances,
defendant clearly “had the right and opportunity to cross-examine the declarant [at the first trial] with an interest and motive similar to that which he [had] at the [second trial]” so as satisfy the requirements of Evidence Code section 1291, subdivision (a)(2).
Defendant has cited no authority to support his suggestion that a defendant’s “interest and motive” in cross-examining a witness at a second trial is not “similar” to his interest and motive at a previous trial, within the meaning of Evidence Code section 1291, subdivision (a)(2), simply because events occurring after the first trial may have led counsel at the second trial to alter the nature or scope of the cross-examination of the witness in certain particulars. Evidence Code section 1291, subdivision (a)(2), does not suggest that prior testimony is admissible only if the cross-examination at the second trial would have been identical to that conducted at the first trial. Rather, the statute conditions the admissibility of the prior testimony on the party (against whom the evidence is admitted) having had an “interest and motive” to subject the witness to a thorough cross-examination, similar to the interest and motive the party has at the later hearing. That requirement clearly was satisfied here. (See, e.g., (People v. Ogeti (1985) 168 Cal.App.3d 611, 615-617 [215 Cal.Rptr. 16] [victim’s preliminary-hearing testimony from prior kidnap-rape proceeding admitted against defendant in his trial for victim’s murder].)
3. Whether the trial court’s admission of Crappa’s former testimony violated defendant’s right of confrontation
Defendant contends that the admission of Crappa’s former testimony, even if statutorily authorized, violated his right of confrontation under the United States and California Constitutions. (See U.S. Const., 6th Amend.; Pointer v. Texas, supra, 380 U.S. at pp. 403-405 [13 L.Ed.2d at pp. 925-927]; Cal. Const., art. I, § 15; People v. Louis, supra, 42 Cal.3d at p. 982; see also section 686, subd. (3)(a); People v. Stritzinger, supra, 34 Cal.3d at p. 515.) We reject this contention. The constitutional right of confrontation is not absolute. (Barber v. Page (1968) 390 U.S. 719, 722 [20 L.Ed.2d 255, 258-259, 88 S.Ct. 1318]; People v. Stritzinger, supra, 34 Cal.3d 505.) This right is not violated by the admission of hearsay testimony “where a witness is unavailable and has given testimony at previous judicial proceedings against the same defendant which was subject to cross-examination by that defendant.” (Barber v. Page, supra; see also Mancusi v. Stubbs (1972) 408 U.S. 204, 213-216 [33 L.Ed.2d 293, 301-304, 92 S.Ct. 2308]; People v. Wharton (1991) 53 Cal.3d 522, 589 [280 Cal.Rptr. 631, 809 P.2d 290]; People v. Stritzinger, supra, 34 Cal.3d 505; People v. Rojas, supra, 15 Cal.3d at pp. 548-549.) California has recognized this traditional exception to the confrontation requirement by enacting Evidence Code section 1291. (People v. Wharton, supra, 53 Cal.3d 522.)
In California v. Green (1970) 399 U.S. 149 [26 L.Ed.2d 489, 90 S.Ct. 1930], the United States Supreme Court made clear that where a defendant has had an opportunity to cross-examine a witness at the time of his or her prior testimony, that testimony is deemed sufficiently “reliable” to satisfy the confrontation requirement. (Id., at pp. 167-168 [26 L.Ed.2d at pp. 502-503].) Under Green, such testimony is admissible even when the witness is not subject to present cross-examination because of an asserted loss of memory or refusal to answer. (Ibid:, see also United States v. Owens (1988) 484 U.S. 554, 555-561 [98 L.Ed.2d 951, 955-959, 108 S.Ct. 838] [no violation of confrontation clause by admission of a prior, out-of-court identification statement of a witness who is unable, because of loss of memory, to explain the basis for the identification].)
The requirements set forth in the foregoing authorities have been met in the present case. First, as indicated earlier, Crappa’s professed memory loss rendered her unavailable as a witness. Second, her prior testimony was given at defendant’s initial trial in which he faced identical charges and the identical potential punishment. Crappa’s testimony, which was elicited under oath and subjected to extensive cross-examination by the defense, thus bore the requisite indicia of reliability. We therefore conclude that defendant’s constitutional right of confrontation was not abridged when the trial court permitted transcripts of Crappa’s prior testimony to be read to the jury.
C. Other evidentiary rulings
Defendant contends the trial court committed prejudicial error in excluding or curtailing the testimony of several witnesses. In defendant’s view, the trial court’s rulings violated Ms constitutional rights to due process of law, to present a defense, and to confront adverse witnesses. We address each of defendant’s contentions in turn.
1. Dr. London
Defendant contends the trial court erred in excluding the testimony of Dr. Ray London, a psychologist who was prepared to testify as part of defendant’s case-in-cMef that law enforcement personnel hypnotized Dana Crappa without her knowledge on several occasions prior to and during defendant’s first trial. Additionally, London was prepared to testify that police investigators used other sophisticated psychological techniques, short of hypnosis, for the purpose of manipulating and contaminating Crappa’s memory.
Defendant offered London’s testimony in an effort to persuade the trial court to strike Crappa’s testimony or, in the alternative, for the purpose of impeaching her testimony before the jury. Specifically, the defense proposed that in the event the trial court declined to strike Crappa’s testimony, the jury should be allowed to hear London’s testimony and to specially find whether or not Crappa had been hypnotized. Under the proposal advanced by defendant, in the event the jury affirmatively found Crappa to have been hypnotized, it would have been required, pursuant to instructions necessitated by this court’s decisions in Shirley and Guerra, to disregard her testimony.
At the foundational hearing held outside the presence of the jury, London testified he had reviewed the transcripts and tape recordings of Crappa’s pretrial interviews with the police, but had not observed Crappa or the purported hypnotic sessions. He opined that Crappa’s interviewers had used clandestine hypnotic techniques which had placed her in “an altered state of consciousness” in which she was vulnerable to investigators’ suggestions, and that the investigators had contaminated her memory. He further accused law enforcement personnel of lying or being “gravely mistaken” in stating they had not hypnotized Crappa.
In response, the prosecution introduced testimony from Huntington Beach Police Investigator Arthur Droz and Orange County Deputy District Attorney R. Richard Parnell, the law enforcement personnel who had questioned Crappa. The witnesses testified they never had hypnotized Crappa, never had attempted to do so, and had not heard from any source that anyone had hypnotized her.
The trial court weighed the prosecution witnesses’ testimony against that of London, concluding that defendant had failed to meet his burden of establishing as a preliminary fact that Crappa had been hypnotized. The court therefore refiised to strike Crappa’s testimony. In addition, the trial court, pursuant to Evidence Code section 352, refused to admit London’s testimony, finding this evidence highly speculative and likely to confuse the jury.
On appeal, defendant does not contend the evidence is insufficient to support the trial court’s finding that Crappa had not been hypnotized. Instead, defendant contends that, despite the trial court’s finding with regard to this preliminary fact, the court erred in precluding defendant from presenting London’s testimony to the jury. Defendant contends that this evidence was admissible on either of two theories: (1) that he was entitled to have the jury make its own determination whether Crappa had been hypnotized; and (2) that, in any event, London’s testimony should have been admitted to impeach Crappa’s testimony.
a. The trial court properly excluded London’s testimony related to the alleged hypnosis of Crappa
Defendant contends the jury was entitled to decide whether Crappa had been hypnotized. If such hypnosis had been conducted in order to refresh Crappa’s memory, our decisions in Shirley, Guerra, and Hayes, discussed above, would have compelled the trial court to exclude the portion of her testimony that had not previously been recalled and recounted to other persons prior to hypnosis. (See ante, pp. 770-773.)
We reject defendant’s contention that the jury was entitled to make its own determination whether Crappa had been hypnotized and thus to decide whether Crappa’s testimony should be excluded. The trial court correctly viewed London’s testimony as raising a question of law—the admissibility of evidence pertaining to Crappa’s competence, an issue which fell within the exclusive province of the court—rather than a question of fact for the jury’s determination. (See Evid. Code, § 310, subd. (a); People v. Lipinski (1976) 65 Cal.App.3d 566, 575 [135 Cal.Rptr. 451].) When the existence of a preliminary fact is disputed, it is for the court, not the jury, to determine the existence or nonexistence of the preliminary fact. (Evid. Code, §§ 402, subd. (a), 405, subd. (a); see also People v. Manson, supra, 61 Cal.App.3d 102, 136 [trial court vested with the responsibility of determining competence].) We find no error in the trial court’s ruling.
b. The trial court was not obligated to admit London’s testimony for impeachment purposes
Having decided the preliminary fact that Crappa had not been hypnotized, the trial court was not required to grant defendant’s request that this issue be submitted for redetermination by the jury. (Evid. Code, §§ 403, subd. (a), 350.) There remains, however, the question whether the trial court properly excluded that portion of London’s proffered testimony which addressed the allegedly suggestive nature of the interrogation methods employed by the police.
At defendant’s first trial, the defense sought to establish that police investigators had “confabulated” Crappa’s testimony—that is, supplanted Crappa’s actual memory with false and imaginary information. (Alcala I, supra, 36 Cal.3d at pp. 620-621; People v. Shirley, supra, 31 Cal.3d at pp. 31, 63-64.) At that trial, the parties’ experts “gave conflicting views on whether the tapes [of police interviews with Crappa] suggested that Crappa had been ‘brainwashed’ or otherwise led, while in a suggestible state, to false memories.” (Alcala I, supra, 36 Cal.3d at pp. 620-621.) Defendant contends that at the retrial, the trial court should have allowed him to present similar expert testimony regarding improper police interrogation methods in an attempt to impeach the testimony of Crappa and the police investigators.
The testimony which the defense proposed to elicit from London at the retrial was based on his review of Crappa’s testimony at defendant’s first trial, and of her tape-recorded interviews with police investigators. The trial court, in ruling on the admissibility of the evidence proffered by the defense, assumed that if London were allowed to testify, the prosecution would attempt to introduce additional expert testimony in response, a scenario that the trial court feared could continue “ad infinitum.” The trial court also found that the basis for any opinion expressed by London, which did not include any observation of the participants in the Crappa interviews, was insufficient and thus would render his opinion “so highly speculative” that it was unlikely to satisfy the requirements of Evidence Code section 801. Ultimately, the trial court excluded London’s testimony pursuant to Evidence Code sections 352 and 402, ruling in part that the testimony “would confound, screw up, do nothing for this case as far as either side getting a fair trial.”
Even if we assume that London’s proffered testimony (regarding police investigation techniques short of hypnosis) satisfied the requirements of Evidence Code sections 402 and 801, the trial court properly exercised its discretion under Evidence Code section 352 in excluding this testimony. In addition to the judicial policy discussed earlier (ante, pp. 781-782), the trial court’s concern with avoiding undue consumption of time justifies the exclusion of London’s testimony—that concern mirroring, as it does, our observation in Shirley that testimony pertaining to the presence or absence of interrogation “safeguards” is likely to inject “undue delay and confusion into the judicial process” and lead to “parades of expert witnesses.” (People v. Shirley, supra, 31 Cal.3d at pp. 39-40.) The jury was read the testimony given by Crappa at the initial trial, and it heard the audiotapes of her lengthy pretrial interviews with the police. Although London was prepared to testify that police investigators had employed improper interrogation techniques while interviewing Crappa, he had not attended those sessions, a circumstance that lessened the probative value of the opinion he would render. (See id., at pp. 63-64 [unduly suggestive interrogations may include “hypnotist’s demeanor and other nonverbal conduct”].) The reliability of his testimony was suspect. Thus, it was within the trial court’s discretion to conclude that London’s testimony would have been speculative and unduly time-consuming. (Compare People v. McDonald (1984) 37 Cal.3d 351, 375-377 [208 Cal.Rptr. 236, 690 P.2d 709, 46 A.L.R.4th 1011] [trial court erred in excluding expert testimony regarding psychological factors affecting eyewitness identification, where the identification was not substantially corroborated by evidence giving it independent reliability].)
Moreover, the exclusion of London’s testimony did not prevent the defense from suggesting to the jury that Grappa’s testimony was suspect or unreliable. As noted earlier, the “intense” cross-examination of Crappa at defendant’s first trial—admitted before the jury at defendant’s second trial under the prior-testimony exception to the hearsay rule—included “much sparring about whether her evasive responses to police questioning, and at the preliminary hearing, were outright lies.” (Alcala I, supra, 36 Cal.3d at p. 620, fn. 5.) At defendant’s second trial, the defense was not precluded from urging the jury to find that the nature of the police questioning of Crappa rendered her responses untrustworthy; defense counsel in fact went to great lengths in his closing argument to suggest that the police had contaminated Crappa’s testimony.
In view of the foregoing, we conclude that the trial court did not err in excluding London’s testimony as not sufficiently probative to outweigh the probability its admission would necessitate undue consumption of time, confuse the issues, or mislead the jury. (Evid. Code, § 352.)
2. Tim Fallen
Defendant contends he was denied his rights to due process of law, and to present a defense, by the trial court’s ruling excluding the offered testimony of Tim Fallen, who purportedly observed Robin Samsoe on June 21,1979, the day after her disappearance. When defendant called Fallen as a witness, the prosecution requested that the court conduct a hearing outside the presence of the jury, pursuant to Evidence Code section 402, with regard to the admissibility of Fallen’s testimony. According to defendant’s offer of proof at the hearing, on June 21 a Huntington Beach detective showed Fallen a photograph of Robin, and Fallen told the officer he had seen the girl riding a yellow bicycle earlier that day. Defendant contends Fallen’s testimony put the date of Robin’s disappearance in dispute, undercut the kidnapping special circumstance, and suggested someone else had killed Robin.
In response, the prosecution argued that although on direct examination at defendant’s first trial, Fallen positively identified a photograph of Robin as the girl he had seen on June 21, on cross-examination Fallen had been shown a photograph of a different girl and also had identified that girl, unequivocally, as the person he had seen on June 21. (Alcala I, supra, 36 Cal.3d at p. 619.) The prosecution maintained that Fallen’s testimony should be excluded as irrelevant in view of his inconsistent testimony at the prior trial.
The trial court accepted the prosecution’s argument and excluded the testimony given by Fallen at the prior trial on the ground of relevancy and pursuant to Evidence Code section 352. Relying upon the language of that statute, the court stated that Fallen’s positive misidentification of the other girl destroyed whatever probative value his testimony might have had, and that allowing such testimony only would “confuse the issues.”
We conclude that the trial court erred in excluding this evidence. Although the court was vested with wide discretion in determining the relevance and weighing the prejudicial effect of proffered evidence against its probative value (People v. Edwards (1991) 54 Cal.3d 787, 817 [1 Cal.Rptr.2d 696, 819 P.2d 436]), the circumstance that Fallen’s testimony readily was subject to impeachment did not afford the court a legitimate basis for excluding this evidence. Eyewitness testimony may be vulnerable to impeachment for numerous reasons, including the possible existence of prior, conflicting testimony; such vulnerability, however, does not render the evidence irrelevant or unduly prejudicial. Under the circumstances of this case, we conclude that defendant was entitled to present Fallen’s eyewitness observation (reported to a police officer within one day of Robin’s disappearance) that Fallen had observed a girl matching Robin’s description, riding a bicycle of the same color as the one she had borrowed. We thus hold it was error for the trial court to exclude this evidence, either on the ground of relevancy or under the provisions of Evidence Code section 352.
Nevertheless, we conclude that the trial court’s error was not prejudicial. The prosecution knew of Fallen’s prior testimony and was prepared to impeach him. Had Fallen taken the stand, the jury would have learned that he had given contradictory testimony at defendant’s first trial. (Evid. Code, § 780, subd. (h).) The jury necessarily also would have had to contrast Fallen’s contradictory testimony with the uncontradicted recollection of Robin’s friend, Bridget W., who testified that Robin had borrowed the bicycle in order to reach her ballet class, and not (as defense counsel suggested at oral argument) in order to “run away” from home, thereby creating an opportunity for Fallen to see her riding the bicycle one day after her disappearance. Under these circumstances, Fallen’s testimony would have had very little probative value. In view of the strength of the prosecution’s case, we conclude that it is not reasonably probable the jury would have reached a result more favorable to defendant had Fallen testified, and that the trial court’s error in excluding this testimony was harmless. (See People v. Watson, supra, 46 Cal.2d at p. 836.)
3. Gerald Crawford and Raul Vasquez
Defendant contends the trial court committed reversible error in excluding the proposed testimony of Gerald Crawford and Raul Vasquez, who testified at defendant’s first trial. (Alcala 1, supra, 36 Cal.3d at p. 619.) Defendant’s offer of proof was that Crawford, a police officer with the Sierra Madre Police Department, would testify that at 11 p.m. on June 22, 1979, two days after Robin’s disappearance, he observed Vasquez acting suspiciously in the general area of the crime scene. Vasquez would testify he was in the area in the late evening of June 22 in order to meet someone. Vasquez was on parole from a previous murder conviction, which the prosecutor characterized as a dissimilar, gang-related incident committed years earlier.
The prosecution challenged the relevancy of the proffered testimony, also arguing that even if the trial court found the testimony to be relevant, it was inadmissible under a line of cases following the decision in People v. Arline (1970) 13 Cal.App.3d 200 [91 Cal.Rptr. 520]. Arline applied an elevated standard of relevancy to third party culpability evidence offered by a criminal defendant, requiring “ ‘competent and substantial proof of a probability’ ” that the third party committed the crime. (People v. Arline, supra, 13 Cal.App.3d at pp. 204-205.) In the present case, the trial court found the proffered testimony lacked probative value and therefore excluded it.
Shortly after defendant’s offer of proof was rejected by the trial court, we disapproved Arline (and its progeny) in People v. Hall (1986) 41 Cal.3d 826, 831-834 [226 Cal.Rptr. 112, 718 P.2d 99]. We held in Hall that third party culpability evidence should be treated by the courts like any other evidence: “if relevant it is admissible ([Evid. Code] § 350) unless its probative value is substantially outweighed by the risk of undue delay, prejudice, or confusion. ([Evid. Code] § 352.)” (Id. at p. 834; see also People v. Kaurish (1990) 52 Cal.3d 648, 684-686 [276 Cal.Rptr. 788, 802 P.2d 278] [a third party’s anger toward the victim held to be an insufficient basis for requiring the trial court to admit evidence linking him to perpetration of the crime].)
On appeal, defendant contends the testimony of Crawford and Vasquez was relevant when viewed in conjunction with Tim Fallen’s excluded testimony that he saw a girl resembling Robin on the day following Robin’s disappearance. Defendant further contends the trial court erred in applying the heightened Arline standard to exclude this testimony.
We discern no error. The record is unclear whether the trial court did, in fact, apply the Arline standard in excluding the evidence in question. In any event, we conclude that defendant’s offer of proof was insufficient to justify admission of this testimony even under the more lenient standard we announced in Hall. The mere presence of Vasquez in the general vicinity of Robin’s remains two days after her disappearance was not enough to connect him to Robin’s kidnapping and murder. Hall explicitly reaffirmed that “evidence of [a third party’s] mere motive or opportunity to commit the crime... without more, will not suffice to raise a reasonable doubt about a defendant’s guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.” (People v. Hall, supra, 41 Cal.3d at p. 833; see also People v. Clark, supra, 3 Cal.4th at pp. 131-133.)
Defendant’s offer of proof failed to include any evidence, direct or circumstantial, linking Vasquez to Robin’s murder. For example, no offer was made that there was blood on Vasquez’s person, a significant omission in view of Dana Crappa’s testimony that the torso of the little girl’s body had been “pretty cut up,” and in view of other prosecution testimony regarding the recovery of a knife bearing human blood, a few feet from Robin’s remains, and the recovery of Robin’s bloodstained beach towel. Rather, defendant sought to link the proffered testimony to that of Fallen, in order to suggest that Robin was alive on June 21, and perhaps even on June 22, and that Vasquez, not defendant, was responsible for her death. Fallen’s testimony, however, did not establish (or even suggest) direct involvement by Vasquez in Robin’s murder. The evidence that Vasquez was on parole at the time similarly did not link Vasquez to Robin’s murder.
Accordingly, we conclude that the trial court properly excluded the third party culpability evidence proffered by defendant. (See also People v. Edelbacher (1989) 47 Cal.3d 983, 1017-1018 [254 Cal.Rptr. 586, 766 P.2d 1] [third party’s possible motive held insufficient to create reasonable doubt].)
Defendant further contends the trial court’s evidentiary ruling invaded the province of the jury, denying defendant his right to a jury trial, and impairing his ability to present a defense. We have rejected similar challenges in the past and see no reason to reconsider those decisions. (See People v. Farmer (1989) 47 Cal.3d 888, 921 [254 Cal.Rptr. 508, 765 P.2d 940]; People v. Hall, supra, 41 Cal.3d at pp. 834-835.)
4. Jackelyn Young
Defendant contends the trial court improperly curtailed the cross-examination of prosecution witness Jackelyn Young regarding her inability to identify defendant in a photo lineup on June 27, 1979, one week after she saw defendant, Bridget W., and Robin on the cliffs at Huntington Beach. The record does not support defendant’s contention. At trial, Young identified defendant as the man she observed photographing Bridget and Robin on June 20, 1979. On cross-examination, Young recalled the June 27 photo lineup, but stated in response to repeated questioning from defense counsel that she did not remember being unable to identify defendant. After defense counsel asked Young repeatedly whether she recalled being unable to identify defendant in the photo lineup, the trial court sustained the prosecution’s objection to continuation of that line of inquiry, the court finding that the witness had no recollection.
The trial court’s curtailment of the cross-examination was appropriate in order to protect the witness from undue harassment, in view of the repeated questions permitted on this subject. (Evid. Code, § 765, subd. (a).) We find no abuse of discretion.
Nor in any event do we find any possibility of prejudice to the defendant from the trial court’s ruling. The court indicated the defense was not precluded from calling the police officer present at the photo lineup to testify regarding Young’s responses. Keith Nale, a detective with the Huntington Beach Police Department, subsequently testified during the defense case that on June 27, 1979, Young was shown a photo lineup containing defendant’s photograph and was unable to identify any of the subjects as the man she saw on the cliffs with Bridget and Robin. Nale’s testimony was uncontradicted. Thus, the defense succeeded in demonstrating what it had been unable to elicit from Young during cross-examination—that Young had identified defendant at trial, but not at the photo lineup one week after Robin’s disappearance.
5. Toni E.
Defendant contends the trial court improperly curtailed the cross-examination of Toni E. regarding her inability to recall the description of defendant’s automobile that she provided to the police in July 1979. The record fails to support defendant’s contention. On direct examination, Toni E. testified that defendant, in an automobile, approached her and her friend, Joanne M., in a parking lot near the Huntington Beach pier on June 19,1979. On cross-examination, Toni E. was unable to describe the vehicle, except to recall that it “wasn’t a big car.” She indicated twice during cross-examination that she did not recall the description she provided to the police in 1979. Although defense counsel showed her the police report containing the description she provided in June 1979, the report failed to refresh her recollection When defense counsel subsequently asked her again to testify as to what she told the police in 1979, the trial court interrupted, stating that because Toni E. had testified she did not recall what she had told the police, and the report did not refresh her recollection, the cross-examination should proceed to a different topic.
Because this question had been asked and answered, we find no error in the trial court’s ruling. We also observe that the court’s ruling was not prejudicial to the defense. The description of the automobile given to the police by Toni E. was admitted in defendant’s case-in-chief through the testimony of the interviewing officer, Ron Jenkins of the Huntington Beach Police Department. Jenkins testified Toni E. described the vehicle as “an older[,] bigger car that was full of things.” Thus, the jury heard the inconsistency between the descriptions Toni E. offered to the police in 1979, and at trial in 1986.
6. Joanne M.
Defendant contends the trial court improperly curtailed the cross-examination of Joanne M. regarding her inability to recall the description of the automobile in which she observed defendant on June 19, 1979. Joanne M. testified she had no specific recollection of the vehicle. On cross-examination, defense counsel asked her to read the July 1979 police report for the purpose of refreshing her recollection. Reading the report failed to do so. The trial court sustained the prosecution’s objection to further inquiry, in view of Joanne M.’s lack of recollection and the failure of the report to refresh her recollection. The trial court’s ruling was correct.
In any event, the ruling was not prejudicial to the defense. Officer Jenkins subsequently testified that Joanne M. had described the automobile in 1979 as an “older[,j red car.” The Datsun F10 impounded at defendant’s residence was blue. Thus, the jury was apprised of Joanne M.’s prior identification.
7. Elizabeth Kelleher
Defendant contends the trial court improperly sustained the prosecution’s hearsay objections to questions directed to Elizabeth Kelleher on cross-examination regarding statements by defendant as to his plans in May 1979 to sell his property and leave the Los Angeles area. Suggesting that Kelleher’s testimony would have demonstrated that defendant had a motive to leave the area before Robin’s murder in June 1979, defendant argues her testimony was admissible under the state-of-mind exception to the hearsay rule, codified in section 1250 of the Evidence Code
The issue is not properly before us, because defendant failed to present that particular theory of admissibility to the trial court. (Evid. Code, § 354, subd. (a); People v. Livaditis (1992) 2 Cal.4th 759, 777-780 [9 Cal.Rptr.2d 72, 831 P.2d 297]; People v. Whitt (1990) 51 Cal.3d 620, 648 [274 Cal.Rptr. 252, 798 P.2d 849].) Furthermore, even if the issue had been properly preserved, the trial court’s curtailment of cross-examination clearly was nonprejudicial inasmuch as defendant’s plans already were before the jury through Kelleher’s testimony (on direct examination by the prosecution) that in the spring of 1979 she and defendant “had talked... about not being too serious, because he was not going to be around for long.. .” and through defendant’s introduction of newspaper advertisements (during cross-examination of Kelleher) indicating he had attempted to sell his personal property in April and May of 1979. (People v. Watson, supra, 46 Cal.2d at p. 836.)
D. Admission of the Kane Kut knife sets
Defendant contends the trial court committed reversible error by admitting into evidence, over defendant’s objection, two complete sets of Kane Kut knives seized by the police from the residence defendant shared with his mother. The carving knife which law enforcement officers found near Robin’s remains was also a Kane Kut knife. Neither set of knives seized from defendant’s residence included a carving knife.
As noted earlier, Dana Crappa testified that the little girl’s remains she had seen were “pretty cut up.” The carving knife found nearby bore a small amount of human blood. Robin’s beach towel was stained with blood in a pattern indicating that someone had wiped a bloody, straight-edged instrument, such as a knife, on the towel. These circumstances strongly suggest that the Kane Kut carving knife found near Robin’s remains was involved in Robin’s death, and the admission of that knife clearly was proper.
At the evidentiary hearing conducted outside the presence of the jury, Clella Schneider, a Kane Kutlery employee, testified that the carving knife was one of 4,000 to 5,000 which Kane Kutlery distributed in 6 western states, including California, between 1973 and 1977. The carving knife was sold separately from the knife sets. During the same period, Kane Kutlery distributed 15,000 knife sets of the type found in defendant’s residence. Defendant’s mother testified that the knife sets seized by the police from the residence she shared with defendant were among the gifts provided by her husband’s employer at Christmas parties. She did not recognize the carving knife.
Defendant unsuccessfully urged the trial court to exclude the knife sets as irrelevant. On appeal, defendant reiterates his challenge to the admission of this evidence. He contends that because a common manufacturer was the only element connecting the cutlery, the seized sets were irrelevant and unduly prejudicial under Evidence Code sections 350 and 352, and that admission of the knife sets improperly invited the jury to speculate that defendant must have been connected to the carving knife found near Robin’s remains.
Section 210 of the Evidence Code defines as “relevant” such evidence as has “any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” Under this broad definition, the trial court properly could determine that despite the relatively weak probative value of the knife sets, they might have some tendency to prove that defendant had access to, or familiarity with, the particular brand of carving knife found near the crime scene. Accordingly, we uphold the trial court’s determination that the knife sets were relevant and therefore admissible. (Evid. Code, §§ 210, 350.)
Similarly, we discern no error in the trial court’s exercise of discretion under section 352 of the Evidence Code. At the evidentiary hearing, the trial court weighed the probative value of the knife sets against the danger that their admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. The trial court noted that, in view of the difference in appearance between the carving knife and the complete knife sets, the jury could not possibly be misled into believing that the carving knife had been removed from either of the sets of knives. Subsequently, but prior to the trial court’s final ruling on the admissibility of this evidence, the testimony of the Kane Kutlery representative established that the carving knife was not part of either of the knife sets seized from defendant’s residence. Thus, although the probative value of the knife sets was weak, the danger of confusion, speculation, or prejudice was minimal. We find no abuse of discretion.
Furthermore, we conclude that even if it had been error for the trial court to admit the knife sets, it is not reasonably probable, in light of the other evidence connecting defendant to the murder scene and to the victim, that a result more favorable to defendant would have been reached had this physical evidence been excluded. Thus, any error would be nonprejudicial. (People v. Watson, supra, 46 Cal.2d at p. 836.) In this regard, we reject defendant’s contention that the trial court’s admission of the knife sets, if erroneous, was prejudicial per se. The early cases which defendant cites in support of this contention, People v. Hill (1899) 123 Cal. 571 [56 P. 443], People v. McCall (1935) 10 Cal.App.2d 503 [52 P.2d 500], People v. Mullen (1924) 69 Cal.App. 548, 551 [231 P. 588], People v. Smith (1921) 55 Cal.App. 324, 331-334 [203 P. 816], and People v. Muhly (1909) 11 Cal.App. 129, 135-136 [104 P. 466], fail to reflect the change in the prejudicial-error standard now embodied in article VI, section 13 of the California Constitution. (See People v. Watson, supra, 46 Cal.2d at pp. 834-838.)
