PEOPLE v. PARKER (GERALD)

Respondent’s Brief

Cal.May 21, 2010

SUPREME COURT COPY Jn the Supreme Court of the State of California CAPITAL CASE THE PEOPLE OF THE STATE OF CALIFORNIA, Case No. S076169 Plaintiff& Respondent, SuPRE!NE COURT GERALD PARKER, WAY 21 2010 Defendant & Appellant. Frederick K. onirich Clerk Deputy Orange County Superior Court Case No. 96ZF0039 The Honorable FRANCISCO P. BRISENO, Judge RESPONDENT?’S BRIEF EDMUND G. BROWNJR. Attorney General of California DANER. GILLETTE Chief Assistant Attorney General GARY W. SCHONS Senior Assistant Attorney General ANNIE FEATHERMAN FRASER Deputy Attorney General HOLLY D. WILKENS Supervising Deputy Attorney General State Bar No. 88835 110 West A Street, Suite 1100 San Diego, CA 92101 P.O. Box 85266 San Diego, CA 92186-5266 Telephone: (619) 645-2197 Fax: (619) 645-2191 Email: Holly.Wilkens@doj.ca.gov Attorneysfor Respondent DEATH PENALTY TABLE OF CONTENTS Page TntrOductiOn ..........cccccceccsceseesecseesecsecseesesaceneesecseessseccsessecseenesarsnseaeeseeaeeaeratees 1 Statement Of the Case ...........ccccccecsssccsessecceesceceessseesecsseeerssceseeersueeeessseeeesseeees 3 Statement Of Facts ..........cescessccsecceseceeceeseeeeseceseeesaeeaeeseenseeceaesseeeseessaesseeseeees 4 A. Guilt Phase ....... cece ccscesscceseeseeeeeessecesecesecessenseesatenss 4 1. Prosecution’s Guilt Phase Evidence................ 4 a. Sandra Kay Fry (Count1)......000..... 5 b. Kimberly Gaye Rawlins (Count 2).....10 c. Marolyn Kay Carleton (Count3)........ 14 d. Chantal Marie Green (Count 4).......... 16 €. Debora Kennedy (Count5)................. 19 f. Debra Lynn Senior (Count6) ............. 21 2. Defense....ccscesscssesssscssecessssessseeesssseeeeeseseeeenesees 26 B. Penalty Phase sessusessssuuesessussesssssusteseessusssstenivessessenesees 26 1. Evidence in AGgravatiOn.........ccceccssesceteees 26 a. 1979 Rape of Jane Poo...eeeeeeeeeeee 27 b. 1980 Robbery ofAida Demirjian....... 29 c. 1980 Rape of Paula S.......eee32 d. Assault on Inmate David Feurtadot 0... ccesesesssssessseeceneeereaes 35 e. Victim-Impact Evidence ...s.sccsssssse00036 2. Evidence in Mitigation...cscs37 Prosecution’s Rebuttal ......... cc ceeceeeeeeteeseeee 43 ATQUMEMoeeeeeesceeeeceseceseeeseneceseecesesesscecesaeeesaeectseesseeesaeeeneeeaeeceaseceseeesees 46 I. Thetrial court properly denied Parker’s Wheeler motion for failure to make a primafacie case of GISCTIMINALION....0..eeeeceecceseteesetseeseeseeassecseceesaeeasseseesaeseeasenees 46 A. Voir Dire Proceedings..........ccccesescssseseeseesesseeseenees 49 1, Prospective Juror NO. 719 ......ccccccesecseeseeeeeees 50 inabantiedAEARBBEAAy& od osha wo 2 IL. Il. IV. C. TABLE OF CONTENTS (continued) Page 2. First Wheeler Motion.........:ccceccssecsseteeseseseees 53 3. Prospective Juror No. 213 .......ccceseceseeeeeeees 55 The record does not support an inference of GUSCTUMINALION00.eects eceeeeeessseeeseeesesesnesaterenseseees 61 L. The Exclusion of Two Jurors Is Not Sufficient to Support an Inference of Discrimination Underthe Totality of the Circumstances .0.......cccecseesetcceeeeseeeeeeeeens 62 2. The Prosecutor’s Questioning of Prospective Jurors Did Not Support an Inference of Discriminatory Exercise of Peremptory Challenges.............ccccseseees 65 3, Comparative Analysis Does Not Support an Inference of Discrimination..................0 67 The remedy for the erroneous denial of a Wheeler motion at thefirst stage is to remand for further proceedingS............cccecesscetseseeeeeeseeeeees 71 Parker’s rights were not violated during custodial IMtCLTOQALIONS...........cecceeceeeeessecsaceseceseeeeeeaeeeacecseeeeeseeseeeseesates 75 A. Custodial interviews of Parker.............cccccceeeeeees 78 B. Parker impliedly waived his Mirandarights............. 92 C. Parker had not invoked his Miranda rights D. E. when detective tarpley interviewed him regarding crimes committed in Tustin .................... 97 Detective Tarpley did not improperly reinitiate QUCSTIONING ........sceeeeseecceeseeeeteceesesseecessceserscenseeseeeneees 99 Anyfailure to exclude Parker’s statements did NOt prejUdice HUM...eeceeeeeeseeeeeceeteeeceeeseeeeeees 100 Thetrial court properly refusedto instruct the jury with CALJIC Nos. 4.30 and 4.31 regarding the defense Of UNCONSCIOUSNESS...........:c2:ccscceseeseeescescesereeeeseeaeeeaeceseeseeaes 102 Victim-impact evidence wasproperly admitted................ 117 il (continued) Page The Proceedings Below...........::c:csccscsseeeceseeseeeeees 118 1. Sandra Fry ........ccsceecessesseeceeeceseeeeceeeeceeeeanees 120 2. Kimberly Rawlins.........0... ce eeeceeeeseceeeeeeeees 120 3. Marolyn Carleton ............c:ccescesceeeeteeeeereeees 121 4. Debora Kennedy...........:..::eeseecceeeeseceneeeeeees 122 5. Debra Senior.......... cee ceeeeeseecseeeeeeesteseeesees 123 The testimony of eight victim-impact witnesses regarding the murders of five women as evidence of the circumstancesofhis capital crimesdid not deprive Parker of a fair and reliable penalty determination................::::eeeee 124 1. The Trial Court Properly Admitted Photographs Depicting the Victims in Life as Victim-Impact Evidence.................. 125 2. The Victim-Impact Evidence Was Not Unduly Cumulative...eeeeeeeseceeeeeeeee 126 3, The Victim-Impact Evidence Did Not Impermissibly Extend to Matters Beyond the “Direct Harm” From Parker’s MUrdesueeeecceeseeeeeeeerseceeeeenenecaeeneeasenenees 127 4. The Victim-Impact Testimony Was Not Unduly Emotional............0....:ccccccessscesecsees 129 5. The Unsolicited Comment From a Victim-Impact Witness Regarding the Bible and Her Belief Parker Would Receive the Death Penalty Did Not Prejudice Parker ........ccscccsscssscsesseeeseeeeeens 130 6. Even Assuming Erroneous Admission of TABLE OF CONTENTS Victim-Impact Evidence, Parker Was Not Prejudiced.........ccceccsecseesesecseeseeeeeeeee 133 il VI. De aleeSaranRSIBEPRICEYeasts yeon D. SentochainotaBRNRIEo oe TABLE OF CONTENTS (continued) Retrospective admission of victim-impact evidence did notviolate the ex post facto and Cue process Guarantees 0.0... eeececseeeeeceteeeeeeeneeeees 135 Factor (a) is not unconstitutionally vague or OVErDOAdocc e cece cece ceececccccccacececececececececceececsseeeeeeees 136 Parker’s constitutional rights were not denied based on the scope of the defense penalty phase argument.............. 137 California’s death penalty statute and model jury instructions regarding the jury’s penalty determination are COnStitutional .0.........ce eee eeeeeeeeccccccececeeseccececeeceececcereceees 148 A. California’s death penalty statute and the instructions below properly address burdens Of PLOOFoe.eeeeeeeseeteceseesceteeeeeeseeeseeecesesaeenaeeeeees 148 1. Parker’s Jury Was Not Required to Make Findings Beyond a Reasonable Doubt as to the Existence of Aggravating Factors, That Aggravating Factors Outweighed Mitigating Factors, or That Death Was The Appropriate Penalty 0.0.0...cece149 Parker’s Jury Was Not Required to Apply a Burden of Proofto Its Penalty Verdict Beyond Consideration of Unadjudicated Criminal Acts Under Factor (D).....ccesessscceeseeceececntecesecneeseeseeseeeees 150 Parker’s Jury Was Not Required to Unanimously Find the Existence of Aggravating Factors, or to Be Instructed It Must Unanimously Find Unadjudicated Criminal Activity True Before Considering It as a Factor in AGBYAVALION...00.. cee eeeecseeseeseeeeceseaeeneeeereees 151 The Penalty Phase Instructions Were Not Vague or AMDIgUOUS............ccceseeseeeteeeeeeee 151] iV TABLE OF CONTENTS (continued) Page 5. The Penalty Phase Instructions Adequately Informed the Jury Regarding Its Determination Whether Death Was the Appropriate Punishment.................0 152 6. CALJIC No. 8.88 Does NotFail to Conform to the Mandate of Penal Code Section 190.3 Because It Does Not Inform Jurors They Must Return a Verdict of Life Without Possibility of Parole if They Determine That Mitigation Outweighs Aggravation............. 152 7. The Instructions Did Not Convey a Burden of Proof as to Mitigating Evidence Nor Impermissibly Foreclose Full Consideration of Mitigating EVIGENCE... eee eeeeesereeeseeeteeeeesseeeeesseaeeacsecees 153 8. No Presumption of Life Instruction Was Required ...........eceeceeesceeecceseeeeeeeeeesseeseeeeneees 154. B. The absenceof written findings does not deny Parker meaningful appellate review..........0..ceeee 155 C. - The jury instructions on mitigating and aggravating factors were constitutional.................. 155 D. There is no constitutional requirementof inter- case proportionality review ......... eee eeeeeeeeeteeeees 157 E. California’s capital sentencing scheme does not violate equal protectiOn ............:eceeeseeeeeteeeseeeneeeees 158 F. California’s use of the death penalty does not violate international law.............eeseeeeeeeeeeeeeepeeeeeees 158 VII. Parker was not denied a fair trial and reliable death judgmentbased on cumulative error .........ccceeseeesseeteeseeees 159 Conclusion ...........ceeeceesccccceseeseccccccsececeesesesenssecececcececevessensnscereescestenecerseeees 160 pretenceWeSCmrCEMERRALRolan Bortn EEEncBGA ote, I at en ES ate SEGREry enten a Mean iaRpAREEAOKLAoe eT ay antenna ates eptanisiemebe cb yseminS TABLE OF AUTHORITIES Page CASES Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435]oo.149 Batson v. Kentucky (1986) 476 US. 79 [106 S.Ct. 1712, 90 L.Ed.2d 69]...46 etpassim Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403]...eee149 Booth v. Maryland (1987) 482 U.S. 496 [107 S.Ct. 2529, 96 L.Ed.2d 440] oo.eee117 Chapmanv. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705]... 116, 133, 145 Dickerson v. United States (2000) 530 U.S. 428 [120 S.Ct. 2325, 147 L.Ed.2d 405]...eee76 Fernandez v. Roe (9th Cir. 2002) 286 F.3d 1073 oieeeccesceseeceeccsecseescseeseeesaceaseesaetaseresesates 65 Johnson v. California (2005) 545 U.S. 162 [125 S.Ct. 2410, 162 L.Ed.2d129]........... 