People v. Roehler (167 Cal. App. 3d 353, 1985)

Opinion

HANSON (Thaxton), J.

Defendant Frederick George Roehler II appeals from the judgment convicting him of the first degree murders of his wife, Verna Roehler and his stepson, Douglas Johnson. Defendant was sentenced to life in state prison without possibility of parole. We affirm the judgment.

Procedural History

By information, defendant was charged in count I with the murder of Verna, in violation of Penal Code section 187. In count n, defendant was charged with the murder of Douglas, in violation of Penal Code section 187. Three special circumstances were alleged: that defendant had committed more than one offense of murder; that the murder of Verna had been intentional and carried out for financial gain; and that the murder of Douglas was also intentional and carried out for financial gain.

Defendant entered a plea of not guilty to both counts and denied the allegations of special circumstances. His motions to suppress evidence were denied, as were his applications for release on bail. Various discovery motions by defendant were granted. Defendant’s Penal Code section 995 motion was denied.

Prior to trial, the trial court ruled that the prosecution could not present evidence concerning defendant’s relationship with his first wife, Jean Roehler, nor could the prosecution acquaint the jury with the nature and circumstances of Jean Roehler’s death and any insurance claim made by defendant with respect to Jean’s demise. Defendant’s motion concerning this matter, pursuant to Evidence Code section 1101, subdivision (a), was granted because the trial court specifically found that the prejudicial effect of the evidence would outweigh its probative value, as provided in Evidence Code section 352.

Trial was by jury. A portion of the prosecution’s case-in-chief consisted of testimony regarding the results of various physical experiments, and the trial court made a series of rulings admitting some testimony and excluding other testimony; these rulings shall be discussed herein as they become relevant to the issues raised on appeal.

Defendant’s motion to dismiss the murder counts, made pursuant to Penal Code section 1118.1, was denied. His motion for judgment of acquittal on the special circumstance that the murder of Verna was intentional and committed for financial gain was denied. However, the trial court did grant a similar defense motion with respect to Douglas Johnson, and dismissed the third special circumstance that had been alleged.

The prosecution’s requests during rebuttal for the showing of a video tape of experiments at Bird Rock, the scene of the crimes, and that the jury be permitted to travel to that location, were denied. Defendant’s renewed motion to dismiss was denied.

The jury found defendant guilty of murder as charged in counts I and II, and found each murder to be of the first degree. The jury further found that the two remaining special circumstances allegations were true.

During the penalty phase of trial, the trial court ruled that the prosecution could present evidence of the drowning of defendant’s first wife, Jean Roehler, as a circumstance in aggravation; defendant’s motion for a new jury was denied. There were further rulings by the trial court limiting the nature of evidence admissible concerning Jean Roehler’s death. After the prosecution had presented this evidence in its case-in-chief, the trial court granted defendant’s motion to exclude the evidence, specifically ruling that there was no evidence that Jean Roehler had died by criminal means or at the hands of another person. Defendant’s motion seeking a life sentence was denied. His motion for a mistrial was denied.

The jury determined defendant’s punishment to be life imprisonment without possibility of parole. Defendant’s motion for new trial was denied. The defendant was found ineligible for probation; the trial court further declared that if defendant were eligible for probation, probation would nevertheless be denied, pursuant to rule 414, California Rules of Court.

Defendant was sentenced to state prison for the term of life without possibility of parole on counts I and II. Sentence on the two counts was ordered to be served concurrently. Sentence on count II was stayed pending appeal, with the stay to become permanent when the sentence on count I has been completed.

Standard of Review

As with other trial court judgments, a jury verdict in a criminal case is presumed to be correct on appeal from the judgment of conviction. In the matter before us, the jury was required to resolve very substantial conflicts in the evidence presented. It is well established that an appellate court may not substitute its resolution for that already chosen by the jury, but must uphold such factual determinations—and the reasonable inferences drawn therefrom—if supported by substantial evidence. Inquiry into the substantiality of the evidence, however, is a principal appellate function as is inquiry into other claims of error.

In People v. Johnson (1980) 26 Cal.3d 557, 575-578 [162 Cal.Rptr. 431, 606 P.2d 738, 16 A.L.R.4th 1255], the California Supreme Court analyzed prior California decisions concerning the appropriate standard of review employed by appellate courts when, as here, the sufficiency of the evidence supporting a judgment of conviction was in issue on appeal. The court declared that our courts had generally been consistent in applying the rule set forth by the United States Supreme Court in Jackson v. Virginia (1979) 443 U.S. 307, 318-319 [61 L.Ed.2d 560, 573, 99 S.Ct. 2781], that “ ‘the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction [is] to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.’ ” (Id., at p. 576.)

Johnson reaffirmed that “the [appellate] court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (Id., at p. 578.)

Evidence Adduced Below

Verna Roehler and Douglas Johnson drowned in the ocean near Santa Cruz Island off the Santa Barbara coast, at a location known as Bird Rock, on January 2, 1981. The prosecution charged that these were not accidental drowning deaths, but had been staged by defendant to appear as accidental when in reality they were premeditated murders committed by defendant for financial gain, i.e., for the purpose of collecting the very substantial insurance proceeds payable upon the accidental death of Verna. Defendant insisted that the drownings had occurred accidentally when the dory in which he, Verna, Douglas and the family dog were riding overturned. As defendant was the only witness and sole survivor of the incident, his testimony concerning the events that culminated in the deaths of his wife and stepson was a central issue in this long trial; it provided much of the context in which the evidence on both sides was presented. As we summarize that evidence, we are mindful of the standard of appellate review to which reference has already been made.

Defendant married Verna Jo Johnson in 1977. Each was approximately 35 years of age, and owned property in Malibu. They took up residence there with their four young children of previous marriages: Kimberly Johnson, Heidi Roehler, Douglas Johnson and Kirsten Roehler. (At the time of trial, Kimberly was 11, Heidi was 10, and Kirsten 8. Douglas was eight years old at the time of his death).

