IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT, DIVISION THREE

THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. PHILLIP SPECTOR, Defendant and Appellant. Case No. B216425

Los Angeles County Superior Court, Case No. BA255233 The Honorable Larry P. Fidler, Judge RESPONDENT’S BRIEF

EDMUND G. BROWN JR. Attorney General of California DANE R. GILLETTE Chief Assistant Attorney General PAMELA C. HAMANAKA Senior Assistant Attorney General LAWRENCE M. DANIELS Supervising Deputy Attorney General State Bar No. 183901 300 South Spring Street, Suite 1702 Los Angeles, CA 90013 Telephone: (213) 897-2288 Fax: (213) 897-6496 E-mail: DocketingLAAWT@doj.ca.gov Attorneys for Respondent

TABLE OF CONTENTS Page Introduction .................................................................................................. 1 Statement of the Case ................................................................................... 3 Statement of Facts ........................................................................................ 3 I. Prosecution’s case-in-chief .................................................... 3 A. Appellant’s seven prior assaults with a firearm on five women ............................................................. 3 1. 2. 3. 4. 5. B. 1. 2. 3. 4. 5. C. D. E. Dorothy Melvin ................................................ 3 Stephanie Jennings ........................................... 5 Devra Robitaille ............................................... 7 Dianne Ogden .................................................. 9 Melissa Grosvenor ......................................... 12 Dining and drinking at the Grill with Rommie Davis................................................ 14 Moving on to Trader Vic’s and Dan Tana’s with Kathy Sullivan ........................... 16 Meeting Lana Clarkson and dismissing Kathy Sullivan at the House of Blues ............ 17 Urging Clarkson to have a drink at his “Castle” .......................................................... 21 At the Castle: “I think I killed somebody” ..................................................... 22

The murder ................................................................ 14

Appellant’s guilty conduct following the murder ....................................................................... 26 The crime scene......................................................... 30 Evidentiary analysis .................................................. 32 1. 2. The autopsy .................................................... 32 The orientation of Clarkson, appellant, and the gun ..................................................... 33

F.

Clarkson’s activities and plans prior to the murder ....................................................................... 34

i

TABLE OF CONTENTS (continued)

Page

1. 2. II. A.

Work, taxes, modeling, autographs, and friends............................................................. 34 Preparing for an infomercial .......................... 36

Defense evidence.................................................................. 37 Challenge to the assault on Dorothy Melvin ............. 37 1. 2. B. C. Distraught about appellant ............................. 37 Melvin’s police interviews ............................. 37

Challenge to the assault on Stephanie Jennings ........ 38 Challenge to Adriano De Souza’s testimony ............ 38 1. 2. Inconsistency of De Souza’s account ............ 38 Eyewitness unreliability ................................. 39 Dr. Lakshmanan Sathyavagiswaran ............... 39 Dr. Werner Spitz ............................................ 41 Dr. Vincent James Di Maio ........................... 41 Dr. Richard Seiden ......................................... 42 Stuart James ................................................... 43 James Pex ....................................................... 43

D.

Challenge to the coroner’s finding of homicide........ 39 1. 2. 3. 4.

E.

Challenge to the blood spatter conclusions ............... 43 1. 2.

F. G.

Challenge to the collection of evidence at the crime scene ................................................................ 44 Challenge to Clarkson’s mental state ........................ 44 1. 2. 3. 4. 5. Cast as Marilyn Monroe in “Brentwood Blondes” ......................................................... 44 E-mails referencing depression ...................... 45 Financial difficulties ...................................... 46 Making show business connections ............... 48 Falsely signing a letter ................................... 48

ii

TABLE OF CONTENTS (continued)

Page

6. 7. 8. III. A. B. C.

Intoxicated and despondent at Gregory Sims’s party.................................................... 49 Fragile and exhausted..................................... 50 Calling a psychologist .................................... 51

Prosecution’s rebuttal evidence ............................................ 52 Not suicidal at Gregory Sims’s party ........................ 52 The gun was not disturbed ........................................ 52 Clarkson’s professional success and positive outlook....................................................................... 53

Argument .................................................................................................... 54 I. The trial court properly allowed into evidence a depiction of itself on the videotape of a hearing from the first trial .......................................................................... 54 A. B. Factual background ................................................... 55 Appellant forfeited his claims regarding the videotape by failing to make timely and specific objections below........................................................ 57 The trial court’s statements and gestures on the videotape were not hearsay ....................................... 60 The trial court’s statements and gestures on the videotape did not violate appellant’s right to confrontation ............................................................. 63 The trial court’s statements and gestures on the videotape did not render the presiding judge a witness or violate appellant’s right to be present ...... 65 Any error in admitting the trial court’s statements and gestures on the videotape was harmless..................................................................... 66

C. D.

E.

F.

II.

The trial court properly admitted the evidence of appellant’s prior criminal conduct ....................................... 72 A. Law on prior criminal conduct .................................. 73

iii

TABLE OF CONTENTS (continued)

Page

B.

The trial court properly exercised its discretion in admitting appellant’s similar assaults of five women as evidence of his motive to commit murder ....................................................................... 74 The trial court properly instructed the jury on the definition of motive ............................................. 81 The trial court properly exercised its discretion in admitting appellant’s similar assaults of five women as evidence that Clarkson’s death was not a mistake, accident, or suicide ............................ 83 The trial court did not instruct the jury to consider appellant’s similar assaults of five women as evidence of identity .................................. 86 The trial court properly exercised its discretion in applying Evidence Code section 352 .................... 89 The trial court properly allowed the prosecution to argue that appellant’s conduct demonstrated a pattern ........................................................................ 91 There was no prejudice ............................................. 94

C. D.

E.

F. G.

H. III.

The trial court properly admitted appellant’s statement that women deserve to be shot in their heads ....................... 94 A. B. C. D. Vincent Tannazzo’s testimony regarding appellant’s statement ................................................. 95 Appellant’s statement was relevant to the intent requirement of implied malice .................................. 96 Appellant’s statement was admissible as a “generic threat” ......................................................... 98 The trial court properly admitted the evidence of the circumstances surrounding appellant’s statement ................................................................. 103 The trial court properly exercised its discretion in applying Evidence Code section 352 .................. 105

E.

iv

TABLE OF CONTENTS (continued)

Page

F.

There was no instructional error or prejudice in connection with the admission of appellant’s statement ................................................................. 106 Appellant forfeited his claims of prosecutorial error ......................................................................... 113 There was no misconduct in the prosecution’s argument for the jury to accept its interpretation of the evidence as the truth, not the defense interpretation ........................................................... 115 There was no misconduct in the prosecution’s argument about defense expert fees ........................ 123 There was no prejudice ........................................... 139

IV.

The prosecution did not commit misconduct ..................... 112 A. B.

C. D.

Conclusion ................................................................................................ 141

v

TABLE OF AUTHORITIES Page C ASES Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450 .......................................................................124 Brown v. Lynbaugh (5th Cir. 1988) 843 F.2d 849 .............................................................65 Castillo v. Clark (C.D. Cal. 2009) 610 F.Supp.2d 1084 ...............................................79 Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705] ..................67, 139 Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177] ........................ ..........................................................................................59, 60, 63, 64 Davis v. Washington (2006) 547 U.S. 813 [126 S.Ct. 2266, 165 L.Ed.2d 224] ..................64 Hassoldt v. Patrick Media Group (2000) 84 Cal.App.4th 153 ................................................................80 In re Murchison (1955) 349 U.S. 133 [75 S.Ct. 623, 99 L.Ed. 942] ............................65 In re Williams (1994) 7 Cal.4th 572 ........................................................................123 Lilly v. Virginia (1999) 527 U.S. 116 [119 S.Ct. 1887, 144 L.Ed.2d 117] ..................67 People v. Andrews (1989) 49 Cal.3d 200 .........................................................................71 People v. Arias (1996) 13 Cal.4th 92 .................................................................. passim

vi

TABLE OF AUTHORITIES (continued)

Page

People v. Armstead (2002) 102 Cal.App.4th 784 ..............................................................88 People v. Avila (2006) 38 Cal.4th 491 ........................................................................67 People v. Bain (1971) 5 Cal.3d 839 .........................................................................125 People v. Balcom (1994) 7 Cal.4th 414 ....................................................................85, 98 People v. Barnett (1998) 17 Cal.4th 1044 ......................................................................60 People v. Bell (1989) 49 Cal.3d 502 ...............................................................125, 140 People v. Beyea (1974) 38 Cal.App.3d 176 .................................................................74 People v. Bloom (1989) 48 Cal.3d 1194 .....................................................................121 People v. Bolton (1979) 23 Cal.3d 208 .......................................................................121 People v. Box (2000) 23 Cal.4th 1153 ....................................................................110 People v. Branch (2001) 91 Cal.App.4th 274 ................................................................90 People v. Burnett (2003) 110 Cal.App.4th 868 ..............................................................85 People v. Cage (2007) 40 Cal.4th 965 ........................................................................64

vii

TABLE OF AUTHORITIES (continued)

Page

People v. Carrington (2009) 47 Cal.4th 145 ........................................................................83 People v. Carter (2005) 36 Cal.4th 1114 ......................................................................92 People v. Cartier (1960) 54 Cal.2d 300 .........................................................................98 People v. Castain (1981) 122 Cal.App.3d 138 .............................................................129 People v. Catlin (2001) 26 Cal.4th 81 ..........................................................................79 People v. Coddington (2000) 23 Cal.4th 529 ........................................................................66 People v. Cole (2004) 33 Cal.4th 1158 ....................................................................115 People v. Cooper (1991) 53 Cal.3d 771 .........................................................................71 People v. Crittenden (1994) 9 Cal.4th 83 ..................................................................111, 124 People v. Cruz (2008) 44 Cal.4th 636 ........................................................................98 People v. Cummings (1993) 4 Cal.4th 1233 ..............................................................116, 119 People v. Cunningham (2001) 25 Cal.4th 926 ..............................................................115, 116 People v. D’Arcy (2010) 48 Cal.4th 257 ........................................................................64

viii

TABLE OF AUTHORITIES (continued)

Page

People v. Daniels (1991) 52 Cal.3d 815 .........................................................................78 People v. Davis (2005) 36 Cal.4th 510 ......................................................................109 People v. Davis (2009) 46 Cal.4th 539 ....................................................75, 89, 90, 101 People v. Deeney (1983) 145 Cal.App.3d 647 ...............................................................84 People v. Demetrulias (2006) 39 Cal.4th 1 .................................................................... passim People v. Dennis (1998) 17 Cal.4th 468 ..............................................................115, 125 People v. Doolin (2009) 45 Cal.4th 390 ........................................................................75 People v. Duncan (1945) 72 Cal.App.2d 247 ...............................................................101 People v. Ervine (2009) 47 Cal.4th 745 ........................................................................93 People v. Ewoldt (1994) 7 Cal.4th 380 .................................................................. passim People v. Falsetta (1999) 21 Cal.4th 903 ........................................................................91 People v. Farnam (2002) 28 Cal.4th 107 ........................................................................60 People v. Ferraez (2003) 112 Cal.App.4th 925 ............................................................110

ix

TABLE OF AUTHORITIES (continued)

Page

People v. Freeman (1994) 8 Cal.4th 450 ........................................................................109 People v. Funes (1994) 23 Cal.App.4th 1506 ..............................................................76 People v. Gallego (1990) 52 Cal.3d 115 .........................................................................76 People v. Gibson (1976) 56 Cal.App.3d 119 ...........................................................78, 81 People v. Gionis (1995) 9 Cal.4th 1196 ..............................................105, 116, 121, 139 People v. Gray (2005) 37 Cal.4th 168 ........................................................................74 People v. Griffin (2004) 33 Cal.4th 536 ........................................................................60 People v. Harris (2005) 37 Cal.4th 310 ............................................................61, 67, 68 People v. Harrison (2005) 35 Cal.4th 208 ..............................................................113, 114 People v. Hawkins (1995) 10 Cal.4th 920 ..................................................................61, 74 People v. Hernandez (1977) 70 Cal.App.3d 271 ...............................................................129 People v. Herring (1993) 20 Cal.App.4th 1066 ............................................................121 People v. Hill (1998) 17 Cal.4th 800 ......................................................113, 115, 140

x

TABLE OF AUTHORITIES (continued)

Page

People v. Hughes (2002) 27 Cal.4th 287 ......................................................................109 People v. Johnson (1981) 121 Cal.App.3d 94 .......................................................113, 114 People v. Johnson (1993) 15 Cal.App.4th 169 ..........................................................78, 79 People v. Jordan (1986) 42 Cal.3d 308 .........................................................................74 People v. Karis (1988) 46 Cal.3d 612 ...................................................98, 99, 101, 106 People v. Kaurish (1990) 52 Cal.3d 648 .......................................................................114 People v. Kelly (2007) 42 Cal.4th 763 ........................................................................92 People v. Kimble (1988) 44 Cal.3d 480 .........................................................................82 People v. Kipp (1998) 18 Cal.4th 349 ............................................................73, 74, 92 People v. Lang (1989) 49 Cal.3d 991 .........................................................................98 People v. Lasko (2000) 23 Cal.4th 101 ........................................................................61 People v. Leonard (2007) 40 Cal.4th 1370 ....................................................................120 People v. Lewis (2001) 25 Cal.4th 610 ................................................................98, 109

xi

TABLE OF AUTHORITIES (continued)

Page

People v. Lewis (2006) 39 Cal.4th 970 ........................................................................58 People v. Lewis (2009) 46 Cal.4th 1255 ..............................................................91, 106 People v. Lindberg (2008) 45 Cal.4th 1 ......................................................91, 94, 106, 111 People v. Lisenba (1939) 14 Cal.2d 403 .........................................................................85 People v. Marquez (1992) 1 Cal.4th 553 ........................................................................116 People v. Martinez (2010) 47 Cal.4th 911 ......................................................................110 People v. McCray (1997) 58 Cal.App.4th 159 ................................................................98 People v. McDermott (2002) 28 Cal.4th 946 ......................................................................113 People v. McGreen (1980) 107 Cal.App.3d 504 .....................................................114, 138 People v. Medina (1990) 51 Cal.3d 870 .......................................................................114 People v. Mitcham (1992) 1 Cal.4th 1027 ......................................................................125 People v. Mitchell (2005) 131 Cal.App.4th 1210 ............................................................67 People v. Osband (1996) 13 Cal.4th 622 ......................................................................109

xii

TABLE OF AUTHORITIES (continued)

Page

People v. Parson (2008) 44 Cal.4th 332 ......................................................124, 125, 136 People v. Partida (2005) 37 Cal.4th 428 ................................................................67, 106 People v. Pertsoni (1985) 172 Cal.App.3d 369 ...............................................................76 People v. Pic’l (1981) 114 Cal.App.3d 824 ...............................................................82 People v. Renteria (1992) 6 Cal.App.4th 1076 ..............................................................123 People v. Riggs (2008) 44 Cal.4th 248 ................................................................87, 106 People v. Roberts (1992) 2 Cal.4th 271 ........................................................................104 People v. Robinson (2000) 85 Cal.App.4th 434 ..............................................................104 People v. Rodriguez (1986) 42 Cal.3d 730 .........................................................................98 People v. Roldan (2005) 35 Cal.4th 646 ..................................................................75, 80 People v. Rowland (1992) 4 Cal.4th 238 ........................................................................104 People v. Samaniego (2009) 172 Cal.App.4th 1148 ..........................................................104 People v. Sandoval (1992) 4 Cal.4th 155 ................................................................123, 138

xiii

TABLE OF AUTHORITIES (continued)

Page

People v. Scalzi (1981) 126 Cal.App.3d 901 ...............................................................61 People v. Scheer (1998) 68 Cal.App.4th 1009 ..........................................74, 78, 79, 110 People v. Silva (1988) 45 Cal.3d 604 ...................................................................63, 64 People v. Simon (1986) 184 Cal.App.3d 125 ...............................................................78 People v. Singh (1995) 37 Cal.App.4th 1343 ..............................................................86 People v. Sommers (Colo.Ct.App. 2008) 200 P.3d 1089 ................................................124 People v. Soper (2009) 45 Cal.4th 759 ........................................................................80 People v. Sparks (2002) 28 Cal.4th 71 ........................................................................109 People v. Steele (2002) 27 Cal.4th 1230 ..............................................................90, 101 People v. Stitely (2005) 35 Cal.4th 514 ..............................................................115, 116 People v. Tafoya (2007) 42 Cal.4th 147 ........................................................................59 People v. Trevino (2001) 26 Cal.4th 237 ........................................................................72 People v. Turner (1994) 8 Cal.4th 137 ..............................................................60, 61, 64

xiv

TABLE OF AUTHORITIES (continued)

Page

People v. Varona (1983) 143 Cal.App.3d 566 .............................................................129 People v. Walker (2006) 139 Cal.App.4th 782 ..............................................................76 People v. Wallace (2008) 44 Cal.4th 1032 ..............................................................96, 110 People v. Watson (1956) 46 Cal.2d 818 .................................................................66, 139 People v. Weaver (2001) 26 Cal.4th 876 ......................................................................109 People v. Whisenhunt (2008) 44 Cal.4th 174 ....................................................84, 86, 89, 110 People v. Wolcott (1983) 34 Cal.3d 92 .........................................................................114 People v. Young (2005) 34 Cal.4th 1149 ............................................................111, 140 Price v. Superior Court (2001) 25 Cal.4th 1046 ......................................................................66 Rushen v. Spain (1983) 464 U.S. 114 [104 S.Ct. 453, 78 L.Ed.2d 267] ......................67 Sizemore v. Fletcher (6th Cir. 1990) 921 F.2d 667 ...........................................................124 State v. Rodriguez (Ariz. 1998) 161 P.2d 1006 .............................................................101 State v. Smith (N.J. 2001) 770 A.2d 255.................................................................124

xv

TABLE OF AUTHORITIES (continued)

Page

State v. West (Ariz. 1993) 862 P.2d 192 ...............................................................101 Tyler v. Swenson (8th Cir. 1970) 427 F.2d 412 .............................................................65 United States v. Olano (1993) 507 U.S. 725 [113 S.Ct. 1770, 123 L.Ed.2d 508] ..................58 Wasatch Property Management v. Degrate (2005) 35 Cal.4th 1111 ......................................................................81 Washington v. Recuenco (2006) 548 U.S. 212 [126 S.Ct. 2546, 165 L.Ed.2d 466] ..................67 STATUTES Evid. Code, § 210...................................................................................................96 § 350...................................................................................................96 § 352........................................................................................... passim § 353...................................................................................................58 § 703.................................................................................60, 65, 66, 67 § 791...................................................................................................61 § 1101......................................................................................... passim § 1103.................................................................................................58 § 1200.................................................................................................60 § 1221.................................................................................................63 § 1250.................................................................................................96 § 1252...............................................................................................105 Pen. Code, § 187.....................................................................................................3 § 977.............................................................................................60, 67 § 12022.5..............................................................................................3 § 12022.53............................................................................................3

xvi

TABLE OF AUTHORITIES (continued) C ONSTITUTIONAL P ROVISIONS

Page

U.S. Const., 6th Amend. .............................................................................55, 63, 65 14th Amend. .....................................................................................115 O THER AUTHORITIES 1 Imwinkelreid, Uncharged Misconduct Evidence (Nov. 2009) § 3.18 .............................................................................75 Black’s Law Dict. (6th ed. 1990) .....................................................................................82 (9th ed. 2009) .....................................................................................82 CALCRIM 226....................................................................................................130 375.............................................................................................. passim 520......................................................................................................69 3550....................................................................................................68 Dictionary.com <http://www.dictionary.reference.com/browse/motive> (as of Sep. 29, 2010) ..........................................................................81 Jefferson, Cal. Evidence Benchbook (1978 Supp) Special Problems Related to Relevancy, § 21.4 .............................................................82 Merriam-Webster <http://www.merriamwebster.com/dictionary/motive> (as of Sep. 29, 2010) .....................81

xvii

INTRODUCTION Record producer Phillip Spector was convicted of the second degree murder of Lana Clarkson with a firearm. At trial, the prosecution introduced evidence that at about 1:45 a.m. on February 3, 2003, appellant Spector was driven to the House of Blues after drinking alcohol at three other establishments that evening. At the House of Blues, appellant was introduced to Clarkson, an actress and model employed there as a VIP hostess. After closing time, Clarkson initially refused appellant’s entreaties to go for drinks at his Alhambra mansion, but she eventually relented. At about 5:00 a.m., inside his “Castle,” appellant shot Clarkson in the mouth with his Colt Cobra. To prove this, the prosecution offered evidence of appellant’s confession to his driver, “I think I killed somebody,” evidence of appellant’s cover-up afterward, forensic evidence that only he could have fired the fatal shot, and evidence that, under similar circumstances, appellant previously committed seven assaults with a firearm on five other women. Appellant’s primary defense at trial was that Clarkson accidentally shot herself or committed suicide because she was distressed about her financial situation and lack of professional success. To support this theory, appellant introduced expert forensic testimony and evidence from her emails and personal and professional contacts. In rebuttal, the prosecution introduced other evidence showing that Clarkson was happy, busy, and productive before she died. On appeal, appellant challenges his conviction on four grounds. First, he contends that the trial court should not have admitted its own gestures and statements on a videotape of criminalist Jaime Lintemoot’s testimony from the first trial. Second, appellant assigns evidentiary, instructional, and prosecutorial error based on the jury’s consideration of his prior uncharged assaults with a firearm for the inadmissible purpose of showing his bad

1

character. Third, appellant contends that the trial court incorrectly permitted the jury to hear appellant’s statement that women should be shot in the head because the statement did not qualify as a “generic threat.” Fourth, appellant contends that the prosecution improperly argued to the jury that defense counsel fabricated evidence and that the defense experts testified falsely for money. Respondent will show that none of these claims has any merit, that some of the claims are procedurally barred, and that each claim does not demonstrate any prejudice. First, appellant failed to raise a timely and specific objection to the trial court’s gestures and statements on the videotape, and moreover, there was no violation of the rule of hearsay, confrontation, or judicial testimony in admitting the videotaped depiction of the trial court. Second, appellant’s prior assaults with a firearm were distinctive enough to the incident in this case to be highly relevant to the issues of motive, and lack of accident, mistake, and suicide, and nothing in the prosecution’s argument contradicted the jury instruction to consider the assaults for these purposes only. Third, the trial court did not abuse its discretion in admitting appellant’s statement about shooting women in the head because it was strongly probative of his state of mind and intent to kill in this case, and fell within the law on “generic threats.” Fourth, appellant’s claim of prosecutorial misconduct is not cognizable because he did not object during closing argument and ask for the trial court to appropriately admonish the jury, and, in any event, it was entirely proper for the prosecution to ask the jury to infer, based on the evidence and defense tactics, that the defense theory of the case was not the truth, that the defense expert witnesses lied based on large compensation, and that defense counsel chose these experts to support appellant’s implausible defense.

2

STATEMENT OF THE CASE On September 20, 2004, the Los Angeles County District Attorney filed a grand jury indictment charging appellant with murder, in violation of Penal Code section 187, subdivision (a). (6CT 1104.) The indictment further alleged that appellant personally used a firearm within the meaning of Penal Code sections 12022.5, subdivision (a)(1) and 12022.53, subdivision (b). (6CT 1105.) Appellant pleaded not guilty. (6CT 1113.) Trial was by jury. (15CT 3529, 3589.) During deliberation, the jurors became hopelessly deadlocked, after which the trial court declared a mistrial. (22CT 5416-5417, 5452, 5513-5514.) The district attorney announced that he would retry the case. (22CT 5515.) After a retrial, a second jury found appellant guilty of second degree murder with personal use of a firearm. (23CT 5828, 5842; 25RT 64576459.) The trial court sentenced appellant to state prison for a term of 15 years to life for the murder plus the middle term of four years for the firearm enhancement. (25CT 6516-6520.) Appellant filed a notice of appeal. (25CT 6521.) STATEMENT OF FACTS I. PROSECUTION’S CASE-IN-CHIEF A. Appellant’s Seven Prior Assaults With a Firearm on Five Women 1. Dorothy Melvin

While living in New York, Dorothy Melvin, Joan Rivers’s manager, dated appellant from about 1989 or 1990 until 1993. (8RT 1281-1282, 1388-1392, 1395-1397.) On July 3, 1993, Melvin, who was seeing her family in the Los Angeles area, visited appellant at his home in Pasadena. In the course of the evening, appellant drank a lot of vodka from a

3

“somewhat full” bottle, becoming increasingly talkative and outgoing, laughing and quoting. (8RT 1397-1402.) Later that evening, appellant went away for a period of time. At about midnight or 1:00 a.m., Melvin lay down on the couch and fell asleep for several hours. Melvin awoke before daybreak, looked out the open front door, and saw appellant pointing a .38 snub-nose revolver at her brand-new car in the circular motor court. She moved to within a foot of appellant and started screaming, “What the [fuck] do you think you’re doing?” At this time, Melvin was angry, not afraid, believing that it was just “another one of his shows of bravado.” Appellant turned and said over his shoulder, “Get back in the house.” Melvin kept jumping around and screaming at appellant. Appellant backhanded her right temple with the gun in his right hand. He said, “I told you to get the ‘F’ into the house.” (8RT 1403-1407.) Melvin stood next to the front door while appellant sat down on the stairs going through Melvin’s purse. Appellant accused Melvin of looking for things to steal and sell. He also told her to take her clothes off and go to the third floor. She was sobbing and repeatedly asking him why he was doing this. While rummaging through Melvin’s purse, appellant sometimes pointed the gun at her and other times pointed it up or at the floor. (8RT 1408-1410; 9RT 1638-1641.) At some point, after Melvin would not take her clothes off, appellant said, “I told you to take your [fucking] clothes off.” His right hand holding the gun, appellant again backhanded her right temple and then returned to the stairs. Melvin was terrified, afraid for her safety; still sobbing, she took off her bright pink jacket. Appellant asked Melvin to throw the jacket to him. Appellant found a lipstick in her purse and asked her what it was. Throughout this exchange, appellant always used profanity when he talked and did not answer her repeated questioning about why he was doing this. (8RT 1411-1417.)

4

While Melvin was sobbing, appellant said “to get the [fuck] out.” Melvin said, “You have my keys. They’re in my jacket pocket.” Appellant threw the keys at Melvin, who ran out of the house. Melvin got into the car and drove down the driveway to leave but the gate was closed. As Melvin sat in her car with the gate closed, appellant ran down the driveway holding a pump-action shotgun. When Melvin heard the pump of the shotgun, she felt more terrified. Appellant screamed at Melvin menacingly, “I told you to get the [fuck] out of here,” and Melvin screamed back, “The gate won’t open.” Appellant approached her on the driver’s side. Appellant stopped and said, in a quizzical way, “Gate won’t open?” Melvin noticed another “personality change” in appellant at that moment. Crying, she again said, “The gate won’t open.” Appellant said, “Well, I’m going to go back and open it.” Appellant ran back into the house, the gate opened, and Melvin drove away. (8RT 1411-1418, 1482-1483.) 2. Stephanie Jennings

In about April 1994, Stephanie Jennings, a professional photographer with a focus in the music business, began a long-distance dating relationship with appellant. Jennings lived in Philadelphia but had an agency in New York City while appellant’s primary residence was Pasadena. (11RT 1973-1975, 1981-1983.) When appellant was around Jennings, he frequently carried guns on his person. (11RT 2050-2051.) On January 12, 1995, from about 10:00 a.m. to 2:00 a.m., Jennings was appellant’s guest at an after-party at the Waldorf Astoria for a Rock ‘n’ Roll Hall of Fame inductee award dinner. Appellant was drinking and unpleasant, making obnoxious statements; this change in demeanor was something that Jennings had seen before. The drunker appellant got, the louder, more obnoxious, and more unpleasant he became. (11RT 19831988, 2031.)

5

After the party, Jennings took a taxi back to appellant’s hotel by herself, went to her room, and fell asleep. Later, between about 3:00 and 4:00 a.m., appellant’s bodyguard woke her up with a knock on her hotel room door. The bodyguard said that appellant wanted her to come join him in his room. Jennings said that she was sleeping and would see appellant the following day. (11RT 1989-1990, 2057, 2090.) After the bodyguard left, Jennings went back to bed. Appellant knocked at the door and said that he wanted Jennings to come join him in his suite. She responded that she was sleeping and would see him the following day. Angry, yelling, appellant insisted that she come to his suite. Appellant said that he was paying for her hotel room and that if she did not come to his suite, she would have to leave and pay for her own room. Jennings said then she would pack her bags, pay for the room herself, and leave. (11RT 1990-1992.) Appellant came into Jennings’s hotel room and they continued arguing about her refusal to go to his suite. As Jennings moved about the hotel room packing, appellant followed and yelled at her. Threatened by appellant’s anger, Jennings was upset and crying, trying to figure out how to get out of the situation. She started to pack in the bathroom, and the argument got more heated. Appellant came into the bathroom and pushed or slapped Jennings, causing her to fall backwards onto the toilet. Jennings rose quickly and pushed appellant backwards. He fell into the bathtub, the shower curtain coming down. Angry, appellant sprung up and left the hotel room. (11RT 1991-1994, 2058.) After appellant left the hotel room, Jennings finished packing all her bags, still upset and crying. Appellant came back into the hotel room. He pulled a chair in front of the door and sat down, blocking the exit. Appellant had a small handgun in his hand and still appeared angry. At times, appellant was waving the gun and pointing it in no particular

6

direction, and other times he pointed the gun in Jennings’s direction. (11RT 1994-1996, 2062, 2094, 2104.) Jennings was more frightened than before because appellant had brought a gun into the situation. Jennings could not leave the hotel room because appellant was holding her at gunpoint. She sat on the bed, crying, and asked appellant to let her leave. She said that she would go to the front desk, leave her bags there, pay for the room, and then “that would be it, the situation would be over.” Agitated, appellant would not allow Jennings to leave. Still holding her at gunpoint, appellant said that Jennings could go pay for the room but that she should leave her bags there and could not take them out of the room. (11RT 1996-1998, 2095-2096, 2104.) Jennings picked up the telephone and, at 6:23 a.m., dialed 911 because she believed that this situation was dangerous to her life and that she needed help. (9RT 1718-1719; 11RT 1997, 2003, 2064; Peo. Exh. 139.) At 6:27 a.m., police officers were dispatched to the scene. (9RT 1735-1736; Peo. Exh. 139.) With the 911 operator still on the line, appellant left the room. (11RT 2000, 2069.) 3. Devra Robitaille

Beginning on June 23, 1975, Devra Robitaille, a British pianist, worked for appellant for about four to four-and-a-half years as the administrative director of his label, Warner-Spector Records. (9RT 17421743, 1746-1748; 10RT 1892.) Robitaille idolized appellant and thought he was a genius. About a year after Robitaille began working with appellant, they began a romantic relationship, which, for her, was an extramarital affair. During this relationship, Robitaille frequently organized parties for appellant at his home in Beverly Hills. (9RT 17481750; 10RT 1827, 1924.)

7

At one of these parties, after the other guests had gone home, Robitaille stood in the foyer, very tired and wanting to leave. The door was locked so she asked appellant if he would let her out. Appellant left the foyer for a few minutes. While Robitaille was ready to leave, looking at the door and wearing her purse and jacket, she felt the cold barrel of a gun at her left temple. Robitaille turned and saw the gun; appellant held it with two hands at her left temple. (9RT 1752-1754; 10RT 1770-1771, 1768.) Appellant had been drinking alcohol that night and was very drunk. (10RT 1786-1787.) Appellant said, “If you try to leave, I’m going to blow your fucking head off.” (9RT 1754.) Robitaille told appellant that she had to leave. Holding the gun at her head, appellant swore and shouted at Robitaille, with different permutations of “I’m going to blow your head off. I’ll blow your brains out. You can’t leave. I’m not unlocking the door.” Robitaille stood her ground and said, “Just stop it. This is ridiculous. I just want to go home.” After “a little moment of suspension,” appellant went from being maniacal to being “Phil again” with a diffused demeanor. Appellant got the keys, unlocked the door, and let Robitaille go. (9RT 1754-1755; 10RT 1768-1770, 1772.) Robitaille felt disrespected and violated from this incident. Her affair with appellant stopped and their relationship became solely a business one. About a year after this incident, she quit working for appellant for the last time because their work relationship had deteriorated. Eventually, in June 1980, she returned to England and had a successful musical career there for five or six years. (9RT 1754; 10RT 1772, 1774-1776, 1868.) In 1986, Robitaille returned to the United States because her musical career was beginning “to peter out.” In Los Angeles, she reestablished contact with appellant and accepted a part-time job working for him in Los Angeles. (10RT 1776-1778, 1869-1870.)

