People v. Lindberg (45 Cal. 4th 1, 2008)

Opinion

MORENO, J.

A jury found defendant Gunner Jay Lindberg guilty of the first degree murder (Pen. Code, § 187) of Thien Minh Ly and found he personally used a knife (§ 12022, subd. (b)). The jury further found true special circumstance allegations that defendant committed murder in the attempted commission of robbery (§ 190.2, former subd. (a)(17)(i), now subd. (a)(17)(A)) and because of the victim’s race, color, religion, nationality, or country of origin (§ 190.2, subd. (a)(16) (“hate-murder” special circumstance)).

At defendant’s penalty trial, the jury returned a death verdict. The trial court denied defendant’s motion for new trial (§ 1181) and automatic application to modify the penalty verdict (§ 190.4, subd. (e)) and sentenced him to death. This appeal is automatic. (§ 1239, subd. (b).)

We affirm the judgment.

I. Facts and Proceedings

A. Prosecution Guilt Phase Case

1. The Murder of Thien Minh Ly

Defendant concedes that the prosecution proved he murdered Ly on the Tustin High School tennis courts on January 28, 1996.

The evidence showed that on January 28, 1996, between 8:30 and 9:00 p.m., Thien Minh Ly left his family’s home in Tustin wearing his Rollerblades and leaving behind his wallet and car keys. When Ly did not return home, his family telephoned the police the next day.

On the same morning, around 7:45 a.m., Frank Armenta, a groundskeeper at Tustin High School, noticed someone wearing Rollerblades lying on one of the tennis courts. As he approached, Armenta noticed the person was not breathing and saw blood on his shirt and a cut on his neck. He asked two nearby school employees to call the police.

When the police responded, they found Ly dead. Next to Ly’s body, they recovered a cap and a single key on a keyring. The key fit the locks at Ly’s residence.

Ly had suffered multiple injuries. A pattern contusion (i.e., having “some pattern-like linear marking”) and abrasion comprising an area about five inches by four inches appeared on the right side of Ly’s face, extending from his forehead to his right cheek and ear. A contusion and an abrasion appeared on the left side of Ly’s forehead, and a contusion appeared on his mid-nose area and below his left eye. Redness was visible on his left cheek. Ly had suffered five-and-a-half-inch and three-and-a-half-inch slash wounds on the right and left sides of his neck, respectively. Each of these wounds had irregular edges, suggesting the perpetrator did not inflict a single wound, but probably cut and then extended the cut. The slash wounds to Ly’s neck had been inflicted close in time to his death but not postmortem. Ly had suffered multiple deep stab wounds on the right and left sides of his chest that penetrated his internal organs, linear abraded areas that were consistent with being caused by the pulling of a knife from a deep penetrating wound, stab wounds on his right upper arm, a stab wound in his abdominal area, and an abrasion on his right hand. Some of the chest wounds penetrated through the body. Ly had suffered about 22 wounds to his chest and abdominal areas, some inflicted from the front and some from the back. Each wound had been inflicted by a single-bladed knife or sharp object with a blade about an inch to an inch and a quarter in width. The maximum depth of penetration was about four and one-half inches. Ly had been stabbed about 14 times in the heart. The multiple stab wounds that perforated Ly’s heart, both lungs, diaphragm, liver, duodenum, and kidney had caused Ly to bleed to death.

2. Defendant’s Confession to Ly’s Murder

Walter Ray Dulaney IV, also known as Robert Dulaney, testified he was defendant’s cousin and friend and had known defendant all his life. Dulaney previously had been convicted of first degree assault and burglary and, at the time he testified, was in custody in Missouri for shooting at someone. Sometime during the five years before trial, Dulaney, defendant, and defendant’s brother Jerry formed a gang called the Insane Criminal Posse (ICP). In 1995, primarily at defendant’s urging, the gang became involved in the White power movement. By “White power,” Dulaney meant that Whites were superior to all other races. He said defendant shared this view. Dulaney, who was part Japanese, did not consider himself to be any race other than “American.”

