People v. Kelly (42 Cal. 4th 763, 2007)

Opinion

CHIN, J.

A jury convicted defendant Douglas Oliver Kelly of the first degree murder of Sara Weir under the special circumstances of robbery and rape murder and with personal use of a deadly weapon. (Pen. Code, §§ 187, 190.2, subd. (a)(17), 12022, subd. (b).) After a penalty trial, the jury returned a verdict of death. The court denied the automatic motion to modify the verdict (§ 190.4) and imposed that sentence. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.

I. Facts

A. Guilt Phase

1. Overview

On September 15, 1993, 10-year-old Eric A. discovered Sara Weir’s nude and decomposing body under his bed in the apartment where Eric lived with his mother, Michelle T., and, for a while, defendant. The evidence presented at trial established that defendant had stabbed Sara to death with a pair of scissors several days earlier.

2. The Evidence

The prosecution presented evidence regarding defendant’s and Sara’s actions in the weeks and, especially, days before defendant killed her. Defendant, who apparently had little money and owned no car, frequented a fitness center in Burbank, where he met and befriended a number of women, including Sara, Michelle T, and Ten B. Michelle and Teri testified that at first defendant was a friendly and seemingly caring person. He told them, and they believed at first, that he had a wealthy family in Chicago. He also led them to believe he was a manager or part owner of the fitness center.

Sara, who was 19 years old when she was killed, lived with a friend and had a job at Warner Bros. Studios. Martha Farwell, Sara’s adoptive mother, described her as naive and trusting. During the summer of 1993, she visited the fitness center quite often, where she met defendant. Defendant became her personal trainer. One time Sara went with a friend to defendant’s apartment to look at a dog. Sara told people that defendant was her personal trainer but never suggested she had any other relationship with him. She mentioned to one friend that defendant had tried to flirt with her but she was not interested. She had other boyfriends that summer.

Sara spent the Labor Day weekend with her mother and left to go to her home the afternoon of Labor Day itself, September 6. One friend was expecting to hear from her sometime that same day, during the evening at the latest. The next morning, September 7, shortly after 9:00 a.m., Sara called her place of work and said that “she wasn’t going to be at work today because a friend had committed suicide and she had to deal with that.” She sounded upset. Sara’s mother testified that she knew of no such suicide. Sara had made plans with another friend to see a movie around September 8 and to go to the Hollywood Bowl on September 11. Neither Sara’s mother nor her friends ever saw or heard from her again until her body was discovered.

Michelle testified that she and defendant began dating. Eventually, defendant moved into her apartment at 4950 Laurel Canyon, apartment 110, in North Hollywood, where she lived with her son, Eric A. The three lived together in that apartment for about five months until late August. Defendant often spoke of Sara Weir. He told Michelle that Sara had hired him to do weight training.

At some point, defendant offered to become Teri’s personal trainer, which she accepted. He also asked Teri to work in his family business, promising that his mother would pay her when she arrived from Chicago. Teri agreed, and she believed she had a working relationship with defendant for about two weeks, although she was never paid. She once told defendant she needed to be paid. He gave her one of Michelle’s checks, in the amount of $2,000, but the check bounced.

During this time, defendant also sought to obtain money from acquaintances. Leticia Busby testified that she met defendant at the fitness center, where she worked as an aerobics instructor. On August 26, defendant asked to borrow her credit card so he could take his girlfriend to San Diego for the weekend. She refused.

Helen Walters also knew defendant from the fitness center. He told her that he had just received a family inheritance, but he needed some money to rent a car to go to Disneyland, where he planned to set up a food business. He asked to use Walters’s credit card, offering to pay off the $300 balance on the card account if she allowed him to do so. He showed her his bankbook, which indicated he had much money, but he also said he did not have a credit card, so he needed to borrow hers. Walters trusted him and permitted him to use her card. He charged $900 to her card but never repaid her. She last spoke with him around August 29 or 30. He told her then that he would get her the money, but she never heard from him again.

Damon Stalworth owns a restaurant. He came to know and to trust defendant. Defendant gave him “the impression that he had access to cash.” Around August, Stalworth accepted two personal checks from defendant that were in someone else’s name, possibly Teri B.’s. He gave defendant cash. “It was like a loan, just to get cash.” The checks bounced, and defendant never repaid Stalworth. Teri testified that she did not give defendant permission to write a check of hers for cash.