8

On one occasion in 1986, Robitaille went to a party at appellant’s house, a different house than she had been to in 1975. When Robitaille arrived, she was sequestered in another room as she typically was as his employee at appellant’s parties. After many hours, possibly at about dawn, when everyone else had gone, Robitaille was very tired and decided that it was time for her to leave. The door was locked. (10RT 1778-1780, 1787, 1811, 1874.) Robitaille found appellant and said, “Please, I really need to go home. Let me out.” Appellant was drunk. Robitaille stood in the foyer with her purse, wanting to leave. After a “sort of time of nothing,” appellant suddenly pointed a shotgun at her face, holding it with both hands. (10RT 1781-1783, 1787.) The shotgun appeared to be similar to the one that appellant pointed at Robitaille’s temple in the 1975 incident. (10RT 1863, 1885.) Robitaille thought, “Oh, not again. I can’t believe it.” Appellant was swearing, saying “f’ing” a lot, and making threats like “I’ll blow your head off. I’ll shoot you. I’ll kill you. I’ll blow your brains out. I could shoot you right now.” Robitaille told appellant to put down the gun and unlock the door and let her leave. This incident seemed like it went on for hours and was more protracted than the first incident. At one point, appellant went away. Robitaille stood there in the lobby, not knowing what to do, still unable to leave. (10RT 1781-1785.) Appellant returned to Robitaille. The situation “started to unwind, and the tension broke again like it had the first time . . . .” Again, appellant had a “switch” in mood. Appellant unlocked the door and Robitaille hurried away. (10RT 1785-1786.) 4. Dianne Ogden

In 1982, after having several dinners with appellant and others at La Maganet in Beverly Hills, Dianne Ogden agreed to have dinner alone with

9

appellant there one evening at about 9:00 or 10:00 p.m. During dinner, appellant drank alcohol. Ogden then agreed to see appellant’s home in Beverly Hills. (24CT 6165-6173, 6203, 6228.)1 Ogden and appellant went inside his house. (24CT 6166, 6172.) After talking and seeing appellant’s house, Ogden told him that she needed to go home and had to work the next day. Appellant did not want her to go home. (24CT 6172-6173, 6229.) He “disappeared”––ran off and left Ogden alone. (24CT 6173, 6192.) Ogden got ready to leave and put her purse over her shoulder. (24CT 6173-6174, 6230.) She heard a buzz; appellant had locked the door on her. She pleaded with appellant to go home. She had never seen appellant act this way before. She was worried but also considered that she had known him for a few months and thought that he was just playing with his door and his buzzer. She begged appellant a couple more times. After 30 minutes, appellant finally unlocked the door, and Ogden left. (24CT 6173-6175, 6206.) From that time in 1982, until 1988, appellant and Ogden kept in touch. (24CT 6175.) Appellant would send Ogden birthday messages and was sweet, kind, and considerate. (24CT 6200, 6220-6221.) In 1988, between jobs, Ogden accepted appellant’s offer to be his paid assistant. (24CT 6175-6176, 6207.) In March 1989, Ogden went to appellant’s party in Pasadena. (24CT 6177, 6210.) Appellant drank alcohol at the party. (24CT 6180.) At about midnight, when people were leaving, Ogden told appellant that she was going to go home. Appellant did not want her to leave yet. (24CT 61776178, 6229.) He went away and left Ogden alone. (24CT 6192.) She put
1

Because Dianne Ogden was unavailable (she passed away) before the second trial, the jury watched a DVD of her testimony from the first trial. (12RT 2135, 2139, 2141; Peo. Exhs. 155, 156.)

10

her purse on her arm. Appellant went over to Ogden, placed a rifle on her right side, and screamed at her, “You’re not fucking leaving.” Ogden felt that this was “not my Phil” and “not the man I loved.” They had been good friends for eight years. (24CT 6177, 6180-6181, 6215.) Ogden sat down and said, “Please don’t do that.” Appellant pointed a pistol at Ogden “all over” her, repeatedly touching the right side of Ogden’s face with the gun. Appellant screamed at her, over and over again telling her that he was going to “blow [her] brains out.” Appellant screamed “the ‘F’ word” and “bitch.” Ogden pleaded with appellant to let her go home and put the gun down, but he refused. She thought that appellant was going to kill her. (24CT 6181-6182, 6185-6186, 6217.) While pointing the gun at Ogden, appellant demanded that she go upstairs to his bedroom. She went upstairs to appellant’s bedroom while he walked behind her. At gunpoint, appellant had her take off some of her clothes and tried to have intercourse with her; he “wanted to rape” her. Ogden found it “icky because it wasn’t him.” She spent the night in appellant’s bed but did not want to be there. (24CT 6182-6184.) A week or two later, Ogden received telephone messages from appellant, none of which made any reference to the events of that night. She tried to rationalize what had happened. A few months after the incident, Ogden forgave appellant and saw him again at his Pasadena house with his music publisher, Alan Klein, and his son Jody, whom Ogden knew. (24CT 6185-6188, 6218.) After the Kleins left, Ogden started to leave. (24CT 6188, 6229.) Once again, appellant went away and left her alone. (24CT 6192.) From behind Ogden, appellant screamed, “You’re not going anywhere. I can’t stand the sound of your voice.” Appellant said, “I have an Uzi here. I am going to kill you.” Ogden said, “What are you talking about?” Appellant was holding an Uzi in his hand. Ogden said, “Phillip, stop it. I am just going to go home and don’t do this to me again. Please.

11

You’re drinking too much. Just go back in the house.” Appellant said, “No.” Ogden ran toward her car. Appellant ran after her while holding his Uzi. She got into her car and started it up with the window closed. Appellant banged the Uzi on her window while yelling. Ogden escaped by driving away fast, ducking because she thought he was going to shoot through her back window, while hoping her car would not hit a tree. (24CT 6188-6190, 6229.) 5. Melissa Grosvenor

In the spring or early summer of 1991, Melissa Grosvenor, a waitress in New York, developed a “romantic but platonic” dating relationship with appellant. At this time, appellant was living in a penthouse suite of a New York hotel but also kept a home in Pasadena. (13RT 2371-2380, 23842387.) In October 1992, about a year and a half after Grosvenor and appellant began dating, she accepted appellant’s invitation to come to California to see him. Sometime between November 1992 and early 1993, Grosvenor flew on a plane to Los Angeles using a ticket appellant bought for her, arriving at the Los Angeles International Airport at about 1:00 p.m. At the airport, a driver picked her up and took her to a hotel in Pasadena that appellant had arranged for her to stay at. (13RT 2390-2392, 2413, 2428.) Sometime before 9:00 p.m., appellant’s driver picked up appellant and Grosvenor and took them to a restaurant at the Beverly Hills Hotel. They had dinner there, and both ordered alcoholic drinks. Appellant drank his drink. Their dinner was pleasant and lasted between an hour and an hour and a half. After dinner, they went back to appellant’s house in Pasadena, arriving there at about 11:00 p.m. Grosvenor was tired and had jet lag. At appellant’s house, in a great room, he fixed himself and Grosvenor a drink

12

and then played music. Appellant drank his drink but Grosvenor did not drink hers because she was tired. At this time, appellant had had more than two drinks and was “a bit drunk.” (13RT 2392-2396, 2400.) Between 1:00 a.m. and 2:00 a.m., Grosvenor was very tired and decided that the evening with appellant had come to a conclusion. Still in the great room, Grosvenor told appellant that she wanted to leave. Appellant’s whole demeanor changed. He appeared angry, enraged. (13RT 2398-2400, 2403.) Appellant turned and looked at Grosvenor, pointed his finger in her face, and said, “What? You want to go?” Appellant said, “You just wait. Wait right there.” Appellant left. Grosvenor sat down and waited for appellant to come back. A couple minutes later, appellant returned, holding a handgun in his right hand. Appellant walked up to Grosvenor and pointed the gun at her face, the barrel a couple of inches away. Appellant said, “If you try [to] leave, I’m going to kill you.” Appellant put the gun into the shoulder holster that he was wearing. He was tapping the holster, rambling, and walking back and forth from where Grosvenor was sitting. Appellant angrily made statements like, “You think you’re leaving. You’re not going to leave,” except with profanity. (13RT 2399, 2401-2403, 2405-2406, 2414-2415.) Grosvenor started crying and was very upset and afraid for her life. She believed that the gun was loaded and feared that he would shoot her if she tried to leave. Grosvenor stayed in the chair and did not say anything, closing her eyes because she was scared. At some point, totally exhausted, Grosvenor fell asleep, crying. (13RT 2403, 2405, 2407, 2415, 2424.) About five hours later, Grosvenor awoke to appellant tapping her on the foot. It was daylight. Appellant did not have the shoulder holster on and was not holding the gun. Appellant was “back to normal,” as Grosvenor knew him before the previous evening. Appellant asked if

13

Grosvenor would like to get some breakfast. Grosvenor said yes because she knew that was a way to get out of the house and because she could ask for help at a restaurant. They went to a diner where Grosvenor felt safer. She flew back to New York that day. (13RT 2407-2410, 2424.) B. The Murder 1. Dining and Drinking at the Grill With Rommie Davis

On February 2, 2003, at about 4:00 p.m., Michelle Blaine, appellant’s secretary, asked Adriano De Souza to drive appellant that night, and De Souza agreed. (14RT 2466-2468, 2478, 2560.) De Souza had filled in as appellant’s driver on about 12 to 15 occasions over the course of three to four months when appellant’s regular driver was unavailable. (14RT 24632468, 2552.) De Souza and appellant never had any trouble understanding each other and communicated pretty easily. (14RT 2471-2472.) At about 6:45 p.m., De Souza arrived at appellant’s house. De Souza got into appellant’s Mercedes, parked it, and waited for him. At about 7:00 p.m., appellant came out of the house with a leather briefcase. Appellant got into the car and told De Souza to go to Studio City, where appellant’s friend Rommie Davis lived. (14RT 2480-2482, 2484-2485, 2560.) At about 8:00 p.m., De Souza picked up Davis and took her and appellant to the Grill in Beverly Hills for dinner, arriving at about 8:20 p.m. (11RT 1952-1953, 1955-1957; 14RT 2485.) Kathy Sullivan, who knew appellant, was working as a server at the Grill that evening, and said hello to appellant and Davis while they were having appetizers inside.2 (12RT

Appellant and Sullivan had had a platonic relationship in 1997. (12RT 2151, 2155, 2190.) Sullivan lost contact with appellant after an (continued…)

2

14

2150-2151, 2156-2157; 14RT 2486.) During dinner, appellant drank one daiquiri and at least part of a second daiquiri. When appellant ordered the second one, Davis suggested that it was not a good idea because he was acting “silly.” Appellant ignored Davis’s concern and continued to drink. Appellant’s behavior changed from what Davis had seen before––he was acting “childlike” and “very silly” and appeared a little drunk. Between about 9:30 p.m. and 10:00 p.m., appellant and Davis finished dinner. Davis wanted to go to bed early. (11RT 1958-1962, 1970-1971; 12RT 2160, 2163-2164; Peo. Exh. 5.) After Sullivan’s shift, she was eating at the employee table waiting to check out before closing. A busser asked Sullivan and Karen, her coworker friend seated next to her, if they wanted to go out with appellant for a drink. Sullivan’s friend had a prior commitment. Sullivan went over to appellant’s table and accepted an invitation from him to go to Trader Vic’s but said that her friend was busy. (12RT 2157-2159, 2195.) Appellant told Sullivan that he and his driver would take Davis home and return in about 45 minutes to pick Sullivan up. (12RT 2164-2165.) Soon after 10:17 p.m., appellant and Davis left the Grill. (11RT 1961; 12RT 2165; 14RT 2486, 2560; Peo. Exh. 5.) De Souza drove them back to Davis’s home in Studio City and dropped her off there. (11RT 1962; 14RT 2486-2487.)

(…continued) evening with her friend at his “Castle” when appellant walked downstairs with a rifle or shotgun, which Sullivan found scary and “crazy.” (12RT 2214, 2216, 2218-2219, 2223, 2154.)

15

2.

Moving on to Trader Vic’s and Dan Tana’s With Kathy Sullivan

At about 11:00 p.m., appellant and De Souza returned to the Grill from dropping off Rommie Davis and picked up Kathy Sullivan there. At appellant’s direction, De Souza drove them to Trader Vic’s, arriving sometime after 11:00 p.m. Appellant and Sullivan went to the bar, where they ordered alcoholic drinks––Sullivan an Amaretto Sour on the rocks and a Coke, and appellant a Navy Grog and a Diet Coke. About an hour after they arrived, they finished their drinks and ordered a second round of the same drinks. Shortly after their second round of drinks arrived, they got up to leave for Dan Tana’s without drinking them. (12RT 2166-2169, 2210; 14RT 2487-2488.) Sometime after midnight, appellant and Sullivan got back into the car. Sullivan said that she was tired but appellant said that he wanted company at Dan Tana’s. Because Dan Tana’s was located between Trader Vic’s and Sullivan’s apartment, appellant had De Souza drive Sullivan to her car. Sullivan dropped her car off at her apartment in Hollywood while De Souza followed her. She then rejoined appellant in the Mercedes. De Souza drove them to Dan Tana’s, arriving there at about 12:30 p.m. (12RT 21682170; 14RT 2488-2490.) At Dan Tana’s, appellant ordered a daiquiri and a Diet Coke, and Sullivan ordered an Amaretto Sour and a Coke. They also had bread, a salad, and a second round of the same drinks. At about 1:27 a.m., the bill was closed out. Appellant suggested that they go to the House of Blues. Sullivan said that she was extremely tired and did not want to go. Appellant did not respond. (12RT 2171-2175; Peo. Exh. 7.) Appellant and Sullivan exited Dan Tana’s and got into his car. Appellant told De Souza to drive to the House of Blues. Sullivan agreed to go there; she thought that since it was “last call” at Dan Tana’s, it would

16

also be last call at the House of Blues, that the House of Blues would be closed, and that she would go home. At about 1:30 a.m., De Souza drove into the parking lot of the House of Blues, which appeared to be closing down. (12RT 2175-2176; 14RT 2491-2493.) 3. Meeting Lana Clarkson and Dismissing Kathy Sullivan at the House of Blues

At about 1:45 a.m., appellant and Sullivan entered the House of Blues through the back entrance. (12RT 2176-2178, 2226-2230; 14RT 24932494.) Euphrates Lalondriz, who worked there as a bartender and security, was training Lana Clarkson to be a security officer and hostess of the Foundation Room, a private VIP room. A person working security at the Foundation Room needed to wear a suit, be polite and professional, take care of the VIP clientele, and check wristbands to ensure permission to be inside. Clarkson had been working at the House of Blues for a couple of weeks. Appellant was a VIP client of the Foundation Room, a “gold member” like Dan Aykroyd. (12RT 2178-2180, 2225-2226, 2228-2229, 2232; 13RT 2336-2339.) Appellant attempted to get into the Foundation Room but Clarkson stopped Sullivan in the entrance way. In a professional manner, Clarkson said, “We’re having a private party. I am sorry. I can’t let you pass.” Appellant said, “What?” Clarkson said, “You can’t come in here.” Appellant said, “Do you know who I am?” Clarkson said, “No,” and then, “It’s dark in here.” Clarkson at one point called appellant, “Miss Spector.” Appellant corrected Clarkson and informed her that he was not a woman. Clarkson apologized and was very professional and courteous. Appellant said, “I just want to go to the bathroom.” Clarkson laughed and said okay. Appellant and Sullivan went to the restrooms, which were across the

17

hallway from the Foundation Room. (12RT 2178-2182, 2225-2226, 22282229, 2231-2233.) While appellant was in the restroom, Clarkson used the two-way radio to notify Lalondriz that a man wanted to come into the Foundation Room without a wristband, had gotten loud, and had said, “You don’t know who I am.” Clarkson asked Lalondriz to come into the Foundation Room. Sophia Holguin, a cocktail waitress, also got on the radio and told Lalondriz, “Phil Spector is here and is asking for you.” (13RT 2340-2342.) Holguin told Clarkson that appellant was Phil Spector, a music producer and a multimillionaire. (12RT 2225-2226, 2234.) Because appellant had previously left her a large tip, Holguin asked Clarkson to be sure to sit him in her section. (12RT 2229-2230, 2234.) Lalondriz walked into the Foundation Room while appellant was in the restroom. Holguin explained to Lalondriz that appellant had just gotten into a “little altercation” with Clarkson because they did not know each other. Appellant and Sullivan returned from the restrooms, and he recognized Lalondriz. After Lalondriz and appellant spoke, Lalondriz introduced him to Clarkson. Lalondriz explained to Clarkson, “This is Phil Spector. We treat him just like Dan Aykro[y]d, golden.” Appellant appeared “okay with everything,” also introduced himself to Clarkson, and shook her hand. Clarkson told appellant and Sullivan, “I apologize. My name is Lana. Right this way.” Clarkson led appellant and Sullivan to the private Buddha Room. Clarkson was very friendly, professional, and courteous. At the Buddha Room, Clarkson said that it was last call and that if they were going to order drinks, they had to do it then. (12RT 21812183, 2204, 2234-2235; 13RT 2342-2345.) Holguin went into the Buddha Room to serve them. Appellant ordered Bacardi 151, a “top shelf,” expensive rum that was double the proof of regular rum. Appellant also ordered a cocktail for Sullivan.

18

Sullivan said that she did not want a cocktail and ordered water. (12RT 2183-2185, 2206, 2236, 2238-2239; 13RT 2318-2319, 2329, 2332, 2346; Peo. Exh. 8.) Appellant seemed irritated and upset that Sullivan wanted water. Appellant twice told her to just order a drink but she continued to say that she just wanted water. In an aggressive, agitated manner, appellant then told her “to just order a fucking drink.” She insisted that she just wanted water. At 1:59 a.m., Holguin got the manager’s approval to put appellant’s order in, as it was after the regular 1:45 a.m. cutoff to serve drinks. (12RT 2236-2240, 2247; 13RT 2289-2290, 2314, 2346; Peo. Exh. 8.) Clarkson went in and out of the Buddha Room, fluffing the pillows on the couch, taking care of her job duties. Clarkson was paying extra attention to appellant, making small talk with him. (12RT 2231-2242; 13RT 2301, 2348.) Clarkson’s conduct was acceptable and professional for the VIP room of the House of Blues given that special attention was paid to a customer like appellant. (13RT 2319-2320.) Near 2:00 a.m., Clarkson walked into the Buddha Room to explain to appellant that they were about to close. Lalondriz said, “Don’t worry. They are okay. You could just -they could stay here.” (13RT 2348.) Sullivan was exhausted, and her head was down. Appellant said, “Oh, you want to go home. Fine. I’ll have my driver take you home.” Appellant announced in a loud voice, “Get Lana!” Clarkson came over immediately. Appellant said, “I’m sending Kathy home.” This made Sullivan “feel like crap” and embarrassed her; appellant’s phrasing made it sound like she was being dismissed. Appellant said, “Have Adriano take her to her house and make sure he brings the car back.” Sullivan kissed appellant on the cheek and thanked him for having a fun night. At about 1:59 a.m., Clarkson escorted Sullivan to the car. Clarkson followed appellant’s directions and told De Souza, “Mr. Spector wants you to take

19

Kathy home, and he wants you to bring the car right back.” De Souza drove Sullivan home and returned to the House of Blues. (12RT 2183, 2185-2187, 2189, 2207; 13RT 2360, 2363; 14RT 2494-2496, 2501-2503.) Holguin brought appellant his drink and the water meant for Sullivan. (12RT 2240-2241.) Appellant said, “I don’t want it. I don’t want that fucking water.” (13RT 2292, 2295.) Appellant downed his drink in one shot. (12RT 2240-2241; 13RT 2319.) Appellant appeared to have drunk a lot of alcohol. (12RT 2247-2248.) Appellant asked Holguin to have a drink with him. Holguin politely declined, saying that she was working and could not do so. (12RT 2244.) Appellant asked her to go home with him; she was “being hit on” by appellant. Holguin said that she could not do so, either explaining that she had to work the next day or that she had a meeting. (13RT 2323.) Agitated, appellant commented on Clarkson’s behavior, “She’s acting like fucking Charlie Chaplin.” Appellant said that he wished that Clarkson would just calm down, sit down, and have a drink with him. Clarkson said that she could not have a drink with him because she was working but that she would ask the manager, Kim Gregory, if it was allowed. Over the twoway radio, Clarkson contacted Gregory and informed him that a patron had asked her to sit down and have a drink with him. Gregory told her that she “could sit down but no cocktails.” Also, Lalondriz told Clarkson, “Well, you can sit down, but just make sure you [take] off your blazer so you won’t look like an employee.” Before sitting down with appellant, Clarkson completed her job duties for the night by turning off the candles. (12RT 2243-2247; 13RT 2281, 2287-2288, 2348-2350, 2360-2361, 2363.) After appellant finished his first Bacardi 151, appellant said that he wanted another drink. Holguin told appellant that she had to get her manager’s approval because it was past the time for serving drinks. Gregory declined to give approval. Appellant was loud and intoxicated,

20

and Holguin did not serve any more alcohol to him. At 2:31 a.m., Holguin closed out appellant’s tab. (12RT 2245-2249; 13RT 2317-2318; Peo. Exh. 8.) The bill was $13.50, and appellant left a $450 tip, which Holguin had to share with coworkers. At this time, appellant was being fairly friendly and outgoing. (12RT 2249; 13RT 2285-2286.) When Lalondriz returned to the Foundation Room, Clarkson was about to leave. Appellant asked if Clarkson needed a ride, and she said yes. Appellant asked her, “Do you want to go to the house so we could talk?” Clarkson said, “No. No. No. You could just give me a ride to my car.” (13RT 2352-2353.) 4. Urging Clarkson to Have a Drink at His “Castle”

At about 2:23 a.m., appellant walked out of the Foundation Room with Clarkson and Lalondriz, exited the House of Blues, and approached his Mercedes. Outside of the car, appellant invited Clarkson to his house, saying, “Let’s go to the Castle,” but she declined his invitation. (12RT 2245, 2250; 13RT 2352-2353, 2359, 2367-2368; 14RT 2503-2506; Peo. Exh. 134.) Appellant several more times told Clarkson that he wanted to show her his “Castle.” Several times she said no. (14RT 2505-2506; 24CT 6102-6103.)3 She explained that it was late, she was tired, she had to work, and she was afraid she could be in trouble if she left with a client. Clarkson also said that she had to get her car, which could not be left in the parking structure close to the House of Blues. Appellant responded that he could drive her to her car, and she again accepted the ride. (14RT 2505-2508.)

In addition to De Souza’s testimony, the trial court admitted taped police interviews of De Souza at the crime scene and at the police station, the transcripts of which are included in the clerk’s transcript on appeal. (See Peo. Exhs. 146, 147, 160, 161; 24CT 6066-6163, 6264-6298.)

3

21

De Souza drove Clarkson to the parking structure close to the House of Blues, finding Clarkson’s car on one of the floors. Appellant said that he needed to go to the bathroom, and Clarkson told him to go behind the wall. After parking the car, De Souza opened the door for Clarkson and appellant. Appellant walked away and urinated behind a wall. As instructed, De Souza followed Clarkson as she parked her car on La Cienega. De Souza opened the Mercedes door for Clarkson, who told De Souza that she wanted to just have one drink, having worked all night. Appellant got upset and screamed, “Don’t talk to the driver, don’t talk to the driver.” Clarkson went inside the car, after which De Souza shut the door and got into the car with appellant and Clarkson inside. (14RT 25082510, 2512-2513, 2569-2571; 24CT 6103, 6105, 6150, 6153-6156.) 5. At the Castle: “I Think I Killed Somebody”

De Souza drove appellant and Clarkson to appellant’s Alhambra house, known as the Castle. During the drive, De Souza smelled alcohol emanating from the back of the car. (14RT 2513-2514.) Appellant and Clarkson were talking and laughing, and watching a DVD. (14RT 2578; 17RT 3115; 24CT 6148-6149.) At about 3:00 a.m., about 30 minutes after they left the House of Blues, De Souza drove up to the Castle and opened the front gate by remote control. At appellant’s direction, De Souza stopped the car at the front stairway to the house, opened the door for them, and let them out. This was the first time De Souza had dropped appellant off there; before, De Souza had only dropped appellant off at the back of the motor court. This was also the first time that De Souza had ever taken a woman home to the Castle in appellant’s company. (14RT 2514-2517.) Appellant and Clarkson went up the stairs to the house. De Souza drove to the motor court near the fountain and parked the car in front of the

22

back door because he would have to give Clarkson a ride again. De Souza started collecting the items left in the back compartment of the car–– including appellant’s briefcase, cell phones, and DVD player––in order to give them to appellant at the first opportunity. (14RT 2516-2519; 24CT 6106-6107, 6136-6137.) Between about 10 and 20 minutes later, appellant opened the door. De Souza grabbed the briefcase and DVD player from the front of the car because he thought that appellant was coming for these items. De Souza got out of the car and started handing appellant the briefcase. Appellant said that he did not want it, so De Souza returned the briefcase to the car. Appellant then changed his mind and said to give him the briefcase. De Souza then gave him the briefcase and the portable DVD player. De Souza walked about six feet toward the open back door, reached inside, and put the briefcase on a chair next to the entrance. Clarkson was not in the foyer area, and De Souza did not hear her. After De Souza dropped off the briefcase on the chair, appellant went inside and closed the door. At about 3:20 a.m., De Souza got back into the car and closed the car door. (14RT 2519-2525, 2579.) At about 5:00 a.m., while waiting in the car with the car windows closed, De Souza heard a sharp “pow,” “poe,” or “bang” noise over the sound of the car radio. Surprised, De Souza opened the car door and looked around to see what had made that noise. For about two or three minutes, De Souza looked at the trees and branches and circled the fountain but could not find anything. He then returned to the car, got inside, and shut the door. (14RT 2525-2527, 2583; 15RT 2759-2760, 2785; 24CT 6110-6111, 6118, 6137.) As soon as De Souza shut the car door, between three and five minutes after the sharp “crack”-like sound, appellant opened the back door to the house. (14RT 2527, 2586, 2612; 15RT 2785; 24CT 6112, 6138,

23

6266-6267, 6286.) When appellant stepped outside, De Souza saw Clarkson’s legs through the open door. (14RT 2535, 2616.) De Souza opened the car door, got out, and stood up. (14RT 2528; 24CT 6138.) Appellant stepped out from the back door onto the top tier of the brick steps, still fully clothed and wearing the same white- or cream-colored jacket he had been wearing earlier. (14RT 2528, 2547; 15RT 2730; 24CT 6119-6120, 6122; Peo. Exh. 106.) With the back door still open, De Souza stepped to the side to get a better view inside the house and saw Clarkson’s whole body. Clarkson’s body was slouched down in a chair, half on the floor, legs extended outward, slanted a few degrees to the right. There was a little blood on Clarkson’s face. (14RT 2535-2539; 15RT 2739; 24CT 6112-6113, 6123-6125, 6139, 6267-6271, 6279, 6287, 6293-6294.) In his right hand, appellant was holding a small, .38-caliber-like black revolver in front of his waistline almost parallel to the ground, pointed slightly downward, his right finger extended, and his thumb up in front of his belt buckle. (14RT 2528-2536, 2589-2592, 2612, 2675-2676; 15RT 2728-2729, 2760, 2768, 2773, 2785; 24CT 6112, 6121-6122, 6139, 62666267, 6272, 6286; Peo. Exh. 148.) De Souza was frightened because appellant had a gun in his hand. De Souza saw a little blood on the top of appellant’s right index finger between his first and second knuckle. (14RT 2534, 2593-2594; 15RT 2761-2763, 2773; 24CT 6294.) Facing De Souza, appellant “very clearly” said, “I think I killed somebody.” (14RT 25322533, 2606, 2626, 2664-2665, 2682, 2694; 15RT 2720, 2768, 2777-2778; 24CT 6112, 6122, 6138-6139, 6267, 6272, 6287.) De Souza asked appellant what happened. Appellant shrugged his shoulders up and down and did not say anything. (14RT 2536, 2539, 2596; 24CT 6126, 6266.) He had a blank expression. He was drunk. (14RT 2537, 2665; 24CT 61136114, 6126-6127, 6271-6272, 6287.)