On February 29, 1996, Dulaney, who was living in Alamogordo, New Mexico, received a handwritten letter from defendant dated February 23, 1996 (the February 23d letter). Defendant had addressed the letter to “Dear Bro, ex-con 2/11 Rob” and stated in relevant part: “Oh, I killed a jap a while ago. I stabbed him to death at tustin High school I walked up to him Dominic was with me and I seen this guy Roller blading and I had a knife. We walked in the tennis court where he was I walked up to him, Dominic was right there. I walked right up to [illegible] him and he was scared I looked at him and said, ‘oh, I thought I knew you’ and he got happy that he wasn’t gona get jumped, then I hit him with one of my mother fuckers and he feel on the ground and he said in a very low voice ‘what the fuck’ and ‘you can have whatever I got.’ I have nothing only a key. You can have it’ then I said ‘you got a car,’ oh I pulled the knife out a butcher knife! and he said ‘no’ then I put the knife to his throught and asked him ‘Do you have a car.’ And he grabed my hand that I had the knife in and looked at me, trying to get a discription of me so I stomped on his head 3 times and each time said ‘stop looking at me’ then he was kinda knocked out Dazzed then I stabbed him in the side about 7 or 8 times he rolled over a little so I stabbed his back about 18 or 19 times then he layed flat and I slit one side of his throught on his jugular vain. Oh, the sounds the guy was making were like uhhh then Dominic said, ‘do it again’ and I said ‘I already did, Dude’ ‘ya, do it again’ so I cut his other juggular vain, and Dominic said ‘kill him do it again.’ I said, ‘he’s already dead’ Dominic said, ‘stab him in the heart.’ So I stabbed him about 20 to 21 times in the heart and we took off. . . . [T]hen I wanted to go back and look, so we did and he was dicing just then taking in some bloody gasps of [illegible] air so I nudged his face with my shoe a few times then I told Dominic to kick him, so he kicked the fuck out of his face and he still has blood on his shoes all over [smiley face] then I ditched the knife, after whiping it clean onto the side of the 15 freeway [smiley face] here’s the clippings from the news paper and we were on all the news channels 2/11 Insane Loc in having a ball in tustin wish you were here. . . .” (Errors in original.)

After Dulaney read the letter, his wife gave it to his mother and stepfather, who then gave the letter to Alamogordo police, all of which occurred on the same day. Alamogordo police brought the letter to the attention of the Orange County District Attorney’s Office and Tustin police.

The next day, March 1, 1996, Dulaney spoke by telephone to defendant who told him the murder “gave [him] a rush,” “like a high. Better than a drug.” Defendant told Dulaney that he “killed the Jap,” that he “slit his throat and stabbed him a whole bunch of times,” and that he “couldn’t stop.” Defendant told Dulaney he killed Ly “for racial movement [,sic].”

On March 5, 1996, Tustin Police Detectives Todd Bullock and Bruce Williams interviewed Dulaney about the letter he had received from defendant. Dulaney denied he had spoken with defendant since he had received the letter because he did not want defendant to be in more trouble than he already was. When Detective Bullock asked Dulaney how defendant felt about Asians, Dulaney said he did not know, as they never talked about it.

Dulaney later moved to Missouri with his wife. Sometime in the early part of 1997, while living in Missouri, Dulaney was shot in the stomach by somebody who yelled, “You want to put your cousin on death row, here is death row.” Dulaney did not seek medical help, but pulled the bullet from his stomach himself using tweezers and a lug wrench as he had been trained to do in the “Young Marines.” Dulaney did not report the gunshot wound to police because, at that time, he did not want to violate the conditions of his parole and return to prison.

On April 11, 1997, Dulaney telephoned Carl Waddell, an investigator with the Orange County District Attorney’s Office, and informed him that defendant had told him the murder was racially motivated. On April 24, 1997, investigator Waddell and Tustin Police Detective Thomas Tarpley interviewed Dulaney in Missouri. Dulaney repeated that defendant said the murder had been committed for “the racial movement.” Dulaney said he had not previously told the police about his telephone conversation with defendant because he was afraid and did not want to snitch on defendant any more than he had. Dulaney told investigator Waddell that “when he [Dulaney] testified that he was a dead man.”

Sometime before he telephoned Waddell on April 11, 1997, Dulaney received a letter from defendant while defendant was in custody awaiting trial in this case. In the letter, defendant wrote that Dulaney’s parents were “2/11,” meaning they were dead because they had turned defendant in. Dulaney and defendant also used the term “2/11” to mean “armed robbery” to show that their gang was “for real” and not “some punk gang or nothing.” After giving defendant’s February 23d letter to police, Dulaney was afraid defendant would kill him. Dulaney became depressed and admitted himself to a “mental rehab” facility because he felt responsible that defendant could receive the death penalty. Dulaney received no promises from either the prosecution or the authorities in Missouri in exchange for his testimony at defendant’s trial.

