People v. Kimble (44 Cal. 3d 480, 1988)

Opinion

LUCAS, C. J.

This is an automatic appeal (Pen. Code, § 1239, subd. (b)) from a judgment of death imposed under the 1977 death penalty law. (Former § 190 et seq., Stats 1977, ch. 316, § 4 et seq., pp. 1256-1262.) Defendant raises numerous claims of error relating to the guilt, special circumstance and penalty phases of the proceedings. We conclude that the judgment should be affirmed in its entirety.

I. Facts

In the afternoon of August 12, 1978, Harry and Avone Margulies were killed in their home in the Doheny Estates neighborhood in Los Angeles. That same evening, Beverly Stereo Electronics, a retail stereo equipment store owned by Harry, was burglarized and numerous pieces of stereo equipment were taken. The crimes of which defendant was convicted relate to these two incidents. We briefly summarize the facts as disclosed by the record.

A. The Crimes at the Victims’ Residence

About 1:30 p.m. on the day of the murders, the Margulies’ next door neighbor discovered a young man with a black briefcase hiding in the bushes outside of the Margulies’ residence. The man told the neighbor that he was hiding from some people who were after him, but the neighbor did not see anyone around. The neighbor told him to leave the area and the man walked around the comer and out of view. At trial, the neighbor identified defendant as the person he had seen outside of the Margulies’ home that day.

The day in question was a Saturday, and, as was his custom, Harry worked in his store in the morning and returned to his home in the early afternoon. His son testified that he telephoned his father at home between 3 and 4 p.m. and that nothing during their conversation suggested that anything unusual had occurred or was occurring at the house.

Both the Margulies’ home and their stereo store had burglar alarm systems which had been installed and were monitored by Pacific Alarm. Sometime after 4 p.m., the burglar alarm at the Margulies’ residence went off; the alarm was set to sound both in the house and at Pacific Alarm’s offices. Shortly thereafter, the Margulies’ daughter, who worked at her father’s store, received a call from the alarm company informing her that the alarm at the house had been triggered. After telephoning the residence but receiving no answer, she drove to the home. She found the front door ajar, and, as she started to enter the house, saw her mother’s dead body on the floor. She ran to a neighbor’s home and called the police.

On their arrival, the police found the dead bodies of Avone and Harry in the front hallway. The eyes and mouths of both victims had been covered with adhesive tape, and both had had their hands secured behind their backs—Avone with cord and Harry with a pair of handcuffs. Harry’s body was found fully dressed but Avone’s was nude. Each victim had died from a single gunshot wound to the chest area fired from a .45 caliber handgun. Later laboratory tests found semen in Avone’s vagina.

The police found a number of items in the house that other family members testified had not been there before the commission of the crimes: a black briefcase with a box of ammunition on the kitchen floor, and a bicycle cable and lock in one of the bedrooms.

Neither Avone’s purse nor Harry’s wallet had been stolen during the incident. One of the investigating officers testified, however, that he could not recall whether any money had been found in Harry’s wallet at that time. Family members reported that a set of Harry’s keys—which included all of the keys to his stereo store—had apparently been taken because they were not in their usual location on the top of a buffet in the dining room.

B. The Stereo Store Burglary

The sales manager at Beverly Stereo testified that on that same day, August 12, he locked the store at 6 p.m. or 6:15 p.m. and set the burglar alarm. At 8:05 p.m., a police officer received a radio call directing him to investigate the activation of a silent burglar alarm at Beverly Stereo that had apparently been reported by the alarm company. When he arrived at the store, the officer found all of the doors locked and observed nothing out of the ordinary; after investigating for five or ten minutes, he left.

Several hours later, between 11 and 12 that night, the store’s burglar alarm system again activated a signal at the alarm company’s offices. The alarm was tripped and reset a number of times, indicating that someone was walking around the premises, opening and closing the store doors. The police were again notified, and this time the report of a possible burglary at the store was directed to the detectives who were investigating the Margulies’ murders. The detectives went to the store where they were met by an employee from the alarm company who had keys to the building. There was no sign of a break-in or forced entry, but when the detectives entered with the alarm company employee it was evident that the store had been ransacked. A later inventory revealed that many pieces of stereo equipment had been taken from the store that night.