46 etpassim Lewis v. Lewis (9th Cir. 2003) 321 F.3d 824 ....... sessiecvetacessneseenseneronsenetisatinsussnentasenescaeeneete 74 McKoy v. North Carolina (1990) 494 U.S. 433 [110 S.Ct. 1227, 108 L.Ed.2d 369]oe154 Michigan v. Mosley (1975) 423 U.S. 96 [96 S.Ct. 321, 46 L.Ed.2d 313] ooceeereeteeees99 Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L-Ed.2d 694]...34 et passim Moranv. Burnine (1986) 475 U.S. 412 [106 S.Ct. 1135, 89 L.Ed. 2d 410]...76, 93, 94 v1 North Carolina v. Butler (1979) 441 U.S. 369 [99 S.Ct. 1755, 60 L.Ed.2d 286]...76, 77, 93 Paulino v. Castro (9th Cir. 2004) 371 F.3d 1083 oooceceeeeesseeeseesnecneeeeseeeeteeneeeveneeeseeaeeaeens 64 Payne v. Tennessee (1991) 501 U.S. 808 [111 S.Ct. 2597, 115 L.Ed.2d 720]...eeeneeeeeee acescsseeaesceesscusecsseaucossaesacessaeceseeasesssuaeeneesscenesasenecascaeeeeeeetentes 117, 118, 124, 125 People v. Abilez (2007) 41 Cal.4th 472oecccccceneecceeceereecetsaecaceaesseeeeeasseeesesesaeeseeaaeaees 102 People v. Anderson (2001) 25 Cal4th 543ccccessecsecssesesetsetsesssenseeseesesssesseeseestasesaseenessees 151 People v. Arias (1996) 13 Cal.4th 92 occccccseessessessceseesecseessecsecsseseessecsetseneceees 150, 152 People v. Avila (2006) 38 Cal4th 491 oo. eceecccccccccseeeeecneseeeesesseeesecsessececeeeesseeeeseeeeeatens 155 People v. Ayala (2000) 24 Cal.4th 243 ooccccsccsccsesseesersssetessecssscsseeseenseessecsueesseecaeeseens 73 People v. Baker (1954) 42 Cal.2d 550 oooeecscssenceseeeeeesecaetececsecsessceeeeseeneceseeesseesneeatans 115 People v. Bean (1988) 46 Cal.3d 919 ooo ccccecscessesecesetseesecsseeseeseeseesecseessesaeesesenesaeeaes 137 People v. Bell (2007) 40 Cal4th 582 oo. cecccsessessessesecesesstesecesssseesseesesesseeseseeenases 63, 68 People v. Bennett (2009) 45 Cal.4th 577oessuceeeeeeesenecceeseeeeneceaceaeeares 116, 133, 145 Peoplev. Blair (2005) 36 Cal.4th 686.............secseeceeseaeeaeesnseceeseeseesseesecseeseeeaeeaseaeesaeeseenesaes 149 People v. Blakeley (2000) 23 Cal4th 82 oo. ciceeeecscscsssssssseserssseeseessessssecsessesseesseecseseesesatenes 109 People v. Bonilla (2007) 41 Cal.4th 313 ooo.eeccscesccseeseeesecsssessseseccseessecseneres 47 et passim People v. Box (2000) 23 Cal4th 1153 occeeeessesseseeeceesecseesesscsecssssesecseseesessuesecneees 159 Vil ee People v. Boyette (2002) 29 Cal.4th 381 ooeesccceeeecesesscesescsetevacseseceetsssseeeeeeeeeseaseceees 126 People v. Bradford (1997) 14 Cal4th 1005 ooceeecesessseceesesstereeaesessseeeeesaceeeeeetereneeaees 146 People v. Breaux (1991) 1 Cal.4th 28) oooecescssceseseceeeecseesecsecsessessesasseseeseeseeresseaseenes 151 People v. Breverman (1998) 19 Cal4th 142 occecccceceseeseseeeeeeeesseececsesseseeseeareaceseseseeeeeaesees 114 People v. Bridgehouse (1956) 47 Cal.2d 406 oo. ccccccseesseseseeseecesseseesececesesesessesceesactecsenteeeaeetes 109 People v. Brown (1988) 46 Cal.3d 432 oo. ececccccesceccssessssceceesseeesesseeecesseseeseeseeaeeeteecaeeeeseeees 145 People v. Brown (2003) 31 Cal.4th 518 oo.ccccseesescssesceeeeesesesecseeteacecessaeeeeareneesssestersesees 128 People v. Brown (2004) 33 Cal4th 382 oo. cceeeeeseecenetteeeeseceeeeersareesaseeeateaseeseeeeeees 127, 136 People v. Burney (2009) 47 Cal4th 203 00... cceeccsececcseescreeeesceseseseecsceseeseesseeaeesssessenareneees 149 People v. Carasi (2008) 44 Cal.4th 1263 oo... cc ceeeceseseecceseesecsseeeceseectesseneceaseseeseneeesersrseeeaes 68 People v. Carpenter (1997) 15 Cal.4th 312eectscectseeeceeeeeeeeessaeseeessesseseteessateeesesaeasees 126 People v. Catlin (2001) 26 Cal4th 81 occccccecscrcssetecsseceeecsesseceeeaesaeeecseeseceentaseesseearensees 159 People v. Clark (1992) 3 Cal.4th 41 oeccc ccceetcesesenseseeeesceesecsecaceeeecaeseteceeeeessseeerarseneeees 98 People v. Cook (2006) 39 Cal.4th 566.0...eececeseeecsseceeresseecnesereneeeenseneeeseesaseeeaeees 155, 158 People v. Cornwell (2005) 37 Cal.4th 50 oo... cceceecceecsceceeeecetseceaceeseeeeeeeneeeeeeatereeenes 50, 63, 65 People v. Cox (1991) 53 Cal.3d 618 oo. eccccceceteescsseseeseceseseeseaseeesetesaeeeserarencetnensseracseeers 126 Vili People v. Crittenden (1994) 9 Cal.4th 83 oo.cccceseecseceeeseesseceeeescesecsseteseneeseeeseceeeaseaeesseeseeeeees 95 People v. Cruz (2008) 44 Cal.4th 636 .....cccccccceceseecssceeeceneeeeceeeeeeeseeseceeesseeeesaeneeees 67, 68, 69 People v. Cunningham (2001) 25 Cal.4th 926 occcccecceseccesseeeeeceeeeseeeeseseeaecaeseneeaeeassesseeeeseeseees 159 People v. D’Arcy (2010) 48 Cal.4th 257 oo.eecceeeeseeceseeeeneceeeeeaereneesaessueseesenaees 149 et passim People v. Davenport (1995) 11 Cal.4th 1171 oo.eee cceeeccceseceeeeecseeceeenecaesaecseesseteeeeseeeees 137, 138 People v. Davis (2009) 46 Cal4th 539 ooeeesseeceeseeeseceecsnesecesaeseseneereeseesees 47 et passim People v. DeVaughn (1977) 18 Cal.3d 889 ooo. cecccccceeseeeeceseeseceeceeeeeesseseeseeeseqerseaeeaseretaeeeneeeeeaees 93 People v. Doolin (2009) 45 Cal4th 390 oo.ececcesececeeeceeeseeeecneeeeesseeeeseaeeneeseseeeeeeaes 50, 77, 98 People v. Duncan (1991) 53 Cal.3d 955 oooeceeccescesceeseeseeeneateceeseceeeeeeeaeeaeseesaeeaeeaeendeeateaes 152 People v. Dykes (2009) 46 Cal4th 731 oo.eceeceeeeneceeeeseeeesseeeeceeeeaeeesseeeneeeseeaeeseeeneeaees 157 People v. Edwards (1991) 54 Cal.3d 787 oo. eeccccecceeecceeecerceeeeeeesesseeeneeseeeeeaeenernees 117, 118, 128 People v. Ervine (2009) 47 Cal4th 745 ...cccccccssccsescsessescseesseessssssessessssssessteseseseesseessees 137, 154 People v. Fioritto (1968) 68 Cal.2d 714 oiecsessensesceccseesceaeeecsecsesssecesesseeseeecerseseaesessetaeees 99 People v. Friend (2009) 47 Cal.4th Loo...cccseseccssesccsserecessereecsreeessesseesseeas 149 etpassim People v. Gamache (2010) 48 Cal4th 347 ooocceseeseeeeseesesseeeseeeecseeeeeeseeseeees 155, 156, 157 People v. Geier (2007) 41 Cal4th 555 woecesscnceseseeeeeceeeecsesecneecesesevaeeecaseceneeeeteaeaeeeeae 154 ix People v. Ghent (1987) 43 Cal.3d 739 oo cecsccsescescesscesceseesessesseeercesseessessreseseceassnsentessensses 158 People v. Gonzalez (2003) 31 Cal.4th 745 oo... cc cceecssscseessesseseeseeseesesseseeseeseesseesecseeeeseeseeenes 76 People v. Halvorsen (2007) 42 Cal.4th 379 oo. cccseeeesessessecseeeesecessesseseesecseeeeseeaees 102 etpassim People v. Hamilton (2009) 45 Cal.4th 863 oo... cccecccceesesscseeseenecseeeaeeessetseseessessesnes 46 etpassim People v. Harris (2005) 37 Cal.4th 310 occcccccscesessssseeesecessesscesseseeeseesecsepseneeeeees 137, 140 People v. Hawthorne (2009) 46 Cal.4th 67 .o..ccccccccccssecsecsscssesseseesesssesscssesscesesseeresseeseneees 47, 48, 94 People v. Howard (2008) 42 Cal.4th 1000.0... ccee cseccsesseseteceseesesssssetseeeeeeeeees 49, 50, 63, 67 People v. Huggins (2006) 38 Cal.4th 175 oo.ceceeceeeeececeeeeeseeeseseeneseereres 47, 127, 135, 146 People v. Jackson (2009) 45 Cal.4th 662 0.0... cceecssesscssesseseesecesseseeeceesseesetsenaeeneeaeenes 117, 155 People v. Johnson (1969) 70 Cal.2d 54] occ cccccccceseescesscseeesseseececsecseessessessecsessesaseseeseeneeeats 93 People v. Johnson (1992) 3 Cal.4th 1183 cccicescccscerssceresessersescesessnssstseneassescseassessseeeees 133 People v. Johnson (1993) 6 Cal.4th 1 occccccseeseeeeeeeceeseeeseesnecaeceeesseeesseeeeesaseeeeesaeeeaeeate 76, 96 People v. Johnson (2006) 38 Cal.4th 1096 oo.ceceeeseceeeeneeeeeeeaeseecaeeseenateneaenes 71 et passim People v. Jones (2003) 29 Cal.4th 1229 ooo. .cccceecceeseecceseseesceeeseseesecetenecensseeseeeeneeeeeeeeeaees 133 People v. Kelley (1980) 113 Cal.App.3d 1005 0...ee ccceecescceceeeeeeeseescteeseeeeeeesssenseeeeeeeaeess 153 People v. Kelly (1973) 10 Cal.3d 565 oo... ccccecceseesecescnsceeceeeeeesneecesesoneseceeeensaeesetaseeeeenees 103 People v. Kelly (2007) 42 Cal.4th 763 0... eceecceesceseecessessensseseeessessetecseeseessesscsusassessaeseeasees 48 People v. Lenart (2004) 32 Cal.4th 1107cessecccecneceeesseeseesesesseseessecressneesesseseaes 150 People v. Lenix (2008) 44 Cal.4th 602 oo... ecccecccseeseeeescescececseteeeseeeeeeesesseeesentsaeaes 67, 68, 69 People v. Lewis & Oliver (2006) 39 Cal.4th 970 oo... eeeecesceseceseeenseeteceeteaeeaecseeeeeeeees 47, 124, 125, 133 People v. Manriquez (2005) 37 Cal.4th 547 oo. ccccccssscssesesesseeetseseenensscareseseeeseseessssatseseeneneansses 158 People v. Mayfield . . (1997) 14 Cal.4th 668 oo... cccccececseeseeeceeseeeeesaeseeereseesesseeeeseteeaeeseeaees 72, 73 People v. Medina (1995) 11 Cal.4th 694 oo cceeccccceeeccnesseeeseseeceeeseseeeeeeeeseseeeaeeeeesansaeeseeeeees 93 People v. Mills (2010) 48 Cal.4th 158oesseeereeeeeeeeeeceeeeeeeerseeeteees 46, 47, 136, 156 People v. Moore (1954) 43 Cal.2d S17 occeccccsseseeeeteceeeseesceeeeecsesseseesaceecnesseeeenseaeeateaseees 153 People v. Navarette (2003) 30 Cal.4th 458 ooo. ceececcecseseeeeeeecsseseeeaesneeseeenesaeeeesesseseasenaseanentenes 117 People v. Ochoa | (1998) 19 Cal4th 353 occeeeeeseeeecceeseneeseeseeesceseeseeeeenseseeees 102, 103, 105 People v. Ochoa (2001) 26 Cal4th 398 ooo. ceccecesceeteeseceecscesneseceesacensenscnaeeesieseeeseeeeeseees 159 People v. Panah (2005) 35 Cal.4th 395 ooo ccecccceseessseceesseesseseeseceessecseeseeseesecseseasensenes 125 People v. Pettingill (1978) 21 Cal.3d 230 oceececceceeeseceeeeeneeecssesseesecsssecessessesseeseeeesaseseeensenseas 99 People v. Pollock (2004) 32 Cal.4th 1153 ooo. cccscctesecesscscenecsecssecsesecseeereeseseeeees 124, 128 People v. Pride (1995) 3 Cal.4th 195 occccceeccesecssssessecsecsseessssseeseesseseesseneeetsuccersenesees 138 x1 People v. Prieto (2003) 30 Cal.4th 226 00... ceccecceccescesesceseeeeeesseeseeseeateecsssneassecsseatenes 149, 151 People v. Prince (2007) 40 Cal.4th 1179ccceccecsseessecesesceesseeseseeseeeseseneeeees 124, 125, 136 People v. Raley (1992) 2 Cal.4th 870 weeccscssesesecesseesereeeeseceeeseessseesenassecsesasseeeeseneasees 124 People v. Rich (1988) 45 Cal.3d 1036 0... ecceescecsesseeseseeseeecseeseeseeacercasseesesseseeateneaeeneass 135 People v. Robertson (1982) 33 Cal.3d 21 ooeecccseescsessesceeesssserseeeeseeseesesseeeceeseesessesesseeeeeeeeaes 150 People v. Rodriguez (1996) 50 CalApp.4th 1013 oo...ceccesceccscesseseesseecsecssesasseeseeesaeeeeesens 74 People v. Rogers (2006) 39 Cal4th 826 0... ecesecccccecesecseecescceeseeeeseseseeseeeeaseeesesseneenees 108, 110 People v. Rogers (2009) 46 Cal.4th 1136 oocecececseeeceeeneeeeeceaesersesaseeeeetesneseeees 154, 157 People v. Roldan (2005) 35 Cal.4th 646.0...sacescenceseesteseceaesseeecenecsaeaneneeseceeseeteeneesses 127 People v. Rundle (2008) 43 Cal.4th 76 oo... ccesceessesssseccecenetseeeceeceeseeesceeeseneceesaseessseneeaees 77, 98 People v. Russo (1983) 148 CalApp.3d 1172 oo. eccccseeetesceeceectecsescseeseeeaeneeneeeseteeseens 96, 97 People v. Salcido (2008) 44 Cal.4th 93 occcececsesececeseceseceseseeterseseeeeecarssassseceseeeenenseaseetenstats 65 People v. San Nicholas (2004) 34 Cal.4th 614 ooocceccsccteeeeeerceeesaeeeasareeseseeeeseneeesaesseesnereres 157 People v. Sanders (1995) 11 Cal.4th 475 ooocecceetecectesseeesesseesneeeetseeeenoeaesseseneneestevseseeene 127 People v. Schmeck (2005) 37 Cal.4th 240 oo...cc cccceescesesseseseceeseeeesacsaseeesesetseeeseeeeeeteseeaseees 148 People v. Seaton (2001) 26 Cal.4th 598 ooocccccssesesseesseseeesseeeeeeeseneoetesessceaaecseseeeeeeeeeeees 159 xi People v. Smith (1983) 34 Cal.3d 251 occ eeeseecscessesececeseeeeeeeeeeseesecceeesessetserateersceaeeeeseetates 99 People v. Snow (1987) 44 Cal.3d 216 .o..eccecccescsseeseeeneeceneceeesesseeeaeeeceeeeaeseeseensesaeeeeeaeees 71 People v. Snow (2003) 30 Cal.4th 43 oo.ese sscsscesceseceeseceeseesserscesaseaeenecseesenseeaeesaeeneees 158 People v. Stewart (2004) 33 Cal.4th 425 oo. ccecsesseccseeeeeeesesateeeseesaceeeaseseaseecaeateaesaeeaseaee 159 Peoplev. Stitely (2005) 35 Cal.4th 514 ooeecsecessseeeescesscesresescseeseesecsseeaeeesseesaes 118, 126 People v. Sully (1991) 53 Cal.3d 1195 oeceeseeseseeceecseeseeeeceseeseeeeeesceaeeeeseeeeneeseeeeneeetnes 93 People v. Taylor (1990) 52 Cal.3d 719 oooeeeecceeceseeeceeeeneceeeceneeeeesesseverseaeseesaseeseeeaeeeneens 151 People v. Taylor (2001) 26 Cal.4th 1155 oooeeccceeceeeeeeseeeeeeceeeeaesaeeaesaeeeeseaesesaneeneeneeaes 127 People v. Taylor (2009) 47 Cal4th 850 oo... eee esecesseeceseesecseesesseeaeeasseceeeaseaeeeseresseees 152, 153 People v. Taylor (2010) 48 Cal.4th 574 [2010 Cal. LEXIS 2818]...eeeeeeeees 48, 63, 72 People v. Ward (2005) 36 Cal.4th 186 0... cececceceeccseessecesceseeseeseeeeseeneeseeeesanseessseseenees 151, 156 People v. Wash (1993) 6 Cal.4th 215 ooo eeeccceccccceccecesceesseneeeeecseeessaeeeseneesseneessuevenenaneesenees 78 People v. Watson (1956) 46 Cal.2d 818 oo. ecseesceeesseseeetseeseeeesessensesecneneessesssssseeessaseneees 116 People v. Weaver (2001) 26 Cal.4th 876 oo. eeccececesseteeececeeceseeseseceeeseeesseeseeseesesesesseeseeseseeees 99 People v.Wheeler (1978) 22 Cal.3d 258 ooo ccececcccesesseessetseseeeseseecsseessssesseesssseseeeaes 46 et passim People v. Whisenhunt (2008) 44 Cal.4th 174 ooeccceecesssseescseeseeseeseesenecsessesesaesarseessseeaees 151, 154 xiii People v. Whitson (1998) 17 Cal.4th 229 ooeeccescneeesseeeeneesetesseesessseeesassesesseenes 76, 93, 94 People v. Wilson (1967) 66 Cal.2d 749 oooccccceeseessenseseeseeesseeeeeesees 107, 109, 114, 116 People v. Young | (2005) 34 Cal.4th 1149occccccsessessseseescesseescescsseceesecsessecaeenaesesaeeneeens 