People v. Zambrano (41 Cal. 4th 1082, 2007)

Opinion

BAXTER, J.

An information charged defendant with three 1988 crimes, the attempted murders of Robert and Barbara Mishell (Pen. Code, §§ 21a, 187), and the first degree murder of Luis Reyna (§§ 187, 189). As to the attempted murders, it was alleged that defendant inflicted great bodily injury (§§ 1203.075, 12022.7) and used a dangerous and deadly weapon (§ 12022, subd. (b)). As to the murder, the information alleged a special circumstance of witness killing (§ 190.2, subd. (a)(10)) and included further allegations that defendant inflicted great bodily injury (§ 1203.075) and committed the offense while free on bail (§ 12022.1).

The prosecution’s evidence indicated that defendant, a member of the Berkeley Waterfront Commission, bludgeoned the Mishells, a University of California professor and his wife, because he believed they had made anonymous telephone calls exposing his extramarital affair. The evidence further indicated that defendant then fatally shot Reyna, a fellow waterfront commissioner, to prevent Reyna from testifying against him in the Mishell matter.

Defendant admitted attacking the Mishells, but claimed provocation. He asserted that Reyna’s death was an accident. Defendant admitted that, to cover up the homicide, he decapitated, dismembered, and scattered Reyna’s body, then fled to Mexico with his girlfriend.

The jury convicted defendant of all charges and found true all the additional allegations in the information. After hearing aggravating and mitigating evidence at the penalty phase, the jury returned a death verdict, which the trial court declined to modify. This appeal is automatic. We will affirm the judgment in full.

I. FACTS

A. Guilt evidence

1. The Mishell assaults and their aftermath

On January 31, 1988, Robert Mishell (Robert), an immunology professor at the University of California in Berkeley and his wife Barbara, a high-ranking technician who managed Robert’s laboratory, were brutally bludgeoned in their Berkeley home. Robert sustained two depressed skull fractures and 12 head lacerations. His injuries were life-threatening, but he largely recovered, though he suffered memory problems, could not continue teaching, and took a disability retirement. He suffered from posttraumatic amnesia and did not remember everything that occurred before the assault.

Barbara received six distinct blows to the head, resulting in compound skull fractures and brain damage. Her injuries rendered her severely and permanently disabled. At the time of trial, as a result of the damage to her brain, she remained behaviorally erratic, and she still could not speak.

The trial evidence, including defendant’s own testimony, conclusively established defendant as the perpetrator of the assaults. The prosecution’s evidence was as follows:

Defendant, a contractor, had done remodeling work on the Mishells’ home. Robert and defendant shared an interest in computers, but the Mishells had no other social relationship with defendant. They knew nothing of his personal life.

In July 1987, defendant, a married man, began an affair with Celebration Oberman. In September 1987, defendant, members of his family, and Oberman began receiving anonymous telephone calls that exposed the affair. Defendant was upset by the calls and suspected someone was trying to break up his marriage. Nonetheless, he continued to see Oberman.

Defendant told Luis Reyna, a fellow member of the Berkeley Waterfront Commission, about the calls. Among others, defendant said, he suspected a Berkeley professor’s wife who, he claimed, was in love with him. Ultimately, defendant indicated that a private investigator had traced the calls to this couple. Reyna advised defendant to take his information to the authorities. More than once, however, defendant said he would handle the matter “his way.”

On Sunday morning, January 31, 1988, around 11:00 a.m., defendant appeared unexpectedly at the Mishell residence. He and Robert chatted on the pool deck, where Barbara joined them. All three then went inside, drank coffee, and talked politics. At some point, Robert took defendant into the dining room to demonstrate his new computer. At trial, Robert recalled that defendant was standing behind him, next to a toolbox he had brought with him.

The next thing Robert remembered was waking up in bed several hours later. His head was bleeding. He looked for his wife. He found her on the kitchen floor, bleeding, unconscious, and unresponsive. He called the police.