24

With appellant still holding the gun in his hand, De Souza was in fear for his life and thinking, “Leave that place.” De Souza panicked and started running towards the exit gate, leaving the car door open. After passing the car by about 10 to 15 feet, De Souza stopped. He tried to use his cell phone but was so confused and disoriented that he forgot how to use it. He “could not do anything.” He returned to the Mercedes because it was the easiest way to leave the Castle: the Mercedes had its door open, De Souza had been driving it all night, and it was closer to De Souza than his own car. Appellant was still standing by the doorstep, now facing inside, looking inside, gun in hand. De Souza got in the car, closed the door, started up the car, and drove it down the hill. (14RT 2539-2541; 15RT 2734-2735, 2774; 24CT 6114, 6140-6141, 6273, 6287.) De Souza calmed down enough to use the cell phone. He called Michelle Blaine, appellant’s secretary, from the cell phone’s memory. De Souza called Blaine first instead of the police because he did not know appellant’s address. De Souza did not reach Blaine and left a message. In this message, De Souza said, “Michelle, I have to -- you have to come to, to Mr. Phillip’s house. I think he killed some- -- a lady. Please call me, call me back. I’m gonna call the police right now.” (14RT 2541-2543, 2598; Peo. Exhs. 140, 141; 24CT 6053-6055, 6114-6117, 6273-6274.) After De Souza left a message for Blaine, he found the address on the outside sign and, at 5:02:20 a.m., called 911. (14RT 2543-2545, 2599; 24CT 6056-6065, 6114-6115, 6117, 6141, 6273-6274, 6288-6289; Peo. Exhs. 142, 143.) The CHP dispatcher asked De Souza what he was reporting. De Souza said, “I think my boss killed somebody.” The dispatcher asked De Souza why he believed that. He said, “Because you -he, he have a lady on the, on the floor and he have a gun in, in his hand.” In response to questioning, De Souza said that he heard a noise and that

25

appellant then opened the door and said, “I think he -- I killed her.” (14RT 2544, 2679; 24CT 6058-6059, 6063.) C. Appellant’s Guilty Conduct Following the Murder

On February 3, 2003, at about 5:02 a.m., in response to a radio call, Alhambra Police Officer Brandon Cardella drove to appellant’s “Pyrenees Castle.” When he arrived, he saw De Souza in front of the entry gate, standing outside a black Mercedes next to the driver’s side door. De Souza had a cell phone in his hand and was frantically waving his arms. (14RT 2545; 15RT 2781-2784, 2824, 2828; 16RT 3046-3047, 3049.) Officer Cardella interviewed De Souza for about three to five minutes as part of his initial assessment. Four other police units responded to the Castle. The officers set up a command post just north of the front of the entry gate and coordinated their roles. They created an entry team of five officers, with Officer Cardella in the lead holding a ballistic shield, Corporal P.4 behind Officer Cardella with a Taser and an MP5 submachine gun, Officer Hammond next with a standard-issue sidearm gun, Officer Tamayo with a shotgun, and last, Officer Rodriguez with a standard-issue sidearm gun. (15RT 2785-2789, 2798, 2832; 16RT 2891-2893, 2897, 2928.) The entry team of officers walked up the driveway through the front gate in single file, Officer Cardella in front with the shield. The team stopped at the top of the first building, a stand-alone garage. The team entered the garage to clear it for other suspects and search it for any other persons needing aid. Officer Cardella posted himself at the doorway at the northwest corner of the garage to cover the other officers and faced the rear The prosecution and defense counsel referred to this officer as “P.” rather than his last name because he was undercover at the time of trial. (15RT 2851.)
4

26

door of the house next to the fountain. Officer Tamayo posted near the corner of the house. Officer Hammond, Corporal P., and Officer Rodriguez went inside the garage. (15RT 2789-2793, 2800-2801, 2841; 16RT 28972900, 2930.) While Officer Cardella waited at the garage doorway, he saw appellant about 60 feet away on the second story of the house through the windows. Appellant was moving back and forth. Appellant went onto the second floor landing inside the house for about 15 to 25 seconds. With his back turned away from Officer Cardella, appellant would pace and then stop, arms crossed, positioning “his hands like he was thinking,” looking downward as if he were trying to figure out what to do. (15RT 2793-2795, 2801-2804, 2822-2823, 2842-2843.) Officer Cardella notified his team about appellant so that they could quickly go into the house and address him. The team exited and told Officer Cardella that there was no one in the garage. Officer Hammond returned to Officer Cardella’s position at the door of the garage. There, Officer Hammond also saw appellant with his back turned towards him standing inside the house on the second floor landing above the rear door. Appellant had his arms crossed over each other at the upper torso area. Appellant’s head was directed downward toward where Clarkson was eventually found slumped in a chair. At this point, the officers’ position was still concealed. (15RT 2792-2795, 2801; 16RT 2900-2902, 2904, 2922-2923; Peo. Exh. 15.) About five or ten seconds after Officer Hammond saw him at the second floor landing, appellant went down the stairs to the doorway of the rear entrance. A short time later, appellant went outside out of the south, rear door, which was already opened, to the top of the outside stairs. (15RT 2794-2796, 2804-2805, 2843-2844, 2881-2882; 16RT 2902-2903, 2905.) The officers were still positioned at the garage, about 40 to 50 feet away

27

from appellant. (16RT 2906.) Appellant was standing there, looking at the officers, frantic and anxious, hands in his pockets. He did not ask for help. He made some statements, his voice slurred. The police started to come up the stairs to shorten their distance with appellant. They loudly told him that they were the Alhambra Police Department. (15RT 2795-2797, 2805-2807; 16RT 2906, 2909, 2935.) Trying to get appellant away from the house, Officer Cardella at least three times commanded that he take his hands out of his pockets, raise them in the air, and step toward the officers. (15RT 2795-2797, 2805, 2845, 2877-2878; 16RT 2907.) The first time, Officer Cardella’s command was loud, serious, and authoritative. Appellant did not comply the first time with Officer Cardella’s command. (16RT 2906-2907, 2938-2940, 2966.) The second time, Officer Cardella injected an expletive to get appellant to pay attention, forcefully and loudly telling him, “Get your fucking hands out of your pockets.” After this second command, appellant quickly pulled his hands out of his pockets, raised them to shoulder level, and then abruptly placed them right back into his pockets. (15RT 2806, 2845-2846, 2875-2876, 2883; 16RT 2907-2908, 2939-2940, 2967.) Appellant blankly stared and did not step forward. (16RT 2941, 2967-2968.) Officer Cardella then loudly issued a third command for appellant to get his hands out of his pockets and to walk toward the officers. Appellant did not comply with this third command. (16RT 2908-2909, 2939-2940.) Other than the time that appellant briefly pulled his hands out of his pockets and then put them back in, appellant did not comply with any of the three commands. (15RT 2795-2797; 16RT 2968.) About 20 feet away from the officers, appellant said in a slightly slurred voice, “Hey, guys, you’ve got to come see this.” (15RT 2807-2808, 2846, 2877; 16RT 2921, 2942.) Appellant turned his back on the officers and returned inside the house. Officer Cardella and the rest of the entry

28

team decided to move into the house in order to keep appellant in their sights. With Officer Tamayo staying back, the other officers followed appellant into the residence in single-file formation, continuing forward to make sure they could keep sight of him. Officer Cardella was again in front with a shield, Corporal P. behind him, and Officer Hammond third in line. (15RT 2795-2798, 2806, 2809; 16RT 2901, 2909-2910, 2946.) When the officers reached the threshold of the door, appellant had stopped inside the foyer, his back toward them. Appellant’s hands were in his pockets and he was “gazing inward . . . .” (15RT 2797; 16RT 29102911, 2913.) Standing in the doorway, Officer Cardella saw Clarkson slumped with blood on her chest as depicted in a photograph later taken of the scene. (15RT 2813-2814, 2853-2854; Peo. Exh. 20.) Two or three more times, Officer Cardella ordered appellant to take his hands out of his pockets and put them into the air. Appellant turned around and saw the officers but did not comply with these commands. Corporal P., who was behind Officer Cardella, used his Taser on appellant. The Taser did not work; appellant was not subdued. So, the officers rushed into the foyer and charged appellant in single file with Officer Cardella in the lead. (15RT 2797-2798, 2809-2811, 2848-2849; 16RT 2911-2913, 2946, 2948.) When Officer Cardella entered the house, he heard “weird” organ music playing throughout. (15RT 2818-2819; 17RT 3117.) In front of the entrance, Officer Cardella hit appellant with the shield in order to knock him off balance, causing appellant to fall backwards onto the ground. When doing so, Officer Cardella veered to the left because he wanted to push appellant away from Clarkson’s body and not have anything fall on or disrupt it. The officers jumped on appellant to subdue him, taking him toward the staircase to the left of Clarkson. Appellant passively resisted while being handcuffed. There were further police commands, “Give me your hand, stop resisting, give me your hands.” It

29

took some effort to get one of appellant’s arms from beneath him. At about 5:42 a.m., Corporal P. managed to subdue appellant and get him in handcuffs. (15RT 2798, 2811-2812, 2814, 2816, 2849, 2878; 16RT 29132918, 2951-2952.) Turning his attention to Clarkson, Officer Cardella approached her and noticed that she was not breathing. Officer Cardella said, “Are you okay? Are you okay?” Officer Cardella checked Clarkson’s pulse without moving her arm by gently feeling her left wrist with three fingers. Officer Cardella found Clarkson’s wrist cool to the touch with no pulse. (15RT 2814-2815, 2849, 2853, 2866-2867; 16RT 2918-2919; Peo. Exh. 32.) D. The Crime Scene

About 10 feet away from the back door, on the right, Clarkson’s body was in the foyer seated in a small chair up against the wall, slouched or slumping with the top of her back against the top of the back of the chair, and the middle of her back not touching the chair. (16RT 2980-2981, 3018, 3060-3061, 3063; 17RT 3257; 21RT 3992; Peo. Exhs. 16, 18-20, 22, 24, 26, 27, 32.) Her head was forward and slightly cocked to the left. (15RT 2813-2814, 2853-2854; 16RT 2983, 3020-3022, 3034-3035; 17RT 3258; 19RT 3643; Peo. Exhs. 32, 37.) Her legs were extended straight out in front of her, some distance apart. (14RT 2538; 15RT 2584; 16RT 2982, 3080-3081; 17RT 3257; 19RT 3641; 24CT 6112-6113, 6123-6125, 6139, 6267-6271, 6279, 6287, 6293-6294; Peo. Exh. 20.) Clarkson’s heels were on the ground and the remainder of each foot was slightly elevated off the floor. (16RT 3069; 19RT 3641.) Clarkson’s left arm hung by her side, her left hand curled in between the arm of the chair and her body. Her right hand was draped over the right arm of the chair, resting on a purse. (16RT 2982; 17RT 3257-3258; Peo. Exh. 20.) There was a large amount of blood on her, including, on the backside of each wrist at the joint, opposite the

30

palm, fine, red, mist-like drops of blood in an approximately two- to threeinch radius. (17RT 3263-3267; 18RT 3382-3383; 19RT 3641; Peo. Exh. 35; see also 32RT 6312-6313; Peo. Exh. 36.) The long black straps of Clarkson’s purse wrapped around her right shoulder. On the right-hand arm of the chair, the purse straps twisted and crossed so that the front of the purse was facing rearward. (16RT 30653067; 17RT 3270; Peo. Exhs. 27, 29.) The purse itself rested on the floor. (16RT 2982; 17RT 3720; Peo. Exhs. 20, 101.) Underneath Clarkson’s left calf, there was a blue steel, .38-caliber, six-shot, two-inch barreled, Colt Cobra model revolver. (15RT 2814-2816, 2850; 16RT 2919-2920, 2952-2953, 2963, 3081, 3085; 17RT 3091, 3258; 21RT 3992; Peo. Exhs. 37, 38A, 148.) The revolver was loaded with five, live, Smith and Wesson, 38-caliber rounds, and one live Speer round. (16RT 3081-3084; 17RT 3104; Peo. Exh. 38-B.) There was also one spent .38-caliber cartridge in a chamber directly underneath the hammer. The gun was bloody. (16RT 3081-3084.) Next to Clarkson, there was a bureau with a drawer about an inch open containing a brown, leather Hunter holster for a two-inch revolver. The revolver under Clarkson’s left ankle and calf area fit this holster. There were additional guns, ammunition, and holsters in the house. (15RT 2852-2853; 16RT 2958-2959, 3084-3086; 17RT 3089-3091, 3093-3097, 3099, 3103-3106; 19RT 3467; Peo. Exhs. 62, 63, 149-151, 153, 154.) About six feet to the left of Clarkson, there was a valise on a chair in the foyer with the initials “PS” on it. Inside the valise, there was a threepack (“blister pack”) of Viagra. Only one of the three pills in the blister pack remained. (16RT 3063; 17RT 3113-3115, 3134; Peo. Exh. 41.) In all, there were 14 telephones in the house, including two cellular telephones attached to the outside pockets of appellant’s valise, all in

31

working order. Three of these phones were in the same room as Clarkson. (16RT 3063; 17RT 3115-3116, 3130-3135; Peo. Exhs. 46, 47, 64.) In a formal living room to the right of the foyer, it was very dark, the only light coming from some candles on top of the fireplace. There was a coffee table with a brandy snifter glass containing alcohol and an almost empty bottle of tequila. (17RT 3117; Peo. Exhs. 15, 16, 17.) In a small, three-quarter bathroom up a set of stairs on a landing to the left, there was a matching brandy snifter glass with a very small amount of alcohol. On the floor of the bathroom, there was one white cotton Curitybrand diaper covered with blood on both sides and soaking wet, probably with water. The diaper was about 10 inches in front of an open toilet. (17RT 3118-3121; 18RT 3345-3346; Peo. Exhs. 50, 53.) In the middle of the floor in a large dressing room on the second floor in the east wing, there was a crumpled white jacket with very fine apparent blood spatter stains on the front left cuff. The jacket was not folded or hung up neatly. (17RT 3126-3132; 18RT 3346-3350; 19RT 2723-2724; Peo. Exhs. 58, 59, 106.) E. Evidentiary Analysis 1. The Autopsy

Los Angeles County Department of Coroner Deputy Medical Examiner Dr. Louis Pena conducted the autopsy on Clarkson’s body and concluded that Clarkson died from a single gunshot wound of the head and neck. The bullet entered through Clarkson’s mouth, nicked the upper side of her tongue, went from the front to the back of her throat, causing damage to her soft palate, hit her spinal cord, tearing it from the brain stem and cutting it in half, went to the base of her skull, and lodged there. (21RT 4001-4004, 4011-4013, 4016; 24RT 4750, 4752, 4756-4757; Peo. Exhs. 68, 72.) The trajectory of the bullet was front to back and slightly upward.

32

(21RT 4006-4007.) The recoil from the weapon fractured and shattered Clarkson’s two upper front teeth called central incisors. (21RT 3995, 4024.) On the left side of Clarkson’s tongue, there was a recent bruise consistent with blunt force trauma that could have been caused by the barrel of the weapon but not by the bullet. There were bruises on Clarkson’s left hand, right wrist, and right forearm, occurring during the same event and up to 12 hours before she died. These bruises were consistent with resistance or struggle and were possibly caused by blunt force trauma, which includes being grabbed or struck. (21RT 4014-4015, 4029-4038; Peo. Exhs. 70, 71.) 2. The Orientation of Clarkson, Appellant, and the Gun

Dr. Lynne Herold, a forensic scientist with the Los Angeles County Sheriff’s Department crime lab working with trace physical evidence, concluded that at the time Clarkson was shot, she was seated in the chair in the position that she was first photographed in, her head and torso back against the back of the chair, with the exceptions that her head was slightly to the right instead of to the left, and that her shoulders and arms were forward in front of the plain of her mouth. (25RT 4850-4851, 4894, 4897, 4899-4902, 4930-4931 4947, 4963, 4980, 4996-4998; Peo. Exhs. 20, 21.) When the gun discharged, Clarkson’s purse was also in the same twisted position as later photographed. (25RT 4925-4927, 4960, 4964, 4968, 4984; Peo. Exh. 27.) Someone other than Clarkson had to have smeared blood on her face and hair with an object that acquired blood from her bleeding. (25RT 4903-4904, 4906.) More than likely, the diaper was first wetted with water and then applied to Clarkson’s face, which was the only source of blood on the scene. It takes at least five minutes, and possibly as long as 15 minutes,

33

for blood to clot; this amount of time passed between the shot and Clarkson’s face being wiped. (25RT 4911-4912, 4932.) If Clarkson were holding one or both of appellant’s hands at the time that the gun was discharged, and there was spatter on the back of her hands, this could account for the spatter pattern at the scene. (25RT 5063.) There was also smeared blood on the wooden part of the grip of the gun. That there was no blood under the carpet beneath the gun suggests that the blood on the gun was dry when it was placed in that area. (25RT 4998-5001, 5005-5006, 5012.) Something removed the blood on the left, right, top, and bottom of the gun. (25RT 5019-5021, 5027.) There was blood spatter and submillimeter, mist-like staining on appellant’s white jacket. Contact transfers were present on the right and on the button area of the left side of the jacket. (25RT 5046-5050; Peo. Exh. 106.) Based on the bloodstain patterns on appellant’s jacket, he was slightly to the right of Clarkson and within two to three feet of the discharging weapon and her mouth, the source of blood, at the time the gun discharged, such that the left panel of the jacket was exposed to a high energy back spatter event. (25RT 4895, 5059-5062.) When the gun discharged, it was oriented in a normal, upright shooting position. Appellant’s left arm was raised and extended toward Clarkson’s mouth. The barrel was in Clarkson’s mouth and the front sight of the gun was at least behind her front teeth. (25RT 4894-4895, 4930, 5031-5032, 5062-5063.) F. Clarkson’s Activities and Plans Prior to the Murder 1. Work, Taxes, Modeling, Autographs, and Friends

On October 2, 2002, Clarkson, an actress and model, signed with a new theatrical agent, Ray Cavaleri. (27RT 5493.)

34

On January 9, 2003, Clarkson and her mother Donna Clarkson picked up 200 copies of photo headshots of Clarkson for modeling and acting jobs. Clarkson had an upcoming modeling job for a print advertisement with Siemens, a mobile cell company, and the photo shoot was scheduled for February 8, 2003. (27RT 5490-5495; Peo. Exhs. 228, 229.) Clarkson also owned a company called Living Doll Productions that she ran a website for. Sometime after Clarkson died, her mother received paperwork indicating that Clarkson had successfully incorporated it. (27RT 5490.) On the night of Friday, January 31, 2003, Clarkson went to work at the House of Blues. (27RT 5483.) On the morning of Saturday, February 1, 2003, Clarkson attended a science fiction convention called Comic-Con. Having acted in the movie Barbarian Queen, she signed autographs and interacted with her many fans there. Clarkson enjoyed doing this. That evening, Clarkson went to work again at the House of Blues. (27RT 5483-5485.) On Sunday, February 2, 2003, Clarkson made plans to attend a party that her good friend Anne Marie Donahue was throwing for her husband Lee. Clarkson wrote on the RSVP of the Evite, “Can’t wait, XOXO, Lana.” (27RT 5492-5493; Peo. Exh. 200.) Also on February 2, 2003, Clarkson and her mother, who were very close, made plans to have lunch. Clarkson also told her mother that she needed to go shopping to buy flat shoes for work. They did not end up having lunch because Clarkson had to be at the House of Blues for work at 6:00 p.m. Clarkson and her mother went shopping, however, and Clarkson

35

ended up buying eight pairs of flat shoes, which her mother paid for.5 At some point, Clarkson mentioned to her mother that she was supposed to be an emcee for an awards show in the Foundation Room at the House of Blues that evening. Clarkson was excited about being an emcee, as she typically was about such things. (27RT 5482-5483, 5485-5487.) Shortly after 5:00 p.m., Clarkson said goodbye to her mother. Clarkson was supposed to call her mother the next day, Monday. Clarkson said, “Thank you for the shoes, Mom. I love you. I’ll call you tomorrow.” (27RT 5487-5488.) On Monday, February 3, 2003, Donna Clarkson was at home with her other daughter and son present. Detectives called Donna Clarkson there and notified her that Clarkson had been killed. After finding out that Clarkson had died, Donna Clarkson went inside Clarkson’s home with the homicide detectives. Clarkson’s tax documents were organized in several individual stacks of phone bills and various receipts. Clarkson had a tax appointment with her accountant on February 4, 2003, and it appeared that she had gotten ready for it. (27RT 5488-5490.) 2. Preparing for an Infomercial

On January 22, 2003, Clarkson was hired as a participant in an infomercial for the “Lateral Thigh Trainer.” Actors and actresses that participate in infomercials get exposure in the entertainment industry. Before the infomercial, Clarkson was required to adhere to a workout schedule with a trainer for a month. Asked for updates on two or three occasions, Clarkson told the associate producer, Tabitha Stowell, that she

The shoes that Clarkson was wearing when she died were one of the eight pairs that she and her mother had purchased while shopping the day before. (27RT 5489.)

5

36

was going to the workout as required, and appeared committed to the program. (27RT 5472-5479; Peo. Exh. 227.) On Friday, January 31, 2003, Clarkson told Stowell that she would not be at the workout location that weekend because she had to work but that she would return to train on Monday, February 3, 2003. (27RT 5480.) On February 3, 2003, Stowell learned that Clarkson was killed. Clarkson was scheduled to do the infomercial for two days beginning on February 17 or 18, 2003. (27RT 5479-5481.) II. DEFENSE EVIDENCE A. Challenge to the Assault on Dorothy Melvin 1. Distraught About Appellant

Nicole Spector, appellant’s 26-year-old daughter, testified that when she was 17 or 18 attending a university in New York, Dorothy Melvin told her that she wanted to resume contact with appellant and that she was distraught because appellant did not reciprocate her desire to stay in contact. When Nicole Spector testified in the first trial, she was aware that Melvin had testified. In the second trial, for the first time, Nicole Spector testified that she had maintained a relationship with Melvin while in New York. (31RT 5998, 6004-6005, 6007-6009.) 2. Melvin’s Police Interviews

When Detective Richard Tomlin interviewed Dorothy Melvin, she did not refer to appellant ordering her to go upstairs. Melvin told Detective Tomlin that appellant struck her twice with a gun, causing her to bleed and leaving lacerations, but the earlier police report with Pasadena police did not state that Melvin had been hit with a gun or bled, and the reporting officers did not remember Melvin saying that she had been hit or had injuries. (38RT 7358-7361.)

37

Detective Tomlin’s interview of Melvin on February 19, 2003, was for 45 minutes to one hour and involved less extensive questioning than during her testimony at trial. (38RT 7426-7427.) Because Melvin did not want to pursue charges in order to avoid bad publicity for Joan Rivers, the Pasadena officers had reclassified the report from a crime report to a suspicious circumstances report. (38RT 7433-7434.) A suspicious circumstances report would not be expected to include allegations that a person had been backhanded twice with a gun, had a shotgun pointed at her, and had sustained injuries. (38RT 7438.) B. Challenge to the Assault on Stephanie Jennings

During an interview on January 5, 2004, Detective Richard Tomlin never asked Stephanie Jennings how, when she made the 911 call, she was able to pretend that she was calling her mother when the record of the call reports her having given her first and last name to the operator. (38RT 7377-7379, 7418.) During the interview with Detective Tomlin and later in her trial testimony, Jennings did not state that she was pretending to call her mother, just that she believed that appellant thought that she had called her mother. (38RT 7419-7422.) C. Challenge to Adriano De Souza’s Testimony 1. Inconsistency of De Souza’s Account

When De Souza said during the 911 call, “He have a lady on the floor,” he was in an extremely stressful situation and was breathing heavily from having witnessed a horrific event. In Detective Tomlin’s experience, a caller like that does not get everything exactly right and is just trying to blurt out information, saying, in essence, “I need help. Please come.” (38RT 7491, 7493.)

38

In De Souza’s statement to Officers Kennedy and Pineda, after he had had time to calm down, he correctly described Clarkson’s body as being half in the chair and half on the floor. De Souza was never allowed back to the crime scene to observe how Clarkson was slumped in the chair. (38RT 7458-7459, 7489, 7501-7502.) When De Souza said, “I think so. I think -- I’m not sure. It’s my English,” Detective Tomlin did not understand De Souza to be expressing some doubt that he heard appellant’s statement incorrectly because of De Souza’s English. Detective Tomlin understood De Souza’s statement to mean that he was not sure that he was explaining himself correctly to Detectives Tomlin and Fournier and that he was not sure that they understood what he was saying. (39RT 7534-7535.) 2. Eyewitness Unreliability

According to Dr. Elizabeth Loftus, a psychologist specializing in human memory and particularly in eyewitness testimony, a person’s memory can be altered by an internal process of rethinking what the person heard, by the power of suggestion, or by the listener’s feedback. (45RT 8811, 8817-8818, 8838-8843, 8915.) If a person accurately heard information, and immediately relayed it, this would be more reliable than if the person relayed it six months later. (45RT 8862.) The relationship between confidence and accuracy has a relatively weak positive correlation although some studies do find a higher correlation. (45RT 8843-8844, 8867, 8873-8874, 8880.) D. Challenge to the Coroner’s Finding of Homicide 1. Dr. Lakshmanan Sathyavagiswaran

Dr. Lakshmanan Sathyavagiswaran, the Chief Medical Examiner and Coroner for the County of Los Angeles, testified that in a meeting on

39

February 26, 2004, members of the district attorney’s office expressed concerns to him regarding the collection of evidence in this case. (28RT 5597-5602; 32RT 6290, 6294-6295; 33RT 6322, 6329.)6 On March 23, 2004, in a meeting with his staff, Dr. Lakshmanan confirmed that none of the evidence was compromised by the collection procedures. (28RT 56025615, 5625, 5628; 32RT 6297-6299, 6307-6308; 33RT 6321-6330; Def. Exh. 609.) Dr. Lakshmanan found no evidence suggesting prior suicide attempts, prior suicidal ideation, prior suicidal threats, or prior psychiatric history, only normal psychological depression after Clarkson had fractured her wrists and sometimes over the holidays. (32RT 6284-6285.) In Clarkson’s medical questionnaire, she left unchecked where it asked, “Are you suffering from hopeless outlook, work or family problems, considered suicide, desired psychiatric help?” (32RT 6287; Peo. Exh. 170.) Clarkson also wrote on the questionnaire, “I am healthy, exercise, am happy, positive and successful. I’m pretty much a vegetarian, and I don’t do drugs anymore.” (32RT 6287-6288.) During Dr. Lakshmanan’s tenure in the Los Angeles County Coroner’s Office, he has never referred out a psychological autopsy in a case where someone at the scene of the death admitted to firing the fatal shot. (33RT 6350.) To determine whether a fatal gunshot wound was due to suicide or homicide, all medical examiners, including Dr. Lakshmanan, base their conclusions on the totality of the circumstances including the forensic evidence, the crime scene investigation, and any statements made by key witnesses. (32RT 6246-6249; 33RT 6334.) Dr. Lakshmanan today stands Apparently for ease of reference, both parties referred to Dr. Lakshmanan Sathyavagiswaran as Dr. Lakshmanan, which he testified was “fine.” (28RT 5583; 32RT 6234.) Appellant continues this practice on appeal (AOB 16, fn. 9) as will respondent.
6

40

by his conclusion that this was a homicide. (33RT 6361-6368, 6371-6375, 6377-6379, 6381-6383.) 2. Dr. Werner Spitz

Dr. Werner Spitz, a forensic pathologist from Michigan, concluded that Clarkson died as a result of suicide from a self-inflicted gunshot wound, not as a result of homicide. (33RT 6475-6476, 6480; 34RT 6500, 6514-6515, 6523-6524, 6538, 6544-6545.) Intraoral gun wounds are suicidal 99 percent of the time. (34RT 6501-6503, 6513, 6596.) There was no evidence suggesting that the gun was forced into Clarkson’s mouth or that Clarkson struggled. (34RT 6505, 6521.) The alcohol present in Clarkson would have caused her to have some reduced inhibitions. (34RT 6510-6512.) Dr. Spitz does not know how Clarkson held her hands when she shot the gun into her mouth. (34RT 6628-6629.) Dr. Spitz would have “no quarrel” with the testimony of defense blood spatter expert Stuart James that Clarkson’s blood on her face was already clotted before it was transferred to the diaper. (35RT 6659-6660.) Dr. Spitz is not a blood spatter expert, and was not aware of or did not consider James’s testimony that at least a portion of the impact stains on appellant’s jacket was from the source of the gunshot wound, or Dr. Spitz’s and prosecution blood spatter expert Dr. Lynne Herold’s testimony that appellant was within arm’s length or two to three feet from Clarkson’s mouth when the gunshot was fired. (35RT 6664-6672.) 3. Dr. Vincent James Di Maio

Dr. Vincent James Di Maio, a medical doctor specializing in gunshot wounds, and formerly the Chief Medical Examiner for Bexar County in Texas, concluded that beyond a medical doubt, Clarkson’s intraoral

41

gunshot wound was self-inflicted. (39RT 7641-7642, 7688; 40RT 76907691.) The four factors that led Dr. Di Maio to this opinion were also consistent with a homicide. (40RT 7770-7771, 7782-7783, 7785-7786, 7808, 7810, 7821-7822, 7827, 7834-7836.) If the blood spatter evidence proved that Clarkson could not have been holding the gun, Dr. Di Maio would find this to be a homicide. (40RT 7836.) 4. Dr. Richard Seiden

Dr. Richard Seiden, a psychologist specializing in suicidology, the study of suicide and its prevention, testified that it was not possible to rule out suicide as a cause of Clarkson’s death. (42RT 8227, 8230; 43RT 8330, 8405, 8467; 44RT 8547.) Dr. Seiden also could not rule out homicide as a cause of Clarkson’s death. (43RT 8331-8332, 8405; 44RT 8577-8578, 8582, 8633.) Dr. Seiden’s opinion was that no one knows for certain what happened. (44RT 8558.) In reaching his opinion that it was not possible to rule out suicide, Dr. Seiden did not interview any witnesses, anyone from Clarkson’s family, any of her friends, or anyone that worked with her. (43RT 8417, 8430.) Dr. Seiden did not consider any physical evidence at the crime scene, that the scene may have been manipulated, or where appellant was in relation to Clarkson. Dr. Seiden also did not consider any statements of witnesses at the crime scene. (43RT 8467-8498; 44RT 8547-8548, 8558, 8561.) Although he was aware of the witness’s statement that appellant emerged from the foyer gun in hand and confessed to firing the fatal shot, Dr. Seiden did not factor this into his opinion. (44RT 8562.) In his 40 years studying suicides, Dr. Seiden never has seen a case of, and knows of no statistics involving, a woman that committed suicide in the home of a stranger using the stranger’s gun. (43RT 8403-8405.)

42

E.

Challenge to the Blood Spatter Conclusions 1. Stuart James

A forensic scientist specializing in bloodstain pattern analysis, Stuart James testified that it could not be determined what position Clarkson was in at the moment of the shooting. (29RT 5712, 5795-5797, 5804.) One source of the staining on appellant’s jacket could be satellite spatter dripping from either the armrest or the cushion of the chair. The pattern on appellant’s jacket was not just from satellite spatter, however, and arose, at least in part, from the gunshot event. (29RT 5821-5822; 30RT 5945, 5950.) 2. James Pex

James Pex, a forensic scientist experienced in the field of blood spatter, gave a number of opinions directly contrary to the prosecution evidence. To support his conclusions, Pex testified and demonstrated that in an experiment conducted on October 14, 2008, he fired a Colt Cobra in a normal grip and got back spatter on his fingers, which prevented the medallion of the gun from getting any blood on it. The medallion on the gun in this case, by contrast, was full of blood. (36RT 7019, 7022; 37RT 7122; Def. Exh. 626.) On September 3, 2008, Pex had conducted experiments with a different gun, a Smith & Wesson model 36. The photographic slide used to demonstrate the Colt Cobra after being fired in the October 14, 2008 experiment was actually the photograph of the Smith & Wesson from the September 3, 2008 experiment. (37RT 7125-7130; Peo. Exh. 268.)7

Dr. Di Maio later testified that the grip, frame size, configuration of the grip, shape of the trigger guard, size of the cylinder, ejector rod, and (continued…)

7

43

F.

Challenge to the Collection of Evidence at the Crime Scene

In Officer James Hammond’s report, he recorded the gun under Clarkson’s left calf as pointing east, but the south or southwest direction reflected in the crime scene photographs was actually the position where he saw the gun. (40RT 7644-7668, 7672-7677; Peo. Exhs. 261-265; Def. Exhs. 533, 638.) Officer Hammond mistakenly wrote east in the report. (40RT 7677.) G. Challenge to Clarkson’s Mental State 1. Cast as Marilyn Monroe in “Brentwood Blondes”

On December 2002, Clarkson was cast for the part of Marilyn Monroe in an equity waiver play in Los Angeles that John Barons wrote called “Brentwood Blondes.” (37RT 7165-7173, 7199.) Clarkson agreed to do the play not for the money (the actors were paid $5 each per performance) but because she loved the play and loved acting. (37RT 7167-7168, 7209.) During a rehearsal of the play in Barons’s apartment, he and Clarkson read through the first scene, which was about suicide. Playing the “Pool Boy,” Barons delivered the line, “Look on the bright side. On the bright side is suicide.” Clarkson joked, “God, I can relate to that,” which Barons interpreted as Clarkson appreciating the play. Clarkson never displayed any suicidal tendencies; she was not a “Good-bye cruel world” type of person. (37RT 7183-7185, 7192-7194.) While exploring the topic of suicide during this rehearsal, Barons made another joke about committing suicide in Hollywood, after which Clarkson joked, “Find a bridge if you don’t make it by 40.” Despite this (…continued) front sight are all different on the Smith & Wesson than the Colt Cobra. (40RT 7766-7767.)