The family engaged in much outdoor activity and sports, and enjoyed a high standard of living. In fact, there was considerable evidence at trial that the Roehlers were living beyond their means, that far more money was being expended than was coming in. Defendant, an engineer, was not employed during a portion of the period from 1977 to 1981, due to an injury. Verna worked in a minor capacity, part time, for the Santa Monica School District, with annual earnings of less than $3,000.

A fire had damaged some rental units in Malibu owned by Verna, and defendant and Verna obtained a loan for repairs from the Small Business Administration, using the marital residence as collateral; some of these funds were used to defray family living expenses. Income was also realized from the rental of heavy equipment and labor to other property owners who had sustained damage in the same fire. There was evidence, however, of financial strain. Verna had mentioned this to her good friend, Patti Leitelt, who also testified that on occasion Verna’s credit cards were rejected by merchants when she wished to make a purchase.

Prosecution witness Thomas Sever, a certified public accountant in Santa Barbara, testified at trial that after analysis of the couple’s financial records it was clear that the Roehlers had made inroads into their capital, that their liquid assets were diminishing, and that the negative cash flow in the years 1979 and 1980 was, respectively, $51,237.04 and $51,891.73. In April 1980, however, the Roehlers acquired the Perseverance, a 50-foot fiberglass sailboat, and were preparing to take the boat and the entire family on a long cruise.

In February 1980, defendant talked to his attorney, William Fairfield, at a social gathering about needing to do some estate planning. Attorney Fair-field subsequently advised defendant and Verna on this subject; a will and a trust were prepared which were executed at the end of October 1980.

In August 1980, defendant wrote a letter to Travelers Insurance Company inquiring about insurance to pay off the mortgage on a home in the event of a husband or wife’s death. Thereafter, Travelers Insurance Company salesman Raymond Wylie contacted defendant and was told by defendant that defendant and Verna owned real and personal property of over $1 million. Based on figures supplied to him by defendant, Wylie determined that regardless of whether defendant or Verna died first, very substantial sums (ranging from $491,137 to $644,635) would be needed by the survivor to “clear” the estate of the decedent. Both Wylie and his manager, Tom Costanzo, reviewed this information with defendant.

In December 1980, Travelers Insurance Company issued life insurance policies on defendant, Verna, and the four children. The policy on defendant was for $400,000, level term insurance until aged 70. Verna was the beneficiary. The contingent beneficiary was the Johnson-Roehler trust, established at the same time the will was executed. The policy on Verna was also for $400,000, with defendant the beneficiary. Both policies included an accidental death benefit in the amount of $300,000, the maximum amount of coverage available with Travelers. Thus, assuming that Verna died before defendant, by accidental means, the proceeds payable according to the terms of that policy would have been $700,000. Also purchased were whole life insurance policies for each child, including Douglas, each policy having a face value of $60,000. Each of these policies also had a double indemnity clause, providing for payment of twice face value if the child insured died accidentally. While defendant was not the named beneficiary of the policy on Douglas, he owned the policy, could designate the beneficiary, and could effectively control use of the proceeds through his control of the trust.

The annual premium for the six policies was $3,698.18. Five of the policies were delivered to defendant about December 4, 1980; the policy on Verna, held up temporarily, was not delivered until December 16, 1980, and there was testimony that defendant was agitated by the delay. Toward the end of December 1980, defendant paid to Travelers the sum of $97.63, as the initial payment of premiums for the coverage obtained.

Attorney Douglas Schmidt of Santa Barbara testified for the prosecution concerning the Roehler estate planning, the trust and the purchase of the life insurance. A graduate of Harvard Law School and an experienced estate planner, Schmidt had been provided with the documents formalizing these arrangements and with the analysis prepared by Thomas Sever of the Roehler cash flow problems, and information about the Roehler property interests. In Schmidt’s opinion, Verna Roehler needed far less than $400,000 to “clear” her estate, probably between $50,000 and $100,000. In 18 years of estate planning, Attorney Schmidt testified that he had never had a client who purchased whole life insurance on the life of an 8-year-old, a child without an estate of his own, in the amount of $60,000. Nor could he identify any need for the purchase of the $300,000 accidental death benefit. In Schmidt’s experience, a family’s life insurance purchase is normally made pursuant to expert recommendation; some limitation is usually placed on family spending in this area also, by the cost of what a family can afford.

In any event, the six policies were in effect on January 2, 1981.

On the morning of January 2, 1981, defendant, Verna, the four children, defendant’s father and mother, Fritz and Charlotte Roehler, and defendant’s brother, Scott, and sister-in-law, Ginny, set sail from Ventura Harbor about 8 a.m. for a day on the water. Defendant’s relatives had been visiting from Indiana for the holidays, and were being shown the Perseverance for the first time.

The vessel reached the anchorage known as Little Scorpion, near Santa Cruz Island off the California coast in Santa Barbara County about noon. Several other sailing vessels were at the anchorage. After lunch, the elder Roehlers decided to take a nap. Scott and Ginny Roehler, accompanied by Heidi and Kimberly, took a dinghy in search of land, because Ginny had been very seasick on the trip over to the anchorage. Kirsten, the youngest child, stayed on the Perseverance.

Considerable testimony was offered by some preliminary prosecution witnesses about the swimming capabilities of defendant, Verna and Douglas. Defendant had unusual strength in the water; he was not only a strong, experienced swimmer but had in fact been trained, while working as an engineer for the United States Navy, to be a deep sea diver. A reasonable inference from this testimony was that the training had been available to those individuals demonstrating not only strong physical skills but the psychological capacity to perform under stress and reject fear in deep water. Defendant had also been trained in various life-saving techniques. Both Verna and Douglas were in reasonably good health, according to the family physician, were adequate swimmers, had swum frequently in the ocean, and were capable of at least staying afloat in an emergency.

Defendant, Verna, Douglas and the family dog got into the dory, a small craft propelled by oars which was normally towed behind the Perseverance. They commenced rowing toward a location known as Bird Rock, about 100 yards away. Bird Rock is a jagged piece of rock rising out of the ocean and inhabited by many sea birds. Verna wanted defendant to take a picture of Douglas holding the dog, with sea birds and the Perseverance in the far background. Douglas was wearing a life jacket; defendant was also, and had a Nikonos 35 millimeter underwater camera strapped around his neck.

