Matthews v. Superior Court

Opinion

Petitioner seeks a writ of prohibition to restrain the superior court from allowing him to be prosecuted for the murder of Lisa Mather (Pen. Code, § 187, subd. (a)) with the special allegation he was engaged in the commission of rape at the time of the murder (Pen. Code, § 190.2, subd. (a)(17) and for the rape of Lisa Mather (Pen. Code, § 261, subd. (2).) Petitioner alleges the superior court improperly denied his motion to set aside the information pursuant to section 995 (Pen. Code).

Statement of Facts and Proceedings Below

The following evidence was presented to the magistrate at the preliminary hearing. Eighteen-year-old Lisa Mather was last seen by her mother on the morning of January 11, 1985. She was wearing a purple Spandex leotard with a long black skirt over it and a long black jacket. She was also wearing two-inch black pumps with silver studs. Two friends of the victim testified they were with her on Sunset Boulevard at about 1 a.m. where she was seen talking with a man before she disappeared. Amy Steckler testified she and Lisa shared two beers. She saw Lisa talking with a man but she could not describe him well. Anthony O’Farrill could not make an in-court identification but had picked a photo of petitioner out of a police photo lineup which “look[ed] like” the man with Lisa. Lisa was not seen alive again.

Nearly two years later, on December 3, 1986, Paul Yettaw was in Cold-water Canyon when he came upon an abandoned campsite. He followed an animal path and came upon another tent site. It was there he discovered a skull, spinal cord and long leg bones at the base of a tree. There was a rope around the tree and the rope was mixed up with the bones. Yettaw moved the skull, spinal cord and leg bones.

Joseph Anselmo, deputy coroner and forensic dentist, compared original X-rays provided by the victim’s dentist with 18 postmortem original X-rays, the skull and lower jaw and concluded the victim was Lisa Mather.

Forensic anthropologist Charles Cargill went to the campsite on December 4, 1986. He testified the bones were on a steep incline with the majority of bones located six to ten feet directly below the tree. In his opinion the bones were of a female Caucasian who was between 16 to 23 years old and between 5’6” to 5’9” in height. The scapula had sustained a puncture wound. It was his opinion the body was not buried in a dug grave because there was no dirt in the nasal aperture but had been covered with brush with dirt shoveled over the brush. He had also observed shovel marks.

Ronald Linhard, supervisory criminalist at the Los Angeles County Coroner’s Office, testified he could not conclude whether or not the victim was tied to the tree because he did not see the original location of the bones in relationship to the rope.

Jacqueline Dosch who lived near Coldwater Canyon and Valleyheart testified a young man borrowed a shovel from her on January 28, 1985. She

Petitioner subsequently wrote a statement for the detective dated January 8, 1987. In it he stated he had been drinking all evening when he met a woman in front of the Whiskey a Go Go. They picked each other up and went across the street to have a drink. They decided to go swimming and took a taxi to the Harvard School. He kissed her at the pool, and they had sex on the pool diving ladder. He then invited her to go up the hill. He stated that he found a rope and suggested to her that he tie her up and make passionate love to her. He tied the rope to the tree and wound it around her neck. He went into the tent to determine if the lantern worked when he heard a squeal. He stated as follows: “So I rushed over to her, and she was on her back, coughing and choking. I started crying and panicking, trying to untie her as she coughed. She stopped breathing while I was crying and trying to untie her. I felt her pulse; no pulse. . . .” He then ran down the hill to his friend’s apartment. He did not tell the friend what had happened. Later after the incident he went back to bury her with sticks and debris. He unsuccessfully tried to untie her. About two weeks later he borrowed a shovel to bury Lisa. He was arrested when he was walking down Coldwater to Valley heart.

The magistrate determined there was sufficient cause to hold petitioner to answer for violation of 187, subdivision (a) (Pen. Code) in count one along with the special allegation the murder occurred while he was engaged in the commission of rape (Pen. Code, § 190.2, subd. (a)(17) and for rape in count two (Pen. Code, § 261, subd. (2)). Petitioner’s motion to set aside the information (Pen. Code, § 995) was denied by the superior court.

I. The Prosecution Established the Corpus Delicti of Both Murder and Rape.

A defendant may be held to answer in the superior court if it appears from the testimony at the preliminary examination that a crime has

Petitioner contends the magistrate erred in admitting evidence of the two prior rapes to establish the corpus delicti of rape or attempted rape. Relying on People v. Estrada (1923) 60 Cal.App. 477 [ 213 P. 67 ] and People v. Toledo (1948) 85 Cal.App.2d 577 [ 193 P.2d 953 ] he argues the prosecution is bound by the entirety of his statement regarding Lisa Mather’s death and cannot consider the other acts evidence because there is no evidence she was raped. He claims the only real evidence of what occurred at the campsite with Lisa is found in his statements to the police. We disagree.