C. The Investigation

On Monday, August 14, two days after the burglary, a couple who had been driving in the vicinity of Beverly Stereo between 11:15 and 11:30 p.m. on the night of the burglary, reported to the police that they had observed unusual activity outside the store at that time. The couple stated that they had seen a car driving slowly out of an alley behind the store, with someone running alongside the car holding several boxes that were resting on its hood. After turning out of the alley, the car stopped behind another car which was parked directly across from the stereo store. Because this activity appeared suspicious, the couple wrote down the license plate number of the car that had come out of the alley. They gave this information to the police on August 14.

By running a check on the license number, the police determined that the car was owned by Ortez Winfrey (Ortez). The police sought and secured a warrant to search Ortez’s home, and executed it on the morning of August 16, arresting Ortez and finding a large number of stereo equipment components and boxes which had been taken from Beverly Stereo. Later that morning, while in custody, Ortez gave a statement to the police concerning his participation in the burglary.

According to Ortez’s statement, defendant, a long-time friend, had approached him late in the afternoon of August 12 to ask if Ortez would help defendant remove some stereo equipment from the Beverly Stereo store. Ortez said that defendant showed him the keys to the store and told him that he was employed at the store and was removing the equipment at the request of the owner; Ortez admitted, however, that at some point during the evening’s activities, he realized that they were actually stealing the equipment. Ortez stated that the first time he and defendant drove to the store, defendant simply opened the front door with the store keys, to show him that the keys really were to the store; he then relocked the door and they went out to eat, planning to return later. Ortez stated that they later picked up William Grant, a mutual acquaintance. The three returned to the store and removed numerous boxes of stereo equipment. In response to the officers’ questions, Ortez indicated that he had previously seen defendant with a black briefcase and with a handgun resembling a .45 automatic.

After learning of defendant’s identity from Ortez, the detectives checked defendant’s fingerprints—which were apparently available from existing criminal records—against the fingerprints that had been found at the murder scene. The tests indicated that defendant’s prints matched prints found in several locations in the Margulies’ home. On the strength of this match, Ortez’ statement, the stereo equipment found in Ortez’s possession, and the facts supporting the initial search warrant for Ortez’s home, the detectives obtained warrants to search defendant’s and William Grant’s residences. The searches were conducted that same day, August 16, and stereo components that had been taken from Beverly Stereo were found in both homes. In addition, the keys that had been taken from the Margulies’ house were found in defendant’s residence. Grant and defendant were arrested.

After being advised of his Miranda rights, defendant initially agreed to talk to the police. He denied that he had committed burglary or murder, claimed that he had bought the stereo equipment several months earlier from a stranger on the street, disclaimed any knowledge of the Margulies’ keys, and stated emphatically that he had never been in any house in the area of the city in which the Margulies’ home was located. When the interrogating officers indicated that they did not believe him, he asked to see a lawyer and the interrogation ended.

On the basis of the foregoing matters, defendant was charged with two counts of murder (§ 187), two counts of burglary (§ 459), two counts of robbery (§ 211), and one count of rape (§ 261, subds. (2), (3)); use of a firearm (§§ 12022.5, 1203.06, subd. (a)(1)(i)) and great bodily injury (§ 1203.09) allegations were also alleged. With respect to the murder of Harry Margulies, three special circumstances were alleged: (1) robbery felony murder (former § 190.2, subd. (c)(3)(i)), (2) burglary felony murder (id., subd. (c)(3)(v), and (3) multiple murder (id., subd. (c)(5)). With respect to the murder of Avone Margulies, four special circumstances were alleged: the same three as alleged with respect to Harry’s murder, and rape felony murder (id., subd. (c)(3)(iii)).

At the guilt/special circumstance phase, the prosecution’s evidence revealed the facts set forth above. At the conclusion of the prosecution’s case, the trial court granted defendant’s motion for acquittal on the charge of robbery of Avone Margulies and denied defendant’s motions with respect to the remaining charges.

The defense then proceeded with its case. The defense attempted to discredit various aspects of the prosecution’s evidence; several witnesses stated that defendant did not have a black briefcase and a few testified that they had seen Ortez with such a briefcase. Evidence was also presented indicating that, while in high school, Ortez had stolen a key from a teacher’s key ring and had used the key to open a cabinet from which three tape recorders were taken. In addition, defendant’s sister testified that defendant had been at his own home between 3 and 5 p.m. on the day of the murders.

At the request of the prosecution, the trial court struck the burglary felony-murder special-circumstance allegations that had been charged with respect to each of the murders. It submitted the five remaining special-circumstance allegations—two robbery felony-murder allegations, one rape felony-murder allegation, and two multiple murder allegations—to the jury, along with the underlying murder, burglary, robbery and rape charges. After three days of deliberation, the jury found defendant guilty of all charges, and found true all five of the special circumstances.