Berkeley Police Officer Emberton arrived within minutes after Robert’s call. Robert was dazed and bleeding, but able to speak. Barbara was unconscious on the kitchen floor, with coagulated blood all around. Robert recounted to Emberton his recollection of the events leading to his injuries, but did not mention that defendant had a utility belt or toolbox with him.

The house showed no signs of forced entry. Defendant’s fingerprints were found on a half-full coffee mug in the kitchen, and on a book in the kitchen or dining room. Robert had purchased the book the day before.

Officers went to defendant’s home on the night of January 31. When they told him they were investigating an assault against the Mishells, he left the room to make a telephone call. Upon his return, he said his lawyer had advised him not to speak. He spoke nonetheless, claiming he had not been at the Mishell home in two weeks. Asked to name a possible suspect, defendant mentioned another contractor to whom, defendant said, the Mishells owed a lot of money.

Asked to recount his movements for the day, defendant said that, after dropping off his daughter at 11:00 a.m., he went to the Berkeley Marina around 11:30 and spoke to Dave Shelley, who was working there. Then, defendant said, he went to Reyna’s home to watch the Super Bowl. Defendant described the clothes he was wearing, and specifically mentioned athletic shoes.

Defendant did arrive at the Berkeley Marina sometime between 11:30 a.m. and 12:30 p.m. on January 31. According to Shelley, defendant stayed about 45 minutes. He made a telephone call and wrote a note to Chuck Roberts, the Berkeley Waterfront Commission’s secretary, about an agenda item. The note included a notation of the ostensible time it was written—noon. Defendant later called and asked Shelley to make a copy of the note and send it to him. Shelley did so.

Roberts found the note when he came to work the next day. According to Roberts, defendant had written him notes before, but had never included the time. Given the note’s subject matter, there was no reason to do so in this case.

Defendant arrived at Reyna’s home about 1:00 p.m. on January 31, freshly groomed and wearing boots. Defendant volunteered that he had dropped off his daughter, then gone to his boat at the marina, and to the marina office. Reyna thought it odd that defendant wore boots on his boat. Defendant did not stay to watch the Super Bowl, but left after about 20 minutes.

On February 2, Reyna saw a newspaper article about the Mishell assault. Realizing that defendant had worked on the Mishells’ home, Reyna contacted defendant and told him about the article. Defendant said he did not want to talk, but that his problem was solved.

On February 3, defendant asked Reyna to come to his house. Despite his reservations, Reyna went. Defendant took Reyna onto the deck, saying the police had just been there to search, and he did not want to speak inside. Defendant told Reyna the following: He had gone to the Mishells’ home on January 31 to confront them about the harassing telephone calls. They laughed at his accusations and said he could do nothing about it. He then picked up something and beat the Mishells over the head. He took the unidentified weapon with him and discarded it where it would never be found.

When Reyna said that the Mishells could identify him, defendant responded that they never saw or knew who attacked them. Defendant asked Reyna to falsely tell the police defendant had telephoned him at 9:00 a.m. on January 31. That evening, at a commission meeting, defendant again made this request, explaining that the police believed the assaults had occurred before 11:30 a.m.

To Reyna, defendant never expressed remorse or regret about the Mishell assaults. Defendant said he was only sorry he was caught with another woman, and was just protecting his family.

Reyna did not immediately advise the authorities that defendant had confessed to him. Moreover, he initially did comply with defendant’s request that he lie to the police about when defendant called him on January 31. Members of Reyna’s family testified that he was fearful, distraught, confused, and in turmoil about whether he should tell what he knew.

Ultimately, on April 5, 1988, Reyna gave a taped statement to the police. Defendant was arrested two days later. Thereafter, defendant wrote Reyna letters from jail, urging Reyna to lie for defendant about the Mishell assaults, and to recant his police statement.

Defendant enlisted Oberman in efforts to persuade his own defense team of his innocence. At defendant’s request, Oberman falsely told a defense investigator she met defendant at the Berkeley Marina at 11:00 a.m. on January 31. She gave the investigator additional false information, supplied by defendant, that Reyna was angry with defendant over a debt, and thus had a motive to fabricate defendant’s confession. Oberman also told the investigator, again falsely, that she was hiding under defendant’s deck on February 3, when defendant supposedly told Reyna he had assaulted the Mishells.