47 People v. Zambrano (2007) 41 Cal.4th 1082 oo.cccceeeeeeecesseeeeeseeseeeeenecseesseressteseteseeseneensenses 146 People v. Zamudio (2008) 43 Cal.4th 327 onceccssceseesseseteeeseeeseceecsceseeeeesseneeesseeesaeeneseees 124 Powers v. Ohio (1991) 499 U.S. 400 [111 S.Ct. 1364, 113 L.Ed.2d 411]oe46 Purkett v. Elem (1995) 514 U.S. 765 [115 S.Ct. 1769, 131 L.Ed.2d 834] wees47 Rice v. Collins (2006) 546 U.S. 333 [126 S.Ct. 969, 163 L.Ed.2d 824] 0...ceeeeteeees 47 Ring v. Arizona (2002) 536 U.S. 584 [122 S.Ct. 2428, 153 L.Ed.2d 556]...cesses 149 Roper v. Simmons (2005) 543 U.S. 551 [125 S.Ct. 1183, 161 L.Ed.2d 1) .....0 158, 159 Snyder v. Louisiana (2008) 552 U.S. 472 [128 S.Ct. 1203, 170 L.Ed.2d 175] vccseessssscen 47, 68 State v. Muhammad (N.J. 1996) 678 A.2d 164.0... ccccccseeceeceeceesecceeeseseeaeeeeeeeseeseesetaeeeeeeaeeeetaee 124 Tolbert v. Page (9th Cir. 1999) 182 F.3d 677 o.eccccccecccccseeessececeesceeceneeeceneeeeeateeesateneeeeeatens 65 Turner v. Marshall (9th Cir. 1995) 63 F.3d 807 ou... ccc cceeecceseeeceeeeeeeeceeceeeeeeeceecaceeeateneeaeeneees 65 United States v. Alvarado (2d Cir. 1991) 923 F.2d 253.0... eesseccssesescceceereetsseeesesseeececeeeseeeessesesneeateaes 65 United States v. Battle (8th Cir. 1987) 836 F.2d 1084 oeccccscscecsneescecenessecseesseeeesteeeenesseteneeeses 65 XIV United States v. Hughes (8th Cir. 1989) 880 F.2d 100 oo.eeesceeeeseeeceeceeesecseeseeseeaeaeeasteeeneeneeaes 65 United States v. Thompson . (9th Cir. 1987) 827 F.2d 1254 oocccceseeecscesceeteneeeeseeneseseeeseneesenenenes 73 United States v. Tucker (7th Cir. 1980) 836 F.2d 334 oo. eccceseeceseeseceeeeesecsceseeaeeeeaceaeeetsesaeeseeeesaes 74 Wainwright v. Witt (1985) 469 U.S. 412 [105 S.Ct. 844, 83 L-Ed.2d 841]oe53, 54 Wardius v. Oregon (1973) 412 U.S. 470 [93 S.Ct. 2208, 37 L.Ed.2d 82] oo... eeeeeeeeeseeseeeees 153 Williams v. Runnels (9th Cir. 2006) 432 F.3d 1102 oo... ceceeeeceeeeecseeeeceeceesseeeteaeeeeseseeseeneees 63, 64 Witherspoonv.Illinois (1968) 391 U.S. 510 [88 S.Ct. 1770, 20 L.Ed.2d 776] ......ce eeseeeees 53, 54 STATUTES Evidence Code § BSBooceececccseeeceseeecscencesecseeeneaesseesscaecseesneseeeneeseeeseesesateeteesssseeneeseents 135, 136 § LQO4Leccceccncseeecesceseceseeeeesecaecsecsececeeessecscesesececsessesssecaueeeseeaeeeasesteateaes 75 Penal Code Bececcescesesceseecescecescsseeateceeetesetsecessesenseesensecsaeaessecaacenssasessesetaceaecsaeatenes 102 § QO. eecceccesecesscesecseseeeesececeessesecceesecseseeseseesesseeetseeeseesecseseeeeteeneegs 102, 103, 105 § 190.2, subds, (a)(3), (a)(17)(C), (G) o.eeeeeeeeceesesecceeeteseeeeseeseseeeeeeseesreneseeeees 3 § 190.3occceeeeececceseesseseececaersceecesnseseesecaeearesseesessesseeneeerseseees 136, 152, 155 § 190.3, SUD. (€)..csccccsescsesssesssssseecsecssscssecsseesesssssssssssessscssecssesseeesseesessuessssesses 1 § 190.3, SUD. (D) ooeece eeeeeeeseeeccsceeseeesecesesecsseeneeaeeeeesecssesassaseeesaesnsenesae® 1 BDecee csecececcsseseeseeseesceeatesscseesseseseaeestessceseessesecsessucsseseseseseseeesecseraes 3 § 261 Boece ccceeccnencctecncesecseesececeesesseeaecseesesssesceaeessecessessesseeseeseseessesatensesees 3 § 667, SUD. (8)...eee ceceseesereeeesseeeeeaeeeceeeseecsuessaseseeseseaeseaesneeeeeesneessersnseaees 3 § 800.ceeeecceceecseeseeseesecseeseessesseeseeseesessseessceeeeeeeesseseesasesseesessesetarsenenees 2 § 1192.7, Subd. (C)CL) veeeececeeeeeseeseeeeseeesceeeeseceesseseesesesecssessseesaeeseeseessenses 3 § 120227eeeeeeeseeeeeseneceeseecececaessecseeseesesseceateascseessesasenesssenseseseseeatessesseates 3 XV CONSTITUTIONAL PROVISIONS California Constitution Art. 1, § US coe ccsccccssscccsceessssseeessessucsecssscseucaaseseessceececstecsauseassseveesesaenseeaes 715 Art. Ty § 16 coo cecccccccccssesseecessssesesescesessecssesessscessecussceatersussuseasesesesssaceeeseass 46 United States Constitution VI Amendment...cccceccccccesecccececeessccecsseeecesssecsonaneeeee 149, 150, 151, 155 VITT Amendment00...eceecseeeecesseeeseseeeeseeeseeecenseneneseeseaeeesaees 150 et passim AIV Amendment.......ccccccccccscesssecssscccssssscesssesesscseeessasevees 117, 150, 151, 155 OTHER AUTHORITIES CALJIC No, 4.21 oecccccccccccescesscescsssescessessesseseceecseceseesscsaesssesesaesaeeetstesseesaesees 114 CALJIC NO. 4.22 oooccecccecceecccesccccccescceccsececsecsecsenceceenceecesaceeesaneecneacestcaseventaseres 114 CALIIC No. 4.30occ cccccececessececcssccccssecesasecctecesesreceessessesssesesaes 102 et passim CALIIC No. 4.31 occeceeesceeceeseeseeeereceeeeeeeesecaeeetaseeesaeeeeeeeenesees 102 etpassim CALJIC No. 8.79 vecsecssseeceseesseecseesteseeeesecsuccrusesusssucsussecsaecsseecuesnacestieasenesesesteee 114 CALIIC No. 8.84.1 ooocececcececcceseccccecsecccceccecssesessusecevsneecessseseevaceessnteseerresesssees 134 CALITIC NO. 8.85 voice cecccccceecesceeesccevessccessucecesvececececesseeeeeseesessausesseeusseseasessasens 155 CALTIC No.8.88 oo.cceccecceccesscscesscessscessscsesseessecssscstscsssssensecessessanees 152, 153, 157 CALJIC No. 8.77 0... ccccccccccecccecceececcscccnecsccccussersccacersccescussngecescsccuseerensceescasenes 114 John H. Blume, “Ten Years ofPayne: Victim Impact Evidence in Capital Cases” 88 Cornell L. Rev. 257, 270 (2003)...cscsess eeeeesereeeseeeeeerecneeeeeasseees 125 XVI INTRODUCTION In 1978 and 1979, Appellant Gerald Parker wasa staff sergeant in the Marine Corpsstationed in Orange County. He entered six apartments in three different Orange County cities (Anaheim, Costa Mesa, and Tustin) in order to rape and brutally attack the lone female occupants. Five of his victims died from the massive injuries to their heads from being struck in the head with a blunt object with such tremendousforce that their skulls fractured. The one womanto survive his brutal attack was nine months’ pregnant when Parker struck herin the head with a bluntobject before raping her. Her babydiedas a result of Parker’s attack. Parker’s crimes went unsolved until 1996 when DNAtesting connected homicides in three different cities to each other, and then to Parker. When confronted with the DNA andfingerprint evidence, Parker admitted burglarizing all six homes,recalling details of the crimes and his victims nearly two decades after his crimes. Attrial, Parker did not contest his identity as the assailantofall six women, which was unsurprising given that he was connected to five of the six victims because his DNAprofile matched DNArecovered from his victims’ bodies; his fingerprint was on the window used to gain entry to one apartment, and his palm print was on the ceramic tile of the windowsill inside the bathroom where he gained entry to another apartment; and his statements to police connected him to all six homicides. In the guilt phase, Parker relied on his statements to police to claim he lacked the requisite specific intent to commit the crimes due to voluntary intoxication. In the penalty phase, pursuant to Penal Code section 190.3, subdivision (a), the prosecution relied on the facts and circumstances surrounding Parker’s six capital murders, including the impactofthe murders on the victims’ families. The prosecution also introduced evidence in aggravation pursuant to Penal Code section 190.3, subdivision(b), regarding the facts and circumstances of uncharged violent criminal acts which included Parker’s: (1) vicious assault and rape of a woman home alone in her Costa Mesa apartment in 1979'; (2) brutal assault upon a womanhe robbedin a parkingstructure in Pasadenain 1979; (3) rape of a 13-year-old girl he grabbed off a sidewalk as she was walking home from the store in 1980 in Tustin; and (4) assault upon his roommate in a Tehachapi correctional facility in 1984. Parker’s appeal includes claimsthatthe trial court erred in finding Parkerfailed to establish a prima facie case of improper race-based peremptory challenges by the prosecutor, in excluding his incriminating statements to police and in refusing to instruct on unconsciousness as a complete defense to his crimes. He also contends his death judgment must be reversed because he was denied fairpenalty determination based on admission of victim-impact evidence andrestriction on closing argument regarding his lack of future dangerousness. Healso challenges the constitutionality of California’s death penalty statute and model jury instructions regarding the jury’s penalty determination. Parker’s claims are meritless. He received a fair trial and his death sentenceis richly deserved. ' Bythe time Parker wastied to the series of rapes and murdersin Orange County in 1996,the statute of limitation had expired regarding Parker bludgeoning and raping Jane P. in her Costa Mesa apartment on July 19, 1979. (See Pen. Code, § 800.) Parker’s attackon Jane P. occurred 14 weeks after Parker raped and murdered Kimberly Rawlins in her Costa Mesaapartment, and less than eight weeks before his attack on Marolyn Carleton in her Costa Mesa apartment wasinterupted by her nine- year-old son. (See 7 RT 1317-1319, 1406-1409; 9 CT 2623-2624, 2633- 2634.) omENiteMastCRSAENO STATEMENT OF THE CASE On September 8, 1998, the District Attorney of Orange County filed an amended indictment charging Appellant Gerald Parker in count 1 with the murder of Sandra Kay Fry, in count 2 with the murder of Kimberly Gaye Rawlins, in count 3 with the murder of Marolyn Kay Carleton, in count 4 with the murder of Chantal Marie Green, in count 5 with the murder of Debora Kennedy, and in count 6 with the murder of Debra Lynn Senior. It was further alleged that the murders were committed under special circumstances, to wit, multiple murder and during the attempted commission or commission of the crimes of rape and burglary within the meaning of Penal Code section 190.2, subdivisions (a)(3) and (a)(17)(C) and (G). It was also alleged that each murder wasa serious felony within the meaning of Penal Code section 1192.7, subdivision (c)(1). The information further alleged that Parker had served a prison term following his conviction in Orange County Superior Court on May 13, 1980,for forcible rape in violation of Penal Code section 261.3, and did not remain free of prison custody during the five years subsequentto serving his prison term within the meaning of Penal Code section 667, subdivision (a). Additionally, it was alleged that Parker served a prison term following his conviction in Los Angeles County on October 2, 1980, for robbery with great bodily injury within the meaning of Penal Code sections 211 and 12022.7, and did not remain free of prison custody during the five years subsequentto serving his prison term within the meaning of Penal Code section 667, subdivision (a). (1 RT 2, 34-35, 37-38; 3 RT 449-450, 512- 513; 7 RT 1224-1228; 2 CT 534-537; 3 CT 849-852, 861-864; 8 CT 2325.) Parker’s trial by jury began on September 9, 1998. (4 RT 552; 8 CT 2357.) On October 20, 1998, the jury found Parker guilty offirst degree murderon all counts, and each special circumstanceallegation was found true. (9 RT 1968-1975; 10 CT 2963-2981, 3012-3032.) On November2, cocoarmemtnie isiteesisienkt near nirmiataferteimaby oa 2 ccabadineptratotshint yah PASIeagerGINan SATS BANNERnehdANEnitro 1998, the penalty phase commenced. (10 RT 2061; 10 CT 3165.) On November12, 1998, the jury found the appropriate penalty to be death.’ (12 RT 2618-2620; 12 CT 3739, 3743-3744.) On January 21, 1999, Parker’s motions for a new trial and to modify the jury’s penalty verdict were heard and denied. (12 RT 2632-2638; 12 CT 3762-3769, 3861-3862.) Parker was then sentenced to death for the six murders committed with special circumstances. A $10,000 restitution fine was imposed and Parker was awarded a custodial credit of 946 days. (12 RT 2639-2659; 12 CT 3862-3863.) STATEMENT OF FACTS A. Guilt Phase 1. Prosecution’s Guilt Phase Evidence In 1978, Appellant Gerald Parker was based at the Marine Corps Station located in the City of Tustin in Orange County. (9 CT 2556.) Parkerlived on base for about six months before he moved outof military housing into an apartment. (9 CT 2552.) In late 1979, Parker was stationed at El Toro Marine base in Orange County. (9 CT 2569.) During 1978 and 1979, Parker would go into Orange County neighborhoods, park his car and then look in windowsto see if there were any females home alone. (8 CT 2443; 9 CT 2653-2653.) Parker did not commit as many crimes in Anaheim becauseit was a larger city and was “morelit up at night” whereasthe cities of Tustin and Costa Mesa were fairly quiet communities for him to “walk up and downthestreets.” (9 CT 2667.) Asfar as victims, ? Trial on the prior conviction allegations was bifurcated from the substantive charges and allegations. (3 RT 464-465.) The prosecutor movedto dismiss the prior conviction allegations after the jury returned a verdict of death. (12 RT 2622-2623; 12 CT 3744.) Parker explained “[a]nyone would do,” as he gave no thoughtto thesize, shape,ethnicity, or nationality of his victims. (8 CT 2444.) a. Sandra Kay Fry (Count 1) At the end of November 1978, 17-year-old Sandra Kay Fry moved into Apartment H2 located at 704 South Knott, in the City of Anaheim in Orange County. (7 RT 1272-1273, 8 RT 1753.) She shared a two bedroom apartment with Georgena Stevenson.’ (7 RT 1272.) On December1, 1978, Ms.Fry wasalonein the apartment. (7 RT 1273.) That evening Parker wasdriving his car when he noticed an apartment complex near BuenaPark. (8 CT 2444-2445.) He decided to approach the apartments using a narrow road behind the complex. (8 CT 2244-2245.) He parkedhis car and climbed a chain length fence and entered the complex at the back wherethe garages were located. (8 CT 2445-2446.) Parker passed three or four apartments that had their shades drawnorthe lights out before he got to Ms. Fry’s apartment— the first apartment that he was ableto see inside. (8 CT 2445, 2447.) Parker looked into Ms. Fry’s apartmentthrough the window of the bedroom belonging to her roommate. The screen was already off the window andlying up against the apartment when Parker looked through the window. (7 RT 1263-1264, 1268-1270; 8 CT 2447- 2448.) The window was unlocked and opened about a quarter of an inch. Parker looked in the bedroom for about a minute before going around and looking through the living room window. (8 CT 2448.) Parker could hear music playing through the open window. (8 CT 2449.) He saw a woman sitting at the table in the kitchen area with her back to the window. She waspetite. Parker guessed she was aboutfive feet or five feet six inches * When Ms. Fry’s roommate, Georgena Hurley,testified attrial, she used the surname Stevenson. (7 RT 1272.) tall, and weighed about 118 pounds.’ He watched her for about a minute through the living room window. (8 CT 2450.) Parker walked back to the open bedroom windowand climbedinside carrying a two-by-four piece of wood. (7 RT 1263-1264, 1268-1270; 8 CT 2451-2452.) Parker walked out of the bedroom andinto the living room and stood by the stereo. (8 CT 2452-2453.) Ms. Fry was talking on the telephone. (8 CT 2450.) Parker stood about five feet away from Ms. Fry watching her for between twoto five minutes, waiting for her to hang up the telephone. (8 CT 2453.) Ms. Fry hung up the telephone and remained seated at the table in the kitchen area with her back to Parker. He waited a minute or two after she had hungupthe telephone before approachingher. Hethen struckherin the face before striking her in the head. When Parker hit Ms. Fry in the head, he wanted to rape her. (8 CT 2454.) Parker hit her more than once with the two-by-four. (8 CT 2455-2456.) Taking the two- by-four with him,he placed his hands around Ms.Fry’s breasts and draggedher into her bedroom.’ (7 RT 1263-1264, 1268-1270; 8 CT 2456, 2460.) * At the time Parker attacked her, Ms. Fry was 5 feet, 5 inches tall and weighed 120 pounds. (8 CT 1753.) > Parker subsequently told investigators that no words were spoken to Ms. Fry because he rendered Ms. Fry unconscious immediately by a blow to the back of her head while she wasseatedat the kitchen table before she was even aware he wasinside her apartment, and then dragged her unconsciousinto her bedroom. (8 CT 2454-2456.) Parker’s statements regarding Ms. Fry being unawareofhis presence until she was rendered unconscious by a blow to her head is contradicted by the evidence. There were signsofa struggle in her living room (7 RT 1267 [broken glass and strewn candy in living room]), and there were injuries to her face that were consistent with a struggle. The blowsto her face occurred prior to the blow to the side of her head that would have caused herto lose consciousness (continued...) Parker laid Ms. Fry down onthe bed on her stomach,and then he rolled her over onto her back. (8 CT 2457.) Parker pulled his pants and underwear down aroundhis ankles before removing Ms. Fry’s pants and then tearing off her panties. (8 CT 2457-2458.) Ms. Fry was unconscious, lying across the bedsideways with her legs spread. Parker stood overher, looking at her vagina. (8 CT 2458-2459.) Parker was unable to get an erection. After a minute or two, he ejaculated on Ms.Fry. (8 CT 2459.) Parker pulled up his pants and picked up the two-by-four. He walked out of Ms. Fry’s bedroom andinto her roommate’s bedroom where he climbed out the same window he hadusedto enter the apartment. (7 RT 1263-1264, 1268-1270; 8 CT 2460-2461.) As he left, Parker noticed Ms. Fry was having difficulty breathing, “moreso than the others.”° (8 CT 2460.) At around 11:00 p.m., Ms. Stevenson returned home. There was only one key to their apartment, and Ms.Fry had the key. Ms. Stevenson knocked on the door to their apartment and looked in the window. The lights were on and she could hear the stereo playing inside the apartment. (7 RT 1273.) Twofriends of Ms. Stevenson, TJ Jackson and Pat Burns were driving by and she waved to them. She asked Mr. Jackson to go around and climb through her bedroom windowandlet her into the apartment. Mr. Jackson did so, and then Ms. Stevenson wentinto Ms. Fry’s bedroom and found her lying in bed with no clothes on from the waist down andherheadlying off the side of the bed. (7 RT 1274.) (...continued) quickly because she wasclearly capable of resistance when she washit in the nose and face. (8 RT 1722-1723.) ° Parker explained to investigators that Ms. Fry’s breathing was “sort of a muffled sound”and it seemedlike the air “was only going half way down”into her lungs. He explained that usually he heard a “gurgling” sound from his victims. (8 CT 2460.) {YetroaenameERA BA SREaNOE Ms.Stevenson spoke to Ms. Fry but she did not answer. She movedthe hair from her faceand saw that her face wasall bloody. She called out to Mr.Jackson and Mr. Burnsandasked them tocall the police. She thought Ms.Fry had been beaten up. (7 RT 1275.) Ms. Stevenson did not know Parker and did not give him permission to be in her apartment. (7 RT 1276.) Anaheim police officers arrived at the apartment at approximately 11:25 p.m., within about two minutes of being dispatchedto the location. (7 RT 1258-1259.) Music was playing in a low tonein the living room, and there were signs ofa struggle, including broken glass and bloodstains on the carpet in the hallway. The blouse shewas wearing had been pulled up exposing her bra. Her legs were completely exposed anda pair of brown pants appeared to have been thrown over her vaginal area. (7 RT 1260- 1264; [People’s Exh. No. 11 [photo of Sandra Fry as found].) There were obvious signs of traumato her head, and she had blood around her mouth, nose and hair. She wasnot breathing but appeared warm to the touch, so officers contacted the paramedics. (7 RT 1264.) The paramedicsarrived shortly thereafter. (7 RT 1264-1265.) Ms. Fry wastransportedto the emergency room at West Anaheim Community Hospital where she was pronounced deadat 12:35 a.m. on December 2, 1978. (7 RT 1283, 1312; People’s Exh. No. 25 [emergency room records].) There wasnosign of forced entry to the door of the apartment. (7 RT 1290.) The sliding glass window in Ms. Stevenson’s bedroom was dusted for prints, and a latent print of Parker’s left index finger was obtained from the lower right hand side of the window. (7 RT 1270-1271, 1292-1294, 1302-1305; People’s Exh. Nos. 14 [latentprint], 21 [Parker exemplar].) Sevan myicntty “She thtiten Lenten neeRMRROMSelgeenee Ms.Fry had a laceration on herlip which wasconsistent with being struck in the face. (8 RT 1715-1717, 724; People’s Exh. No. 105 [photograph ofinjury to lip].)’ Pathologist Richard Fukamoto’ explained that the bruises and contusions overthe bridge of Ms. Fry’s nose were consistent with being struck in her nose and the bruises on her neck were consistent with an attempt to choke her either with fingers or application of some kind of an object. (8 RT 1716-1717, 1724; People’s Exh. No. 106 [photograph of neck].) The injuries to Ms. Fry’slip, nose, and throat were consistent with a struggle and indicated she was capable ofresisting at the time the injuries were sustained. (8 RT 1722.) Ms. Fry sustained bruising to her upperchestinflicted by sometype of blunt trauma. (8 RT 1716.) After being struck in the nose and face, Ms.Fry wasstruckin the side of the head by a blow that would have caused loss of consciousness quickly. (8 RT 1722-1723.) Her skull was indented and cracked. (8 RT 1720.) In order to crack her skull, there was a tremendous amountof force from an unknown numberofblowsbya blunt instrument, suchasa bat, two-by-four piece ofwood, or metal pipe. (8 RT 1721.) Internally, there was a massive bruise behind herright ear lobe extending all the way to the back of her head. (8 RT 1718.) Dr. Fukamoto opined that Ms. Fry died from subdural and subarachnoid hemorrhaging, with cerebral laceration due to blunt force traumato the head, and skull fractures. (8 RT 1722-1723.) When Ms. Fry’s body was examinedat the hospital, there were visible signs of a white substance even before observing her body underultraviolet light for the presence of semen. (7 RT 1283-1284, 1291.) Swabs were ’ Richard Fukamoto, M.D., the Chief Pathologist for the Orange County Coroner’s Office testified regarding the autopsy performed on Ms.Fry by pathologist Robert Richards because Dr. Richards was unavailable to testify at the time of trial based on his medical condition. (7 RT 1315; 8 RT 1710-1711.) taken from hergroin, legs and thigh. (7 RT 1285-1286; People’s Exh. No.13 [photograph].) PCRanalysis of the swabs taken from Ms.Fry’s body yielded DNA that matched Parker’s DNAprofile. (7 RT 1580, 1622-1623; 8 RT 1631, 1641.) The frequency with which the DNA profile in the sperm fractions recovered from Ms. Fry’s body would randomly occur within the general population is 1 in 6.9 million for Caucasiansand 1 in 4.4 million for African-Americans. (8 RT 1645-1646.) b. KimberlyGaye Rawlins (Count2) On April 1, 1979, 21-year-old Kimberly Gaye Rawlins lived with her roommate, Roberta Birrittela, in apartment number 17, located at 307 AvocadoStreet, in the city of Costa Mesa, in Orange County. (7 RT 1316, 1328, 1330, 1362.) At about 7:30 that evening, Ms. Birrittela and her cousin, Donna Chavez’left the apartment with their dates to go dancing. Ms.Rawlins wasalone whenthey left. (7 RT 1329, 1336.) Ms. Chavez and her date, Mr. Perez, returned to the apartmentat about 11:30 p.m. Ms. Chavez did not haveher identification with her, so she was unable to get into the club where they had gone to dance with Ms.Birrittela and her date. (7 RT 1330, 1337.) Ms. Rawlins was upstairs in another apartment visiting with a friend whenthey arrived. Ms. Rawlins returned to her apartmentand visited with Ms. Chavez and Mr. Perez for about 30 minutes. (7 RT 1338.) Parker stood outside listening to the three talking inside Ms.Rawlins’ apartment. (9 CT 2622.) Ms. Rawlins was alone and uninjured when Ms. Chavez and Mr. Perez left the apartment some time after midnight unaware that Parker had been observing them. (7 RT 1339- 1340.) Ms. Rawlins asked them notto lock the door on their way out and 8 When Ms.Birrittela’s cousin, Donna Koehler,testified at trial she used the surname Chavez. (Compare 7 RT 1329 with 7 RT 1336.) 