At the penalty phase, the prosecution presented no additional evidence and the defense presented some evidence in mitigation. During the course of its deliberations, the jury occasionally asked for additional guidance. The jury eventually returned a verdict imposing the death sentence.

Thereafter, the trial court denied defendant’s motions for new trial and for modification of the verdict. As noted, this appeal is automatic.

II. Guilt Issues

A. Validity of “Nighttime” Search

Defendant initially contends that the trial court erred in denying his pretrial motion to suppress all of the evidence obtained as a result of the search of his home and of Ortez’s and Grant’s homes. Although all three searches were conducted pursuant to warrants, defendant contends that the initial search of Ortez’s home was an invalid “nighttime” search, and that all the evidence obtained thereafter was tainted “fruit” of that initial search. Defendant acknowledges that the magistrate who issued the search warrant for Ortez’s home (hereafter the Ortez warrant) specifically authorized the execution of the warrant at any time of day or night, but he contends that the affidavit in support of that warrant did not contain sufficient facts to justify the magistrate’s authorization of nighttime service, and thus he reasons that the search was nonetheless invalid. We conclude that defendant’s contention is unfounded.

At the pretrial hearing on the motion to suppress, the prosecution presented a two-pronged response to defendant’s claim, maintaining, first, that the Ortez warrant had been properly endorsed for nighttime service, and, second, that, in any event, the search warrant had actually been executed during the daytime. In support of the latter claim, the investigating police officer testified that he had executed the Ortez warrant at 7:05 a.m. on August 16, five minutes after the beginning of “daytime” as defined by statute. (See § 1533.) The defense vigorously challenged the officer’s testimony in this regard, pointing out that in at least three investigative reports written shortly after the search, the police officers had noted the time of the execution of the warrant as 6:30 a.m. The trial court’s comments in denying defendant’s motion are somewhat ambiguous, but it appears that the court concluded that it did not need to resolve the conflict over the time at which the warrant was actually executed, because it found as a threshold matter that defendant had failed to demonstrate that the magistrate had abused his discretion in authorizing nighttime service of the warrant. We agree with the trial court’s ruling.

Under the governing California statutes, although search warrants, as a general rule, are to be executed in the daytime, a magistrate may authorize nighttime service of a warrant in a particular case for “good cause.” (§§ 1529, 1533; Solis v. Superior Court (1966) 63 Cal.2d 774, 776-777 [48 Cal.Rptr. 169, 408 P.2d 945].) In recent years, a number of Court of Appeal opinions have offered different verbal formulations in an attempt to clarify the “good cause” standard in this context. It is difficult, however, to anticipate all of the numerous factors that may justify the authorization of a nighttime search and we think that the Sixth Circuit—in interpreting the comparable federal rule on nighttime searches—adopted the proper perspective in suggesting that “[t]he Rule requires only some factual basis for a prudent conclusion that the greater intrusiveness of a nighttime search is justified by the exigencies of the situation. The procedural requirements of the Rule ensure that the fact that nighttime search is contemplated by the police is brought to the attention of a magistrate and that he or she consciously decide[s] whether such a particularly abrasive intrusion is called for in a given situation.” (United States v. Searp (6th Cir. 1978) 586 F.2d 1117, 1121, 58 A.L.R.Fed. 743, italics added.)

In the present case, we cannot say that the magistrate erred in concluding that the “exigencies of the situation”—as revealed by the facts set forth in the affidavit in support of the search warrant (see, e.g., People v. Mardian (1975) 47 Cal.App.3d 16, 35 [121 Cal.Rptr. 269])—justified the execution of the warrant either in the daytime or at night. The investigating officers completed the drafting of the affidavit in support of the warrant at approximately 6 p.m. on August 15, and reached the magistrate at his home at 7 p.m. The affidavit disclosed numerous facts from which the magistrate could reasonably conclude that the burglary at Beverly Stereo and the double homicide at the Margulies’ residence were closely related and that evidence of both the burglary and the homicides might be found at Ortez’s home. Because the evidence consisted, in part, of recently stolen stereo equipment, the magistrate could reasonably infer that the persons who had stolen the property would attempt to dispose of it as quickly as possible, and this would be particularly true if—as it appeared—the offenders recognized that the equipment could connect them not only with a burglary but with two murders as well. Finally, in view of the nature of the homicides that were under investigation, the magistrate could reasonably conclude that there was an exceptionally compelling interest in permitting the police to expedite their investigation, in order to apprehend a dangerous killer or killers who remained at large. Under these circumstances, we find no basis for faulting the magistrate’s decision to permit the execution of the warrant either in the daytime or at night, particularly in light of the established principle that—in close cases—“[t]he reasonableness of an asserted justification ... is ‘largely determined by the preference to be accorded to warrants.’” (United States v. Gibbons (10th Cir. 1979) 607 F.2d 1320, 1327.)