The surgeons who operated, respectively, on Robert and Barbara after the assaults both testified that the victims’ head injuries were inflicted by a blunt instrument like the head of a hammer.

2. The murder of Luis Reyna and its aftermath

On July 15, 1988, defendant made bail in the Mishell assault case, and he was released from custody. On the morning of July 18, Reyna left his home for a meeting with defendant and was never again seen alive. On July 26, Reyna’s decapitated and dismembered body was found in an isolated location near the Lafayette Reservoir.

Overwhelming evidence linked defendant to Reyna’s death. Reyna’s sister Yolanda testified that, on the evening before his disappearance, Reyna received a call from defendant. During the call, she overheard Reyna say he was not afraid of defendant and intended to tell the truth.

The next morning, after calling work to say he would be late, Reyna told his mother he was going to meet defendant around the comer. Reyna, who did not own a gun, then departed, leaving behind his wallet, car keys, and automobile. He never returned. His family contacted the police.

Around 4:00 p.m. on July 19, defendant’s track was found at a Bay Area Rapid Transit station, its interior bloodstained and its bench seat missing. Water residue in the track’s interior indicated it had been hosed or washed out. Oberman had seen the bench seat in the track the previous afternoon.

On July 20, while they were riding together, defendant handed Oberman a gun and told her to throw it in a sewer. She did so. On July 21, after making financial arrangements for an extended absence, the couple flew to San Diego and entered Mexico.

Meanwhile, on July 19, a hiker in the Lafayette hills came upon a human hand. On July 26, an unclothed human torso, missing head and hands, was found at a separate Lafayette hills location. The torso was positively identified as Reyna’s, and the severed hand perfectly matched the torso’s handless left arm. On July 28, items of clothing, an ax, and a saw were found near where the body had lain. A witness who had done constmction work with defendant identified the ax, a somewhat rare type, as defendant’s.

An autopsy indicated that Reyna had been dead for several days before his body was found. Except for the decapitation and dismemberment, the body showed no external or internal signs of human-inflicted trauma. A cause of death could not be determined. Forensic experts opined that the head and hands had been severed by sharp, incisive blows, and that damage to certain of the severed bones was consistent with the use of a saw.

In March 1989, a skull, positively identified as Reyna’s, was found near where the body had been discovered. Four years later, Dr. Herrmann, a pathologist, examined the skull. He opined that the severed neck vertebrae had been cut either by a sharp object, or more likely, based on small ridges in the bone, by a saw. Though missing its lower jaw, the skull showed no other sign of trauma, such as a gunshot wound.

After July 1988, defendant and Oberman stayed in various locations in Mexico. They obtained false identification papers. In September 1988, they bought a residence in Mexico. Thereafter, Oberman returned to California. She worked in La Jolla and Palm Springs to earn money for their mutual support.

In February 1989, while on a surprise visit to Mexico, Oberman argued with defendant over his affair with another woman. During the argument, defendant confessed he had killed Reyna, and was not sorry. Defendant recounted the following: He picked Reyna up in his truck on the morning of July 18, 1988, and drove Reyna to a park in the hills. Reyna again told defendant he would not recant his police statement in the Mishell case. Reyna also called Oberman a whore. Defendant retrieved a gun from the toolbox in the rear of the vehicle and shot Reyna, who was sitting in the passenger seat, in the temple.

In March 1989, Oberman returned to Palm Springs. At her insistence, defendant followed. On September 11, 1989, FBI agents arrested him there

while he was driving with Oberman. Upon his arrest, defendant said to Oberman, “don’t tell them anything.”

