Majority
Opinion
Introduction
Penal Code section 261, subdivision (a)(3) (undesignated section references will be to this code) defines as rape any act of sexual intercourse
After three weeks of testimony and three weeks of deliberations in the defendant’s 1990 trial, a jury found him guilty of the 1987 first degree murder (§§ 187-189) and rape (§ 261) of Karen W. The jury determined he did not intend to kill the victim by the administration of poison (§ 190.2, subd. (a)(19)) but could not resolve whether the murder was intentionally committed in the course of a rape (id., subd. (a)(17)(iii)). The trial court, which had earlier struck an allegation that the defendant had lain in wait to commit an intentional killing (id., subd. (a)(15), struck the rape-murder allegation on motion of the prosecution and sustained allegations that the defendant had served four prior prison terms (§ 667.5, subd. (b)).
Sentenced to state prison, the defendant’s argument consists of three broad categories. He claims the trial court erred in excluding evidence of third party culpability, of the victim’s drug-use habits, and of the victim’s sexual history. He asserts the evidence is insufficient to establish the offenses of murder or rape, or to prove the cause of death. He argues it was error to fail to give a unanimity instruction regarding the theory underlying the murder verdict, and to refuse his “pinpoint” instruction relating identity evidence to reasonable doubt. We resolve all these adversely to the defendant in the unpublished portion of this decision. In the published portion, we reject his challenge to the supplementary definition of “administer” fashioned by the trial court in response to a jury request. We shall affirm.
Facts
The defendant devotes some 50 pages of his opening brief to setting out the facts, and 18 pages in his reply brief to “correcting” the People’s facts. Although his arguments relating to the sufficiency of the evidence require a thorough recount of the testimony at trial, we will be more succinct, limiting ourselves to the pertinent facts and not recounting every inconsistency in testimony because on appeal we must resolve any conflicts in evidence or credibility and draw all reasonable inferences in favor of the verdict. (People v. Johnson (1980) 26 Cal.3d 557 , 576-578 [ 162 Cal.Rptr. 431 , 606 P.2d 738 , 16 A.L.R.4th 1255 ].) Facts relevant to the defendant’s arguments that we do not mention here will be incorporated in the discussion.
The autopsy revealed no major discernible external trauma and no disease pathology or abnormalities (other than those brought on by decomposition) in any of the major organ systems. The esophagus, stomach, and upper intestine contained a granular material that was reddish brown and yellow-tan; the same substance was present in the bronchial tubes and on her clothes.[1] The pathologist found sperm present in her vagina, but no sign of trauma to the genitals. Stains in her underwear contained large amounts of semen; blood typing analysis showed this to be type O. Karen W.’s blood type could not be determined, and the sample could have been admixed with fluids from her body. However, the defendant’s blood test demonstrated that he was a type O secretor, while David Samas (the victim’s roommate and inamorato) was a type B secretor, which would be physically inconsistent with the stains.[2] Residual blood drawn from the heart, the contents of the stomach, the vomit stains on the clothing, and tissue samples from the liver, kidneys, and lungs all showed the presence of oxycodone, more commonly known as Percodan.[3] The number of tablets taken cannot be calculated from the levels present in a body, but even the defense expert conceded the levels present in Karen W.’s body were 25 times what he would expect to see for a therapeutic dose. Half the time, a person of the victim’s weight would be slightly sedated after one pill; two pills would cause marked sedation, three pills would cause dizziness and nausea, four would cause respiratory depression, and five would cause unconsciousness. The effects would start within
2 While stomach materials can be forced out by the process of decomposition, both defense and prosecution witnesses believed she vomited before she died.
3 Mr. Samas had testified that he and the victim had engaged in intercourse the evening before her disappearance, after which she had followed her customary postcoital hygiene.
4 Although we will not recount it in detail, the jury was presented with evidence regarding the possible unreliability of residual blood from the heart in assessing the quantity of toxin present in a body, a mathematical error made in calculating the percentage of Percodan present in the stomach residue (which was corrected before trial), the effect of decomposition on chemical analyses, and the comparison of Percodan levels in the victim’s body with the few other documented cases of intentional Percodan overdoses.