Defendant testified that there was high cloudiness, and some sun. While the testimony of others about weather conditions at Little Scorpion that afternoon varied, the wind and sea were relatively calm, although some white caps appeared later in the day. The water was cold.

Defendant testified that he was sitting in the middle of the dory, Verna was in the bow holding the dog, and Douglas was in the stern. It took 15 or 20 minutes for him to row the dory to a point about 30 or 40 feet off Bird Rock. The boat was positioned so that Douglas could be photographed with the dog, sea birds and the Perseverance. Defendant testified that the dog got excited by the birds and started to jump out of the boat; defendant grabbed for the animal, as did Douglas. Douglas “overshot,” according to defendant, and was falling out of the boat when defendant felt Verna’s weight on his back. The boat turned over, trapping defendant underneath. It took about 30 seconds to a minute for defendant to free himself, because he had become entangled in some manner.

When he reached the surface, he first saw no one, then observed Verna with her eyes open, sort of “resting” on one portion of the overturned boat, and he saw Douglas some feet beyond her. He went to Douglas first, and tried to remove vomit which was in the boy’s mouth, and give him air. The dog had somehow gotten on defendant’s head. Defendant tried to give Verna air, also, but defendant testified that neither Verna nor Douglas said anything or appeared to respond to anything. Defendant denied any responsibility for or understanding of these circumstances.

Defendant, with Verna under one arm and Douglas under the other, and the dog on his head, swam to Bird Rock. There he was able to deposit the dog, but could not get Verna or Douglas to safety because of the steep configuration of the rock. He kept them afloat, however, while he tried to hail a boat for assistance. Defendant estimated that he had tried to get the attention of others for between fifteen minutes and one-half hour, before the crew of three aboard the sailing vessel, the Sound of Music, spotted the overturned dory and rushed to the scene. Defendant swam toward the vessel away from Bird Rock, still holding Verna and Douglas under each arm. Verna and Douglas were brought on board; defendant was winched on board, because he did not have enough strength left in his legs to climb a ladder to get onto the deck of the ship.

There was testimony from all three crew members aboard the Sound of Music, the original rescuers, and all subsequent participants in the resuscitation efforts, that at no time were Verna or Douglas roughly handled or banged around during or after the rescue. It was the observation of the original rescuers that Verna and Douglas were comatose when they were brought to the Sound of Music, and that they never responded to anything around them. Both were immediately given CPR, to no avail. When defendant had approached the Sound of Music, he had requested that the Coast Guard be called, had apparently said something to Verna and Douglas about how they were going to make it now. He said nothing while laying on the deck. He seemed to be very cold, but otherwise was not in need of any kind of emergency medical attention.

The Coast Guard arrived about 4 p.m., followed by a navy helicopter. The experienced paramedics who arrived could do nothing to revive Verna and Douglas; there were no signs of life. The bodies were transported to Ventura. Defendant testified that he learned of their deaths from a Roman Catholic priest at St. John’s Hospital in Oxnard.

The bodies of Verna and Douglas were taken to the Ventura County Coroner’s Office for autopsies. On January 3, 1981, Dr. Craig Duncan, the Ventura County Coroner, performed the autopsies and concluded that each death had occurred as the result of accidental drowning. The bodies were then released to a private mortician in the Westwood area of Los Angeles.

On that same day, however, the Santa Barbara Sheriff-Coroner’s Department (constituting a single governmental unit in Santa Barbara County) received a telephone call from a woman named Hinman, unknown to them, who suggested that defendant’s first wife Jean had died under suspicious circumstances and that the deaths of Verna and Douglas should be carefully scrutinized for that reason. Defendant was interviewed by Santa Barbara law enforcement officials on January 7, 1981, but in spite of giving defendant his Miranda rights, those interviewers did not consider defendant a suspect at that time.

On January 8, 1981, the sheriff-coroner of Santa Barbara County obtained a warrant for the bodies of Verna and Douglas. The mortuary had been contacted and had agreed to preserve the bodies. A deputy proceeded to the mortuary and took possession of the bodies, and transported them to Santa Barbara. There, on January 9, 1981, the Santa Barbara Medical Examiner, Dr. Dewitt Hunter, performed a second autopsy on each body.

Dr. Hunter testified at length for the prosecution. He has had extensive education at Johns Hopkins and Penn, in pathology; is board certified in anatomical pathology and in clinical pathology; has taught at various institutions throughout the country, conducted research, has written in his fields of interest; he has also devised laboratory systems widely used in this country. Also, Dr. Hunter has had extensive experience in determining the cause of death, and has conducted autopsies in hundreds of cases of violent deaths; he also has extensive forensic experience.

Dr. Hunter spent five or six hours conducting the autopsies of Verna and Douglas. He discovered, when examining the area inside the skull of Verna known as the petrous ridge, hemorrhaging in the mastoid sinuses. He also found bruises on Verna’s neck.

At trial, some time was spent by Dr. Hunter explaining how pathologists tell whether a wound or a bruise stems from premortem activity, perimortem activity (at or around the time of death) and postmortem activity. Simply put, premortem bruises or injuries will not “blanch,” i.e., lose their color, and they become even more vivid after some time has elapsed after death.

Verna’s neck bruises appeared to Dr. Hunter to be premortem. In addition, there were areas of Verna’s skull showing premortem hemorrhaging; in Dr. Hunter’s opinion, red blood cells in those areas had been forced into the surrounding tissues prior to her death. Dr. Hunter was of the opinion that the hemorrhages had been caused by the use of considerable force. There was also bleeding in brain tissue, the result of injury occurring very close to death.

Dr. Hunter had examined the dory which had capsized and had been to Bird Rock to study the configuration of the rocks. He testified that he did not believe the injuries to Verna’s skull had been caused by either the dory or jagged rocks. He noted that there were none of the skin lacerations of the type one would expect if the injuries had been caused by contact with sharp objects. He also testified that it was unlikely that the injuries had occurred during the previous autopsy because there were no signs of rough autopsy treatment in other areas of Verna’s body. Dr. Hunter was of the opinion that blunt force had been applied to Verna’s head just prior to her death by drowning. The “blunt force” applied would be that equal to a fall from a height of at least five feet and striking wood, but had, in Dr. Hunter’s opinion, probably been inflicted by some kind of a small instrument.