E. The trial court’s exercise of discretion under Evidence Code section 352 throughout the proceedings
Defendant contends the trial court consistently and inappropriately exercised its discretion under Evidence Code section 352 throughout the guilt phase in a manner favorable to the prosecution. To illustrate his point, defendant contrasts the admission of the Kane Kut knife sets and the testimony of Dana Crappa with the exclusion of the testimony of Tim Fallen, Gerald Crawford, Raul Vasquez, and Dr. London. In defendant’s view, the trial court employed a “double standard” that denied defendant his constitutional rights to due process of law and equal protection of the laws.
As discussed above, the trial court did not abuse its discretion in its rulings under section 352, except when the court excluded Tim Fallen’s testimony. (See, ante, at pp. 790-791.) That the bulk of the discretionary rulings were unfavorable to the defense does not signify application of a double standard by the trial court. Defendant’s argument is without merit.
F. Search of the Seattle storage locker
Defendant contends the trial court committed reversible error in denying his motion to suppress evidence obtained from a police search of the Seattle, Washington storage locker. Specifically, defendant asserts that the gold ball earrings (which Robin’s mother testified were similar to those worn by Robin when she disappeared), the photographs of Lorraine W., and Lorraine W.’s testimony at trial were the fruit of an unlawful search of defendant’s residence, during which the police found the Seattle storage locker receipt. Defendant’s suppression motion at the second trial renewed without further argument a motion (identical to an unsuccessful motion that preceded the first trial) to suppress all tangible evidence seized from his residence.
At the suppression hearing, defendant’s mother, Anna Maria German, testified that she told the police officers when they arrived to search the residence: “You are welcome to search the whole house. We have nothing to hide.” The evidence is conflicting whether her statement was made before, or after, Craig Robison, the Huntington Beach detective who supervised the search, informed her that he possessed a search warrant. The conflict is insignificant. The warrant authorized a search for (among other items) photographs, negatives, any kitchen knife similar to the knife found at the murder scene, clothing which Robin was last seen wearing, and Bridget W.’s 10-speed bicycle. The warrant also included a standard clause authorizing a search for “[a]ny articles of personal property tending to establish the identity of persons in control of the premises,... including but not limited to... rent receipts, cancelled mail envelopes, and keys.”
On appeal, defendant contends that although the search was conducted pursuant to a warrant, the police were not justified in reading a storage receipt found inside a book located in his bedroom nightstand. As explained below, we reject this contention.
The flaw in defendant’s challenge lies in the particularized nature of the search warrant, which, as noted, authorized the police to search for photographs, negatives, and rent receipts. The challenge also ignores common sense: law enforcement officers would be unable to conduct a search for a rental receipt were they prohibited from reading papers found during the course of an authorized search. We recently upheld a similar search authorized by warrant, in which police officers, searching for papers tending to show the identity of the occupants of the premises, discovered incriminating writings contained in a manila folder found on a desk in the defendant’s apartment. (People v. Nicolaus (1991) 54 Cal.3d 551, 574-575 [286 Cal.Rptr. 628, 817 P.2d 893].) Just as a “rent receipt... might reasonably be expected to be found in a folder on a desk” (id., at p. 575), such a receipt easily could be concealed in a variety of other locations, such as a book placed inside a nightstand. The police therefore were entitled to look inside the book and to read the information contained on the storage-locker receipt. (See also People v. Clark, supra, 3 Cal.4th at pp. 142-143 [opening of defendant’s wallet and reading of papers within it did not exceed the scope of a proper booking search]; People v. Hovey, supra, 44 Cal.3d 543, 570-571 [same].)
Defendant also challenges the search on a related ground—that the warrant provision authorizing a search for rent receipts was contained in a “boilerplate” clause which authorized a search for proof of residency. Thus, according to defendant, the police were not entitled to rely on that clause in locating a receipt for an off-premises storage locker.
Defendant’s contention is without merit. As explained, the police discovered the storage locker receipt while they were engaged in a lawful search authorized by the warrant, and the resulting observation of the information disclosed by that receipt clearly was proper. (See, e.g., Horton v. California (1990) 496 U.S. 128, 133-142 [110 L.Ed.2d 112, 120-127, 110 S.Ct. 2301].) Because observation of the receipt was lawful, law enforcement officials properly could rely on that information in subsequently seeking and obtaining search warrants from a Washington magistrate to search the Seattle storage locker in July 1979. (See, e.g., People v. Roberts (1956) 47 Cal.2d 374, 377-380 [303 P.2d 721]; People v. Superior Court (Moore) (1980) 104 Cal.App.3d 1001, 1006, 1008-1010 [163 Cal.Rptr. 906].)
Accordingly, the seizure from the storage locker of the earrings and the Lorraine W. photographs pursuant to the Washington warrants, and the obtaining of Lorraine W.’s testimony, were not tainted by prior illegal conduct of the authorities. The trial court properly denied defendant’s motion to suppress.
G. Cumulative impact of alleged evidentiary errors
Defendant contends the cumulative impact of the foregoing alleged evidentiary errors requires reversal. We reject this contention. As we have explained, the trial court’s evidentiary rulings for the most part were correct. Although we have found that the trial court did err in a few respects— specifically with regard to the testimony of Tim Fallen and portions of the testimony offered by Bridget W. and Lorraine W.—these rulings, even when viewed cumulatively, did not result in prejudicial error.
H. The kidnapping special circumstance
Defendant contends the trial court committed reversible error in instructing the jury that kidnapping in violation of section 207 was sufficient to support a finding of the special circumstance of murder in the course of a kidnapping. Defendant argues that former section 190.2, in enumerating the various underlying offenses whose commission renders a defendant convicted of first degree murder eligible for the punishment of death or confinement in state prison for life without the possibility of parole, required that the kidnapping violate both section 207 (simple kidnapping) and section 209 (aggravated kidnapping). We repeatedly have rejected identical claims. (People v. Pensinger (1991) 52 Cal.3d 1210, 1256 [278 Cal.Rptr. 640 [805 P.2d 899]; People v. Guzman (1988) 45 Cal.3d 915, 953-954 [248 Cal.Rptr. 467, 755 P.2d 917], People v. Bigelow (1984) 37 Cal.3d 731, 755-756 [209 Cal.Rptr. 328, 691 P.2d 994, 64 A.L.R.4th 723].)
Defendant, urging that we reconsider the analysis we adopted in Guzman and Bigelow, asserts that our interpretation of section 190.2, subdivision (a)(17)(ii), renders the statute impermissibly vague and therefore violative of his due process and equal protection rights. Defendant argues the statute failed to afford him notice that a murder committed in the course of a kidnapping under either section 207 or section 209 would render him eligible for the death penalty. He also contends the interpretation of the statute we adopted in Bigelow creates an ex post facto law and a denial of due process of law. We find these contentions to be without merit. As we explained in Bigelow, “ ‘The more reasonable statutory construction is that either form of kidnap suffices for invocation of the extreme penalty.’ ” (37 Cal.3d at p. 755.)
Defendant further contends the California electorate abrogated our holding in Bigelow, supra, 37 Cal.3d 731, by adopting Proposition 114 on June 5, 1990. That initiative, which proposed to reenact the language of section 190.2, subdivision (a)(17)(ii), received a greater number of affirmative votes than did its companion measure, Proposition 115, which codified the Bigelow construction of section 190.2, subdivision (a)(17)(ii), by changing the conjunction between the numerical designations of the two kidnapping statutes from “and” to “or.” Based on the principle that where two measures approved at the same election contain conflicting provisions, “those of the measure receiving the highest affirmative vote shall prevail” (Cal. Const., art. II, § 10, subd. (b)), defendant argues that Bigelow’s construction of section 190.2, subdivision (a)(17)(ii), no longer is the law.
In light of our recent decision in Yoshisato v. Superior Court (1992) 2 Cal.4th 978 [9 Cal.Rptr.2d 102, 831 P.2d 327], defendant’s contention clearly lacks merit. In Yoshisato, we concluded that “Proposition 114 did not create a ‘comprehensive scheme’ that prevails over all other changes made to section 190.2 by Proposition 115” (id. at p. 990), and determined instead that “each amendment enacted by Proposition 115 must be given effect so long as the amendment does not conflict with any amendment made to the same provision by Proposition 114, and so long as the amendment is severable from any other provision of Proposition 115 that cannot be given effect.” (Id., at p. 991.) With regard to the specific subdivision of section 190.2 at issue here, we explained in Yoshisato that “the various modifications and amendments made by Proposition 115 to paragraph (17) of section 190.2, subdivision (a)... are... effective." (2 Cal.4th at p. 991.) Therefore, the version of section 190.2, subdivision (a)(17)(ii), currently effective is the one enacted by Proposition 115—a version that explicitly codifies the Bigelow decision (supra, 37 Cal.3d 731) on this point.
I. Failure to instruct sua sponte
Defendant contends the trial court committed reversible error in failing to instruct the jury, sua sponte, regarding: (1) identity (CALJIC No. 2.91) and eyewitness identification factors (CALJIC No. 2.92); (2) defendant’s alibi (CALJIC No. 4.50); and (3) the reliability of “jailhouse informant” Frederick Williams. Defendant did not request instructions on any of these matters but asserts the trial court had a duty to provide the jury with such instructions in light of the testimony of the numerous witnesses who linked him to the Huntington Beach area, or to Robin, on June 19-20, 1979. Defendant also contends his counsel’s failure to request certain instructions constituted ineffective assistance of counsel. For the reasons set forth below, we reject each of defendant’s contentions.
1. Identity (CALJIC No. 2.91) and eyewitness identification factors (CALJIC No. 2.92)
Defendant contends the pivotal nature of eyewitness testimony in this case imposed a duty on the trial court to instruct the jury sua sponte pursuant to CALJIC Nos. 2.91 and 2.92. We rejected a similar argument in People v. Blair (1979) 25 Cal.3d 640, 662-663 [159 Cal.Rptr. 818, 602 P.2d 738]. In Blair, the defendant argued that due to the “unreliability of the identification evidence and the importance of that evidence,” the trial court should have instructed the jury on its own motion, either pursuant to CALJIC No. 2.91 or the more elaborate instructions set forth in People v. Guzman (1975) 47 Cal.App.3d 380, 386-387, footnote 1 [121 Cal.Rptr. 69], (25 Cal ,3d at p. 663.) The Guzman instructions, viewed together, are similar to CALJIC No. 2.92. (People v. Sanchez (1990) 221 Cal.App.3d 74, 76 [270 Cal.Rptr. 275].) In declining to accept the defendant’s argument in Blair, we adopted the view set forth in People v. Richardson (1978) 83 Cal.App.3d 853, 860-862 [148 Cal.Rptr. 120], that the trial court had no such duty because, inter alia, the court’s “general instructions on credibility and burden of proof were sufficient to inform the jury of the test they should apply to the identification evidence.” (People v. Blair, supra, 25 Cal.3d at p. 663.)
In the instant case, as in Blair {supra, 25 Cal.3d at 663 fn. 22), the trial court admonished the jury pursuant to such general instructions. The court instructed the jury regarding witness credibility (CALJIC No. 2.20), discrepancies in testimony (CALJIC No. 2.21), the weighing of conflicting testimony (CALJIC No. 2.22), the sufficiency of testimony from one witness (CALJIC No. 2.27), and reasonable doubt (CALJIC No. 2.90), also furnishing other instructions involving the evaluation of testimony. Although the trial court did not instruct on alibi (CALJIC No. 4.50) as the court did in Blair {supra, 25 Cal.3d at p. 663), that distinction is immaterial, because in each case the trial court’s instructions clearly addressed the defendant’s challenge to the reliability of the testimony which identified him. Moreover, as in Blair, supra, there was substantial corroborating evidence in the present case connecting defendant to the crime, apart from the eyewitness testimony. The trial court’s instructions were sufficient to inform the jury that the prosecution had the burden of establishing identity, and that defendant should be acquitted in the event the jury harbored a reasonable doubt on the issue of identity. (See also People v. Wright (1988) 45 Cal.3d 1126, 1144 [248 Cal.Rptr. 600, 755 P.2d 1049] [“CALJIC No. 2.92 or a comparable instruction should be given when requested in a case in which identification is a crucial issue and there is no substantial corroborative evidence.” (Italics added.)]; People v. Sanchez, supra, 221 Cal.App.3d at pp. 76-78 [relying on Blair in holding that a trial court is under no duty to deliver CALJIC No. 2.92 sua sponte]; CALJIC No. 2.92, 5th ed., Comment [no sua sponte duty to instruct].)
2. Alibi (CALJIC No. 4.50)
Defendant contends his alibi defense imposed a duty upon the trial court to instruct the jury sua sponte pursuant to CALJIC No. 4.50. We repeatedly have rejected the identical contention. (See People v. Freeman (1978) 22 Cal.3d 434, 437-439 [149 Cal.Rptr. 396, 584 P.2d 533], and cases cited therein.) For the purpose of instructing with respect to an alibi defense, it is sufficient that the jury be instructed generally to consider all the evidence, and to acquit the defendant in the event it entertains a reasonable doubt regarding his or her guilt. (Id., at p. 438.) Because the jury was so instructed in the present case (see ante, p. 803), defendant’s contention lacks merit.
3. Reliability of jailhouse informant
Defendant contends the testimony of inmate Frederick Williams imposed a duty on the trial court to instruct the jury sua sponte to view with distrust the testimony of a jailhouse informant. We repeatedly have rejected the identical contention. (See People v. Pensinger, supra, 52 Cal.3d at p. 1250, fn. 13, and cases cited therein.) Defendant invites this court to reconsider the issue in light of United States v. Garcia (5th Cir. 1976) 528 F.2d 580 [reversal where the conviction was based entirely on the informer’s uncorroborated testimony]. Such reconsideration is unwarranted. Not only did our decision in People v. Hovey, supra, 44 Cal.3d at pages 565-566, implicitly reject Garcia, but Garcia also is factually distinguishable from the instant case. Moreover, at defendant’s trial the court instructed the jury pursuant to CALJIC No. 2.23, regarding the credibility of a convicted felon. The trial court thus adequately instructed the jury regarding Williams’s testimony.
4. Ineffective assistance of counsel
Defendant contends he was denied effective assistance of counsel by his attorneys’ failure to request that the jury be instructed pursuant to CALJIC Nos. 2.91, 2.92 and 4.50. In light of our determination that the instructions given adequately apprised the jury of all relevant legal principles, any failure by counsel clearly was not prejudicial.
J. Defendant’s waiver of his right to testify
Defendant did not testify at the guilt phase of his trial. Nor did he inform the court, prior to the conclusion of the guilt phase of the trial, that he sought the opportunity to testify on his own behalf. Following his conviction, defendant sought removal of his counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 [84 Cal.Rptr. 156, 465 P.2d 44], In support of defendant’s motion, he alleged, inter alia, that his attorneys had failed to advise him adequately regarding the relative benefits and disadvantages of a decision not to testify. Defendant asserted that this failure effectively prevented him from exercising his right to testify in his own defense.
The trial court denied defendant’s Marsden motion, as well as defendant’s concurrent motion for mistrial submitted on the same grounds, observing: (1) defendant’s failure to testify involved defense “tactics and strategies”; (2) defense counsel performed within acceptable standards and the defendant received a fair trial; and (3) defense counsel were prepared to provide “a vigorous and proper defense in the penalty phase and to relieve [defense counsel] at this time would be an error... ,”
On appeal, defendant contends he was improperly prevented from testifying, although there is no evidence in the record supporting this assertion. Defendant therefore invites us to adopt a rule requiring that trial courts obtain an affirmative waiver on the record whenever a defendant fails to testify at trial, and reversing any conviction obtained in the absence of such a waiver. In previous decisions, we have rejected similar proposals. (See People v. Hendricks (1987) 43 Cal.3d 584, 592-594 [238 Cal.Rptr. 66, 737 P.2d 1350]; People v. Murphy (1972) 8 Cal.3d 349, 366-367 [105 Cal.Rptr. 138, 503 P.2d 594]; see also People v. Cox (1991) 53 Cal.3d 618, 671 [280 Cal.Rptr. 692, 809 P.2d 351] [“‘[A] trial judge may safely assume that a defendant, who is ably represented and who does not testify is merely exercising his Fifth Amendment privilege against self-incrimination and is abiding by his counsel’s trial strategy; otherwise, the judge would have to conduct a law seminar prior to every criminal trial.’ ” (Quoting People v. Mosqueda (1970) 5 Cal.App.3d 540, 545 [85 Cal.Rptr. 346])].) When the record fails to disclose a timely and adequate demand to testify, “a defendant may not await the outcome of the trial and then seek reversal based on his claim that despite expressing to counsel his desire to testify, he was deprived of that opportunity.” (People v. Hayes (1991) 229 Cal.App.3d 1226, 1231-1232 [280 Cal.Rptr. 578]; People v. Guillen (1974) 37 Cal.App.3d 976, 984-985 [113 Cal.Rptr. 43].)
Defendant’s citation to our decision in People v. Bonin (1989) 47 Cal.3d 808, 833-843 [254 Cal.Rptr. 298, 765 P.2d 460], in support of a requirement for an affirmative waiver, is misplaced. In Bonin, we held the trial court erred in permitting the substitution of counsel who had a conflict of interest, without the court first obtaining a personal, on-the-record waiver from the defendant. (Id., at pp. 838-839.) Nothing in the present case indicates defense counsel had a conflict of interest. Thus, defendant’s right to conflict-free representation was not implicated. (Compare Wood v. Georgia (1981) 450 U.S. 261, 271 [67 L.Ed.2d 220, 230, 101 S.Ct. 1097].)
II. Issues Related to the Penalty Phase
A. Excusal of jurors opposed to the death penalty
Defendant contends the trial court committed reversible error in excusing for cause four potential jurors who expressed their inability to impose the death penalty under any circumstances. The jurors properly were excluded. (See Wainwright v. Witt (1985) 469 U.S. 412, 424 [83 L.Ed.2d 841, 105 S.Ct. 844]; Adams v. Texas (1980) 448 U.S. 38, 45 [65 L.Ed.2d 581, 589-590, 100 S.Ct. 2521]; Witherspoon v. Illinois (1968) 391 U.S. 510, 522-523, fn. 21 [20 L.Ed.2d 776, 784-786, 88 S.Ct. 1770]; People v. Mickey (1991) 54 Cal.3d 612, 679-681 [286 Cal.Rptr. 801, 818 P.2d 84]; People v. Cooper (1991) 53 Cal.3d 771, 808-809 [281 Cal.Rptr. 90, 809 P.2d 865]; People v. Howard (1988) 44 Cal.3d 375, 415-418 [243 Cal.Rptr. 842, 749 P.2d 279].)
B. Evidence relating to other capital cases
Defendant challenges the trial court’s denial of his personal request, not joined in by counsel, to present evidence that innocent persons in other cases have been convicted of capital offenses. Defendant’s argument fails to recognize that an attorney representing a criminal defendant has the authority to control the presentation of the defense, except that such authority may not be exercised to deprive a defendant of certain fundamental rights, such as the right to testify in one’s own behalf. (People v. Robles (1970) 2 Cal.3d 205, 214-215 [85 Cal.Rptr. 166, 466 P.2d 710].) Defendant’s argument is without merit for an additional reason—and would have to be rejected even if the request to present such evidence had come from his attorney—because a capital defendant has no right to demand jury consideration of such evidence at the penalty phase. The jury’s focus at that proceeding must be directed to the defendant’s character and prior record, and the circumstances of the charged offense. (Franklin v. Lynaugh (1988) 487 U.S. 164, 172-175 [101 L.Ed.2d 155, 164-167, 108 S.Ct. 2320]; see also Lockett v. Ohio (1978) 438 U.S. 586, 605, fn. 12 [57 L.Ed.2d 973, 990, 98 S.Ct. 2954] [upholding the trial court’s traditional authority to exclude, as irrelevant, evidence not bearing on the defendant’s character or prior record, or the circumstances of the offense].) Evidence of third persons’ having been wrongfully convicted of capital offenses is irrelevant to the jury’s function in the case before them and is therefore inadmissible. (See Evid. Code, § 350; People v. Malone (1988) 47 Cal.3d 1, 56-57, fn. 31 [252 Cal.Rptr. 525, 762 P.2d 1249] [individualized nature of jury’s sentencing determination renders inappropriate the consideration of sentences imposed in similar cases]; People v. Dyer (1988) 45 Cal.3d 26, 69-71 [246 Cal.Rptr. 209, 753 P.2d 1] [upholding the trial court’s rejection of the defendant’s attempt to introduce evidence of lesser sentences imposed on codefendants].)
The trial court’s exclusion of such improper evidence did not prevent defendant from introducing relevant evidence regarding the circumstances of Robin’s death, in an attempt to create a lingering doubt. Indeed, defendant’s own testimony at the penalty phase, denying the commission of any offense against Robin, attempted to create such a doubt. Defendant also presented testimony which sought to undermine the prosection’s theory regarding the gold ball earrings found in the Seattle storage locker.
Moreover, the jury in the present case was instructed at the penalty phase to “consider all of the evidence which has been received during any part of the trial of this case.” The jury was further instructed pursuant to a “catchall” mitigation instruction derived from section 190.3, factor (k), allowing the jury to consider the following: “any other circumstance which extenuates the gravity of the crime, even though it is not a legal excuse for the crime, and any other aspect of the defendant’s character, record, background or emotional makeup, which is offered as a basis for a sentence less than death, whether or not related to the offense for which he is on trial. You are not limited as to the matters which you may consider as the basis for a sentence less than death and you may consider pity or sympathy for the defendant as one of those factors. You may, in addition, take into consideration the possibility or probability, if you should so determine, that the defendant has in the past and will in the future successfully adjust to life in prison in such manner as to make a worthwhile contribution thereto.” These instructions were sufficient to advise the jury of the full range of mitigating evidence. (People v. Sully (1991) 53 Cal.3d 1195, 1244-1245 [283 Cal.Rptr. 144, 812 P.2d 163]; People v. Howard, supra, 44 Cal.3d at p. 434.)
C. Aggravating and mitigating circumstances
Defendant contends the trial court committed reversible error in failing to instruct the jury that it could impose the death penalty only if it found the aggravating circumstances “so substantial in comparison with the mitigating circumstances that it warrants death instead of life [in state prison] without parole.”
In the present case, the trial court instructed the jury: “It is now your duty to determine which of the two penalties, death or confinement in the state prison for life without possibility of parole, shall be imposed on the defendant. [¶] After having heard all of the evidence, and after having heard and considered the arguments of counsel, you shall consider, take into account and be guided by the applicable factors of aggravating and mitigating circumstances upon which you have been instructed, [¶] If you conclude that the aggravating circumstances outweigh the mitigating circumstances, you may impose a sentence of death. However, if you determine that the mitigating circumstances outweigh the aggravating circumstances, you shall impose a sentence of confinement in the state prison for life without the possibility of parole, [¶] The weighing of aggravating and mitigating circumstances does not mean a mere technical counting of factors on each side of an imaginary scale. You are free to assign whatever weight you deem appropriate to each and all of the various factors upon which you have been instructed. By weighing the various circumstances you must determine which penalty is justified.” This instruction was not erroneous. (See People v. Melton (1988) 44 Cal.3d 713, 761 [244 Cal.Rptr. 867, 750 P.2d 741] [upholding an instruction that allowed the jury to assign any weight to each factor]; People v. Gates (1987) 43 Cal.3d 1168, 1203-1206 [240 Cal.Rptr. 666, 743 P.2d 301] [upholding an instruction stating that if the jury found the aggravating circumstances to outweigh the mitigating circumstances, the jury “may” (rather than “shall”) impose the death penalty].)
D. Cruel and unusual punishment
Defendant contends imposition of the death penalty in this case constitutes cruel and unusual punishment in violation of his rights under the Eighth Amendment to the United States Constitution because his conviction rests in part on circumstantial evidence. This argument is without merit. (People v. Siripongs (1988) 45 Cal.3d 548, 556 [247 Cal.Rptr. 729, 754 P.2d 1306].)
E. Miscellaneous contentions
Defendant submits six claims of constitutional error that he acknowledges have been recently rejected by this court. They are:
(1) that the court erred in failing to instruct the jury that it could not impose the death penalty unless the jury unanimously agreed, beyond a reasonable doubt, that the aggravating circumstances outweighed the mitigating circumstances, and in failing to instruct that the jury could not impose the death penalty unless it agreed, beyond a reasonable doubt, that death was appropriate (People v. Clark, supra, 3 Cal.4th at p. 170; People v. Heishman (1988) 45 Cal.3d 147, 189 [246 Cal.Rptr. 673, 753 P.2d 629]; People v. Thompson (1988) 45 Cal.3d 86, 143 [246 Cal.Rptr. 245, 753 P.2d 37]);
(2) that the court erred in admitting evidence of defendant’s alleged commission of offenses (against Julie J.) that had not resulted in a conviction (People v. Price, supra, 1 Cal.4th at p. 490);
(3) that the court erred in failing to instruct the jury, sua sponte, on the elements of the unadjudicated offenses, and in failing to instruct that they must agree unanimously that defendant committed each unadjudicated offense before considering those offenses in aggravation (People v. Miranda (1987) 44 Cal.3d 57, 99 [241 Cal.Rptr. 594, 744 P.2d 1127]);
(4) that the court erred in admitting evidence regarding defendant’s other crimes that had resulted in conviction, and that were subject to proof by judgment of conviction (People v. Melton, supra, 44 Cal.3d at p. 754; People v. Gates, supra, 43 Cal.3d at p. 1203);
(5) that the 1978 death penalty statute is unconstitutional on its face and as applied, due to its lack of procedural safeguards (People v. Sully, supra, 53 Cal.3d at pp. 1251-1252; see also Boyde v. California (1990) 494 U.S. 370 [108 L.Ed.2d 316, 110 S.Ct. 1190]); and
(6) that the death penalty is arbitrary, discriminatory, and disproportionate in light of the facts of this case and defendant’s personal characteristics (People v. Edwards, supra, 54 Cal.3d at pp. 848-849; People v. Melton, supra, 44 Cal.3d at pp. 771-772).
We adhere to our previous decisions, observing that the latter contention—the purported disproportionality in imposing the death penalty on this particular defendant—invites additional comment. The defense’s penalty-phase evidence suggesting the appropriateness of mercy was less than compelling: prison guards testified that defendant was a good clerk and a cooperative inmate, and defendant’s mother testified that he had been a good boy. The defense also called other witnesses in an attempt to cast lingering doubt upon the incident involving Julie J. and upon a pretrial statement, made by Robin’s mother to a Huntington Beach detective, Richard Butcher, that she had purchased locally the earrings worn by Robin. In contrast, the evidence in support of a death sentence comprised a haunting montage. Tali S., Julie J., Monique H., and Robin Samsoe were young girls, three of whom were on their way to class, when defendant coaxed them into his automobile. Their average age was 12 years. After encountering each of the first three girls, defendant sought a further young victim, and, after committing his offenses in the present case, he planned, as he had accomplished before, a flight from justice. Defendant’s acts of extreme cruelty toward children culminated in his abduction and murder of Robin Samsoe while he awaited trial for the offenses which he had committed against Monique H. The overwhelming weight of the evidence presented at the penalty phase established that defendant had a lengthy history of preying upon children—individuals particularly vulnerable to defendant’s subterfuge. In view of these circumstances, there is absolutely no merit in defendant’s argument that his death sentence was arbitrary, discriminatory, and disproportionate. (See People v. Edwards, supra, 54 Cal.3d 787.)
F. Cumulative impact of errors
Defendant contends the cumulative impact of the errors he has alleged requires reversal or, at a minimum, that the judgment be set aside insofar as it imposes the death penalty. We disagree. Our review of the record persuades us that defendant received a fair and untainted trial. The Constitution requires no more. (People v. Mitcham, supra, 1 Cal.4th at p. 1082.)
Conclusion
The judgment is affirmed.
Lucas, C. J., Panelli, J., Arabian, J., and Baxter, J., concurred.
All further statutory references are to the Penal Code unless otherwise indicated.
The court also imposed a consecutive nine-year determinate sentence based upon (1) the kidnapping conviction, (2) the use-of-a-knife allegation, and (3) the prior felony conviction.
The affidavit in support of the search warrant stated that defendant’s former parole officer, as well as another parole officer, had informed Huntington Beach Police Department detectives that the composite sketch resembled defendant. The affidavit also set forth defendant’s record as a child molester, his interest in the prurient photography of children, and indications that he frequented the Sierra Madre area.
The evidence relating to Dana Crappa was adduced from her testimony at defendant’s first trial. We address below the propriety of the trial court’s admission of Crappa’s prior testimony. (See post, pp. 774-785.)