44

joke, when an aspiring actor later asked on her website for advice on whether there is “ever really a cut-off point to pursue a career in acting,” Clarkson responded, “In my opinion, you can be an actor at any age.” She also wrote, “I’ve been working as an actor, studying my craft, and continuing to pursue my dreams for many years now. This, contrary to what some would advise. They don’t understand my passion and commitment. Don’t let anyone discourage you no matter what. Go for it.” (37RT 7183, 7195-7197.) On January 9, 2003, Barons telephoned Clarkson to say that he was going to replace her. Clarkson took a few moments, was gracious, did not get mad or yell, and got off the phone shortly. About one week after he let her go, Barons received a card from Clarkson. He did not read the card until about a month and a half later, after the play was over and she had died. Clarkson wrote, “Thank you, John, for bringing Marilyn to life for me in such a beautiful way. All the best of luck with the show. Your dreams. With love, Lana.” Barons posted the card on his website that he used to promote his play, which he later rewrote to focus mostly on Clarkson. (37RT 7178-7179, 7188, 7199, 7208-7209, 7212-7214, 7216; Peo. Exh. 256.) 2. E-mails Referencing Depression

After Clarkson’s death, there were 3,553 deleted and nondeleted emails in the in-box of Clarkson’s computer, and 1,932 e-mails sent. A search did not reveal any e-mail mentioning the word “suicide.” (37RT 7228-7229, 7241.) On August 2, 2002, Clarkson received an e-mail from the Screen Actors Guild stating that in conjunction with Cedars-Sinai Medical Center, the union would be providing depression and alcohol dependence screenings with an RSVP date of June 9, 2002. This was a mass e-mail that

45

was sent to those persons on the Screen Actors Guild mailing list. There is no indication that Clarkson ever solicited, opened, read, deleted, or responded to this e-mail. (37RT 7231, 7237, 7239-7242.) In an e-mail addressed to “Angel Friend” (Peter Anderson) on December 16, 2002, Clarkson wrote that she was offered a role as Marilyn Monroe in “Brentwood Blondes” and was excited about it but was “beat after tidying up my pad. I really trashed it in the midst of my depression. Trying to hold my head up high and know that God and Amp Guru has many wonderful things in store for me and us all.” (37RT 7231-7232; Def. Exh. 576.) On the same day, she wrote an “honest and hopeful” e-mail extending an invitation to see the movie Solaris, and stating that she was “on the verge of losing it all. Just hanging on by a thread. Would it be a hassle to send me the JPEG of the blue shirt photo? I have been submitting myself for lots of stuff on Craig’s List. . . . Merry Christmas and Happy New Year to you and Miss Mandy. Let me know about the Thursday. [¶] Thanks for all. Let’s pray for a fabulous pilot season and then the double-flow. XOXO, Lana.” (22RT 4344-4345; 23RT 4546-4548; Def. Exh. 575.) 3. Financial Difficulties

In the summer of 2002, David Schapiro, a writer and producer, became friends with Clarkson after meeting her in a writers and actors group. (37RT 7248-7251.) Clarkson expressed frustration about her acting career and mentioned that it was very difficult once an actor hits 40. (37RT 7254-7255.) Schapiro considered Clarkson to be charming, vivacious, and “the bright-shining part of the room when she would walk in.” (37RT 7284.) Clarkson, as “sometimes actresses can be,” was prone to overdramatize both the ups and downs of life. (37RT 7287-7290.)

46

In an e-mail that Schapiro received from Clarkson on October 25, 2002, at 4:58 p.m., she stated that “the depression level I am experiencing, due to major financial difficulties, makes me feel extremely spent and worn-out.” (37RT 7259-7261; Def. Exh. 573.) Sometime after this e-mail, during a dinner, Schapiro agreed to lend Clarkson some money. (37RT 7256-7257, 7266-7269.) Schapiro believed that Clarkson was being overdramatic and did not believe that she had fallen into a major depression. (37RT 7289-7290.) In an e-mail that Schapiro received from Clarkson on December 8, 2002, at 9:23 p.m., she followed up with him about his offer to lend her $200, stating, “I’m truly at the end of this whole deal. I’m going to tidy up my affairs and chuck it because it’s really all too much for just one girl to bear anymore. Don’t worry, not before I pay you back.” (37RT 72697270; Def. Exh. 572; see 23RT 4541-4543 [entire e-mail indicating this language was a “joke”].) Schapiro took these comments as Clarkson being overdramatic, not as a cry for help, a call for suicide, or a suicide note. (37RT 7294-7296.) Schapiro wrote for Clarkson to let him know when she wanted to pick up the money, and did not try to convince her not to commit suicide because that was not what she meant. (37RT 7271, 7295.) Eventually, Schapiro decided not to lend Clarkson any money. Upon learning this, she wrote in an e-mail, “Great. I promised them I would have $200. I was supposed to deliver it to them this afternoon. That is why they gave me the leeway. You said you would help me, David. I will most definitely be evicted now. Thanks. Happy Holidays.” Schapiro believed that Clarkson was being overdramatic and that she was not so depressed as to harm herself. (37RT 7272-7274; Def. Exh. 634.)

47

4.

Making Show Business Connections

In 2001, Eric Poticha, then-vice-president of development at Fox Television Studios, became Clarkson’s friend and mentor. Poticha reviewed a demo reel videotape of Clarkson’s work that she sent him called “Lana Unleashed” as well as a one-woman play that she had written. Poticha thought that Clarkson had talent and found the video clever and charming. Clarkson was persistent and goal-oriented and pursued her career in a “clever and classy manner” without being pushy. Poticha promised Clarkson that he would help her search for a show. (38RT 73067310, 7317-7319, 7324-7325, 7337.) Working at a well-known place like the House of Blues would be very helpful for someone trying to break into show business because this was “fertile ground” to meet powerful industry persons. If an aspiring actress met a person powerful in the music, television, or movie business in a club like the House of Blues, and that person asked the actress to come have a drink with him, it would be almost “malpractice” to refuse. (38RT 73207322.) There is no stigma in the industry against actresses over 40, in that in almost every project, there needs to be a cast with a fair representation of persons from the community at large. As a result, there are many working actors far beyond the age of 40. (38RT 7330-7331.) 5. Falsely Signing a Letter

In 2001, Marc Hirschfeld, then the executive vice-president of casting for NBC Entertainment, had known Clarkson for 20 years, cast her in “Who’s the Boss,” and thought well of her as an actress and as a person. After seeing Clarkson’s demo reel in 2001, Hirschfeld wrote an encouraging letter to her praising the reel and telling her that she was a terrific actress. Hirschfeld thought that Clarkson had talent and was

48

someone that he would keep in mind for projects. (38RT 7464-7467, 74777478, 7483-7486.) A letter dated August 28, 2001 was addressed to Clarkson and signed under the name Marc Hirschfeld. Hirschfeld did not write the letter and was disappointed, but not stunned, to learn that Clarkson had written this letter and signed his name. Clarkson’s letter stated that she was a “beautiful woman and talented performer” and that Hirschfeld would be willing to bring a videotape to the attention of the president of casting if she could get a “finished product” to him. (38RT 7468-7477; Def. Exh. 607.) The point of this letter was to “hurry up” and complete the videotape so Hirschfeld could give it to his superiors. (38RT 7482-7483.) 6. Intoxicated and Despondent at Gregory Sims’s Party

Gregory Sims, an independent producer also in the music business, was a casual friend of Clarkson and a close friend of Punkin Pie Laughlin, who also knew Clarkson. (40RT 7891-7895; 41RT 8010.) Sims viewed Clarkson as a happy, upbeat, fun, bubbly person that he and others loved to be around. Clarkson worked hard and persevered in show business and had hopes and dreams of success. (41RT 7970-7972.) The Tuesday before Clarkson died on February 3, 2003, she went to a party at Sims’s hotel room in Century City and drank a lot of alcohol. At about 1:30 a.m. or 2:00 a.m., Clarkson was the last guest remaining and, while continuing to drink, had a conversation with Sims in which she cried about being very unhappy in her life. (40RT 7896-7909.) Clarkson talked about “sort of being at the end of her rope” and “not having a reason to live . . . .” Clarkson was as despondent as anyone he had ever seen. (40RT 7904, 7906-7908; 41RT 7982.)

49

During the first trial, Sims did not testify that Clarkson said anything about not having any reason to live or not wanting to go on. (41RT 79797981.) Instead, he testified in the first trial that Clarkson’s distress about not being further along in her career was not uncommon and that it was not unusual for people in show business to express feelings like Clarkson did. (41RT 7984-7986; see First Trial (“FT”) 47RT 8152-8154.) In the second trial, Sims acknowledged that he “added a level” to his description about Clarkson’s state on that night. (41RT 7986-7987, 8007-8008.) Sims placed bands to play at the Backstage Café in Beverly Hills. Sims did not know that two of the owners of the Backstage Café were Dan and Dave Kessel, who used to work as bodyguards for appellant. This was just a coincidence and had no influence on Sims’s testimony. Sims also had no ulterior motive in testifying based on appellant being an influential person in the music business. (41RT 8010, 8012-8014.) 7. Fragile and Exhausted

Jennifer Hayes-Riedl was a chef and designer that became close friends with Punkin Pie Laughlin and Clarkson shortly after Hayes-Riedl arrived in Los Angeles at the end of 1991. (41RT 8044-8049.) The year before Clarkson’s death in February 2003, Clarkson’s financial circumstances were “very dour” and she was having trouble paying her bills. (41RT 8058.) About two weeks before Clarkson died, she went to Hayes-Riedl’s house in Pacific Palisades needing to borrow work clothes. Clarkson had “this full-tilt meltdown”––she was extremely depressed about her job, her finances, her career prospects, and her broken wrists. In this conversation, Clarkson said that she was “at the end of [my] rope,” “I’ve had it,” and “What am I going to do now?” When Clarkson left, she was laughing. Near the end of Clarkson’s life, she was fragile and “absolutely exhausted.”

50

(41RT 8061-8062, 8067-8068, 8076-8077, 8079-8080, 8099-8101; 42RT 8176-8178.) Several months after Clarkson broke her wrists, she was very mad at Hayes-Riedl and did not see her or talk to her for a long time because Clarkson had given her the same baby present as someone else and HayesRiedl had not told Clarkson that her present was prettier. (41RT 80748075.) Hayes-Riedl’s e-mail address was not on the recipient list on Clarkson’s e-mail to 33 of her friends on January 6, 2003, entitled, “A Note to All My Girlfriends.” This e-mail announced her new job with the House of Blues as “their new first female ever door host for the V.I.P. Foundation Room.” Clarkson also stated in this e-mail that she was “looking forward” to the job, explained that “[i]’ts a night gig, so I don’t have to give up my day job of chasing my acting dreams,” and asked to borrow clothes from her friends. (41RT 8112-8114; 42RT 8179-8181; Peo. Exhs. 196, 284.) In the “thousands and thousands” of e-mails on the hard drive of Clarkson’s computer, not a single one was from or to Hayes-Riedl. Clarkson’s phone records did not reflect a single call between her and Hayes-Riedl. (42RT 8183-8185, 8204; Peo. Exh. 285.) 8. Calling a Psychologist

Dr. Mary Goldenson, a clinical psychologist, at some point received a telephone call from Clarkson about wanting to come in to see her. Clarkson said that her friends had recommended that she see Dr. Goldenson and that she wanted to work with Dr. Goldenson because her friends had. Clarkson never kept her appointment with Dr. Goldenson and never saw her. (44RT 8531-8536, 8538, 8540-8541.) Dr. Goldenson assists people with such matters as public speaking, relationships, individual growth, and career development. Clarkson never

51

told Dr. Goldenson what she was seeking her advice about. (44RT 85398540.) III. PROSECUTION’S REBUTTAL EVIDENCE A. Not Suicidal at Gregory Sims’s Party

In 2003, within a short time after the shooting, Lisa Bloom, an anchorwoman on Court TV (now True TV) and a CBS News legal analyst, spoke to her friend Gregory Sims. Sims told Bloom about his conversation with Clarkson about a week before she died. Sims said that Clarkson had stayed late at his hotel room party. Clarkson had gotten drunk, weepy, and sad, and they had talked for a long time. By the end of it, Clarkson felt better. Sims further told Bloom that Clarkson had acted “just like a lot of actresses in Hollywood when they have a down day and they get a little alcohol in them, they can be drama queens and, you know, get very sad and very upset, but by the end of it, she seemed to be better.” (44RT 84828485.) During this conversation, and later during the 2007 pre-interview and interview for Court TV, Sims stated that Clarkson absolutely was not suicidal at his party. (44RT 8484-8486, 8489, 8516.) The substance of the taped interview was the same as that of Bloom’s pre-interview and 2003 conversation with Sims. (44RT 8490-8492; see 41RT 7991-7992, 79998001, 8035; Peo. Exhs. 282, 283; 25CT 6339-6340.) Sims never said that Clarkson told him that she did not have a reason to live or that she talked about not wanting to go on. Such statements are inconsistent with the three conversations that Bloom and Sims had in 2003 and 2007. (44RT 85178518.) B. The Gun Was Not Disturbed On February 3, 2003, at about 1:30 p.m., when Detectives Steven Katz and Mark Lillienfeld arrived at the Castle to conduct the crime scene

52

investigation, the Colt Cobra was under Clarkson’s left leg as photographed. (45RT 8942, 8944-8945; Peo. Exh. 37.) At about 6:00 p.m., after photographs had been taken and the coroner’s team could view the gun in place, Detective Katz handled the Colt Cobra with gloved hands and described the gun while Detective Lillienfeld took notes. (45RT 89458947, 8950; Peo. Exhs. 38A, 38B.) No one handled the gun besides Detective Katz, who was at the scene until about 11:30 p.m. (45RT 89428943, 8945, 8950-8951.) C. Clarkson’s Professional Success and Positive Outlook

Nick Terzian, a talent agent specializing in commercials and print advertisements, represented Clarkson from most of the period from 1992 until her death in February 2003. Terzian believed Clarkson “definitely had that specific star quality.” Clarkson was driven and passionate––a talented, marketable, comedic actress. She had great timing and was suited for roles of characters in their late thirties. She had a very impressive resume with credits ranging from film, to television, to national commercials, and had worked with highly recognized and reputable directors. (46RT 8980-8981, 8984-8985, 8987-8999; Peo. Exh. 299.) Clarkson’s career evolved into character roles, such as one that she booked of a smart-aleck diner waitress in a nationally run commercial for K-Mart. Clarkson also had a part in an internationally run Mercedes commercial directed by Michael Bay. (46RT 8989-8991.) In around December 2001 and the beginning of 2002, Clarkson was severely injured with two broken wrists. For the year after that, while convalescing, Clarkson kept in touch with Terzian, checking in once every three months and updating him on what she was working on, what she was doing, and how she was coping with the injuries. In the fall of 2002, once Clarkson began to heal, she contacted Terzian with more interest in going

53

on auditions again. Clarkson was excited and wanted to resume her career. (46RT 8992-8993.) In September or October 2002, Clarkson auditioned for a print advertisement for Chesterfield Cigarettes in Spain and beat out close to 500 actors and models. In November 2002, she told Terzian that her injury was healed and that she wanted to continue going on auditions. Clarkson asked Terzian his opinion about an opportunity to work at the House of Blues as a VIP hostess. Terzian said that it was a “great idea” for her to “get back out there” and do “what she loved to do and just [be] mixing and mingling with the right crowd.” Terzian was effusive about it and said, “Are you crazy? Take that job.” (46RT 9001-9002.) Using one of Clarkson’s headshots, Terzian secured an interview for a print advertising job for Siemens, the international mobile phone company. Clarkson went on the audition on January 22, 2003. On January 31, the Friday before her death on February 2, Clarkson found out that she had gotten the job. Clarkson was overjoyed and even screamed with enthusiasm when she got the call from Terzian. The fitting for the Siemens job was scheduled for February 4, the photo shoot for February 8. (46RT 8999, 9003-9004; Peo. Exhs. 228, 292.) Clarkson always maintained a positive outlook on her career through her ups and downs. Clarkson had this same state of mind on January 31, 2003, three days before she died. (46RT 9005-9007.) ARGUMENT I. THE TRIAL COURT PROPERLY ALLOWED INTO EVIDENCE A DEPICTION OF ITSELF ON THE VIDEOTAPE OF A HEARING FROM THE FIRST TRIAL Appellant contends that the trial court improperly permitted the prosecution to introduce a portion of a videotaped hearing from the first

54

trial for the purpose of demonstrating where criminalist Jaime Lintemoot saw the blood spatter on Clarkson’s wrists. Not contesting the admission of Lintemoot’s prior testimony and visual demonstration, appellant instead complains that the evidence of the trial court’s participation in the examination of Lintemoot was inadmissible hearsay, infringed on his Sixth Amendment right to confront witnesses, and violated his state and federal constitutional rights to be present at the prior hearing and to have the trial judge not testify in his case. (AOB 45-64.) Appellant forfeited these appellate claims by failing to timely and specifically object at trial. Further, the trial court’s gestures and statements were not hearsay because they merely gave context and meaning to Lintemoot’s testimony. In turn, there was no confrontation clause problem because the trial court’s depicted conduct was not hearsay, and, moreover, because it was not testimonial. There was no violation of appellant’s right to be present at the prior hearing because he explicitly waived that right. And the trial judge did not testify; he helped elicit facts and clarify Lintemoot’s testimony. A. Factual Background

One important piece of physical evidence showing that Clarkson could not have shot herself was the testimony of criminalist Jaime Lintemoot that she saw blood spatter on the outside of the back of Clarkson’s wrists, in a circular area between the joint and middle of the wrist. The location of this spatter rendered it impossible for Clarkson to have been holding and pointing the gun during the discharge. It also supported the conclusion that the bruises on her wrists resulted from attempting to defend herself from appellant’s hand forcing the gun into her mouth.

55

Because of the significance of this evidence, appellant attempted to show that Lintemoot actually saw the blood spatter in a different area, namely on a more lateral portion of her hand near her thumb. To this end, during recross examination of Lintemoot, defense counsel asked, “And in both cases, with respect to both hands, the spots that you saw were on what you would now describe as the forward portion of my right hand, the forward portion of my left hand?” Lintemoot contradicted defense counsel, testifying, “Not the finger region.” Upon further questioning, however, Lintemoot agreed when defense counsel stated that the blood spots were located “above the webbing of the thumb opposite the palm . . . .” (18RT 3329-3330.) The prosecution later recalled Lintemoot to clarify where she saw the blood on the back of Clarkson’s hands. Lintemoot demonstrated the shape and location of the blood on the back side of Clarkson’s hands: in a circle with a two-to three-inch radius from the joint toward the middle of the wrist. Lintemoot testified that the blood spatter was not where defense counsel had pointed to during his cross-examination of her––the area around the web between the thumb and the index finger. Again crossexamining Lintemoot, defense counsel asked her whether she had earlier agreed with his description that the blood spatter was on the “web, back of hand, opposite of palm.” Lintemoot agreed that she had done so. (18RT 3382-3385.) Appellant next attacked the reliability of Lintemoot’s description of the location of the blood spatter on Clarkson’s wrists by eliciting testimony from Dr. Lakshmanan, the coroner in this case. (28RT 5583; 32RT 6234.) Dr. Lakshmanan testified that in a meeting with members of the district attorney’s office on February 26, 2004, he discussed potential errors by members of his staff regarding the collection of evidence, including Lintemoot’s failure to pinpoint the exact location of the collection of blood

56

on three swabs from Clarkson’s wrists and Dr. Pena’s failure to describe the blood spatter on Clarkson’s hands in his report. (28RT 5597-5602; 32RT 6290, 6294-6295; 33RT 6322, 6329.) In response, during cross-examination of Dr. Lakshmanan, the prosecution introduced a videotape of Lintemoot’s testimony during a hearing from the first trial about where she saw the blood spatter and collected the blood on Clarkson’s wrists. (32RT 6309-6311; Peo. Exhs. 243, 244.) On this videotape, Lintemoot testified in response to the prosecution’s questioning that the mist-like blood spatter was in a two- or three-inch radius on the outside of each of Clarkson’s wrists. (Peo. Exh. 244; 24CT 6300-6301.) With her right wrist facing away from the camera, Lintemoot demonstrated the location of the blood spatter, pointing with her left hand apparently to the middle of the back (dorsal area) of the right wrist. (Peo. Exh. 243.) The trial court on the videotape also questioned Lintemoot about the location of the blood and indicated on his left wrist the area that Lintemoot had demonstrated on her right wrist. Answering the prosecution’s and trial court’s questioning, Lintemoot clarified that she meant the “exterior” or “outside” of the wrist area. Again with her right wrist facing away from the camera, Lintemoot appeared to circle with her left fingers an area on the back of her right wrist from the middle toward the pinky side. (24CT 6300-6301; Peo. Exhs. 243, 244.) The prosecution later replayed this videotape during its cross-examination of the defense forensic pathologist Dr. Werner Spitz. (34RT 6620-6622, 6624-6626; Peo. Exhs. 243, 244.) B. Appellant Forfeited His Claims Regarding the Videotape by Failing to Make Timely and Specific Objections Below

“No procedural principle is more familiar to this Court than that a constitutional right, or a right of any sort, may be forfeited in criminal as

57

well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.” (United States v. Olano (1993) 507 U.S. 725, 731 [113 S.Ct. 1770, 123 L.Ed.2d 508], internal quotation marks omitted; accord, People v. Lewis (2006) 39 Cal.4th 970, 1028, fn. 19.) Under Evidence Code section 353, an appellate court may not set aside a verdict for incorrect admission of evidence where the complaining party failed to timely and specifically object on the asserted grounds. (Evid. Code, § 353. subd. (a).) Applying this statute, the California Supreme Court has “consistently held that the “defendant’s failure to make a timely and specific objection on the ground asserted on appeal makes that ground not cognizable.” (People v. Demetrulias (2006) 39 Cal.4th 1, 20, internal quotation marks omitted.) The court has emphasized that a defendant must comply with both requirements–– timeliness and specificity––to satisfy Evidence Code section 353: To satisfy Evidence Code section 353, subdivision (a), the objection or motion to strike must be both timely and specific as to its ground. An objection to evidence must generally be preserved by specific objection at the time the evidence is introduced; the opponent cannot make a “placeholder” objection stating specific or different grounds. (Id. at p. 22.) The case of People v. Demetrulias, supra, 39 Cal.4th 1, shows both requirements in action. There, the court held that the defendant’s motion to strike character evidence under Evidence Code section 1103 was insufficient to preserve that claim on appeal because, although specific enough, it was untimely, having been raised days after the evidence was produced. (People v. Demetrulias, supra, 39 Cal.4th at pp. 21-22.) The court also held that a relevance objection to the evidence, albeit timely made, was not specific enough to permit an appellate claim about character evidence. (Id. at p. 21.)

58

Here, appellant failed to timely and specifically object to the introduction of the videotaped depiction of the trial court on the grounds that it was inadmissible hearsay, that it violated his constitutional right to confront witnesses, that the trial court presided over and testified at the same trial, and that appellant was absent at the hearing on the videotape. His first objection was on February 3, 2009, before the prosecution first played the videotape during Dr. Lakshmanan’s testimony. At that time, appellant objected on the ground that it was irrelevant. (28RT 6309-6310.) Next, on February 4, 2009, when the prosecution played the videotape during Dr. Spitz’s testimony, appellant objected on the ground that “it draws you [the trial court] into the case as a witness.” (34RT 6624.) Then, on February 25, 2009, after Dr. Vincent Di Maio’s testimony for the defense, counsel moved to strike the videotape on the grounds that Lintemoot “actually has no expertise” to testify that she saw spatter and that “[t]he court then indicates the backs of the wrists. I don’t know why the court did that.” (40RT 7879, 7883.) Last, on March 19, 2009, after the close of evidence, during a hearing on the admission of exhibits, appellant objected to the videotape on the ground that it was hearsay and that the trial court made statements not subject to cross-examination under Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177]. (46RT 9107, 9140-9144; see also 24CT 6040-6041 [appellant’s letter of March 19, 2009, objecting to the Lintemoot video on confrontation clause grounds]; 46RT 9185 [appellant’s reiteration of his confrontation clause objection to the Lintemoot video at a further hearing on the admission of exhibits on March 20, 2009].) Appellant’s objection on relevance grounds when the videotape was first played was not specific enough to preserve his hearsay, confrontation/Crawford, and judge-as-witness claims on appeal. (People v. Tafoya (2007) 42 Cal.4th 147, 166 [confrontation]; People v. Demetrulias,

59

supra, 39 Cal.4th at p. 22 [hearsay]; Evid. Code, § 703, subd. (d) [judge as witness].) Moreover, appellant’s objection on hearsay and Crawford grounds during a hearing on the admission of exhibits 44 days later, after the close of evidence, was untimely. (People v. Demetrulias, supra, 39 Cal.4th at pp. 21-22 [a subsequent motion to strike days after the admission of the evidence is untimely].) Similarly, appellant’s objection that the videotape being played for a second time during Dr. Spitz’s crossexamination “draws you [the trial court] into the case as a witness” also was too late, coming after the supposed “testimony” of the trial court had already been heard the day before with Dr. Lakshmanan on the stand. (People v. Farnam (2002) 28 Cal.4th 107, 152-153 [the defendant’s objection is untimely where he did not make it when the same evidence was elicited from an earlier witness], citing People v. Barnett (1998) 17 Cal.4th 1044, 1122.) Last, appellant never specifically objected on the basis that he was not personally present during the videotaped hearing, probably because he had explicitly waived the right to be present for that hearing. (7CT 1538-1540; First Trial (FT) 11RT 1732; see Pen. Code, § 977.) Because appellant forfeited his appellate claims regarding the Lintemoot videotape, this Court should summarily reject them. C. The Trial Court’s Statements and Gestures on the Videotape Were Not Hearsay

Hearsay is an out-of-court statement that is offered to prove the statement’s truth; hearsay is inadmissible absent an applicable exception. (Evid. Code, § 1200.) “An out-of-court statement is properly admitted if a nonhearsay purpose for admitting the statement is identified, and the nonhearsay purpose is relevant to an issue in dispute.” (People v. Turner (1994) 8 Cal.4th 137, 189, disapproved on another ground in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.) A declarant’s statement is

60

nonhearsay when it places the declarant’s statements into context. (People v. Turner, supra, 8 Cal.4th at p. 190 [where the declarant’s statements “gave context and meaning to defendant’s admissions,” they were nonhearsay].) As one appellate court explained, “[I]t is the hearer’s reaction to the statement that is the relevant fact sought to be proved, not the truth of the matter asserted in the statement.” (People v. Scalzi (1981) 126 Cal.App.3d 901, 907, internal quotation marks omitted, cited with approval in People v. Turner, supra, 8 Cal.4th at p. 189.) “Evidence Code section 775 confers upon the trial judge the power, discretion and affirmative duty . . . [to] participate in the examination of witnesses whenever he believes that he may fairly aid in eliciting the truth, in preventing misunderstanding, in clarifying the testimony or covering omissions, in allowing a witness his right of explanation, and in eliciting facts material to a just determination of the cause.” (People v. Harris (2005) 37 Cal.4th 310, 350, internal quotation marks omitted.) In this way, the trial court carries out its “legitimate role” of “assisting the jury's understanding of the evidence.” (People v. Hawkins (1995) 10 Cal.4th 920, 948, abrogated on another ground in People v. Lasko (2000) 23 Cal.4th 101, 110.) Turning to this case, the trial court’s questions, clarifications, and gestures on the videotape of the prior testimony of Jaime Lintemoot were admissible for the non-hearsay purpose of giving context and meaning to Lintemoot’s responses.8 The first of the trial court’s statements, occurring
8

Appellant does not contend that Lintemoot’s videotaped statements themselves were inadmissible hearsay. And indeed, they permissibly fell within the “prior consistent statement of witness” exception given appellant’s challenges in the second trial to Lintemoot’s testimony about the blood spatter location. (See Evid. Code, § 791; 18RT 3298, 3329-3330, 3385-3389, 3393-3394.)

61

after Lintemoot testified to and demonstrated the location of the blood spatter on Clarkson’s wrists, was a clarifying follow-up question: “I would say it’s from -- if you take where the wrist joint is, the two to three-inch radius would be in a circle from that point. [¶] Would that be correct?” (24CT 6300, italics added.) While saying this, the trial court demonstrated the same location on its left wrist that Lintemoot had demonstrated on her right wrist. (Peo. Exh. 243.) After the prosecution stated, “The interior wrist, that portion of the wrist joint,” the trial court then offered a second clarifying question: “That’s the exterior, isn’t it? The interior would be this part, the exterior would be where she was pointing.” (24CT 6300, italics added.) During this question, the trial court pointed to the front of its wrist to demonstrate the interior portion of the wrist, and the back of the wrist to demonstrate the exterior portion of the wrist. (Peo. Exh. 243.) The prosecutor then clarified, “Actually, I was making a differentiation between this part of the joint and that part of the joint.” (24CT 6300.) While stating this, the prosecutor pointed to the part of the outside of his wrist closer to the radial (thumb) side and then to the part of the outside of his wrist closer to the ulnar (pinky) side. (Peo. Exh. 243.) In response, the trial court then made its third interrogative statement, directly asking the witness Lintemoot to settle the record on this issue: “Why don’t you show us. That would be the best,” after which Lintemoot again testified to and demonstrated the same location of the blood spatter on Clarkson’s wrists. (24CT 6301; Peo. Exh. 243.) Thus, Lintemoot had the final word and final demonstration on this issue, as the trial court directed. Its questions merely facilitated the gathering of information from this witness and were not the evidence itself. Indeed, taken in isolation, the trial court’s statements and gestures on the videotape would have had no probative value. They functioned only as

62

questions that placed Lintemoot’s testimony in context. As such, they were non-hearsay. Accordingly, there was no error from their admission. Even assuming for the sake of argument that the trial court’s statements and gestures were hearsay, they were nonetheless admissible under the “adoptive admission” exception to the hearsay rule. Under this exception, hearsay is admissible “if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth.” (Evid. Code, § 1221.) “There are only two requirements for the introduction of adoptive admissions: (1) the party must have knowledge of the content of another’s hearsay statement, and (2) having such knowledge, the party must have used words or conduct indicating his adoption of, or his belief in, the truth of such hearsay statement.” (People v. Silva (1988) 45 Cal.3d 604, 623, internal quotation marks omitted.) Both of these requirements were met here. First, Lintemoot was testifying during the trial court’s questioning and thus knew the content of its statements. Second, Lintemoot adopted the trial court’s questions and gestures by testifying and demonstrating in the same manner as the trial court, that is, testifying that the blood spatter was in a two- or three-inch radius on the outside of her wrist from the wrist bone toward the middle. (See 24CT 6300-6301; Peo. Exh. 243.) The adoptive admission exception was therefore an independent basis for admitting the trial court’s statements and gestures on the videotape. D. The Trial Court’s Statements and Gestures on the Videotape Did Not Violate Appellant’s Right to Confrontation

The right to confrontation under the Sixth Amendment to the United States Constitution is inapplicable to the introduction of out-of-court statements for non-hearsay purposes. (Crawford v. Washington, supra, 541

63

U.S. at p. 59, fn. 9; People v. Cage (2007) 40 Cal.4th 965, 975, fn. 6.) The confrontation clause is also not implicated by adoptive admissions. (People v. Turner, supra, 8 Cal.4th at pp. 190-191; People v. Silva, supra, 45 Cal.3d at p. 624.) Further, “it is in the final analysis the declarant’s statements, not the interrogator’s questions, that the Confrontation Clause requires us to evaluate.” (Davis v. Washington (2006) 547 U.S. 813, 822, fn. 1 [126 S.Ct. 2266, 165 L.Ed.2d 224].) Additionally, a hearsay statement does not violate the confrontation clause unless it is “testimonial.” (People v. D’Arcy (2010) 48 Cal.4th 257, 290.) In Crawford, the United States Supreme Court articulated a minimum threshold for those statements that may be deemed testimonial in nature, including prior testimony and statements elicited during police interrogations. (Crawford, supra, 541 U.S. at pp. 51-52.) The Court defined testimony as “a solemn declaration or affirmation made for the purpose of establishing or proving some fact.” (Id. at p. 51, internal quotation marks omitted.) Subsequently, in Davis v. Washington, the high court fleshed out the meaning of “testimonial,” noting that the domestic abuse victim’s statements in an emergency 911 call were not testimonial in that she “was speaking about events as they were actually happening, rather than describ[ing] past events . . . .” (Davis v. Washington, supra, 547 U.S. at p. 827, internal quotation marks omitted.) The Court further explained that this declarant “simply was not acting as a witness; she was not testifying. What she said was not a weaker substitute for live testimony at trial . . . .” (Id. at p. 828, internal quotation marks omitted.) Here, the trial court’s questions and clarifying gestures on the videotape did not violate appellant’s confrontation rights because they served the non-hearsay purpose of giving meaning and context to Lintemoot’s prior testimony. Moreover, as statements that Lintemoot concurred with, they were adoptive admissions exempted from the