Dr. Hunter then turned to the autopsy of Douglas Johnson. In his view, Douglas had sustained a number of premortem injuries. Two of principal importance were located on the skull of Douglas. The muscles in the back of Douglas’ neck showed areas of hemorrhaging directly below the base of the skull, extending inward to a depth of at least one inch. The other area of hemorrhaging was in the scalp area, where a considerable injury had been sustained. The areas observed would not “blanch”; Dr. Hunter was convinced these injuries were premortem. Dr. Hunter thought the wounds on the scalp of the boy had also been caused by a small instrument of some kind.

Dr. Hunter repeated his conclusion that neither the dory nor the rocks at Bird Rock, or postmortem handling either by rescuers or the individuals conducting the first autopsy, would account for the boy’s head injuries. In his opinion, Douglas, like his mother, had not died accidentally, but had drowned after the application of blunt force to his head with a small instrument.

Dr. Charles S. Petty, Chief Medical Examiner in Dallas County, Texas, also testified and concurred with Dr. Hunter as to the cause of death in each case. He specifically noted evidence of subarachnoid bleeding in the covering of Douglas’ brain. Drowning does not cause such hemorrhaging, but injuries to the head at the time of the drowning would. Dr. Petty, too, rejected the idea that either the rocks or contact with the dory itself could have caused the victims’ injuries. He thought it more likely that in the case of Douglas, the child’s head had been smashed against another surface, just prior to death.

The prosecution then presented evidence concerning the dory which, according to defendant, had overturned on the day in question, causing Verna and Douglas to drown. The prosecution had enlisted the aid of Dr. Scott Hickman, a professor of mechanical and environmental engineering at the University of California at Santa Barbara, whose speciality was fluid mechanics. Hickman, besides his professional accomplishments, had much experience personally in the water as a surfer, a swimmer, a scuba diver, and a sailor. He supervised the testing of the dory.

The prosecution had obtained possession of the dory in January 1981, and conducted testing of the craft in July 1981 at Bird Rock. The testing was video taped. Three individuals participated in the tests, all chosen because of their similarity in size and weight to the three participants in the fatal events of January 2, 1981, at that location. The three were a Santa Barbara detective, a female employee of the sheriff’s department, and a young boy. All were dressed as defendant, Verna, and Douglas had been dressed at the time of the crimes.

The seas were rougher in July 1981 than they had been in January. Nevertheless, in the first three tests wherein the test participants attempted to cause the dory to overturn, it would not do so. In spite of shifting the weight of all three persons as depicted by defendant, the dory would take on water but right itself. In tests four, five and six, the participants were able to get the dory to turn over, very slowly, by utilizing not only the shift in position but the considerable wind and choppy seas. The seventh test did not result in a turnover, but the eighth one did, again, very, very slowly. Dr. Hickman computed that the fastest turnover rate for the dory was 3.19 feet per second. He came to the conclusion that there is no way to overturn this particular dory by accidental means, except in a breaking wave—of which there were none at Bird Rock. He further concluded that concentrated and purposeful effort by someone in the dory would have been required to cause it to turn over on the fatal day, and further, the boat capsized so slowly that persons in the boat had time to swim free of it. There was subsequent testimony from an experienced naval architect that dories are constructed with the primary purpose of being very difficult to capsize.

Dr. Hickman also tested the velocity of a boy of Douglas’ size and weight rising in the water from immersion, the popping to the surface phenomenon. He determined that to be 3.36 feet per second, and the combined closing velocity between the dory turning over and a boy rising to be 6.55 feet per second. As will be seen, these figures were used in some of the later experimental testing that was done.

Dr. Carley Ward testified for the prosecution. She is an engineer. Dr. Ward commenced her career as a specialist in dynamics, and supervised groups of engineers who worked on various governmental space projects. She came to UCLA and took courses in medicine, earning a Ph.D, and commenced a specialty in biomechanics, the application of engineering principles to the human body or to biology. She has also done considerable consulting for private industry, some of it directed toward establishing safety standards to prevent head injuries. She has recent experience in discovering, through research and testing, facts about head injuries.

The prosecution was attempting to determine if Douglas’ head injuries could be attributed to the fact that Douglas was hit by the dory as he arose from the water. Dr. Ward reviewed Dr. Hickman’s work in this regard and calculated a closing velocity (just before the boat and boy would meet) of 6.7 feet per second.

A test was performed at Minicars (the former name of a company specializing in engineering technology) to determine the maximum force that would be applied to the head of a child like Douglas Johnson and the acceleration he would experience, if the dory capsized and the child was hit by the boat while rising in the water from immersion. The child’s part was played in this instance by a dummy, fashioned to be as similar as possible to Douglas. Dr. Ward, using the Roehler dory and the dummy, conducted experiments to determine the force which would be applied so that she could draw some conclusions about the force exerted on Douglas’ head prior to his death. What emerged from the testing at Minicars was that the maximum force generated by the dory would have resulted in from 210 to 240 pounds of pressure on the skull of the boy, a relatively small amount; a fall by a toddler down several steps would generate far more force than that.

Two medical doctors testified. Dr. Burton Kolp, an expert practitioner in emergency medicine who saw head injuries on a daily basis, offered his opinion that the injuries could not have been occasioned by a collision between the boy’s head and the boat. Dr. Randall William Smith, a neurosurgeon, board-certified, testified that he was particularly familiar with sub-arachnoid bleeding, which he too identified as having occurred in the case of Douglas. Such bleeding is the presence of free blood inside the head that is confined to the space just outside the brain but under the lining that surrounds the brain. Dr. Smith testified that he did not believe that the boy’s injuries could have been caused by his head hitting the dory as the boy was rising in the water. The conclusion drawn from the Hickman-Ward experiments was that the force that would have been generated by the collision was not nearly sufficient to cause Douglas’ head injuries.