On Monday, August 30, defendant asked Teri to come to his apartment on Laurel Canyon to meet his mother, who was supposedly coming to town. Teri believed the mother would have money to pay her what defendant owed her. She went to the apartment shortly after noon, but defendant said his mother had not yet arrived. Later, when the mother did not appear, Teri began to get concerned and wanted to leave. She went to the bathroom. When she came out, defendant assaulted her with a pair of scissors. He forced her into the master bedroom, where he held the scissors to her throat, drawing blood. Defendant threatened to kill her. In order to survive, Teri did not resist what followed. Defendant forced her to disrobe, raped her twice, and sodomized her twice. After that, he poured champagne and whiskey into two glasses, from which they drank. Then he raped her again and orally copulated her.

Afterwards, defendant had Teri get dressed, and they drove to a restaurant in her car, where they stayed for about 15 minutes. Then they drove some more. During this drive, around 6:00 to 7:00 p.m., defendant had a conversation with Michelle on his cell phone. Michelle and defendant argued, and defendant became quite angry. During this conversation, Teri came to realize that much of what defendant had said about himself and his family was not true. Eventually, Teri managed to get away from defendant. She did not report the rape until just before she testified at trial because, she said, she was ashamed and, due to defendant’s threats, terrified.

Michelle testified that that same Monday, August 30, she and Eric arrived home after his football practice sometime around 8:00 p.m. or a bit later. The apartment was open. “The balcony doors were wide open and the lights were on and wine glasses, empty champagne bottles were in the house.” They found a dirty towel and women’s glasses and underwear that were not Michelle’s. After that, defendant and Michelle spoke on the telephone, but defendant did not return home until about midnight.

When defendant returned, and while he was still outside, Michelle told him, “as I had told him previously on the phone, that I didn’t want him to come to the house . . . .” Defendant kicked the door open. “He almost broke it off the hinges.” He grabbed Michelle by the neck and started to strangle her with both hands, hard enough to penetrate the skin of her neck with his fingernails. He spent the night with her. The next day, August 31, defendant permitted her to go with her son to his football practice. When she did so, she called the police and defendant was arrested. The day after that, September 1, she learned that defendant had been released from custody. The same day, she obtained a restraining order to keep him from coming to the apartment. Because she was frightened, she went to live with her sister. She did not return to her apartment again except occasionally to get clothing.

The manager of Michelle’s apartment building testified that on August 30, the door of apartment 110 (Michelle’s apartment) had been kicked in. The next day, the manager had the door fixed. The day after that she had a new lock put on the door. She gave Michelle, but not defendant, a key to the new lock. Michelle testified that a person could reach the apartment’s balcony from the outside.

Karrie Marshall worked at a café inside the fitness center and knew defendant. She testified that shortly before Labor Day, defendant called her at her home. He said he was in jail and asked her to help bail him out by obtaining some money from a friend of his. She declined. Later the same day, defendant called her again. He said he was out on bail and asked if he could come to her apartment to pay her some money he owed her. He arrived around 3:00 to 4:00 p.m. She had a male friend with her. Defendant seemed surprised to see the friend. He did not have the money and gave no explanation for not having it. After about half an hour, he left. Around 8:00 that evening, defendant called her again. He said that he had the money this time and would come to her apartment again in about an hour. He arrived around 12:30 a.m. that same night and knocked on her door. Karrie did not let him inside, but she observed him through the peephole. She asked defendant what he needed. He asked if he could come in. He said, “Michelle changed the locks on the apartment doors and I need a place to crash. Can I crash on your couch for a couple hours?” Karrie was alone at this point. She was scared and “had a bad feeling” about defendant. She did not let him into the apartment, and defendant left.

Resell Momon, who also became acquainted with defendant at the fitness center, testified that shortly before Labor Day he received a call from defendant. Defendant said he had gotten into an argument with his girlfriend, had been in jail, had just gotten out, and wanted a ride. Momon picked him up. Defendant said he thought he might have a restraining order against him. He asked if he could stay with Momon for a few days until his girlfriend “cooled down.” Defendant stayed with Momon for about two days. During that time, defendant occasionally left to look for Michelle. On Labor Day, Momon drove defendant back to the apartment on Laurel Canyon. Defendant expressed concern about whether he would be able to get inside the apartment. Momon observed defendant climb to a balcony to get into the apartment. The next day, defendant called Momon again. Defendant said he was “hanging out” with a girl. Defendant said it was not his girlfriend but another girl. Momon did not know who the girl was.