Certain facts regarding Crappa’s background merit recitation in light of the legal issues raised concerning the admissibility of her testimony. By the time of defendant’s first trial, Crappa had obtained permanent employment as a “firefighter emergency medical technician” for the Lake Arrowhead Fire Department, a position which required applicants to pass written, oral, and physical-agility examinations. Crappa testified she hád received the highest combined score in her group of applicants and was the only female firefighter in the department. Similarly, she had been the only female firefighter employed by the United States Forestry Service at Chantry Flats in June 1979. At that time, Crappa was pursuing a college degree in fire science and had maintained a 4.0 (“A”) grade-point average.
Crappa sustained a debilitating knee injury at Lake Arrowhead in December 1980 which necessitated several surgeries and, at the time of defendant’s second trial in 1986, required her to walk with a cane. Her injury prevented her from performing firefighting work, so Crappa attended nursing school, passing her nursing boards and becoming a registered nurse. At the time of defendant’s second trial, she was studying to obtain a bachelor’s degree to complete her nursing education.
Crappa testified she had considered purchasing a Datsun F10 prior to the above described encounters, and therefore was familiar with that particular model. In describing the blue Datsun F10 she observed on June 20 and June 21, Crappa recalled the chrome luggage rack, tinted windows, “stock” hub caps, and condition of the paint finish. She noted that “FlO’s don’t come stock with a roof rack or with the black[,] tinted[-]out windows, and I have yet to see another car that resembled that particular one."
Crappa testified: “I knew what I had done was wrong. ... I should have went back or stopped the afternoon of the 20th or I should have said something to somebody. ... I couldn’t justify what I had done. ... I began having nightmares. I’d wake up [at] night completely startled in a cold sweat, unable to go back to sleep.... I just woke up about as terrified at night as I did earlier when I was actually there [on June 25]. ... I tried to second guess myself as to if I would have stopped, what would have happened.”
Defendant’s sister, Marie Christine De La Cerda, testified that on July 25,1979, she spoke with her brother at the jail. She said that after he inquired whether the police had found the storage-locker receipt, she entered defendant’s residence, searched her brother’s room for the receipt, retrieved it, and gave it to her mother, Anna Maria German. De La Cerda believed the receipt thereafter was lost.
Julie J. looked considerably younger than her actual age. Defendant’s former parole officer, Dennis McNaught, testified that upon meeting Julie, “I thought it was her little sister... because she was so small and appeared to be maybe 8 years old... .”
At the time of trial, this witness’s name was Lorraine W. Crevling, but to avoid confusion we shall refer to her as Lorraine W., her name in 1979 when the relevant events occurred.
“Evidence Code section 795 sets forth a list of conditions which, if met, permit a trial court to determine that the testimony of a previously hypnotized witness is not rendered inadmissible by “the fact that the witness has previously undergone hypnosis for the purpose of recalling events which are the subject of the witnesses] testimony... .”
Evidence Code section 240, subdivision (a)(3), provides, in pertinent part, that a declarant is unavailable to testify if he or she is “unable to attend or to testify at the hearing because of then existing physical or mental illness or infirmity.”
Evidence Code section 1291, subdivision (a)(2), provides: “Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and • ••[¶]••• [t]he party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.”
Evidence Code section 402 provides, in pertinent part: “(a) When the existence of a preliminary fact is disputed, its existence or nonexistence shall be determined as provided in this article. [¶] (b) The court may hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury.... [¶] (c) A ruling on the admissibility of evidence implies whatever finding of fact is prerequisite thereto; a separate or formal finding is unnecessary unless required by statute.”
In pertinent part, Crappa testified as follows (all questions are by the prosecution, except where otherwise noted):
“Q: Miss Crappa, as I understand it, there are a couple periods in your life that today you are having a difficult time remembering, is that accurate?
“A: Yes, sir.
“Q: Okay. And is one of those times the time period when you worked for the United States Forestry Service up in Chantry Flats?
“A: That’s correct.
“Q: .... Okay. Do you remember testifying about a case that you became involved in as a witness when you were working as a fire fighter at Chantry Flats?
“A: No, sir.
“Q: .... Do you have any recollection at all coming to court and testifying about events that you allegedly witnessed while you were a fire fighter at Chantry Flats?
“A: No, sir.
“Q: And you have had a chance to read testimony that purports to be yours given in a courtroom in Orange County on several days in 1980, is that true?
“A: That’s correct.
“Q: And as you read that testimony, you have no recollection of either testifying or those events, is that your testimony?
“A: That’s correct.
“Q: .... Do you have any recollection at any time in your life of ever being sworn to tell the truth and thereafter intentionally lying?
“A: No, sir, no sir.
“Q: .... Do you have any recollection of ever being interviewed by a police officer about a crime that you allegedly were a witness to or some aspect of it and intentionally lying to a police officer?
“A: No, sir.
“Q: [by the court] Well, I am—I don’t like to interrupt. [(¡[] Do you have any recollection talking to a police officer about this case, period?
“A: No, sir.
“Q: .... [Y]our testimony again here today is that other than reading [prior testimony], you have no recollection concerning the events that you are testifying about there; is that right?
“A: That’s correct.
“Q: All right. At sometime in the past couple of years, have you been to see somebody, a psychiatrist or a psychologist?
“A: Yes, sir.
“Q: .... Have you been told at some point when you were seeing a psychiatrist or a psychologist that you apparently have something in there that you are not ready to deal with, and you won’t be able to remember it until you are ready to deal with it, something along those lines?
“A: Essentially.
“Q: .... [A]s you sit there today, Miss Crappa, you are telling us under oath that you have no recollection of ever being involved in any court activity in connection with anything you witnessed on a road on the way up to Chantry Flats?
“A: That’s correct.
“Q: .... [by the court] Do you recall what your duties—your working up there, any type of activity that you actually did there?
“A: I only recall that I worked there.
“Q: Okay. Do you recall anything about working at Chantry Flats as a fire fighter other than what you told us, other than the fact that you did work there?
“A: No, sir."
The trial court stated: “I observed [Crappa] closely during her testimony ....[¶]I don’t think it is a situation [whereby] she’s refusing [to answer] by choice. ...[¶]I don’t think [Crappa’s unavailability is] a particularly close question ....[¶]I think it’s obvious to the court that in this type of situation that... the jury should have the information available. [¶] There’s been many tape recordings [of police interviews with Crappa], examination at the preliminary hearing plus the trial.... [¶] I’m going to allow [Grappa’s] testimony to be presented via transcripts... .”
«Because there was no claim at trial that compelling Crappa to submit to a medical examination would impinge upon her right of privacy as guaranteed by article I, section 1, of the California Constitution, the trial court’s duty to balance Crappa’s right of privacy against defendant’s right to a fair trial (a point raised by the People during oral argument) is not properly before us. Accordingly, we express no view on this question.
Throughout this opinion, we shall discuss the merits of particular claims, such as this one, even though they are procedurally barred, when we conclude that such discussion may eliminate uncertainties that could lead to time-consuming, but ultimately unavailing, claims alleging ineffective assistance of counsel. (See People v. Mitcham (1992) 1 Cal.4th 1027, 1044, fn. 5 [5 Cal.Rptr.2d 230, 824 P.2d 1277].)
Because we view the trial court’s ruling as correct under any standard of review, we need not and do not consider defendant’s contention, which stems from dicta contained in People v. Louis (1986) 42 Cal.3d 969, 984-989 [232 Cal.Rptr. 110, 728 P.2d 180], that de novo review is appropriate in this context. (Compare People v. Hovey (1988) 44 Cal.3d 543, 563-564 [244 Cal.Rptr. 121, 749 P.2d 776] [citing Louis]; People v. Jackson (1980) 28 Cal.3d 264, 311-312 [168 Cal.Rptr. 603, 618 P.2d 149] [unavailability of witness governed by abuse of discretion standard].)
Additionally, because Crappa professed a total inability to recall relevant events at retrial, and therefore was “unavailable” as a witness (Evid. Code, § 240, subd. (a)(3)), we need not and do not address the question whether Evidence Code sections 1235 and 1291, considered together, establish that a witness’s prior testimony is admissible where the witness claims only a partial inability to recall relevant events. (Compare People v. Hawthorne (1992) 4 Cal.4th 43, 55-59 [14 Cal.Rptr.2d 133]; People v. Price (1991) 1 Cal.4th 324, 415 [3 Cal.Rptr.2d 106, 821 P.2d 610].)
The cross-examination of Crappa at defendant’s first trial consumed over 300 pages of the reporter’s transcript. Crappa also had been cross-examined extensively at the preliminary hearing.
At oral argument, defense counsel sought to distinguish Owens by characterizing Crap-pa’s memory loss as reflecting an asserted “psychological” or “pathological” condition (rather than simply a failure of memory), and urging that this “condition” denied defendant the opportunity to “meaningfully]” confront her. Thus, according to defense counsel, had Crappa simply been unable to recall relevant information, for reasons unrelated to trauma, the introduction of her prior testimony would not have violated the confrontation clause. We do not view this distinction as well founded. Neither Owens nor Green adopts such a constrained interpretation of the confrontation clause, and we likewise decline to do so.
In response to the introduction of Crappa’s prior testimony, the defense played the audio tape recordings of the interviews considered by London. The jury received transcripts of these interviews, prepared by the defense, in order to assist the jurors in evaluating the interviews while the recordings were being played. These transcripts have been included in the record on appeal. We also have reviewed the taped interviews of Dana Crappa played at defendant’s second trial.
Defense counsel argued: “Now, Dana Crappa changed her story quite a bit.... H] If she really saw [what she testified to], if it wasn’t really suggested to her by the people who were interviewing her, and you all heard those taped conversation [mc], I’m not going to try to interpret them for you, except to say that it’s fairly obvious that there was a lot of something going on there.... [¶] You know that [Dana Crappa] was a firefighter. You know that she was a student that was studying police science. [J] Do you think there’s any possibility that she might want to try and become a witness in a case where they don’t have a witness at the crime scene? Do you think she might have tried to work that up? [¶] Do you think she might have allowed herself to be convinced to become that witness and testify in trial under oath, and then realize after that that she committed perjury? ...[][] What did they tell Dana Crappa[?] Remember what she said on one of the tapes. ‘They told me he’s 100 percent guilty.’ ’’ (Defense counsel apparently was referring to one of the police interviews of Crappa conducted prior to defendant’s first trial, and played for the jury, in which Crappa said, “... [G]ne of the guys investigating the case, I talked to him before, and he said that he’s a hundred percent sure this guy is guilty, a hundred percent without any doubt.”)
In pertinent part, Bridget W. testified as follows in response to the prosecutor’s questions:
“Q: ... On the afternoon of June 20th, 1979, had you and Robin discussed her ballet class?
“A: Yes, we did.
“Q: What did she tell you about it?
“A: It was really important for her to be there. She was real excited. She was moving up.
“Q: What do you mean by that?
“A: Moving up, advancing. Moving up into toe shoe.
“Q: Do you know what time it was when Robin left your house... with your bike?
“A: It was about 10 after 3:00.
“Q: Did she say anything about why she had to go at that point?
“A: To make it to her house to get her stuff to make it to ballet class on time.
“Q: Was she worried about being on time already?
“A: Very much.”
Toni E. married shortly before defendant’s trial in 1986. Her name at trial was Toni McNeal. For the sake of consistency, we shall refer to her by her name at the time of the relevant events in 1979.
When questioned whether she recalled the police officer asking her to describe the vehicle, Toni E. responded: “I don’t remember, but reading that, I gather he did. I don’t remember what I said. Now I don’t, but reading that [police report], that’s what I said at the time.” Defendant contends that Toni E.’s response “implied recollection” and that cross-examination should have been allowed to proceed under the prior-inconsistent-statement and past-recollection-recorded exceptions to the hearsay rule. (Evid. Code, §§ 1235, 1237.) We disagree with defendant’s characterization of Toni E.’s testimony.
Elizabeth Kelleher married before defendant’s trial. Her name at trial was Elizabeth Moore.
Evidence Code section 1250, subdivision (a)(1), creates an exception to the hearsay rule applicable when “[t]he evidence is offered to prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action[.]”
The trial court’s errors in allowing Bridget W. to testify that defendant had touched Robin’s leg, and in.allowing Lorraine W. to identify the date she was photographed and relate defendant’s invitation to lunch and his request for her address, were not committed pursuant to Evidence Code section 352, but instead were erroneous under Shirley, supra, 31 Cal.3d 18, and its progeny.
The missing bicycle never was recovered. The former manager of an El Monte charity thrift store that was situated between the murder site and defendant’s residence testified that around the end of June or early July, 1979, he found a bicycle outside the store. He concluded the bicycle was a donation, although he noted it was in better condition than one would expect of a donated bicycle, and subsequently resold it to an unknown third party. The bicycle was a yellow Schwinn 10-speed with the handlebars turned up.
In light of the foregoing discussion, we reject defendant’s arguments that the information that led the police to Seattle was the product of unlawful monitoring of a jailhouse conversation between defendant and his sister, and that defense counsel’s failure to object to the police officer’s observation of the storage locker receipt constituted ineffective assistance of counsel requiring reversal. In our view, these arguments are totally without merit.
Because we uphold the validity of the police search of defendant’s residence based upon the warrant, we need not and do not reach defendant’s alternate contention that his mother’s consent to search “the whole house” was invalid with respect to the nightstand in defendant’s bedroom.
In pertinent part, section 190.2 provided at the time of the offense:
“(a) The penalty for a defendant found guilty of murder in the first degree shall be death or confinement in state prison for a term of life without the possibility of parole in any case in which one or more of the following special circumstances has been [found to be true]:
“(17) The murder was committed while the defendant was engaged in or was an accomplice in the commission of, attempted commission of, or the immediate flight after committing or attempting to commit the following felonies:
“(ii) Kidnapping in violation of Sections 207 and 209.”
A11 CALJIC references are to California Jury Instructions, Criminal (4th ed.), unless otherwise noted.
In reviewing proposed jury instructions with counsel outside the presence of the jury, the trial court twice inquired specifically whether defendant sought instruction pursuant to CALJIC No. 4.50, and on each occasion received a negative response from defense counsel. Because we conclude that the giving of such an instruction was not required sua sponte, we have no occasion to determine whether defendant’s contention would, in any event, be barred under the invited-error doctrine.
CALJIC No. 2.23 provided: “The fact that a witness had been convicted of a felony, if such be a fact, may be considered by you only for the purpose of determining the credibility of that witness. The fact of such a conviction does not necessarily destroy or impair the witness’[s] credibility. It is one of the circumstances that you may take into consideration in weighing the testimony of such a witness.”
Subsequent to the present trial, the Legislature enacted section 1127a, subdivision (b), prescribing that upon the request of a party, the trial court shall give a somewhat more detailed instruction regarding the testimony of an “in-custody informant.” That statute is inapplicable here.
The trial court recognized defendant’s postverdict challenge to the defense strategy as an issue addressing the effectiveness of his counsel. The prosecutor observed that defendant’s proper recourse was to file a petition for writ of habeas corpus. In February 1989, while the present appeal was pending in this court, defendant filed a petition alleging ineffective assistance of counsel. On September 30, 1992, we denied that petition on the merits.
KENNARD, J.
I concur in the judgment. I disagree, however, with the majority’s reasoning and conclusions on two issues.
I.
The trial court ruled that because prosecution witness Dana Crappa was “unable ... to testify... because of then existing... mental illness or infirmity” (Evid. Code, § 240, subd. (a)(3)), she was “unavailable” to testify and therefore the prosecution could introduce transcripts of her testimony from an earlier trial in this case (Evid. Code, § 1291). In upholding the trial court’s ruling, the majority relies solely on Crappa’s testimony at a hearing that was held outside the jury’s presence to determine whether she should be declared unavailable. (Maj. opn., ante, at p. 780.)
In my view, however, Crappa’s testimony was insufficient to support the trial court’s finding that she was an “unavailable” witness. At the unavailability hearing, Crappa testified she could not remember anything connected with the case. This testimony shows only that Crappa’s memory was deficient. Standing alone, this testimony is insufficient to support a conclusion that Crappa suffered from a “mental illness or infirmity” under Evidence Code section 240, subdivision (a)(3).
The trial court, however, also heard testimony from Dr. Anthony Staiti, a psychiatrist at Kaiser Hospital, that he had seen Crappa on three occasions in May and June 1985, a year before the trial. Based on these visits and on reports of another psychiatrist who had examined Crappa, Dr. Staiti developed a “working diagnosis” that Crappa was suffering from “post traumatic stress disorder chronic delayed,” a disorder that may cause amnesia. Not surprisingly, in view of her professed loss of memory, Crappa did not explicitly describe to Dr. Staiti what it was that she could not remember. She did tell Dr. Staiti, however, that it involved a murder committed in 1979. That was the year of the killing in this case.
Based on the combined testimony of Crappa and Dr. Staiti, the trial court could reasonably conclude that Crappa was “unavailable” to testify because of a “mental illness or infirmity,” and that the prosecution could therefore use her prior recorded testimony against defendant.
II.
Unlike the majority, I am not convinced that the trial court acted within its discretion in excluding under Evidence Code section 352 the expert testimony of Dr. Ray London, a psychologist, that the tape recordings of the police interviews of prosecution witness Dana Crappa revealed the use of suggestive and manipulative psychological techniques that could have influenced her testimony. (Maj. opn., ante, at pp. 787-789.) Here, the trial court ruled that Crappa was an “unavailable” witness because of “mental illness or infirmity” (Evid. Code, § 240, subd. (a)(3)). Moreover, the tape recordings of the police interviews of Crappa show that long before she lost all memory of the events relevant to this case, she had trouble remembering precisely what she had observed at the murder scene, but that police questioning enabled her to reconstruct those events. Thus, in my view, Dr. London’s evidence was pertinent to the jury’s evaluation of the believability of Crappa’s former recorded testimony that placed defendant at the murder scene.
The trial court’s exclusion of Dr. London’s testimony did not prejudice defendant, however. The jury had ample opportunity to determine whether the police interviewers had indeed influenced Crappa’s testimony: the jury heard the taped interviews, and, in closing argument, defense counsel highlighted specific police comments in those tapes that might have been suggestive.
MOSK, J.
I dissent.
When this case was before us after defendant’s original trial, I would have affirmed the judgment because there was no “miscarriage of justice” within the meaning of article VI, section 13 of the California Constitution. (People v. Alcala (1984) 36 Cal.3d 604, 637 [205 Cal.Rptr. 775, 685 P.2d 1126] (dis. opn. of Mosk, J.).)
Since the matter has returned following retrial, I am compelled to conclude to the contrary. I would reverse the judgment because now there has indeed been a miscarriage of justice. Through several erroneous evidentiary rulings, the trial court improperly disturbed the scales on which guilt or innocence was to be weighed, allowing the People to introduce inadmissible evidence for inculpation and barring defendant from introducing admissible evidence for exculpation. As a result, it denied defendant the fundamental fairness guaranteed, by the due process clause of the Fourteenth Amendment to the United States Constitution.
In the analysis that follows, I shall focus on the four most significant evidentiary rulings.
I
First—and most egregious—the trial judge, on the People’s motion outside the presence of the jury, erroneously allowed the prosecution to introduce into evidence testimony that Dana Crappa had given at defendant’s original trial. That testimony was crucial, inasmuch as it alone placed defendant at the scene of the murder and did so by eyewitness observation. But it also contained “material inconsistencies.” (People v. Alcala, supra, 36 Cal.3d at p. 636.) Moreover, it presented itself as only one of several accounts Crappa had related, none of which was fully reconcilable with any other. Further, it was given in a highly unusual manner, with “substantial delays between the question and an answer, sometimes running perhaps close to a minute, perhaps even longer.” Finally, it originated in questionable interrogation by the police. Indeed, at the first trial “[d]efense and prosecution experts gave conflicting views on whether... Crappa had been ‘brainwashed’ or otherwise led, while in a suggestible state, to false memories.” (People v. Alcala, supra, at pp. 620-621.)
Crappa’s prior testimony was obviously hearsay. It constituted “evidence of... statement[s] that [were] made other than by a witness while testifying at the hearing and that [were] offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a).) As hearsay, it was inadmissible. (Id., § 1200, subd. (b).)
The trial judge, however, did not so rule. He determined that Crappa’s prior testimony was not inadmissible hearsay because Crappa was assertedly “unavailable as a witness” and defendant was a “party” at his original trial and “had the right and opportunity to cross-examine [her] with an interest and motive similar to that which he ha[d]” on retrial. (Evid. Code, § 1291, subd. (a).) The judge found that Crappa was “unavailable” on the ground that she was allegedly “unable ... to testify... because of then existing... mental... infirmity.” (Id., § 240, subd. (a)(3).)
The trial judge’s ruling cannot survive scrutiny. The critical finding of unavailability is invalid. It matters not what standard of review is applied. The reason is plain. The finding is fictive, and not real. The majority miss this dispositive fact. As a result, their analysis fails.
In making the People’s motion immediately before Crappa was scheduled to take the stand, the prosecutor represented that “[s]he has... told me, in response to my direct question essentially, I have asked her, is it a situation where you can’t remember, or you don’t want to remember. And essentially it seems to be a situation where she just doesn’t want to remember so she is going to say she doesn’t remember. But it’s not a situation where she can’t remember.”
The trial judge chose to let the prosecutor’s representation go past as though it had never been made. Presumably, he did so because he was disinclined to take whatever “reasonable steps” would have been required “to induce [Crappa] to testify” if he found that she refused to do so. (People v. Sul (1981) 122 Cal.App.3d 355, 364-365 [175 Cal.Rptr. 893].)
I do not overlook the evidence introduced at the hearing. The People, of course, bore the burden to prove Crappa’s unavailability (People v. Stritzinger (1983) 34 Cal.3d 505, 516 [194 Cal.Rptr. 431, 668 P.2d 738]) by a preponderance of the evidence (Evid. Code, § 115, 2d par.). The evidence, however, was insufficient.
I shall assume for argument’s sake only that this case is not subject to the general rule, which requires “expert testimony on the witness’s present condition... .” (People v. Stritzinger, supra, 34 Cal.3d at p. 517.) Nevertheless, I do note that it certainly does not come within the only recognized exception, which covers refusal to testify out of fear. (See id. at pp. 518-519, discussing People v. Rojas (1975) 15 Cal.3d 540, 547-552 [125 Cal.Rptr. 357, 542 P.2d 229, 92 A.L.R.3d 1127].)
Be that as it may, there was not sufficient evidence that Crappa was “unable ... to testify... because of then existing... mental... infirmity.” (Evid. Code, § 240, subd. (a)(3), italics added.) At best, Crappa and Dr. Anthony Staiti, a psychiatrist she had briefly consulted about a year earlier, made statements that might support an inference that she may have suffered from some “mental infirmity” of some sort in the past. That is all. To be sure, the trial judge stated that Crappa “seemed to wince and blink” under questioning. But he could reasonably have deduced little from such an observation. He may have been an experienced jurist. He was not a diagnostician.
The trial judge was apparently not troubled by the evidentiary void. He declared in the midst of the hearing that “I am never hampered by the law... .” Events proved him right. He had determined the course he would follow. He also declared: “Basically, what we are going to do is put [Crappa] on [before the jury], let her have her say-so, give it a shot, and get into the reading [of her prior testimony].” Events proved him right here too.
Indeed, the trial judge apparently sought to maintain the evidentiary void. That is the only reasonable explanation for his decision to deny a motion defendant made for an independent psychiatric examination of Crappa. I recognize that, in refusing the request, he declared that “I don’t think [such an examination] would add or detract.” Of course he did not. As noted, he had already determined the course he would follow. Earlier, he had stated that he was not “hampered” by the law. Here, he implied that he would not be “hampered” by the facts. The majority find the denial of the motion proper. I disagree. An independent psychiatric examination is indeed appropriate when the asserted “mental infirmity” is only “apparent”—as the majority themselves essentially concede to be the case here. Further, defendant sought the examination in question to determine whether Crappa was in fact suffering from a “mental infirmity,” and not to simply to impeach her credibility.
II
Second—and only slightly less egregious—the trial judge, denying a motion defendant made outside the presence of the jury, erroneously prohibited Dr. Ray William London, a psychologist, from giving any testimony whatsoever on behalf of the defense. “That gentleman,” declared the trial judge, “ain’t going to testify in this case... .” Dr. London’s testimony would have included expert opinion to the effect that Grappa had been led to false memories by suggestive police interrogation incorporating sophisticated psychological techniques. At defendant’s original trial, testimony of this sort was given. On retrial, Dr. London was a crucial defense witness because Grappa was a crucial prosecution witness.
Dr. London’s proposed testimony was plainly admissible.
Manifestly, the testimony was relevant. It had a strong “tendency in reason to... disprove [a] disputed fact that [was] of consequence to the determination of the action,” specifically, the credibility of Grappa. (Evid. Code, § 210.)
Moreover, the testimony was a proper subject of expert opinion. First, it was “[r]elated to a subject that is sufficiently beyond common experience” as to “assist the trier of fact.” (Evid. Code, § 801, subd. (a).) What the record reveals is not “stage hypnotism,” with theatrical display by a performer and humorous antics by a member of his audience. Rather, there was suggestive police interrogation incorporating sophisticated psychological techniques— techniques designed not to call attention to themselves. Jurors might be familiar with the former. They would have little acquaintance, however, with the latter. Second, the testimony was “[b]ased on matter... perceived by or personally known to the witness or made known to him at or before the hearing,... that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates... .” (Id., § 801, subd. (b).) Dr. London reviewed materials including transcripts and audio-tape recordings of Grappa’s interrogation by the police and transcripts of her prior testimony.
Finally, the testimony’s “probative value,” which was high, was not “substantially outweighed by the probability that its admission” would “necessitate undue consumption of time" or “create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.)
Here too, the trial judge ruled otherwise. He determined that Dr. London’s proposed testimony was not a proper subject of expert opinion. He found Dr. London’s opinion too “speculative,” essentially because the psychologist had not personally attended the pertinent police interrogation sessions involving Crappa. He also found Dr. London’s opinion substantially more prejudicial than probative because it “could give the jury no guidance but confusion,” “would confound, screw up, do nothing for this case as far as either side getting a fair trial,” and would entail “undue consumption of time.”
Here too, the trial judge’s ruling fails. More than a year earlier, in People v. McDonald (1984) 37 Cal.3d 351, 377 [208 Cal.Rptr. 236, 690 P.2d 709, 46 A.L.R.4th 1011], we had expressly held: “When”—as here—“an eyewitness identification of the defendant is a key element of the prosecution’s case but is not substantially corroborated by evidence giving it independent reliability, and the defendant offers qualified expert testimony on specific psychological factors shown by the record that could have affected the accuracy of the identification but are not likely to be fully known to or understood by the jury, it will ordinarily be error to exclude that testimony.” This case is no exception. The “judicial policy disfavoring attempts to impeach witnesses by means of psychiatric testimony” (maj. opn., ante, at p. 781), invoked by the majority to support the ruling, proves to be inapplicable. It generally opposes challenges to the veracity of a person who testifies. But it does not bar attacks on the accuracy of his testimony.
Contrary to the majority’s view, the trial judge’s determination that Dr. London’s proposed testimony was substantially more prejudicial than probative is unsound. At the hearing on the motion, he was able to prevent any confusion or delay that might have been occasioned by the psychologist’s opinion. He would surely have been able to do the same before the jury. Without doubt, similar testimony given at defendant’s original trial was not “unduly prejudicial” in any way. Dr. London’s would have had no untoward effect.
Again contrary to the majority’s view, the trial judge’s determination that Dr. London’s proposed testimony was not a proper subject of expert opinion is unsound as well. Indeed, the judge’s finding that the psychologist’s opinion was too “speculative” essentially because the psychologist had not personally attended the pertinent police interrogation sessions involving Crappa is practically ludicrous. As stated, Dr. London had reviewed materials including transcripts and audio-tape recordings of Crappa’s interrogation by the police and transcripts of her prior testimony. The judge’s implication is unsupported: there is simply no requirement that an expert must have personal perception or knowledge of all the matters on which his opinion is based. In any event, any such “requirement” would have to be waived in this case. When Crappa was interrogated by the police, there was no defense expert; if there had been, he would obviously not have been welcomed. Subsequently, as the prosecutor acknowledged, Crappa refused to talk to the defense: “she always said she wouldn’t talk to them... .”
Ill
Third, the trial judge, again denying a motion defendant made outside the presence of the jury, erroneously prohibited Tim Fallen from giving any testimony whatsoever on behalf of the defense. Fallen would have briefly and simply testified to the effect that he observed Robin Samsoe the day after Crappa assertedly saw the girl and defendant at the scene of the murder near a remote mountain ravine. At defendant’s original trial, Fallen had given substantially similar testimony. There, when he was shown a photograph of Samsoe on direct examination by defense counsel, he positively identified the subject as the girl he had seen. But when he was shown a photograph of another girl on cross-examination by the prosecutor, he made the same positive identification. On retrial, Fallen was a crucial defense witness because Crappa was a crucial prosecution witness.
Fallen’s proposed testimony was plainly admissible. It was relevant, having as it did a strong tendency to disprove a disputed, material fact, viz., the credibility of Crappa. Further, it was not “unduly prejudicial”: if credited, it would point to defendant’s innocence; if not credited, it would have no effect.