In a letter to Oberman from jail, postmarked July 6, 1992, defendant said he would tell her, under separate cover, what he “expect[ed] [her] to remember” if she was called as a trial witness. A second letter, postmarked the same date, set forth a version of Reyna’s death in which Reyna pulled a gun, which went off during a struggle, inflicting a fatal head wound on Reyna. The letter recited that defendant had dumped Reyna’s body because both he and Oberman assumed the police would never believe him, and he needed time to consult with his lawyer. According to the letter, defendant fled the country to forestall civil suits and because of death threats from the Reyna family. Defendant wrote further that he hoped to avoid a harsh sentence in the Mishell case by claiming provocation.

At trial, Oberman insisted the letter’s recitations about Reyna’s death were false. She testified she had never discussed this version of events with defendant, or heard of it, until she received the letter.

3. Defense case

Defendant testified in his own behalf. He admitted bludgeoning the Mishells, inflicting multiple blows on each. Defendant stated that he lost control when the Mishells admitted, but laughed at, his accusations that they were behind the anonymous telephone calls exposing his affair. He said he picked up a meat tenderizer in the Mishells’ kitchen, used it as his weapon, then threw it, weighted, into San Francisco Bay. Defendant acknowledged he lied to the police about the incident, sought to construct an alibi, confessed to Reyna, then pressured Reyna to recant the statement Reyna had given to the police.

Defendant further conceded that he called Reyna on the evening of July 17, 1988, that he met with Reyna on the morning of July 18, that Reyna died in his presence that day, and that he then dismembered Reyna’s body. But defendant denied murdering Reyna. Defendant claimed the following: The men drove in defendant’s truck to a waterfront park in Richmond. During a tense conversation, defendant walked around to the passenger door and opened it. Reyna, who seemed somewhat intoxicated, was pointing a gun at him. They struggled, and the weapon discharged.

According to defendant, he checked Reyna for signs of life and found none, though he saw no blood, wound, or visible sign of the bullet’s trajectory. After driving around for several hours, trying to decide what to do, he disposed of Reyna’s gun in Walnut Creek, then drove to the Lafayette hills, where he dismembered Reyna’s body, using a hacksaw not in evidence, and scattered the remains. He rinsed the truck, inside and out, at a carwash, then discarded other items of evidence, including the truck’s bench seat. He did these things, he said, because he thought nobody would believe him, and he needed time to consult his attorneys.

After meeting with his lawyers on July 20, defendant said, he decided to flee because of death threats from Reyna’s family, potential civil lawsuits, and the fear he would be denied bail on homicide charges. Defendant denied telling Oberman the details of his encounter with Reyna, and he insisted he never told her he murdered Reyna.

Defendant also insisted he had no reason to fear, and thus to kill, Reyna as a potential witness against him in the Mishell assault case. According to defendant, his attorney had advised him that, in an interview with a defense investigator, Reyna had recanted his earlier statement to the police, and his credibility could thus be destroyed on the stand. (See discussion, post.) Also, defendant suggested, Reyna was vulnerable because he had confided to defendant that he was homosexual, a fact he did not wish even his family to know.

The defense presented witnesses to challenge Robert Mishell’s memory, particularly with respect to Robert’s trial recollection that defendant arrived at the Mishell residence carrying a toolbox (and was thus perhaps already armed with the weapon used in the assault). The defense attacked the credibility of Reyna family witnesses, including Reyna’s sister Yolanda, by presenting evidence of their extreme hostility to defendant and their dissatisfaction with police handling of the case. The defense attacked Oberman’s credibility through the testimony of Sue Ann Van Epps, Oberman’s former friend and business partner. Van Epps asserted that Oberman was motivated by money and attention, had engineered the flight to Mexico because of death threats from the Reyna family, and had suggested she and Van Epps collaborate on a book about Oberman’s experiences in Mexico.

Finally, the defense sought to undermine Reyna’s credibility and importance as a witness in the Mishell case, in order to suggest defendant had no motive to kill Reyna. Detective Gustafson testified that, although Reyna was a confidential informant in two earlier search warrants for defendant’s property, Reyna’s April 5, 1988, revelation that defendant had confessed to him added only details to what the police already knew about the Mishell assaults. Gustafson also said Reyna was reluctant to come forward because he doubted the veracity of defendant’s claim and was wrestling with his loyalty to defendant.