On Labor Day, Michelle visited her apartment. Nothing about its condition suggested to her that someone had visited it since she left. Michelle observed defendant’s briefcase in the apartment. She thought he had left it there when he was arrested. She looked inside the briefcase and found defendant’s mother’s telephone number. Michelle called his mother and learned that much of what he had told her about himself was untrue. The briefcase also contained some of Michelle’s blank checks with her apparent signature and a piece of paper with her name written on it three times. Michelle testified she had not signed the checks but the writing looked somewhat like hers, as if someone was trying to copy her name.

Defendant’s briefcase also contained some blank checks with Teri’s apparent signature, Teri’s sunglasses, and Teri’s driver’s license. Teri testified that she never gave defendant any of her blank checks, and that she had not signed them. The handwriting on the checks was similar to, but was not, hers. She did not give defendant permission to possess these items.

Michelle visited her apartment on other occasions after Labor Day. The next time she went to the apartment, she noticed that the piece of wood she had placed by the sliding glass door to secure it had been removed. She also observed a consumed bottle of champagne and some wine glasses on the kitchen counter that had not been there previously. This indicated to Michelle that someone had recently been inside the apartment. Michelle also eventually discovered that some of her jewelry was missing.

After Labor Day, Michele noticed an unusual odor coming from the bathroom or hallway area. The odor got stronger over time. Eventually, during another visit, on September 15, Eric discovered Sara’s body under the bed in his bedroom.

The body was nude and wrapped in a blanket. Its decomposed condition indicated that death had occurred some time previously. A plastic bag covered the head and a baseball helmet belonging to Eric was over the bag. The bag was secured around the neck by tape that was identical to a roll of tape from a box in the kitchen. Defendant’s palm print and fingerprints were found on the roll of tape, the helmet, and the bed in Eric’s bedroom.

The autopsy revealed that Sara had died of a total of 29 stab wounds by a single weapon, possibly scissors. The body provided no physical evidence of a sexual assault but, given its decomposed state, this did not mean a sexual assault had not occurred. A few days after the body was discovered, a pair of bloodstained scissors was discovered in the box in the kitchen that contained the roll of tape. The scissors could have inflicted the wounds on Sara’s body. Michelle testified that she had last left the scissors on the nightstand by her bed. Ten testified that the scissors were similar to the ones defendant had used to assault her. The blood on the scissors could not have been Teri’s.

Robert Coty, the manager of an apartment building across the street from Michelle’s apartment, testified that shortly after Labor Day, he observed some activity in Michelle’s apartment while looking through a sliding glass window into the apartment. He saw a shirtless man who appeared to be the man who had been living in the apartment. He also observed a “Caucasian” person with dark hair who appeared to be sitting or kneeling. (Sara’s biological mother was a Canadian Blackfoot Indian; Michelle is African-American.) The person appeared to be wearing no clothes. At one point, Coty used the word “she” when referring to this person, but otherwise he said nothing about the person’s gender, using instead the neutral word “person.” Coty observed the man “walk around this person, made like two walk arounds and then right after the second walk around of that person, he closed up the drapes.” He testified that “the person who was sitting or kneeling, they were kind of crunched up like they were being dominated, like they were being scolded or something.”

Shortly after the body was discovered, the police attempted unsuccessfully to find defendant. Eventually, defendant was detained in Laredo, Texas, on November 24 while he was attempting to enter the United States from Mexico. He possessed two of Sara’s checks containing her apparent signature. Sara’s mother testified that the handwriting on the checks was not Sara’s. Sara’s vehicle, a Ford Bronco, was found in Mexico. Her purse was missing from her apartment and was never found.

