People v. Holloway (33 Cal. 4th 96, 2004)

Opinion

WERDEGAR, J.

A jury convicted defendant Duane Holloway of first degree murder (Pen. Code, § 187, subd. (a)) in the deaths of Debra Ann Cimmino and Diane Renee Pencin, attempted rape (§§ 261, 664) of Cimmino, and burglary (§ 459) of the victims’ joint residence. The jury found true special circumstance allegations of multiple murder (§ 190.2, subd. (a)(3)), murder (of Cimmino) in the commission of attempted rape (§ 190.2, subd. (a)(17)), and murder (of Pencin) in the commission of burglary (ibid.). The jury also found defendant had personally used a knife (§ 12022, subd. (b)) in the murder of Pencin. After a penalty trial, the jury returned a verdict of death. The court denied the motion for modification of the penalty verdict and entered judgment accordingly.

This appeal from the resulting judgment is automatic. (§ 1239, subd. (b).) We affirm the judgment in its entirety.

Facts

Guilt Phase Evidence

Prosecution

Debra Cimmino and Diane Pencin, half sisters who shared a Sacramento townhouse, were killed in the early morning hours of Sunday, March 20, 1983. Diane was found the next day in her bedroom, dead of stab wounds and strangulation. Debbie, also strangled, was found in her car, which was parked outside the townhouse. The principal evidence against defendant consisted of his fingerprints inside the townhouse and Debbie’s car; pubic and other hairs found at the crime scene that were consistent with defendant’s hairs and inconsistent with the victims’; defendant’s initial false exculpatory statements to police, including an attempt to manufacture an alibi; and his eventual partial admission to presence at the crimes.

At the time of their deaths in 1983, Diane Pencin was 32 years old and Debbie Cimmino was 20. Both were single, Diane having been married and divorced, and they lived alone in the townhouse, which Diane owned. Lorie Cimmino, their mother, and Michael Cimmino, Debbie’s father and Diane’s stepfather, lived about a block away. A third sister, Janet Williams, also lived in Sacramento, and her 10-year-old daughter, Michelle, visited Diane and Debbie frequently, including on the weekend of their deaths. Diane and Debbie were security conscious, locking their front door even when they were home and setting their burglar alarm at night.

On Saturday, March 19, Michelle Williams, who had spent Friday night at Diane and Debbie’s townhouse, helped Debbie wash her car. They cleaned the automobile thoroughly, inside and out, wiping the back window with Windex and the interior surfaces with Armor All. Diane took Michelle home around 3:00 p.m., then went to a movie with Michael Cimmino. Diane dropped Michael off after the film and spoke to him by telephone around 6:00 p.m., saying that instead of having dinner with him as planned, she would rather stay home and watch some videos.

Sherilyn Hoye, a friend of Debbie’s, spent around two hours on Saturday, March 19, from 9:00 p.m. to 11:00 p.m., at the townhouse with Debbie, mostly in her bedroom. Debbie, who was wearing beige shorts and a red and white top, had just finished cleaning the bedroom before Hoye’s visit. About 11:30 p.m., Lorie Cimmino telephoned the townhouse and spoke with Debbie, who said she had polished her nails and cleaned the townhouse that evening, that she was tired and going to bed, and that Diane was already in bed; Lorie could also hear Diane’s voice in the background.

On Sunday, March 20, Hoye and two other friends of Debbie’s tried repeatedly to reach Debbie at home by telephone, but no one answered the phone. Debbie’s body was discovered in her car, which was parked in a carport next to the townhouse, on the morning of Monday, March 21, by a concerned friend of both sisters who learned Debbie had not shown up at work and could not be reached by telephone. The friend also noticed two newspapers, including a Sunday paper, on the front doorstep. Police were called and dispatched about 10:00 a.m.; the first officer on the scene discovered Diane’s body inside the townhouse and saw Debbie’s in her car.

Debbie Cimmino’s body lay on the backseat of her car, clothed only in a red and white top. Various other items, including a parka, a robe and a blanket, covered the body. Debbie’s purse and its contents were scattered on the front passenger floor. On the back floor were a pair of jogging shoes, a pair of socks, jeans, and black panties. Near the victim’s feet, a plastic piece of the seat structure was cracked through.

According to the autopsy pathologist, the cause of Debbie’s death was manual strangulation. This was shown, inter alia, by petechiae on her eyelids and the whites of her eyes, external marks on her neck, and internal hemorrhaging in her neck and tongue. Though no sperm were detected in swabs taken from Debbie, there was a quarter-inch tear in the skin at the opening of her vagina and adjacent bruising, consistent with sexual assault and inconsistent with ordinary personal hygiene. The pathologist also found defensive wounds and a tom fingernail on Debbie’s hands and a braise on her forearm.