Again, the trial judge ruled otherwise. He determined in substance that Fallen’s proposed testimony was irrelevant because it was “not going to add any probative value.” He also determined that, even if it were relevant, it was “unduly prejudicial” because of the “danger of confusing the jury” and the risk of “undue consumption of time.”
Again, the trial judge’s ruling fails. The majority themselves concede the error. I shall not belabor the point. Suffice it to say that the brief and simple testimony that Fallen would have given on what was manifestly a critical issue was altogether relevant and not at all “unduly prejudicial.” That he would have been subject to impeachment because of his positive identification of the two photographs is of no consequence for present purposes. In passing, however, I note that the two girls, as pictured, were not dissimilar in appearance.
IV
Fourth, the trial judge, yet again denying a motion defendant made outside the presence of the jury, erroneously prohibited Gerald Crawford and Raul Vasquez from giving any testimony whatsoever on behalf of the defense. Crawford and Vasquez would have testified to the following effect: Crawford was a police officer and Vasquez was a convicted murderer; about 11 p.m., two days after Crappa assertedly saw Samsoe and defendant at the scene of the murder in a remote mountain ravine, Crawford found Vasquez “acting suspiciously” in that very area. At defendant’s original trial, Crawford and Vasquez had given substantially similar testimony. On retrial, Crawford and Vasquez were crucial defense witnesses because Crappa was a crucial prosecution witness. They were also crucial defense witnesses in their own right because they offered exculpatory evidence.
The proposed testimony by Crawford and Vasquez was plainly admissible. It was relevant: it had a strong tendency both to prove one disputed, material fact—the innocence of defendant—and to disprove another disputed, material fact—the credibility of Crappa. Further, it was not “unduly prejudicial”: if credited, it would point clearly to defendant’s innocence; if not credited, it would have no effect.
Yet again, the trial judge ruled otherwise. He determined in substance that the proposed testimony by Crawford and Vasquez was irrelevant because the “probative value of this type of evidence is zero... .” He also determined that, even if it were relevant, it was unduly prejudicial because it “would do nothing but confuse the jury... .”
Yet again, the trial judge’s ruling fails.
In People v. Hall (1986) 41 Cal.3d 826 [226 Cal.Rptr. 112, 718 P.2d 99], we held that evidence of third party culpability—like the proposed testimony by Crawford and Vasquez—is admissible if relevant. (Id. at p. 834.) Relevance requires “direct or circumstantial evidence linking the third person to the actual perpetration of the crime”; “evidence of mere motive or opportunity..., without more, will not suffice... .” (Id. at p. 833.) The proposed testimony linked Vasquez to the crime itself and went beyond mere motive or opportunity. Vasquez was found near the scene of the murder in a remote mountain ravine; he was there about 11 p.m. on a day not long after the crime was apparently committed; and, significantly, he was “acting suspiciously.” The trial judge missed the point entirely. How else to explain his statement that the “probative value of this type of evidence is zero”? For their part, the majority fail to discern the critical importance of Vasquez’s suspicious activity.
In Hall, we also held that evidence of third party culpability is not excludable unless “unduly prejudicial.” (41 Cal.3d at p. 834.) Contrary to the trial judge’s conclusion, there was simply nothing confusing about the proposed testimony.
V
In sum, through the four erroneous evidentiary rulings discussed above, among others, the trial court improperly disturbed the scales of justice and thereby denied defendant the fundamental fairness guaranteed by the due process clause of the Fourteenth Amendment. It is incomprehensible that the majority can conclude “defendant received a fair and untainted trial” (maj. opn., ante, at p. 810) and on that basis send him on his way to death in the gas chamber.
Accordingly, I would reverse the judgment.
Appellant’s petition for a rehearing was denied March 10, 1993, and the opinion was modified to read as printed above. Mosk, J., was of the opinion that the petition should be granted.
Rodney J. ALCALA, Petitioner-Appellee, v. Jeanne S. WOODFORD, Warden, of the California State Prison at San Quentin, Respondent-Appellant. Rodney J. Alcala, Petitioner-Appellant, v. Jeanne S. Woodford, Warden, of the California State Prison at San Quentin, Respondent-Appellee.
Nos. 01-99005, 01-99006.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Feb. 6, 2003.
Filed June 27, 2003.
Adrianne S. Denault, Deputy Attorney General of the State of CA, Office of the Attorney General, San Diego, CA, for the respondent-appellant/cross-appellee.
Jerry L. Newton, Carmel, CA, Norman D. James, Redondo Beach, CA, for the petitioner-appellee/cross-appellant.
Before D.W. NELSON, WARDLAW and FISHER, Circuit Judges.
OPINION
D.W. NELSON, Senior Circuit Judge.
Jeanne Woodford, Warden of California’s San Quentin State Prison (“California”), appeals the district court’s conditional grant of habeas relief to petitioner Rodney J. Alcala. Alcala was sentenced to death following his conviction for first-degree murder. He is currently in prison.
California argues that the district court (1) incorrectly found that Alcala’s trial counsel had been constitutionally ineffective in presenting Alcala’s alibi, (2) improperly found that the state trial court committed constitutional error in excluding the testimony of defense witness Dr. Ray London, (3) erred in concluding that the state trial court’s denial of Alcala’s request for an independent medical examination of prosecution witness Dana Crappa violated the Sixth Amendment, and (4) erroneously aggregated non-constitutional errors in its cumulative error analysis.
Alcala cross-appeals, challenging the district court’s conclusions that (1) Alcala’s constitutional rights were not violated when the state trial court admitted Crap-pa’s prior testimony; (2) the exclusion of defense witnesses Tim Fallen, Gerald Crawford, and Raul Vasquez did not deny Alcala a fair trial; (3) the admission of the two sets of knives seized from Alcala’s home did not deny him a fair trial; (4) trial counsel did not render ineffective assistance in failing to investigate and rebut crime scene evidence, failing to investigate and present evidence of the value of a pair of earrings found in Alcala’s possession, and calling David Vogel as a witness without preparation; and (5) these failures to investigate were not constitutional deficiencies that could be included in the cumulative error analysis.
We conclude that Alcala’s trial suffered from multiple constitutional errors that had a substantial and injurious effect on the jury’s determination of guilt. Accordingly, we affirm the district court’s conditional grant of Alcala’s habeas petition.
Factual and Procedural Background
This case concerns the 1979 death of twelve-year-old Robin Samsoe after her sudden disappearance in the area of Huntington Beach, California. Samsoe left the Huntington Beach apartment of her friend, Bridget W., just after 3:00 p.m. on June 20, 1979, to attend a ballet lesson. She never arrived at her dance class and none of her family or friends saw her alive again. Police discovered Samsoe’s partially decomposed body in a remote mountain ravine about fifty miles away from her home almost two weeks after she disappeared. The state of her remains prevented the coroner from determining the cause of death or whether Samsoe suffered sexual molestation.
Police also found Samsoe’s beach towel within a mile of where authorities recovered her remains. A criminalist testified that blood stains on the towel indicated “wipe marks,” suggesting that someone had used the towel to wipe clean a bloody instrument such as a straight-edged weapon. Detectives also uncovered a knife caked with mud and covered in debris in the same general location as Samsoe’s body; the criminalist found a very small spot of human blood on the knife. The test for human blood consumed the entire sample of blood, precluding more specific blood typing.
Various pieces of circumstantial evidence prompted police to arrest Alcala on July 24, 1979, a little more than one month after Samsoe’s disappearance. Alcala was convicted of first degree murder and sentenced to death. The California Supreme Court reversed this conviction based on the erroneous admission of Alcala’s prior offenses and granted Alcala a new trial. People v. Alcala (“Alcala I”), 36 Cal.3d 604, 205 Cal.Rptr. 775, 685 P.2d 1126 (1984).
In 1986, nearly seven years after Sam-soe disappeared, California retried Alcala before a different judge. It is this trial that is at issue before us. Again a jury convicted Alcala of first degree murder; he again was sentenced to death. The Supreme Court of California affirmed his conviction. People v. Alcala (“Alcala II”), 4 Cal.4th 742, 15 Cal.Rptr.2d 432, 842 P.2d 1192 (1992), cert. denied, 510 U.S. 877, 114 S.Ct. 215, 126 L.Ed.2d 171 (1993).
The prosecutor relied on various forms of circumstantial evidence in securing both of Alcala’s convictions; no physical evidence directly connected him to Samsoe’s death. This circumstantial evidence that Alcala murdered Samsoe included various eyewitness identifications. Two young women, Lorraine W. and Patty Elmen-dorf, testified that on the afternoon of June 20, 1979, a man approached them at Sunset Beach, a few miles north of Huntington Beach, and asked if he could photograph them for a class contest. Lorraine W. consented. Police later discovered a slide photo of Lorraine W. in a Seattle storage locker that Alcala rented a few weeks after Sam-soe disappeared. At trial, Patty E. identified Alcala as the Sunset Beach photographer.
Samsoe and Bridget W. also spent June 20, 1979, at the beach. They were at Huntington Beach at approximately 2:00 or 3:00 that afternoon when a man asked if he could take their pictures for a school contest. They agreed, and he took one photo each of Samsoe and Bridget W. and one of the two of them together. As the man photographed them, an adult neighbor, Jackelyn Young, mistook Samsoe for her niece and approached the group. The man hurried away as Young got close. Bridget W. and Young helped police prepare a composite sketch, which, according to the district court, bore a “moderate resemblance to Alcala.” Bridget W. never identified Alcala as the man at Huntington Beach. Although Young could not identify Alcala in a photographic lineup just one week after Sam-soe’s disappearance, she unhesitatingly identified him as the Huntington Beach photographer at trial seven years later. She testified that he was wearing a striped, collarless shirt, and at the first trial she also had stated, in addition to this description, that it was a long-sleeved shirt.
In addition, Richard Sillett, a city surveyor, contacted police after Samsoe’s disappearance. He informed them that he, too, had been at Huntington Beach on June 20, 1979. After Alcala was arrested, Sillett identified him as the man he saw taking photographs there that day. Before this identification, Sillett had seen the composite sketch created with the help of Bridget W. and Young, as well as pictures of Alcala in the local media and in a police interview. He testified that he was certain that the man had been wearing a blue Hawaiian shirt and had the impression that the man had on cut-off shorts and sandals.
Two other young women, Joanne M. and Toni E., testified at trial that they were at Huntington Beach the day before Samsoe’s disappearance, when a man sought their permission to take photographs of them for an alleged bikini-of-the-month contest. The man left when the young women declined to give him their phone numbers. Both Murch-land and Toni E. told police that the composite drawing of the suspect in Samsoe’s disappearance depicted the man who took their pictures. Only Joanne M. selected Alcala’s photograph out of a photo lineup. At trial, however, both women positively identified Alcala as the man from the beach. Neither woman could remember what Alcala’s car looked like when they testified at the second trial. A police officer who interviewed the women during the investigation testified that Joanne M. described Alcala’s car as “an older red car” and Toni E. said it was “an older bigger car,” unlike Alcala’s one-year-old blue Dat-sun F-10.
The prosecution also introduced evidence that Alcala straightened his hair three days after Samsoe’s disappearance, cut his hair a few days after that, and planned to move away from the Southern California area. In defense, Alcala presented evidence that his girlfriend had been pressuring him to change his hairstyle consistently for about a month before he straightened his hair. He also offered testimony that he had purchased the necessary products for straightening his hair before Samsoe disappeared.
In the Seattle storage locker that Alcala rented after Samsoe disappeared, police found, in addition to the slide photo of Lorraine W., a pair of gold-ball earrings that Samsoe’s mother testified belonged to her. The defense rebutted with evidence that Alcala usually wore one earring that a coworker identified as “exactly like” the ones police found in the locker.
Also at trial, jailhouse informant Freddie Williams testified that Alcala claimed to have kidnapped and killed Samsoe. The defense attempted to rebut this contention with the testimony of David Vogel, who also had been in jail with Williams. Vogel testified that Williams was desperate to testify against someone — anyone—in order to secure a deal with the prosecutor. Vo-gel significantly undermined his own credibility, however, when he admitted that he, too, once had told police that Alcala confessed to kidnapping and murdering Sam-soe.
The testimony of prosecution witness Dana Crappa proved most damaging to Alcala’s case. Crappa, a twenty-year-old forest service worker, met with the authorities twelve times before testifying at Alca-la’s first trial. During this time period, her knowledge about the crime evolved from volunteering nothing at all about the murder to placing Alcala at the crime scene with Samsoe, visiting the decomposing body twice at night, and “interacting” with the corpse twice before the police discovered the remains.
At Alcala’s second trial, Crappa testified that she did not recall the kidnapping, her visits to the crime scene and Samsoe’s body, or even testifying against Alcala at his first trial. The trial court denied Alca-la’s motion for a court-appointed, independent psychiatric evaluation of Crappa, found Crappa unavailable as a witness, and allowed the prosecutor to read Crappa’s prior testimony into the record. The trial court then refused to allow Alcala to put on Dr. Ray London, who would have testified that Crappa’s knowledge of the murder may have been the product of suggestive interview techniques.
After his second conviction and death sentence, Alcala unsuccessfully pursued direct appeals and state post-conviction remedies. In 1994, Alcala sought federal habeas corpus relief. The district court conducted an evidentiary hearing on his claims, and in 2001 conditionally granted his petition, issuing a writ ordering California to release him or grant him a new trial.
Standard of Review
Because Alcala filed his federal ha-beas petition in 1994, the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) does not apply to his petition. See Lindh v. Murphy, 521 U.S. 320, 327, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997) (holding that in general AEDPA applies only to habeas petitions filed after the statute’s effective date of April 24, 1996, and noting that AEDPA’s special procedures for 28 U.S.C. § 2254 petitions in capital cases apply also to petitions pending on April 24, 1996). We review de novo the district court’s decision to grant Alca-la’s 28 U.S.C. § 2254 habeas petition. Benn v. Lambert, 283 F.3d 1040, 1051 (9th Cir.2002).
We stated the standard of review for ineffective assistance of counsel and for district and state court findings of fact in the pre-AEDPA case Silva v. Woodford, 279 F.3d 825 (9th Cir.2002):
[C]laims alleging ineffective assistance of counsel are mixed questions of law and fact and are reviewed de novo. To the extent it is necessary to review findings of fact made in the district court, the clearly erroneous standard applies. Our review for clear error is significantly deferential, in that we must accept the district court’s factual findings absent a definite and firm conviction that a mistake has been committed.
Although less deference to state court factual findings is required under the pre-AEDPA law which governs this case, such factual findings are nonetheless entitled to a presumption of correctness unless they are not fairly supported by the record.
Id. at 835 (citations and internal quotation marks omitted). We may affirm the decision to grant a petition “on any ground supported by the record, even if it differs from the rationale of the district court.” Paradis v. Arave, 240 F.3d 1169, 1175-76 (9th Cir.2001).
Discussion
I. Alcala’s Trial Counsel’s Presentation of the Knott’s Berry Farm Alibi
The district court found merit in Alcala’s claim that his counsel provided ineffective assistance in failing to present an alibi defense adequately, determining that this error both prejudiced Alcala and should be included in the cumulative error analysis. To show ineffective assistance, Alcala first “must show that counsel’s performance was deficient.... Second, [he] must show that the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Alcala must prove all facts underlying his claims of ineffective assistance by a preponderance of the evidence. See, e.g., McKenzie v. McCormick, 27 F.3d 1415, 1418-19 (9th Cir.1994). We agree that Alcala has met his burden and that deficiency and prejudice are both present here.
A Facts
Alcala’s trial counsel attempted to show that, on the afternoon of June 20, 1979, Alcala was seeking freelance photography work at Knott’s Berry Farm, a theme park in Buena Park, California, and therefore could not have been in Huntington Beach at that time. Trial counsel presented the testimony of four witnesses, all employees of Knott’s Berry Farm, who established only that Alcala had visited their office sometime in the afternoon of a day in late June, around the middle of the week. One of these witnesses, Carolyn Carey, testified that she would have seen anyone who entered the office, and that she did not see Alcala, but that on a day that she “assume[d]” was June 20 she and other managers left Knott’s Berry Farm between 2:30 and 3:30 p.m. for a tour of other local theme parks.
In closing argument, the prosecutor made every effort to highlight the alibi witnesses’ failure to establish the time or date of the Knott’s Berry Farm visit:
[Defense counsel] told you that people put him, the defendant, at Knott’s Berry Farm on June 20th of 1979. And it absolutely is not true....
I kept waiting. We had four people.... [T]hree live people, and one stipulated witness where we agreed what she would say about Knott’s Berry Farm....
But recall what the testimony was? Four people came in here and talked about Knott’s Berry Farm. People who have worked there. And counsel wrote it up there on his chart as a proven fact.
The defendant was at Knott’s Berry Farm, I think, at 3:15 to 3:45, on the afternoon of June 20th, 1979. He wrote that up as if: Hey, that’s proven, four people. Terry McDowell was here in person, Robin Humphrey was a stipulation, Joanne Sutch was here in person, Carolyn Carey was here in person.
Carolyn Carey and Joanne Sutch add zero to the alibi....
They never saw Rodney Alcala in their life at anytime before they came to court....
I am left scratching my head: What the heck are they calling them as defense witnesses for? They don’t know anything about this case. They never saw this man before.
Robin Humphrey, who wasn’t here, but again we stipulated to what she would say — -she worked at Knott’s Berry Farm.
Sometime during the week of June 20th, which is the 18th, 19th, 20th, 21st, and 22nd, sometime during that week, she saw somebody who looked something like the defendant. No time of day, no date....
The last one, Terry McDowell. And I think she’s the one counsel said puts him there.
She said he was there — she’s pretty sure this was the guy, and he was there sometime during the week.
Now, what kind of alibi is that? That he was at Knott’s Berry Farm? They are assuming that that’s been proven....
* * *
There’s nothing. There’s not a doggone thing in terms of alibi at Knott’s Berry Farm....
And those are the only four people who came in here and told you anything about Knott’s Berry Farm. And they don’t help him a bit.
There’s no evidence that he was at Knott’s Berry Farm on June 20th, 1979. There is zero evidence of that.
The California Supreme Court also noted the lack of a specific date and time for the alibi:
[Alcala] presented an alibi defense, attempting to establish that he was at Knott’s Berry Farm in Buena Park during the early to midafternoon of Robin’s disappearance, seeking employment as a photographer .... [S]everal employees of Knott’s Berry Farm testified that they remembered seeing [Alcala] at the park near the date of Robin’s disappearance, although none could testify specifically to having seen him there on June 20.
Alcala II, 15 Cal.Rptr.2d 432, 842 P.2d at 1201 (emphasis added). We doubt that the alibi helped Alcala’s case.
Alcala’s counsel did in fact have access to evidence of the date and time, which would have placed Alcala at Knott’s Berry Farm on the afternoon of June 20, 1979. At the evidentiary hearing before the district court, Alcala introduced the statements of Tina Dodwell, another Knott’s employee, and various business records in Carey’s possession. Dodwell told police that Alcala arrived at her office in Knott’s Berry Farm on the day of the managers’ tour around 2:30 or 3:00 p.m. and that the tour departed around 3:00 or 3:30 p.m. She gave the same information to a defense investigator, who tape-recorded the interview with her consent. After the interview, she called the investigator and stated that Alcala might have been there at 1:30 p.m. Carey’s records established that the managers’ tour occurred on June 20, sometime after 2:10 p.m. The district court found that the failure to introduce this evidence constituted ineffective assistance of counsel.
B. Deficient Performance
Alcala’s trial counsel’s presentation of the alibi was plainly deficient; Alcala has “show[n] that counsel’s representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. Even when we “indulge a strong presumption that counsel’s conduct. falls within the wide range of reasonable professional assistance,” we conclude that Alcala has “overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id. at 689, 104 S.Ct. 2052 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)).
Trial counsel made a sound strategic choice to present an alibi defense, but nonetheless failed in his duty to present that defense reasonably and competently. The district court found that Dodwell’s testimony and Carey’s records would have been far more helpful than the testimony of the alibi witnesses who did testify. This finding is not clearly erroneous, and it compels the conclusion that a competent attorney would have presented this evidence unless the attorney was unaware of its existence or had a reasonable strategic reason for not doing so.
We recognize that “[f]ew decisions a lawyer makes draw so heavily on professional judgment as whether or not to proffer a witness at trial,” Lord v. Wood, 184 F.3d 1083, 1095 (9th Cir.1999), but trial counsel here offered no strategic reason for failing to call Dodwell or to present Carey’s records. The record shows that trial counsel identified Dodwell as a trial witness and intended to call her. At the evidentiary hearing, he reaffirmed that “we fully intended to call her,” but could not recall why she was not called. The record also discloses that Carey told a defense investigator that her personal calendar, one of the documents submitted at the evidentiary hearing, might be of use in establishing the date of the managers’ tour at Knott’s Berry Farm. Although trial counsel’s lack of recollection as to why he did not present this evidence does not, in and of itself, rebut the presumption that counsel acted reasonably, see Harris v. Pulley, 885 F.2d 1354, 1368 (9th Cir.1988), neither does it compel us to conclude that his actions were reasonable where all of the other record evidence suggests otherwise. See Ainsworth v. Calderon, 138 F.3d 787, 791 (9th Cir.1998).
California suggests that Dodwell’s equivocation about Alcala’s arrival time at Knott’s motivated trial counsel’s decision not to call her, and that we must therefore defer to the decision as a strategic choice. Not only is this argument contrary to our caselaw, because it would have us find a strategic basis for trial counsel’s actions in the absence of any evidence, it is inconsistent with the evidence in the record. Dod-well’s alleged “recantation” occurred long before Alcala’s second trial and long before trial counsel told the trial court that he intended to call Dodwell. Further, even if she had testified that Alcala was in the office around 1:30 p.m., her prior identification of the time as 3:00 p.m. would have been admissible under California law as a prior inconsistent statement, see Cal. Evid. Code § 1235, and her testimony still would have been far more useful than that of the witnesses who did testify. Finally, this argument does not address the failure to introduce Carey’s business records. We will not assume facts not in the record in order to manufacture a reasonable strategic decision for Alcala’s trial counsel.
Even if Alcala’s trial counsel did offer a basis for his decision not to present alibi evidence, that basis would be unreasonable if it were unsupported by objective evidence because Dodwell’s testimony and Carey’s records were consistent with the alibi defense that counsel chose. See Lord, 184 F.3d at 1095 (holding that counsel’s decision not to call witnesses was unreasonable because counsel’s stated reasons for disputing the witnesses’ credibility were not supported by objective evidence). Absent an objectively reasonable basis to undermine the credibility or utility of Dod-well’s testimony and Carey’s records, “a competent attorney would not have failed to put” on this evidence. Id.
When defense counsel undertakes to establish an alibi, but does not present available evidence of the time or even the date of the alibi, or offer a strategic reason for failing to do so, his actions are unreasonable. Alcala has overcome the presumption that his trial counsel’s actions were reasonable strategic decisions. Trial counsel’s failure to call Dodwell or to present information regarding the date and time of the managers’ tour was deficient.
C. Prejudice
We agree with the district court that Alcala was prejudiced by trial counsel’s deficient presentation of his alibi because the alibi would have challenged the eyewitness identification placing Alcala with Samsoe. Following Strickland, we find prejudice because “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different”; the deficient presentation of the alibi “undermine[s our] confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Considering “the totality of the evidence” before the jury, id. at 695, 104 S.Ct. 2052, we conclude that the case against Alcala was “only weakly supported by the record” and therefore “more likely to have been affected by errors than one with overwhelming record support.” Id. at 696, 104 S.Ct. 2052.
We agree with the district court that the prosecution’s case was far from compelling. The evidence that Alcala murdered Samsoe was entirely circumstantial. In Rios v. Rocha, 299 F.3d 796 (9th Cir.2002), we found that “the State’s case ... was at best a close one” where there was no physical evidence linking the defendant to the crime: “There was no weapon found, no fingerprints, no gunpowder residue, no DNA evidence.” Id. at 810. Similarly, here, there was no evidence linking Alcala to a murder weapon, no matching fingerprints or hair, no DNA. Apart from the dubious testimony of Dana Crappa, discussed at length below, the only eyewitness to testify that she saw Alcala with Samsoe was Jackelyn Young, who said that she saw them at Huntington Beach around 3:00 p.m. on June 20, 1979.
Alcala has met his burden of proving that the absence of the alibi evidence prejudiced his case. The fact that Dodwell was under subpoena to testify is sufficient to establish, by a preponderance of the evidence, that she could have been called to testify, and the interviews submitted at the evidentiary hearing were sufficient to establish what her testimony would have been. If this testimony had been presented along with Carey’s records, the alibi defense would have accounted for Alcala’s whereabouts during a critical period of time. The travel time between Huntington Beach and Buena Park would have required at least a half-hour each way, in addition to any time actually spent at the Knott’s Berry Farm office. Dodwell’s statements and Carey’s records suggest that Alcala was present at Knott’s Berry Farm around 2:30 or 3:00 p.m., and thus would not have been able to return to Huntington Beach until after 3:00 p.m. at the earliest. In contrast, Young stated that she saw Alcala on the beach with Samsoe around 3:00 p.m., and Bridget Wil-vert stated that Samsoe left her house around 3:10 p.m.
The alibi evidence would have given the jury a choice between believing the testimony of apparently disinterested employees of Knott’s Berry Farm or that of Young. Although Young’s identification was confident at trial, it was not unimpeachable. Prior to the first trial, Young had been unable to identify Alcala from a photo lineup, and Young’s description of Alcala’s clothing was inconsistent with other witnesses’ testimony. Furthermore, Bridget W., who was present with Samsoe when Young allegedly saw the girls with Alcala, never identified him.
If trial counsel had presented the evidence establishing that Alcala was at Knott’s Berry Farm, in Buena Park, on June 20, 1979, around 3:00 p.m., there is a reasonable likelihood that the jury would have discounted Young’s testimony and concluded that Alcala could not have encountered Samsoe as she left Bridget W.’s house at 3:10 p.m. Such conclusions would have significantly weakened, if not wholly undermined, the prosecution’s case.
Not only was the deficient presentation of the alibi far less helpful than a competent presentation would have been, it was probably actually harmful to Alcala’s case. Trial counsel told the jurors that he would prove that Alcala was at Knott’s Berry Farm on the afternoon of June 20, 1979, and utterly failed to do so, harming the credibility of Alcala’s entire defense. The prosecutor’s rebuttal highlighted the weakness of the alibi evidence; indeed, the prosecutor devoted more of his closing argument to the alibi than Alcala’s trial counsel did.
The district court did not err in finding prejudice from the deficient presentation of the alibi and in granting the writ on this basis.
II. The Exclusion of Dr. Ray London’s Testimony
The trial court also found constitutional error in the exclusion of defense expert Dr. Ray London, a psychologist who would have testified that Crappa had been hypnotically influenced in various interviews with police investigators. We agree that the exclusion of Dr. London’s testimony violated Alcala’s due process right to a fundamentally fair trial and to present crucial witnesses in his defense.
A. Facts
Dana Crappa was the prosecution’s key witness. In 1979, she was a twenty-year-old firefighter with the United States Forest Service. Her knowledge and memory of the murder continuously evolved. Crappa’s Forest Service crew discovered Samsoe’s body on July 2, 1979, near Mile Marker 11 on Santa Anita Canyon Road. Crappa volunteered nothing about the crime or the corpse at that time. One month later on August 2, 1979, after being shown photographs of Alcala, Samsoe, and Alcala’s Datsun F-10, Crappa told the police that she did not recognize either Alca-la or Samsoe. She claimed that she had nearly collided with the Datsun while driving near Mile Marker 11 between 9:30 and 10:00 p.m. on the night that another firefighter had prepared a pizza dinner, either June 7 or June 14. Five days later, she revised her story, asserting that she had seen the vehicle on the evening of June 21. At the preliminary hearing in September 1979, Crappa revised her story a third time, testifying that she saw the Datsun parked on the side of the road around 10:00 or 10:30 p.m. Crappa testified that she did not see anyone in or near the car.
Five months later on February 7, 1980, Crappa was introduced to Art Droz, who unbeknownst to her was a police detective trained in hypnosis. Droz claimed that he could help Crappa deal with the incredible stress she was experiencing if she told him her dreams and anxieties. Crappa related a similar story about seeing the Datsun on June 21, 1979, adding that there was a full moon that night and that her dreams were like movies that she saw a little more of each time she awakened. Crappa told Droz that in one of her dreams she saw a man, who may have been wearing Levis and a white shirt, sitting on a wall near the Datsun F-10. She emphasized, however, that she did not “know if I really saw it or if I just think I saw it.” Crappa also told Droz that on the night of June 29, 1979, she had seen the decomposed body of a child near Mile Marker 11, with clothes strewn about the area, a “crusty” knife in a hole, and six .22 caliber bullet casings on the ground that she picked up and threw away. During this interview, Crappa was under the misimpression that the police had established the cause of death.