In the opinion of the pathologist and another prosecution expert, Karen W.’s death resulted from an overdose of Percodan since the autopsy results were otherwise normal. Both conceded this overdose could have been accidental. The prosecution expert noted that in 5 percent of all cases the manner of death could not be computed. The defense expert did not think the levels of Percodan were sufficient to be toxic, and noted that fatal allergic reactions to Percodan were rare. He concluded the cause of death was simply unknown.
According to Mr. Samas, he was not aware that Karen W. had ever used Percodan. She regularly took birth control and tanning pills, and also used aspirin.
After recovering the body from the car, the authorities spoke with the janitor at the motel. In his initial interview, he was extremely uncertain about the day on which the car appeared. Even though unsure about the day of the week, he was certain at trial that it had not been there when he arrived at work at 8:30 a.m. Upon returning from having coffee next door, he went out to the parking lot to pick up trash and saw the car. He observed a brown-haired, clean-shaven man in his 20’s emerge from it. Because of the uncertainty as to the day, the supervising detective conducted a second interview later that evening. After some thought, the janitor settled on Friday, February 20, 1987, as the date he had first noticed the car because of his recollection of work he had been doing that week. Based on his description, the sheriff’s department prepared a clean-shaven sketch. However, since the moustached defendant was considered a suspect, the photo lineup the janitor viewed contained pictures only of men with moustaches. At trial, the janitor stated none of them had looked familiar to him at first. He then selected the defendant’s picture, but told the investigators he thought the defendant looked too old. (The defendant was born in 1949, and had greying hair.)
We now flash back a fortnight. Mr. Samas emerged from the shower early on the morning of Monday, February 16, 1987, to find Karen W. talking on the phone. The 27-year-old iron worker had been living with the 21-year-old waitress (and occasional model) in their Citrus Heights apartment since 1982
5 The defense expert stated he “would not be surprised" if cocaine metabolites were undetectable after a period of decomposition.
On Tuesday, February 17, Karen W. spoke with Vicki Swigart by phone. The two had worked together at the defunct Warehouse Restaurant. Karen W. said she would be meeting with Paul Mack on Thursday morning for a promotional calendar for Budweiser (which was the first Ms. Swigart had heard about this), and then would meet Ms. Swigart in the parking lot between TGI Friday’s and the Red Lobster Restaurant for lunch. Ms. Swigart testified she and Karen W. knew the defendant professionally as the person who printed promotional T-shirts for the Warehouse Restaurant.
On Thursday, February 19, Mr. Samas again awakened early and showered. Karen W. was still lying in bed. He spoke with her briefly on his way into the kitchen. She mentioned she would be having lunch with Ms. Swigart and then going to her fitness club before she went to work (her shift at the Peppermill started at 4 p.m.). They vaguely spoke of catching up with each other at the club. Mr. Samas ate his breakfast and left for the Florin Road union hall about 8 a.m.
Right around 9 a.m., the defendant called his barber (with whom he had a standing appointment between 9 and 10 a.m. to “do” his hair at least five times a week). He asked to reschedule for 2 p.m. or so.
Having obtained a work assignment in Stockton, Mr. Samas headed home from the union hall to get his tools. He arrived about 10 a.m. Karen W. and her car were gone. There was a note, for him on top of her work clothes on
6 Although at one point the victim and Mr. Samas had discussed marriage, their relationship was no longer exclusive by February 1987. During a recent stay in Cancún, she met Christopher Heermans, who testified they had a strong attraction for each other. They had talked about her coming to live with him; during the week after her visit, they corresponded and he sent her plane tickets to come to San Diego, as well as a purple plastic bracelet she was wearing at the time of her death. Mr. Samas acknowledged the victim had told him this on her return, although he was not sure how seriously he should take her plans. Another witness apparently had told the police at some point that the victim had said she might need a new place to live until a new job started in San Diego in March because Mr. Samas had found someone new; however, by the time of trial the witness (Vicki Swigart) had no recollection of this.