Diane Pencin was found lying on her back on her unmade bed. She was nude, though her mother testified she always slept in a nightgown or long shirt. A bloodstained pillow, a tom pillowcase, and one part of a telephone without its cords lay on the bed as well. Under Diane’s body were several identification cards belonging to Debbie. A pair of red panties was tucked between the mattress and the bed frame. Elsewhere in the room were found another piece of the tom pillowcase, this one knotted; the remaining portion of the telephone, also without cords; two knives, one with visible blood on it; a damp bloodstained dishcloth; and blood spots on the wall.

The pathologist opined Diane had died of both stabbing and strangulation. In Diane’s case, strangulation was with a ligature, which could have been a straight telephone cord. Ligature strangulation was shown by petechiae, her dark and puffy face, and the pattern of straight, narrow wounds to her neck. Apparent ligature marks were also on her wrists and ankles. Diane had been stabbed with a knife or similar weapon at least five times in the upper abdomen, including wounds to the heart and liver; some of the wounds were apparently aggravated by the weapon having been partially withdrawn and thrust back in at different angles in the same area. There was no physical evidence of sexual assault.

The telephone in the townhouse kitchen was on the floor, missing its flat cord. In the bathroom, several wet towels were lying around the sink, a condition uncharacteristic of Debbie and Diane’s housekeeping. Debbie’s bedroom disclosed no sign of a straggle, though a knife was found under the pillow. The telephone was in working order. Two telephone cords were later found under the bottom sheet on Debbie’s bed: one a flat cord with a small amount of blood on it, the other coiled, with fibers matching those on the floorboard of Debbie’s car. The front door to the townhouse was unlocked, and there were no signs of forced entry.

Defendant’s latent fingerprints were found on the telephone body and receiver in Diane Fencin’s bedroom, as well as on the doorjamb of that room. Defendant’s prints were also found at several places on the exterior of Debbie Cimmino’s car (along with latent prints belonging to others, identified and unidentified) and on the interior backseat surface, above the victim’s body, with the fingers of the print pointing towards the victim’s head, which was on the driver’s side of the seat. Three pubic hairs, one combed from Debbie’s pubic hair and two found on a robe found in her car, showed characteristics consistent with the microscopic appearance and structure of defendant’s pubic hairs but inconsistent with Debbie’s. Two scalp hairs the criminalist described as “Negro” were found on a blanket covering Debbie’s body; Debbie was excluded as the donor of these hairs, but defendant (who is African-American) could not be excluded. When arrested on March 22, 1983, defendant had several scratches on his abdomen, which he said he had incurred playing handball the previous day.

On Monday, March 21, 1983, in the initial police investigation of the deaths, Debbie Cimmino’s friends and mother mentioned defendant as an acquaintance of Debbie’s. Officers Hash and Dean contacted defendant that evening. He was cooperative, giving the officers a taped interview and supplying them with fingerprint samples. According to defendant’s statement on March 21, he knew Debbie Cimmino from high school, where they had been friends. They corresponded during a period he spent away from Sacramento and on his return renewed their friendship. Defendant was not Debbie’s lover, though he would have liked to have been. He had been in Diane and Debbie’s townhouse many times, including both bedrooms. Defendant’s father lived very close to the townhouse, but defendant himself lived with his mother elsewhere in Sacramento.

In the March 21 interview, defendant said that he spent Saturday night, March 19, with a friend, Robert Cruz, and Cruz’s friends, watching television at Cruz’s home, drinking (though defendant abstained), and driving around Sacramento. He slept on Cruz’s couch from around 4:00 a.m. to 6:30 a.m. Sunday, then Cruz dropped him off at his mother’s house around 7:00 a.m., where, after his mother let him in, he slept until about 2:00 p.m. that day.

Questioned late on the night of March 21, Robert Cruz confirmed defendant’s alibi, telling officers he had dropped defendant at defendant’s mother’s house around 8:00 a.m. on Sunday, March 20. The following morning, however, Cruz, troubled, told the detectives he had provided defendant a false alibi at defendant’s direction; in fact, he had dropped defendant at his father’s home, near the crime scene, about 4:00 a.m. on Sunday. Defendant had called him later that morning and directed that if anyone were to ask, Cruz should say he left defendant at his mother’s at 8:00 a.m. After confessing his earlier falsehood, Cruz, at the detectives’ direction, made a monitored telephone call to defendant. When Cruz began to ask defendant about the false alibi, defendant cut him off and asked him to come by later so defendant could “show [him] something.” Cruz also contradicted defendant’s statement that he did not drink any alcohol Saturday night.