10 explained that she was going to take a showerandgoto sleep and Ms.Birrittela did not have a key. (7 RT 1339.) Knowing that Ms. Rawlins wasalone in the apartment, Parker waited until the lights were out before he entered the door of the apartment carrying a two-by-four. (9 CT 2622-2623.) As he entered the darkened bedroom where Ms.Rawlins wassleeping, Parker knew that she was petite.” (9 CT 2623.) Parker struck her two or three times with the two-by- four. (9 CT 2624.) Parkerleft the apartment through the front door. (9 CT 2625.) At about 4:45 a.m., Ms. Birrittela returned home. (7 RT 1331.) All the lights inside the apartment wereoff exceptfor the light in the bathroom. (7 RT 1331.) When she entered the apartment she heard what soundedlike a heavy sigh or forced breath. (7 RT 1333.) Ms. Birrittela went into the bedroom she shared with Ms. Rawlins. (7 RT 1331.) She noticed Ms.Rawlins lying off to the side with her bathrobe open. She did not understand why she waslying that way and wentoverto herto putherinto bed. She wastalking to her andlifted her legs up and puta blanket over her because she wasvery cold. (7 RT 1332.) Ms. Birrittela went into shock as she realized Ms. Rawlins was dead and she did not know whether the person who hadkilled her wasstill inside their apartment. (7 RT 1333.) She left their apartment and went upstairs to a neighbor’s apartment and asked him to check on Ms. Rawlins while she waited upstairs. (7 RT 1334.) He returned andcalled the police. Ms. Birrittela did not go back inside her apartment, and instead sat outside on the steps by the door. (7 RT 1334.) Ms. Birrittela did not know Parker and never gave him permission to be inside her apartment. (7 RT 1335.) ? At the time Parker attacked her, Ms. Rawlins was 5 feet, 7 inches tall, and weighed 110 pounds. (7 RT 1362.) 11 The Costa Mesa Police Department and paramedics respondedto Ms. Rawlins’ apartment. (7 RT 1316-1318.) Costa Mesapolice officers arrived about 5:00 a.m. (7 RT 1317.) Ms. Rawlins was wearing a blue bathrobe that was pulled up behind her and a pink blanket was over part of her body. Her face was badly beaten. She was warm to the touch. After an officer detected a faint pulse, two officers gently pulled her off of the bed and onto the floor. An officer began CPR on Ms. Rawlins, and then stepped back when the paramedicsarrived and took over administering CPR. (7 RT 1318-1319.) After a short period of time, the paramedics indicated that Ms. Rawlins was dead. (7 RT 1319.) The doors and windowsto Ms. Rawlins’ apartment were inspected for signs of forced entry. (7 RT 1319.) The only door to the apartment had no sign of forced entry andall the windowsand drapes were closed with the exception of Ms. Rawlins’ bedroom window. Her bedroom window was open about an inch anda half, and the screen waspartially removed from the outside but the dust on the window frame had not been disturbed. (7 RT 1320.) Ms. Rawlins’ purse wassitting on the kitchen table inside her apartment. (7 RT 1323, 1335; People’s Exh. No. 31 [photograph].) Pathologist Peter Yatar noted that Ms. Rawlins’ eyes were blackened, with the majority of the hemorrhageon theright side as a result of blunt force traumathat fractured her skull. (7 RT 1362-1364; People’s Exh. No. 39 [photograph of facial injuries].) There were small lacerations about two millimeters in size on Ms. Rawlins’ lowerlip that could have been caused by a blunt force blow orslap oras result of falling on the floor. (7 RT 1364-1365.) Ms. Rawlins’s fingernails were broken on her ring and small fingers of her right hand, and there were small abrasions on the right ring fingertip andleft ring fingertip. (7 RT 1365 People’s Exh. No. 41 [photograph of right hand] and No. 41 [photograph ofleft hand].) There wasa large bruise on the right temporal area just above her 12 right ear. There was a similar pattern of a circular contusion on both sides of her head. The contusion on the right side was about two-by-twoinches | in size, andthe contusion onthe left side was about two-and-a-half by two inches in size. (7 RT 1366-1367; People’s Exh. Nos. 42, 42A [photograph of head injuries].) She sustained three skull factures: a nine-inch skull fracture, radiating out from the location of the contusionto theleft side of her head; a three-inch fracture of the right temporal area just aboveherear; and a two-and-a-half inch fracture inside her skull, and a secondfracture in the right anterior cranial fossa, in the bottom portion ofthe skull located just over her eyes. (7 RT 1369-1371.) The injuries to her skull were consistent with applying force to the right temporal area with a heavy blunt instrument. (7 RT 1368-1370.) Dr. Yatar opined that a great amountof force with a blunt force instrument would be required to cause the fractures and brain hemorrhaging. He explained it would require force of about 400 to 600 poundsper square inch to cause the samefracture injuries to a cadaver with hair, and an even greater force to cause the nine-inch fracture sustained by Ms. Rawlins. (7 RT 1372-1373.) He opined that anyone sustaining blows with a blunt force instrumentsufficient to cause the injuries Ms. Rawlins sustained would be rendered unconscious immediately. After sustaining these types of injuries, the person would be lying ontheir back, unconscious in a coma, and would notlive more than six hours without medical intervention. (7 RT 1373.) Ms. Rawlins died from a brain contusion with subdural hematomaasa result of multiple skull factures from blunt force traumato her head. (7 RT 1374.) Ms. Rawlins’ tampon wascollected as evidence during the autopsy. (7 RT 1345-1346.) PCR and RFLPtesting of semen found onthestring of the tampon revealed DNA matching Parker’s profile. (8 RT 1614-1615, 1620-1624, 1633-1636.) The frequency of a random matchin the general 13 CenEMECEARLDOyPMEREEBi saan En at aR0foora population of the RFLP DNAprofile is 1 in 670 billion. (8 RT 1614.) The frequency of a random matchin the general population for African- Americansis | in 404 billion. (8 RT 1613-1617.) c. Marolyn Kay Carleton (Count 3) In September of 1979, 31-year-old Marolyn Carleton lived with her 9- year-old son, Joey Carleton, in apartment number10, located at 224 AvocadoStreet, in the city of Costa Mesa. (7 RT 1406-1407, 1409; 8 RT 1753.) On September 14, 1979, at about 11:45 p.m., the apartment manager wholived next doorto Ms. Carleton walked past the patio area of Ms.Carleton’s apartment. (7 RT 1415-1416.) The patio was enclosed by a four-foot high wooden fence. (7 RT 1412.) She noticed the glass sliding door was open, the screen door closed, and the drapes were opena few feet. (7 RT 1415.) A light was on in the dining area and she saw Ms. Carleton whoappearedto be asleep on the floor of her apartment. (7 RT 1416.) In the early morning hours of September 15, 1979, Parker entered Ms.Carleton’s apartment through the unlockedsliding glass door on her patio. (9 CT 2630.) Ms. Carleton waslying in her bed asleep. (9 CT 2630.) Parker hit her three or four times with a blunt object and attempted to sexually assault her.!° (9 CT 2634.) Parker heard Joey calling forhis mother. Parker exited Ms. Carleton’s bedroom andran into Joey in the darkened hallway. Joey asked him something to the effect of what was wrong with, or what have you doneto, “my mother.” (9 CT 2631-2633.) Parker moved Joeyto the side of the hallway andleft the apartment though the sliding glass door. (9 CT 2632-2633.) '0 At the time of her death, Ms. Carleton was 5 feet, 4 inchestall, and weighed 140 pounds. (8 RT 1753.) 14 Thefirst officer arrived at the apartment at 2:56 a.m., within three or four minutes of being dispatched.'! (7 RT 1407.) Joey metthe officer outside of the apartment. Hetold the officer that his mother had been injured and directed him to their apartment. (7 RT 1408.) The porchlight was on asthe officer walked into the darkened apartment. (7 RT 1409.) The glass door and screen door from the patio into the apartment were open. (7 RT 1412; People’s Exh. No. 52 [photograph].) The drapes to the glass door inside the apartment were closed. (7 RT 1413.) The officer entered the hallway where a light was on and walkedinto the darkened master bedroom where he found Ms. Carleton lying mostly on the floor, somewhatpropped up against the bed and nightstand. (7 RT 1409.) There was a sheet waddedup on top of her across her midsection. (7 RT 1410-1411.) Her face was covered with blood and her hair was matted with blood. There was a large wound onthe top left of her skull. She was wearing a short nightgown that had been pulled up above her waist and her underwear was downaroundherright leg between her knee and ankle. She was unconscious. Her breathing was labored and forced. (7 RT 1410.) She had a very weak pulse. Theofficer called for the paramedics and before they arrived, the officer laid her completely on the floor to ease her breathing and movedthe sheet off of her. (7 RT 1411.) Paramedics transported Ms. Carleton to Hoag Memorial Hospital. She was pronounced deadshortly after noon the following day on September 16th. (8 RT 1777.) Ms.Carleton had no defensive wounds. (8 RT 1726.) There were external injuries noted consisting of bleeding in her left eye, her right anterior shin area, right medial ealf and thigh, and a large star-shaped or '' During the victim-impact testimonyin the penalty phase, Joey Carletontestified that he had been awakened by his mother screaming his name,and after finding her incoherent and bleeding onthefloor of her bedroom,he called the operator for assistance. (10 RT 2171-2172.) 15 stellate laceration to her scalp in the area behind herleft earlobe about three inchesin length extending almostto the back of her head. Underneath the laceration to the scalp was a depressed skull fracture extendingall the way to the base of her skull which caused the bleeding to her left eye. (8 RT | 1725, 1730.) The skull fracture required a large amountofforce from a blunt instrument. The injuries were consistent with use ofa mallet. (8 RT 1728.) Dr. Fukamoto’’ opined that Ms. Carleton died from subarachnoid and subdural hemorrhage and contusions, as well as injury to her brain, as a result ofblunt force trauma. (8 RT 1729.) d. Chantal Marie Green (Count 4) On September30, 1979, Diana Lynn Green resided with her husband Kevin Green in Apartment A, located at 230 West 6th Street in Tustin. (7 RT 1477, 1491.) Mrs. Green was nine months’ pregnant with the couple’s first child, a girl who was going to be named Chantal Marie Green. (7 RT 1492.) Around midnight, Parker drove up and parked at the Tastee Freeze located within a short walking distance of the Green’s apartment. (7 RT 1478; 9 CT 2596.) Parker was walking around the Green’s apartment complex when he overheard the Greens arguing. (9 CT 2597.) He then heard Mr. Green’s car start up and saw him drive away. Healso noticed the door to the Green’s apartment had been left open. (9 CT 2598-2599.) Parker wentinside the Greens’ apartment and saw memorabiliain the living room whichindicated to him that Mr. Green wasin the Marine Corps. (7 RT 1486.) Parker went into the bedroom and Mrs. Green sat up '2 Dr. Fukamototestified regarding the autopsy performed by pathologist Walter Fischer on Ms. Carleton because Dr. Fischer had died prior to Parker’s trial. (7 RT 127, 1315; 8 RT 1724.) 