Karen W. neither showed up for lunch on Thursday nor called. Ordinarily, although Karen W. was frequently late for appointments and would often cancel them, she would always phone. Ms. Swigart acknowledged at trial that although she had told the police about the calendar shoot, she had neglected to tell anyone about the defendant’s involvement with it until she spoke with a defense investigator.
Gary Fry described himself at trial as being a self-employed manufacturer of gym equipment in early 1987. He knew the defendant through a mutual friend. He testified that the defendant called him at approximately 1:45 p.m. on the crucial Thursday and said he needed a ride home from a Shell station at Madison and Hillsdale. The defendant told Mr. Fry that while riding in a woman’s car, he had an argument with her and had been ditched. Mr. Fry, who had people at his house, told the defendant to start walking and he would catch up with him as soon as he could. Mr. Fry left his home about 2 p.m. and picked up the defendant at an ARCO service station at Walerga Road and Hillsdale, less than a mile north of Madison. There did not seem to be anything out of the ordinary about the defendant. Mr. Fry dropped off the defendant at his Regard Way home. He acknowledged at trial he did not provide the authorities with this information until after the defendant fled the jurisdiction in April 1987. He denied being the defendant’s cocaine supplier (as the defendant testified).
The defendant kept his barber appointment on Thursday afternoon (and on Friday morning as well). He did not appear nervous or upset, or any different than customary either time.
Mr. Samas left work about 3:30 p.m. and stopped by the Peppermill on his way home to let Karen W. know he had finally gotten an assignment. No one had seen or heard from her. Normally, she never missed a shift and called when she would be late. He headed straight home, picked up the note, and followed the directions to the Regard Way address, reaching there about 5:30.
When Mr. Samas knocked on the door, the defendant’s fiancée answered; she had been living with the defendant for about four months, and the two
The next evening (Friday, Feb. 20), Mr. Samas returned to the defendant’s residence after work because as far as he knew the defendant was the last person to speak with Karen W. The defendant reiterated that he knew nothing beyond the fact she originally had an appointment to come to his house that they cancelled. Accompanied by the private investigator boyfriend of one of Karen W.’s friends, Mr. Samas again went to the defendant’s house late that evening. They knocked on the door, but no one was home. Mr. Samas also returned to the neighborhood at 6:30 a.m. the next morning and again at 9 a.m., at which time he brought a picture of Karen W. with him and made unsuccessful inquiries about her among the neighbors. After calling the private investigator, he brought him along to a flea market where he expected to see the defendant and pointed the defendant out to him.
When deputies interviewed him at his home on Saturday afternoon (Feb. 21), the defendant told them he had met Karen W. several months earlier when he was supplying promotional materials to the Warehouse Restaurant. She was one of several people he was in the process of contacting for a sales job. At this point, he provided the police with a list of names on which Karen W.’s name appeared. Next to her name was written, “moved [sic] to San Diego.” The defendant again said that when he called Karen W. on Thursday to give her directions, he found out she was planning on moving, so he cancelled the appointment. He told the police he then spent Thursday morning through early afternoon with his brother, at which point he went to a hair salon appointment. His brother corroborated his story.
Three of the women whose names appeared on the list provided to the detectives were acquainted with defendant. At trial, two of them said they
7 Although the defendant has focused on every minute discrepancy in the substance and timing of what Mr. Samas reported to the police and what he recounted at trial, the bloodtyping evidence excluded Mr. Samas from committing the crime. Consequently, we do not recount any of these details, as they are not material in connecting either the defendant or anyone else with the crime.