On rebuttal, Dr. Ronald Kornblum, formerly the medical examiner for Ventura County and employed as chief of forensic medicine in Los Angeles County, testified it was also his opinion that the injuries to Verna and Douglas were premortem, and that the hemorrhaging evidence on both skulls indicated that the victims’ hearts were pumping considerably at the time of the wounds. Dr. Komblum thought the blow to Verna’s neck and head had stunned her.

Also presented was the testimony of Joseph B. Davis, M.D., the Chief Medical Examiner of Dade County, Florida. Dr. Davis agreed with the conclusions of Drs. Hunter and Petty.

California Department of Justice criminalist Duane Mauzey had previously testified that extensive investigation and repeated testing of various objects aboard all the vessels involved in this matter had not resulted in duplicating the “patterns” of injury he had discerned on Douglas’ skull, except in one place: the dory, where such patterns could be produced by smashing the head of a test dummy against the flat part of the gunnel and the vertical support.

As indicated, the jury convicted defendant of the two murders, each in the first degree.

Issues

On appeal, defendant contends (1) that the seizure and autopsies of the bodies of Verna and Douglas by the Santa Barbara coroner-sheriff violated the rights guaranteed him by the Fourth Amendment, United States Constitution; (2) that the concealment of the second autopsies and failure to take reasonable steps to preserve the bodies denied him due process of law; (3) that the trial court erred in permitting testimony before the jury concerning a series of physical experiments, which were irrelevant to the material issues in the case and were not conducted on a sound, scientific basis; (4) that the jury was misinstructed in a significant manner, and (5) that the evidence was insufficient to establish that any crime had been committed.

Discussion

I.

Defendant first contends that the Fourth Amendment, United States Constitution, was violated when Santa Barbara law enforcement authorities removed the bodies of Verna and Douglas from a private mortician in Los Angeles County after the bodies had been autopsied and released by the Ventura County coroner. Defendant argues that neither probable cause nor exigent circumstances justified the removal; that a sheriff-coroner is subject to the Fourth Amendment; that defendant had a reasonable expectation of privacy concerning the bodies; and that evidence obtained as a result of the seizure, i.e., the results of the second autopsies, should have been suppressed.

The Attorney General argues that the statutory provisions empowering coroners to investigate and establish the cause of death constitute sufficient basis for the actions of the Santa Barbara coroner in this case. The Attorney General contends that “it is well-settled that a coroner need not obtain a search warrant in order to secure bodies for investigation.” No authority is cited for this statement, nor were we assisted by the People with pertinent observations about any constitutional ramifications of the search and seizure made.

What is presented is a novel constitutional law issue concerning the parameters of permissible governmental intrusion into the lives of citizens when a death has occurred.

In California, the powers and responsibilities of coroners are set forth in Government Code section 27491, which provides: “It shall be the duty of the coroner to inquire into and determine the circumstances, manner, and cause of all violent, sudden or unusual deaths; unattended deaths; deaths wherein the deceased has not been attended by a physician in the 20 days before death; deaths related to or following known or suspected self-induced or criminal abortion; known or suspected homicide, suicide, or accidental poisoning; deaths known or suspected as resulting in whole or in part from or related to accident or injury either old or recent; deaths due to drowning, fire, hanging, gunshot, stabbing, cutting, exposure, starvation, acute alcoholism, drug addiction, strangulation, aspiration, or where the suspected cause of death is sudden infant death syndrome; death in whole or in part occasioned by criminal means; deaths associated with a known or alleged rape or crime against nature; deaths in prison or while under sentence; deaths known or suspected as due to contagious disease and constituting a public hazard; deaths from occupational diseases or occupational hazards; deaths of patients in state mental hospitals serving the mentally disabled and operated by the State Department of Mental Health; deaths of patients in state hospitals serving the developmentally disabled and operated by the State Department of Developmental Services; deaths under such circumstances as to afford a reasonable ground to suspect that the death was caused by the criminal act of another, or any deaths reported by physicians or other persons having knowledge of death for inquiry by coroner. Inquiry in this section does not include those investigative functions usually performed by other law enforcement agencies.

“In any case in which the coroner conducts an inquiry pursuant to this section, the coroner or a deputy shall personally sign the certificate of death. If the death occurred in a state hospital, the coroner shall forward a copy of his report to the state agency responsible for the state hospital.

“The coroner shall have discretion to determine the extent of inquiry to be made into any death occurring under natural circumstances and falling within the provisions of this section, and if inquiry determines that the physician of record has sufficient knowledge to reasonably state the cause of a death occurring under natural circumstances, the coroner may authorize that physician to sign the certificate of death.”

Certain subsequent sections further delineate the powers and responsibilities of the coroners of our counties. One primary responsibility is that of signing the death certificate of the deceased person.

Other pertinent provisions attendant on the death of a human being in California are contained in the Health and Safety Code. Section 10200 et seq. specifies the necessity of registering deaths; of completing death certificates in thorough and timely fashion prior to disposition of the remains (Health & Saf. Code, §§ 10204, 10375); and finally, with respect to coroners, Health and Safety Code section 7102 provides, in pertinent part, that “[I]n any case where a coroner is required by law to investigate the cause of death, the coroner is entitled to the custody of the remains of the person whose death is the subject of investigation until the conclusion of the autopsy or medical investigation by the coroner. Any person in whose possession such remains are found, shall, upon demand by the coroner, surrender such remains to him.”

As the foregoing legislative enactments demonstrate, there has long been widespread recognition and acceptance of the importance of developing accurate and adequate information about the death of each and every human being, whenever possible. Reasons range from beliefs about the fundamental dignity of man to such practical concerns as control of disease, the keeping of statistics, and of course, the detection of negligent or intentional wrongdoing. It can be said that the safety of all members of society depends upon orderly and open procedures relative to death.

The government, as representative of its citizens, has the primary burden in this area. In California, the coroner of each county is the governmental agent empowered and entrusted with the responsibility of determining the cause of death, in keeping with the guidelines of Government Code section 27491.