64

confrontation clause. Also, the trial court’s statements and gestures did not violate the right to confrontation because they were interrogatory in nature. In addition to these bases that the confrontation clause was not implicated, the trial court’s statements and gestures were not “testimonial.” The trial court was not a witness under oath. While at the videotaped hearing, the trial court was describing what was actually happening, not past events. In fact, the trial court was not even clarifying where Lintemoot really saw the blood spatter on Clarkson––the ultimate fact sought to be proved at the videotaped hearing––it was seeking to pinpoint where Lintemoot testified she saw it. The trial court’s conduct at issue not being testimonial, there was no Sixth Amendment violation. E. The Trial Court’s Statements and Gestures on the Videotape Did Not Render the Presiding Judge a Witness or Violate Appellant’s Right to Be Present

Evidence Code section 703 provides that “[a]gainst the objection of a party, the judge presiding at the trial of an action may not testify in that trial as a witness.” (Evid. Code, § 703, subd. (b).) However, “[i]n the absence of objection by a party, the judge presiding at the trial of an action may testify in that trial as a witness.” (Evid. Code, § 703, subd. (d).) The trial court’s questions and gestures merely put Lintemoot’s testimony into context and were not testimony. (Arg. I.C, D, ante.) As such, none of the cases that appellant cites regarding the impermissibility of a trial court making factual recollections about disputed past events are applicable. (See AOB 60, citing In re Murchison (1955) 349 U.S. 133, 138-139 [75 S.Ct. 623, 99 L.Ed. 942] [the presiding trial judge testifies at the contempt trial about the defendant’s past “insolence” at issue]; Brown v. Lynbaugh (5th Cir. 1988) 843 F.2d 849, 849-851 [the presiding trial judge testifies about facts he witnessed relating to the escape charge]; Tyler v. Swenson (8th Cir. 1970) 427 F.2d 412, 414-416 [the presiding trial judge

65

testifies about “crucial” disputed facts regarding prior plea negotiations].) Moreover, even if the trial court’s questioning could properly be construed as testimony, appellant’s objection was untimely and thus the trial judge would have been permitted to testify. (Arg. I.B, ante.) Thus, Evidence Code section 703 does not afford appellant relief. In addition, appellant’s absence at the videotaped hearing did not violate appellant’s rights to be present. “A criminal defendant charged with a felony has a due process right under the Fifth and Fourteenth Amendments to the United States Constitution, as well as a right to confrontation under the Sixth Amendment, to be present at all critical stages of the trial. A competent defendant may waive that right, however. . . . Section 977 permits a felony defendant, with leave of court, to waive his or her presence at all stages of the trial other than arraignment, plea, presentation of evidence, and sentencing. Section 977 requires, however, that the defendant personally execute, in open court, a written waiver of the right to be present.” (People v. Coddington (2000) 23 Cal.4th 529, 629, internal citations omitted, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) Appellant executed a written waiver of the right to be present at the videotaped hearing in the first trial. (7CT 1538-1540; FT 11RT 1732.) Furthermore, appellant was present at the second trial when the jury saw the videotape of the hearing. (32RT 6135, 6309-6311; 34RT 6492, 66206622, 6624-6626.) Thus, there was no violation of his statutory or constitutional right to be present. F. Any Error in Admitting the Trial Court’s Statements and Gestures on the Videotape Was Harmless

An error in admitting hearsay evidence is evaluated for prejudice under the standard of People v. Watson (1956) 46 Cal.2d 818, 836, whether

66

it was reasonably probable that the error affected the outcome of the trial. (People v. Harris, supra, 37 Cal.4th at p. 336.) The same standard applies to a violation of the judicial testimony requirements imposed by Evidence Code section 703 as state-law error in admitting evidence. (See People v. Partida (2005) 37 Cal.4th 428, 439.) A violation of the right to be present under Penal Code section 977 is also subject to this reasonable probability standard. (People v. Avila (2006) 38 Cal.4th 491, 598.) An error in admitting evidence in violation of the federal constitutional right to confrontation is subject to the prejudice analysis of Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705], whether the error was harmless beyond a reasonable doubt. (Lilly v. Virginia (1999) 527 U.S. 116, 139-140 [119 S.Ct. 1887, 144 L.Ed.2d 117]; People v. Mitchell (2005) 131 Cal.App.4th 1210, 1225.) The same goes for an evidentiary error violating the defendant’s federal constitutional right to be present. (Rushen v. Spain (1983) 464 U.S. 114, 117-121 [104 S.Ct. 453, 78 L.Ed.2d 267].) If a violation of a right not to have the presiding judge testify on a particular issue were federal constitutional error, it too would be subject to Chapman, as it would not be a “rare” structural error infecting the entire trial. (See Washington v. Recuenco (2006) 548 U.S. 212, 218219 & fn. 2 [126 S.Ct. 2546, 165 L.Ed.2d 466] [listing as its sole findings of structural error the complete denial of counsel, a biased trial judge, racial discrimination in the selection of the grand jury, the denial of selfrepresentation at trial, the denial of a public trial, and a defective reasonable-doubt instruction].) For several reasons, there was no prejudice from the admission of the trial court’s statements and gestures on the Lintemoot videotape. First of all, the videotape shows, from a different perspective, Lintemoot pointing to the same spot on her wrist as the trial court specified on its wrist, both before and, especially clearly after, its statements and gestures. Although

67

the back of Lintemoot’s right wrist is turned away from the camera, it can be unmistakably discerned from the direction in which her left fingers are pointing that she was indicating the middle to exterior (ulnar, pinky side) on the back of her right wrist. (Peo. Exh. 243.) The jury therefore would have come to the same conclusion about the location of the spatter even without the trial court’s questioning and gesturing.9 Furthermore, the trial court instructed the jury, “Do not take anything I said or did during the trial as an indication of what I think about the facts, the witnesses, or what your verdict should be.” (48 RT 9689; 25CT 6452; see CALCRIM 3550.) The jury is presumed to have followed this instruction and not taken the trial court’s questions and gestures on the videotape as its opinion on Lintemoot’s credibility. (See People v. Harris, supra, 37 Cal.4th at p. 350 [“We must assume that jurors followed their instruction not to ‘disbelieve any witness’ or to decide the facts based on anything the court said or did, and to disregard any intimations or suggestions the court may have made regarding the believability of any witness”].) In addition, as to the confrontation claim, cross-examination of the trial court would not have undermined what the trial court observed Lintemoot indicate during the first trial. In denying appellant’s motion to strike, the trial court explained why it made the gestures on the videotape:
9

Even apart from the videotape, Lintemoot’s testimony in the second trial, after she refreshed her recollection with her first trial testimony, definitively established that the blood spatter was in a circular area with a two- to three-inch radius starting from the joint of the wrist. (18RT 3383, 3391.) Lintemoot further clarified that the blood spatter was not where defense counsel had pointed at during his examination of her––the area around the web between the thumb and the index finger. (18RT 33833384.) In her investigation notes, Lintemoot had also specified the location as being on Clarkson’s outer wrists. (18RT 3391-3392.)

68

“Because I had the best view in the courtroom. I’m going to interrupt you. I had the best view in the courtroom. I’m looking down on the witness. Everybody else -- she didn’t show it where the jury can see the top. The lawyers can’t even see it. The only person who could see it is me, and I describe what I’m watching.” (40RT 7883; see also 46RT 9142 [in denying appellant’s objection to the admission of the videotape as an exhibit, the trial court notes, “I had the best view of Miss Lintemoot, so it was appropriate for me to do it”].) Given the trial court’s close and unobstructed view, impeachment would have been unsuccessful. Moreover, the other evidence was compelling that appellant committed second-degree murder. Under the doctrine of implied malice, appellant intentionally committed an act––pointing a loaded firearm in Clarkson’s mouth––knowing that this act was dangerous to, and consciously disregarding, her life. (See CALCRIM 520.) Appellant confessed to the crime. Holding the gun that killed Clarkson, appellant “very clearly” said to Adriano De Souza right after the shot, “I think I killed somebody.” His callous “shrug” after De Souza asked him what happened further evidenced his conscious disregard for human life. Appellant’s other conduct also showed his consciousness of guilt after the killing. He wiped off most of the blood on the gun. He moved Clarkson’s head. He wiped off some of her blood with a cloth. He wiped off the cloth with water in the bathroom. He took off his blood-spattered jacket and discarded it on the floor. He left the gun under Clarkson’s leg. He never called 911 for help after the shooting during the 40 minutes before the police apprehended him. He refused to follow the officers’ commands. The forensic medical examiner also determined that this was a homicide. Among the numerous factors supporting this conclusion besides

69

the evidence mentioned above were that Clarkson was shot in a stranger’s home with his gun while alone with him; Clarkson had no signs of depression, psychiatric history, mental illness, or prior suicide attempts; the drawer containing appellant’s gun was the only one opened and there was no evidence that Clarkson searched for the gun; appellant put his bloody gun or hand in his pocket after the shooting; bloodstain analysis showed appellant’s jacket was within one-and-a-half to three feet of Clarkson when the gun was discharged; and the shot occurred while Clarkson’s purse was wrapped around her shoulder as though ready to leave. And significantly, Clarkson had a bruise on her tongue that was not caused by the gunshot, but rather was the result of a blunt-force trauma consistent with appellant forcefully striking her tongue with the barrel of the gun. Along the same lines, Clarkson was bruised on her forearms consistent with having been grabbed by appellant. Appellant’s prior similar assaults with a firearm on five other women for sexual purposes also demonstrated that the shooting was a homicide rather than a suicide, accident, or mistake. Appellant, while intoxicated, was alone with each woman inside his residence or a hotel room. The woman then tried to leave, after which he become enraged, lost control, pulled a gun on her, threatened her, and did not let her leave. The similarity of what happened to Clarkson––appellant took her back to his Castle and was very drunk, after which Clarkson, near the exit with her jacket on and her purse wrapped around her shoulder, apparently attempted to leave––led to the inescapable inference, based on all the evidence, that appellant reacted similarly––by pointing the gun at her head, threatening her, and not letting her leave. The difference is that this time, appellant shot his victim. And the defense evidence, while copious, was very weak. The defense experts did not dispute that appellant was situated two or three feet from Clarkson’s mouth when she was shot and that the shooting was

70

consistent with a homicide. Further, despite attempts to trump up glimpses of Clarkson’s temporary sadness or depression through the years, appellant could not supply any proof that she was suicidal; to the contrary, the evidence showed her to be an ambitious, thriving professional actress with talent, job opportunities, and plans, with a close relationship to her mother and many friends. Contrasting the hung jury in the first trial, appellant argues that the trial court’s videotaped statements and gestures admitted in the second trial tipped the balance in favor of the prosecution. He further argues that this was a “close case” based on the second jury’s “nine days” of deliberation. (AOB 62-64.) However, the second jury’s actual time spent deliberating, including delays such as from juror illness, was 29 hours and 32 minutes. (See 24CT 6421-6433, 6458-6459.) Given the enormous amount of testimonial and physical evidence adduced during the almost four-and-ahalf month trial (see 23CT 5844; 24CT 6038), this deliberation was not unduly lengthy. (See People v. Cooper (1991) 53 Cal.3d 771, 837 [where the jury deliberated for 27 hours over 7 days after a trial lasting three months and involving dozens of witnesses and complicated scientific evidence, the California Supreme Court found it “not surprising that the deliberations were protracted” and that “the length of the deliberations demonstrates nothing more than that the jury was conscientious in its performance of high civic duty”].) Furthermore, the first jury’s inability to reach a verdict could have been the result of any number of variables, such as the particular make-up of the jury panel. The record does not reflect the reasons for the deadlock in the first trial. This Court should not speculate that this particular evidence was the superseding cause of the guilty verdict in light of the bountiful evidence against appellant. (See People v. Andrews (1989) 49 Cal.3d 200, 211 [any error in admitting the accomplice’s tape-recorded

71

statement to police was harmless due to the other strong evidence that the defendant committed the murder, despite the fact that there was a hung jury in the prior trial in which this tape-recorded statement was not introduced], overruled on other grounds in People v. Trevino (2001) 26 Cal.4th 237, 243-244.) Due to the inconsequentiality of the trial court’s gestures and statements on the videotape, and, moreover, the strength of the other evidence against appellant, it is not reasonably probable that appellant would have received a more favorable result absent their admission. For the same reasons, any such error was harmless beyond a reasonable doubt. II. THE TRIAL COURT PROPERLY ADMITTED THE EVIDENCE OF APPELLANT’S PRIOR CRIMINAL CONDUCT Appellant contends that the trial court prejudicially erred by permitting the prosecution to introduce evidence of his previous uncharged assaults with a firearm on five women: Dorothy Melvin, Stephanie Jennings, Devra Robitaille, Diane Ogden, and Melissa Grosvenor. Specifically, he argues that under Evidence Code sections 1101, subdivision (b) and 352, and the federal due process clause, this prior act evidence was inadmissible to prove identity, mistake, accident, suicide, or motive. Relatedly, he argues that the trial court misinstructed the jury on these purposes. Lastly, he claims that the trial court erred by allowing the prosecution to argue that appellant had a “pattern” of violence and misogyny. (AOB 64-109.) Respondent disagrees. Appellant’s seven prior firearm assaults were committed under similar circumstances as those involving Clarkson and thus tended to show appellant’s motive for assaulting Clarkson, as well as the lack of accident, mistake, or suicide. Because these issues were relevant, and indeed crucial, to a determination of appellant’s guilt, there

72

was no violation of Evidence Code section 352 or due process. Furthermore, appellant’s assaults were not admitted to show identity and the trial court never instructed the jury to consider them for this purpose. In addition, the prosecution properly used the term “pattern” during argument to describe the similarities between the prior offenses and the charged offense and in no way argued that the jury should convict appellant based on a consideration of the prior assaults as evidence of bad character or criminal disposition. A. Law on Prior Criminal Conduct

Evidence Code section 1101 governs the admissibility of uncharged criminal conduct. Evidence of misconduct other than current charges is not admissible to prove that the defendant has a bad character or criminal disposition. (Evid. Code, § 1101, subd. (a).) However, this evidence is admissible to prove a disputed material fact, such as motive, opportunity, intent, preparation, common plan or scheme, knowledge, identity, and absence of mistake or accident. (Evid. Code, § 1101, subd. (b); People v. Ewoldt (1994) 7 Cal.4th 380, 402-403.) To be admissible, the uncharged misconduct ordinarily must be sufficiently similar to the current charges to support a rational inference concerning a material fact at trial. (People v. Ewoldt, supra, 7 Cal.4th at p. 393.) The degree of similarity needed to show relevance varies depending upon the type of fact that the uncharged misconduct is offered to prove. (Id. at pp. 402-403.) “The greatest degree of similarity is required for evidence of uncharged misconduct to be relevant to prove identity.” (Id. at p. 403.) “A lesser degree of similarity is required to establish relevance on the issue of common design or plan.” (People v. Kipp (1998) 18 Cal.4th 349, 371, citing People v. Ewoldt, supra, 7 Cal.4th at p. 402.) And, “[t]he least degree of similarity is required to establish relevance on

73

the issue of intent. For this purpose, the uncharged crimes need only be sufficiently similar [to the charged offenses] to support the inference that the defendant probably harbor[ed] the same intent in each instance.” (Id. at p. 371, quoting People v. Ewoldt, supra, 7 Cal.4th at p. 403, internal quotation marks and citations omitted.) The California Supreme Court has set out three factors for a trial court to consider when deciding the admissibility of evidence of other offenses: “(1) the materiality of the fact to be proved or disproved, (2) the probative value of the other crime evidence to prove or disprove the fact, and (3) the existence of any rule or policy requiring exclusion even if the evidence is relevant.” (People v. Hawkins, supra, 10 Cal.4th at p. 951.) An appellate court reviews the trial court’s determination of admissibility under Evidence Code section 1101 for abuse of discretion. (People v. Gray (2005) 37 Cal.4th 168, 202.) Under the abuse of discretion standard, where “a discretionary power is inherently or by express statute vested in the trial judge, his or her exercise of that wide discretion must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Jordan (1986) 42 Cal.3d 308, 316.) B. The Trial Court Properly Exercised Its Discretion in Admitting Appellant’s Similar Assaults of Five Women as Evidence of His Motive to Commit Murder

In a criminal case, “[p]roof of the presence of motive is material as evidence tending to refute or support the presumption of innocence.” (People v. Beyea (1974) 38 Cal.App.3d 176, 194-195.) Motive has been described as “an intermediate fact which may be probative of such ultimate issues as intent, identity, or commission of the criminal act itself . . . .” (People v. Scheer (1998) 68 Cal.App.4th 1009, 1017-1018.) “[E]vidence of motive makes the crime understandable and renders the inferences

74

regarding defendant’s intent more reasonable.” (People v. Roldan (2005) 35 Cal.4th 646, 705, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) The California Supreme Court has instructed that “the probativeness of other-crimes evidence on the issue of motive does not necessarily depend on similarities between the charged and uncharged crimes, so long as the offenses have a direct logical nexus.” (People v. Demetrulias, supra, 39 Cal.4th at p. 15, italics added.) However, “that a defendant previously committed a similar crime can be circumstantial evidence tending to prove his identity, intent, and motive in the present crime.” (People v. Roldan, supra, 35 Cal.4th at p. 705, italics added.) There are thus two types of motive evidence in the area of prior uncharged misconduct. In the first category, “the uncharged act supplies the motive for the charged crime; the uncharged act is cause, the charged crime is effect.” (1 Imwinkelreid, Uncharged Misconduct Evidence (Nov. 2009) § 3.18 [“Evidence of uncharged misconduct that shows defendant’s motive for committing charged crime”].) “In the second category, the uncharged act evidences the existence of a motive, but the act does not supply the motive. . . . [T]he motive is the cause, and both the charged and uncharged acts are effects. Both crimes are explainable as a result of the same motive.” (Ibid [“Category no. 2: Cases in which uncharged crime evidences same motive that impelled charged crime”], fns. omitted.) In a variety of situations, California appellate courts have permitted the introduction of prior acts evidence under this second category, where it tends to show that the motive for committing the current act was the same as for the prior act. (See People v. Davis (2009) 46 Cal.4th 539, 604 [in a capital murder case, the trial court properly admitted evidence of two prior sex crimes on other children to show that the defendant had a motive to sexually assault his victim]; People v. Demetrulias, supra, 39 Cal.4th at

75

p. 15 [in a capital murder case, the trial court properly admitted evidence of a prior recent assault and robbery on another victim to show that the defendant had a motive to rob his murder victim]; People v. Gallego (1990) 52 Cal.3d 115, 171 [in a capital murder case, the trial court properly admitted evidence of the defendant’s prior murder occurring under similar circumstances as the charged murder to show the defendant’s same motive]; People v. Walker (2006) 139 Cal.App.4th 782, 802-805 [in a defendant’s trial for murdering a prostitute, the trial court properly admitted evidence of three prior sexual assaults in order to show the defendant’s “‘common motive of animus against prostitutes resulting in violent battering interrupting completion of the sex act’”]; People v. Funes (1994) 23 Cal.App.4th 1506, 1518 [“Cases have repeatedly held that it is proper to introduce evidence of gang affiliation and activity where such evidence is relevant to an issue of motive or intent”]; People v. Pertsoni (1985) 172 Cal.App.3d 369, 375 [evidence of a prior incident where the defendant shot a person leaving the Yugoslav Consulate in Chicago was relevant to show that the defendant’s same passionate hatred of the Yugoslav government impelled him to kill another man affiliated with the Yugoslav government in a club].) Motive was a material fact in dispute in this case because it was highly relevant to the central issue at trial of who had the intent to discharge appellant’s firearm in Clarkson’s mouth: appellant or Clarkson. The prior assault evidence supplied the reason why appellant would have killed Clarkson, and thus had high probative value, under this second, “similar crime” category. The record reveals defining similarities between appellant’s assault on Clarkson and his prior assaults on Melvin, Jennings, Robitaille, Ogden, and Grosvenor. In each of these prior incidents, (1) appellant was alone with a woman whom he had invited to his house or hotel, (2) appellant had a romantic or sexual interest in her, (3) appellant

76

drank alcohol, (4) appellant exhibited romantic or sexual behavior with her, (5) she attempted to leave, (6) appellant lost control, (7) appellant threatened her and pointed his accessible gun at her, and (8) appellant blocked or locked the door to force her to stay against her will. Similarly, the evidence at trial indicated that these factors occurred with Clarkson on February 3, 2003. At the time of her death, Clarkson had been alone with appellant inside the house for about two hours. The presence of lit candles, soft music, an empty bottle of tequila, and a used cocktail glass in the living room (detectives found an identical second used cocktail glass in the bathroom adjacent to the rear foyer) indicate that they spent those two hours there. Also, Clarkson’s black skirt had been removed and she was wearing her slip dress (25RT 4939; 27RT 5486; Peo. Exh. 213), and there was also appellant’s DNA on her breast (20RT 3707) and a Viagra three-pack in his valise missing two pills (17RT 3114-3115; Peo. Exh. 41). The evidence therefore indicated that something of a sexual nature had transpired during their two hours together in the house. Further, when shot, Clarkson was seated in a chair in the rear foyer of the house, only a few feet from the back door leading to Adriano De Souza and a ride home. Her purse was slung over her shoulder as though ready to leave. The murder weapon came from a bureau immediately next to Clarkson’s chair. The deadbolt lock on the back door was not intact, the knob having been loosened. These facts suggest that immediately prior to her death, Clarkson was preparing to leave but that appellant prevented her departure and held her at gunpoint as she sat in the chair by the back door. Under these circumstances, the jury could permissibly infer that appellant similarly lost control and shared the same motive in this incident as in the seven prior incidents with the other five women. Appellant largely relies on cases discussing the first motive category, where the dissimilar prior offense is the cause of the current offense, to

77

support a conclusion that the second motive category, where the prior offenses and current offense have factual similarities tending to show they arose from the same motive, is an impermissible basis for admitting prior acts evidence. (AOB 100-104, citing People v. Daniels (1991) 52 Cal.3d 815, 856, People v. Simon (1986) 184 Cal.App.3d 125, 130, fn. 4, & People v. Gibson (1976) 56 Cal.App.3d 119, 123-131.) Although appellant favors a rule permitting motive evidence only where there is “a close factual nexus that supports the logical inference that the first offense gave rise to a reason for the defendant to commit the charged crime” (AOB 100) (i.e., the first motive category), none of the cases he cites, with one exception, contain language conveying this kind of limitation. That one exception is People v. Scheer, supra, 68 Cal.App.4th 1009, which appellant relies on as authority for a prohibition on admitting prior offense evidence to show motive based on factual similarities to the current offense. (See AOB 100-104.) In Scheer, the Court of Appeal held that the trial court improperly admitted evidence of the defendant’s prior conviction for fleeing the police to show that the defendant had the same motive to commit the charged felony hit and run. (People v. Scheer, supra, 68 Cal.App.4th at pp. 1019-1020.) In finding error, the court focused on the difference between the offenses, reasoning that “[t]he events themselves do not have any apparent overlapping characteristics.” (Id. at p. 1020.) The court opined, moreover, that motive, unlike common plan or design, does not rely “on the existence of striking similarities between the prior misconduct and the charged crime,” and stated that “[a] contrary conclusion would be a non sequitur.” (Ibid.) Although it included this categorical language, however, the Court of Appeal in Scheer later parenthetically described the Court of Appeal’s decision in People v. Johnson (1993) 15 Cal.App.4th 169, where a “prior conviction for fleeing from police by driving wrong way on surface streets

78

[was held] admissible to show defendant’s intent to drive wrong way on freeway to flee police in charged crime and to refute confusion defense . . . .” (People v. Scheer, supra, 68 Cal.App.4th at p. 1021 [finding prior offenses not admissible to show common plan or scheme], citing People v. Johnson, supra, 15 Cal.App.4th at pp. 176-177.) The valid factual distinction between Scheer and Johnson, then, would be that in Scheer, the prior flight from police was found insufficiently similar to the charged hit and run from civilian eyewitnesses, whereas in Johnson, the crimes involved both the same type of traffic offense and flight from the police. To summarize, Scheer is properly limited to a scenario where the prior crime is not similar enough to the charged crime to be relevant to the defendant’s motive. In contrast to the situation in Scheer, the circumstances of appellant’s prior assaults with a firearm and those leading to Clarkson’s death shared “numerous commonalities[.]” (Castillo v. Clark (C.D. Cal. 2009) 610 F.Supp.2d 1084, 1101 [distinguishing Scheer, upholding prior act evidence to show motive].) These uncharged crimes were sufficiently similar to the charged offense to support the inference that appellant probably harbored the same motive in each instance. Further, as explained above, California Supreme Court authority unequivocally allows similarity of conduct as a basis for the admission of prior acts evidence to show motive. Moreover, the suggestion that prior acts evidence should be circumscribed to a particular type of scenario for motive contravenes the direction in Evidence Code section 1101, subdivision (b) that the listed grounds for admissibility are illustrative, not exclusive. (See People v. Catlin (2001) 26 Cal.4th 81, 146.) Appellant also argues that because the identity of the shooter was in dispute, the prior acts evidence needed to satisfy the strict standard for identity evidence rather than the most lenient standard for intent or motive

79

evidence. In support of this argument, appellant relies on this Court’s decision in Hassoldt v. Patrick Media Group (2000) 84 Cal.App.4th 153, 166-167. (AOB 102-104.) There, this Court stated that where the identity of the actor was in dispute, uncharged prior conduct on an issue of intent, motive, and lack of mistake is inadmissible “unless it satisfies the stringent ‘so unusual and distinctive as to be like a signature’ standard” of uncharged prior conduct on an issue of identity. (Id. at pp. 166-167.) The instant case, however, was not one where the identity of the murderer was unknown; if there was a murderer, it was appellant. (See Arg. II.E, post.) Thus, Hassoldt is inapplicable. Moreover, nine years after Hassoldt, the California Supreme Court subsequently rejected an argument like appellant’s in People v. Soper (2009) 45 Cal.4th 759, 776-778. In Soper, the court noted that even though identity was at issue in that case, intent “also was in dispute” and the People still had the “burden to establish both intent and identity beyond a reasonable doubt.” (Id. at p. 777.) The court then applied the same “Ewoldt” standard for intent as where identity was not in dispute: whether “the factual similarities among the charges tend to demonstrate that in each instance the perpetrator harbored the requisite intent.” (Id. at p. 778, internal quotation marks omitted.) Significantly, the court disavowed any identity requirement to the admission of intent evidence, explaining, “There is no requirement that it [identity] must be conceded, or a court must be able to assume, that the defendant was the perpetrator in both sets of offenses.” (Ibid.; see also People v. Roldan, supra, 35 Cal.4th at pp. 705706 [“Defendant placed all issues in dispute by pleading not guilty. Accordingly, the identity of the person who robbed Pipkin and killed Teal, and that person’s intent and motive, were all material facts,” internal citation omitted].) Because of the factual similarities between appellant’s uncharged criminal conduct and his charged criminal conduct, the trial

80

court properly admitted his uncharged criminal conduct as tending to demonstrate that in each instance appellant harbored the same motive. C. The Trial Court Properly Instructed the Jury on the Definition of Motive

In the Evidence Code section 1101, subdivision (b) instruction, CALCRIM 375, the trial court included this definition of motive: “For the purpose of this instruction, motive is an emotion that may impel or incite a person to act in accordance with his state of emotion.” (48RT 9674; 25CT 6446.) As he did at trial, appellant objects on appeal to this definition on the ground that it informed the jury that it could find him guilty based on propensity evidence. Appellant acknowledges that this definition “may well conform to the average citizen’s understanding of that term” yet argues that “it is wholly at odds with the term’s legal definition in the context of section 1101(b) evidence.” (AOB 104-106; see 45RT 8738-8741; 46RT 9133.) Respondent submits that this definition was correct and accurately conveyed to the jury the relevance of prior acts evidence for the purpose of showing motive, not character. Consistent with the modern dictionary definition of “motive,” Justice Jefferson, in a 1976 opinion, defined motive in the context of prior act evidence as “an idea, belief, or emotion that impels or incites one to act in accordance with his state of mind or emotion.” (People v. Gibson, supra, 56 Cal.App.3d at p. 129; see, e.g., Merriam-Webster <http://www.merriamwebster.com/dictionary/motive> (as of Sep. 29, 2010) [defining motive as “something (as a need or desire) that causes a person to act”]; Dictionary.com <http://www.dictionary.reference.com/browse/motive> (as of Sep. 29, 2010) [defining motive as “something that causes a person to act in a certain way, do a certain thing, etc.”]; and see generally Wasatch Property Management v. Degrate (2005) 35 Cal.4th 1111, 1121-1122

81

[“When attempting to ascertain the ordinary, usual meaning of a word, courts appropriately refer to the dictionary definition of that word”].) As Justice Jefferson later explained in his evidence benchbook, “‘Thus, evidence, offered to prove motive, that defendant committed an uncharged offense meets the test of relevancy by virtue of the circumstantial-evidencereasoning process that accepts as valid the principle that one tends to act in accordance with his state of mind or emotion.’” (People v. Pic’l (1981) 114 Cal.App.3d 824, 855-856, quoting Jefferson, Cal. Evidence Benchbook (1978 Supp) Special Problems Related to Relevancy, § 21.4, p. 218.)10 Indeed, so accepted did Justice Jefferson’s definition become that even Black’s Law Dictionary adopted it as a legal definition of motive. (Black’s Law Dict. (6th ed. 1990) p. 1014, col. 1; see also Black’s Law Dict. (9th ed. 2009) p. 1110, col. 1 [defining motive as “[s]omething, esp. willful desire, that leads one to act”].) By placing this definition of motive in the jury instruction on prior act evidence, the trial court was not “cherry-picking language from appellate opinions” (AOB 105) but instead was correctly telling the jury the appropriate purpose of this evidence based on established California law addressing motive in the same context (prior criminal conduct). Based on the similar surrounding circumstances of appellant’s prior assaults with a firearm and the incident with Clarkson, the jury could reasonably infer that appellant’s motive would be the same. Further, the jury could reasonably infer that this motive impelled appellant to act in accordance with this motive in this case. Appellant nonetheless argues that hypothetically inserting “greed” and “bad temper” into this motive definition shows that acting in accordance Pic’l was disapproved on another ground in People v. Kimble (1988) 44 Cal.3d 480, 498.
10

82

with these traits would call for a finding of disposition evidence. (AOB 105-106.) But unlike “greed” and “bad temper,” motive is not a character trait and so the instruction did not inform the jury to convict based on any bad character trait. Any doubt of this would be eliminated by the standard language in the same instruction that specifically admonished the jury, “Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime.” (25CT 6446; see 48RT 9674; People v. Carrington (2009) 47 Cal.4th 145, 192 [“The correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction,” internal quotation marks omitted].) There was no flaw in the given definition of motive. D. The Trial Court Properly Exercised Its Discretion in Admitting Appellant’s Similar Assaults of Five Women as Evidence That Clarkson’s Death Was Not a Mistake, Accident, or Suicide

Appellant also contends that the trial court wrongly allowed the prior crimes evidence for the purpose of showing that Clarkson was not shot as a result of her accident, mistake, or suicide. (AOB 96-99.) Respondent disagrees, and the two points that appellant makes in support of his contention are not well taken. Appellant first argues that accident and mistake are only valid purposes for admitting prior act evidence where they are attributed to the defendant, not the victim. (AOB 96-98.) But there is no requirement in Evidence Code section 1101, subdivision (b), that accident or mistake be attributed to the defendant to be a valid basis for admission. Although accident and mistake are typically attributed to the defendant, they can also be attributed to another party when supported by the evidence.