Chuck Roberts testified that Reyna had also revealed defendant’s confession to him, but was reluctant to go to the police because of his friendship for defendant and because defendant had told him things in the past that were not true.

Defense investigator George Cramer testified that, in an April 13, 1988, interview, which occurred subsequent to Reyna’s taped police statement, Reyna recanted, saying that the police had taken his statement out of context, and that he did not believe defendant’s confession was serious. According to Cramer, Reyna wanted to help defendant by telling the police everything he knew. Cramer said that he, defense counsel, and Reyna tried to speak with the prosecutor after April 13, but she refused to see them.

B. Penalty evidence

1. Prosecution evidence

The prosecution presented three penalty phase witnesses. Yolanda Reyna, the murder victim’s sister, and Helen Reyna, his mother, testified about the effect of his death on them. Alexandra M., defendant’s niece by marriage, recounted defendant’s sexual assault on her.

Alexandra testified as follows:

She spent the summer of 1982, when she was 15 years old, with defendant’s family. He contrived to drive her to the airport alone for her flight home. On the way, he asked her personal questions of a sexual nature. He parked in a deserted airport lot and enticed her into the rear of his van, where he kissed her and forced her head down onto his penis. When she bit him, he slapped her and stuffed a bandanna into her mouth. Restraining her arms, he then raped and sodomized her, ejaculating in her anus. He threatened to kill her and her family if she told anyone. He also told her she had enjoyed the experience. Though hysterical, she accepted the comment, because she knew no better.

On the flight home, she wrote a letter, never mailed, to her friend Margaret Yen, in which she said she enjoyed the encounter and mentioned no force or threats, but expressed shame that the incident had occurred. She did not tell her mother until, three months later, she discovered she was pregnant. She did not report the incident to police because she was afraid of the effect on her grandparents. By 1988, she had still told only Yen, her therapist, and other close friends and family members. In 1988, she told FBI agents who came to her home in connection with defendant’s status as a wanted fugitive.

2. Defense evidence

Margaret Yen testified that when Alexandra M. returned home from California in 1982, she told Yen she had consensual sex with her uncle in a car at the airport. On the other hand, Yen stated that several months later, when Alexandra was upset over her parents’ breakup, she told Yen she felt unloved and worthless, and had even been forced by her uncle to have oral sex.

A number of witnesses testified to defendant’s positive qualities and contributions, including his involvement in community affairs, charm, sense of humor, diligence, intelligence, computer knowledge, helpfulness, concern for family, trustworthiness, and concern for human equality. His efforts to tutor fellow inmates while he was in jail awaiting trial were noted. But some witnesses admitted he had a temper, could be hard on others, and was capable of anything. And some conceded there was much about defendant they did not know, and that the trial had altered their opinions of his honesty. There was evidence that defendant held a contractor’s license with no record of disciplinary action.

No member of defendant’s family testified in his behalf. The defense presented evidence that his parents were deceased, and that he had asked that his children not be involved in the trial so as to spare them further pain.

Based solely on his review of defendant’s jail records, Jiro Enomoto, a former Director of the Department of Corrections, testified that, if incarcerated, defendant would be assigned to high-security housing, and could be a constructive person. Enomoto conceded the security level of defendant’s housing could change in the future. He insisted that defendant’s numerous county jail incident reports were minor and not a cause for serious concern, though he admitted they were troubling.

II. DISCUSSION

A. Jury selection issues

1. Wheeler/Batson claim

Sixty-eight members of the venire, including nine members who identified themselves as African-Americans, survived challenges for cause. Thirty-nine of these qualified prospective jurors were called into the jury box to face peremptory challenges.

Selection of both regular and alternate jurors was completed on Thursday, March 11, 1993. The remaining venire was excused, but the empaneled jurors were not formally sworn. They were instructed to return for trial the following Monday morning, March 15, 1993. On that morning, defendant filed a written “Motion to Reinstate Improperly Challenged Jurors, Or, Alternatively, to Dismiss Empaneled Jurors and Quash Remaining Venire.” The motion alleged violations of People v. Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748] (Wheeler) and Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69, 106 S.Ct. 1712] (Batson), in that the prosecutor had employed peremptory challenges for the purpose of excluding African-Americans from the petit jury.