At some point a pharmacy clerk reading newspaper accounts of the investigation saw the defendant’s name mentioned and recognized it; obtaining a copy of his Percodan prescription from the files in the drug store where she worked, she turned it over to the police. Investigators spoke with the defendant’s dentist, who was also his social acquaintance, on March 11. The dentist said he began prescribing Percodan for the defendant in December 1985 and had written about a dozen prescriptions of 12 to 16 tablets each between then and February 13, 1987. At trial, he said he prescribed the medication because of the defendant’s on-going dental pain; he denied the defendant’s claim he exchanged the prescriptions for cocaine. Upon being told by the detectives that the victim had died of a Percodan overdose, he agreed to relay information to them from any future interactions with the defendant, but drew the line at wearing a listening device. He took a car ride with the defendant on March 18. Contacting the detectives the next day, he told them the defendant had hinted that he should invoke a patient-physician privilege if questioned by the police. He also said the defendant was upset his ex-wife and ex-girlfriend had told the investigators that he liked young blondes. Finally, he said the defendant had told him to drive to the Super 8 motel to show him where the body had been found.
During a search in March 1987 of the defendant’s home, detectives obtained fiber samples from his bedspread and bedroom carpeting. A criminalist matched these fibers with some found on both Karen W.’s exterior and intimate garments.
By early April 1987, the detectives were ready to obtain a warrant for the defendant’s arrest. They made arrangements through his attorney at the time for him to surrender to their custody. Instead, he fled to Utah. Having heard
While on the run, the defendant phoned a long-time friend (Kim Landrum) who lived out of state, and told her he was being falsely accused of a crime he did not commit. He said he was supposed to have had an appointment to discuss modelling work with a woman he had never met before; she never kept the appointment. The detectives spoke with Ms. Landrum in November 1988 about this phone call, having first explained the evidence against the defendant.
To recount other odds and ends of the prosecution’s case, a photographer friend of Karen W. (who had photographed her in past) saw a man he identified as the defendant come into the Peppermill on what the witness believed was the Friday she was on vacation and ask the “order girl” for Karen W.’s whereabouts. Four people who had lived with the defendant between the early 1970’s and his capture in Utah all described him as regularly using or seeking Percodan for various asserted pains. Steve Cassani testified he had been on a ski trip with the defendant in January 1987. The defendant had mentioned he had met a woman with a “killer body” at the Warehouse Restaurant whom he would have liked to do some sort of modelling for him in connection with Budweiser; he also mentioned he was physically attracted to her. Mr. Cassani had observed the defendant use cocaine at dinner parties along with his dentist. The defendant’s former wife testified that when the defendant helped set her up on her return to California, she stayed at the Super 8 motel (although there is a conflict between her original report to the police and her trial testimony as to who selected the lodgings).
When the defendant was extradicted from Utah in 1988, he was living under a false name and had married a woman who had no knowledge of his past. He stuck to his original story regarding the cancelled appointment. He affirmed that the people on the list along with Karen W. were possible employees. He denied ever having sought Karen W. out at the Peppermill. He acknowledged at trial that by this point he had no concern about protecting his relationship with his now-former fiancée.
The defendant testified at length in his own behalf. He had met Karen W. while she was working at the Warehouse and he was providing promotional
12 The defendant had a history of theft-related offenses, including convictions for forgery (1971 and 1975), theft (1980), and possession of stolen property (1983).
As he was getting ready to head to his daily barber appointment, she came by and said she still wanted to apply because her future plans were uncertain. He asked her into the kitchen, and while they talked about what the job entailed he rescheduled his hair appointment. Cocaine paraphernalia was on the table; she asked to use some, and the defendant joined her. In addition to ingesting cocaine, she smoked a joint (the defendant abstained). She also mentioned her preferred drug was methamphetamine. At this point, they both found themselves sexually aroused. They engaged in intercourse on the adjoining family room floor. She was fully conscious of her actions and appeared to be a willing participant.
After they dressed, she asked if there was any more cocaine and expressed interest in his bottle of Percodan on the counter. He told her it was a strong pain reliever. She asked if she could try one. As he left the room to see if there was any cocaine in his bedroom, he told her she could help herself. He did not actually see her ingest any Percodan. Unsuccessful at locating any more of the drug in the house, he told her his supplier was nearby. They left the house about 1 p.m. and headed to Mr. Fry’s house in her car, both of them feeling high and giddy. Seeing an unfamiliar car out front of Mr. Fry’s home, the defendant did not tell Karen W. to stop. When he told her they could not stop and get cocaine, she got angry and told the defendant to get out of the car. She ditched him at the ARCO station at Walerga and Hillsdale. He never saw her again. He called Mr. Fry, who came and picked him up at the ARCO station. The rest of the afternoon he devoted to errands before heading home to make dinner.