“[T]he so-called Toledo doctrine (whose genesis seems to have been merely an argument offered on appeal) [footnote omitted] actually refers to a principle of judicial review invoked in homicide prosecutions obviating a defendant’s burden of showing mitigation or justification where the prosecution’s proof itself tends to show same or a lesser unlawful homicide. [Citations omitted.] The rule in its amended form is properly restricted to those cases where ‘all the prosecution evidence points to excuse or mitigation. If there is substantial evidence incompatible with the theory of excuse or mitigation, the jury may consider all the evidence and determine whether the act amounted to unlawful homicide. [Citations.]’ ” (People v. Ross (1979) 92 Cal.App.3d 391 , 400 [ 154 Cal.Rptr. 783 ] [italics in original], quoting People v. Chapman (1968) 261 Cal.App.2d 149 , 177 [ 67 Cal.Rptr. 601 ].) In his oral and written statements petitioner stated that he had tied a rope around Lisa’s neck and she died as a result of this act. He further acknowledged having had sexual relations with her that evening and she was nude at the time of her death. These facts support the inference of forced sexual relations even though petitioner implies such activities were voluntary. “. . . [I]f there is prosecution evidence which tends to disprove criminality and other prosecution evidence which tends to prove criminality, it is the function of the trier of fact to determine which version is to be believed.” (People v. Acosta (1955) 45 Cal.2d 538 , 542 [ 290 P.2d 1 ].) Furthermore Estrada and Toledo were decided before the Evidence Code became effective January 1, 1967. Sections 780 and 1101, subdivision (c) (Evid. Code) allow the court to consider the credibility of any witness. As stated in People v. Ross, supra, 92 Cal.App.3d at 400 “[t]o the extent that

Petitioner’s reliance on People v. Collins (1961) 189 Cal.App.2d 575 [ 11 Cal.Rptr. 504 ] is misplaced. In that case there was no evidence contradicting the defendant’s version of the killing which would disprove his claim of self-defense, hence the prosecution was bound by that evidence which tended only to show the killing was justifiable. (Id. at pp. 590-591.) “The courts may sometimes say that the prosecution is ‘bound by’ extrajudicial statements of defendant which are introduced by the prosecution and which are irreconcilable with guilt, but this concept is applicable only where there is no other competent and substantial evidence which could establish guilt. [Citations omitted.]” (People v. Acosta, supra, 45 Cal.2d at pp. 542-543.)

We conclude the evidence was properly admitted under section 1101, subdivision (b) (Evid. Code) to show a common plan and scheme because of the extremely close similarity between the prior acts and the Mather death. It allows the admission of evidence “relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity . . . .” In general, evidence of other offenses is inadmissible because it tends to show only bad character or criminal propensity. (People v. Schader (1969) 71 Cal.2d 761 , 772 [ 80 Cal.Rptr. 1 , 457 P.2d 841 ].) Thus such evidence is barred “not because it lacks probative value but because its prejudicial effect outweighs its probative value. [Footnote omitted.]” (Ibid.) One exception to this general rule is to admit evidence of similar offenses when the prejudicial effect is outweighed by its probative value. (Id. at p. 773.)

To determine whether or not the other acts have significant probative value, we must look to the relevance, materiality and necessity of the evidence. (People v. Schader, supra, 71 Cal.2d at p. 774, see also People v. Thompson (1980) 27 Cal.3d 303 , 315 [ 165 Cal.Rptr. 289 , 611 P.2d 883 ].) Three young women were picked up by petitioner on the Sunset Strip. All had consumed some alcoholic beverages. In each case petitioner invited the young women to go with him to the same Coldwater Canyon campsite where the remains of Lisa Mather were found. The testimony of the two prior victims that they were bound, their clothes ripped off, and raped support the probative inference petitioner had a plan or scheme to lure young women into the canyon to sexually exploit them. Evidence of the two prior rapes was clearly relevant and material because it tended to

Moreover, Tassell, supra, did not address the use of prior acts to establish the corpus delicti of a crime. In People v. Scott (1959) 176 Cal.App.2d 458 , 464 [ 1 Cal.Rptr. 600 ] a husband was convicted of the murder of his wife who disappeared. At issue in Scott was whether the corpus delicti of murder could be established where the body was never found. (Ibid.) In that case the court determined the circumstantial evidence was sufficient to prove the corpus delicti of murder. (Id. at pp. 489-491.) The prosecution had presented exhaustive evidence of the husband’s activities both before and after his wife’s disappearance including forgeries and thefts of her property to show motive and plan. (Id. at pp. 473-485.) The Scott court reasoned “[a]ll that is required to prove death is circumstantial evidence sufficient to convince the minds of reasonable men of the existence of the fact.” (Id. at p. 490.) The circumstantial evidence in the case at bar supports the inference petitioner murdered Lisa Mather while engaged in felony rape.