16 AONNNERMCT To and lookedat him as though she recognized him before lying back down in . bed. (9 CT 2600-2601.) Parker rushed toward her andhit her in the head. After being struck in the head, she was unconscious. She was obviously pregnant and Parker knew she was pregnant before raping her. (7 RT 1491, 1486; 9 CT 2601, 2607, 2618.) 2602.) A Tustin police officer arr Parker ejaculated inside of her. (9 CT ived at the apartment complex located near the Santa Ana Freeway and Newport Boulevard at about 2:15 a.m. and was met by Mr. Green. (7 RT 1477, 1478.) Mr. Green appeared to be in shock and stated his wife had been injured. (7 RT 1479.) The officer found Mrs. Green lying on the bed. S] hard time breathing. (7 RT 148 diameterin the middle ofherf in her head, as well as from her was so deepthat the officer cou! he appeared comatose and washaving a 1.) There was a hole about two inchesin ehead. She was bleeding from the wound ear and nose. The woundin her forehead Id see what appearedto be brain matter. He also saw blood on the bed, floor, and blood spatter on the wall. Mrs. Green was not wearing any clothing atnd her legs were spread open. (7 RT 1481.) The woundin Mrs. Green’s forehead was so pronouncedthat the officer initially believed she had been sg handgunsandrifles, and also ch hot. He searched the apartment for \ecked to see if anyone hadfired a weapon through the window of the bedroom. Mrs. Green was unconsciousas paramedics arrived. She wastr: Hospital by ambulance. (7 RT DNAin sperm fractions from v (8 RT 1621-1624, 1649-1653.) Mrs. Green was in a coma hospital for about three weeks. ansported to Santa Ana Tustin Community 1482.) Parker’s DNAprofile matched the aginal swabsobtained from Mrs. Green. for about 10 days and remained inthe (7 RT 1492.) When she regained consciousnessshe hadtotalan and could not remember anyone. She no longer knew howto talk as e had experienced a complete memory 17 SOONnARELNRGPMRRIRTRLNeR MUR GabaMEO Fatam Pere loss. She had to learn to talk and spell all over — and it took years for her to do so. (7 RT 1493.) While her abilities improved overthe years,at the timeoftrial, 17 years after she was assaulted by Parker, she still could not comprehendspecchifa person spoketoo fast. (7 RT 1493-1494.) She had to slow downif anything technical was being related to her, and experiencedfrustration because of requiring more timeto respond to others because of the delay between having thoughts and beingable to articulate them. (7 RT 1494.) Mrs. Green’s unborn child, Chantal Marie Green, ceased havingvital signs the afternoon following Parker’s attack and was delivered stillborn. (7 RT 1492-1493; 8 RT 1777.) An autopsy was performed on Chantal by Dr. Fukamoto. (8 RT 1731.) There was no external reason why Chantal should have died as there was no evidence of trauma to the baby or congenital anomaly. The baby wasdead for less than 12 hours before being delivered. Dr. Fukamoto opined the cause of death was intrauterine anoxia as evidenced by changesto the baby from the lack of oxygento hertissues. (8 RT 1732-1733.) The head woundto Mrs. Green was caused by a blunt force injury consistent with a bat or a mallet which would render her immediately unconscious and cause severe underlying damageto herbrain. (8 RT 1735.) The shock from such a traumatic episode causes the body to shift the oxygenated bloodto the heart, lungs and brain of the mother, resulting in the uterus receiving less oxygenated blood to the uterus to the point where Chantal wasnotable to sustain life in her mother’s womb. (8 RT 1733-1734.) Parker read about the attack on Mrs. Green in the newspaperin 1980 or 1981, and knew that Mr. Green had been convicted for the crimes Parker had committed against Mrs. Green. Parker was under the mistaken belief that Mr. Green was on death row for the attack on his wife. (9 CT 2617.) 18 ect Urnnaritattbte eteies ee e. Debora Kennedy (Count 5) On October 6, 1979, 24-year-old Debora Kennedy,lived with her sister Yvette Lavey in ApartmentB, at 15561 Boleyn Circle, in the city of Tustin.’? (7 RT 1378, 1388-1389; 8 RT 1754.) Ms. Lavey and herfriend Nanette Peavy" left the apartment around9:00 p.m. to go to Las Vegas. Ms. Kennedy wasalone and uninjured whenthey left. (7 RT 1389.) That same evening, Parker took a mallet out of a pick-up truck parked about two apartments away from Ms. Kennedy’s apartment. (9 CT 2610.) He looked in the window ofher apartment and could hearthe television set. (9 CT 2610.) He entered a bedroom windowcarrying the mallet. (9 CT 2609-2610.) Ms. Kennedy wasonthe floor leaning against the couch, asleep, with the television on when Parker entered her living room. (9 CT 2609, 2611.) Parker went over to her andhit her in the head with the mallet, and then raped her and ejaculated inside of her. (9 CT 2611-2612.) Parker recalled that Ms. Kennedy was“kind of heavy.””” Ms. Lavey and Ms. Peavy returned from Las Vegasthefollowing day around 6:00 p.m. (7 RT 1389, 1404.) The doorto the apartment Ms. Lavey shared with her sister was open. They went inside and saw Ms. Kennedy on the floor in her bed, lying in blood with blood on herface. (7 RT 1390.) Both womenleft the apartment and police were called. (7 RT 1390.) The police arrived shortly thereafter. Ms. Lavey and Ms.Isaacs were hysterical. (7 RT 1379, 1390.) Ms. Kennedy waslying on her back in an exaggerated spread eagle position. There was massive blunt force traumato her face '? Parkerlived “practically on the samestreet” as Ms. Kennedy. (9 CT 2583.) '* When Ms. Lavey’s friend Nanette Isaacstestified attrial she used the surname Peavy. (7 RT 1388.) '> Atthe timeofher death, Ms. Kennedy was5 feet, 4 inchestall, and weighed 135 pounds. (8 RT1754.) 19 cop nbonsbigeenAROMANAMICReadeBARNONEAaARHte and a large amountofblood, aspirated material and nosignsoflife. She was wearing no clothing other than a blue robe, which was openedandlaid out neatly on each side. Ms. Kennedy wascovered with a knitted shawl. There was what appeared to be a mucoussubstance betweenherlegs in the vaginal area. Paramedics arrived and confirmed that Ms. Kennedy was dead. (7 RT 1380.) There were no signs of forced entry to Ms. Kennedy’s apartment. There wasnosign ofa struggle inside the apartment. (7 RT 1381.) A window in a back rear bedroom of the apartment was open and the screen had been removed and waslying adjacent to a window to another bedroom. (7 RT 1381.) Ms. Kennedysustained injuries to both sides of her face primarily aroundthe hairline: two lacerations on her right hairline measuring three quarters of an inchto twoinches, a bruise to her forehead, a laceration over herlateral left eye area, a 5/8 inch laceration over her eyebrow, and periorbital hemorrhage to her eyes. (8 RT 1736-1737.) She had no defensive wounds. (8 RT 1737.) Ms. Kennedy sustained a fracture of her skull that began in the area ofher right earlobe, at the point of impact on the right side continuing.all the way down the base ofher skull on the opposite side, i.e., she sustained a fracture at the base of her skull that went all the way from left to right. (8 RT 1738, 1741.) The injury was caused by a blunt instrument consistent with a bat, two-by-four, pipe, or the flat end of a hammer. (8 RT 1739.) Dr. Fukamoto’® opinedthat it would require at least five blows from the blunt instrument delivered with a large amountofforce in order to cause the injuries Ms. Kennedysustained. '© Dr. Fukamototestified regarding the autopsy performed by pathologist Walter Fischer on Ms. Kennedy, because Dr. Fischer had died prior to Parker’s trial. (7 RT 1237, 1315; 8 RT 1724, 1736.) 20 (8 RT 1740.) Ms. Kennedy died as a result of laceration of her brain, along with subdural and subarachnoid hemorrhage due to blunt force traumato her head, with skull fractures. (8 RT 1741.) DNAtesting revealed that the sperm fraction from the vaginal swab obtained during Ms. Kennedy’s autopsy matched Parker’s DNA profile. (8 RT 1574, 1592-1602.) The frequency of a random match in the general population with the RFLP DNAprofile of the sperm fraction is 1 in 670 billion. (8 RT 1574, 1614, 1616.) The frequency of a random matchin the general population for African-Americansis 1 in 404 billion. (8 RT 1613- 1617.) f. Debra Lynn Senior (Count6) On Saturday October 20, 1979, Debra Lynn Senior resided with her roommate, Debra Chamberlain,'’ in ApartmentA, located at 2556 Maple, in the city of Costa Mesa. (7 RT 1418, 1434-1435; 8 RT 1754.) Ms.Senior and Ms. Chamberlain went to a party in Fountain Valley. (7 RT 1435.) At about 10:30 p.m., Ms. Chamberlain loaned her car to Ms. Senior so she could return home. (7 RT 1435-1436.) Parker brokeinto the apartment before Ms. Senior arrived home from the party. (9 CT 2639.) Parker parked a “considerable distance” from Ms. Senior’s apartment and waspretending to be a jogger. He was jogging through the neighborhood looking in windowsand“circling around” Ms.Senior’s apartment.” (9 CT 2768, 2770.) Parker entered Ms. Senior’s apartment knowing it was empty at the time. (9 CT 2769.) He gained entry through a '7 When Ms. Senior’s roommate, Debra Buttery testified at trial she used the surname Chamberlain. (7 RT 1434.) 21 aenceEENaRLenea esterrNEE Pain heen te Ae agentineaaORMERRateey oo RENABERREMpneSUM bathroom window.'® (9 CT 2769; 7 RT 1449.) The window wasa crank- out style and about two feet by two feet in size. The window wasabout five feet off the ground and located right above a row of gas meters for the apartment complex which madeit an easy boost by stepping on the gas meters below the window. (7 RT 1451.) Parkerleft his left palm print on the interior windowsill on the horizontal surface of the ceramic tile where people often place shampoobottles. (7 RT 1452, 1460.) He slid down the tile, knocking downthe showercurtain and curtain rod. (7 RT 1439, 1450: 9 CT 2639-2640.) Parker knew that Ms. Senior had a roommate because he saw there were two bedroomsand he also knew she came homealonethatnight. (9 CT 2638-2639.) Parker recalled seventeen years later “this one was young. I don’t know,17, 18 something like that.” (9 CT 2638.) He knew that she was “small, probably about”five feet, five or six inches, tall.'? (9 CT 2648.) Parker was inside the apartment when Ms.Seniorarrived home. He watched from a crack in the bathroom door as she made a drink in the kitchen. (9 CT 2641.) She sat down on the couch with her drink, and then she fell asleep. (9 CT 2642.) Parker came out of the bathroom and wentup to herin the living room andhit her in the head twoor three times with a blunt object. (9 CT 2643.) Parker carried her, unconscious,into her '8 Parkertold investigators that he entered the apartment around sunset, at about 7:00 p.m. (9 CT 2769.) Healso said he wasinside only 8 or 10 minutes before he heard Ms. Senior drive up and put a key in the lock of the front door to the apartment. (9 CT 2774). However, Ms. Senior did not leave the party she wasattending to return homethat evening until 10:30 p.m. (7 RT 1435-1436.) '? At the time of her death, Ms. Senior was 17 years old,5 feet, 10 inchestall, and weighed 120 pounds. (8 RT 1754.) 