83

In People v. Whisenhunt (2008) 44 Cal.4th 174, for instance, “the trial court admitted defendant’s prior acts of child abuse to show intent and absence of accident” with regard to his charge of murder. (Id. at pp. 203204.) The defense at trial was that another person, Hill, rather than the defendant, killed the victim either intentionally or accidentally. (Id. at p. 204.) On appeal, the defendant argued that the prior acts evidence was not admissible to show an absence of accident under Evidence Code section 1101, subdivision (b) because “this did not amount to an accident defense for himself.” (Id. at p. 204, italics added.) The California Supreme Court rejected the defendant’s argument, finding that absence of accident evidence was not limited to that situation: Defendant construes the purpose of absence of accident evidence too narrowly. Certainly, when a defendant admits committing an act but denies the necessary intent for the charged crime because of mistake or accident, other-crimes evidence is admissible to show absence of accident. [Citation.] But we have never limited evidence of absence of accident to such instances. Rather, a defendant’s plea of not guilty puts in issue all the elements of the charged offense. (Ibid.; see also People v. Deeney (1983) 145 Cal.App.3d 647, 655-657 [because the homicide defendant raised a defense that his wife died from her accidental fall, evidence that he previously abused her was relevant to show absence of accident; however, the appellate court ultimately found error where the trial court did not give an appropriate limiting instruction].) Here, appellant’s theory was that Clarkson handled the gun that killed her. He also offered evidence, and argued, that Clarkson was reckless and that her death may have been the result of an accident. The evidence that appellant had committed seven prior assaults with a gun against five women under circumstances similar to the charged offense tended to show that Clarkson’s death was not in fact a result of her accident or mistake but rather was the result of a deliberate, life-threatening act by appellant. Under Whisenhunt, and given that prior acts evidence is admissible on any

84

material issue, the trial court properly instructed the jury that it should consider the evidence for the purpose of determining whether Clarkson’s death arose from her mistake or accident.11 Second, appellant argues that in order for mistake, accident, and suicide to be valid grounds for the jury to consider, the prior act evidence would have had to pass the more stringent “common plan or scheme” standard for admissibility. (AOB 98-99.) The prior act evidence was not introduced, however, to show appellant’s common plan or scheme. Rather, the facts of absence of mistake, accident, and suicide tended to show that Clarkson’s death arose from his act, not hers, i.e. that there was an unlawful killing. (See Arg. II.E, post.)12 Furthermore, this type of evidence need not have met the stricter “common plan or scheme” standard for admissibility but only the most lenient “intent” standard. (See People v. Burnett (2003) 110 Cal.App.4th 868, 881 [the level of similarity required to prove intent and rebut accident “appears to be the same”].) And the marked similarities

The case of People v. Balcom (1994) 7 Cal.4th 414 (AOB 96) is distinguishable. There, the California Supreme Court found that although evidence of the defendant’s prior robbery and rape was relevant to show the defendant’s intent to commit the charged robbery and rape, the evidence should have been excluded under Evidence Code section 352 because the prior offenses were dissimilar and merely cumulative on the issue of intent given the victim’s account of events. Here, by contrast, the prior offenses were similar and the victim could not give an account of events, so the evidence was quite probative. Appellant notes that in People v. Lisenba (1939) 14 Cal.2d 403, 424-428, evidence of the defendant’s prior insurance scheme and murder was relevant to show a common plan or scheme as to the charged prior insurance scheme and murder. (AOB 98, fn. 26.) But he fails to note that the California Supreme Court also upheld the trial court’s admission of this same evidence to show absence of accident. (People v. Lisenba, supra, 14 Cal.2d at pp. 427-428.)
12

11

85

between the prior offenses and current offense easily satisfied this “least degree of similarity” standard. (See Arg. II.B, ante.) E. The Trial Court Did Not Instruct the Jury to Consider Appellant’s Similar Assaults of Five Women as Evidence of Identity

The trial court instructed the jury that it could consider appellant’s prior assaults with a firearm “for the limited purpose of . . . establishing that the death of Lana Clarkson was not the result of accident, mistake, or suicide, but rather that the defendant was the person who committed the offense alleged in this case.” (48RT 9673-9674; 25CT 6446.) On appeal, appellant isolates the clause “but rather that the defendant was the person who committed the offense alleged in this case” and argues that it effectively told the jury to use the prior acts evidence to determine the identity of the killer in this case. Appellant argues that this ran contrary to the trial court’s prior ruling excluding identity as a purpose and that the evidence did not meet the stringent “Ewoldt” test for identity. (AOB 8893.) Appellant’s arguments lack merit because the language in issue related to accident, mistake, or suicide, not identity. Where it is disputed whether there was an unlawful killing, the prosecution is permitted to prove this element through evidence of lack of accident, mistake, or suicide. (See People v. Whisenhunt, supra, 44 Cal.4th at p. 518 [prior act evidence showing accident is not limited to situations where “a defendant admits committing an act but denies the necessary intent” because “a defendant’s plea of not guilty puts in issue all the elements of charged offense”].) Ordinarily, “‘intent’ and ‘absence of accident’ merely reflect[] two ways of describing the same relevant issue, namely that the defendant performed the acts that killed [the victim] intentionally rather than accidentally.” (Id. at p. 204; see also People v. Singh (1995) 37 Cal.App.4th 1343, 1381.)

86

In this case, the main issue was which of two persons, Clarkson or appellant, was the shooter. The evidence that Clarkson did not die from an accident, mistake, or suicide showed that she was not the shooter and necessarily that appellant was. When read in context, the second clause–– “but rather that the defendant was the person who committed the offense alleged in this case”––did not relate to identity, but was connected to the first clause––“establishing that the death of Lana Clarkson was not the result of accident, mistake, or suicide.” The second clause properly explained the only reasonable inference from finding that Clarkson’s death did not result from her accident, mistake, or suicide. If Clarkson did not die by one of these three means, then appellant killed her, and this is all the trial court’s instruction conveyed.13 Appellant also contends that the trial court allowed the prosecution to argue to the jury that the prior acts evidence showed the “identity” of the killer. Appellant points to the following portion of the prosecution’s rebuttal argument: “Phillip Spector does what he does time after time, after time, after time, after time, after time, after time and again. He gets frustrated. He gets angry. He feels like he’s no longer in control. So he pulls a gun, and he threatens Lana Clarkson with it.” (AOB 88, 90, 92, citing 48RT 9547.) As a threshold matter, appellant forfeited his claim by failing to timely object and request a jury admonition. (See People v. Riggs (2008) 44 Cal.4th 248, 298 [rejecting the defendant’s claim that “the trial Although identity was not an admitted purpose for the prior act evidence in this case, the distinctive combination of circumstances surrounding appellant’s prior and charged assaults would have satisfied the identity test. (See Arg. II.C, ante; People v. Ewoldt, supra, 7 Cal.4th at p. 403 [when the issue is identity, “the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts”].)
13

87

court had an independent duty to remedy unobjected-to prosecutorial misconduct in order to control the proceedings”].) In any event, the prosecution’s argument did not run afoul of the trial court’s ruling excluding identity as a ground for the admission of the prior acts evidence. Instead, it spoke directly to appellant’s motive for threatening Clarkson with the gun (appellant was “frustrated,” “angry,” “no longer in control”). As explained in Argument II.B, motive was a valid purpose for this evidence. Appellant also argues the trial court violated his procedural due process right to present a complete closing argument and respond to the prosecution’s closing argument because the trial court finalized its instruction on accident, mistake, or suicide after the defense had already finished its summation. (AOB 94-96, citing People v. Armstead (2002) 102 Cal.App.4th 784, 793-794 [the trial court's response to the jury’s question regarding consideration of evidence effectively changed the scope or basis of the admissibility of the evidence and thus did not comport with due process and denied the defendant his right to counsel].) Appellant’s argument fails because defense counsel had notice before closing argument about the substance of the trial court’s instruction on accident, mistake, or suicide. At the March 20, 2010, hearing on jury instructions, the trial court indicated that it was not going to instruct on “identity” but informed counsel that it would instruct on “an absence of suicide or mistake and basically show, under the People’s theory, that it’s Mr. Spector who is responsible for the act without using the word ‘identity,’ per se, which would still be appropriate.” (46RT 9218.) When the instruction was later put to paper and distributed to counsel before the prosecution’s rebuttal argument on March 26, 2009, it comported with this earlier ruling. (48RT 9616-9618.) Thus, before summation, the defense had notice of this legal

88

theory and could address it. (See 48RT 9536 [where defense counsel argues that the evidence that Clarkson’s death was a result of accident or suicide showed “that Phillip Spector couldn’t have done it, she could have, he couldn’t have, there is only one possible answer”].) Under these circumstances, there was no unfair surprise that deprived defense counsel of the ability to present his closing argument. F. The Trial Court Properly Exercised Its Discretion in Applying Evidence Code Section 352

Appellant next argues that under Evidence Code section 352, the trial court improperly excluded the evidence of the seven prior incidents where appellant assaulted women with a firearm. (AOB 106-107.) Respondent disagrees as the trial court properly exercised its discretion in finding that the probative value of the evidence was not substantially outweighed by any prejudicial effect. Even where prior acts evidence is otherwise admissible under Evidence Code section 1101, the evidence still “must not contravene other policies limiting admission, such as those contained in Evidence Code section 352.” (People v. Ewoldt, supra, 7 Cal.4th at p. 404.) “Under Evidence Code section 352, the probative value of a defendant’s prior acts must not be substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, or confusing the issues, or of misleading the jury.” (People v. Davis, supra, 46 Cal.4th at p. 602.) Where the prior criminal conduct is less inflammatory than the evidence of the charged conduct, the possibility that the jury’s passions are inflamed by the prior criminal conduct is decreased. (People v. Whisenhunt, supra, 44 Cal.4th at p. 205.) An appellate court reviews a trial court’s ruling under Evidence Code section 352 for abuse of discretion. (People v. Davis, supra, 46 Cal.4th at p. 602.)

89

The trial court properly exercised its discretion in allowing the prosecution to introduce the evidence of appellant’s prior assaults with a firearm on five women. This evidence was very probative to answer the central questions in this case of who introduced the gun and why the gun was introduced. Without this evidence, appellant’s motive for killing Clarkson might have been less clear. Further, it would have been more probable that Clarkson’s death resulted from some other instrumentality, such as suicide, mistake, or accident. The prior act evidence showed that appellant previously acted several times in a similar way to the same material circumstances in this case. The numerous similarities between the charged and uncharged offenses, as well as the independent nature of the sources of the crimes, demonstrated the strong probative value of the prior crimes evidence. (People v. Ewoldt, supra, 7 Cal.4th at p. 404.) The possibility of prejudice was also diminished because appellant’s prior offenses were less inflammatory than the charged offense, as the latter resulted in a death. Further, the age of the uncharged offenses (seven to 18 years before the charged offense) did not render the evidence inadmissible; the remoteness of uncharged offenses ordinarily goes to their weight rather than admissibility. (See, e.g., People v. Davis, supra, 46 Cal.4th at p. 602 [prior acts committed 17 years before charged crimes]; People v. Steele (2002) 27 Cal.4th 1230, 1245 [prior acts committed 17 years before charged crimes]; People v. Branch (2001) 91 Cal.App.4th 274, 284 [prior act committed 30 years before charged crimes].) The history of appellant’s seven prior firearm assaults began in 1975 with Devra Robitaille and continued through the 1980s and 1990s to Stephanie Jennings in 1996. The fact that the similar assaults had recurred over a lengthy period added to their probative value. Given these circumstances, the trial court did not abuse its discretion in finding that the prior act evidence was admissible under Evidence Code section 352.

90

Appellant also contends that the admission of the prior acts evidence violated his constitutional rights to due process. (AOB 107.) However, “[t]he routine application of state evidentiary law does not implicate [a] defendant’s constitutional rights.” (People v. Lewis (2009) 46 Cal.4th 1255, 1289, internal quotation marks omitted.) Specifically, the admission of uncharged offenses under Evidence Code sections 1101 and 352 does not violate a defendant’s “constitutional rights to due process, a fair trial, and a reliable adjudication . . . .” (People v. Lindberg (2008) 45 Cal.4th 1, 26; see also People v. Falsetta (1999) 21 Cal.4th 903, 917 [“the trial court's discretion to exclude propensity evidence under section 352 saves section 1108 from defendant’s due process challenge”].) Since the trial court acted well within its discretion under Evidence Code sections 1101 and 352 in admitting the prior assault evidence, there was no due process violation. G. The Trial Court Properly Allowed the Prosecution to Argue That Appellant’s Conduct Demonstrated a Pattern

Appellant contends that the trial court improperly permitted the prosecution to argue that appellant’s killing of Lana Clarkson was part of the same “pattern” as his prior gun assaults against five other women. Appellant also argues that the prosecution’s argument invited the jury to find that he had the violent and misogynistic character to commit the crime and thus exceeded the limits of the grounds for admitting the prior acts evidence––motive and absence of accident, mistake, or suicide. (AOB 107109.) The prosecution properly argued, however, that appellant’s conduct fit a pattern, that is, when confronted with a specific set of circumstances, appellant acted in a particular way. This pattern demonstrated all the permissible grounds for admitting the other crimes evidence. Furthermore, none of the prosecution’s statements during argument urged the jury to find appellant guilty based upon an inference of bad character.

91

To be admissible to show identity, evidence of prior uncharged conduct must “display a pattern and characteristics . . . so unusual and distinctive as to be like a signature.” (People v. Carter (2005) 36 Cal.4th 1114, 1148, italics added, internal quotation marks omitted.) Where this pattern is not distinctive enough for identity purposes, however, it may still be admissible to show intent because that purpose requires the “least degree of similarity . . . .” (Id. at pp. 1148-1149.) And, where there is a distinctive enough “pattern” to show identity, there necessarily is a distinctive enough set of characteristics to show other Evidence Code section 1101, subdivision (b) purposes, such as common design or plan and intent. (People v. Kipp, supra, 18 Cal.4th at pp. 370-371.) The term “pattern” has been utilized in the case law on prior misconduct evidence. The California Supreme Court has described a defendant’s “pattern of raping (as well as robbing) women he lured to his home under similar circumstances” as evidence supporting the jury’s finding that the defendant intended to rape the victim in the charged offense. (People v. Kelly (2007) 42 Cal.4th 763, 789.) Elsewhere, the court recounted the prosecution’s argument of “a similar ‘pattern of conduct’” in the prior and charged offenses in a case where the prior offense was validly introduced for the purpose of showing intent and rebutting self-defense; the court specifically found that nothing in the prosecution’s argument “suggest[ed] to the jury that it consider the [prior act] evidence for any improper purpose.” (People v. Demetrulias, supra, 39 Cal.4th at pp. 18-19.) Consistent with this precedent, the prosecution used “pattern” during closing argument to describe the similarities between appellant’s prior assaults and his charged conduct. The prosecution never used this terminology to encourage the jury to use the prior acts evidence for any unintroduced purpose, such as identity or common plan. Rather, the

92

prosecution reminded the jury that the pattern tended to show appellant’s motive and that Clarkson did not kill herself. (See, e.g., 47RT 9301-9302 [“you can consider the evidence of these gun assaults against all these women, the five other women to prove who had the gun, why he pulled the gun, and an absence of suicide”]; 47RT 9302 [“You can consider his pattern of gun assault to decide who pulled the gun, why he pulled the gun, and why, absolutely not, Lana committed suicide in this case”].)14 Moreover, even assuming for the sake of argument that the jury could otherwise have made any impermissible inferences from the prosecution’s argument, the trial court specifically admonished the jury not to use the prior act evidence to show appellant’s bad character or for any purpose other than the named purposes, and instructed the jury that if the attorneys’ comments conflicted with the trial court’s instructions on the law, to follow the trial court’s instructions. (25CT 6439, 6446.) This Court should presume the jurors followed these limiting instructions. (People v. Ervine (2009) 47 Cal.4th 745, 776.) Under these circumstances, there was no conceivable error from the prosecution’s use of the term “pattern” during closing argument.

Appellant specifically notes eight examples of this kind of allegedly objectionable argument. (AOB 108-109, fn. 30.) But nothing in the prosecution’s argument was inconsistent with the purposes for which the prior acts evidence was admitted. The first seven of these occurred during the opening summation and simply emphasized the similarities between the prior conduct and the charged conduct. The prosecution was not required to keep repeating the purposes that the jury could consider the evidence for. The final one was in rebuttal, and, as explained earlier in Argument II.E, related to appellant’s motive. Critically, the prosecution in these statements never stated or implied that the jury should use appellant’s prior conduct as evidence of bad character.

14

93

H.

There Was No Prejudice

Appellant’s confession and incriminating conduct after the shot as well as the supporting forensic evidence demonstrated that he killed Clarkson. (See Arg. I.F, ante.) Thus, it is not reasonably probable that appellant would have received a more favorable result absent the admission of the prior act evidence. For the same reasons, any federal constitutional error was harmless beyond a reasonable doubt. (People v. Lindberg, supra, 45 Cal.4th at p. 26 [given the defendant’s admission to the crime, any error in admitting the prior act evidence was harmless].) III. THE TRIAL COURT PROPERLY ADMITTED APPELLANT’S STATEMENT THAT WOMEN DESERVE TO BE SHOT IN THEIR HEADS Appellant contends that the trial court improperly admitted Vincent Tannazzo’s testimony that appellant made the statement, “These fucking cunts, they all deserve a bullet in their heads.” He also contests the admission of the surrounding circumstances that included other offensive statements and conduct. He further alleges instructional error in connection with this evidence. (AOB 110-132.) Respondent disagrees as appellant’s statement was highly relevant to show his state of mind and intent to kill in this case, and, moreover, was admissible as a “generic threat.” Furthermore, his other statements and conduct gave context to the statement and were therefore admissible. Additionally, appellant’s failure to request a limiting instruction dooms his claim of error on that ground. In any event, the proper purpose of this evidence was apparent and properly argued by the prosecution.

94

A.

Vincent Tannazzo’s Testimony Regarding Appellant’s Statement

Vincent Tannazzo testified that sometime between 1991 to 1994, while working security at one of Joan Rivers’s Christmas parties at her house, he received a call in the lobby of the building from Dorothy Melvin (one of appellant’s firearm assault victims). Melvin was upset and said, “Vinnie, get up here. Phil Spector just pulled out a gun.” Tannazzo unholstered his gun, put it in his jacket pocket, and took the elevator up toward Rivers’s apartment. When the elevator doors opened at the second floor, appellant and Melvin were having an argument. While in the elevator with Tannazzo and Melvin, appellant repeatedly said, “These fucking cunts,” not directing his words at her. Tannazzo repeatedly told appellant, who was loud and “out of control,” to calm down. (8RT 12821283, 1285-1289, 1310, 1378.) On the way down, Tannazzo lightly patted appellant down for a gun and felt a .38-caliber revolver on the right side of his waistband underneath his jacket. Appellant was still ranting, using “the ‘C’ word,” when Melvin told Tannazzo, “Vinnie, put him in a car, get him out of here.” In the lobby, appellant was still muttering “Those fucking cunts.” Appellant stopped, turned, and moved his hand in the direction of his pocket and waistband where the gun was. Tannazzo told appellant that “if he pulled out that gun, I’d blow his fucking brains out.” Before appellant left, while waiting for his driver to get his keyboard, appellant said, “These fucking cunts, they all deserve a bullet in their heads.” Appellant did not appear to be joking. (8RT 1289-1292, 1295-1296, 1310, 1350, 1378.) Tannazzo further testified that one year later, he was again working security at a Joan Rivers Christmas party, which appellant and Melvin separately arrived at. About an hour after appellant went up to the party, the elevator doors opened to the lobby. Appellant and Melvin exited the

95

elevator, arguing. Appellant kept saying, “That fucking cunt, that fucking cunt, that fucking cunt,” but not at Melvin. He was yelling, and out of control. Melvin told appellant to calm down and told Tannazzo something like, “Vinnie, get him out of here, put him in the car.” After another woman came out of the elevator into the lobby, appellant looked at her, took a couple of steps toward her, and said, “That fucking cunt, I ought to put a bullet in her head right now.” Tannazzo grabbed appellant by his lapels, and said, “That’s fucking it.” Tannazzo forcibly took appellant out of the building to his limousine and put him in the back, where Melvin joined him before the car pulled away. (8RT 1298-1303, 1310, 1378.) B. Appellant’s Statement Was Relevant to the Intent Requirement of Implied Malice

Only relevant evidence is admissible. (Evid. Code, § 350.) “‘Relevant evidence’ means evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) “The test of relevance is whether the evidence tends logically, naturally, and by reasonable inference to establish material facts such as identity, intent, or motive.” (People v. Wallace (2008) 44 Cal.4th 1032, 1058.) Further, under the state-of-mind exception to the hearsay rule, “evidence of a statement of the declarant’s then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when: [¶] (1) The evidence is offered to prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or [¶] (2) The evidence is offered to prove or explain acts or conduct of the declarant.” (Evid. Code, § 1250.)

96

This case involved a woman that was shot in the head. Appellant stated that women deserved to be shot in their heads. Consistent with the evidence of other similar crimes, appellant’s statement explained his particular conduct in particular circumstances with a particular type of person, women. Ultimately, appellant’s statement evidenced his intent and motive on the night that Clarkson died from a gunshot wound and tended to prove that he acted in conformity with this state of mind. Appellant contends that the trial court erred by allowing the introduction of Tannazzo’s testimony about appellant’s statement because intent was not in dispute. In support of this contention, appellant cites the prosecution’s nonreliance on an express malice, intent to kill, theory of liability for second degree murder. (AOB 119-122.) But implied malice, the theory that the prosecution did rely on, also requires intent––the intentional commission of an act with conscious disregard for human life. That theory played out in the determinative issue of whose intentional act caused Clarkson’s death. Either appellant shoved the gun in Clarkson’s mouth, or she did. Under the prosecution’s implied malice theory, appellant’s statement that women deserve a bullet in the head was relevant evidence of his intent to insert the gun in Clarkson’s mouth with conscious disregard of whether it would discharge. As appellant argued as to the prior acts evidence, he argues that his statement about women was impermissibly used to show “identity” under Evidence Code section 1101, subdivision (b). (AOB 121-122.) It was not so used. The relevant question at trial was whether there was a killer at all. The identity of the killer, if there was one, was never in dispute. (See Arg. II.E, ante.) Appellant’s statements were yet another brick of evidence suggesting that Clarkson died at appellant’s hands rather than her own. Further, since appellant’s intent to commit the act causing Clarkson’s death was hotly disputed, this was not a case where the intent evidence was

97

“merely cumulative.” (People v. Lewis (2001) 25 Cal.4th 610, 637, distinguishing People v. Balcom, supra, 7 Cal.4th at pp. 422-423.) C. Appellant’s Statement Was Admissible as a “Generic Threat”

As appellant acknowledges, there is an established body of law permitting the admission of generic threats––statements of intent that do not name a particular victim or time and place of the intended crime. When a defendant makes generic threats against a definable category of persons, the defendant’s threats are admissible to show his or her state of mind, intent, and motive if the evidence brings the victim within the threatened category. (People v. Karis (1988) 46 Cal.3d 612, 636.) For example, in People v. Rodriguez (1986) 42 Cal.3d 730, the defendant was charged with killing two police officers when they stopped him for driving a stolen vehicle, and the trial court properly admitted evidence of a generic threat that he had made in the preceding months that he would kill any officer who attempted to arrest him. (Id. at pp. 756-758.) In People v. Karis, supra, 46 Cal.3d 612, the defendant was charged with kidnapping two women, raping one, and shooting them both, one of whom died, and the trial court properly admitted a statement that the defendant had made three days before the abduction that he would not hesitate to eliminate witnesses if he committed a crime. (Id. at pp. 626, 635-638.) In People v. Lang (1989) 49 Cal.3d 991, the defendant was prosecuted for murder but claimed he acted in self-defense. The court properly admitted a statement that the defendant had made a month earlier that he would “waste any mother fucker that screws with me.” (Id. at pp. 1013-1016; and see, e.g., People v. Cruz (2008) 44 Cal.4th 636, 651, 671; People v. Cartier (1960) 54 Cal.2d 300, 311; People v. McCray (1997) 58 Cal.App.4th 159, 172.)

98

At the same time, the court in People v. Karis, supra, 46 Cal.3d 612, also observed that a threat of future harm has “as great a potential for prejudice in suggesting a propensity to commit crime as evidence of other crimes,” a purpose for which such evidence is not admissible. (Id. at p. 636.) “Therefore, the content of and circumstances in which such statements are made must be carefully examined both in determining whether the statements fall within the state-of-mind [hearsay] exception, as circumstantial evidence that defendant acted in accordance with his stated intent, and in assessing whether the probative value of the evidence outweighs that potential prejudicial effect.” (Ibid.) But where the evidence establishes that the victim comes within the scope of some previous threat, the evidence is generally admissible “unless the circumstances in which the statements were made, the lapse of time, or other evidence suggests that the state of mind was transitory and no longer existed at the time of the charged offense.” (Id. at p. 637.) Appellant’s statement, “These fucking cunts, they all deserve a bullet in their heads,” was admissible as a generic threat. As a woman, Clarkson came within the class of persons implicated by the statement. In addition, appellant’s statement and accompanying conduct evinced his violent anger at women when agitated and intoxicated, supporting the other prosecution evidence of what led to Clarkson’s death. The statement therefore reflected appellant’s state of mind toward Clarkson and helped prove his intent and motive for the murder. Appellant objects that the threat was not unequivocal enough to qualify as a “generic threat.” (AOB 126-127.) There is no requirement, however, that such a statement reflect a commitment to carry out the threat. The context and wording of appellant’s statement unambiguously showed a deep-seated violent belief about women. To the extent that appellant’s statement omitted a promise to actually shoot a woman in the head, the

99

prosecution never argued otherwise, and defense counsel could make this point to the jury. In other words, this type of criticism only went to the weight of the evidence, not its admissibility. Appellant next attacks the admission of the statement on the ground that it “is so extraordinarily wide-ranging” in that it encompasses “half the population of the planet, without any limitation as to circumstances . . . .” (AOB 127-128.) But appellant’s statement should not be judged in isolation. When appellant made the statement, he was loud, “out of control,” and intoxicated,15 had just pulled out a gun, and was arguing with Dorothy Melvin, whom he had a sexual interest in. These factors matched those present in the seven incidents where appellant previously assaulted women with a firearm and those reflected in the evidence about appellant and Clarkson.16 Thus, the circumstances of the statement were sufficiently narrow to be probative to the Clarkson incident. Appellant argues that the approximately 10-year gap between his statements and the shooting of Clarkson forecloses their admission under “generic threats” law. (AOB 128.) But the lapse of time is just one factor to consider in the ultimate inquiry of whether the declarant’s “state of mind was transitory and no longer existed at the time of the charged offense.”

Melvin testified that appellant was “very drunk” on this occasion. (8RT 1479.) In its trial briefing, pointing out the commonalities between appellant’s statement and Clarkson’s death (he had a gun, he was drunk, she was a woman, he lost control, she was shot in the head), the prosecution aptly observed that “the facts of this case clearly show that the statements are so eerily similar as to become prophetic to the exact manner in which Spector took Ms. Clarkson’s life.” (23CT 5788.)
16

15

100

(People v. Karis, supra, 46 Cal.3d at p. 637.)17 Here, the evidence demonstrated that appellant’s violent rage at women he was romantically interested in was an almost continuous thread in his relationships––from Devra Robitaille in the early 1970s and mid-1980s, to Diane Ogden in the early and late 1980s, to Dorothy Melvin in the late 1980s to early 1990s, to Melissa Grosvenor in the early 1990s, to Stephanie Jennings in the mid1990s, to Lana Clarkson in 2003. The evidence of each of these prior firearm assaults suggested that, when intoxicated and losing control, appellant intentionally pointed loaded guns at the woman’s head in conscious disregard of the danger. Under these circumstances, the trial court acted well within its discretion in determining that the time between appellant’s statements and Clarkson’s death did not render his state of mind transitory. (Cf. People v. Davis, supra, 46 Cal.4th at p. 602 [upholding admission under Evidence Code section 1101, subdivision (b) of prior acts committed 17 years before charged crimes]; People v. Steele, supra, 27 Cal.4th at p. 1245 [same].) Appellant argues that because he never actually shot Robitaille, Ogden, Melvin, Grosvenor, and Jennings, his statement “was not a serious Appellant mischaracterizes the Court of Appeal’s opinion in People v. Duncan (1945) 72 Cal.App.2d 247 as holding that suicidal statements of the victim eight years before the charged offense were too remote in time to be relevant to her state of mind at the time of death. (AOB 123.) In fact, the court in Duncan found the statements erroneously admitted not because of the eight-year difference itself but because the victim made the suicide threats before her divorce to her ex-husband, and, centrally, because the other evidence “preclude[d] any possible inference that the deceased came to her death by her own hand.” (People v. Duncan, supra, 72 Cal.App.2d at pp. 253-254; see State v. West (Ariz. 1993) 862 P.2d 192, 201-202 [relying on Duncan, finding that the “facts precluded any possibility that suicide had been the cause of death”], overruled on another ground in State v. Rodriguez (Ariz. 1998) 161 P.2d 1006, 1012, fn. 7.)
17

101

threat at all.” (AOB 128-129.) But again, appellant’s statement that women should be shot in their heads was relevant to show his consistent intent, motive, and state of mind in directing the gun at the heads of Clarkson and four of these five prior assault victims.18 What is more, pointing a loaded gun at these women amply demonstrated the seriousness of his statement; the circumstance that the gun did not actually discharge with the five besides Clarkson did not mean that he did not hold the same belief as on the night he made the statement. Further, his agitated state and use of the derogatory term in making the statement also indicated that this was his true belief. Appellant argues that the context of the statement––he was arguing with his girlfriend, speaking to someone (Tannazzo) that he believed was a “cop,” and showing Tannazzo his badge and permits––demonstrated only that “he was blowing off steam in a particularly obnoxious manner” rather than making a serious threat that he was going to kill women. (AOB 128129.) Appellant’s argument, however, once again presupposes that the requisite intent at issue in this case was the intent to kill (express malice) rather than the intentional commission of an act with conscious disregard for human life (implied malice). Appellant’s statement did not necessarily demonstrate that he was planning to intentionally kill a woman but it did strongly support a finding that he would be of the mind to intentionally commit an act with conscious disregard for a woman’s life. The statement therefore showed that appellant posed a “threat” to women in the described situation. Jennings testified that appellant held her “at gunpoint” but, unlike the other four prior assault victims, did not specifically testify whether he pointed the gun at her head or face (Robitaille, Ogden, Grosvenor) or pointed the gun at her and struck her head with it (Melvin). (11RT 2095, 2104.)
18

102

Appellant also takes issue with the similar statement that appellant made the next year, “That fucking cunt, I ought to put a bullet in her head right now.” While not disputing that it was a “threat,” appellant argues that it should have been excluded as character evidence because it was directed toward a specific person and was “obviously was not meant to be taken seriously.” (AOB 129-130.) But this later statement and the surrounding circumstances further bolstered the reliability and accuracy of appellant’s similar statement about women the previous year. At the later party, while arguing with Dorothy Melvin, and while yelling and out of control, appellant repeatedly said, “That fucking cunt, that fucking cunt, that fucking cunt.” (8RT 1300.) Then, upon again seeing the woman (not Melvin) that was the apparent target of his ire, he moved toward the woman and said, “That fucking cunt, I ought to put a bullet in her head right now.” (8RT 1302, 1310, 1378.) Appellant’s statement was a fierce one made in rage; he may not have meant that he was actually going to intentionally kill the woman at that moment (fortunately, we will never know because Tannazzo stopped appellant as he stepped toward her), but the incident served as another similar example of appellant’s belief that as a woman she should have “a bullet in her head right now.” Even if not specifically admissible as a “generic” threat, this statement was therefore relevant to show the seriousness in which he made the earlier, more general statement. D. The Trial Court Properly Admitted the Evidence of the Circumstances Surrounding Appellant’s Statement

As he did in his moving papers at trial, appellant also argues on appeal that the remainder of the Tannazzo testimony failed to constitute a generic threat and violated Evidence Code section 1101, subdivision (b). (AOB 130-131; see 23CT 5775-5776.) The threshold problem for appellant is that during the subsequent lengthy pre-trial hearings, he never

103

argued this to the trial court or sought a ruling. Instead, at the hearings, he argued only that the trial court should exclude appellant’s two statements about shooting women. (2RT 22-29, 33-36; 3RT 308-312, 314-317; see also 23CT 5816-5820.) And appellant did not object to this testimony during the trial. Because appellant failed to secure a ruling, he has forfeited his claim on appeal. (People v. Roberts (1992) 2 Cal.4th 271, 297 [where the defendant filed a motion in limine to exclude evidence but the trial court never ruled on the motion, his claim on appeal was procedurally barred because he “failed to obtain a pretrial ruling on the issue and did not pursue his objection at trial”]; see also People v. Samaniego (2009) 172 Cal.App.4th 1148, 1181; People v. Rowland (1992) 4 Cal.4th 238, 259.) Moreover, there was no error. The evidence that appellant generally refers to19 involves some of the very circumstances showing that appellant meant it when he said that women should be shot in their heads: that he displayed a gun at the party, that he was in the middle of an argument with a woman that he was interested in, that he showed bravado even in front of someone he believed to be a “cop,” and that he became so unruly as to be evicted from the party by Tannazzo. These circumstances, along with other accompanying evidence like Tannazzo’s testimony that appellant was loud, yelling, and out of control, and that appellant was repeatedly stating “those fucking cunts,” and “that fucking cunt,” gave the jury the context for appellant’s statement and rendered it more trustworthy, supporting a conclusion that he truly believed it. (See People v. Robinson (2000) 85 Cal.App.4th 434, 445 [“The circumstances under which the [defendant’s] admission was made are also admissible to place the statement in context”];
19

Appellant does not supply citations of the record for these statements, which he imports from his pre-trial moving papers predicting Tannazzo’s second trial testimony based on his first trial testimony.