Jodi D. testified that in December 1987, she was a waitress and defendant a cook at a restaurant in Florida. One night after work, she was with defendant and others at another restaurant. She and defendant started talking about relationships, and especially her relationship with her boyfriend. Defendant seemed sincerely interested and honest. She trusted him and felt comfortable with him. When the group broke up, defendant suggested continuing the conversation elsewhere. She agreed, and they drove to other places. She drove because defendant did not have a car. During this time, defendant told her he was planning to open a restaurant. He showed her a restaurant that he said he was going to rename “Mr. Kelly’s.” He also directed her to a gas station that he claimed to own. She believed him. He said he wanted to show her a room he rented for when he had to work late. She agreed. They parked by a convenience store and walked to a nearby boarding house. Defendant said he wanted to get some money. She still believed him. Eventually, they entered one of the rooms. Inside, defendant raped her repeatedly and took some of her jewelry and her watch. Jodi reported the incident and defendant was arrested. Later he entered into a plea bargain for a lesser crime than he was charged with and received “time served.”

Kim V., a native of South Africa, testified that in 1991 she was visiting Miami as part of a tour of the United States. She met defendant at a youth hostel. He seemed friendly. He told her he was a chef and could get her a job. They socialized after that. He gave her the impression that he was well off and did not have to work because he received a family allowance. One evening, Kim and defendant went to a couple of bars. Eventually, they went into defendant’s room at the hostel, where she had left some items. Then defendant refused to let her go. He covered her mouth with his hand and threatened to kill her if she screamed. He held a knife to her throat and dragged her toward the bed. He raped her repeatedly. “Between the rapes” he seized some of her jewelry. Eventually, defendant fell asleep, and Kim managed to escape, taking her jewelry in the process. Kim reported the incident, but defendant had left by the time the police arrived at the hostel, and he was not arrested.

Defendant did not present any evidence at the guilt phase.

B. Penalty Phase

Esther D. testified that in 1984 in New Jersey, defendant raped her repeatedly. Later she heard that he had been indicted for the crime, but he served only 364 days in custody pursuant to a plea bargain. After his release, she saw him in town several times. One time he walked past her and said “he was going to get me.” Another time he told her “he was going to kill me.”

Martha Farwell, Sara’s mother, testified about Sara and the impact her death had on her family. She prepared a videotape of Sara’s life that was played to the jury.

Defendant did not present any evidence at the penalty phase.

II. Discussion

A. Jury Selection Issues

1. Excusing Two Prospective Jurors for Cause

Defendant contends the court erred in excusing two prospective jurors for cause over his objection. The court excused the first prospective juror because the deputy district attorney who was prosecuting this case had previously prosecuted her son’s uncle on rape charges and obtained a conviction. The prospective juror said she did not know what the charges against the uncle had been, but she knew he was in prison at the time of trial. “A party may challenge a prospective juror for actual bias, defined as a state of mind that would prevent that person from acting impartially and without prejudice to the substantial rights of any party.” (People v. Hillhouse (2002) 27 Cal.4th 469, 488 [117 Cal.Rptr.2d 45, 40 P.3d 754].) “[T]he qualification of jurors challenged for cause [is a] matter[] within the wide discretion of the trial court, seldom disturbed on appeal.” (Odie v. Superior Court (1982) 32 Cal.3d 932, 944 [187 Cal.Rptr. 455, 654 P.2d 225].)

We cannot say the trial court abused its discretion in excusing this juror. A trial court could reasonably conclude that a prospective juror would be biased against a prosecutor who had personally prosecuted for rape a man who would have been her brother-in-law had she married her son’s father. Moreover, any error was harmless. Generally, error in excusing jurors for reasons not related to their views regarding the death penalty does not require setting aside the judgment. (People v. Carpenter (1999) 21 Cal.4th 1016, 1037 [90 Cal.Rptr.2d 607, 988 P.2d 531]; People v. Holt (1997) 15 Cal.4th 619, 656 [63 Cal.Rptr.2d 782, 937 P.2d 213].) “Defendant has a right to jurors who are qualified and competent, not to any particular juror.” (People v. Holt, supra, at p. 656.)

The court excused the second juror because of his views on the death penalty. Unlike error in excusing jurors for cause unrelated to their views on the death penalty, “the erroneous exclusion of a prospective juror because of that person’s views on the death penalty is reversible per se.” (People v. Cooper (1991) 53 Cal.3d 771, 809 [281 Cal.Rptr. 90, 809 P.2d 865], italics omitted, citing Gray v. Mississippi (1987) 481 U.S. 648 [95 L.Ed.2d 622, 107 S.Ct. 2045].) But we see no error. “The trial court may excuse for cause a prospective juror whose view on the death penalty would prevent or substantially impair the performance of the juror’s duties. On appeal, we uphold the trial court’s ruling if the record fairly supports it, and we accept as binding the trial court’s determination of the juror’s true state of mind if the juror has made conflicting or ambiguous statements.” (People v. Cleveland (2004) 32 Cal.4th 704, 735 [11 Cal.Rptr.3d 236, 86 P.3d 302].)