3. Defendant’s Arrest and the Search of His Apartment

In the early morning hours of March 2, 1996, police officers executed a search warrant at defendant’s apartment in Tustin with the assistance of the Orange County Sheriff’s Department SWAT team. They arrested defendant, who was in the living room, and Domenic Christopher, who had fled through a window but was quickly apprehended nearby. Bob Mix, who was present in the apartment with defendant, was detained and taken to the police station.

On a wall in the bedroom shared by defendant and Christopher, police officers observed a poster that read across the top, “Celebrate Martin Luther King Day” (“Martin Luther King” poster). The bottom of the poster read, “If they would have shot four more, we could have had the rest of the week off from work.” The word “death” was written below “Luther” in “Martin Luther King.”

The police seized the following items from defendant’s bedroom.

(1) A notebook containing writing on numerous pages. One writing was entitled Blessed Be Ye Ears that discussed “killing the meek,” talked extensively about “devastation and death,” called Robert Dulaney “Ex-Con,” stated that “Dominic” was a “2/11” member but had not reached any “levels,” and declared that “Death is apperant in all my members eyes, kill spill the blood of the meek. The meek shall inharent shit. The stronge shall survive my tounament of death” (errors in original);

(2) a box bearing the words “Mixed Fruit” and “Gunner’s Box,” and two pairs of gloves on top of the box;

(3) a Bible with “Presented [][] to Rambi [illegible] [ft] by Gunner Lindberg” inscribed on the inside front cover and listing the names of White supremacist organizations, a White supremacist leader, and a White supremacist newsletter on the last several pages. Inserted among the pages of the Bible were various papers and printed material, including:

(a) an application for the N.A.A.W.P. (National Association for the Advancement of White People);

(b) a newsletter dated August 1994 and entitled “The Talon Euro-American alliance” that described the Aryan movement, noting it “courageously offer[s] the White race its only hope for survival”;

(c) a piece of paper that read “Failure to speak up, a silent and deadly killer” written by Jack Mohr, a “Brigadier General” who heads a White supremacist organization known as “The Crusade for Christ and Country,” an envelope showing Mohr’s return address that was addressed to defendant, an envelope and a letter dated October 31, 1994, addressed to Mohr and showing defendant’s name and return address, and two handwritten letters from Mohr addressed to defendant;

(d) a printed form entitled “The Nationalist Party of Canada Membership Oath” that read, “I declare that I am a racist who respects other races with common sense and good will and fair play towards the maintenance of my racial integrity and identity, [ft] I pledge to establish and maintain the constitutional racist state homeland. . . .”; and

(e) a piece of paper bearing the title “Pro White Organizations,” listing the name and addresses of 12 organizations, including the Aryan Research Fellowship, the Ku Klux Klan, and the White Aryan Resistance;

(4) a cardboard box bearing the words “2/11 Insane LOC,” “Insane Loc,” “I.C.P.,” and “O.G.,” with lightning bolts and two swastikas;

(5) a plastic skull with a motorcycle helmet bearing a swastika across the top; and

(6) a T-shirt belonging to defendant with a small bloodstain about the size of a nickel.

4. Defendant’s Statements to Police

After his arrest, defendant was transported to the Tustin police station. Police Detective Todd Bullock advised defendant of his rights under Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602], which defendant waived. Bullock conducted two audiotaped interviews of defendant. During the first interview, defendant admitted he had heard about the murder of Thien Minh Ly but denied any involvement.

During the second interview, conducted by Detectives Bullock and Mike Clesceri, defendant admitted that “2/11” meant “armed robbery” and that he “wrote the whole [February 23d] letter” to Dulaney to boast and impress his cousin. Defendant maintained the statements in the letter meant nothing to him. Defendant said he had heard about the crime from newspapers and television. He admitted he sent one of the newspaper articles to Dulaney along with the February 23 d letter as proof he had written the letter.

Defendant said he was interested in the murder “[c]ause it was an ethnic,” and “[i]t wasn’t a White person.” Defendant acknowledged his letter to Dulaney was “nice and detailed.” He said he made up the details, including the seven or eight stab wounds he inflicted to Ly’s side and the 18 or 19 stab wounds he inflicted to his back, and acknowledged the newspaper articles specified only that Ly suffered “multiple” stab wounds. When asked where he had heard about Ly’s having a key, defendant said he “[j]ust thought of it” and acknowledged he did not learn about this detail from the newspaper or television news. Defendant admitted that it was “[k]ind of odd” that Ly had only a key found next to his body and that defendant had written in the February 23d letter that Ly said he had nothing but a key.