Due to the fact that the case before us involved three counties and two coroners, defendant’s counsel express concern that a rule will be formulated or approved which will encourage coroners, without limitation, to range the state in search of bodies to autopsy, whether already autopsied elsewhere or not. We doubt if such activity is likely to result from our interpretation of the legislation concerning coroners. While it is true that coroners are peace officers (as defined in Pen. Code, § 830.31, subd. (f)), we take the view that a coroner’s discharge of his statutory duties is limited to instances where death has occurred within his county. A 1956 opinion of the Attorney General expresses that view, and we adopt it. The Attorney General’s summary of its conclusions was that: “1. The coroner has no authority to investigate the cause of death of a person who was injured in his county but who dies outside the county. 2. The coroner must investigate every death occurring by violence, etc. in the county. Presence of the body is not requisite to his jurisdiction. 3. The coroner is to sign the death certificate where the death occurs in the county even though the body has been removed. 4. The coroner has no official status beyond the limits of his county and no authority to call or question witnesses. He is not, however, forbidden to travel beyond the county and may base his report upon information obtained outside of the county.” (27 Ops.Cal.Atty.Gen. 75 (1956).) We note that the California Supreme Court has addressed the issue of “county” jurisdiction in People v. Fleming (1981) 29 Cal.3d 698 [175 Cal.Rptr. 604, 631 P.2d 38], wherein the majority held that a magistrate may issue a search warrant directed toward premises outside his county if the search relates to criminal activity within his county.

If the Legislature feels the need to address the issue of serial autopsies, we are certain that they will do so. However, applying a reasonable interpretation of legislative provisions to the facts of the case at bench, we note that no question has been raised concerning the place of the deaths of Verna and Douglas: Santa Barbara County. The deaths were reportedly due to drowning, one of the categories specified in Government Code section 27491 compelling investigation and autopsy. The Santa Barbara sheriff-coroner had the responsibility not only to investigate and autopsy these bodies, but to sign the death certificates. There was, therefore, no violation of any California statute relative to coroners resulting from the action of the Santa Barbara sheriff-coroner in proceeding to the private mortuary in Los Angeles County to retrieve the bodies of Verna and Douglas in order to perform the statutory duties imposed by state law on the Santa Barbara sheriff-coroner. On the contrary, state law required the taking of such action.

The Fourth Amendment to the United States Constitution provides that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The California Constitution contains a similar guarantee, in article 1, section 13.

In the case at bench, the Attorney General argues that there are no property rights in dead bodies, and thus presumably a seizure and search of them would not fall within the constitutional provisions just described. It is true that dead bodies are not regarded as “property” in the traditional sense of the word, connoting legally protected rights of ownership. Neither are they ephemeral, however. Lengthy analysis, both ecclesiastical and legal, has produced the term “quasi-property” (14 Cal.Jur.2d 49). Under California law, there are statutory provisions giving both the right to control disposition of the remains and financial responsibility for burial to surviving kin (Health & Saf. Code, § 7100). It has also been recognized that a cause of action for emotional distress may arise on behalf of a living person as a consequence of asserted mistreatment of the body of a decedent. (Allen v. Jones (1980) 104 Cal.App.3d 207, 214 [163 Cal.Rptr. 445]; Draper Mortuary v. Superior Court (1982) 135 Cal.App.3d 533, 538 [185 Cal.Rptr. 396].)

We conclude that there is a reasonable expectation of privacy in the next of kin with respect to dead persons, and it could appropriately be asserted by the defendant.

In Cleaver v. Superior Court (1979) 24 Cal.3d 297, 302 [155 Cal.Rptr. 559, 594 P.2d 984], the California Supreme Court declared, with respect to the guarantees against unreasonable searches and seizures, that “a search within the meaning of these constitutional provisions occurs whenever a person’s reasonable expectation of privacy is violated by governmental intrusion. [Citation.] It is further settled that, in the absence of one of a number of carefully circumscribed exceptions, such a search is per se unreasonable if it is not conducted pursuant to a valid search warrant. [Citations.]” These exceptions have been described by the United States Supreme Court as “ ‘jealously and carefully drawn,’ and there must be ‘a showing by those who seek exemption . . . that the exigencies of the situation made that course imperative. ’ ‘[T]he burden is on those seeking the exemption to show the need for it.’” (Fns. omitted.) (Coolidge v. New Hampshire (1971) 403 U.S. 443, 455 [29 L.Ed.2d 564, 576, 91 S.Ct. 2022].)

At this point we advert to the positions taken on this appeal with respect to the record made in the trial court. There were Penal Code section 1538.5 motions below directed at several different search and seizure incidents. The first motion challenged the seizure of the bodies of Verna and Douglas from the mortuary in Westwood on January 8, 1981 by the Santa Barbara sheriff-coroner. A warrant had been secured by them prior to their seizure of the bodies, a warrant issued by magistrate Slater. The affidavit accompanying the application for the warrant consisted of a report of the Hinman telephone call on January 3, 1981, and alluded to information which had “filtered through” to the sheriff’s office. The learned trial judge properly ruled that the search warrant obtained was not based on probable cause, i.e., on articulated circumstances which would give rise to a reasonably held suspicion of criminal activity. A phone call from an untested informant does not provide the probable cause which supports the issuance of a constitutionally valid search warrant. (Witkin, Cal. Criminal Procedure (1983 Supp.) pt. II, § 978, p. 204.) However, he also ruled that no warrant was required at all, under California statutory law.

Both the Attorney General and defendant’s appellate attorneys agree that the warrant which issued did not conform to the traditional “probable cause” standard, and both assert that we are bound by the trial court’s ruling on this issue. (We agree that we are so bound. People v. Lawler (1973) 9 Cal.3d 156, 160 [107 Cal.Rptr. 13, 507 P.2d 621]; People v. North (1981) 29 Cal.3d 509, 513 [174 Cal.Rptr. 511, 629 P.2d 19], That, however, does not dispose of the matter of the warrant.) Both sides then retreat to extreme positions; the Attorney General claiming that there is no constitutional problem arising from the seizure of Verna and Douglas, and defendant claiming violation of Fourth Amendment rights which, if recognized, would have compelled exclusion of the evidence derived from the second autopsies at the trial of the cause.