Specifically, the motion asserted, the prosecutor had used five of the 15 peremptory challenges he exercised to excuse Prospective Jurors Altie T, Gregory S., James B., Debria W., and June W.—every one of the identified African-Americans called into the jury box—such that the regular jury as empaneled had no African-American members. The motion conceded that the four alternate jurors included an African-American.

Opening statements were deferred, the jurors were sent home, and the motion was argued on March 15 and 16, 1993. Defense counsel insisted, as in the written motion, that the prosecutor’s use of five of 15 peremptory challenges to excuse all African-Americans from the final jury established a prima facie case of discriminatory intent. Observing that the prosecutor’s voir dire had centered around death qualification, counsel argued that the disputed prospective jurors had expressed no extreme views on that issue, either orally or in their questionnaires.

The prosecutor responded that the defense’s statistical argument was misleading because of the small sample size, and that his questioning of the disputed prospective jurors demonstrated no intent to exclude them on the basis of their race. He indicated that this was all he had to say on “the prima facie issue,” but if the court wished, he would discuss his individual reasons for excusing each disputed juror. Without ruling on whether a prima facie case had been made, the court said, “I think you might as well.”

The prosecutor first conceded that all the excused jurors were theoretically death-qualified, but pointed out that he had to make a “more subtle judgment” whether these individuals could actually impose the death penalty. As to Altie T., the prosecutor observed that he “does not believe in the death penalty. Yes, he said he could work with it, but in my judgment someone that does not believe in the death penalty will not give it the same consideration and is not as likely to vote for the death penalty as someone who is in favor of it or is at least neutral.”

The prosecutor said he excused Gregory S., not because of his death penalty views, but because he indicated in voir dire that he “had been the victim of circumstantial evidence in a case when it seemed that he was guilty but, in fact he was not.” Because the instant case was largely based on circumstantial evidence, the prosecutor explained, Gregory S. did not seem a suitable prosecution juror.

James B., the prosecutor noted, would probably be a suitable juror in a noncapital case. However, the prosecutor observed, “my notes indicate [James B.] said that he would have a difficult time voting for the death penalty because of religious convictions,” and “that his wife was extremely opposed to the death penalty.”

Debria W. had been excused, the prosecutor explained, because she said that “maybe” she could impose the death penalty, but it should not be used “except as a last resort and unless she was absolutely sure.” This persuaded the prosecutor she would not evaluate death “even-handed[ly]” against life without parole, and thus was not a suitable juror.

June W., said the prosecutor, had “repeated many, many times that she could be fair,” but he could not get a sense, from her answers, about her death penalty attitudes. Moreover, he indicated, “there was also a question or two that was asked that she did not understand, and she answered incorrectly based on her understanding, and it was my feeling [that] while she was a very nice woman, an older lady, that I did not believe that she would in the end be able to vote for the death penalty.”

Ruling on the motion, the trial court first stated it “[did] not feel the manner in which the peremptory challenges were used created an inference that the prosecutor had a discriminatory motive. Therefore, I do not think there has been made a prima facie case.”

The court further indicated that “I remember these particular people. I reviewed my notes; and, frankly, I feel that [the prosecutor] has given a satisfactory reason with reference to these particular people. They were— They were at best neutral to the death penalty. And if I were a prosecutor, I’d want people more in favor of it. [j[] Many of them did say only in the last resort could they do it or if they’re absolutely sure, which is not the burden of proof. [j[] One juror, [Altie T.], said he did not believe in it. [f] [Gregory S.] again is worried about circumstantial evidence, [f] [Debria W.j is concerned about the absolute certainty, which kind of bothered me. [§] [James B.] indicated it would be difficult to apply. H] Now, forgetting their color for a moment, any prosecutor would knock those people off. [