5. Forensic Evidence

DNA samples were obtained from dried bloodstains on three areas of the right-hand black glove found on the box in defendant’s bedroom. One of these DNA samples was mixed, containing DNA from two sources. Ly’s DNA was consistent with the sample DNA from all three areas of the glove. Defendant’s DNA was consistent with being one of the sources of the mixed sample. Christopher was excluded as being a contributor of the blood tested on the glove.

The percentage of the population that could be excluded as having been the source of the bloodstains on the gloves was 99.999 percent. Based on FBI national population databases, estimates of the frequency with which the DNA pattern found on the right-hand black glove (excluding the mixed DNA sample) occurred was one in two million in the Asian population, one in 30 million in the Caucasian population, one in 10 million in the African-American population, and one in three million in the Hispanic population.

The bloodstain found on defendant’s T-shirt that was seized from his bedroom was consistent with the genetic markings of Christopher, but not Ly.

6. Prior Acts Evidence

a. Attempted Robbery of Emelio Reyes-Martinez

In October 1990, defendant, who was 15 years old, and Kenny Harp went to a field near San Diego to rob Hispanic people. Defendant and Harp knew that Hispanics who worked in the field were paid in cash. Emelio Reyes-Martinez, a Hispanic landscaper, was walking through the field to obtain water and saw Kenny, defendant, and three other boys approach. Defendant held a stick about two feet long and two and a half inches in diameter in his right hand behind his back. Defendant gestured with his left hand towards Reyes-Martinez, moving his fingers, and demanding, “Money, money, money.” When Reyes-Martinez told defendant he did not have any money, defendant hit him on the head with the stick. Reyes-Martinez again told defendant he did not have any money, and defendant again hit him with the stick. Defendant struck Reyes-Martinez’s right arm, causing the bone to protrude.

Believing the beating was not going to stop, Reyes-Martinez began to run and yell for help. Defendant and Harp followed, pulled at Reyes-Martinez’s arms, and kicked him until he stumbled and fell. Reyes-Martinez managed to get back up and started running again, bleeding from his face. Reyes-Martinez thought that if he fell again, defendant and Harp would “hit [him] to a pulp.” Defendant and Harp continued to beat Reyes-Martinez, hitting him from behind. Reyes-Martinez lost $200 or $210 in the attack. Reyes-Martinez’s friends chased defendant and Harp away. Reyes-Martinez was taken to the hospital, where he received 14 to 19 stitches.

b. Attempted Robbery of Helen Tillman

On October 31, 1990, defendant and Zachery Ellis, both 15 years old and armed with knives, entered the home of Helen Tillman, an elderly woman who lived alone, and demanded her money. At trial, Tillman testified a man held a knife to her neck while restraining her. Defendant or Ellis took $90 that Tillman had in her purse in her bedroom. Before leaving, defendant stmck Tillman on the right side of her face with his hand, knocking her onto the counter and causing her face to swell and bruise.

On November 1, 1990, defendant admitted to Oceanside Police Officer James Sandifer that he and Ellis had entered Tillman’s residence through a sliding door. Defendant claimed Ellis went into a back room while he remained in the kitchen with Tillman. Defendant held Tillman by the back collar of her shirt and admitted he punched her on the right side of her face because he feared she might escape. Defendant denied having a knife, but admitted he and Ellis took money from the back bedroom.

Ellis admitted to Officer Sandifer that he was defendant’s friend and that both he and defendant had been armed with knives when they robbed Tillman. Ellis had difficulty remembering details of the incident, but testified it was defendant’s idea to enter Tillman’s residence. Ellis confirmed that on June 11, 1997, he told investigator Waddell that defendant came out of the back room and hit Tillman.

7. Evidence Offered to Support the Hate-murder Special-circumstance Allegation

a. Defendant’s Assault on Tung Le and His Statements While in Jail

In July 1997, Alejandro Villa, who previously had been convicted of and imprisoned for numerous crimes, including commercial burglary, grand theft from a person, grand theft auto, and petty theft, was incarcerated in the same area of the Orange County jail where defendant was in custody awaiting trial in this case. At the time of defendant’s trial, Villa was facing charges for armed robbery, assault on a peace officer and emergency personnel, battery on a peace officer and emergency personnel, escape from jail with felony force, and possession of hypodermic needles and syringes.