No argument has been advanced here that the seizure, which was subject to both federal and state constitutional guarantees, was dictated by exigency, a recognized exception to protection from governmental intrusion. (Michigan v. Tyler (1978) 436 U.S. 499 [56 L.Ed.2d 486, 98 S.Ct. 1942].) The record discloses that prior to the seizure the sheriff had contacted the mortuary and had directed that the bodies be preserved at low temperatures until a warrant could be sought and the bodies obtained; the mortician had agreed to do this. It appears, therefore, that this exception has no application to the facts before us. The record also discloses that the warrant which was issued was obtained at the suggestion of the mortician, who was reluctant to relinquish possession of Verna and Douglas without one.

Defendant asserts that the seizure of the bodies by the sheriff-coroner while carrying out responsibilities of the coroner constitutes state action, whether characterized as an administrative procedure or criminal investigation, subject to the Fourth Amendment. We agree. (Mapp v. Ohio (1961) 367 U.S. 643 [6 L.Ed.2d 1081, 81 S.Ct. 1684, 84 A.L.R.2d 933]; and see New Jersey v. T.L.O. (1985) — U.S. — [83 L.Ed.2d 720, 105 S.Ct. 733].)

In the case at bench, the “state action” involved must be viewed in conjunction with the statutory scheme describing the duties of a coroner and the procedures to be followed. It is clear that the initial responsibility placed upon a coroner is, by nature, investigatory, i.e., to seize the remains of a decedent and to determine, if possible, the cause of death. The consequences of the investigation cannot be known until the investigation is complete; it may or may not ultimately result in further activity by law enforcement personnel. Thus, the coroner’s search and seizure of the bodies herein was primarily an administrative seizure and search. The United States Supreme Court held in Camara v. Municipal Court (1967) 387 U.S. 523 [18 L.Ed.2d 930, 87 S.Ct. 1727] that warrantless searches by governmental inspectors for the purpose of enforcing administrative regulations were as subject to the Fourth Amendment protection as those by law enforcement personnel conducting a criminal investigation. This principle has been applied, whether the search be of a private residence (Camara) or of a commercial establishment. (See v. City of Seattle (1967) 387 U.S. 541 [18 L.Ed.2d 943, 87 S.Ct. 1737].) It was reaffirmed by the high court in Marshall v. Barlow’s, Inc. (1978) 436 U.S. 307, 312 [56 L.Ed.2d 305, 311, 98 S.Ct. 1816], wherein it was declared that “the Fourth Amendment prohibition against unreasonable searches protects against warrantless intrusions during civil as well as criminal investigations. Ibid. The reason is found in the ‘basic purpose of this Amendment . . . [which] is to safeguard the privacy and security of individuals against arbitrary invasions by government officials.’ [Citation.]”

Camara, supra, 387 U.S. 523, also recognized, however, the importance of the personal security afforded citizens by fair and uniform enforcement of health and safety regulations, and declared that “In cases in which the Fourth Amendment requires that a warrant to search be obtained, ‘probable cause’ is the standard by which a particular decision to search is tested against the constitutional mandate of reasonableness. To apply this standard, it is obviously necessary first to focus upon the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interests of the private citizen. . . . [f] The primary governmental interest at stake [in many administrative searches] is to prevent even the unintentional development of conditions which are hazardous to public health and safety. ...” (Id., at pp. 534-535 [18 L.Ed.2d at p. 939].)

The Camara court concluded that area inspection, in terms of housing, was a “reasonable” search of private property within the meaning of the Fourth Amendment, and that “ ‘probable cause’ to issue a warrant to inspect must exist if reasonable legislative or administrative standards for conducting an area inspection are satisfied with respect to a particular dwelling. ... It has been suggested that so to vary the probable cause test from the standard applied in criminal cases would be to authorize a ‘synthetic search warrant’ and thereby to lessen the overall protections of the Fourth Amendment. [Citation.] But we do not agree. The warrant procedure is designed to guarantee that a decision to search private property is justified by a reasonable governmental interest. But reasonableness is still the ultimate standard. If a valid public interest justifies the intrusion contemplated, then there is probable cause to issue a suitably restricted search warrant.” (Id., at pp. 538-539 [18 L.Ed.2d at pp. 940-941].) (Italics added.)

In Marshall, supra, 436 U.S. 307, a case involving a governmental attempt to search business premises to enforce provisions of the Occupational Safety and Health Act of 1970 (OSHA) without a warrant, the high court majority affirmed the application of the Fourth Amendment warrant requirement, again pointing out that “[w]e are unconvinced, however, that requiring warrants to inspect will impose serious burdens on the inspection system or the courts, will prevent inspections necessary to enforce the statute, or will make them less effective.” (Id., at p. 316 [56 L.Ed.2d at p. 314].) The opinion further states that “The authority to make warrantless searches devolves almost unbridled discretion upon executive and administrative officers, particularly those in the field, as to when to search and whom to search. A warrant, by contrast, would provide assurances from a neutral officer that the inspection is reasonable under the Constitution, is authorized by statute, and is pursuant to an administrative plan containing specific neutral criteria.” (Id., at p. 323 [56 L.Ed.2d at pp. 317-318]; italics added.) There is some dispute on the federal high court concerning the necessity for and the nature of an administrative search warrant issued pursuant to what is perceived as a lower level of “probable cause.” However, the majority in Marshall supported just that, and found it “reasonable. ”

In California, title 13, “Inspection Warrants” was added to the Code of Civil Procedure in 1968.

These sections set forth in footnote 4, reflect recognition that the Legislature has determined that an administrative search may be made in California with an “inspection” warrant pursuant to the guidelines of Camara, thereby allowing carefully regulated governmental intrusion to prevent certain enumerated hazards without sacrificing continuing concern about arbitrary invasions of the right to privacy by governmental officials.

In the case at bench, the relevance of these developments in the law of search and seizure is manifest. As we have said, the initial seizure and search by a coroner in compliance with his statutory duty and in furtherance of a compelling social interest, is administrative in nature, and one that may or may not lead to criminal investigation. Conceptually, it is not unlike the action of a police officer who temporarily detains a citizen on the street for a reason which may not meet the traditional “reasonable cause” standard; such detentions have béen held constitutionally permissible. (Terry v. Ohio (1968) 392 U.S. 1 [20 L.Ed.2d 889, 88 S.Ct. 1868].)