On Tuesday, March 22, detectives detained defendant, who said he was on his way to see them, as he was leaving his house. At the station, defendant was advised of and waived his Miranda rights. He now admitted that Cruz had in fact dropped him at his father’s home between 3:00 and 4:00 a.m. He also admitted he had been drinking that night with Cruz and his friends, but claimed he was not drunk and was in control of himself. When defendant realized his father was not home, he walked to a nearby Circle K convenience store and telephoned his mother’s house for a ride home; defendant, however, also admitted that before Cruz dropped him off he noticed his father’s van was not in the driveway. No one answered at his mother’s house. He also called a friend who lived in the neighborhood, Lorenzo Chuidian, but got no answer there either. Defendant initially said he thought about calling Debbie, but knew she would be in bed; later he said he had called the Pencin-Cimmino home, but no one answered. While at the Circle K, defendant heard a scream and the sound of glass breaking. Afraid that he would be associated with a possible crime because of his proximity, he later told Cruz to say he had dropped defendant off at his mother’s house rather than his father’s.

Defendant continued, despite extended questioning and confrontation with fingerprint evidence, to insist he had not gone to the townhouse on Sunday morning. Eventually, though, as the detectives purported to begin filling out an arrest report and booking him, defendant admitted he had drunk enough beer and tequila to get drunk, that from his father’s he “went over to [Debbie’s] house,” and that he remembers her “screaming” in the carport. He further said he “thinkfs]” both women answered the front door, he told them he was stranded, he may have used their telephone, and that although he did not know what happened next, “I remember being in the house. I remember being in the carport. I remember, I remember Debbie screaming.” Asked how he stopped her from screaming, defendant said he did not know.

Defense

Defendant testified in his own behalf, giving a version of events different from either of his statements to police. According to his testimony, defendant and Debbie had become lovers shortly after his return to Sacramento and remained so up until her death. They had made love in her bedroom and in her car. The last time was about a week before Debbie’s death, in her bedroom; she was wearing her robe (in which a pubic hair consistent with defendant’s was later found). He lied to the police in order to minimize their relationship.

On the morning of March 20, after drinking and smoking marijuana with Roberto Cruz and his friends, defendant asked Cruz to take him home, but Cruz drove to defendant’s father’s house instead. About 4:30 a.m., defendant was walking to the Circle K store when he heard a scream. He telephoned Debbie’s house, but got no answer. He decided to go to Chuidian’s house, but first he looked over a fence into the carport by Diane and Debbie’s townhouse to see if Debbie’s car was there. It was, with the passenger door open. Defendant hopped the fence and looked in the car, discovering Debbie’s body under a pile of clothing in the backseat.

After trying but failing to revive Debbie, defendant testified, he entered the townhouse through the unlocked front door and walked down the hallway to Diane’s room, calling her name. After turning on a light and finding Diane’s body on her bed, he picked up the phone to call for help, then realized the receiver was not connected to the phone. He tried the kitchen telephone, but its receiver was missing, so he left. He stopped back at the car to confirm what he had seen, then walked home to his mother’s house. On the way he stopped at a pay phone and considered calling the police, but decided it was better not to let them know he had been in the vicinity of the crimes at all. Arriving home around 8:00 a.m., he called Cruz and told him to say he had dropped defendant at his mother’s house. He lied to the police because he thought it would increase their suspicion of him if he admitted having found the bodies. He told the police, on March 22, that he heard Debbie screaming because by then he knew it had been she who screamed; he had said both women came to the door because “that’s how I wanted them to be last time I seen them alive.”

The defense also presented evidence of third party culpability. Zelma Cureton, who in 1983 was working as a prostitute in Reno, Nevada, testified that one night in March she encountered two Black men, acquaintances of Cureton’s friend Marfield “Sweeper” Davis, who boasted about having killed two women in Sacramento. One man was short and muscular, the other taller; both were wearing trench coats. While in the bar of the Cal-Neva casino, Cureton heard the shorter one say, “She almost got away,” and “It’s a good thing we took showers afterwards.” The taller man did not respond. Later, the men came to Davis’s apartment, where Cureton was spending the night. Cureton learned the shorter man was called “Booker” and the taller was “The Frisco Kid.” Booker, who was wearing a blood-splattered T-shirt under his coat, said they had killed two half sisters in Sacramento, that the victims “preferred females,” that one of them “had the door of the car almost locked” and he “got there just in the nick of time,” and that one woman was stabbed while the other was strangled in the bedroom. The Frisco Kid was mostly quiet. The men stayed at Davis’s apartment for a day and a half, leaving early Tuesday morning.