104

Evid. Code, § 1252 [“Evidence of a statement is inadmissible under this article if the statement was made under circumstances such as to indicate its lack of trustworthiness”].) In sum, the evidence of the circumstances surrounding appellant’s statement tended to prove that it actually reflected his state of mind, motive, and intent. E. The Trial Court Properly Exercised Its Discretion in Applying Evidence Code Section 352

Appellant contends that the trial court should have precluded the prosecution from eliciting Tannazzo’s testimony about appellant’s conduct and statements because they were substantially more prejudicial than probative under Evidence Code section 352. In support of this contention, he reiterates his argument that implied malice was never in dispute at trial. (AOB 131.) He is wrong, however, that implied malice was never in dispute. (See Arg. III.B, ante.) Furthermore, appellant’s statement, “These fucking cunts, they all deserve a bullet in their heads,” was highly probative to explain appellant’s state of mind at the time of the murder. It exposed appellant’s drive to act in a particular way with a particular class of persons in a particular set of circumstances, culminating with his actions with Clarkson on February 2 and 3, 2003. The trial court acted within its broad discretion in admitting this evidence. Appellant asserts that the evidence was “extremely prejudicial” and “highly inflammatory.” (AOB 131.) But the prejudice from the statements and conduct was that which “naturally flows from relevant, highly probative evidence” bearing on key issues of guilt, not that which results from evidence that solely evokes emotional bias. (People v. Gionis (1995) 9 Cal.4th 1196, 1214.) In this case, “[t]he highly prejudicial nature of the evidence lay not in the fact that the jury might consider it as reflecting a propensity on [appellant’s] part to commit murder, but in its value in

105

identifying [appellant] as the perpetrator of the crimes and demonstrating his motive and mental state.” (People v. Karis, supra, 46 Cal.3d at p. 638.) Nor was appellant’s statement “highly inflammatory”; its evidentiary value did not derive from the impact of an offensive epithet. The statement was probative because it starkly evinced appellant’s violent antipathy toward women, which was relevant to the issue of intent. Also, contrary to appellant’s contention, the combination of the admission of this incident and his prior firearm assaults did not cause cumulative prejudice, as there was no error or prejudice to cumulate. Appellant’s contention that the trial court violated his constitutional right to due process by admitting the statements and surrounding circumstances (AOB 131-132) also fails because this “routine application of state evidentiary law d[id] not implicate [appellant’s] constitutional rights.” (People v. Lewis, supra, 46 Cal.4th at p. 1289; see People v. Lindberg, supra, 45 Cal.4th at p. 26.) Even if the trial court’s balancing under Evidence Code section 352 somehow had risen to the level of an abuse of discretion (which clearly it did not), this still would not have resulted in a due process violation as there was no “fundamental unfairness” to appellant in admitting the statements. (People v. Partida, supra, 37 Cal.4th at p. 439.) Finally, to the extent that appellant makes a claim that the statements “violated his right to due process distinct from his claim that the trial court abused its discretion under Evidence Code section 352, he forfeited that claim by failing to raise that independent ground below.” (People v. Riggs, supra, 44 Cal.4th at p. 304.) F. There Was No Instructional Error or Prejudice In Connection With the Admission of Appellant’s Statement

Appellant further contends that because the trial court improperly admitted his statement that women deserve bullets in their heads, this Court

106

should reverse his conviction. He argues that instructional error exacerbated the asserted evidentiary error on two grounds: (1) the trial court did not give a limiting instruction for the purpose that the evidence was admitted and (2) the trial court incorrectly included this evidence in the instruction on the prior acts evidence. (AOB 132.) Respondent submits, however, that appellant forfeited any error as to the first ground by failing to request a limiting instruction and that in any event the trial court did not have a sua sponte duty to give one. As to the second ground, the trial court informed the jury that its initial misreading of the prior acts instruction would be corrected in the written version, and it was. Moreover, appellant invited any error by requesting that the trial court not orally give the corrected instruction. Furthermore, any error relating to the admission of or instruction about appellant’s statement was harmless given the prosecution’s proper argument about this statement, appellant’s use of the same epithet on Stephanie Jennings’s answering machine, and, particularly, the other, overwhelming evidence against him at trial. At the hearing on jury instructions, defense counsel argued, and the trial court ruled, that the prosecution could introduce appellant’s statements about shooting women in the head to show his intent and state of mind. (45RT 8737.) The trial court, the prosecution, and defense counsel agreed that in the proposed version of CALCRIM 375, the uncharged crimes instruction, the trial court should strike the second paragraph relating to Tannazzo’s testimony about appellant’s statements. (45RT 8734-8735, 8738.) After closing arguments, however, the trial court orally instructed the jury with CALCRIM 375, including the second paragraph that it had decided to remove: The People presented evidence that the defendant committed other offenses of assault with a firearm, namely against Devra Robitaille, Diane Ogden-Halder, Dorothy Melvin, Melissa Grosvenor, and Stephanie Jennings, which are not charged in this case.

107

The People presented evidence of other behavior by the defendant that was not charged in this case, namely the behavior testified to by Vincent Tannazzo. . . . (48RT 9672-9673, italics added.) This instruction further informed the jury that it could use the Tannazzo evidence to show motive, and lack of accident, mistake, or suicide, but could not use this evidence for the purpose of showing bad character or a disposition to commit the crime. (48RT 9673-9674.) After the trial court finished reading the jury instructions, the parties brought to the trial court’s attention that it was supposed to strike the Tannazzo paragraph in CALCRIM 375. (48RT 9690-9691.) The trial court then informed the jury that as to one of the instructions, a “phrase that we had all agreed to take out, inadvertently, was left in when the instructions were typed. So it is not a problem. We will correct it before you get it.” (48RT 9691.) The trial court then specifically stated: “As to instruction 375, I am going to reread it in its entirety, because if I say take out this phrase, it won’t make any difference. So I will just reread it to you. Please do not give it any special --” (48RT 9693.) Defense counsel interrupted the trial court with the request, “Your Honor, I don’t believe it’s necessary to reread the instruction. We will just take [the Tannazzo paragraph] out.” (48RT 9692.) The trial court asked whether that was acceptable to the parties, and the prosecution stated, “That’s satisfactory to me.” (48RT 9692.) The trial court stated that it would not reread the instruction “at all” and defense counsel responded, “Exactly.” (48RT 9692.) The trial court then instructed the jury, “As I read it to you, there is a paragraph that we are ta[]king out. You can’t possibly remember what it was. When you get it, the paragraph will be gone.” (48RT 9692.) The written version of the instruction accordingly omitted this second paragraph. (25CT 6446-6447.)

108

Appellant forfeited his claim that the trial court did not give a specific limiting instruction on intent or state of mind by failing to request it in the trial court. (People v. Lewis, supra, 25 Cal.4th at p. 638; People v. Freeman (1994) 8 Cal.4th 450, 495.) Moreover, there was no error in failing to give such a limiting instruction because a trial court has no sua sponte duty to give a limiting instruction on the purpose for which the jury can consider evidence. (People v. Freeman, supra, 8 Cal.4th at p. 495.) Furthermore, as the wording of appellant’s statement plainly exhibited his intent and state of mind, no limiting instruction was necessary because “it was obvious for what purpose it was being admitted.” (Ibid.) Also, the trial court cured its initial misreading of the prior acts instruction that included Tannazzo’s testimony about appellant’s behavior. The trial court did this by informing the jury that the section of CALCRIM 375 that it had inadvertently read would be removed in the written instruction and then by deleting this section. Appellate courts presume that where there is a discrepancy between an oral and written instruction, the jurors follow the written instruction. (People v. Sparks (2002) 28 Cal.4th 71, 75, fn. 3; People v. Osband (1996) 13 Cal.4th 622, 687-688.) Moreover, any error in the trial court’s failure to reread CALCRIM 375 without the Tannazzo paragraph was invited. “The doctrine of invited error bars a defendant from challenging an instruction given by the trial court when the defendant has made a ‘conscious and deliberate tactical choice’ to ‘request’ the instruction.” (People v. Weaver (2001) 26 Cal.4th 876, 970.) Where a defendant expressly agrees to a jury instruction, this is considered invited error. (People v. Davis (2005) 36 Cal.4th 510, 539.) Invited error also applies where the defendant makes a request that the trial court not give an instruction. (People v. Hughes (2002) 27 Cal.4th 287, 345.)

109

Under this doctrine, appellant invited any error as to his claim that the trial court erroneously instructed on the Tannazzo testimony because he expressly requested that the trial court not read the corrected version of CALCRIM 375 when the trial court was about to do so. (48RT 96919692.) Appellant’s apparent tactical reason for taking the position against rereading the limiting instruction was to minimize the high probative impact of the evidence. (See People v. Ferraez (2003) 112 Cal.App.4th 925, 934 [no ineffective assistance of counsel for failing to request a limiting instruction because this was “a reasonable tactical choice by defense counsel to avoid directing the jury to focus on the evidence”].) In any event, any temporary defect in the oral version of the instruction would be harmless error because the jury was later given the correct written instruction and was told that it was the correct version. (People v. Wallace, supra, 44 Cal.4th at p. 1076; People v. Box (2000) 23 Cal.4th 1153, 1212, disapproved on another ground in People v. Martinez (2010) 47 Cal.4th 911, 948, fn. 10.) Furthermore, even if, hypothetically, the jury had additionally considered appellant’s statements for motive, and lack of accident, mistake, or suicide under the trial court’s initial reading of CALCRIM 375, there still would be no prejudice because these purposes were simply further aspects of, or conclusions drawn from, the intent at issue in this case. (See People v. Whisenhunt, supra, 44 Cal.4th at p. 204 [“‘intent’ and ‘absence of accident’ merely reflect[] two ways of describing the same relevant issue, namely that the defendant performed the acts that killed [the victim] intentionally rather than accidentally”]; People v. Scheer, supra, 68 Cal.App.4th at pp. 1017-1018 [motive is “an intermediate fact which may be probative of such ultimate issues as intent”]; see Arg. II.B, D, E.) This prior acts instruction also specifically admonished the jury not to consider the evidence for bad character or disposition to commit the crime.

110

Similarly unpersuasive is appellant’s argument (AOB 132) that the trial court denied his procedural due process right to present a complete closing argument before a change in the jury instruction. (See generally Arg. II.E [responding to appellant’s procedural due process argument in the context of prior crimes evidence].) Dispositively, there was no change in the jury instruction given the trial court’s direction for the jury to rely on the written version of CALCRIM 375, which comported with appellant’s understanding before closing argument. Moreover, even in the oral instruction, there was no practical difference in this case between (1) intent and state of mind, and (2) motive, and absence of accident, mistake, or suicide. Thus, there was no violation of appellant’s constitutional right to notice. And, beyond the issue of instructional propriety, it is not reasonably probable that appellant would have received a more favorable result had the trial court excluded evidence of the events that Tannazzo witnessed. (See People v. Lindberg, supra, 45 Cal.4th at p. 26.) Likewise, any federal constitutional error was harmless beyond a reasonable doubt. (Ibid.) The prosecution’s reference to appellant’s statement during closing argument focused on how it showed appellant’s state of mind, and how in this defined set of circumstances, appellant responded. (47RT 9235, 9301.) Thus, the prosecution did not exploit any ambiguity in the instructions but rather set forth the proper purpose of the evidence. (People v. Young (2005) 34 Cal.4th 1149, 1202; People v. Crittenden (1994) 9 Cal.4th 83, 138-139.) Also, the jury was already aware that appellant used the epithet “cunt” from his answering machine tirade at Stephanie Jennings. (24CT 6052 [“In any event, it was really nice knowing you, but you’re a fucking asshole and you’re a fucking lying cunt. So don’t fuck with me, because you’re gonna get fucked around with if you do”].) This made it even less likely that the additional admission of appellant’s use of this offensive language in front

111

of Tannazzo proximately caused any impermissible emotional bias. Further, defense counsel took the opportunity to separately question prospective jurors on this subject during voir dire to confirm that that this profanity would not cause them to judge the case against his client. (3RT 322, 367, 383-385, 389-390, 397-398, 409, 414-415, 421, 425, 434.) Finally, the jury did not convict appellant because of who he is, but because of what he did to Lana Clarkson. Even without the evidence of appellant’s statements, the other inculpatory evidence––including appellant’s plain confession, his attempted cover-up, his multiple prior firearm assaults under similar circumstances, and the damning physical evidence––persuasively showed that he shot Clarkson. (See Arg. I.F, ante.) IV. THE PROSECUTION DID NOT COMMIT MISCONDUCT Appellant contends that the prosecution committed misconduct during closing argument. Specifically, he argues that the prosecution accused defense counsel of fabricating the defense and criticized defense experts for accepting large amounts of money to falsely testify. (AOB 133-148.) Appellant forfeited his contention, however, by failing to object and request an admonition to any of the alleged instances of misconduct. Moreover, there was no error because the prosecution properly argued that, based on the evidence and defense tactics at trial, the jury should find its theory of the case, rather than the defense theory, to be the truth. Furthermore, the prosecution properly argued that the defense expert witnesses were biased based on their high fees given their implausible testimony. In any event, any asserted error from particular statements that the prosecution made during closing argument would be harmless given the totality of the closing argument as well as from the overwhelming evidence against appellant at trial.

112

A.

Appellant Forfeited His Claims of Prosecutorial Error

It is well established that “a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion - and on the same ground - the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.” (People v. Hill (1998) 17 Cal.4th 800, 820, internal quotation marks omitted.) This rule does not apply if it would have been futile for the defendant to object and request an admonition, if an objection and admonition would not have cured the harm that the misconduct caused, or if the defendant could not ask for an admonition because the trial court overruled his objection. (People v. McDermott (2002) 28 Cal.4th 946, 1001.) Except on one occasion near the end of the prosecution’s rebuttal (48RT 9606), appellant did not object to the prosecution’s alleged instances of misconduct. Moreover, on no occasion did he ever ask for a jury admonition. (See 47RT 9234, 9245, 9276, 9297, 9329; 48RT 9548-9550, 9553, 9558, 9574-9576, 9594, 9597, 9605-9607.)20 The failure to both object and request an admonition at any time bars relief as to all alleged instances of misconduct. (People v. Harrison (2005) 35 Cal.4th 208, 244.) Appellant cites People v. Johnson (1981) 121 Cal.App.3d 94 for the proposition that some prosecutorial misconduct needs no objection. (AOB 141.) In Johnson, the prosecutor made comments that a key witness had denied making an extortion demand despite that the witness did not so testify, and asserted that based on his personal investigation, another witness had lied. Under these circumstances, the Court of Appeal excused the lack of objection because a jury admonition could not have “unrung this Indeed, in the one instance that appellant did object, he not only failed to request an admonition from the trial court, but silently acquiesced in the trial court’s direction, out of caution, for the prosecution to “please clear that up.” (48RT 9606.)
20

113

particular bell.” (People v. Johnson, supra, 121 Cal.App.3d at pp. 103104.) In contrast to the egregious situation present in Johnson, the prosecution in this case made no such assertions but, rather, allegedly stepped over the line in making inferences based on what happened at trial. Thus, in this circumstance, “[a] timely objection and requested admonition at the first sign of any purported misconduct might have curbed the vigor of the prosecutor’s argument.” (People v. Harrison, supra, 35 Cal.4th at p. 244.) Appellant also cites People v. McGreen (1980) 107 Cal.App.3d 504, 514-529,21 in an apparent attempt to excuse his failure to object and request a jury admonition (AOB 142), but that case, too, is inapposite. “The present case is far removed from McGreen, in which the prosecutor persisted in making unfounded attacks on an expert witness’s honesty and ethical reliability, despite the court’s repeated sustaining of defense objections to that line of questioning.” (People v. Kaurish (1990) 52 Cal.3d 648, 679, italics added, distinguishing McGreen.) Again, here, appellant never made any objections to the allegedly pervasive and improper argument until the last part of the prosecution’s rebuttal; an earlier, timely objection and admonition could have prevented further occurrences or cured any harm resulting from the argument. (See People v. Medina (1990) 51 Cal.3d 870, 895 [distinguishing McGreen on this basis].) Because appellant did not timely object and request a jury admonition as to any of the alleged instances of misconduct, he is procedurally barred from obtaining appellate relief on this claim.

McGreen was disapproved on a different ground in People v. Wolcott (1983) 34 Cal.3d 92, 101.

21

114

B.

There Was No Misconduct in the Prosecution’s Argument for the Jury to Accept Its Interpretation of the Evidence as the Truth, Not the Defense Interpretation

Appellant contends the prosecution assailed defense counsel’s integrity during closing argument by averring that the prosecution, and not the defense, was presenting the truth. (AOB 139-142.) But the prosecution’s arguments merely urged the jury to believe its interpretation of what happened to Clarkson rather than the defense interpretation. As a result, there was no prosecutorial error. A prosecutor’s misconduct violates the Fourteenth Amendment to the United States Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. (People v. Cole (2004) 33 Cal.4th 1158, 1202.) A prosecutor’s misconduct that does not render a trial fundamentally unfair under the federal standard may nevertheless violate California law if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. (Ibid.) Where the issue focuses on comments that a prosecutor made before the jury, the question is whether it is reasonably likely that the jurors construed or applied the remarks at issue in an objectionable fashion. (Id. at pp. 1202-1203.) A prosecutor has wide latitude to discuss and draw inferences from the evidence; whether these inferences should be accepted is for the jury to decide. (Id. at p. 1203.) A reviewing court views the challenged statement in the context of the argument as a whole. (People v. Dennis (1998) 17 Cal.4th 468, 522.) One way that a prosecutor can commit misconduct is to attack the integrity of defense counsel or cast aspersions on him or her. (People v. Hill, supra, 17 Cal.4th at p. 832.) However, a prosecutor is permitted to challenge and criticize defense tactics. (People v. Stitely (2005) 35 Cal.4th 514, 560.) For instance, in People v. Cunningham (2001) 25 Cal.4th 926,

115

1002-1003, the prosecutor told the jurors that defense counsel’s job was to “create straw men” and to “put up smoke” and “red herrings.” The California Supreme Court ruled that these comments were proper because the jurors would have understood them as an admonition that they should not be misled by defense counsel’s interpretation of the evidence rather than as a personal attack on defense counsel. (Id. at p. 1003.) Similarly, in People v. Cummings (1993) 4 Cal.4th 1233, 1302, the court ruled a prosecutor’s comment accusing the defense of attempting to hide the truth was not misconduct. In People v. Marquez (1992) 1 Cal.4th 553, 575-576, the court ruled that the prosecutor’s comment that a “heavy, heavy smokescreen . . . has been laid down [by the defense] to hide the truth from you” constituted a proper argument in response to the defense presented. In People v. Arias (1996) 13 Cal.4th 92, 162, the court allowed that the prosecution may argue “that a witness’s testimony is unbelievable, unsound, or even a patent ‘lie.’” (See also People v. Stitely, supra, 35 Cal.4th at pp. 559-560 [it was not improper for the prosecution to argue that the jury should avoid “‘fall[ing]’” for defense counsel’s “‘ridiculous’” and “‘outrageous’ attempt” to permit the “defendant to ‘walk’ free” based on defense counsel’s “legal smoke screen”]; People v. Gionis, supra, 9 Cal.4th at pp. 1215-1216 [the prosecution could argue that defense counsel was talking “out of both sides of his mouth”].) Applying this authority, this Court should find no misconduct as to the alleged instances of misconduct in the prosecution’s argument. A review of each of the prosecution’s statements at issue demonstrates that they were proper responses to the defense presented. The prosecution was permitted to ask the jury to find that its theory of the case was the truth and that the defense theory was not. In doing so, the prosecution permissibly challenged and criticized the defense tactics and evidence.

116

Turning first to the prosecution’s comments during opening summation, all were reasonable arguments based on the evidence. Deputy District Attorney Truc Do began by analogizing the changing theories of the defense throughout the trial to the “ever-shifting” sand dunes of a beach in South Vietnam where her family came from. (47RT 9244-9245.) Describing this analogy, Do stated: The hills that you see are never in the same place. They’re never constant. You would be lost if you relied on them because they move. They move wherever the elements take them. The defense in this case, and what truth means to them, reminds me of this place. Nothing that they have presented to you has been constant. Nothing that they have presented to you has been dependable. Their evidence is evidence of convenience. Their version of the truth shifts with whatever direction the wind blows. (47RT 9245, italics reflecting alleged misconduct on appeal.) Supporting this sand-shifting analogy, the prosecution noted that during opening statement, defense counsel argued that Adriano De Souza was not certain of appellant’s confession, and that De Souza gave eight different versions of the confession. But then, when defense counsel could not undermine De Souza’s confidence at trial or show significantly different versions, the defense called a psychologist to testify that a witness’s confidence is irrelevant in determining the accuracy of testimony. (47RT 9245, 9257-9263.) The prosecution also noted defense counsel had changed theories on how Clarkson got bruises on her wrists. (47RT 92699275.) Further fleshing out this analogy, the prosecution then argued that defense counsel had also changed his theory of the case as to criminalist Jaime Lintemoot’s testimony regarding the back spatter on Clarkson’s wrists. (47RT 9275.) The prosecution introduced this part of this argument by stating: “I expect [defense counsel] to do with this evidence what he’s done with it all through the trial. Go through machinations of the truth to

117

avoid it, to change it, to move it from here to here. I mean, this is almost like an inside joke with us because we’ve seen this moved to here.” (47RT 9276, italics added at AOB 137.) The prosecution observed that in defense counsel’s opening statement, he argued that the jury should believe Lintemoot’s testimony about the location of the spatter until he discovered that it was not actually where he had thought, at which point he attempted to modify her testimony by “sl[e]ight of hand” with his gestures, and then, when that failed, attempted to show that she was unreliable, and then, when that failed, attempted to change Clarkson’s hand configuration, and then, when that failed, attempted to show that blood travelled around a corner, which during opening statement he had denied was possible. (47RT 92759277, 9282-9291, 9293-9297.) Concluding the Lintemoot section of the argument, Deputy District Attorney Do reiterated that the defense had initially relied on Lintemoot’s testimony as supportive of a suicide theory “but the moment the evidence no longer suits their purpose, the truth, their version of the truth begins to shift.” (47RT 9296.) When pointing out that defense counsel ultimately elicited evidence that the blood went around corners in this case after having asserting during opening statement that it “‘doesn’t travel around corners,’” the prosecution argued: “Biggest storm of shifting sand. Why is it that the defense needs to go through this long process of machinations of truth on this? Because this is the single piece of evidence they cannot explain away. It is absolutely inconclusive with Lana Clarkson holding the gun.” (47RT 9297, italics reflecting alleged misconduct on appeal.) As shown in context, each of the cited statements during the prosecution’s opening summation were proper comments on the defense evidence and tactics. Likewise, there was nothing improper about the prosecutorial statements during the rebuttal argument. In one alleged instance of

118

misconduct at the outset of rebuttal, Deputy District Attorney Alan Jackson summarized the prosecution’s theory of the case: When Phillip Spector is confronted with this circumstance, the circumstance that I just told you about, and I’m going to tick them off real quick: A woman; alcohol; a loss of control; he pulls a gun. He’s done it time and time again throughout almost his entire adult life, and he did it on February 3rd. Mr. Weinberg said my job is to give you possibilities. That’s my job. I’m here to just give you possibilities just regale you with all kinds of possibilities. That’s funny. My job, Ms. Do’s job, is to give you truth. . . . My goodness, Jaime Lintemoot. You folks got to the point, every one of you got to the point, where at some point in the trial testimony you laughed. You laughed at this versus this, because it got comical. Mr. Weinberg doesn’t like the truth. He just moves it. (48RT 9548-9550, italics added at AOB 136; see also 48RT 9606 [where the prosecution argues, “The total cost to the defense to hide the truth from you folks, a staggering $419,000” (italics added to reflect alleged misconduct on appeal)].) Like the opening summation, this rebuttal argument was fair comment on the evidence, the prosecution exhorting the jury to find that that its interpretation, rather than the defense interpretation, was the truth. “Although the prosecutor again accused the defense of attempting to hide the truth . . . , the context was such that the jury certainly would understand it to be nothing more than urging the jury not to be misled by defense evidence.” (See People v. Cummings, supra, 4 Cal.4th at p. 1302.) Moreover, in this excerpt, Deputy District Attorney Jackson was directly responding to the defense argument that the prosecution was not interested in the truth and that the prosecution’s role was to explain how all possibilities other than murder did not happen. In this regard, defense counsel had argued that the prosecution’s approach was “to probe that he

119

did it, not independently to investigate and to determine what happened here” (47RT 9325); that the jury should question whether the prosecution “clearly and unquestionably excluded the possibility that Lana Clarkson committed that act” (47RT 9330); that the prosecution must “eliminate all possibilities” (47RT 9332); that “[t]he prosecution wants you to decide the case emotionally” (47RT 9344); that the prosecution decided to “choose to ignore truth and go look for an excuse” because “[t]he prosecution has a story. We are telling you about science, about the facts and about what the physical facts actually show” (47RT 9353); and that the prosecution made “an attempt to give a sinister interpretation to what may be, you know, a completely random act” (47RT 9426). The prosecution thus properly retorted that it was the defense that was avoiding the truth and that it was not the prosecution’s job to specifically disprove all other possibilities besides guilt. The prosecution was also within its rights to argue that the jury should accept “only reasonable and truthful conclusions.” (48RT 9612.) At bottom, this was a “reasoned rebuttal” (People v. Leonard (2007) 40 Cal.4th 1370, 1406) to defense counsel’s argument that the prosecution had to affirmatively negate all reasonable possibilities for the jury to find appellant guilty. The two other rebuttal statements relating to the “truth” issue were also valid challenges to defense evidence and tactics. First, the prosecution argued that numerous times at trial, after defense counsel read part of a transcript, the prosecution would “read the rest of the paragraph.” After making this observation, the prosecution argued, “When the truth doesn’t suit the defense, just move the truth or mask the truth.” (48RT 9553.) Second, at the outset of another portion of the argument, the prosecution stated, “The defense’s invention is the following . . . .” (48RT 9558, italics added to reflect alleged misconduct on appeal.) The prosecution then recounted the defense suicide theory and refuted point by point what the

120

defense supposed to have occurred. (48RT 9557-9597.) Consequently, in both instances, the arguments relied on the evidence and responded to the defense presented. Appellant next argues that there was a violation of his federal constitutional right to confrontation from the prosecutor’s argument that the defense’s theory-shifting was an attempt to “hide the truth” and was “almost like an inside joke with us because we’ve seen this moved to here” because these statements were not based on the evidence at trial. In doing so, he relies on People v. Bolton (1979) 23 Cal.3d 208. (AOB 141.) In Bolton, the California Supreme Court considered a prosecutor’s argument hinting that but for the rules of evidence the prosecutor could have shown the defendant had prior convictions. (Id. at p. 212.) The court held, “There is no doubt that the prosecutor’s statement constituted improper argument, for he was attempting to smuggle in by inference claims that could not be argued openly and legally.” (Ibid.) By contrast, here, there was no similar attempt to “smuggle in by inference” evidence that could not be admitted. Also, by noting its reaction to the defense tactics, the prosecutor’s argument “did not purport to be based on factual information known only to him.” (People v. Bloom (1989) 48 Cal.3d 1194, 1213.) The prosecution’s comments did not violate appellant’s right to confrontation. This case is also distinguishable from People v. Herring (1993) 20 Cal.App.4th 1066, 1075-1077 (AOB 140) in that unlike in Herring, the prosecution did not accuse defense counsel of telling his client to lie in court and did not suggest it was aware of facts not in evidence. To the contrary, the prosecution’s comments suggested all of the evidence was presented to the jury and implied that defense counsel, through “the art of persuasion” (People v. Gionis, supra, 9 Cal.4th at p. 1216), was attempting

121

to steer the jury away from the evidence of appellant’s guilt and toward the questionable evidence of the suicide defense. Appellant argues that the trial court admonished the prosecution about similar remarks during the first trial, and should have done the same in the second trial. (AOB 141-142.) But the remarks were dissimilar and of a different character. In a motion for a mistrial during the first trial, appellant claimed that the prosecution had improperly argued to the jury that defense counsel had instructed the defense witness Punkin Pie Laughlin to testify in a particular way. (FT 65RT 11147; see FT 65RT 11132 [where the prosecution argued that “Tawny Tyndall and the defense made sure that those conversations [between Tawny Tyndall, Laughlin, and Jennifer Hayes] were never recorded” and that defense counsel “even talked to Jennifer Hayes at one point. That wasn’t recorded either. Whose testimony were you really listening to?”].) The trial court later in the hearing found that the prosecution had indicated that defense counsel “was giving them a story, and that’s disparaging counsel, and there’s no evidence of that. So either you clean it up, and you say, ‘I made a mistake, or if that’s what you think I was saying, I wasn’t,’ or I’ll take care of it.” (FT 65RT 1115511157.)22 In the first trial, then, the complained-of prosecution remarks were allegations that the defense was affirmatively helping the witnesses The trial court the next day admonished the jury, “It was argued yesterday that defense counsel had gotten together or intimated that defense counsel had gotten together with Miss Laughlin concerning her testimony about Miss Clarkson’s purse. [¶] There is no evidence whatsoever that defense counsel and a witness, any witness, got together concerning testimony. That’s not a fact that’s before you. You may not consider it. [¶] Whether witnesses and certain things were argued, that’s fine, but there is no showing whatsoever that defense counsel asked a witness to testify untruthfully in any way, or any counsel asked a witness to testify untruthfully, and you may not consider that.” (FT 66RT 11272.)
22