Four days later, on February 11, 1980, Crappa again met with Droz, who was accompanied this time by psychologist Larry Blum. Both men encouraged Crappa to discuss her “feelings,” “impressions,” and “dreams.” In doing so, she could not recall seeing a child near the Datsun F-10 or having seen Samsoe and remained unsure about whether she had seen a man next to the car. Crappa confirmed, however, that she saw six .22 shells that were still “pretty” and not rusted next to the body and a knife “in the hole” near the body. When Crappa insisted that she could not recall anything further, Blum warned Crappa “when you start talking and then say I don’t know, I know that’s B.S. You understand that, I know that’s B.S.” Crappa also explained that one of the investigators even assured her of Alcala’s guilt, saying that he was “a hundred percent sure this guy is guilty, a hundred percent without any doubt.”
On February 15, 1980, Crappa met with prosecutor Richard Farnell and police officer Craig Robison, both of whom were trained in hypnosis. Although Crappa had told the police that she had not seen the Datsun F-10 prior to June 21, 1979, she revised her story a fifth time. In the recorded portion of the interview, Crappa claimed that on June 20, the day before she almost collided with the Datsun, she saw the same car parked on the side of the road and a man nearby “pushing” or “steering” a young blond-haired girl into the ravine. She stated that the man was wearing a white t-shirt and Levis and that she thought he was “the same guy that’s ... suspected of killing the little kid.” Crappa claimed that she never told anyone about this incident because she “just felt guilty like [she’d] done something wrong.” Crappa also reiterated that she had gone to the murder scene on the night of June 29, 1979,' and had seen a knife and children’s clothes near the corpse.
Eleven days later on February 26, 1980, Crappa met with Robison again, revising her story a sixth time. Crappa had told investigators that she never saw Samsoe’s corpse before June 29, 1979, but Robison told her that he found this contention implausible. Because Crappa could not account for her activities on the evening of June 25, 1979, Robison suggested that she visited the scene that night; he proceeded to paint a hypothetical picture of what the scene would have looked like at that time, suggesting that the body would have “smelled foul” and been easy to find. Crappa denied having visited the scene on June 25 the first few times Robison asked her about it, but eventually stated that, “Well, it’s a real possibility” that she visited the corpse prior to June 29 as well.
Crappa continued to talk to investigators before trial. On March 19, 1980, at Alcala’s first trial, Crappa testified that she saw a man “forcefully steering” a girl with long blond hair towards the ravine. He was wearing a white t-shirt and Levis and was near a vehicle that resembled Alcala’s car. Crappa further testified that she saw that same vehicle parked nearby at the side of the road on June 21. This time she claimed that she saw the Datsun between 8:00 and 8:30 p.m. and that her earlier estimate of 10:00 or 10:30 p.m. had been mistaken. According to Crappa, there was a man standing near the vehicle, again wearing Levis and a white t-shirt that “appeared to be sort of dirty or have a stain.”
Crappa also repeated her story that she visited Samsoe’s corpse on the night of June 29, 1979. Unlike in her previous versions of this event, Crappa denied seeing a knife near the corpse, although she repeated her earlier statement that she picked up six .22 shells and discarded them. She said that this visit took place around 7:00 p.m. Crappa also testified for the first time at trial that she had made another nocturnal visit to the murder scene on June 25, 1979, that it “smelled pretty foul,” and that she saw a child’s tennis shoe and some clothing near the body. She also testified that she saw Sam-soe’s corpse and that it was “cut up pretty bad.”
On April 30, 1986, the prosecution called Crappa as a witness in Alcala’s second trial. Four days earlier, however, Crappa had told the prosecutor that she could no longer remember any of the facts or circumstances relating to Samsoe’s murder. She had told them she could not even recall testifying at the first trial. The prosecutor advised the trial court:
Miss Crappa, who would be the People’s next witness, is present outside in the hallway ready to testify under subpoena. However, she has essentially informed me that she ... is not going to testify because she doesn’t have any recollection about the events in this case, essentially.
She has further told me, in response to my direct question essentially, I have asked her, is it a situation where you can’t remember, or you don’t want to remember. And essentially it seems to be a situation where she just doesn’t want to remember so she is going to say she doesn’t remember. But it’s not a situation where she can’t remember.
The prosecutor argued that Crappa was thus unavailable as a witness, and requested admission of Crappa’s testimony from Alcala’s first trial. Crappa then testified, first to the court outside the presence of the jury and then before the jury, that she could not remember testifying at Alcala’s first trial or any of the events relating to the case against him.
Between Alcala’s two trials, the California Supreme Court found hypnotically-induced testimony inherently unreliable, and thus, per se inadmissible. People v. Shirley, 31 Cal.3d 18, 181 Cal.Rptr. 243, 723 P.2d 1354, 1355-56 (1982). Accordingly, Alcala wanted to offer Dr. London at his second trial to prove that investigators had hypnotized Crappa. In determining the admissibility of Crappa’s testimony pursuant to Shirley, the trial court made a preliminary finding of fact that Crappa had not been hypnotized, which is a question for the court, not the jury, under California law. Cal. Evid.Code § 310(a). Alcala did not offer Dr. London solely for the purpose of proving that Crappa was hypnotized as that question relates to admissibility under Shirley, however, but also to impeach Crappa’s testimony as tainted and unreliable. Dr. London’s testimony was offered to demonstrate the influence that hypnotic and suggestive techniques had on Crappa’s memory as well as Crappa’s adoption of investigators’ suggestions, her increasingly certain memory over time, and her purported amnesia at Alcala’s second trial.
Dr. London had reviewed all of the transcripts of police interviews with Crappa preceding Alcala’s first trial and listened to the available tape recordings. He concluded that Crappa was hypnotized at the interviews on February 7 and 11, 1980, and that she may have been hypnotized on February 15. Dr. London found that Detective Droz and' others used specific techniques and suggestions to put Crappa into a hypnotic state and to aid Crappa in “remembering” what she saw in the mountains. •
He opined that Crappa adopted the investigators’ suggestions. For example, Crappa originally told police that she never saw Alcala and Samsoe together. During the course of the investigation, however, detectives encouraged Crappa to piece different clues together, such as the man she saw on the mountain road and the girl who was kidnapped. Crappa ultimately adopted this suggestion and, at the first trial, testified that she saw Alcala “forcefully steering” Samsoe into the ravine on June 20. Crappa also adopted the investigator’s suggestions that she saw Samsoe’s body prior to June 29, 1979.
Dr. London testified that people who undergo hypnosis commonly experience progressively increased certainty in their recollections, much like Crappa’s evolving confidence in her memory. He added that Crappa’s behavior at Alcala’s first trial, including substantial pauses in her testimony and rocking her body back and forth while speaking, suggested a hypnotic trance. Other behavior indicated “dissociation,” or separation from reality, and “vi-vification,” or making an image or dream so real that it seems to take place presently — both of which indicate an altered state of consciousness. Additionally, Dr. London took note of negative post-hypnotic suggestions, which communicated to Crap-pa that she should not remember the content of or techniques used in the interviews. He also pointed out that Crappa’s certainty in her testimony waned between the February 15 interview and a March 12 conversation with an investigator, explaining that hypnotically-induced suggestions must be reinforced with some frequency to last. This phenomenon explained Crap-pa’s amnesia at Alcala’s second trial.
B. Error
“The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State’s accusations. The right[ ] ... to call witnesses in one’s own behalf ha[s] long been recognized as essential to due process.” Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973); see also Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986) (holding that “an essential component of procedural fairness is an opportunity to be heard”); Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967) (“The right to offer the testimony of witnesses ... is in plain terms the right to present a defense, the right to present the defendant’s version of the facts.... [The accused] has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.”).
That the Constitution affords Alcala the right to present witnesses in his defense does not mean that this right is absolute. “Even relevant and reliable evidence can be excluded when the state interest is strong.” Perry v. Rushen, 713 F.2d 1447, 1450 (9th Cir.1983). While “[t]he right to present a defense is fundamental,” id., “the state’s legitimate interest in reliable and efficient trials is also compelling.” Id. at 1451. Where evidence has been excluded pursuant to a state eviden-tiary law, we use a balancing test:
In weighing the importance of evidence offered by a defendant against the state’s interest in exclusion, the court should consider the probative value of the evidence on the central issue; its reliability; whether it is capable of evaluation by the trier of fact; whether it is the sole evidence on the issue or merely cumulative; and whether it constitutes a major part of the attempted defense. A court must also consider the purpose of the [evidentiary] rule; its importance; how well the rule implements its purpose; and how well the purpose applies to the case at hand. The court must give due weight to the substantial state interest in preserving orderly trials, in judicial efficiency, and in excluding unreliable or prejudicial evidence.
Miller v. Stagner, 757 F.2d 988, 994-95 (9th Cir.1985) (citation omitted).
The weight of the Miller factors compels us to conclude that the trial court’s exclusion of Dr. London violated Alcala’s due process rights. First, Dr. London’s testimony was highly probative because of its remarkable impeachment value. It would have emphasized the suggestive nature of police interview tactics, the evolution of Crappa’s testimony and its vulnerability to and incorporation of investigators’ suggestions, and Crappa’s increased certitude. This impeachment testimony would have explained Crappa’s bizarre and disturbing demeanor at Alcala’s first trial, her subsequent amnesia, and the parallel relationship between her testimony and both the prosecution’s theory and the physical evidence.
Second, California did not object to Dr. London’s expert qualifications or the bases for his conclusions, giving us no reason to question its reliability. That prosecution witnesses disagreed with Dr. London’s conclusion that Crappa was hypnotized does not make his expert opinion unreliable; rather, it provides the very basis for admitting and relying on Dr. London’s testimony — the presentation of the defense theory of the case. Third, California does not assert that the jury could not evaluate Dr. London’s testimony and consider it with the totality of the evidence. Fourth, Dr. London provided the sole evidence for impeaching Crappa on the basis of hypnosis, suggestion, brainwashing, cajoling, or improper influence; his testimony was not cumulative but was critical to Alcala’s case.
Finally, the testimony of Dr. London proved integral — vital even — to Alcala’s case. His testimony would have provided a formidable defense tool because his expert opinion would cast serious doubt on the most damning portions of Crappa’s testimony and on its overall believability. As the star prosecution witness, Crappa was the only person to place Alcala at the murder scene with the murder victim close in time to the theorized murder date. The district court’s compelling analysis demonstrates the import of Dr. London’s testimony to Alcala’s case:
[W]ithout Dr. London, the defense was prevented from rebutting the prosecutor’s claim that Crappa’s inconsistencies were attributable to the traumatic nature of the events that she was describing (and had allegedly witnessed). Without Dr. London, the defense was precluded from presenting evidence that the substance and evolution of Crappa’s testimony at the first trial, and subsequent claim of amnesia, were indicative of hypnosis. Without Dr. London, the defense was precluded from proving that hypnosis could instill a greater degree of certainty and that the hypnotic subject was incapable of distinguishing implanted memories from actual recollection. Without Dr. London, the defense could not dispel the aura of credibility that Crappa’s testimony received by virtue of its consistency with the remaining evidence. Through Dr. London, however, the defense proposed to offer an explanation for this “fit” — because the memories had been constructed through hypnosis, Crappa’s testimony had been manufactured to fit.
In short, Dr. London provided the only available means for Alcala to impeach Crappa’s testimony with a coherent theory. This theory would not only have undermined Crappa’s accounts of what she saw, but also would have diminished the overall weight, if any, the jury afforded her testimony.
California’s interest in excluding Dr. London does not outweigh Alcala’s strong interest in the admission of his testimony. The trial court excluded Dr. London’s testimony under California Evidence Code § 352, finding that presentation of this evidence, though probative, would confuse the issues and waste an undue amount of time. While the policy underlying this rule is to allow the exclusion of otherwise probative evidence if an undue consumption of time or confusion of the issues would substantially outweigh its relevance, that is not the case here. We cannot conclude on the record before us that Dr. London’s testimony would consume even a considerable amount of time, let alone an undue amount of time, or that it would confuse the jury.
C. Prejudice
The balance of these factors supports a conclusion that the trial court unconstitutionally excluded Dr. London. Therefore, We must consider whether the exclusion was prejudicial. Calderon v. Coleman, 525 U.S. 141, 145, 119 S.Ct. 500, 142 L.Ed.2d 521 (1998). We agree with the district court that it was.
Crappa’s testimony provided the bedrock of the prosecution’s case by placing Alcala and his distinctive car at the murder scene with the victim just hours after she disappeared. Dr. London’s testimony, if accepted by the jury, would have damaged Crappa’s credibility severely. It also would have helped place the cold transcript of Crappa’s testimony in context by showing the dramatic evolution of her purported recollections. Thus, the exclusion of Dr. London likely had a substantial and injurious effect or influence on the jury’s verdict.
III. The Trial Court’s Denial of Alcala’s Motion for an Independent Medical Examination of Dana Crappa
The district court held that the trial court’s denial of Alcala’s motion for an independent medical examination of Crap-pa constitutes a violation of the Sixth Amendment’s Compulsory Process Clause. We disagree. While the Compulsory Process Clause guarantees a criminal defendant the right to present relevant and material witnesses in his defense, see Washington, 388 U.S. at 17-19, 87 S.Ct. 1920, the trial court never barred Alcala from exercising this right.
A. Crappa’s Alleged Unavailability
The prosecution asserted that Crappa was “unavailable” because of her purported amnesia. After hearing Crappa’s testimony on April 30, 1986, the trial court observed that Crappa appeared to be suffering from an “existing ... mental illness or infirmity” and, therefore, “probably qualifie[d] under unavailability, in view of [her] present mental status.”
When Alcala requested additional time to consider Crappa’s purported claim of amnesia, the trial court set a hearing for May 5, and informed Alcala,
But I really think you gentlemen can do all the research in the world, and everybody knows I am never hampered by the law anyway.
Basically, what we are going to do is put her on, let her have her say-so, give it a shot, and get into the reading....
And there won’t be anything further until tomorrow. And then you have the rest of the night to show me I am wrong, and everybody knows I never am.
On May 5, Alcala filed a motion asking the trial court “to appoint, for the information of the court, a mental health professional to conduct a clinical interview of [Crappa].” Alcala argued that due process required the trial court to perform an independent medical examination of Crap-pa’s current mental condition before ruling on Crappa’s unavailability.
Two witnesses testified at the hearing: Dr. Anthony Staiti, a psychiatrist called by the prosecution, and Superior Court Judge Phillip Schwab, who had presided over Al-cala’s first trial. Dr. Staiti had met with Crappa three times for a total of two to three hours to assess whether “she was capable of returning to her position as a police dispatcher.” Dr. Staiti explained that his “working diagnosis” of Crappa was that she was suffering from “post traumatic stress disorder chronic delayed.”
The defense called Judge Schwab. He commented that Crappa’s demeanor during Alcala’s first trial was “unusual,” and often punctuated with long delays of one minute or longer between questions and answers. Judge Schwab also testified that Crappa’s behavior was peculiar and that he even conferred with the parties about the possibility of terminating her testimony.
At the close of the hearing, the trial court denied Alcala’s motion for an independent medical examination and ruled that Crappa was “unavailable” because of a “pre-existing mental infirmity.” The court based its decision on, inter alia, “the history of the case” as well as the “obvious frailties of the witness.”
Accordingly, Crappa was excused from testifying in person and the prosecution was permitted to read a transcript of Crappa’s previous testimony to the jury.
B. Alcala’s Right to Compulsory Process
The right of an accused to have compulsory process for obtaining and calling witnesses in his favor is guaranteed under the Sixth and Fourteenth Amendments. Washington, 388 U.S. at 17-19, 87 S.Ct. 1920. “Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.” Id. at 19, 87 S.Ct. 1920. Alcala’s right to compulsory process was violated if he was barred by the trial court from presenting “testimony [that] would have been relevant and material, and ... vital to [his] defense.” Selam v. Warm Springs Tribal Corr. Facility, 134 F.3d 948, 952 (9th Cir.1998) (quoting Washington, 388 U.S. at 16, 87 S.Ct. 1920).
At the hearing on Crappa’s purported unavailability, Alcala was never barred from presenting any witnesses or evidence, nor did Alcala ever request an opportunity to examine Crappa with his own medical experts. Alcala points out that if the prosecution was permitted to present a medical expert, due process requires that the defense be allowed to do the same. But, Alcala never requested such an opportunity; he only asked that the trial court appoint a mental health professional to conduct an independent medical examination of Crappa for the court’s benefit in assessing her unavailability.
If the trial court had barred Alcala from presenting defense witnesses or from conducting a medical examination of Crappa, Alcala would be correct in arguing that his constitutional rights were violated. Washington, 388 U.S. at 17-19, 87 S.Ct. 1920. However, that did not happen here. Rather, the trial court merely refused to exercise its discretion to appoint an expert to conduct an independent investigation of a disputed matter.
While Alcala’s suggestion was probably the more prudent path for the trial court to adopt, the court’s decision not to perform an independent investigation of the facts cannot be characterized as a violation of the Sixth Amendment. California Evidence Code § 240(a)(3) states in pertinent part that a witness is “unavailable” if she is “[d]ead or unable to attend or to testify at the hearing because of then existing physical or mental illness or infirmity.” California law defines a “mental infirmity” as “a defect of personality or weakness of the will.” People v. Rojas, 15 Cal.3d 540, 125 Cal.Rptr. 357, 542 P.2d 229, 235 (1975). In order to establish the existence of a mental infirmity, expert medical testimony, while potentially relevant, is not essential. Alcala II, 15 Cal.Rptr.2d 432, 842 P.2d at 1213. Furthermore, California Evidence Code § 730 provides that a trial court’s decision to appoint such an expert is a purely discretionary one. Torres v. Mun. Ct. of Los Angeles Jud. Dist., 50 Cal.App.3d 778, 123 Cal.Rptr. 553, 556 (1975) (“Although Evidence Code section 730 provides for court appointed experts, the decision to comply with the defendant’s request remains within the sound discretion of the trial court.”); see also In re Jennifer J., 8 Cal.App.4th 1080, 10 Cal.Rptr.2d 813, 816 (1992) (“Although the court in a proceeding ... is assuredly empowered to appoint one or more factfinding expert witnesses ... such action is a matter of discretion.”).
At any point between April 30, when Crappa informed the court of her amnesia, and May 5, when the court found her unavailable, Alcala could have requested that he be allowed to examine Crappa with a defense expert or, if additional time was needed, moved for a continuance. Alcala offers no explanation as to why he never made such requests.
Accordingly, we hold the district court erred in granting Alcala’s claim that his Sixth Amendment rights were violated by the trial court’s denial of his motion for an independent medical examination.
IV. The Admission of Crappa’s Previous Trial Testimony
The district court rejected Alcala’s claim that the admission of Crappa’s previous testimony violated his rights under the Confrontation Clause of the Sixth Amendment. In his cross-appeal, Alcala argues that Crappa’s testimony was not sufficiently reliable to be deemed admissible as evidence.
The Sixth Amendment’s Confrontation Clause, made applicable to the states through the Fourteenth Amendment, provides that, “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const. amend. VI. In Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895), the Supreme Court explained:
The primary object of the constitutional provision in question [is] to prevent depositions or ex parte affidavits ... being used against the prisoner in lieu of a personal examination and cross-examination of the witness, in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling [her] to stand face to face with the jury in order that they may look at [her], and judge by [her] demeanor upon the stand and the manner in which [she] gives [her] testimony whether [she] is worthy of belief.
Id. at 242-43, 15 S.Ct. 337. The admission of hearsay testimony, however, does not violate the Confrontation' Clause, so long as the witness is unavailable and the testimony bears adequate “indicia of reliability.” Ohio v. Roberts, 448 U.S. 56, 65, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). Such “indicia” can be inferred if “the evidence falls within a firmly rooted hearsay exception.” Id. at 66, 100 S.Ct. 2531.
Crappa’s demeanor during Alcala’s first trial was odd, if not bizarre. Her conduct was so peculiar that it is next to impossible not to question the trustworthiness of her testimony. The record is replete with examples of Crappa behaving in a manner that calls into question her credibility, mental stability, psychiatric health, and veracity as a witness.
• Crappa waited up to one minute or more before answering certain questions and, at times, did not answer questions unless they were repeated multiple times. Judge Schwab testified that, “There were, at least in portions of her testimony, substantial delays between the question and an answer, sometimes running perhaps close to a minute, perhaps even longer.”
• At one point during her testimony, Crappa was “rocking back and forth, her eyes closed.... ” for several minutes. According to Alcala’s trial counsel, Crappa “seem[ed] to be undergoing some kind of psychiatric or psychotic break.”
• For one period lasting fifteen minutes, Crappa’s only responsive utterance to the prosecutor’s questions was to mutter repeatedly, “It was a.”
• The prosecution asked Crappa to describe what she saw on the evening of June 25, 1979, multiple times. Crap-pa, however, either remained silent, muttered unresponsively to the questions, or would continue to rock her body back and forth without speaking. It was only after the trial court called for a recess and Crappa spoke with Robison, a police officer and trained hypnotist, during the break, that she was able to return to the witness stand and testify in a somewhat coherent fashion about having seen Samsoe’s corpse on the evening of June 25.
• Judge Schwab, a veteran California state trial judge with more than twenty years of experience on the bench, agreed that Crappa’s behavior was “unusual.” In particular, the length of time it took for her to begin responding to a question after it was asked was not normal. Judge Schwab even called counsel into chambers to discuss whether it was appropriate for Crappa to continue testifying. Although he said this was not the only time he had considered terminating a witness’s testimony, he could not recall any other specific cases where he had done so.
• Judge Schwab advised Crappa of her constitutional right to assert her privilege against self-incrimination and consult an attorney, after it was suggested to him that Crappa was committing perjury.
Crappa’s behavior as a witness was so extraordinarily odd that it strikes at the very core of her reliability as a witness. Moreover, reading the cold transcript of her testimony may have had the effect of transforming an incredibly bizarre performance into a credible presentation.
We are asked to determine whether, under these unusual circumstances, Crap-pa’s past trial testimony nonetheless bears sufficient indicia of reliability to have been admissible. California argues that the reliability of prior trial testimony given under oath and subjected to cross-examination should be inferred without further inquiry because such testimony is recognized as a firmly rooted exception to the hearsay rule. We do not opine on whether prior trial testimony is a firmly rooted hearsay exception, although we acknowledge some indications in the case law that it is. See Roberts, 448 U.S. at 66 n. 8, 100 S.Ct. 2531; Mancusi v. Stubbs, 408 U.S. 204, 216, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972); Barber v. Page, 390 U.S. 719, 722, 725-26, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968). In any event, the Supreme Court has noted that in “extraordinary cases,” further inquiry into the reliability of prior trial testimony may be required. Roberts, 448 U.S. at 73 n. 12, 100 S.Ct. 2531.
Although this may be such a case where further inquiry would be appropriate, we ultimately need not decide whether Crap-pa’s testimony bears adequate indicia of reliability. The trial court’s other constitutional errors, combined with the ineffectiveness of Alcala’s trial counsel, are more than sufficient to warrant the denial of California’s appeal and the granting of Al-cala’s petition. Accordingly, we decline to rule on this issue as it is unnecessary in our ultimate assessment of the merits of Alcala’s petition.
V. Cumulative Error
The district court granted Alcala’s habe-as petition in part due to cumulative error. We hold that the district court did not err in finding that the combined prejudice of the multiple errors committed in this case deprived Alcala of a fundamentally fair trial and constitutes a separate and independent basis for granting his petition.
California contends on appeal that some of the purported errors considered by the district court in its cumulative error analysis were not constitutional errors and that others were not prejudicial. Alcala argues that the district court erred in failing to find error in the exclusion of certain defense witnesses, holding that his trial counsel’s failure to investigate the crime scene was not deficient, and in ruling that some adverse evidentiary rulings were not sufficiently prejudicial to grant the petition on those grounds alone.
In cases where “there are a number of errors at trial, ‘a balkanized, issue-by-issue harmless error review’ is far less effective than analyzing the overall effect of all the errors in the context of the evidence introduced at trial against the defendant.” United States v. Frederick, 78 F.3d 1370, 1381 (9th Cir.1996) (quoting United States v. Wallace, 848 F.2d 1464, 1476 (9th Cir.1988)). In other words, “ ‘[e]rrors that might not be so prejudicial as to amount to a deprivation of due process when considered alone, may cumulatively produce a trial setting that is fundamentally unfair.’ ” Thomas v. Hubbard, 273 F.3d 1164, 1180 (9th Cir.2001) (quoting Matlock v. Rose, 731 F.2d 1236, 1244 (6th Cir.1984)), overruled on other grounds by Payton v. Woodford, 299 F.3d 815, 829 n. 11 (9th Cir.2002) (en banc). “In those cases where the government’s case is weak, a defendant is more likely to be prejudiced by the effect of cumulative errors.” Frederick, 78 F.3d at 1381.
A. The Exclusion of Certain Defense Witnesses
The prosecutor theorized that Alcala kidnapped Samsoe on the afternoon of June 20, 1979, some time after she left Bridget W.’s home and before she should have arrived at her ballet class. Crappa’s testimony placed Alcala in the mountains with Samsoe later that very day, suggesting that Alcala killed Samsoe on the same day that he kidnapped her, June 20, 1979.
The testimony of Tim Fallen would poke at least one hole in this theory. Fallen testified at Alcala’s first trial that he saw Samsoe in Huntington Beach on June 21, 1979 — the day after she disappeared. A police detective showed Fallen a picture of Samsoe on June 21 and asked if he had seen her. Fallen told the detective that he had seen Samsoe just minutes before the detective’s arrival. He offered, without prompting, that she was riding a yellow, ten-speed bike. When Samsoe left Wil-vert’s home the day before, she had borrowed her friend’s yellow ten-speed.
Late the next night, on June 22, 1979, police officer Gerald Crawford saw a car parked at a turnout just north of Mile Marker 11 on the Santa Anita Canyon Road, about 100 feet from where authorities ultimately found Samsoe’s remains. Crawford then saw Raul Vasquez walking toward the car. Crawford questioned Vasquez about his purpose for being in the area. He responded that he had relieved himself in the woods while waiting for his girlfriend. When Crawford asked Vasquez his girlfriend’s name, he either did not know her name or did not respond.
Crawford patted Vasquez down and found a pair of heavy pliers in his back pocket. Crawford questioned Vasquez about the tool, and he responded, “you never know what can happen up here in these mountains.” Crawford also searched Vasquez’s car, where he found a towel or blanket in the back seat and a six pack of beer on the floorboard of the front seat. Crawford noted that a passenger window was shattered, and broken glass lay strewn across the back seat. Crawford testified that Vasquez seemed upset, extremely nervous, and very shaky; he acted as if he were hiding something.
Alcala wanted to offer Crawford and Vasquez to advance his theory that someone other than Alcala kidnapped Samsoe on June 21 — after Fallen saw her — and that Vasquez murdered Samsoe on June 22. Crawford would have testified, as he did at Alcala’s first trial, to his encounter with Vasquez, while Vasquez would have testified that he was on parole from a murder conviction.
At Alcala’s first trial, Fallen had identified a photograph of a different young blond girl as the one he saw; the prosecutor argued at the second trial that Fallen’s testimony was neither probative nor reliable. Despite Alcala’s arguments to the contrary, and considering only Alcala’s offer of proof and the prosecutor’s objection, the trial court excluded Fallen’s testimony as confusing and irrelevant.
The trial court also excluded the testimony of Crawford and Vasquez. After stating on the record that “[criminals] usually stay away from the scene of the crime,” which would be inconsistent with Vasquez “go[ing] back on the 22nd to see if he did a good job,” the trial judge found that “the probative value of this type of evidence is zero” and that presenting it would be “a waste of time.”
Even if the trial court erroneously excluded Fallen, Crawford, and Vasquez as a matter of state law, we cannot afford him habeas relief unless the exclusion violated his due process right to a fair trial. See Estelle v. McGuire, 502 U.S. 62, 67-68 & n. 2, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). We employ a balancing test for determining whether the exclusion of testimony violates due process. Courts should weigh the probative value of the evidence, its reliability, whether the trier of fact can evaluate the evidence, whether the evidence is cumulative, and whether the evidence proves integral to the defense theory in evaluating whether admissible evidence was unconstitutionally excluded. Miller, 757 F.2d at 994. In addition, we must consider California’s interest in excluding the evidence. Id. at 994-95.
i. Exclusion of Fallen’s Testimony
While California concedes that the trial court erred in excluding Fallen’s testimony, some analysis of whether this exclusion violated Alcala’s due process rights is helpful. First, Fallen’s sighting of the girl he believed to be Samsoe is probative to a central issue in this case: whether Alcala kidnapped and killed Samsoe on June 20. Fallen’s testimony could create reasonable doubt that Samsoe was kidnapped and killed on June 20, the day on which eyewitnesses claimed to have seen Alcala at Huntington Beach, rather than June 21, the day Fallen claimed to have seen Samsoe. Fallen could also rebut Crappa’s testimony placing Alcala with the victim close to the murder scene.
Fallen’s testimony also bears indicia of reliability. He identified the girl he saw within five or ten minutes of viewing her; his memory was recent. He also volunteered that the girl was riding a yellow ten-speed bicycle, before the officer could indicate that Samsoe was riding such a bike when she disappeared. Moreover, that the prosecutor impeached Fallen at the first trial did not make his testimony unreliable but instead raised questions about his credibility and the weight his testimony should be accorded. These are issues to be weighed by the jury, not the judge. See, e.g., United States v. Scheffer, 523 U.S. 303, 312-13, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998).