In this case, the prospective juror said some things suggesting that he could be fair to both sides and could impose the death penalty if appropriate. But, in response to questioning by the district attorney, he also stated that “morally I’m opposed to [the death penalty] because I don’t think anybody really has a right to take another person’s life regardless, and it doesn’t make it any more right for the government to do it than it is for an individual to do it.” He reiterated, “That’s morally the way I feel.” In response to the district attorney’s statement that he, the district attorney, had “trouble with the idea that you would abandon your own morality,” he said, “I have the same trouble.” He agreed with the prosecutor that he “might not be the best juror for a death penalty case although excellent for any other murder case . . . .” The court excused the juror, stating that “the more [the prosecutor] questioned, it’s clear to me that [the juror] would never vote for the death penalty.” In light of the juror’s conflicting and ambiguous statements, we must accept the trial court’s determination of his true state of mind. As the United States Supreme Court recently explained, “Deference to the trial court is appropriate because it is in a position to assess the demeanor of the venire, and of the individuals who compose it, a factor of critical importance in assessing the attitude and qualifications of potential jurors.” (Uttecht v. Brown (2007) 551 U.S. 1,_ [167 L.Ed.2d 1014, 127 S.Ct. 2218, 2224].) No error appears.

2. Prosecutor’s Use of Peremptory Challenges

Defendant contends the prosecutor improperly exercised one peremptory challenge against one prospective alternate juror because she was African-American. (See Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69, 106 S.Ct. 1712]; People v. Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748].) The record does not support the contention.

The prosecutor originally accepted the panel of prospective alternate jurors when two members of the panel were African-American. Then, after defense counsel exercised a peremptory challenge to one of the non-African-American jurors, the prosecutor challenged one of the African-American jurors. At this point, defense counsel objected that the challenge was discriminatory, and the court held a hearing. The court denied defendant’s objection but invited the prosecutor to comment.

The prosecutor explained that he exercised the peremptory challenge partly because the prospective juror indicated she would have difficulty “implementing ... the use of aggravating, mitigating factors.” This indicated to him that “she probably would have some difficulty imposing the death penalty.” Additionally, he was concerned that she had been a social worker. He explained that “defendant in this case had early childhood problems without his father being around. I don’t know if that’s going to come up, but I would suspect [the] defense would bring that out, and that I think her empathy for that, she chose for a while a path of counseling children, helping them out, which I think is a wonderful thing, but I think it may show a bias or a concern for children in those situations. I thought she would be biased.” Additionally, he noted that on her questionnaire, “she wrote probably five times as much as any other juror, which may have just been helpful. May have been she wanted to be helpful, but I just found it very disturbing. It was just so odd that a person would be so expressive and redundant and repetitive and she’d write the same answer three or four or five times. I just felt very strange about her.”

The second African-American prospective juror became an alternate juror. Later, she was substituted in as an actual juror and, ultimately, she became the jury foreperson.

The dispositive question here is whether defendant made a prima facie case of group bias. To do so, the defendant must show that under the totality of the circumstances it is reasonable to infer discriminatory intent. (People v. Bonilla (2007) 41 Cal.4th 313, 341 [60 Cal.Rptr.3d 209, 160 P.3d 84].) Where, as here, it is not clear whether the trial court used the “reasonable inference” standard, rather than the recently disapproved “strong likelihood” standard, we review the record independently to determine whether the record supports an inference that the prosecutor excused a juror on a prohibited discriminatory basis. (Id. at pp. 341-342.) “In deciding whether a prima facie case was stated, we consider the entire record before the trial court [citation], but certain types of evidence may be especially relevant: ‘[T]he party may show that his opponent has struck most or all of the members of the identified group from the venire, or has used a disproportionate number of his peremptories against the group. He may also demonstrate that the jurors in question share only this one characteristic—their membership in the group—and that in all other respects they are as heterogeneous as the community as a whole. Next, the showing may be supplemented when appropriate by such circumstances as the failure of his opponent to engage these same jurors in more than desultory voir dire, or indeed to ask them any questions at all. Lastly, ... the defendant need not be a member of the excluded group in order to complain of a violation of the representative cross-section rule; yet if he is, and especially if in addition his alleged victim is a member of the group to which the majority of the remaining jurors belong, these facts may also be called to the court’s attention.’ (People v. Wheeler, supra, 22 Cal.3d at pp. 280-281, fin. omitted.)” (Id. at p. 342.)