Tung Le, an Asian inmate, was placed in the same jail modular group as Villa and defendant. Before Le arrived, defendant told Villa he wanted Le to be put in their group. When Le arrived, defendant appeared to be excited, rubbing his hands together and smiling at Le. Defendant told Villa he did not like Le and thought Le was “a punk, fucking nip,” and that he was “going to get [Le].” At times, when defendant watched Asians on television, he would mumble or say something.

While playing cards in the dayroom, defendant threw Le against a wall and choked him because Le accused defendant of not following the rules of the game. On another occasion, during shower call, defendant choked Le in the shower to the point that Le’s face was purple and blue and his veins and his eyeballs were bulging. When Villa warned defendant that he was going to kill Le, defendant told Villa, “[Le] is going to tell, he is going to rat. I got to kill him. I got to kill him.” Villa then pulled defendant off Le.

While in jail, Villa came to believe that defendant hated Asian people based on comments he had heard defendant make. Defendant said that Asian speech sounded like “mice talking, like a fast-forward cassette. . . .” Defendant told Villa he was in jail “for stabbing a Nip to death.” Defendant explained that as the knife was going in, “it was a—fleshy kind of sound and feeling.” Defendant stated that he told a friend, “Let me show you how easy it is to kill a Vietnamese and get away with it.” Defendant also made “wise cracks” about being the “best tennis player” because of what had happened on the tennis courts.

Villa denied that he expected to receive anything from the Orange County District Attorney’s Office in exchange for his testimony in this case.

b. Defendant’s Statements to Ellis and Coworker Rochelle Lopez

Sometime before defendant and Ellis robbed Tillman on October 31, 1990, defendant told Ellis that he disliked Asians because he “got kicked off Okinawa.” Defendant referred to Asians as “gooks” and Hispanics as “spick[s]” and “wetback[s].”

Between November 3, 1995, and January 28, 1996, Rochelle Lopez worked with defendant, whom she knew as Jerry Lindberg, at a Kmart store in Tustin. On one occasion in the employee lunchroom, an African-American employee came in, said hello, and then left the area. Defendant told a supervisor, “I hate that nigger bitch. She got on my nerves,” or something to that effect. On another occasion, some Asians walked into the store and defendant said, “There goes gooks,” or words to that effect. On January 10, 1996, about two and a half weeks before the murder of Thien Minh Ly, Lopez left Kmart with Christopher and saw defendant, who was part of a crowd, pushing and screaming at an Asian man. The man asked defendant, “Why are you doing this to me?”

c. Defendant’s Written Statements to Dulaney While Incarcerated on Another Matter Before Ly’s Murder

In a letter to Dulaney postmarked November 3, 1993, defendant wrote, in part, “Dog, its time to look in to the future this nation is comming to a hult with the niggers and us. We must choose sides now! for time is comming fast here is an address for Aryan Racial Unity: Nationalist Party of Canada .... [][] Write them and get some info and littiture ok and copy it and we’ll bring the 2/11 war party into effect. . . . [f] Well, cuz I wan’t to get this address to you so you can get some info. . . . Tell them you want to get your own party going and would like littiture to start a part of your own or would like to become apart of your party OK!” (Errors in original.)

In a letter to Dulaney dated March 10, 1993, defendant stated, in part, “Well, its different on the streets. I run the W.A.R. group in here. White Arian resístanse is a action group—were a branch of NVAP National Vastal Arian Party they dictate we react, in other words they talk—we back them .with violence. Oh, yes, were still runnin ours! Its up to you if you can handel it—I know you can, but without bustin probation is the question. Ask them what there about, and if they say violence or anything of that nature you know there solid Dogs. If not don ‘t fuck with them." (Errors in original.)

In a letter to Dulaney dated February 13, 1994, defendant stated, in part, “I hate hole time! I’ve wrote many people no one writes the Gun back, I feel lonely dog! All I keep lookin forward to is Aug 3rd then I’ll be free, Hey bro I’ll be the first to say doing time is fuckin hard. After a while you change, your mind just relates to this kind of life. And that’s not cool because I’m pure fucking evil dog and thats no shit. All I want to do is hurt and kill, I think of many ways to hurt the Mt. Vernon people. And I have one!” Defendant ended the letter with “KILL” (with the “K” written in a style resembling a Nazi swastika), and ‘‘kill-kill-kill-kill-kill-kill-kill’’ followed by “Them all! with love, insane Loe OG for life.” (Errors in original.)

d. Defendant’s Written Statements to Others While in Custody in the Orange County Jail Awaiting Trial in This Case

In an undated letter to Kelly Dresen, defendant wrote, “I’m White to the bone. 1/2 german 1/2 Indian and I’m 100% against black. [