No question exists that the jury could evaluate Fallen’s testimony. His insistence that he saw Samsoe the day after the prosecutor argued that she was kidnapped introduces an alternate exculpatory theory. The evidence is inconsistent with the prosecutor’s case, but that it conflicts is the very point of presenting Fallen’s testimony. If courts prohibit the introduction of any evidence that conflicts with the prosecution’s case because it might “confuse” the jury, the right of the accused to present a defense would exist only in form. In addition, Fallen’s testimony was not cumulative; it provided the only evidence that Samsoe was seen alive after June 20.
Lastly, Alcala focused on a misidentification theory via his efforts to rebut the various eyewitness identifications, to undermine Crappa’s credibility, and to put on an alibi defense. Fallen’s testimony would have facilitated this theory by allowing Alcala to undermine the prosecution’s assertion that Samsoe was kidnapped and killed on June 20. In other words, if Samsoe were kidnapped on or after June 21, and the prosecution could not link Alca-la to the area on June 21, Alcala could further his misidentification defense.
The trial court excluded Fallen because his testimony was both confusing and irrelevant. These concerns do not outweigh Alcala’s interest in putting on this testimony. That Fallen’s testimony weakened the prosecution’s case made it probative, not confusing, and that it contradicted California’s theory demonstrates its great relevance.
Because the factors weigh in Alcala’s favor, the trial court committed constitutional error in excluding Fallen’s testimony. This error likely affected the jury’s verdict. Fallen’s testimony would have given the defense an eerie coincidence for the jury to weigh against the many bizarre coincidences that the prosecution presented. It also would contradict the prosecution’s theory that Alcala kidnapped and murdered Samsoe on June 20. Regardless of whether this error was sufficiently prejudicial in itself to grant Alcala’s petition, the district court correctly included this error in its cumulative error analysis.
ii Exclusion of Crawford’s and Vasquez’s Testimony
The exclusion of Crawford’s and Vasquez’s testimony is subject to the same balancing test. See Miller, 757 F.2d at 994. Their combined testimony about the events of June 22, 1979, is arguably more probative than Fallen’s testimony to the central issue: Alcala’s guilt. Vasquez was found in a remote mountain area, after he literally emerged from the bushes 100 feet from where authorities ultimately discovered Samsoe’s body. Crawford testified that Vasquez was, upset, nervous, and shaky and acted like he was hiding something. Vasquez provided Crawford with a flimsy excuse for his presence in the area. He possessed a heavy tool, which he suggested he would use as a weapon if necessary.
This testimony also is reliable. Crawford was a police officer with no motive to lie. Indeed, he was called by the prosecution to testify about finding the body. As for Vasquez, his testimony only concerned his prior homicide conviction. Even if he did testify to the events of the night of June 22, 1979, California has suggested no reason that Vasquez would lie about that night in order to incriminate himself.
Just as Fallen’s testimony was capable of evaluation by the trier of fact, so too was the testimony of Crawford and Vasquez. Again, their testimony presented an alternate explanation for Samsoe’s murder that the jury could accept or reject. Again, their testimony would not have been cumulative; it provided the sole evidence that Vasquez may have murdered Samsoe.
Finally, the exclusion of testimony from Crawford and Vasquez precluded Alcala from presenting a third-party culpability defense; he instead relied on a misidentifi-cation theory. Crawford and Vasquez would have helped Alcala pursue a third-party culpability defense, a theory not inconsistent with the defense presented and which — had the evidence been admitted— would have proven a strong defense theory.
The trial court excluded Crawford’s and Vasquez’s testimony as irrelevant and a “waste of time,” and suggested Alcala’s third-party culpability theory was untenable. Even still, the above factors clearly weigh in favor of Alcala’s interest in having the testimony admitted. The testimony was relevant, and no record evidence indicates that it would have consumed an undue amount of time.
This evidence helps demonstrate reasonable doubt as to Alcala’s guilt by suggesting that Vasquez may have murdered Samsoe. The exclusion of this evidence prejudiced Alcala and belongs in the cumulative error analysis.
B. The Admission of the Kane Kutlery Knives
As mentioned above, police discovered a knife obscured by some vegetation and covered with debris and caked mud in the same general area as Samsoe’s remains. The prosecutor theorized that Alcala used the knife as the murder weapon because of blood found on the knife, wipe marks on Samsoe’s towel, and Crappa’s testimony that the body was “pretty cut up.”
To support this hypothesis, the prosecutor admitted into evidence two complete, unused sets of kitchen knives that police seized from Alcala’s home where he lived with his mother and stepfather. Kane Kutlery manufactured both these knives and the carving knife found in the ravine near Samsoe’s remains. Alcala’s mother testified that the knife sets were gifts from her husband’s former employer. She also asserted that her husband’s employer never gave her a separate knife like the carving knife found near Samsoe’s body, that she was not missing any knives from her kitchen pantry, and that the alleged murder weapon found in the ravine differed from the knife sets she owned.
The trial court judge remarked on the many differences between the knife sets and the purported murder weapon. He noted the difference in the studs on the handles, the type of wood used for the handles, and the shape of the knives. He stated that “[t]here’s no way that this particular weapon could be tied in [ ] the remotest to any of these particular sets [seized from Alcala’s home] — I mean, the whole knife set is not even close to the knife [found in the ravine].”
To buttress its murder weapon theory, the prosecutor called Clella Schneider, a Kane Kutlery representative, as a witness. Schneider testified that although the two knife sets seized from Alcala’s home and the alleged murder weapon both were distributed through Kane Kutlery to the same six western states and marketed around the same time, the knives differed in design. Schneider also testified that during a period of five years, Kane Kut-lery sold about 15,000 of each of the two knife sets in six western states and about 4,000-5,000 of the individual carving knives in the same general geographic area. She further testified that the carving knife found in the ravine was sold separately from the seized knife sets and that all of the knives in question were sold at major supermarket chains and drug stores.
The trial court admitted the knives and Schneider’s testimony over Alcala’s objection that they were irrelevant and highly prejudicial.
A conclusion that the admission of the Kane Kutlery knife sets violated Alcala’s right to a fundamentally fair trial requires that the knife sets and Schneider’s testimony were irrelevant to the prosecution’s case and that the “erroneously admitted evidence was of such quality as necessarily prevents a fair trial.” McKinney v. Rees, 993 F.2d 1378, 1384 (9th Cir.1993) (internal quotation marks omitted). “Evidence is considered irrelevant if it fails to make any fact of consequence more or less probable.” Id. at 1380. Moreover, “[o]nly if there are no permissible inferences the jury may draw from the evidence can its admission violate due process.” Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir.1991).
The knife sets, and the accompanying testimony of Schneider, are irrelevant. The evidence showed that two unused sets of Kane Kutlery knives were found in Al-cala’s home. These knives belonged to Alcala’s mother and stepfather and had been given to them by a former employer; they were not found in Alcala’s direct possession, nor did he purchase them. Furthermore, even as the trial court admitted, the knife sets differed in many material respects from the knife found at the murder scene.
The jury could draw no permissible inference from this evidence. To infer that Alcala used the knife in the ravine to murder Samsoe, the jury would have had to speculate — and could have done no more than speculate — that because the purported murder weapon and the unused knife sets shared the same brand name, Alcala was connected to the murder weapon. That the same company manufactured both the purported murder weapon and the knife sets fails to make any fact pf consequence to the prosecution’s case more or less probable.
California argues that the knife sets were relevant to show that Alcala had access to or familiarity with Kane Kutlery. The fact that Alcala’s home contained substantially different types of knives of the same brand as the purported murder weapon, however, does nothing to advance the argument that Alcala had special or increased access to Kane Kutlery knives. As Schneider testified, both the knife sets and the carving knife were readily available by the thousands in major supermarkets and drug stores in six western states. This evidence fails to show that Alcala had any more access to Kane Kutlery knives than any other person in the general public with access to stores that sold this brand of knife. Admittedly, the fact that Alcala’s mother and stepfather had Kane Kutlery knives in their kitchen may show that Alcala was familiar with this particular brand. This purported familiarity, however, does not tend to make any fact of consequence to California’s case more or less probable. Alcala’s general access to or familiarity with Kane Kutlery has no relevance to connecting Alcala to the alleged murder weapon.
The admission of the knife sets amounts to constitutional error, and the prejudicial effect of this evidence likely influenced the jury. California’s entire case rested on “strange coincidences.” That the alleged murder weapon and the knives seized from Alcala’s home were both of the Kane Kut-lery brand fits neatly into that “strange coincidences” theme, and the prosecutor spent a good deal of his closing argument — more than three pages of the court reporter’s transcripts — framing the issue that way. Thus, there is a reasonable likelihood that some jurors linked Alcala to the knife in the mountains based on brand commonality with the seized knives. Because this evidence caused some prejudice to Alcala, the district court properly included it in its cumulative error analysis.
C. Ineffective Assistance of Counsel
As noted above, one of the grounds on which the district court granted Alcala’s petition was that his trial counsel had been ineffective in presenting his alibi. The district court also included this deficiency, along with the deficient preparation of defense witness David Vogel, in its cumulative error analysis. Alcala suggests that, in addition to these deficiencies, his counsel was deficient in failing to investigate the crime scene and in failing to investigate the value of the gold-ball earrings found in Alcala’s storage locker. California argues that none of these acts and omissions amounts to deficient performance.
We agree with the district court’s inclusion of the deficient presentation of the alibi in the cumulative error analysis. We further agree that counsel was deficient in failing to prepare Vogel and that the prejudice resulting from this deficiency was properly included in the cumulative error analysis. In addition, the district court should have included in the cumulative error analysis trial counsel’s deficiency in failing to investigate the crime scene. Finally, the district court correctly concluded that there was no deficiency in failing to investigate the value of the earrings.
i. Preparation and Presentation of David Vogel
Vogel’s testimony, which was intended to discredit jailhouse informant Freddie Williams’s testimony, was completely undermined by the prosecutor on cross-examination. Vogel, who had himself acted as a jailhouse informant in several previous cases, denied ever giving police or prosecutors false information about another inmate. He then admitted talking to the police about Alcala, with whom he had also been in jail, but claimed that he did not remember what he told the police. The prosecutor then confronted him with an interview he had given to the police in 1979, in which Vogel stated that Alcala had confessed to him that he murdered Sam-soe. Vogel ultimately testified that he had lied to the police about Alcala’s confession to him, but that he was not lying in his testimony under oath, in part because he had converted to Christianity in the interim.
In addition to this evidence, the district court made several factual findings to support its conclusion that Alcala’s trial counsel’s performance was constitutionally deficient; none of these findings is clearly erroneous. First, trial counsel knew about Vogel’s 1979 police interview prior to putting Vogel on the stand. Vogel was a former client of Alcala’s trial counsel, and when the prosecutor sought to play a tape of the interview at trial, trial counsel volunteered, “Your honor, I have a transcription of the tape.... If the court wishes we can Xerox this. It’s my understanding this was prepared by ... the district attorney’s office, back in 1979.”
The district court also found that “prior to testifying at trial, Vogel had given little thought to the fact that he had previously reported that Alcala had made incriminating statements.” Vogel’s own testimony, in which he stated that he could not remember telling police that Alcala had confessed to him, supports this finding.
Finally, the district court found that Al-cala’s trial counsel failed “to forewarn Vo-gel that this topic would likely be covered during cross-examination” and failed “to ascertain for himself how Vogel would likely respond.” Again, Vogel’s own testimony is evidence of a lack of preparation. Furthermore, at the evidentiary hearing, trial counsel confirmed that his general practice was not to interview witnesses himself — let alone prepare them for specific topics of cross-examination — but merely to say a few words to them in the hallway immediately prior to calling them.
Given these facts, we must determine whether Alcala’s trial counsel’s conduct “falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Although an attorney’s performance is generally entitled to a strong presumption of competence, see id., deference to the attorney’s strategic decisions is diminished where the attorney has not done the preparation necessary to make informed decisions; in particular, the decision not to call a witness is entitled to less deference if the attorney has not interviewed the witness. See Lord, 184 F.3d at 1095 & n. 8. The same holds true for an attorney’s decision to call a witness whom he has not interviewed or otherwise prepared.
Here, we fail to see, and California fails to explain, how the decision to call Vogel without preparing him for cross-examination could possibly “ ‘be considered sound trial strategy.’ ” Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (quoting Michel, 350 U.S. at 101, 76 S.Ct. 158). Any competent attorney would have made an effort to find out what Vogel would say when asked about his statements to the police incriminating Alcala. There is no suggestion that trial counsel had limited access to Vogel before the trial; indeed, Vogel was his former client. We need not determine whether, after proper preparation, the decision to call Vogel might have been a reasonable exercise of professional judgment. In the absence of such preparation, Alcala’s trial counsel’s performance was clearly deficient.
We agree that this deficiency prejudiced Alcala and should be included in the cumulative error analysis. If Alcala’s trial counsel had adequately prepared Vogel to testify, two outcomes are likely: either Vogel would have been forthright in his testimony about his 1979 interview with the police, or trial counsel would have realized that the 1979 interview was a serious liability and elected not to call Vogel at all. Either way, we can assume that Vogel’s initial evasive answers, which greatly damaged his credibility, were likely the result of defense counsel’s incompetence. See, e.g., Johnson v. Baldwin, 114 F.3d 835, 840 (9th Cir.1997) (noting that if attorney had confronted witness with evidence that his testimony was false, the witness “probably would have elected not to lie to the jury”).
We have no trouble concluding that Al-cala would have been better off if Vogel had either not testified at all or testified credibly. If Vogel had not testified, his statement to the police that Alcala had confessed to murdering Samsoe would not have been admitted. If he had testified candidly, he would have been more useful as an impeachment witness against Williams, lessening the impact of Williams’s testimony that Alcala had confessed to him. Because a “defendant’s own confession is probably the most probative and damaging evidence that can be admitted against him,” Arizona v. Fulminante, 499 U.S. 279, 296, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (internal quotation marks omitted), either of these outcomes would have been more favorable than the damaging testimony that Vogel actually gave. The district court properly included the prejudice from this deficiency in the cumulative error analysis.
ii Failure to Investigate the Crime Scene
At trial, two expert witnesses testified for the prosecution about the crime scene and Samsoe’s remains: a criminalist, Margaret Kuo, and a pathologist, Dr. Sharon Schnittker. Kuo testified that she found a single, tiny drop of human blood on the blade of the knife recovered from the scene. As noted above, the prosecutor used this testimony, along with Dana Crappa’s testimony that Samsoe’s body was “pretty cut up,” to argue that the knife was the murder weapon. Schnittker testified that there was no evidence of knife wounds on the skeletal remains but stated that it was possible for fatal stab wounds to leave no mark on a skeleton.
Alcala claims that his trial counsel was ineffective for failing to investigate the crime scene and to introduce competing expert testimony to show that Crappa’s observations were factually impossible. He suggests that a full investigation by a forensic pathologist and a criminalist would have revealed additional details to impeach Crappa and discredit the prosecution’s theory. The district court found that Alcala’s trial counsel was not deficient in failing to investigate the crime scene. We disagree and, contrary to the district court, include the prejudice resulting from this deficiency in our cumulative error analysis.
Alcala has met his burden of demonstrating that an adequate investigation could have resulted in additional evidence favorable to the defense. At the evidentia-ry hearing, Alcala presented the testimony of a forensic pathologist that, due to the condition of Samsoe’s skeleton, “it is highly unlikely that Robin Samsoe died as a result of multiple stab wounds,” as well as a criminalist, who testified that the condition of the knife was inconsistent with its purported use as a murder weapon. The criminalist noted that, even after disassem-bly, there was no blood in any crack or crevice of the knife as would typically be found if it had been used as a murder weapon. Moreover, the spot of blood on the knife was consistent with a blood splatter rather than a wipe or smear mark.
“[D]efense counsel must, ‘at a minimum, conduct a reasonable investigation enabling him to make informed decisions about how best to represent his client.’ ” Rios, 299 F.3d at 805 (quoting Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir.1994)). “While a lawyer is under a duty to make reasonable investigations, a lawyer may make a reasonable decision that particular investigations are unnecessary.” Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir.1998). The district court found trial counsel’s performance adequate primarily because he managed to elicit enough information from the prosecution’s own experts to rebut the prosecution’s case.
Although it may have been reasonable for trial counsel not to retain specific experts, such as a pathologist or a criminalist, it cannot have been reasonable for him not to investigate the crime scene at all. Strickland v. Washington itself was in part a duty-to-investigate case and sheds some light on the applicable analysis. Washington, a death row inmate, asserted that his lawyer was ineffective for failing to investigate psychological and character evidence for his sentencing trial. 466 U.S. at 675-77, 104 S.Ct. 2052. The Supreme Court found that the decision not to investigate was a strategically reasonable one because the attorney “could reasonably surmise from his conversations with [Washington] that character and psychological evidence would be of little help.” Id. at 699, 104 S.Ct. 2052.
Here, by contrast, trial counsel apparently had decided that evidence to impeach Dana Crappa would be of help; he went to the trouble of calling an astrophysicist to refute Crappa’s testimony as to the phase of the moon on one of the nights in question. Impeaching Crappa was central to Alcala’s defense, and without an investigation, trial counsel could not reasonably have known whether the crime scene evidence was consistent with her testimony.
As to the argument that trial counsel reasonably relied on the prosecutor’s own witnesses, we find that such reliance, if any, was unreasonable. In Rios, we considered the government’s argument that defense counsel’s failure to investigate was not deficient because he reasonably relied upon the investigation conducted for a co-defendant. 299 F.3d at 807-08. In rejecting this argument, we held that “it would have been unreasonable for him to rely solely on the investigation performed for a co-defendant, because the co-defendant’s interests in the case might well conflict with [the defendant’s].” Id. at 808. There is no question but that the prosecution’s interests in this case conflicted with Alca-la’s, and so trial counsel’s reliance on the prosecution’s investigation is no more reasonable than the reliance on a co-defendant’s investigation in Rios.
In Holsomback v. White, 183 F.3d 1382 (11th Cir.1998), the Eleventh Circuit considered an analogous failure to investigate in the context of sexual abuse. The prosecution’s case rested entirely on the testimony of one witness, the purported abuse victim. Id. at 1384. The prosecution’s own investigation revealed that there was no medical evidence of sexual abuse. Id. The court determined that it was error for defense counsel “simply to rely on the prosecutor’s references to the lack of physical evidence as the sole source of information on the subject,” id. at 1387-88, and that defense counsel should have conducted his own investigation into the medical evidence or lack thereof. Id. at 1388. Having made no investigation, defense counsel “could not have made an informed tactical decision” not to call medical expert witnesses. Id. Similarly, the prosecution’s case against Alcala rested largely on the credibility of Dana Crappa. The prosecution’s own witnesses established that there was no physical evidence to establish the cause of death as testified to by Crappa, and Alcala’s trial counsel elected “simply to rely on” the prosecution’s investigation as “the sole source of information on the subject.” Id. at 1387-88. He could not have made an informed decision about whether the inability to establish a cause of death and other objective crime scene evidence should be used to impeach Crap-pa’s testimony.
Following Rios and consistent with Holsomback, we hold that the failure to investigate the crime scene was deficient. Alca-la has shown some prejudice resulting from this deficiency, suggesting that if his trial counsel had investigated the crime scene, he would have retained the services of a criminalist and a forensic pathologist. The resulting evidence would have helped to discredit Crappa’s testimony and the prosecution’s inferences drawn therefrom. The district court should have included the prejudice flowing from this deficiency in the cumulative error analysis, and we will do so here.
iii. Failure to Investigate the Value of the Earrings
At trial, the prosecution presented evidence that a pair of gold-ball earrings had been seized from a storage locker rented by Alcala. Marianne Frazier, Samsoe’s mother, testified that the earrings were similar to a pair of cheap $3 earrings that she owned and that Samsoe sometimes wore, earrings that she had not seen since Samsoe’s disappearance.
Alcalá urges that his trial counsel was constitutionally ineffective in failing to call an expert gemologist to demonstrate that the earrings found in the storage locker were not cheap $3 earrings, such as those that Samsoe’s mother testified that she had owned, but instead were mid-priced custom jewelry with a higher gold content. Alcala presented the testimony of a gemologist at the evidentiary hearing to establish the gold content and value of the earrings. This testimony was inconsistent with Frazier’s testimony, substantially undercutting the assertion that the earrings found in the storage locker were taken from Samsoe. Although the district court recognized the potential impact of an expert gemologist’s testimony in “neutral-iz[ing] the damaging inferences the jury might otherwise draw from the similarity between the earrings in Alcala’s storage locker and Ms. Frazier’s lost earrings,” the district court found no deficiency because trial counsel had no way of knowing that the earrings were inconsistent with Frazier’s description.
We agree with the district court’s conclusion that this alleged deficiency was properly excluded from the cumulative error analysis. Alcala’s trial counsel reasonably could have expected that if the earrings were more valuable than Frazier suggested, Alcala, as the owner of the earrings, would have informed him of this fact. See Strickland, 466 U.S. at 691, 104 S.Ct. 2052 (“The reasonableness of counsel’s actions may be determined ... by the defendant’s own statements or actions. Counsel’s actions are usually based, quite properly, ... on information supplied by the defendant.”). There is no indication in the record that Alcala did so, or that competent counsel would have realized that the earrings were more valuable than the earrings described by Frazier. Trial counsel’s performance was not deficient, and the prejudice from the failure to investigate the value of the earrings cannot be included in our cumulative error analysis.
D. Cumulative Prejudice
We now turn to the issue of whether the cumulative effect of these errors had “a substantial and injurious effect” on the jury’s verdict. Coleman, 525 U.S. at 145, 119 S.Ct. 500 (internal quotation marks omitted). We agree with the district court that the cumulative effect of these errors “operated to deprive Alcala of a fundamentally fair trial.” The district court correctly weighed all of the errors together in order to assess their cumulative impact on Alcala’s constitutional rights. “[E]ven if no single error were [sufficiently] prejudicial, where there are several substantial errors, ‘their cumulative effect may nevertheless be so prejudicial as to require reversal.’ ” Killian v. Poole, 282 F.3d 1204, 1211 (9th Cir.2002) (quoting United States v. de Cruz, 82 F.3d 856, 868 (9th Cir.1996)).
Here, the cumulative impact of these errors goes to the heart of the prosecution’s theory of the case and undermines every important element of proof offered by the prosecution against Alcala. Indeed, after reviewing the errors in this case, we are left with the unambiguous conviction that the verdict in this case was not the result of a fair trial.
The trial court precluded Alcala from effectively challenging or excluding the testimony of the prosecution’s key witness — Dana Crappa. The trial court’s exclusion of Dr. London’s expert testimony deprived Alcala of an important opportunity to discredit the only eyewitness who allegedly could place Alcala with Samsoe at the scene of the crime on the evening of June 20. Had Dr. London been permitted to testify, the jury may have discounted Crappa’s testimony as not credible in light of the fact that it was obtained through improper and dubious means, as well as the obvious and apparent instability of Crappa’s mental condition. Dr. London’s expert testimony, combined with Crappa’s bizarre demeanor, would have seriously called into question her reliability as a witness. Had the credibility of the prosecution’s star witness been effectively challenged, the case against Alcala would have been undoubtedly weaker.
Second, aside from Crappa, the only witness who could place Alcala with Samsoe was Jackelyn Young, who claimed to have seen Alcala with Samsoe at Huntington Beach on the afternoon of June 20 at 3:00 p.m. Had Alcala’s counsel adequately presented Alcala’s Knott’s Berry Farm alibi, Alcala could have directly challenged Young’s testimony. Alcala’s alibi also would have challenged the theory that Al-cala abducted Samsoe after she left Wil-vert’s house at 3:10 p.m.
Third, Fallen’s, Crawford’s, and Vasquez’s testimony would have further weakened the prosecution’s theory of the case. The combined testimony of these witnesses would have challenged Crappa’s version of the events and presented a colorable third-party culpability theory for the jury to assess.
Fourth, the erroneous admission of the Kane Kutlery knives seized from Alcala’s home permitted the jury to draw an impermissible connection between Alcala and the purported murder weapon — the key and only piece of physical evidence discovered at the scene of the crime that could be linked to Alcala. The prosecution’s placement of undue emphasis on this link compels us to conclude that the jury’s verdict was tainted by the admission of this evidence.
Fifth, Alcala’s trial counsel presented a fatally impeachable witness, Vogel, without first assessing how Vogel would respond on cross-examination to evidence that he told police that Alcala confessed to him. As a result, Vogel actually served to reinforce the informant’s tale that Alcala confessed to murdering Samsoe. Trial counsel’s performance not only deprived Alcala of a potentially meritorious defense, but his actions and omissions also substantially impaired Alcala’s efforts to demonstrate reasonable doubt.
Lastly, Alcala’s trial counsel completely failed to conduct any investigation of the crime scene. This failure likely resulted in the loss of an opportunity to challenge Crappa’s purported observations as inconsistent with the objective evidence.
Therefore, we conclude that the cumulative impact of these errors is more than sufficient to demonstrate prejudice. The cumulative weight of the above errors deprived Alcala of a fundamentally fair trial.
Conclusion
We conclude, as did the district court, that the deficient presentation of Alcala’s alibi and the exclusion of Dr. London’s testimony was each on its own an error sufficiently prejudicial to grant Alcala’s petition. When combined with the erroneous exclusion of Fallen, Crawford, and Vasquez, the erroneous admission of the Kane Kutlery knives, the deficient failure to prepare Vogel to testify, and the deficient failure to investigate the crime scene, the cumulative impact of these errors severely undermines our confidence in the jury’s verdict. We affirm the conditional grant of Alcala’s petition.
AFFIRMED.
Dodwell's statements, although perhaps hearsay, nonetheless constitute probative evidence because California failed to object to their admission at the evidentiary hearing before the district court. See United States v. Armstrong, 48 F.3d 1508, 1518 n. 8 (9th Cir.1995), rev'd on other grounds, 517 U.S. 456, 116 S.Ct. 1480 (1996).
As discussed below, the prosecutor did attempt to connect Alcala to the knife found near Samsoe’s body, but the evidence relied on by the prosecutor was immaterial to such a connection.
California cites cases denying ineffective assistance claims where the defendant failed to identify what excluded witnesses would have said, United States v. Berry, 814 F.2d 1406, 1409 (9th Cir.1987), or to identify any witnesses that should have been called for the defense, United States v. Murray, 751 F.2d 1528, 1535 (9th Cir.1985); where the witness had a Fifth Amendment right not to testify and had credibility problems because he was a convicted felon, United States v. Harden, 846 F.2d 1229, 1231-32 (9th Cir.1988); where the witness did not testify because counsel could not locate him, Tinsley v. Borg, 895 F.2d 520, 532 (9th Cir.1990); and where the only evidence that the witness existed was the petitioner's own affidavit, Dows v. Wood, 211 F.3d 480, 486 (9th Cir.2000). None of these situations is presented here.
Our determination of prejudice is not diminished by the fact that Dodwell indicated to a defense investigator that Alcala might have been at Knott's Berry Farm around 1:30 p.m. instead of 3:00 p.m. "We have previously found prejudice when counsel failed to ... present the testimony of alibi witnesses, even though their testimony was 'vague with regard to time.’ " Luna v. Cambra, 306 F.3d 954, 961 (9th Cir.2002) (quoting Brown v. Myers, 137 F.3d 1154, 1157 (9th Cir.1998)).
Robison and Farnell did not record the entire interview, only the final twenty-four minutes.
California presents a strong argument that Alcala never offered Dr. London for impeachment purposes, but we are unconvinced. Al-cala offered Dr. London's testimony after Detective Droz testified that he never hypnotized Crappa, putting her hypnosis at issue and opening the door for impeachment. Moreover, the record supports that Alcala meant to use Dr. London to undermine Crappa's testimony. Finally, the trial court imposed a blanket prohibition on Dr. London's testimony pursuant to California Evidence Code § 352 when it made its preliminary finding of fact that Crappa had not been hypnotized. By excluding Dr. London pursuant to § 352, the trial court understood the probative value of his testimony, independent of whether Crappa's testimony was admissible, but excluded it anyway given other concerns. This ruling indicated that Dr. London’s testimony would be excluded no matter how Alcala intended to use his testimony.
California originally argued that the district court erred in cumulating the prejudice from both trial court errors and deficiencies of trial counsel. At oral argument, California conceded that our case law allows such cumulation. See Mak v. Blodgett, 970 F.2d 614, 622 (9th Cir.1992).
The trial court also stated that Fallen "looked like a drifter,” but went on to say that Fallen’s appearance "doesn’t influence me.... So I don’t want to hear that come back and haunt me from that super court that is up there with God alone.”
This theory also would be inconsistent with Alcala returning to Mile Marker 11 on June 21 after taking Samsoe there and killing her on June 20, as the prosecution argued.