Mr. Samas came by later that day about 6 p.m., after the defendant’s fiancée had come home. The defendant feigned ignorance of the victim’s name, because he did not want to let on to his fiancée that he had been
In the course of his testimony, he contradicted a number of facts to which prosecution witnesses had testified. He claimed he never used Percodan before his dentist began prescribing it for him, although he could not remember if his roommate from 20 years earlier had provided any. He would get his cocaine from Mr. Fry for himself, his dentist, and Mr. Cassani, trading the cocaine for the Percodan prescriptions. He denied ever telling Mr. Cassani on the ski trip that he had a sexual interest in Karen W. He reasserted that he had never gone into the Peppermill to look for her. He was not a commercial photographer, and he was not aware that Karen W. worked part time as a model and had appeared in beauty pageants. He had never told Ms. Landrum or Ms. Adner that his appointment with Karen W. had anything to do with photography or modelling T-shirts, or that he had never met her before; he believed Ms. Landrum was recalling his recount to her of the accusations against him, while Ms. Adner was fabricating her story (about him asking her to say she had expressed an interest in working for him). He did not provide any explanation why she should do so. He did not tell Mr. Fry that he was calling from the Shell station across from the motel on Madison. At no point did he direct his dentist to drive to the Super 8 motel after the body was discovered.
The defendant presented witnesses who believed they had seen Karen W. in the company of a young man resembling the composite on Thursday afternoon at TGI Friday’s. James Nunes had known her for years, and was having lunch there with his friends the Watsons (who were visiting from out of town). He spoke with her briefly. At trial, neither Mr. Nunes nor Mr.
In this same vein of attempting to establish that someone other than the defendant was trying to entice Karen W. with promises of modelling opportunities for Budweiser (which entirely ignores the fact Karen W.’s note and Ms. Swigart’s testimony specifically identified the defendant as making such a promise), the Peppermill “order girl” testified that a man who did not resemble the defendant came into the Peppermill looking for Karen W. while the latter was in Cancún. She could not, however, say whether this was the same occasion as the one on which the victim’s photographer friend saw the defendant speak to the order girl. Another witness testified she had been approached at a club by Mitchell Hart, who wanted to photograph her for a magazine and possibly a calendar. He gave her his business card (which she ultimately turned over to the police during the investigation). Later, when she was out on some occasion with Karen W., she pointed him out to Karen W.; the latter said he had wanted to photograph her for a Budweiser calendar as well. Mr. Hart was, in fact, called as a witness, but we need not recount his testimony other than to note it has no bearing at all on the defendant’s guilt.
In an effort to impeach Ms. Swigart’s recollections, the defense called the former owner of the Warehouse, who testified he was supposed to have lunch with Ms. Swigart and Karen W. some time around the latter’s disappearance, but it had been cancelled because Karen W. had never confirmed it. However, he was not sure of the date, and Ms. Swigart had previously
Finally, in an effort to impeach the veracity of the notes Karen W. had written, the defendant introduced evidence that she had listed a phony address on her driver’s license to qualify as an entrant in a Placer County beauty contest, that she had used return addresses other than her own for lottery tickets, that she had pretended to be “Mrs. Samas” to obtain medical benefits, and that she had misrepresented her vacation to some friends as being a modelling job in Mexico.
Discussion
I, II[11]
I
nstructional challenges
A.
Early during its first day of deliberations, the jury sent a note to the trial court. The court convened counsel in chambers and read its contents to them. The note stated, “We, the jury, request the following: Please define ‘administered by’ and ‘the privity of the accused’ as stated on Page 53, Line 3 of the jury instructions.” The court noted this “refer[ed] to CALJIC instruction number 10.65” (the instruction defining the necessary general criminal intent for rape and the defense of a good faith belief in consent).[9] After three hours of research, court and counsel discussed the issue on the record.