As with the police officer, the coroner’s function at the moment of the seizure, is to develop facts, information necessary to the safety of all citizens. The sheriff-coroner of Santa Barbara County was engaged in such an enterprise when a warrant was obtained and seizure of the bodies of Verna and Douglas was effectuated. The fact that the interest of Santa Barbara officials may have been increased by the telephone call from Hinman or other rumors is immaterial. The drownings had occurred within their jurisdiction, and the deaths were of a nature specifically enumerated in the statute mandating the coroner to fulfill his function. These circumstances alone were sufficient to justify the seeking of a warrant supported by a lower level of probable cause by the sheriff-coroner, as was done in this matter. The fact that apparently the mortician, who had responsibility for Verna and Douglas, asked that the Santa Barbara personnel obtain a warrant, only emphasizes the preferred status afforded to official action taken after submission of the matter to a neutral source, a magistrate. As a practical matter, it could protect any mortuary from claims of negligence or intentional wrongdoing with respect to the particular remains in question.

We have examined the affidavit and the warrant issued allowing the seizure of the bodies of Verna and Douglas. While we agree that it did not meet the traditional “reasonable cause” standard, it met a less rigorous administrative “probable cause” standard. It did acquaint the magistrate with the essential facts of the situation: drownings which had occurred in Santa Barbara County. The recitation of these essential facts justified the issuance of the warrant to seize the bodies. The warrant defined a situation set forth in the statutory scheme concerning coroners which required official action. We conclude that the permitted action was a reasonable exercise of governmental power under the United States Constitution; authorized by statute “pursuant to an administrative plan containing specific neutral criteria.” (Marshall v. Barlow’s, Inc., supra, 436 U.S. 307 at p. 323 [56 L.Ed.2d at p. 318].) It was a justifiable intrusion into defendant’s right of privacy, in view of the compelling governmental interest involved. As sensitive as the feeling of the living next-of-kin may be on the occasion of death (Allen v. Jones, supra, 104 Cal.App.3d 207), the societal interest must prevail.

In summary we hold that a sheriff-coroner, like other governmental officials, is subject to the Fourth Amendment, United States Constitution, and the California Constitution (art. I, § 13) as well. Such an officer may seize and search the bodies of dead persons which are in the custody of private citizens after making application for and obtaining a warrant which recites the jurisdictional facts upon which he relies to justify the search and seizure.

In the case at bench, the warrant obtained did meet the requisite standard for issuance; since we conclude that issuance was “reasonable,” and not in violation of the Fourth Amendment, United States Constitution, defendant’s contention in this regard must fail.

II.

Defendant secondly contends that the sheriff-coroner’s action in undertaking the second autopsies and then failing to preserve the bodies denied him due process of law. He asserts that, if it was permissible for the Santa Barbara County sheriff-coroner to seize and search the bodies, the People were under a duty to take reasonable steps to preserve the bodies and acquaint defendant with the fact that the bodies had been reautopsied, because it was possible that further examinations of them, conducted on defendant’s behalf, might have yielded evidence favorable to the defense. Defendant maintains that the bodies should not have been, as they were, released back to the mortuary by the sheriff-coroner, knowing that they were scheduled for cremation, without making the requisite disclosure. Defendant did arrange for their cremation upon their return, assertedly unaware of what had occurred. Defendant claims he was not made aware of the second autopsies until the filing of the murder charges against him.

The nature of the government’s duty to preserve material evidence was summarized in People v. Nation (1980) 26 Cal.3d 169, 175 [161 Cal.Rptr. 299, 604 P.2d 1051), as follows: “It is clear that the Constitution does not require the prosecution to make a complete and detailed accounting to the defendant of all police investigatory work on a case. (Moore v. Illinois (1972) 408 U.S. 786, 795 [33 L.Ed.2d 706, 713, 92 S.Ct. 2562].) Yet it is well established that the suppression by the state of evidence favorable to an accused, after a request therefor, violates due process, irrespective of the good faith of the prosecution. (Brady v. Maryland (1963) 373 U.S. 83, 87 [10 L.Ed.2d 215, 218, 83 S.Ct. 1194].) This court has recognized the prosecutor’s duty to disclose such material evidence favorable to the accused even in the absence of a request from the defense. (In re Ferguson (1971) 5 Cal.3d 525, 532 [96 Cal.Rptr. 594, 487 P.2d 1234].) In People v. Hitch (1974) 12 Cal.3d 641, 650 [117 Cal.Rptr. 9, 527 P.2d 361], we held that the obligation to disclose the existence of material evidence places on the state a correlative duty to preserve such evidence even without a request therefor,1 and directed that in the future law enforcement agencies take reasonable measures to ensure its adequate preservation.” The footnote (fn. 1) which accompanies this text is also instructive: “The present [Nation] case is typical of the problem covered by Hitch, in that defendant here was not charged at the time the police physician obtained the semen sample. If a request were a condition to the duty to preserve, the duty might not arise until it became impossible of performance.” (See also People v. Moore (1983) 34 Cal.3d 215 [193 Cal.Rptr. 404, 666 P.2d 419], applying the Hitch principle to the loss, by government, of a urine sample.)

Defendant concedes that there are several California decisions which hold that law enforcement personnel have no duty to preserve dead bodies in order that they might be examined upon a defendant’s behalf. (See, e.g., People v. Vick (1970) 11 Cal.App.3d 1058 [90 Cal.Rptr. 236] and People v. McNeill (1980) 112 Cal.App.3d 330 [169 Cal.Rptr. 313].) In People v. Hogan (1982) 31 Cal.3d 815, 851 [183 Cal.Rptr. 817, 647 P.2d 93], the duty to preserve material evidence was recognized but not applied in that case because there was no showing made that the evidence sought (but not developed by the prosecution) “could have produced favorable evidence on the issue of guilt. [Citation.]”

In People v. McNeill, supra, 112 Cal.App.3d 330, 337-338, the problem which arises when the “material evidence” is a dead body was addressed in this manner: “ ‘As reflected in our laws, our society extends more respect to a dead bo