Cureton testified she reported the conversations to Detective Soristo of the Reno Police Department on Monday morning. Soristo wrote a report of her information, but she never heard anything more from the Reno or Sacramento police about the matter.

Soristo did not testify, but another Reno Police Department detective, Gary Eubanks, testified that sometime in March 1983 he relayed information the swing shift detectives had received from Cureton to Harry Machen at the Sacramento County Sheriff’s Department. Eubanks was asked to follow up and amplify or clarify this “vague” information; he subsequently conveyed to Sacramento the further information, which came from a male informant, that the supposed Sacramento killing involved only one victim, a cocktail waitress. The Sacramento Sheriff’s Office then told Eubanks they had resolved their case by an arrest and that no further investigation would be needed in Reno.

Eubanks also testified that he considered Cureton an unreliable informant and that in a recent homicide case she had voluntarily come forward with information later discredited by a suspect’s arrest and confession. Another Reno homicide detective testified that in 1990 Cureton had come forward with information on an investigation, but had later admitted lying about it.

In 1991 interviews with a defense investigator, Cureton twice identified photographs of one Izear Bookman as showing the short, muscular man she had known as Booker. In 1983, Izear Bookman lived across the street from the Pencin-Cimmino townhouse. He was interviewed by police in their initial canvass of the neighborhood on Monday, March 21, 1983, about 3:00 p.m.

Traci Bradley and Sherilyn Hoye, both friends of Debbie Cimmino, testified they had seen two or three African-American men across from Diane and Debbie’s townhouse, in the period before the killings. Bradley remembered they were wearing trench coats. Bradley, herself African-American, also testified she was Debbie’s lover at the time of her death and had been so for several months. They last made love on Friday, March 18, at Debbie’s home.

Shari Drago testified she had been defendant’s girlfriend in high school, but broke up with him after he left town. Debbie Cimmino later told her that she and defendant had been corresponding and would be seeing each other when defendant returned to Sacramento.

The latent fingerprint of one Lance Reedy was found on the doorjamb of Debbie’s bedroom. Reedy’s parents had lived nearby in the 1970’s.

Prosecution Rebuttal

Juanita Seibel testified she was a longtime, close friend of Debbie Cimmino, continuing to Debbie’s death. While Debbie typically was physically affectionate with her boyfriends, Seibel observed no such affectionate behavior between Debbie and defendant. About two months before her death, Debbie told Seibel she and defendant were just friends.

In June 1992 (about two weeks before her trial testimony), Zelma Cureton told a district attorney’s investigator that the men she met in Reno had arrived on a Friday evening and left on Monday or Tuesday.

Penalty Phase Evidence

Prosecution

The prosecution introduced evidence of two prior assaults by defendant on women. Linda Carter, who in 1976 lived in the same apartment complex as defendant’s family, testified that she awoke one morning that year to find defendant standing in her kitchen. When Carter, angry, ran toward defendant, he hit her in the head with his fist. As they struggled, defendant struck her twice more with a wooden club about a foot long, causing serious wounds to her face and the back of her head. Eventually defendant ran out the front door.

Roxie Bianchi testified that around 7:30 p.m. one evening in 1979, defendant, a childhood friend of her son Greg (who no longer lived in Sacramento with her), unexpectedly visited her at her home. They talked about Greg for a while, and defendant left. He returned later that night, around 9:30 or 10:00 p.m., saying he did not feel well and asking to use her bathroom. Later he said he had a headache, and Bianchi gave him some aspirin. They talked and watched television for a while more in her living room. Finally Bianchi suggested he leave, as it was getting late. As she led defendant to the door, she felt a heavy blow to the back of her head, then a second blow. As she turned, defendant struck her twice more on the head. Bianchi was bleeding profusely and screaming. She exclaimed that defendant was trying to kill her and said she was calling the police. Defendant asked her not to and left. In the hallway, Bianchi found a claw hammer that did not belong to her. In 1980, defendant suffered a conviction for assault with a deadly weapon as a result of this incident.

Finally, a Sacramento police officer testified that, in 1979, he and his partner had detained defendant while investigating a possible warehouse burglary. Defendant, who was inebriated, cursed at the officers, tried to kick the windows out of their squad car, and kicked the testifying officer in the leg; he was then subdued with Mace and taken to county jail.