122

formulate their testimony, whereas in the second trial, the complained-of prosecution remarks were arguments that defense counsel called witnesses that gave implausible testimony. The trial court’s admonition in the first trial therefore pertained to a different type of matter than at issue here and would not have applied. In any event, any possible error from the prosecution’s argument in the first trial is “totally irrelevant to any review of the record in this case” because the first trial ended in a mistrial and the jury convicted appellant based solely on what happened in the second trial. (People v. Renteria (1992) 6 Cal.App.4th 1076, 1081; see also In re Williams (1994) 7 Cal.4th 572, 612, fn. 23.) Because the jury would have understood the prosecution’s remarks in context as argument not to be misled by the defense interpretation of the evidence, rather than as a personal attack on defense counsel, there was no prosecutorial misconduct. C. There Was No Misconduct in the Prosecution’s Argument About Defense Expert Fees

Appellant contends that the prosecution improperly argued that the defense experts were influenced by compensation and that defense counsel fabricated the defense by hiring witnesses to give false testimony. (AOB 139-147.) Under longstanding precedent, however, the prosecution was permitted to argue that the payments that the witnesses received were a source of bias and affected their credibility. Furthermore, the prosecution’s comments did not imply that the defense suborned perjury by seeking implausible expert testimony favorable to appellant’s case. “Closing argument may be vigorous and may include opprobrious epithets when they are reasonably warranted by the evidence.” (People v. Sandoval (1992) 4 Cal.4th 155, 180.) “Although prosecutorial arguments may not denigrate opposing counsel’s integrity, harsh and colorful attacks

123

on the credibility of opposing witnesses are permissible.” (People v. Parson (2008) 44 Cal.4th 332, 360, internal quotation marks omitted.) “Moreover, a prosecutor is free to remind the jurors that a paid witness may accordingly be biased and is also allowed to argue, from the evidence, that a witness’s testimony is unbelievable, unsound, or even a patent lie.” (Ibid. [the prosecutor permissibly argued that the defense expert was a “spin doctor” and a “washed-up doctor who had now just become a professional witness” after finding that “he can make a living working in court” due to “people who will hire him to come in here and give these offhanded, glib opinions”]; accord, People v. Arias, supra, 13 Cal.4th at pp. 162, 181-182 [the prosecution permissibly argued that the defense expert “had ‘stretched [a principle] for a buck’” and urged the expert to “go some place else and sell your tonic water to another forum”].)23 Along the same lines, a prosecutor does not “imply[] that counsel had suborned false testimony” by seeking “an expert whose technical opinions Appellant cites out-of-state and federal circuit authority for the proposition that prosecutors may not argue that a defense witness gave false testimony as a result of payment. (AOB 142-143, citing State v. Smith (N.J. 2001) 770 A.2d 255 and Sizemore v. Fletcher (6th Cir. 1990) 921 F.2d 667.) This Court is not bound to follow such authority (People v. Crittenden, supra, 9 Cal.4th at p. 120, fn. 3), but of course, it is obliged to follow the California Supreme Court authority that clearly allows this type of argument (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455). In any event, the usual rule in other jurisdictions is the same as the California Supreme Court’s rule––prosecutors may explore bias based on witness fees. (People v. Sommers (Colo.Ct.App. 2008) 200 P.3d 1089, 1096-1097 [collecting cases].) The two cases appellant relies on markedly differ from this case as well. There was no serious challenge to the substance of the experts’ credibility in Smith, supra, 770 A.2d at page 271, and the prosecutor in Sizemore, supra, 921 F.2d at page 671, argued that the defendant could buy justice in part by hiring a “multitude of attorneys.” By contrast, the prosecution in this case exposed and detailed many evidentiary reasons that the defense experts’ testimony was unsound and did not assert bias based on defense counsel’s fees.
23

124

would be favorable to defendant’s case.” (People v. Arias, supra, 13 Cal.4th at p. 182.) “Since expert opinions are generally subject to reasonable debate, an attorney’s good faith selection of a favorable expert does not reflect adversely on counsel’s ethics or integrity.” (Ibid.) “An argumentative reminder that defense counsel may have chosen [a defense expert] for an expert opinion that was implausible but favorable to the defendant’s case is not equivalent to an insinuation that counsel suborned perjury or engaged in deception.” (People v. Parson, supra, 44 Cal.4th at p. 363, internal quotation marks and brackets omitted; see People v. Bell (1989) 49 Cal.3d 502, 538 [the prosecution permissibly argued that “‘it’s [defense counsel’s] job to throw sand in your eyes’”].) The prosecution also may argue that defense counsel intentionally clouded the facts as long as there is evidence to support that claim. (See People v. Mitcham (1992) 1 Cal.4th 1027, 1081-1082 [finding no error from the prosecution’s argument, “I talked to you earlier about dazzling, you know dazzle you with BS. Well, they can baffle you with BS; and that’s what they’re trying to do. They’re trying to baffle you with the red herring, PCP”], distinguishing People v. Bain (1971) 5 Cal.3d 839, 847 [the prosecution may not make an “unsupported implication” that defense counsel fabricated the defense].) Again, when considering a claim of prosecutorial misconduct, the reviewing court views the challenged statement in the context of the argument as a whole. (People v. Dennis, supra, 17 Cal.4th at p. 522.) Appellant first complains that the prosecution’s comments regarding defense witness Elizabeth Loftus were error in that the prosecution argued that Loftus was “a gun for hire” without there being evidence about the compensation that she received. (AOB 143-144.) Loftus was the last witness for the defense, an eyewitness testimony expert called to challenge the validity of De Souza’s recollection of appellant’s confession after

125

Clarkson was shot. (45RT 8817-8818.) In the rebuttal argument, the prosecution argued for the jury to reject the defense attempts to undermine the reliability of De Souza’s account of appellant’s statements: So, the defense, under the rubric of science, calls in somebody name[d] Elizabeth Loftus. Why? Because, just like the blood spatter on the jacket, they have to do something with this confession. The defense’s client confessed. He confessed to murdering Lana Clarkson. They’ve got to do something. So, the “hail mary” pass is call in Elizabeth Loftus. She is an expert for hire. She is a gun for hire. She wrote the book on being a professional defense witness. In this case, I get to say it. She literally wrote the book. The title of her book is “Witness for the Defense.” . . . And then Adriano De Souza takes the stand. The evidence begins to po[u]r in, conversation after conversation after conversation, taped statement after taped statement, report after report. Every one of which says the same thing, those five words that I don’t even have to repeat at this point because you all have it etched in your mind: “I think I killed somebody.” He has never wavered. He has never wavered. That is what he heard. And so when that didn’t work out for Mr. Weinberg and the defense team, they call in Elizabeth Loftus, and so he is confident, and he is consistent. To heck with it, we will find some expert for hire that says confidence and consistency doesn’t matter, so that’s what they do. They call in Elizabeth Loftus. You didn’t need to hear a word out of her mouth. Everything that you need to know, about whether or not to believe Adriano De[] Souza, you already knew before you walked into this courtroom. It’s just common sense. The reason that the witness stand is on this side -- anybody ever wonder why a courtroom is built the way it is, the reason why the witness stand is on this side in this courtroom instead of this side? Somebody knows. Because it’s close to you. It’s always on the side of the jury. Why? Because you are the beginning, the middle, and the end of deciding credibility of a witness, not the defense, certainly not some defense expert who is [a] gun for hire. (48RT 9574-9576, italics reflecting alleged misconduct on appeal.) In this excerpt, the prosecution properly argued that based on the strength of De Souza’s testimony and the changing tactics of the defense, the jury should not give credence to Loftus’s expert opinion about

126

eyewitness identification. The prosecution also properly argued that Loftus’s testimony was suspect, in part, because she was a paid witness. (48RT 9573-9583.) Although there was no testimony about the exact amount Loftus was receiving in this case, there is no requirement that there be such evidence to make an argument of bias based on her professional leanings. And indeed, there were strong indications that Loftus was biased in favor of the defense. As the prosecution reminded the jury, Loftus’s book was entitled, “Witness for the Defense.” Additionally, in the approximately one hundred cases that she testified in as an expert, all but one was on behalf of the defense. (48RT 8914-8915.) Under these circumstances, the prosecution validly used Loftus’s status as a professional witness for the defense to attack her credibility. Similarly, the prosecution’s argument of bias did not constitute an allegation that defense counsel suborned perjury or engaged in deception by hiring Loftus. (See People v. Arias, supra, 13 Cal.4th at p. 162 [the prosecutor properly argued that the jurors should find the eyewitness’s testimony more credible than the defense expert’s testimony due in part to the expert’s compensation].) Appellant also contends that the prosecution improperly argued that suicidologist Dr. Richard Seiden never made a medical diagnosis and did not rule out homicide, because the trial court had ruled that Dr. Seiden could not testify that Clarkson committed suicide. (AOB 144-145.) However, the prosecution’s argument did not use the trial court’s ruling against appellant. At a hearing before Dr. Seiden testified, the trial court ruled that he could not testify that Clarkson committed suicide. (28RT 5569.) At trial, Dr. Seiden testified that the evidence presented to him was consistent with either suicide or homicide. (42RT 8227, 8230; 43RT 8330-8332, 8405, 8467; 44RT 8547, 8577-8578, 8582, 8633.) Dr. Seiden further testified that he billed the defense about $6,000 for his services as a consultant and

127

would additionally be billing the defense for his time spent testifying in Los Angeles. (42RT 8239.) In the rebuttal argument, the prosecution countered Dr. Seiden’s testimony that the evidence was consistent with suicide by observing that he only examined 30 of Clarkson’s e-mails out of 12,000 available to the defense, that he was confused about or was not aware of the evidence in this case, that he relied on Clarkson’s driving tickets to show recklessness without knowing their circumstances, and that he ultimately could not rule out homicide. (48RT 9591-9594.) The prosecution also argued that the evidence showed that Clarkson was not “on the verge of killing herself” but instead that she was a “fighter” doing “whatever it takes to make the next step, to make the next goal” and was “looking forward to the next day, the next week, the next months of her life . . . .” (48RT 9594-9596.) In addressing the credibility of Dr. Seiden, the prosecution thus urged the jury to disregard his testimony because his opinion was unhelpful and inadequately supported and because of the compensation he received: How much stock can you actually put into this guy? He did say that Lana Clarkson did not have suicidal ideation. He did say she did not have any kind of a major depressive disorder. He did say that he cannot rule out homicide. So, at the end of the day, did he add anything to this trial that you didn’t already know? He can’t rule out suicide; he can’t rule out homicide. That means it’s a flip of the coin. He didn’t know anything about the evidence in this case and didn’t consider anything else. So, he was a nonentity in this trial. He actually never made a medical diagnosis. All he did is come in here, at the request of the defense, and just make a judgement, just [] make a judgment to help the defense, and he was paid for his time, and he did cash the check. (48RT 9594.) The prosecution’s reference to Dr. Seiden not making a medical diagnosis was well-founded. The evidence revealed that Dr. Seiden did not believe that Clarkson suffered from depression or other mental disorders.

128

(43RT 8424.) Also, Dr. Seiden acknowledged that although he diagnosed Clarkson as suffering from hopelessness or depressive ideation based on upon the 30 e-mails that he was provided, it was possible that she was just expressing herself in these e-mails with “melodramatic flare.” (43RT 8432.) The prosecution was free to argue from Dr. Seiden’s wavering and poorly supported testimony that he “actually never made a medical diagnosis.” (48RT 9594.) The prosecution’s argument was not somehow a veiled reference to Dr. Seiden’s failure to testify that Clarkson committed suicide. Along the same lines, in suggesting that the jury should give no weight to the defense expert’s opinion that suicide could be the cause of death, the prosecution was merely drawing attention to the fact that the expert also opined that homicide could be the cause of death. There was no implication in this argument that the defense failed to offer an opinion that Clarkson committed suicide. Appellant’s reliance on People v. Varona (1983) 143 Cal.App.3d 566, 570, People v. Castain (1981) 122 Cal.App.3d 138, 146, and People v. Hernandez (1977) 70 Cal.App.3d 271, 279-280 (AOB 144) is misplaced. These cases all involved erroneous evidentiary rulings that the prosecution improperly capitalized on during closing argument. Appellant does not contend that the trial court erroneously prevented Dr. Seiden from opining on the issue of whether Clarkson committed suicide. Moreover, as explained above, the prosecution did not take unfair advantage of the trial court’s ruling. Appellant’s argument that there was no evidence that Loftus’s and Dr. Seiden’s testimony was “based on money rather than professional research and experience” (AOB 145) is baseless. As indicated above, the prosecution debunked their testimony as being inconsistent with the evidence. The prosecution did not need to bring in eyewitness identification or suicidology witnesses in order to challenge the defense

129

testimony. The prosecution could simply ask the jury to infer that the witnesses’ compensation influenced their testimony and was a source of bias. (See 25CT 6441-6442 [CALCRIM 226 instructs the jury that “[i]n evaluating a witness’s testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony,” including, “Was the witness promised any benefit in exchange for his or her testimony?”]; 48RT 9607 [where the prosecution argues that “you can use the amount of money that they were paid or that they were paid at all to determine how much credibility you are going to give them”].) Appellant next targets the prosecution’s arguments regarding Stuart James, a defense expert witness specializing in bloodstain pattern analysis. Appellant claims that the prosecution wrongly argued that James was biased, because the prosecution also relied on favorable aspects of James’s opinion during closing arguments. Specifically, the prosecution relied on James’s concessions on cross-examination that at least part of the blood on appellant’s jacket came from the gunshot as opposed to satellite spatter and that appellant was within arm’s length of Clarkson when she was shot. (AOB 145, citing 47RT 9264-9266; 48RT 9562, 9566-9568; see 30RT 5950, 5952-5953.) But despite these concessions, James’s testimony on direct examination was mainly geared toward disputing the prosecution forensic testimony. James’s conclusions included that the blood spot on appellant’s left sleeve was a transfer stain and not an impact spatter (29RT 5759-5761), that not all the spatter from the chair came from Clarkson’s mouth and that the blood spatter on the outer portion of the armrest of the right side of the chair was satellite spatter and not impact spatter (29RT 5772-5776), that the stains on Clarkson’s slip dress did not indicate the source of the spatter (29RT 5793), and that Clarkson’s position at the moment of the shooting could not be determined (29RT 5795-5797). The prosecution thus was

130

entitled to argue that James (the prosecution apparently did not pinpoint his compensation at a source of bias, but did argue generally that the defense expert witnesses were biased based on their total compensation (see 48RT 9606)) was influenced by the generous payments that he earned from the defense. At $250 an hour, James received about $35,000 for the first trial and would bill about $40,000 more for the second trial. (29RT 5804-5807; 30RT 5825-5830.) Appellant next turns to the testimony of James Pex, another defense bloodstain pattern expert. Appellant trumps up Pex’s expert qualifications and his conclusions that the blood spatter was inconsistent with appellant firing a Colt Cobra. (AOB 145-146.) Pex’s credibility, however, was wholly undermined because his PowerPoint presentation of the Colt Cobra test that he performed on October 14, 2008, was exposed as using a photograph of a Smith & Wesson from his test on September 3, 2008. (37RT 7131-7132.) The prosecution accordingly drew the reasonable inference in argument that Pex “did a bait and switch with the photos of his hands showing the spatter, and that’s the basis on which he testified that, in fact, that, in fact, Spector couldn’t have been holding the gun.” (48RT 9588.) In turn, the prosecution reasonably concluded that Pex had “perjured himself in front of you in living color.” (48RT 9553). After discussing Pex’s apparent foul play, the prosecution noted, “And by the way, for his efforts, 66 grand.” (48RT 9589; see 37RT 7094 [at the time of Pex’s testimony, the defense had paid him $66,829.53].) Given Pex’s false demonstration, the prosecution had evidentiary support for its argument that Pex lied on the witness stand for money. Appellant next argues that Drs. Werner Spitz and Vincent Di Maio were “leaders in the field of pathology” and gave no testimony on “crossexamination remotely suggesting they fabricated their testimony or that they were motivated to lie for money, as was argued by the prosecution.”

131

(AOB 146-147.) But during cross-examination the prosecution exposed several evasions in Dr. Spitz’s and Dr. Maio’s testimony, and during closing argument pointed out significant inconsistencies. As to Dr. Spitz, he testified that Clarkson died as a result of suicide and not of homicide. (34RT 6500, 6514-6515, 6523-6524, 6538, 65446545.) Dr. Spitz acknowledged, however, that he had also testified at the first trial that he would have to reconsider this opinion if appellant were shown to be in such proximity to Clarkson to enable him to fire the fatal shot. (35RT 6663; see FT 48RT 8373-8374.) Additionally, Dr. Spitz watched the videotape on blood spatter evidence from the first trial and implausibly maintained that Lintemoot did not point to the back of the wrist as opposed to the webbing of the thumb and index finger. (34RT 66266627; see Peo. Exh. 243.) At argument, the prosecution also pointed out that Dr. Spitz had contradicted himself about the amount of money he had made from the trial and whether he had informed defense counsel about this sum or vice versa, that he had changed his testimony about the cause of Clarkson’s bruises, and that he had seen gunshot residue (GSR) on appellant’s sleeve even though it had not been tested for GSR and even though GSR cannot be seen with the naked eye. (48RT 9597-9600; see 40RT 7779.) Dr. Spitz’s billing for the first trial was $141,443.66, and he testified that he was to receive about $40,000 more from his appearances in the second trial at a rate of $5,000 a day plus preparation time. (34RT 6566-6567, 6584, 6495-6496, 6589-6590; 35RT 6656-6657, 6691-6692.) As to Dr. Di Maio, he concluded that beyond a medical doubt, Clarkson’s gunshot wound was self-inflicted. (40RT 7690-7691.) He conceded, however, that each of the four factors leading to his conclusion was also consistent with homicide. (40RT 7834-7836.) He also disavowed any significance to James Pex’s switch of the Colt Cobra and Smith & Wesson photographs in his demonstration, while having to acknowledge on

132

cross-examination several significant differences between these firearms. (40RT 7746-7751, 7757, 7764-7767.) The prosecution during argument also reminded the jury that Dr. Di Maio, when confronted with the evidence of the blood spatter on the back of Clarkson’s wrists, admitted that Clarkson could not have held the weapon to kill herself in the manner suggested, but that Dr. Di Maio then testified, unbelievably, and contrary to the other expert testimony and common sense, that her blood must have flown in an arc to loop over to the back of her hand. (48RT 9601-9604.) Dr. Di Maio was to make a total of about $50,000 to $53,000 for testifying at a rate of $400 an hour. (40RT 7768.) Thus, there was evidence supporting the prosecution’s argument that the defense experts made certain statements on the witness stand “helpful to the defense that do not, do not in any way, shape, form or fashion fit into the science in this case. You have to ask yourself why.” (48RT 9607.) The prosecution also reasonably queried, “How much credibility are you going to give the science experts when they have been paid this kind of money?” (48RT 9607.) At bottom, it was permissible for the prosecution to argue that, based on the evidence and the payment to the defense witnesses, the jury should find that the prosecution’s interpretation was the truth, not the defense’s interpretation. Contrary to appellant’s assertion (AOB 147), this search for truth was not “an assault on our adversary system of justice” but rather was the system’s central purpose. Still, appellant maintains that the prosecution could hardly dispute what the defense experts testified to, listing five examples. (AOB 146147.) None of these examples illustrates his point. First, the prosecution rebutted the asserted statistic that 99 percent of intraoral shootings were suicides (34RT 6501-6503, 6513, 6596; 40RT 7692-7694, 7770, 7784, 7834) with evidence that none of the reported intraoral suicides involved a shooting at another person’s home (33RT 6334-6335, 6337-6344) and with

133

Dr. Di Maio’s concession that a fatal intraoral gunshot wound could also be the result of a homicide based on other factors (40RT 7785-7786, 78347835). The prosecution also elicited contrary statistical evidence from defense suicidologist Dr. Seiden that Clarkson did not suffer from clinical depression or major depressive disorder, unlike the 90 percent of persons that commit suicide, and that there were no thoughts of or plans to commit suicide in Clarkson’s e-mails, even though 75 percent of persons that commit suicide had a history of either a previous suicide attempt or threat. (43RT 8420-8421, 8424-8425, 8449-8550.) Most to the point, however, the prosecution at closing argument focused on the particular circumstances of this case, arguing that the 99 percent statistic “doesn’t have anything to do with the reality of what happened in this case . . . . The reality is, Phillip Spector had his hand on that gun, and Lana Clarkson ended up dead.” (48RT 9627-9628.) Second, the prosecution rebutted Dr. Di Maio’s testimony that impact blood spatter on the front edge of the gun grip was inconsistent with appellant holding it in Clarkson’s mouth. (See 40RT 7714-7717, 7817.) In this regard, the prosecution argued that the only witness finding the blood to be spatter rather than a smear or transfer (which appellant left when wiping off the gun) was James Pex (37RT 7107), whose credibility was eviscerated when he switched photographs of different types of guns in his gun demonstration. (48RT 9629.) Third, the prosecution rebutted the defense testimony finding suicide based on the absence of GSR and blood spatter on appellant’s jacket and shirt sleeves. Appellant’s clothing was never tested for GSR because his clothing would be expected to contain GSR given the number of his guns in his house. (48RT 9634-9635.) A lack of GSR would also have been legally insignificant. As defense witness Dr. Werner Spitz wrote in his book, “The presence of GSR does not prove someone fired a gun. The

134

absence of GSR does not prove they did not.” (34RT 6643, 6647.) And there was in fact blood spatter found on appellant’s left shirt sleeve; that it was not on his right shirt sleeve was, as the prosecution pointed out, indicative of where Clarkson’s and appellant’s hands were positioned when appellant was holding the gun. (48RT 9633-9634, 9636-9637.) Fourth, the defense testimony that the physical evidence was consistent with Clarkson shooting herself was undermined, again, by the fact that Dr. Di Maio admitted that every one of the factors that he relied on in support his conclusion of suicide was also consistent with homicide. (40RT 7782, 7785-7786, 7808, 7810, 7821-7822, 7827, 7834-7835.) Tellingly, also, Dr. Spitz could not say how Clarkson held her hands when she supposedly shot the bullet into her mouth. (34RT 6628-6629.) Fifth, as to the e-mails from Clarkson that appellant characterizes as “despairing,” the prosecution showed that the defense had selectively given its suicide expert only 30 of Clarkson’s 12,000 e-mails to draw this conclusion (43RT 8433-8434; 44RT 8546-8547; 48RT 9591-9594), and on cross-examination, the defense expert acknowledged that Clarkson’s activities before her death demonstrated her hopefulness and getting on with her life after recovering from her wrist injuries (43RT 8438-8442; see 48RT 9594-9596). The prosecution rigorously disputed every material aspect of the defense evidence. Having shown and argued that the defense experts’ opinions were implausible, the prosecution could reasonably infer that the witnesses’ remuneration was the cause. Appellant also contends that the prosecution improperly argued that defense counsel had retained the defense experts so that they would falsely testify. (AOB 137-141.) However, the prosecution’s comments were geared not to disparage opposing counsel but rather to attack the credibility of the witnesses. The prosecution was entitled to strongly argue that the defense expert testimony was unbelievable and to note that the defense

135

experts were well-paid. In turn, the prosecution was entitled to ask the jury to infer that appellant paid these particular experts to testify because they would make implausible allegations supporting the defense case. (People v. Parson, supra, 44 Cal.4th at p. 363; People v. Arias, supra, 13 Cal.4th at p. 182.) A review of appellant’s cited instances of misconduct shows that is all that happened here. In opening summation, the prosecution argued that appellant could pay witnesses to exonerate him despite his guilt: “In Phil Spector’s world, you can commit such violence, such conscious disregard for human life not once but seven times. And when that violence finally catches up to you, you can write a check. You can write a check for $419,000 to hire paid-to-say witnesses to get you out of what you have done.” (47RT 9233-9234, italics reflecting alleged misconduct on appeal.) In rebuttal, during its discussion of the specific weaknesses in the various defense experts’ testimony at trial, the prosecution also reiterated its view that the motive for their opinions was pecuniary: “Ultimately, what the defense science told you was that they were willing to say, when everything adds up to homicide, everything adds up, everything points to homicide, they are willing, for a price, folks, and wait till you get this price, they are willing to come in and say suicide.” (48RT 9597, italics reflecting alleged misconduct on appeal.) Later, the prosecution again argued that the strong evidence of appellant’s guilt and the changing defense theories at trial indicated that the defense had paid for these particular experts to obscure the truth: This is a homicide. It’s not that difficult. Yet, for the right amount of money, the same thing happened over and over and over in this courtroom. How does a homicide become a suicide? You write a big, fat check. That’s how. That’s how a homicide becomes a suicide. The math just doesn’t make sense. It doesn’t add up.

136

All told, the defense ended up, basically changing everything. When it didn’t work, they just changed it. If you can’t change the facts, change the evidence. If you can’t change the evidence, change the science, and if you can’t change the science, just go out and buy yourself a scientist. That may work. There may be some way to convince a jury or a juror of that. Don’t let that happen. See this for what it was. This was a “pay to say” defense. You pay it; I’ll say it, no matter how ridiculous it is. I’ll even say blood flies around corners. The total cost to the defense to hide the truth from you folks, a staggering $419,000. Cogitate on that number for just a second. A staggering 419,000 bucks to hide the truth. (48RT 9605-9606, italics reflecting alleged misconduct on appeal.) Considering these remarks in context, they constituted proper argument that appellant had hired witnesses for the purpose of giving implausible opinions that were contrary to the evidence. These remarks were also fair rebuttal to defense counsel’s arguments that the prosecution and law enforcement were biased because all their resources were employed to prove that a homicide occurred, that they ignored the evidence contradicting that conclusion, that they spent unlimited time on the case, that they had a meeting to determine how to support a homicide finding, that the state’s experts had an “agenda” and bias to support the prosecutors that they worked with, and that the prosecution had misrepresented the evidence. (47RT 9333-9343, 9385.) In any event, after the defense counsel’s sole objection that the prosecution was accusing defense counsel of buying testimony, the prosecution emphasized to the jury that it should evaluate the defense witnesses’ credibility: Nobody cares that they are paid. Werner Spitz can make anything he wants. Like I said, he can make a million dollars or a dollar. I couldn’t care less. What we are after is the truth. And you can use the amount of money that they were paid or that they were paid at all to determine how much credibility you are going to give them. That’s what that figure means. How much credibility are you

137

going to give the science experts when they have been paid this kind of money? That’s what that number means. Again, if you decide that any witness deliberately lied or shaded their testimony about something significant, you should consider disregarding their entire testimony. I don’t have to go through them again. Mr. Pex ends up at the end of that sort of wall. It’s up to you to determine how truthful were these folks being with you. How truthful were they? (48RT 9607-9608.) Any doubt that the target of the prosecution’s argument was the defense evidence rather than defense counsel would have been eliminated by these statements. Appellant’s reliance on People v. McGreen, supra, 107 Cal.App.3d 504 (AOB 142) is also misplaced. There, on cross-examination, the prosecutor accused the defense expert witness of perjury without any evidentiary support or authority. The prosecution also suggested that the witness’s membership in scientific societies was a sham, and despite the trial court’s foreclosing him from further cross-examination on these grounds, continued questioning on this topic. The prosecution later argued, “If [the witness] . . . did with his body what he does with his credentials, San Jose Vice would have him arrested on the spot. He sells credentials for $50 an hour . . . . I submit to you [the witness] is a habitual and chronic liar.” The prosecution also asserted that the witness had been the subject of an ethics investigation. (Id. at pp. 514-517.) The Court of Appeal held that the prosecutor’s unsupported perjury allegation, along with his argument capitalizing on this error, combined with a defective reasonable doubt instruction, amounted to reversible prejudice. (Id. at p. 519.) “In no way” was the prosecution’s conduct “in this case comparable to that in McGreen.” (People v. Sandoval, supra, 4 Cal.4th at p. 180.) The prosecution here did not elicit testimony or make arguments unsupported by the record. Instead, the prosecution argued that there was a causal relationship between the well-documented large payments to the defense

138

experts and the well-discussed incredibility of their testimony at trial. In the end, the prosecution did not improperly accuse defense counsel of misconduct. Rather, based on the evidence, the prosecution properly asked the jury to infer that the defense resorted to hiring experts to offer implausible testimony favorable to appellant’s case. D. There Was No Prejudice

Assuming for the sake of argument only that appellant preserved his claim for review despite his failure to object and request an admonition, and that the prosecution’s argument was improper, a review of the record firmly demonstrates that such error was harmless. Where misconduct rises to the level of rendering the trial so fundamentally unfair as to violate due process, the Chapman, beyond-a-reasonable-doubt harmless error standard for federal constitutional violations applies. (People v. Gionis, supra, 9 Cal.4th at pp. 1214-1216.) Where misconduct does not rise to this level, but the prosecution used deceptive or reprehensible methods to attempt to persuade the jury, then the Watson, reasonable probability standard applies. (Id. at p. 1215.) Here, even if the prosecution’s statements constituted misconduct, they did not make the trial so fundamentally unfair as to warrant the Chapman standard. In any event, the error was harmless under either standard. First of all, if there was any possibility that the jury misconceived certain of the prosecution’s comments as personal attacks on defense counsel, the jury would have been disabused of such a construction by the prosecution’s other statements during closing argument. In this respect, the prosecution underscored that the jury’s role was to examine the credibility of the witnesses in light of the evidence and observed that the fact that the defense witnesses were paid, by itself, was something that “[n]obody cares” about. (48RT 9607-9608.) Additionally, the prosecution’s argument

139

centrally involved a dissection of the evidence demonstrating the defects in appellant’s defense, and the isolated remarks at issue were a relatively small aspect of its presentation. (Contrast People v. Hill, supra, 17 Cal.4th at pp. 823-839 [finding prejudice in part because the prosecutor engaged in sustained misconduct that included disparaging defense counsel, misstating the evidence, and arguing facts not in the record].) Also, any danger that the jury would have inferred some out-of-court knowledge of evidence from the prosecution’s argument would have been dispelled by the trial court’s instruction to the jury that “[n]othing that the attorneys say is evidence. In their opening statements and closing arguments, the attorneys discuss the case, but their remarks are not evidence.” (48RT 9658; 25CT 6440; see People v. Young, supra, 34 Cal.4th at pp. 1192-1193 [the prosecution’s repeated references to defense counsel as “liars” was harmless error where the “the trial court instructed the jury that it was to decide the case based on the evidence admitted at trial and that the arguments of counsel were not evidence”].) And, significantly, the evidence overwhelmingly established that appellant murdered Clarkson. (See People v. Bell, supra, 49 Cal.3d at pp. 541-542 [the prosecutor’s misconduct was harmless where the evidence of guilt was strong, even though the jury hung in the first trial and the second jury at one point was deadlocked]; Arg. I.F, ante.) This evidence included appellant’s confession to shooting Clarkson, his prior firearm assaults on women in similar situations, his attempts to cover up the murder, his statements that women deserved to be shot in the head (as Clarkson tragically was), the blood spatter evidence demonstrating the impossibility of Clarkson holding the gun to kill herself, the purse around her shoulder indicating that she was ready to leave, and the unlikelihood of the defense narrative that after going to a stranger’s house for a drink, she found his gun and shot herself. Accordingly, it is not reasonably probable that

140

appellant would have received a more favorable result had the prosecution not made the challenged remarks during closing argument. For the same reasons, any error was harmless beyond a reasonable doubt. CONCLUSION Based on the foregoing, respondent respectfully asks that this Court affirm the judgment. Dated: October 8, 2010 Respectfully submitted, EDMUND G. BROWN JR. Attorney General of California DANE R. GILLETTE Chief Assistant Attorney General PAMELA C. HAMANAKA Senior Assistant Attorney General

LAWRENCE M. DANIELS Supervising Deputy Attorney General Attorneys for Respondent

LMD:fc LA2009507511 60564974.doc

141

CERTIFICATE OF COMPLIANCE I certify that the attached RESPONDENT’S BRIEF uses a 13 point Times New Roman font and contains 44,037 words. Dated: October 8, 2010 EDMUND G. BROWN JR. Attorney General of California

LAWRENCE M. DANIELS Supervising Deputy Attorney General Attorneys for Respondent

Sign up to vote on this title
UsefulNot useful