Evidence of prior acts was admitted in United States v. Woods, supra, 484 F.2d 127 , 135 to establish the corpus delicti of murder. Defendant in that case was convicted of the murder of an infant by smothering. (Id. at pp. 128-129.) The government presented evidence by a forensic pathologist to show the death was neither accidental nor the result of natural causes. (Id. at p. 130.) This witness testified he was 75 percent certain the infant’s death was homicide, with the only reservation being the infant could have died from some disease unknown to medical science. (Ibid.) The government also presented evidence showing defendant had had custody of or access to nine children who had suffered 20 episodes of cyanosis. (Ibid.) The Woods court held proof of other incidents involving children was admissible to prove the corpus delicti of murder and child abuse. (Id. at p. 136.) It reasoned an unmistakable pattern emerged when the incidents were considered collectively. (Id. at p. 135.) Such evidence compels the conclusion “that the probability that some or all of the other deaths, cyanotic seizures, and respiratory deficiencies were accidental or attributable to natural causes was so remote, the truth must be that Paul and some or all of the other children died at the hands of the defendant.” (Id. at p. 133.) We similarly conclude the circumstantial evidence of the prior rapes at the very least meets the low degree of probative value required to establish the corpus delicti of rape.

Petitioner contends the evidence presented at the preliminary hearing was insufficient to hold him to answer to the charges of murder and rape. We find no merit in this contention.

“Evidence that will justify a prosecution need not be sufficient to support a conviction. An information will not be set aside or a prosecution thereon prohibited if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it.” (Caughlin v. Superior Court (1971) 4 Cal.3d 461 , 464 [ 93 Cal.Rptr. 587 , 481 P.2d 211 ].) “A reviewing court may not substitute its judgment for that of the magistrate as to the weight of the evidence, and every legitimate inference to be drawn from it must be drawn in favor of the information.” (Ghent v. Superior Court (1979) 90 Cal.App.3d 944 , 955 [ 153 Cal.Rptr. 720 ] and cases cited therein.) Our review of the record supports the inference Lisa Mather was murdered by petitioner during the commission of rape.

“ ‘Once prima facie proof of the corpus delicti is made, the extrajudicial statements, admissions, and confessions of a defendant may be considered in determining whether all the elements of the crime have been established.’ ” (People v. Cooper (1960) 53 Cal.2d 755 , 765 [ 3 Cal.Rptr. 148 , 349 P.2d 964 ] quoting People v. Duncan (1959) 51 Cal.2d 523 , 528 [ 334 P.2d 858 ].) In his taped statement petitioner said he went to the campsite with the victim. Because he had been drinking, he stated that he only recalled coming down the hill thinking that he had killed someone with a rope. According to petitioner in his written statement the victim’s death was caused when she slipped down the hill and was choked by the rope. The fact finder was free to place more credence in the taped oral statement than in the exculpatory explanation in the written statement. Petitioner did not tell anyone about the victim’s death and attempted to bury her thus demonstrating a consciousness of guilt. These facts alone support the inference of a death by criminal agency and establish the elements of murder.

Regarding the special circumstance allegation of rape in count one and the charge of rape in count two, petitioner stated in the tape recording that upon returning to the campsite he found the victim’s nude body with a rope around her neck. Although he was equivocal about having had sexual relations with the victim, he did answer that he “probably” had. In his more detailed subsequent written statement petitioner revealed he had met and picked up the victim on the Sunset Strip. He admitted having sexual relations with her. He took her up to his campsite where he tied her to a tree

At the same time we remind that evidence sufficient to establish a reasonable probability of guilt and thus survive a preliminary hearing may not be enough to prove guilt beyond a reasonable doubt. In this instance, the evidence before the magistrate as to the rape charge and the rape special circumstances allegation was enough to survive the preliminary hearing but was not enough to prove guilt beyond a reasonable doubt.

Disposition

The alternative writ is discharged and the peremptory writ is denied.

Lillie, P. J., concurred.

Thompson, J., concurred in the result only.

Petitioner’s application for review by the Supreme Court was denied August 11, 1989.