The fact that the officers did not serve the warrant until early the next morning in no way undermines the magistrate’s implicit determination that the exigencies of the situation justified nighttime service. The officers testified that after obtaining the warrant it took several hours to assemble a group of officers and to plan the method of execution so as to minimize the potential danger to the officers and to others. Because the search warrant for Ortez’s residence properly authorized the execution of the warrant at night as well as during the day, the trial court did not err in denying defendant’s motion to suppress.

B. Admission of Defendant’s Statement to Police

Defendant next contends the trial court erred in admitting, over his objection, a tape recording of the statement he made to the police shortly after his arrest. As noted, when confronted with the burglary and murder charges, defendant told the officers he had obtained the stereo equipment several months earlier and that he had never been in any house in the neighborhood where the victims resided. At the time defendant’s statement was offered in evidence, however, the prosecution had already introduced evidence that, if credited, indicated the equipment had been taken from Beverly Stereo on the night of the burglary and that defendant’s fingerprints had been found in several locations in the victims’ home.

Defendant apparently recognizes that, as a general rule, false statements made by a defendant at the time of arrest are admissible—not for the truth of the statements—but to show consciousness of guilt. As Witkin explains: “False statements deliberately made by defendants to arresting officers concerning matters within [defendants’] own knowledge, and relating to the issue of guilt or innocence, ‘cogently evidence consciousness of guilt and suggest that there is no honest explanation for incriminating circumstances.’ ” (Witkin, Cal. Evidence (2d ed. 1966) § 512, at p. 482, and cases cited.) Defendant contends, however, that this general rule is limited to prior statements of the defendant whose “falsity” is demonstrated by the fact that they are contrary to the defendant’s own trial testimony. Because defendant did not testify at trial, he maintains that his prior statement should have been excluded. Although defendant’s contention does find support in a number of recent Court of Appeal decisions, as we shall explain these decisions are inconsistent with a long line of contrary authority both in California and in other jurisdictions and rest on flawed reasoning. Accordingly, we conclude defendant’s prior statement was properly admitted.

We begin with the established California precedent. In People v. Cole (1903) 141 Cal. 88 [74 P. 547], the defendant, a shipping clerk and salesman employed by a furniture store, was accused of improperly selling some of the store’s carpets and keeping the proceeds of the sale. When charged with the crime, he denied delivering the carpets in question to anyone, and denied even knowing the person who had purchased the goods. The court admitted evidence of these statements at trial, and on appeal defendant asserted the statements should have been excluded. The Cole court rejected the claim, explaining: “This denial of defendant we think was competent and proper evidence to go to the jury for what it was worth. If the jury believed that defendant delivered the property, disclosed by the testimony of some three witnesses, then the fact that defendant denied the delivery was a circumstance tending to show that the delivery was not made innocently in his capacity as a salesman, but with intent to steal the property. If he had delivered the property innocently, the most natural thing for him to have done was to tell the truth about it. If he intended to steal it, the most natural thing for him to do when questioned about it was to lie concerning it. Deception, falsehood, and fabrications as to the facts of the case are treated as tending to show consciousness of guilt, and are admissible on the same theory as flight and concealment of the person when charged with crime.” (Id., at pp. 89-90, italics added.) Thus, even though the falsity of the defendant’s prior statement was not proved by its inconsistency with the defendant’s subsequent testimony but by the testimony of other witnesses, the statement was found admissible.

People v. Amaya (1941) 44 Cal.App.2d 656, 659 [112 P.2d 942], is to the same effect. In Amaya, the defendant objected to introduction of a statement he had made to the police in which he claimed that on a specific occasion in the past he had found the man, whom he was accused of killing, in bed with his wife. In dismissing the objection, the Amaya court stated: “In an attempt to prove the falsity of such statement the People produced two witnesses, ... a stepson . . . and ... a stepdaughter [of defendant] who testified that on the occasion mentioned when [