We find nothing in this record to support the conclusion that the prosecutor excused the African-American prospective juror because of her race. It is true that defendant is himself African-American, but that fact alone does not establish a prima facie case of discrimination. Whether his victim, Sara Weir, was a member of the group to which a majority of the remaining jurors belong is debatable. The record shows that her biological mother was a Blackfoot Indian. In any event, the race of the victim, by itself, does not also establish a prima facie case of discrimination. Here, the prosecutor used only one peremptory challenge against an African-American. He passed the alternate jurors once with two African-American jurors remaining, and he never challenged the other African-American juror. The fact that the prosecutor accepted the jury panel once with both African-American jurors on it, and exercised the single challenge only after defense counsel exercised his own challenge, strongly suggests that race was not a motive behind the challenge. (People v. Cornwell (2005) 37 Cal.4th 50, 69-70 [33 Cal.Rptr.3d 1, 117 P.3d 622]; People v. Reynoso (2003) 31 Cal.4th 903, 926 [3 Cal.Rptr.3d 769, 74 P.3d 852].) Moreover, the prosecutor’s questioning of the prospective juror was probing, not desultory.

Defendant notes that, during selection of the original jury panel, two African-Americans, apparently the only two of that group to be called into the jury box at that stage, were excused for cause, one on the prosecutor’s motion. (The latter was the prospective juror who was excused because the prosecutor had previously prosecuted her son’s uncle on rape charges. [See pt. II.A.1., ante].) He argues that this circumstance shows that the “prosecutor was achieving what he wanted: a jury with few or no African-American jurors.” We disagree. Many prospective jurors are excused for cause. The prosecutor was entitled to challenge for cause the one juror because of a legitimate concern that she might be biased against him under the circumstances. As the trial court stated when defense counsel argued this point at trial, whether it correctly excused that prospective juror for cause was a separate issue unrelated to whether the prosecutor was acting discriminatorily. The other prospective African-American juror was excused pursuant to stipulation because she had been a rape victim, and she said her emotions would make it too painful for her to be a juror. Defendant asserts that the prosecutor had “the second African-American prospective juror excused by stipulation . . . .” In fact, the record shows that defense counsel suggested she be excused by stipulation. The prosecutor acquiesced in this suggestion, but before he did so he also stated, “If at all possible I would like to keep her because she seems very intelligent, very nice and honest, but it does seem like she was tearing up just talking about the incident.”

Although not required to do so, the prosecutor also stated three race-neutral reasons for his peremptory challenge. Defendant challenges these reasons in various ways, but, under the circumstances, we see no reason to doubt the sincerity of the prosecutor’s explanation. Because the record does not support the inference that the prosecutor used this single peremptory challenge against an African-American juror on the basis of her race, the trial court properly overruled defendant’s trial objection.

B. Guilt Phase Issues

1. Defendant’s Absence from Proceedings

Defendant was apparently absent from a few conferences regarding legal matters that were held in the hallway outside the presence of the jury. Defense counsel was present on all occasions. Defendant contends his absence violated his constitutional and statutory rights to be present. We disagree.

Defendant complains of five occasions when he was personally absent: (1) during jury selection when one prospective juror was questioned and ultimately excused for cause because the prosecutor had personally prosecuted her son’s uncle; (2) during jury selection when one juror was excused for cause because of his views regarding the death penalty; (3) during jury selection when his objection to the prosecutor’s peremptory challenge against the African-American prospective alternate juror was argued and denied; (4) when the parties and court discussed the admissibility of evidence that the murder victim had consumed alcohol on occasions not connected to her death; and (5) when the prosecutor informed the court and defense counsel that Teri B. had recently stated that defendant had raped her.

The record does not clearly establish defendant’s absence on these occasions. It merely indicates that the proceedings in question “were held in the hallway.” However, the Attorney General does not deny that defendant was personally absent on those occasions, and we will assume that he was absent.