The prosecutor made the following statements about the Kane Kutlery knives in his closing argument: The Kane Kut knives. Again, interesting coincidences. Interesting coincidences. There's a Kane Kut knife found in the mountains. The defense, as I mentioned, says that’s not even the murder weapon in this particular case. It’s just a coincidence. But lying there in the brush right next to remnants of Robin Samsoe’s blond hair is a butcher knife. A Kane Kut butcher knife with human blood on it. That’s a coincidence, folks. The knife was dirty or had some mud on it or something. That couldn’t be the knife. Is that a coincidence? Is that one of the most extraordinary coincidences you ever heard in your life that lying at the scene of the murder of a young child is a knife with human blood on it and they want you to believe that’s a coincidence. In the defendant’s home, there are knives. What kind of knives are they? Kane Kut knives. Again, the defendant says that's a coincidence. It’s just coincidental that the very brand that is found in the mountains is also in the defendant’s home. And that’s certainly not enough to convict him, obviously. If that was all the evidence we had ... we wouldn’t be here. But it’s a very interesting coincidence, especially when you hear from Mrs. Schneider, from Kane Kut, about the number of knives we’re talking about. And again, my memory for numbers isn’t that great, but I am sure you all wrote it down. The knife found in the mountains, my recollection is she said something like 3,000 of those knives had been sold in the six western states over a period of something like five years. And they are sold in supermarkets. They are cheap knives. It is not as if the market was saturated with Kane Kut knives. Three thousand sold in six states during five years. We don't want to argue statistics, and I am not going to, but it makes me wonder. That's an interesting coincidence. With respect to the other knife sets that were Kane Kut knives, certainly this is not a leading knife brand. Probably none of us ever heard about it before. It was something like 15,000 of each one of those sets had been sold, again over a five-year period in the six western states, so in terms of their availability that’s an interesting coincidence. It’s not exactly like if we walked into all of our homes and looked through the drawers, we'd come across a bunch of Kane Kut knives.
California cites an Eighth Circuit case, Battle v. Delo, 19 F.3d 1547 (8th Cir.1994), which held that "trial counsel is not required to employ the services of experts, provided that counsel prepares an adequate defense for a client through careful investigation of facts surrounding the case.” Id. at 1557. Battle is inapplicable here for the simple reason that Alcala’s trial counsel did not conduct an investigation of the crime scene.
The district court relied upon Hall v. Sumner, 682 F.2d 786 (9th Cir.1982), in which we held that counsel was not ineffective in declining to present a diminished capacity defense where he had elicited enough information from the prosecutor’s expert witness to argue diminished capacity. Id. at 789. In Hall, however, we found that defense counsel had made a “reasonable tactical decision[ ]" not to present a diminished capacity defense and that he had in fact argued such a defense, as an alternative to his factual innocence claim, based on evidence elicited from prosecution witnesses. Id. Because Alcala’s counsel did not make a tactical decision not to impeach Crappa, but instead made every effort to impeach Crappa, Hall is inapposite.
Alcala argues that trial counsel should have known that the earrings were valuable because one of the friction post nuts on the earrings was stamped "14k," indicating 14 karat gold. Although the expert gemologist who testified at the evidentiary hearing stated that this stamp "was clearly visible with a magnifying glass,” there is no evidence that it would have been obvious upon an ordinary examination of the earrings.
[No. S150806.
June 12, 2008.]
RODNEY JAMES ALCALA, Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
Counsel
Richard L. Schwartzberg, under appointment by the Supreme Court; and George Peters for Petitioner.
No appearance for Respondent.
Tony Rackaukas, District Attorney, Brian N. Gurwitz and James J. Mulgrew, Deputy District Attorneys, for Real Party in Interest.
Opinion
GEORGE, C. J.
In this matter, the prosecution moved under Penal Code section 790, subdivision (b) (section 790(b)), to join five murder charges— one originating in Orange County, and the other four in Los Angeles County—in order to proceed with a single trial in Orange County. Each murder charge alleges a separate special circumstance (§ 190.2), making each a charge of a capital offense. We granted review to address the Court of Appeal’s conclusions that (1) intercounty joinder is proper under the statute, but (2) two of the Los Angeles murder charges must be severed for separate trial. We conclude that the appellate court was correct on the first point, but erred on the second—and therefore that a single trial on all five charges may proceed.
I
Petitioner Rodney James Alcala was tried and sentenced to death in Orange County for the June 1979 kidnapping and murder of 12-year-old Robin Samsoe. This court reversed that judgment in People v. Alcala (1984) 36 Cal.3d 604 [205 Cal.Rptr. 775, 685 P.2d 1126] (Alcala I). Upon retrial in Orange County, petitioner again was convicted and sentenced to death. We affirmed on appeal (People v. Alcala (1992) 4 Cal.4th 742 [15 Cal.Rptr.2d 432, 842 P.2d 1192] (Alcala II)), but a federal district court set aside that judgment, and the United States Court of Appeals for the Ninth Circuit affirmed the federal district court’s judgment. (Alcala v. Woodford (9th Cir. 2003) 334 F.3d 862.)
Petitioner again was returned to Orange County for retrial on the charges relating to Robin Samsoe. In the meantime, an Orange County grand jury issued an indictment against petitioner on four additional counts alleging the murders of young women in Los Angeles County occurring between November 1977 and June 1979. The prosecution, relying upon section 790(b), moved to consolidate the Orange County (Robin Samsoe) case with the four murder charges arising from Los Angeles County. The trial court granted that motion and refused defendant’s request to sever the five murder charges. Petitioner sought relief in the Court of Appeal by way of an alternative writ of mandate or prohibition. The appellate court denied relief in part and granted in part; it concluded that joinder of all five murder charges was proper under the statute, but that retrial of the Robin Samsoe case in Orange County could proceed together with only two of the four Los Angeles County murder charges, and that the other two Los Angeles County murder charges would have to be tried separately. As noted above, we conclude that all five murder charges may be tried jointly in Orange County.
II
A. The Robin Samsoe case
The Court of Appeal provided a factual recitation, which in turn was based largely upon our recitation in Alcala II, supra, 4 Cal.4th 742:
On June 20, 1979, 12-year-old Robin Samsoe spent the afternoon with her girlfriend, Bridget W., on the cliffs overlooking the beach in the City of Huntington Beach in Orange County. A man approached asking to take their pictures for what he represented to be a photography contest. The girls posed for him until Jackelyn Young, Bridget W.’s neighbor, noticed the attention being paid by the man to the young girls and interrupted them. The man hurriedly picked up his equipment and left. This individual later was identified as petitioner. (Alcala II, supra, 4 Cal.4th at pp. 755-756.)
A few minutes later, Robin and Bridget returned to Bridget’s home, where Robin borrowed Bridget’s bicycle to ride to her ballet class. Robin was not seen alive again. (Alcala II, supra, 4 Cal.4th at pp. 755-756.)
Dana Crappa was a seasonal worker for the United States Forestry Service stationed at Chantry Flats, an area near Sierra Madre in Los Angeles County. Later on the day Robin disappeared, Crappa, while driving in that mountainous area, came upon a Datsun F10 automobile parked at a turnout. Crappa saw a dark-haired man pushing or “ ‘forcefully steering’ ” (Alcala II, supra, 4 Cal.4th at p. 758) a blond-haired girl toward a dry stream bed. Although Crappa considered the scene strange, she took no action. The next day, as Crappa was returning to her barracks and passing the same area, she saw the same car parked near the original site and noticed what seemed to be the same dark-haired man leaning against a nearby rock. He appeared to have dirt or stains on the front of his T-shirt. Crappa believed there was something wrong with this scenario, but again took no action and told no one. (Id., at pp. 758-759; Alcala I, supra, 36 Cal.3d 604, 616.) Subsequently, Crappa testified that the man she saw on June 20 resembled petitioner, although she was “ ‘not 100% positive.’ ” (Alcala II, supra, 4 Cal.4th at p. 758.)
Five days after the original sighting, Crappa again returned to the scene. She discovered the mutilated and unclothed body of a young girl missing part of her head and whose hands and feet had been severed. She did not report this finding, nor did she reveal it to anyone, because she felt guilty about not having informed authorities what she had seen five days earlier. Four days later, Crappa returned to the scene and noticed a tennis shoe, shorts, and a T-shirt in a pile together. Finally, on July 2, 1979—12 days after Robin disappeared—a colleague of Crappa’s discovered a human skull and some bones in the area and reported that find to the authorities. The front lower teeth were smashed in, consistent with a traumatic blow to the mouth. By this time the skull had become completely separated from the spine, and wild animals had so disrupted the decomposed remains that it could not be determined what had caused the death or whether the person had been sexually assaulted. A “Kane Kut” kitchen knife was found near the main portion of the remains. Less than a mile away, Robin’s beach towel was discovered with blood on it of a type consistent with that drawn from the bone marrow of the remains. One of her personalized tennis shoes also was found, but that was the only piece of clothing retrieved. (Alcala II, supra, 4 Cal.4th at pp. 758-760.)
In the interim, Robin’s companion, Bridget W., assisted a police composite artist in drawing a sketch of the man who took the girls’ photographs. That composite sketch was distributed by the media on or about June 22. Petitioner’s parole officer saw the sketch and believed it matched petitioner, particularly in light of matters known to the officer—such as petitioner’s aberrant sexual interest in young girls and his familiarity with the area in which the remains were found. (Alcala II, supra, 4 Cal.4th at p. 756.)
When petitioner visited his girlfriend, Elizabeth Kelleher, in Long Beach on June 22, his hair was long and curly. On June 23, the composite sketch was distributed throughout the area; on that same day, petitioner straightened his hair with the aid of a chemical product. On June 26, he cut his hair. On July 8, he told Kelleher he had decided to leave Southern California for Dallas, Texas, where he planned to establish a photography business. Kelleher accompanied defendant to the Monterey Park residence he shared with his mother to help him pack for the trip.
On July 11, defendant rented a storage locker in Seattle, Washington. When he returned to California three days later, he did not mention to anyone that he had been to Seattle, and instead told Kelleher he had been to Dallas. On July 23, defendant told Kelleher he would leave for Dallas on the following day—and he told another acquaintance he would leave for Chicago. (Alcala II, supra, 4 Cal.4th at p. 760.)
Petitioner was arrested on July 24, however, and a search warrant was served on the home he shared with his mother. The police impounded a Datsun F10 parked at the residence and registered to petitioner, inside of which the officers found camera equipment and a briefcase containing a set of keys. Inside the home, officers seized sets of Kane Kut kitchen knives and observed a receipt for a storage locker located in Seattle, Washington. One of the officers copied the information on the receipt but did not seize it. Officers returned the next day to retrieve the receipt, but it was gone. (Alcala II, supra, 4 Cal.4th at pp. 756-761.)
The Seattle storage locker was searched pursuant to a warrant. Police opened the locker’s two locks with keys found inside petitioner’s briefcase. Inside the locker, the officers discovered (1) a box of photographs, including photographic slides taken of Lorraine W. (see ante, fn. 2) at the beach on the same day Robin disappeared; and (2) a cloth pouch containing several items of jewelry, including gold earrings that, according to the testimony of Robin Samsoe’s mother, often were worn by Robin and that she identified as her own. Samsoe’s mother based her identification of the earrings on a modification she had made by using her nail clippers to “trim” the earrings. The striations found on the earrings were consistent with marks made by the same nail clippers in a test. (Alcala II, supra, 4 Cal.4th at p. 761.)
Petitioner did not testify, but presented an alibi defense. He called various witnesses, who recounted that he applied for a photographer’s position at Knott’s Berry Farm about June 20, although none could testify to having seen him there on that date. A defense witness testified that the striations on the gold earrings were consistent with having been made with nail clippers provided by petitioner’s mother. One witness testified that she never saw petitioner wear gold earrings like the ones worn by Robin, but another witness friend testified she believed he in fact had worn such an earring. Finally, a jail inmate who became acquainted with petitioner while the latter was awaiting his first trial on the Orange County charges, testified that petitioner told him that Robin had scratched him and yelled during the attack, and that petitioner also described Robin’s body in prurient terms. (Alcala II, supra, 4 Cal.4th at pp. 761-763.)
B. The four Los Angeles County charges
The relevant facts concerning the killings of four young women in Los Angeles County were set forth by the Court of Appeal below, and we adopt that recitation with minor corrections and changes. The indictment issued by the Orange County grand jury was based upon the following information:
In November 1977, the body of Jill Barcomb was found on a remote dirt road in the Hollywood Hills, essentially nude. She had suffered severe trauma to her head and face. Her skull was crushed in the left forehead area, possibly with a rock approximately seven-by-four inches in size that was found lying nearby, the pointed side of which was covered with blood. Her front teeth had been fractured. She had a bloody bite mark on the nipple of her right breast, as well as serious injuries to, and conspicuous bleeding from, the anus. Finally, she had been strangled in three different ways: with a buckled belt, with knee-high hose, and with one of the legs to the pants she had been wearing. Her body was found in a position that appeared to be posed—kneeling, with legs spread out, and with her genitalia exposed.
Barcomb stood no more than five feet tall and weighed about 95 pounds. Swabs of fluid taken from her genital area were preserved. Subsequently, the development of DNA typing techniques led to a comparison being made between the DNA in the sperm found in the swabs and that of petitioner. The samples matched, with a random correspondence occurring only once in 100 billion.
In December 1977, Georgia Wixted resided alone and was employed as a nurse. In the early morning hours she gave her girlfriend, Barbara Gale, a ride home from a bar. Gale expected to see Wixted at work the next day. After she failed to appear, law enforcement officers who went to her Malibu apartment found her dead on the floor of her bedroom. She was naked, lying on her back, with a bedspread partly under her; a nylon stocking was wrapped around her neck several times and so tightly knotted that a furrow was carved into the cartilage. She had died of strangulation and massive head injuries: Her skull had been bashed, probably with a hammer lying nearby. Her face also had been struck, and her genitals were mutilated. The contents of her purse were strewn around the bathroom; the cabinet drawers throughout the apartment were open and their contents in disarray, and there was evidence of forced entry.
Swabs of fluids were taken from the victim’s anus, and a palm print was lifted from the bed’s brass railing. DNA analysis of fluids from the swabs matched petitioner’s DNA, with a random correspondence occurring only once in one trillion. The palm print later was compared with petitioner’s, and likewise matched.
In June 1978, Charlotte Lamb was found brutally killed in a laundry room of an apartment complex in El Segundo. She was nude and had been strangled with a long lace from a shoe she had been wearing. Her head and face had been beaten. The shoelace was used as a garrote, so forcefully tightened that the cartilage around her voice box and thyroid was fractured. Her right breast was scraped and there were lacerations over her eye and to her entire genital area. She had pierced ears but was found without earrings. Swabs of fluid taken from her vaginal area later were compared to the DNA sample obtained from petitioner. The DNA found in seminal fluid on the swabs matched petitioner’s DNA, with a random correspondence occurring once in 403 trillion. Her naked body appeared to be posed, with the arms behind the back and the face up.
In June 1979, a few days before Robin Samsoe’s disappearance, Jill Parenteau left her place of employment early to attend a baseball game. She failed to appear for work the next day. When the police went to her Burbank apartment, they discovered evidence of a forced entry and her body on the floor of the bedroom. She had been beaten about the face and head. Parenteau had deep wounds to her vaginal and rectal areas, and fingernail scratches on her breast. She had been strangled and had suffered severe hemorrhaging throughout the area of her thyroid, voice box, and epiglottis. Her legs were spread apart; her body, completely nude, appeared to be posed with pillows propped up under the shoulders.
Swabs of fluids were taken from her genitals and her mouth. Only the oral swab revealed any seminal fluid, and the only testing undertaken was to define the serological characteristics of the contributor. That test revealed that petitioner could not be excluded from having deposited the fluid, and that the combination of serological factors was rare—it would be present in only 3.5 percent of the population.
One of Parenteau’s friends, Katharine Bryant, testified she recognized petitioner. Bryant and Parenteau had gone “clubbing” one evening less than one month prior to Parenteau’s death, and had encountered petitioner. They had seen him and socialized with him at a club on more than one occasion.
All of the DNA and related testing concerning the Los Angeles County charges was performed between 2001 and 2003. A further test was conducted on pieces of jewelry found in the cloth pouch retrieved from petitioner’s storage locker in Seattle. One pierced earring—other than the gold earrings recognized by Robin’s mother—was in the shape of a rose. DNA testing was performed on this earring, revealing that fluids from Lamb (matching with a random correspondence occurring less than once in 100 billion) remained present on the earring, even after the passage of more than 20 years.
III
Section 790, subdivision (a), long has provided that jurisdiction for a criminal action for murder lies “in the county where the fatal injury was inflicted or in the county in which the injured party died or in the county in which his or her body was found.” Under this rule, homicides committed by a serial killer in different counties could not be joined in a single accusatory pleading, or otherwise consolidated for trial in a single county, but instead were required to be prosecuted successively in separate trials in different counties. This required practice often resulted in inefficiency and high costs to all parties, and forced witnesses—including surviving victims and victims’ family members—to testify repeatedly and relive the often traumatic events underlying the commission of the crimes.
Senate Bill No. 469 (1997-1998 Reg. Sess.) (Senate Bill No. 469) was enacted in 1998 to address these problems by adding section 790(b), the statute at issue in the present case. (Stats. 1998, ch. 549, § l.) That section provides: “If a defendant is charged with a special circumstance pursuant to paragraph (3) of subdivision (a) of Section 190.2 [that is, multiple murder], the jurisdiction for any charged murder, and for any crimes properly joinable with that murder, shall be in any county that has jurisdiction pursuant to subdivision (a) for one or more of the murders charged in a single complaint or indictment as long as the charged murders are ‘connected together in their commission, ’ as that phrase is used in Section 954, and subject to a hearing in the jurisdiction where the prosecution is attempting to consolidate the charged murders... ,” (§ 790(b), italics added.)
We begin with the language of the statute, affording the words their ordinary and usual meaning and viewing them in their statutory context. (People v. Watson (2007) 42 Cal.4th 822, 828 [68 Cal.Rptr.3d 769, 171 P.3d 1101]; Hassan v. Mercy American River Hospital (2003) 31 Cal.4th 709, 715 [3 Cal.Rptr.3d 623, 74 P.3d 726]; accord, City of Burbank v. State Water Resources Control Bd. (2005) 35 Cal.4th 613, 625 [26 Cal.Rptr.3d 304, 108 P.3d 862].)
The People read section 790(b) as allowing a single joint trial of inter-county murder charges accompanied by a multiple-murder special-circumstance allegation so long as one substantive condition is met: “the charged murders are ‘connected together in their commission,’ as that phrase is used in Section 954.” Petitioner, however, divines in section 790(b) another, and preliminary, substantive condition. Focusing on the phrase “and for any crimes properly joinable with that murder,” (italics added) he asserts the statute should be read to require not only that joined murder charges be “ ‘connected together in their commission,’ as that phrase is used in Section 954,” but also that the murders each be “part of a common plan or scheme.” (Italics added.)
For the reasons that follow, we agree with the People’s construction of the statute. By its terms, section 790(b) specifies that jurisdiction for the trial of any charged murder shall lie in any county that has jurisdiction “pursuant to subdivision (a) [of section 790] for one or more of the murders charged in a single complaint or indictment as long as the charged murders are ‘connected together in their commission,’ as that phrase is used in Section 954.” (Italics added.) As explained below, we reject petitioner’s competing interpretation, because we find it more reasonable to construe the statute’s “properly joinable” language as merely providing that, with respect to the charged murders, any other crimes (such as rape, kidnapping, etc.) that are “properly joinable” with a given murder charge also may be charged and tried along with that murder. We do not read the statute as imposing any substantive requirement other than that the charged murders be “ ‘connected together in their commission,’ as that phrase is used in Section 954.” (§ 790(b).)
Although petitioner cites no decision supporting his view that the statute also requires that the joined murders be “part of a common plan or scheme,” he asserts the statute’s legislative history supports his interpretation. As explained below, we disagree and find instead that these materials both (1) confirm the People’s construction and (2) clarify that the Legislature intended a very broad test for joinder in employing the language “ ‘connected together in their commission,’ as that phrase is used in Section 954.” (§ 790(b).)
As amended a few months after its introduction in February 1997, Senate Bill No. 469 would have conditioned joinder of intercounty murder charges upon a finding of cross-admissibility; the amended bill provided for joinder “if evidence of one or more of the charged murders would be admissible in separate trials of the other charged murders pursuant to subdivision (b) of Section 1101 of the Evidence Code.” (Sen. Bill No. 469, as amended June 2, 1997, italics omitted.) More than one year later, that proposed cross-admissibility test was removed in favor of the language found in the statute today, permitting joinder “as long as the charged murders are ‘connected together in their commission,’ as that phrase is used in Section 954.” (Sen. Bill No. 469, as amended June 17, 1998, italics omitted; see § 790(b).)
In rejecting a requirement that one or more of the charged murders be cross-admissible, in favor of the “connected together in their commission” language in section 790(b), the Legislature embraced a broad test that had been applied in numerous cases construing section 954.
Until more than 90 years ago, joinder of criminal charges in a single accusatory pleading had been strictly limited. Former section 954 read: “The indictment... may charge different offenses,... under separate counts, but they must all relate to the same act, transaction, or event, and charges of offenses occurring at different and distinct times and places must not be joined.” (§ 954, amended by Stats. 1905, ch. 574, § 1, p. 772, italics added.) In 1915, section 954 was amended to read in relevant part as it does today, permitting the joinder of matters “connected together in their commission.” (Stats. 1915, ch. 452, § 1, p. 744, italics added.) As Witkin long has observed (4 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Pretrial Proceedings, § 208, p. 412; see also Witkin, Cal. Criminal Procedure (1963) Proceedings Before Trial, § 207, pp. 194-195), the revised language applicable since the 1915 amendment “is broader” than the former, and “permits the joinder of different offenses not related to the same transaction or event ‘if there is a common element of substantial importance in their commission, for the joinder prevents repetition of evidence and saves time and expense to the state as well as to the defendant.’ ” (4 Witkin & Epstein, Cal. Criminal Law, supra, Pretrial Proceedings, § 208, at pp. 412-413, italics added, quoting People v. Scott (1944) 24 Cal.2d 774, 778 [151 P.2d 517] (Scott); see also, e.g., People v. Valdez (2004) 32 Cal.4th 73, 119 [8 Cal.Rptr.3d 271, 82 P.3d 296]; People v. Mendoza (2000) 24 Cal.4th 130, 160 [99 Cal.Rptr.2d 485, 6 P.3d 150] (Mendoza); People v. Lucky (1988) 45 Cal.3d 259, 276 [247 Cal.Rptr. 1, 753 P.2d 1052] (Lucky); People v. Matson (1974) 13 Cal.3d 35, 39 [117 Cal.Rptr. 664, 528 P.2d 752]; People v. Pike (1962) 58 Cal.2d 70, 84 [22 Cal.Rptr. 664, 372 P.2d 656]; People v. Kemp (1961) 55 Cal.2d 458, 475 [11 Cal.Rptr. 361, 359 P.2d 913] (Kemp); People v. Chessman (1959) 52 Cal.2d 467, 492 [341 P.2d 679] (Chessman); People v. Poon (1981) 125 Cal.App.3d 55, 68 [178 Cal.Rptr. 375] (Poon); Ghent v. Superior Court (1979) 90 Cal.App.3d 944, 958 [153 Cal.Rptr. 720]; People v. Walker (1952) 112 Cal.App.2d 462, 471 [246 P.2d 1009] (Walker).) Moreover, as long observed in our cases, the requirement of section 954 that offenses be “connected together in their commission” may be satisfied even though “the offenses charged ‘do not relate to the same transaction and were committed at different times and places... against different victims.’ ” (People v. Polk (1964) 61 Cal.2d 217, 230 [37 Cal.Rptr. 753, 390 P.2d 641], italics added; see also Chessman, supra, 52 Cal.2d 467, 492, and cases cited; Poon, supra, 125 Cal.App.3d at p. 68.)
This history, culminating in the Legislature’s adoption in section 790(b) of the broad and long-construed “connected together in their commission” test from section 954, provides no support for petitioner’s argument that we should read section 790(b) as requiring, in addition, that the charged murders be “properly joinable” with each other in some manner beyond the requirement that they be connected together in their commission. Nor do we discern in the language or history of the statute any legislative intent to require that joined murders be part of a common plan or scheme. If the Legislature had intended such an additional requirement, we expect it would have expressly so provided in section 790(b).
We proceed to address the question whether, applying the “connected together in their commission” test to the five murders charged, there exists a “common element of substantial importance in their commission.” (Scott, supra, 24 Cal.2d at p. 778.) All five homicide victims were young, single Caucasian females and all suffered blunt-force facial trauma. All of the offenses occurred within a 19-month period, and the body of each victim was discovered unclothed, or partially nude from the waist down. Each of the five charged murders involved what were apparently sexually motivated assaults. All four Los Angeles charges reveal clear evidence of sexual assault. Although Robin Samsoe’s body was too decomposed to make a similar determination, the available evidence—including (1) petitioner’s photographing bikini-clad young females on the same day and near the general location of Robin’s disappearance, (2) Robin’s unclothed remains, and (3) petitioner’s comments to jail inmates concerning Robin (Alcala I, supra, 36 Cal.3d 604, 618 [inmate testified that he overheard petitioner inform another inmate that he had asked Robin whether she ever had posed nude]; Alcala II, supra, 4 Cal.4th 742, 761 [another inmate testified concerning petitioner’s prurient description of Robin’s body])—provides no rational explanation for her abduction other than an unlawful sexual purpose.
Moreover, in addition-to the common evidence described above, as the Court of Appeal observed, the intent or motivation to brutally kill young females also ties all of the crimes together. As we held in Mendoza, supra, 24 Cal.4th 130, the intent or motivation with which different acts are committed can qualify as a “common element of substantial importance” in their commission and establish that such crimes were “connected together in their commission.” (Id., at p. 160 [the “ ‘ “element of intent to feloniously obtain property runs like a single thread through the various offenses” ’ ” and constitutes a “ ‘ “ ‘common element of substantial importance’ ” ’ ” in their commission].) Other cases have similarly held. (Lucky, supra, 45 Cal.3d 259, 276 [same]; Chessman, supra, 52 Cal.2d 467, 492 [same]; Kemp, supra, 55 Cal.2d 458, 476 [listing as one of the “common elements of substantial importance” among crimes occurring two years apart the circumstance that “[i]n each crime the obvious motive was satisfaction of appellant’s sexual desires”]; Poon, supra, 125 Cal.App.3d 55, 69 [“the offenses joined here share numerous ‘common elements’; the most significant being sexual motivation and young girl victims,” and accordingly “the offenses were ‘connected together in their commission’ for purposes of section 954”]; Walker, supra, 112 Cal.App.2d 462, 471 [listing as a “common element of substantial importance” among two crimes the circumstance that “in each instance a woman was kidnapped and a common intent is clearly disclosed”].)
Petitioner asserts intent or motivation cannot constitute a “common element of substantial importance,” and, instead, only physical or objectively measurable factors, such as use of a specific individual weapon, can suffice. As shown by Mendoza, supra, 24 Cal.4th at page 160, and related cases cited above, California appellate courts long have held otherwise. In any event, as also noted above, we discern various other common elements. We conclude that the evidence, viewed cumulatively, amply connects the five murder charges and justifies their joinder under section 790(b). Indeed, it appears that these are precisely the types of cases that the Legislature intended to be tried jointly.
IV
As we often have observed, because consolidation or joinder of charged offenses ordinarily promotes efficiency, that is the course of action preferred by the law. (People v. Geier (2007) 41 Cal.4th 555, 578 [61 Cal.Rptr.3d 580, 161 P.3d 104] (Geier); People v. Stanley (2006) 39 Cal.4th 913, 933 [47 Cal.Rptr.3d 420, 140 P.3d 736]; People v. Ochoa (1998) 19 Cal.4th 353, 408-409 [79 Cal.Rptr.2d 408, 966 P.2d 442], and cases cited; see generally Cal. Const., art. I, § 30, subd. (a) [“This Constitution shall not be construed by the courts to prohibit the joining of criminal cases as prescribed by the Legislature... .”].) Consistently with these principles, and because the statutory requirements for joinder under section 790(b) have been met, petitioner can establish error in the trial court’s ruling allowing joint trial of the five charged offenses only by making a “clear showing of prejudice to establish that the trial court abused its discretion in denying... defendant’s severance motion.” (Mendoza, supra, 24 Cal.4th 130, 160, and cases cited, italics added; People v. Kraft (2000) 23 Cal.4th 978, 1030 [99 Cal.Rptr.2d 1, 5 P.3d 68] (Kraft); People v. Marshall (1997) 15 Cal.4th 1, 27 [61 Cal.Rptr.2d 84, 931 P.2d 262] (Marshall); see also Poon, supra, 125 Cal.App.3d at p. 69.)