22 bedroom and onto a mattress on the floor of her bedroom.” (9 CT 2644- 2645.) He removedher underwear, raped her and ejaculated inside ofher. (9 CT 2645.) At about 2:30 a.m., Mark Weber drove Ms. Chamberlain home from the party. Ms. Chamberlain wasnotable to get into the apartment she shared with Ms. Senior. (7 RT 1436.) As Mr. Weber waspulling out of the driveway of her apartment complex, she stopped him and asked him to help her get into her apartment. She asked him to enter the apartmentthrough a living room window. Asshestood outside, she was surprised to hear the stereo playing inside her apartmentat that hour of the morning. Mr. Weber entered through the living room window andthen openedthe door for Ms. Chamberlain. Whenshe entered her apartment, she turned off the stereo. (7 RT 1437.) The lights were on inside the apartment. (7 RT 1438.) She walked toward Ms.Senior’s bedroom. (7 RT 1437.) She found Ms.Senior unclothed, lying on the floor at the entrance to her bedroom. She had been injured in the head. Ms. Chamberlain asked Mr. Weberto call the police. (7 RT 1438.) Ms. Chamberlain started to touch Ms. Senior, but then backed away. (7 RT 1439.) Mr. Weberdialed the police and handed the phone to Ms. Chamberlain. They waited outside for the police to arrive. (7 RT 1439.) When police found Ms. Senior, she had no clothing on the lowerhalf of her body other than a pair of socks. Her blouse was torn and missing buttons; the blouse and her unsnappedbra were up around her shoulders. (7 RT 1420, 1441; People’s Exh. No. 74 [photograph].) Buttons were on the floor adjacent to her body. Part of a green towel that had apparently © Whenpolicearrived, the living room curtains were closed. (7 RT 1439.) Parker closed the living room curtains but could not recall whether it was before orafter striking Ms. Seniorin the head. (9 CT 2643.) 23 Jernesee avesegariSmeeBEEaEOBette been ripped in half was around her neck area and anotherpart of the towel was under her body. (7 RT 1442.) A pair of underpants waslying on a pair of tennis shoesat the foot of the bed, and one leg of the underpants was completely torn. (7 RT 1426-1427, 1445-1446; People’s Exh. No. 73 [photograph].) A pair of Levi overalls with a blood stain on them was on the floor. (7 RT 1445.) The contents of a purse and a Polaroid camera were on the floor near Ms. Senior’s feet. (7 RT 1446, 1451.) She was bleeding profusely and her hair was matted and there was quite a bit of blood around her eyes. There were twolacerationsvisible on the rightside of her head. Ms. Senior had no pulse. Paramedicsarrived and pronounced her dead. (7 RT 1420-1421.) Ms.Senior sustained lacerations, contusions andbruises to her head and facial area consisting of a laceration a half inch in length outside of her right eyebrow,a one-and-one-half inch laceration to her right upper forehead, two elongated lacerations on the right side of her head on her earlobe measuring between two-and-1/2 to two-and-3/4 inches long from what appeared to be two separate blows, and a bruise separate from the two lacerations behind herright ear lobe. A fracture was associated with the two lacerations with the fracture line radiating downwards. (8 RT 1743.) A large amountof force was requiredto inflict the two lacerations to the side of Ms. Senior’s head fracturing her skull all the way to the base of the skull, causing bleeding around the eyes, and causing skull fragments to lacerate the brain. (8 RT 1743-1746.) The blows could have been from a pipe, two-by-fouror baseball bat. (8 RT 1746, 1750.) Dr. Fukumoto”! opined the blows would have rendered Ms. Senior unconscious almost *I Dr, Fukamototestified regarding the autopsy performed by pathologist Walter Fischer on Ms. Senior, because Dr. Fischer had died prior to Parker’s trial. (7 RT 1237, 1315; 8 RT 1724, 1742.) 24 immediately. (8 RT 1748.) The blood splatter at the scene was consistent with Ms. Senior being struck while lying down, and she would not have moved after sustaining those blows. (8 RT 1751.) Ms. Senior would not have lived more than six hours becausethe swelling would haveresulted in compression of her brain against her bkull, which would cause death. (8 RT 1747.) Dr. Fukumoto opined that Ms. Senior died as a result of hemorrhageto the brain,-and laceration, contusions from blunt force trauma with skull fractures. (8 RT 1748.) DNAtesting of the sperm fraction from the vaginal swab recovered ~ during the autopsy of Ms. Senior matched Parker’s DNA profile. (8 RT 1574, 1602-1624.) The frequency of a random matchin the general population with the RFLP DNAprofile of the sperm fraction is 1 in 670 billion. (8 RT 1574, 1614, 1616.) The frequency of a random match in the general population for African-Americansis 1 in 404 billion. (8 RT 1613- 1617.) In 1996, investigators interviewed Parker regarding the DNAresults — linking him to homicidesin three differentcities.” A detective asked Parker if he ever went into an apartmentto rape a female withouthitting her over the head. (9 CT 2793-2974.) Parker indicated he had “thought about that earlier, in the early stages” but “...call me what you will, you know, I determined I wasjust plain ole’ being a coward,to have, the only thought » Duringthe guilt phase, the prosecution offered a redacted 77-page transcript of the June 14 interview of Parker by Detectives Giesler and Redmond(Trial Exh. No. 93; see 8 CT 2466-2543); a redacted 130-page transcript of the June 14 interview of Parker by Detectives Tarpley, Giesler and Redmond (Trial Exh. No. 95; see 9 CT 2545-2674); a redacted 193- page transcript of the June 18 interview of Parker by Detectives Giesler and Redmondand Sergeant Boyland (Trial Exh. No. 103; see 9 CT 2681- 2873A); and a redacted 25-pagetranscript of the June 16 interview of Parker by Detective Raulston (Trial Exh. No. 24; see 8 CT 2439-2464.) 25 ARNoRASIPAREEnlneOai IE Ek eee mets te oe UtpatePGMMEene that occurred, it never occurred to me that I could do that without killing somebody.”” (9 CT 2794.) 2. Defense Parker did not affirmatively present any evidence during the guilt phase and engagedin limited cross-examination for tactical reasons,i.e., to foster as muchcredibility with the jury as possible before arguing aspects of the case at its conclusion. (8 RT 1709, 1778; 9 CT 2876.) In closing argument, the defense concededidentity but relied on Parker’s statements to police and argued he wasguilty of only second degree murderas to each victim based on diminished capacity due to intoxication. (8 RT 1873- 1886.) B. Penalty Phase 1. Evidence in Aggravation In addition to relying on the facts and circumstances of the murders of Sandra Fry, Kimberly Rawlins, Marolyn Carleton, Chantal Green, Debora Kennedy, and Debra Senior, the prosecution introduced evidence of Parker’s brutal rape of a Costa Mesa woman,brutal assault and robbery of a womanin Pasadena, abduction and rape of a 13-year-old Tustin girl, and assault on his roommateat a correctionalfacility. Parker’s record of conviction for the robbery with great bodily injury in Pasadena, the kidnap 3 Parker’s statements to police are discussed morefully in ArgumentII responding to Parker’s contention on appealthat the statements were improperly admitted into evidence. 26 eventHtantl staEINERaieAGNaan 8 oe nahHone P Oe Omang ARS “HnasRMAAiai and rape of the child in Tustin, and the assault upon an inmate in a . “qe . . . 24 correctional facility was also introduced into evidence. a. 1979 Rape of Jane P. On July 19, 1979, Jane P.lived in an apartmentlocated at 381 Hamilton Street in the city of Costa Mesa. She went to bed around 11:00 p.m. Her apartment was locked except for her windows. (10 RT 2193-2196.) Parker frequently visited his friend, Albert Garcia, who lived up the street from Ms. P.’s apartment. (10 CT 2192-3202.) Ms. P.lived downstairs in a two-story apartmentbuilding at the back of an apartment complex. Parker could not recall whether he grabbed a two-by-four or a piece of firewood in order to knock Ms. P unconscious and rape her. (10 CT 3210-3214.) Ms. P. heard a noise in her hallway and saw Parker coming toward her. Shecalled out, “whois it?” Parker grabbed her and told her to shut up in an angry voice. She then lost consciousness. (10 RT 2193-2196.) Parker described Ms.P. as being asleep in the nude. Heraised his weaponoverhis head and delivered two or three blows. In an apparent attemptto claim it was nothis intent to kill Ms. P, Parker explained to officers that he did not count how manytimeshehit her, but that he did not stand there delivering blows for 20 minutes. (10 CT 3210-3214.) Parker told detectives that Ms. P. fought to maintain consciousness morethan the other womenthat he assaulted as she “flopped around”and “actually spoke a few words.” Parker turned her nude body sideways and unzipped his 4 The fact of conviction was not considered by the jury as a factor in aggravation, as the jury was instructed that factor (c) refers to prior felony convictions that were entered on a defendant’s record beforethe offenses were committed, and expressly instructed that “in these proceedings Factor(c) in inapplicable.” (12 RT 2574; 10 CT 3057.) 27 pants, dropping them to his ankles. Parker recalled ejaculating without being able to obtain an erection; something that had happenedto him seven or eight times when assaulting women. WhenParkerwastold his semen wasrecovered from Ms.P., he conceded he may have engaged in sexual intercourse. (10 CT 3214-3217, 3221-3222.) When Parker was done raping Ms.P., he pulled up his pants and exited her apartment the same way heentered: through the dining room window. He heard her continuing to struggle, moving around on the bed and breathing with a loud gurgling noise. He could make out words through the gurgling sound. He claimed he threw away his weaponbefore getting in his car and leaving. (10 CT 3217-3221.) The following day Ms. P. had planned to meeta friend for lunch. Whenhecould not reach her to confirm their plans, andlearned that she had notarrived for work, he went to her apartment. At about 11:00 a.m., he found the door to her apartment open aboutthree or four inches. He entered the apartment and found her lying in her bed on her back. He could see that her eyes were swollen and she had been beaten. Her appearance reminded him of prize fighter after a fight. Her pillow was covered in blood and blood was spattered on the bedroom wall. Her bed sheet was up to below her neck and folded across. He was concerned someone might still be inside the apartment. He telephoned police. Police arrived and summoned paramedics. Detective Giesler noticed that the screen wasoffsliding glass window leading into the dining area, and the window wasopen. She noticed bloodyrolled up towels in the bedroom. A rape kit was collected from Ms.P at the hospital. Ms. P. had scratches on her face, bruising behind her right ear and her eyes were extremely black and blue. Detective Giesler did not see any defensive injuries on Ms. P. (10 RT 2207-2215.) 