Defense

Dorothea Holloway, defendant’s mother, testified she ran away with Walter Holloway when she was 17 years old. They had four children together, defendant being the eldest. Walter did not provide for his family, had many affairs with other women, and physically abused Dorothea and the children. Defendant, given alcohol by his father, began drinking when he was about 10 years old. Defendant’s brother and two sisters testified defendant was a loving and protective brother, that Walter Holloway gave him alcohol and drugs at a young age, that Walter struck defendant and abused Dorothea in front of defendant, and that Walter took defendant, as a youth, to the homes of women with whom he was having affairs.

A former classmate of defendant’s testified to defendant’s early drug and alcohol use, to Walter Holloway having provided these substances to a group of girls defendant’s age, and to Walter’s practice of flirting with girls in defendant’s peer group in a domineering manner calculated to humiliate his son. Dorothy Walton, with whom Walter had a daughter, similarly testified to seeing Walter take over a conversation defendant was having with girls his age. A local park worker and counselor who knew both defendant and his father confirmed that Walter’s philandering was well known in the neighborhood and that Walter was involved with teenage girlfriends of defendant’s.

A former neighbor of defendant’s, Sylvia Wesner, remembered him as reserved, quiet and inquisitive. At one point, when there was a rash of break-ins in the apartment complex, defendant volunteered to stay up all night watching her apartment. He stood guard for several nights, until Wesner felt the danger had passed.

Psychologist Shawn Johnston, who conducted interviews and testing on defendant, reviewed background reports, and interviewed defendant’s family members, opined that Walter Holloway “should have never had children,” and that his behavior had a very negative impact on defendant’s personality development, causing problems including depression, suppression of intelligence, and impaired impulse control. Johnston noted a “dramatic” increase in defendant’s intelligence quotient (from 100 to 112) over the 15 months he had conducted testing while defendant was in county jail. Defendant had begun, to crave knowledge and to read books on history, politics and religion. He expressed the feeling that he had wasted his Ufe by doing bad things and expressed remorse for those he had hurt. He successfully took on responsibilities as a trusty at the jail. Because of this intellectual and psychological growth, Johnston believed, defendant would adjust well to prison if sentenced to life imprisonment without possibility of parole.

A correctional consultant, James Park, described the high security and confined living conditions of a California prisoner serving a life sentence without possibility of parole. In Park’s experience, long-term prisoners are in demand for work assignment and can be a stabilizing influence in the prison, and many people who were bad citizens in the outside community become more productive and useful people in the highly structured prison community. Based on his review of defendant’s Department of Corrections file and the testimony of the two jail sheriffs who had employed defendant as an inmate worker, defendant would make a very good life prisoner and would contribute positively to the prison community.

Discussion

Guilt Phase Issues

I. Failure to Suppress Admissions in Defendant’s March 22 Statement

In his statement to police on March 22, 1983, defendant admitted he went to the Pencin-Cimmino residence early on the morning of March 20, that he was drunk at the time, that both women answered the door, that he told them he was stranded, that he may have used their telephone, and that all he remembers after that is “Debbie screaming” in the carport. Defendant contends those admissions should have been suppressed as involuntary because they were induced by an implied threat of capital prosecution if he did not admit the killings and a corresponding promise of leniency if he did. We find no such improper threat or promise.

In the March 22 interview, defendant readily admitted that, contrary to his previous day’s statement, he was in the neighborhood of the Pencin-Cimmino residence on the morning of the crimes, but denied that he went to the townhouse or saw the victims that morning. He persisted in that denial despite long and vigorous questioning by Sacramento Sheriff’s Detectives Michael Hash and Joseph Dean, who repeatedly accused him of lying, confronted him with evidence contrary to his story, and suggested that he may have gone over to the townhouse without malicious intent, just to see Debbie and get a ride home, and that he might have killed Debbie accidentally. Detective Hash warned defendant he was, by denying any involvement, “digging a hole so deep that you’re never gonna see your way out of it” and suggested again that defendant went to see Debbie without any intent to harm her, but “something happened,” she started struggling, perhaps yelling, and “you got her around the throat. Tried to get her to stop. She wouldn’t stop.”

Detective Dean then began asking defendant routine booking questions, which Hash interrupted by once more suggesting that the killings may have been accidental but that if defendant did not say so, “with the evidence we got, you’re gonna be found guilty.” Defendant argued, “Even if it was an accident, it’s still murder.” Hash said, “No, not really.” The exchange continued as follows:

“Hash: What I’m talking about is 1 wanta, I want you to understand something. We ’re talking about a death penalty case here.

“Holloway: I know.

“Hash: No ifs, ands or buts. The truth cannot hurt you, if it’s known. The longer you sit there and not say anything and you just ride with it, and you’re just, you’re gone. [