“Broadly stated, a criminal defendant has a right to be personally present at certain pretrial proceedings and at trial under various provisions of law, including the confrontation clause of the Sixth Amendment to the United States Constitution, the due process clause of the Fourteenth Amendment to the United States Constitution, section 15 of article I of the California Constitution, and sections 977 and 1043.” (People v. Cole (2004) 33 Cal.4th 1158, 1230 [17 Cal.Rptr.3d 532, 95 P.3d 811].) “[A] defendant’s right to be present depends on two conditions: (1) the proceeding is critical to the outcome of the case, and (2) the defendant’s presence would contribute to the fairness of the proceeding. [Citations.] Thus a defendant may ordinarily be excluded from conferences on questions of law, even if those questions are critical to the outcome of the case, because the defendant’s presence would not contribute to the fairness of the proceeding. Examples include the exclusion of a defendant from a conference on the competency of child witnesses [citation], a conference on whether to remove a juror [citation], and a conference on jury instructions [citation].” (People v. Perry (2006) 38 Cal.4th 302, 312 [42 Cal.Rptr.3d 30, 132 P.3d 235].)

The occasions on which it appears defendant was excluded in this case all involved legal questions of the type that we have routinely held do not require defendant’s personal presence. Defendant claims, in essence, that had he been present, he could have advised counsel to make better legal arguments. A similar claim could be made about any occasion involving legal issues. Nothing in this record suggests that defendant’s presence on these occasions would have made any difference. Defendant relies on cases in which both the defendant and defense counsel were excluded from the proceeding. (People v. Ayala (2000) 24 Cal.4th 243, 259-269 [99 Cal.Rptr.2d 532, 6 P.3d 193] [excluding defendant and defense counsel from hearing on reasons for peremptory challenges was error but harmless]; see also id. at pp. 291-300 (dis. opn. of George, C. J.) [arguing that the error was prejudicial]; U.S. v. Thompson (9th Cir. 1987) 827 F.2d 1254.) There is, however, an obvious difference between excluding both the defendant and his attorney and merely excluding the defendant. In this case, unlike the cases defendant cites, defense counsel was present on all occasions and was able to fully represent defendant’s interests.

2. Admission of Evidence of Uncharged Misconduct

Over objection, the court admitted evidence of three types of uncharged misconduct by defendant: (1) evidence regarding defendant’s financial dealings with other women he had met at the fitness center shortly before Sara’s death; (2) evidence of defendant’s assault on Michelle T.; and (3) evidence of defendant’s rapes of Teri B., Jodi D., and Kim V. In making its rulings, the court reviewed, and was guided by, our then recent decisions in People v. Ewoldt (1994) 7 Cal.4th 380 [27 Cal.Rptr.2d 646, 867 P.2d 757] (Ewoldt) and People v. Balcom (1994) 7 Cal.4th 414 [27 Cal.Rptr.2d 666, 867 P.2d 777] (Balcom). The court also explained to the jury the limited use it could make of this testimony. Defendant contends the court erred in admitting this evidence.

Evidence Code section 1101, subdivision (a), generally prohibits “evidence of a person’s character or a trait of his or her character” when it is “offered to prove his or her conduct on a specified occasion.” Subdivision (b) of section 1101, however, provides: “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.”

In general, we have explained that “[t]he admissibility of other crimes evidence depends on (1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts, and (3) the existence of any rule or policy requiring exclusion of the evidence.” (People v. Carpenter (1997) 15 Cal.4th 312, 378-379 [63 Cal.Rptr.2d 1, 935 P.2d 708].) The main policy that may require exclusion of the evidence is the familiar one stated in Evidence Code section 352: Evidence may be excluded if its prejudicial effect substantially outweighs its probative value. Because substantial prejudice is inherent in the case of uncharged offenses, such evidence is admissible only if it has substantial probative value. (Ewoldt, supra, 7 Cal.4th at p. 404.) This determination lies within the discretion of the trial court. (People v. Carpenter, supra, at p. 380.)

In Ewoldt, supra, 7 Cal.4th 380, we discussed specific situations when evidence of uncharged crimes may be admitted under Evidence Code section 1101, subdivision (b): “[E]vidence of a defendant’s uncharged misconduct is relevant where the uncharged misconduct and the charged offense are sufficiently similar to support the inference that they are manifestations of a common design or plan. [