A trial court’s denial of a motion for severance of charged offenses amounts to a prejudicial abuse of discretion if the “ ‘trial court’s ruling “ ‘falls outside the bounds of reason.’ ” ’ ” (People v. Ramirez (2006) 39 Cal.4th 398, 439 [46 Cal.Rptr.3d 677, 139 P.3d 64].) In making that assessment, we consider the record before the trial court when it made its ruling. (Mendoza, supra, 24 Cal.4th at p. 161.) “The factors to be considered are these: (1) the cross-admissibility of the evidence in separate trials; (2) whether some of the charges are likely to unusually inflame the jury against the defendant; (3) whether a weak case has been joined with a strong case or another weak case so that the total evidence may alter the outcome of some or all of the charges; and (4) whether one of the charges is a capital offense, or the joinder of the charges converts the matter into a capital case.” (Ibid.; see People v. Zambrano, supra, 41 Cal.4th 1082, 1128-1129 (Zambrano); Ramirez, supra, 39 Cal.4th 398, 439; People v. Carter (2005) 36 Cal.4th 1114, 1154 [32 Cal.Rptr.3d 759, 117 P.3d 476] (Carter); People v. Sandoval (1992) 4 Cal.4th 155, 172-173 [14 Cal.Rptr.2d 342, 841 P.2d 862]; Kraft, supra, 23 Cal.4th 978, 1030; Marshall, supra, 15 Cal.4th 1, 27-28.) “The state’s interest in joinder gives the court broader discretion in ruling on a motion for severance than it has in ruling on admissibility of evidence.” (People v. Cummings (1993) 4 Cal.4th 1233, 1284 [18 Cal.Rptr.2d 796, 850 P.2d 1] (Cummings); accord, People v. Arias (1996) 13 Cal.4th 92, 127 [51 Cal.Rptr.2d 770, 913 P.2d 980] (Arias).)
A. Cross-admissibility of the evidence in separate trials
We frequently have observed that if evidence underlying the offenses in question would be “cross-admissible” in separate trials of other charges, that circumstance normally is sufficient, standing alone, to dispel any prejudice and justify a trial court’s refusal to sever the charged offenses. (Carter, supra, 36 Cal.4th 1114, 1154; People v. Cunningham (2001) 25 Cal.4th 926, 985 [108 Cal.Rptr.2d 291, 25 P3d 519] (Cunningham); People v. Bradford (1997) 15 Cal.4th 1229, 1315-1316 [65 Cal.Rptr.2d 145, 939 P.2d 259], and cases cited.) Our cases, however, make it clear that complete (or so-called two-way) cross-admissibility is not required. In other words, it may be sufficient, for example, if evidence underlying charge “B” is admissible in the trial of charge “A”—even though evidence underlying charge “A” may not be similarly admissible in the trial of charge “B.” (Zambrano, supra, 41 Cal.4th 1082, 1129; Geier, supra, 41 Cal.4th 555, 577-578; Cunningham, supra, 25 Cal.4th 926, 985; Cummings, supra, 4 Cal.4th 1233, 1284.) Our decisions also make clear that even the complete absence of cross-admissibility does not, by itself, demonstrate prejudice from a failure to order a requested severance. We repeatedly have found a trial court’s denial of a motion to sever charged offenses to be a proper exercise of discretion even when the evidence underlying the charges would not have been cross-admissible in separate trials. (People v. Bean (1988) 46 Cal.3d 919, 936-940 [251 Cal.Rptr. 467, 760 P.2d 996] (Bean) [charges not cross-admissible on identity]; see also Geier, supra, 41 Cal.4th 555, 577 [“the absence of cross-admissibility alone would not be sufficient to establish prejudice where (1) the offenses were properly joinable under section 954, and (2) no other factor relevant to the assessment of prejudice demonstrates an abuse of discretion”]; People v. Manriquez (2005) 37 Cal.4th 547, 575-576 [36 Cal.Rptr.3d 340, 123 P.3d 614] [although cross-admissibility was not present, joinder was appropriate]; Carter, supra, 36 Cal.4th at p. 1154 [“ ‘ “ ‘we have never held that the absence of cross-admissibility, by itself, sufficed to demonstrate prejudice’ ” ’ ”; Bradford, supra, 15 Cal.4th at p. 1317 [“even had defendant demonstrated that the evidence would not have been cross-admissible, he has failed to establish prejudice”]; Arias, supra, 13 Cal.4th 92, 127 [“joinder is often permissible even when cross-admissibility is not present”]; People v. Mason (1991) 52 Cal.3d 909, 934 [277 Cal.Rptr. 166, 802 P.2d 950] [assuming that one murder charge was not cross-admissible as to four other murder charges, but finding no abuse of trial court’s discretion in failing to sever]; accord, § 954.1, quoted ante, fn. 10.)
As explained in People v. Ewoldt (1994) 7 Cal.4th 380 [27 Cal.Rptr.2d 646, 867 P.2d 757] (Ewoldt)—a case in which we addressed the issue of admissibility of uncharged crimes, rather than, as here, the issue of whether charged crimes should have been severed from a joint trial—there exists a hierarchy, or continuum, with respect to the degree of similarity that is needed for cross-admissibility, depending upon the purpose (see Evid. Code, § 1101, subd. (b)) for which introduction of the evidence is sought. We observed: “The least degree of similarity ... is required in order to prove intent. ... In order to be admissible [for that purpose], the uncharged misconduct must be sufficiently similar to support the inference that the defendant ‘ “probably harbor[ed] the same intent in each instance.” [Citations.]’ [Citation.]” (Ewoldt, supra, 7 Cal.4th at p. 402, italics added.)
Petitioner asserts in his opening brief that only identity, and not intent, is at issue in these proceedings. Certainly, identity is one of the matters in dispute, but it is not the only one. As the People observe, at petitioner’s first trial he argued that the evidence was insufficient to support a finding of deliberate and premeditated first degree murder. (Alcala I, supra, 36 Cal.3d 604, 625-627.) Similarly, at the second trial, the prosecution pursued a theory of first degree, premeditated murder and therefore bore the burden of proving, beyond a reasonable doubt, that petitioner acted with the specific intent to kill, and with premeditation and deliberation. The prosecution, of course, must prove each element of its case. Petitioner’s assertion that his defense to the Robin Samsoe murder in the pending retrial will focus upon identity, and not intent, does not eliminate the prosecution’s burden. Moreover, although in his reply brief petitioner challenges the People’s cross-admissibility analysis, he does not contest that the mental state for murder is likely to be at issue in his retrial for the murder of Robin Samsoe. As explained below, it appears that evidence underlying all four of the Los Angeles charges would be relevant, at a separate trial on the Samsoe charges, on the issue of petitioner’s intent in killing Robin Samsoe, and that such evidence would be cross-admissible for that purpose at a separate trial on those charges.
As we noted in Ewoldt, supra, 7 Cal.4th 380, “ ‘[t]he recurrence of a similar result... tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act... ” (Id., at p. 402, quoting 2 Wigmore, Evidence (Chadbourn rev. ed 1979) § 302, p. 241; see also People v. Rogers (2006) 39 Cal.4th 826, 853 [48 Cal.Rptr.3d 1, 141 P.3d 135]; People v. Robbins (1988) 45 Cal.3d 867, 879-880 [248 Cal.Rptr. 172, 755 P.2d 355], and authorities cited.)
The evidence underlying the Orange County and Los Angeles County charges supports a conclusion, by a preponderance of the evidence, that petitioner was the perpetrator in each, and the factual similarities among the charges tend to demonstrate that, in each instance, the perpetrator harbored the intent to kill and the homicides were premeditated. As we observed earlier in our discussion (ante, at pp. 1218-1220) concerning the existence of common elements of substantial importance supporting a finding that the five charged murders are “connected together in their commission” under section 790(b), various similar features are present. Each of the victims was a young, single Caucasian female; all of the homicides involved blunt-force facial trauma and occurred within a 19-month period; and the bodies of all of the victims were discovered unclothed, or nude from the waist down. In addition, all of the offenses appear to involve a sexually sadistic motive. Each of the Los Angeles County victims was sexually assaulted and, although Robin Samsoe’s body was too decomposed to permit a determination whether she had been sexually assaulted, the evidence—including the photographs that petitioner took of other bikini-clad young women at the same general time and location of Robin’s disappearance, Robin’s unclothed remains, and the testimony of jail inmates concerning petitioner’s comments about Robin, including a prurient description of her body—indicates she was abducted for a sexual purpose.
Petitioner focuses upon differences between the Orange County charge and the Los Angeles County charges. He stresses that (1) all of the Los Angeles County victims were young adults, whereas Robin was 12 years of age; (2) most of the Los Angeles County victims (all except Barcomb, who was found in a canyon) were found indoors, whereas Robin’s body was discovered on a remote hillside; (3) all of the Los Angeles County victims exhibited physical evidence of sexual assault, whereas Robin’s body, which was decomposed, revealed no such evidence; and (4) when discovered, most if not all of the Los Angeles County victims appeared to have been posed, whereas there is no evidence that Robin’s body, which may have been disturbed by wild animals, was left in a posed position.
As the People observe, we addressed a similar situation in Kraft, supra, 23 Cal.4th 978, a case in which we considered the admission of evidence to prove “common scheme or plan”—a category of evidence that, as we explained in Ewoldt, supra, 7 Cal.4th 380, 402-403, falls between the strict similarity requirements for evidence offered to prove identity, and the more lenient similarity requirements for evidence offered to prove intent. (See ante, fn. 13.) In Kraft, the defendant argued that the trial court abused its discretion in failing to sever 16 charged murder counts and try them separately. Our discussion in Kraft makes it clear that, even with respect to the comparatively higher degree of similarity required for the use of other-crimes evidence to establish “common scheme or plan,” the standard can be met despite the existence of some factual differences between or among the charged offenses. Specifically, we held it sufficient that “most” of the 16 charged murders shared substantial similarities, and that evidence underlying those 16 charged murders “generally” would have been admissible at separate trials. We then noted that, “ ‘[ujnlike evidence of uncharged acts ... to prove identity,’ ” evidence designed to prove a common scheme or plan “ ‘need not be unusual or distinctive; it need only exist to support the inference that the defendant employed that plan in committing the charged offense.’ ” (Kraft, supra, 23 Cal.4th at p. 1031, quoting Ewoldt, supra, 7 Cal.4th at p. 403.)
Our accommodating analysis in Kraft, concerning the similarity required in order to prove the existence of a common scheme or plan, applies all the more to the use, in the present case, of other charged crimes in order to prove intent—which, as noted, requires an even lesser degree of similarity among the offenses. We conclude that the evidence linking petitioner to all five charges—and underlying each of those charges—satisfies the standard we articulated in Ewoldt, supra, 7 Cal.4th 380: It “supports] the inference that the [perpetrator] ‘ “probably harbor[ed] the same intent in each instance.” ’ ” (Id., at p. 402.) Accordingly, based upon information available to us at this stage of the proceedings, it appears that the evidence underlying the four Los Angeles County charges would be relevant at a separate retrial of the Robin Samsoe case to demonstrate the mental states of premeditation and deliberation required for murder, and that such evidence would be cross-admissible for that purpose at a separate trial on the Samsoe charges.
In any event, as observed above, we have held in numerous cases that although a finding of cross-admissibility normally would be sufficient, standing alone, to justify a trial court’s refusal to sever charged offenses, and to support a conclusion that the trial court did not abuse its discretion in refusing to sever the charges, even the absence of cross-admissibility would not establish that a trial court erred when, as here, the offenses have been properly joined by statute and none of the other three factors relevant to the severance issue demonstrates an abuse of the trial court’s discretion. As explained below, we conclude that, with respect to the other three factors that we often consider in evaluating such requests, petitioner has failed to carry his burden of making the clear showing of prejudice required to establish that the trial court abused its discretion in declining to sever the five charges.
B. Whether some of the charges are likely to unusually inflame the jury against defendant
The sexual assaults and murders at issue in the Los Angeles County cases certainly are aggravated charges—but we conclude they are not “unusually likely to inflame” a jury that, in any event, properly will hear testimony concerning the abduction and brutal murder of Robin Samsoe, a vulnerable 12-year-old girl whose unclothed body was found with her face smashed in. The evidence underlying each of the five charges is “similar in nature and equally gruesome.” (Carter, supra, 36 Cal.4th 1114, 1155.)
C. Whether a weak case has been joined with a strong case or with another weak case so that the total evidence unfairly may alter the outcome of some or all of the charges
The evidence underlying the four Los Angeles County murder charges— supported in three cases by DNA evidence, and in the fourth by serological evidence and eyewitness testimony connecting petitioner to victim Jill Parenteau less than one month prior to her murder (a crime that, as noted, occurred only a few days before Robin Samsoe disappeared)—clearly is strong. On the other hand, we doubt that the evidence in the Orange County case, even as it existed at the time of the first two trials, ever properly could be described as weak. (See Alcala II, supra, 4 Cal.4th 742, 755-764.) But now, pending the second retrial, in light of the discovery that another earring in petitioner’s possession belonged to Los Angeles County victim Charlotte Lamb, the evidence underlying the Orange County charges also must be described as strong.
As the People observe, throughout the Samsoe proceedings there has been a recurring dispute concerning whether earrings found in a jewelry pouch in petitioner’s Seattle storage locker belonged to Robin’s mother, had been “trimmed” by her, and were worn by Robin at the time of her disappearance. Petitioner has claimed those earrings as his own, but the prosecution’s expert testified that they exhibited a pattern of striations similar to those produced by nail clippers belonging to Robin’s mother. This evidence, although disputed by a defense expert, supports an inference that petitioner took the earrings from Robin Samsoe and kept them as a trophy from her killing. More recently, pending retrial of the Orange County case, it was discovered that another earring in the same pouch contains DNA matching that of Los Angeles County victim Charlotte Lamb. The People assert: “This newly discovered fact makes the Lamb murder especially probative in the Samsoe case, insofar as it tends to show that the jewelry pouch was indeed a trophy” container, and hence further identifies petitioner as the person who killed Robin. The People continue: “The evidence is even more compelling [because] it shows that [petitioner] lied when he testified, and wrote in his book,[] that all the jewelry found in the pouch was possessed for innocent reasons.... [T]his is highly probative evidence that has become a critical component of the prosecution’s case on the Samsoe murder.”
We agree that the Lamb earring evidence, which appears to significantly undermine petitioner’s prior claims that the “Samsoe earrings” are his own and never belonged to Samsoe, is clearly relevant—and also appears to be cross-admissible for the same purpose at a separate trial on the Samsoe charges. (See ante, fn. 17.) Accordingly, it appears that the evidence of petitioner’s guilt of the Samsoe charges is quite strong—and hence that a joint trial of all five changes would not unfairly merge weak and strong cases.
D. Whether one of the charges is a capital offense, or the joinder of the charges converts the matter into a capital case
The People argue that because the Samsoe case carries its own death-qualifying special-circumstance allegation (murder during the commission of kidnapping) and each of the four Los Angeles County charges also alleges several special circumstances, this case does not present a situation in which the prosecution seeks to “convert” a matter into a capital case; all five matters already are capital cases. (Cf. Williams v. Superior Court (1984) 36 Cal.3d 441, 454 [204 Cal.Rptr. 700, 683 P.2d 699] [a case in which “it is the joinder itself which gives rise to the special circumstances allegation of multiple murder”].) We agree.
As we observed in Arias, supra, 13 Cal.4th 92, 127, “Because of the factors favoring joinder, a party seeking severance must make a stronger showing of potential prejudice than would be necessary to exclude other-crimes evidence in a severed trial.” We conclude that petitioner has not carried his burden of making a “clear showing of prejudice” (Mendoza, supra, 24 Cal.4th 130, 160) to establish that the superior court abused its discretion in refusing to sever the five murder charges.
V
The Court of Appeal concluded that trial should proceed on the Orange County charges, joined with two of the Los Angeles County charges (Lamb and Parenteau), but that the other two Los Angeles charges (Wixted and Barcomb) must be severed. In so concluding, the appellate court found that the latter two cases possess fewer “marks of similarity” compared with the three other charges, and it accepted petitioner’s assertion that a single trial of all five murder charges, at which he would face the DNA and serological evidence described above, would be “potentially unfair.”
We agree with the People that the appellate court’s conclusion in this respect fails to accord proper deference to the exercise of discretion by the trial court and cannot be squared with the requirement that a petitioner challenging a trial court’s refusal to sever properly joined charges has the burden of making a clear showing of prejudice resulting from the joinder. (See People v. Balderas (1985) 41 Cal.3d 144, 171 [222 Cal.Rptr. 184, 711 P.2d 480] [a “bald assertion” of prejudice is “not enough” to satisfy the defendant’s burden].) As the People observe, “there is nothing unfair about the defendant facing an overwhelmingly high likelihood of conviction based on admissible evidence and permissible inferences.”
VI
The judgment of the Court of Appeal is reversed. A single trial on all five murder charges may proceed in Orange County.
Kennard, J., Baxter, J., Werdegar, J., Chin, J., Moreno, J., and Corrigan, J., concurred.
On June 18, 2008, the opinion was modified to read as printed above.
All further statutory references are to this code unless otherwise indicated.
Several other young girls at the beach were approached by petitioner, who sought to photograph them. In each instance, someone was able to identify petitioner as the man taking pictures of young girls in bikinis. Petitioner also was identified by Richard Sillett, a survey party chief for the Huntington Beach recreational area. He recalled observing petitioner carrying a 35-millimeter camera with a telephoto lens, an item of particular interest to Sillett. One young woman, Lorraine W., was on a beach adjacent to that occupied by Samsoe and Bridget W. on the same day Samsoe disappeared. Petitioner took several pictures of Lorraine W. in her bikini. (Alcala II, supra, 4 Cal.4th 742, 757.) As explained post, after petitioner’s arrest the police discovered, in a storage locker rented by him in Seattle, Washington, various items of evidence—including slide photographs of Lorraine W..
Petitioner’s sister spoke with him by telephone following his arrest, after which she went to the home, retrieved the receipt, and gave it to petitioner’s mother. The receipt could not be found thereafter. (Alcala II, supra, 4 Cal.4th at p. 761, fn. 7.)
Although petitioner did not testify at the guilt phase of the second trial, he testified at the penalty phase concerning his alibi. (Alcala II, supra, 4 Cal.4th at p. 766.) He admitted molesting a child in 1972—and serving time in prison for that offense—and assaulting Tali S., one of three child molestation victims the prosecution presented at the penalty phase to prove he committed other, uncharged crimes. Petitioner likewise admitted possessing child pornography, which resulted in his serving additional time in custody for a parole violation. He further admitted raping and beating another 15-year-old girl, Monique H. Nonetheless, petitioner appealed to the jury to send him to prison for life, arguing that in prison he would be “ ‘absolutely harmless’ ” and not “ ‘a threat to children.’ ” (Id., at pp. 766-767.)
The only clothing on her body was a sweater and top that were pulled up around her shoulders. The rest of her body was entirely exposed.
The statute continues: “However, if the defendant is indicted in the county in which the fatal injury was inflicted, at any time before his or her trial in another county, the sheriff of the other county shall, if the defendant is in custody, deliver the defendant upon demand to the sheriff of the county in which the fatal injury was inflicted. When the fatal injury was inflicted and the injured person died or his or her body was found within five hundred yards of the boundary of two or more counties, jurisdiction is in either county.” (§ 790, subd. (a).)
A June 23, 1998, report by the Assembly Committee on Public Safety sets forth the purpose of the bill: “According to the author, ‘Serial killers who go on bmtal killing rampages do so without consideration of county lines. However, under current law, if a serial killer commits murder in more than one county, he must be tried separately in each jurisdiction. This results in astronomical and unnecessary costs for both prosecutors and defendants. In addition to the waste of public resources, it is unfair to victims’ families who must testify repeatedly about the same crime in different trials. []Q Senate Bill 469 would allow for the consolidation of murder charges into a single trial for serial killers who are charged with murder in more than one county as long as the murders are connected in their commission. This bill would alleviate the fiscal burden of redundant trials and lessen the emotional strain on victims, [f] Recent multiple-county murder defendants include “The Freeway Killer” (William Bonin), “The Night Stalker” (Richard Ramirez), and “The Trailside Killer" (David Carpenter).’ ” (Assem. Com. on Public Safety, Rep. on Sen. Bill No. 469 (1997-1998 Reg. Sess.) as amended June 17, 1998, pp. 1-2.)
The statute continues: “If the charged murders are not joined or consolidated, the murder that was charged outside of the county that has jurisdiction pursuant to subdivision (a) shall be returned to that county.” (§ 790(b).)
Evidence Code section 1101 is quoted post, footnote 12.
Section 954 provides in full: “An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated. The prosecution is not required to elect between the different offenses or counts set forth in the accusatory pleading, but the defendant may be convicted of any number of the offenses charged, and each offense of which the defendant is convicted must be stated in the verdict or the finding of the court; provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately. An acquittal of one or more counts shall not be deemed an acquittal of any other count.”
With the adoption of Proposition 115 by initiative in 1990, section 954.1 was added, providing: “In cases in which two or more different offenses of the same class of crimes or offenses have been charged together in the same accusatory pleading, or where two or more accusatory pleadings charging offenses of the same class of crimes or offenses have been consolidated, evidence concerning one offense or offenses need not be admissible as to the other offense or offenses before the jointly charged offenses may be tried together before the same trier of fact.” (Italics added.) As we observed in People v. Zambrano (2007) 41 Cal.4th 1082, 1129, footnote 10 [63 Cal.Rptr.3d 297, 163 P.3d 4], section 954.1 simply signifies that “notwithstanding section 954, a trial court may not grant severance, where the statutory requirements for joinder are met, solely on the ground that evidence in the joined cases is not cross-admissible.”
Decisions such as Ewoldt are relevant to the analysis governing admissibility, but both the burden of proof relating to admissibility and the assessment of prejudice are different in the context of properly joined charged offenses. In the situation of uncharged offenses, the People have the burden of establishing admissibility. (Bean, supra, 46 Cal.3d 919, 938.) In the situation of charged offenses that are properly joined, however, “[t]he burden is reversed” and rests with the party who seeks severance—the defendant. (Id., at pp. 938-939.) Similarly, although in the context of evidence of uncharged offenses offered at trial, a court conducts an assessment concerning prejudice under Evidence Code section 352 (see, e.g., Ewoldt, supra, 7 Cal.4th 380, 404-405 [“ ‘uncharged offenses are admissible only if they have substantial probative value’ ”]), by contrast, in the context of properly joined offenses, “a party seeking severance must make a stronger showing of potential prejudice than would be necessary to exclude other-crimes evidence in a severed trial” (Arias, supra, 13 Cal.4th 92, 127, italics added). In the context of properly joined offenses, we assess potential prejudice not under Evidence Code section 352, but instead in the context of the traditional four factors outlined above: cross-admissibility of charges; tendency of the charges to inflame the jury; the bolstering of a weak case; and the conversion of noncapital charges into a capital case.
Evidence Code section 1101 provides: “(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act. H] (c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness.”
We contrasted this with the degree of similarity needed to demonstrate two other matters—“common design or plan” and identity: “A greater degree of similarity is required in order to prove the existence of a common design or plan. [When offered for that purpose], evidence of uncharged misconduct must demonstrate ‘not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.’ (2 Wigmore, [Evidence] (Chadbourn rev. ed. 1979) § 304, p. 249, italics omitted.) ‘[T]he difference between requiring similarity, for acts negativing innocent intent, and requiring common features indicating common design, for acts showing design, is a difference of degree rather than of kind; for to be similar involves having common features, and to have common features is merely to have a high degree of similarity.’ (Id., at pp. 250-251, italics omitted; see also 1 McCormick[ on Evidence (4th ed. 1992)], § 190, p. 805.) [f] To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual. ... [ID The greatest degree of similarity is required for evidence of uncharged misconduct to be relevant to prove identity. For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. (People v. Miller [(1990)] 50 Cal.3d 954, 987 [269 Cal.Rptr. 492, 790 P.2d 1289].) ‘The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.’ (1 McCormick, supra, § 190, pp. 801-803.)” (Ewoldt, supra, 1 Cal.4th 380, 402-403, italics added.)
As explained in People v. Carpenter (1997) 15 Cal.4th 312 [63 Cal.Rptr.2d 1, 935 P.2d 708], a jury may consider properly admissible “other crimes” evidence so long as it finds “by a preponderance of the evidence” that the defendant committed those other crimes. (Id., at pp. 380-383; see also Judicial Council of Cal. Crim. Jury Instns. (2007-2008) No. 375.) That standard is clearly met with respect to the Robin Samsoe charges and the four Los Angeles charges. Evidence linking petitioner to the Robin Samsoe charges includes the following: He was seen photographing Samsoe on the afternoon she disappeared; Dana Crappa testified that later the same day she saw, in a mountainous area near where Samsoe’s remains subsequently were discovered, a Datsun F10 automobile and a dark-haired man who resembled petitioner, pushing or “forcefully steering” a blond-haired girl toward a dry stream bed; petitioner’s Datsun F10 automobile was parked at his residence when he was arrested; and earrings identified by Robin Samsoe’s mother as having often been worn by Robin were found in a pouch in petitioner’s Seattle storage locker—along with another earring containing the DNA of a separate homicide victim, Charlotte Lamb, to whom petitioner was linked by his own DNA left at the scene of that homicide. Evidence linking petitioner to the four Los Angeles County charges includes forensic evidence tying petitioner to each of those homicide victims, as well as eyewitness evidence connecting him to one of those victims.
We observed: “In denying the severance motion, the trial court in this case noted most of the evidence on the various charges would be cross-admissible. Defendant disputes that conclusion. We find his arguments unpersuasive. In a trial on each individual murder count, evidence of the other charged murders generally would have been admissible to show defendant committed the charged murder as part of a common scheme or plan, which was relevant to the element of intent. (Evid. Code, § 1101, subd. (b); Pen. Code, § 187.) The victims shared certain characteristics, all being White males between the ages of 18 and 25, all but one being single, and most being, at the time of the offense, vulnerable by virtue of lack of transportation. The method of obtaining control over the victims was similar in most of the charged offenses: Defendant generally supplied the victims with alcohol and drugs, often diazepam, to the point they could no longer resist, whereupon defendant generally bound their wrists with ligatures, frequently using shoelaces. After gaining control over the victims in such a manner, unless they were already succumbing from the effects of the drugs, defendant killed them, often by ligature strangulation. After the victims’ deaths, defendant disposed of the bodies generally by dumping them from his car, usually on or near a freeway or other roadway. And each murder involved some type of arguably sexual activity or aberration, whether taking the form of sodomy, mutilation or stripping the victim of clothing.” (Kraft, supra, 23 Cal.4th at pp. 1030-1031, italics added.)
In upholding the trial court’s refusal to sever the 16 murder charges from each other, we rejected the defendant’s contention that “the evidence in each charged murder had to be so similar as to establish a distinctive ‘signature’ for cross-admissibility under the common plan theory pursuant to Evidence Code section 1101, subdivision (b).” We reiterated our holding in Ewoldt, supra, 1 Cal.4th 380, 403, that “a lesser degree of similarity is necessary to admit evidence of other offenses to prove a common design or plan than to prove identity.” (Kraft, supra, 23 Cal.4th at pp. 1031-1032.)
At this stage in the proceedings—prior to trial (joint or otherwise)—we cannot determine whether the Los Angeles County charges actually would be admissible at any separate trial on the Samsoe charges. In order to make that determination, a trial court would need to undertake an analysis, informed by evidence adduced or proffered at a separate (and theoretical) new trial of the Samsoe charges, focusing upon probative value versus prejudice under Evidence Code section 352. (See ante, fn. 11.) That form of section 352 analysis, however, cannot be undertaken by an appellate court at the present stage of the proceedings, because we do not know what evidence would be adduced at a separate trial; we can only assume that the evidence would be similar to that presented in the prior Samsoe trials, and to the information concerning the Los Angeles County charges presented to the grand jury. Nevertheless, that limited information is sufficient to allow us to make an assessment concerning cross-admissibility, for purposes of severance analysis. As noted earlier, the party seeking severance of properly joined charges bears the burden of establishing that the trial court abused its discretion in declining to sever charges for trial. Petitioner “must make a stronger showing of potential prejudice than would be necessary to exclude other-crimes evidence in a severed trial.” (Arias, supra, 13 Cal.4th 92, 127, italics added.) In light of the defendant’s burden and the strong preference for joinder of charges, as a general matter we find “cross-admissibility”—for purposes of severance analysis—so long as it appears, based upon the available information, that the evidence “would” be cross-admissible at a separate trial.
Finally, the circumstance whether the evidence, if admissible, might be admissible “the other way”—that is, whether the evidence underlying the Orange County charge could be admissible in each of the four Los Angeles County cases—would not be dispositive. As noted earlier, complete or “ ‘two-way’ cross-admissibility is not required.” (E.g., Zambrano, supra, 41 Cal.4th 1082, 1129.) In any event, petitioner’s argument in favor of severance focuses exclusively upon the asserted undue influence of the Los Angeles County charges upon the Orange County case, and not vice versa.
As observed by the Court of Appeal below, after his retrial, but prior to the DNA testing that linked him to the Lamb homicide, petitioner authored a book in which he “expressed] his ownership of all the jewelry items found in the pouch.” (Italics added.)
Although we suggested in Williams that when “one of the charged crimes is a capital offense, ... the court must analyze the severance issue with a higher degree of scrutiny and care than is normally applied in a noncapital case” (Williams v. Superior Court, supra, 36 Cal.3d at p. 454), the subsequent enactment of section 790(b)—which, as noted, specifically provides for joinder of capital cases such as these—makes it clear that such a heightened analysis is no longer called for.