The parties agreed to the court’s proposed definition of “privity.” With respect to “administered by,” however, there was a predictable split on the manner in which the expression should be further defined. The defense
18 In pertinent part, the jury had been instructed, “In the crime, of rape[,] where the woman is prevented from resisting by a [resistance-suppressing] substance administered by or with the privity of the accused, general criminal intent must exist at the time of the commission of the rape.” (Italics supplied.) The term “administered by” also appeared as part of the instruction defining the elements of rape: “Every person who engages in an act of sexual intercourse with a female person . . . [who] is prevented from resisting by any [resistance-suppressing] substance administered by the perpetrator, is guilty of the crime of rape in violation of . . . [s]ection 261 subdivision (3).”
The defendant renews this issue on appeal, asserting this supplementary instruction would allow the jury to convict the defendant for merely having Percodan available that the victim wished to try of her own accord (the factual scenario to which he had testified). In his view, in order to convict a defendant of “resistance-suppressed” rape, a jury must find that a defendant “somehow forced/tricked [a victim] into taking the drug against her will.” (Italics supplied.)
In the first place, we note the defendant’s instruction offered below was too narrow (although this does not end our inquiry). It would preclude a conviction except where a defendant himself directly applied the substance to the victim’s body, excluding any situation where only the victim handled the resistance-suppressing substance. The catchall phrase, “or by any other means” in the defendant’s instruction does not—as the defendant argued below—modify “direct application”; it enlarges the category of means of direct application.
Second, the defendant provides no authority for his conclusion that administration of the resistance-suppressing substance must be by means of force or trick. This misconceives the consent at issue in the crime. The defendant was not accused of drugging the victim without her consent; he was accused of sexual intercourse without her consent. The relevance of the resistance-suppressing substance is only to negate any inference of consent from what is in fact mere submission. Thus, the fact the victim willingly
This false premise of the defendant cast aside, there is no basis for challenging the court’s supplementary instruction. Giving the statute an interpretation which respects legislative purpose while according the defendant the benefit of any ambiguity (People v. Davis (1981) 29 Cal.3d 814 , 828 [ 176 Cal.Rptr. 521 , 633 P.2d 186 ]), we believe the qualifying term “administered by or with the privity of the accused” requires only that the defendant has instigated the victim’s ingestion of the resistance-suppressing substance. The qualifying term simply excludes criminal liability for situations where a person engages in a sexual act with a partner who has reached a resistance-suppressed state (that is short of insensateness)[10] through no encouragement by the defendant. It is clear the Legislature did not intend criminal liability in such a case, because otherwise, the statute would proscribe intercourse whenever resistance is prevented by some intoxicating, anesthetic, or controlled substance (which would be the result if the qualifying phrase “administered by” were not a part of the statute). (See 2 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) Crimes Against Decency and Morals, § 778, p. 878 [“Submission is not consent where the defendant knows that the person is unconscious [(§ 261, subd. (a)(4))] . . . [or] where the person is deliberately made unconscious or otherwise incapable of resisting [(§261, subd. (a)(3))] . . . .” (Italics supplied.)].) The supplementary instruction’s use of the alternative formulation “caused or procured” sufficiently reflects this
19 Intercourse with a person who has achieved a state of insensateness can run afoul of section 261, subdivision (a)(4).
B., C[11]
Disposition
The judgment is affirmed.
Puglia, P. J., and Raye, J„ concurred.
A petition for a rehearing was denied January 7, 1993, and appellant’s petition for review by the Supreme Court was denied March 10, 1993.
* See footnote, ante, page 1466.
Footnotes
- * See footnote, ante, page 1466.
Cases cited
- People v. Johnson 26 Cal.3d 557 at 576-578 p. 1468
- People v. O'Brien 130 Cal. 1 p. 1481
- People v. Davis 29 Cal.3d 814 at 828 p. 1481
- Boyde v. California 494 U.S. 370 at 380 p. 1482