28 Vaginal swabs from Ms. P. were subjected to RFLP DNAtesting years afterwards and yielded DNA that matched Parker’s profile. The probability of a random match with the general population was | in 2 billion, and 1 in 1.4 billion among African-Americans. (10 RT 2203- 2206.) Ms.P. remained in a comafor about four weeks. Her skull had been fractured and she required a permanent tracheotomy. She had difficulty breathing as a result, and could no longer swim or exercise. Nearly 19 yearslater, at the time shetestified, she experienced difficulty chewing because of the nerve damage from having been strangled. It was sometimes difficult for her to form words. (10 RT 2196-2198.) b. 1980 Robbery of Aida Demirjian On February 2, 1980, Aida Demirjian lived in an apartmentlocated at 1033 East CordovaStreetin the city of Pasadena. (10 RT 2112.) She returned homeat about 10:00 p.m. and parked in the underground parking structure at her apartment complex. (10 RT 2112-2113.) She was locking the door to her car when she felt a blow to her head. Parkerhit her in the head twoorthree times before she fell to the ground. (10 RT 2114-2115, 2119.) She pretended she was unconsciousso he would take her purse and leave but Parker kept hitting her over and over. She could see blood everyhere and thought that Parker would kill her if he continuedhitting her. She got up and started running while yelling for help. Parker cameafter her and grabbed her. (10 RT 2115.) Ms. Demirjian wasprotecting her head with her hands, so when Parker began hitting her again, she was being hit on her hands. At this point in the attack, she could see that Parker was wielding an iron rod. Ms. Demirjian fell to the ground a second time. (10 RT 2116.) Parker dragged her a few yards and pulled her necklace off from around her neck. (10 RT 2116-2117.) She again pretended to be 29 unconscious while lying on the ground in the hope he would take her purse and leave. Parker stoodat her feet, looking through her purse. (10 RT 2117-2118.) Parker then lifted up Ms. Demirjian’s skirt. She immediately got up and started running and calling for help. (10 RT 2118.) She never looked backand ran to the first floor and banged on the apartment manager’s door. She does not rememberanything after the door to the manager’s apartment opening. (10 RT 2118.) Donald Barralived acrossthe street from the apartment complex where Ms. Demirjian lived. (10 RT 2120.) At about 10:00 p.m. on February 2, 1980, he heard a “blood curdling moaning kind of scream.” (10 RT 2120-2121.) Heleft his apartmentto try and find the source of the noise. He crossed CordovaStreet, which was a four lane street and realized the noise was coming from a lower parking structure. Mr. Barra entered the parking structure andinitially could not see because of the darkness. He eventually saw Parker standing over Ms. Demirjian as she waslying on the ground. (10 RT 2121, 2123; 10 CT 3180.) He assumed she was injured based on the noises she was making. He could see a weaponin Parker’s hand. Heyelled at Parker to stop. Parker stopped for a second and then turned around andlooked at Mr. Barra. When Mr. Barra told him to stop and stay where he was, Parker“took off like a rabbit.” (10 RT 2122.) Mr. Barra subsequently was able to observe Ms. Demirjian’s condition. Her hair was matted with blood and her right hand was severely injured. Paramedics hadto cutherrings off to save her fingers because they were so swollen. Mr. Barrarecalled her fingers lookedlike “ball park franks.” (10 RT 2124.) A uniformed officer dispatched to the area of East Cordova and Catalina Boulevard regarding a report of a woman screaming for help, was abouta half a block from Ms. Demirjian’s apartment complex when Parker crossed in front of the marked police unit. (10 RT 2125-2126, 2128.) The 30 officer noticed that Parker’s pants were scuffed up and appeared to be stained. He exited the patrol car and approached Parker. (10 RT 2126.) Hethen noticed that Parker had bloodstainson his shirt and pants and blood on his hands. (10 RT 2126-2127.) The officer detained Parker and requestedhis identification. Parker provided him with identification showing he wasa staff sergeant in the Marine Corps. The officer remained with Parker until Mr. Barra was broughtto their location. (10 RT 2127.) Mr. Barra wasaskedifhe could identify Parker and he indicated that Parker looked similar to the man he saw in the parking garage basedonhis clothing and general appearance. (10 RT 2123.) Parker wasthen taken into custody. (10 RT 2127.) The officer did notnotice anythingto indicate that Parker was intoxicated. He had nodifficulty communicating with him, and Parker was calm, cooperative and compliant while the officer was with him. (10 RT 2128.) ; Another officer located a metal pipe, eight inches long and three inches in diameter, with what appeared to be blood on it, near one of three puddles ofblood on the floor of the parking structure. Three parking spaces away from the location of the metalpipe, the officer located a gold and pearl necklace. (11 RT 2271.) Ms. Demirjian was hospitalized for a few days andtreated for a skull fracture. Her fingers were broken and required surgery and therapy. Her fingers were permanently injured in the attack. (10 RT 21 16, 2119-2120.) On October 2, 1980, Parker was convicted in Los Angeles County Superior Court, pursuantto his plea of guilty, of robbing Ms. Demirjian, and inflicting great bodily injury upon her during the commission ofthe robbery. (10 CT 3180; 10 RT 2170, 2254.) 31 organo eR MENGE RRL RENE ane pat ee Sey oeosrenth en tiahNettRENEUniesMEOEV Se c. 1980 Rapeof PaulaS. On February 15, 1980, 13-year-old Paula S. had attended the funeral ‘for her father. At about 3:30 p.m. she was walking home from the Thrifty - DrugStore in the city of Tustin where she had bought her mothera greeting card and a belated birthday gift. As she walked along Nisson Street she saw a black vandrive past her and then pull over. She saw Parkerexit the driver’s seat of the van and openthe side doorof the van. She watched as he walked around the back of the van and appearedto be checkingthetire of the van. As Paula walkedpast the van, Parker grabbed her by her sweater, punchedherin the face and threw her into the van. (10 RT 2080- 2083, 2098-2101.) Parker drove off with Paula. Parker looked in the rearview mirroras he drove, and told Paula to stay down or he would kill her. Paula noticed that Parker was wearing a white T-shirt and green pants and there was a tan military shirt with three insignias or chevrons hanging behind the driver’s seat. Parker drove around for about 20 or 25 minutes. Paula was very scared. She waslookingat street signs and realized Parker was headed toward the city of Westminster. Parker stopped the van in the parking lot of a shopping center. Parker climbed into the back of the van, and closed the curtain that separated the driver’s compartment from the cargo area. He asked Paula if she had ever been raped. Paula, who had noprior sexual experience, told him no. Parker replied, “Well, this is whatit is like.” (10 RT 2084-2088.) Parker told Paula to take her clothes off. When she refused, he removed a towel from under the driver’s seat. Parker ripped the towel into strips, using his mouth. Parker put somestrips of the towel into her mouth, one around herhead,and thentied her hands together using the strips of towel. He asked if she could breathe. When she said no,he took strip of towel off her face. Parker then told her “take your clothes off or I’II kill 32 you.” She then removed her clothes because she wasvery afraid of Parker. As Paula was lying on her back in the cargo area of the van, Parker climbed on top of her and his penis penetrated her vagina, and he engaged in sexual intercourse for a period of about five or ten minutes. When Parker gotoff of Paula, he permitted her to put her clothes on. Whenshegotupshefelt fluid running down herleg from her genital area. (10 RT 2088-2091.) Parker put his clothes on and asked Paula what wasin the bag she was carrying. Shetold Parkerit was a birthday present for her mother. He asked to see it and Paula handed him the gift for her mother. Parker asked her how old she was and her name. Paula told him her true namebutsaid that she was 10 years old, thinking he mightnot hurt her if he believed she was youngerthan heractual age of 13. She told Parker about her father’s death and that she had just been to his funeral. (10 RT 2092.) Parkersat in the van smoking and told Paula he would take her back after dark. He asked Paula if she would tell her motheror the police what happened when she got home. Paula told Parker she would nottell. He then asked her if she would identify him in a police line up and Paula said she would notidentify him. Parker drove onto the freeway and asked Paula whereshe lived. Paula tried to rememberdetails as Parker drove the van. She noted the van was black and had bubbled tinted windowsonthe sides and in the back. The interior of the van was grey and there were two bucket ‘seats in the front. Parker exited the freeway in Tustin and pulled into an alley. Parker told Paula “If youtell anybody, I’Il come back andkill you.” AsParker drove away, Paula saw the word “Dodge”on the van and noticed it did not have a license plate. As she walked home,she ran into her brother who wasout looking for her. When Paula got homeshetold her mother what happened and the police were called. (10 RT 2092-2096.) Three dayslater, an investigator from the Orange County Sheriff's Department contacted military police at El Toro Air station. Parker was 33 Lee ayare iineminyianentgir@biaRanRa! Sree avTncrcnitSS ee eeeereeeeeee! are TR ae Nterne MRMUREROE Ree ceMORMRADENEBAHAEINER eo es wy identified as the owner of a black 1979 Dodge van and asked to cometo the Sheriff's Department for questioning. (10 RT 2096-2098.) After being advised of his Miranda rights, Parker waived his rights. An investigator was going to show Parker a photograph of Paula when Parkersaid,“I did it. I’m guilty.” Hetold the investigator he was returning from the mechanic whenhe saw Paula walking down thestreet. Parker parked his van in front of her and openedthe side doors before going overto the rightrear tire. He grabbed heras she approachedthe van and threwherinto his van. He drove around and ended up somewhere in Westminster. He parked, ordered herto take off her clothes and then raped her. (10 RT 2098-2101.) WhenParker wasinterviewed by detectives at Avenal State Prison on June 14, 1996,he discussed his rape of Paula in 1980.” He said thatit probably savedherlife that she was so young. Herecalled driving her back andletting her out downthe street from where she lived. (10 CT 3171.) Parker discussed his rape of Paula again during a videotaped interview at Corcoran State Prison on June 17, 1996.” Parker said he never wore his military uniform or fatigues during any of his assaults except when he raped Paula. He admitted that if Paula had been older he probably would have killed her. (10 RT 2102-2103.) On May 13, 1980, Parker was convicted in Orange County Superior Court, pursuantto his plea of guilty, of kidnapping and raping Paula. (10 CT 3176-3189; 10 RT 2170, 2254.) > The tape-recording (People’s Exh. No. 117) was played to the jury, and transcriptofthe tape-recording wasprovidedto jurors (People’s Exh. No. 115). (10 CT 3169-3171.) *© The videotape wasplayed for the jury (People’s Exh. No. 118), and transcript of the interview was providedto the jury (People’s Exh. No. 115). (10 CT 3169-3171; 10 RT 2101.) 34 d. Assault on Inmate David Feurtadot On February 13, 1984, Parker shared a room with David Feurtadotat a correctional facility in Tehachapi. Feurtadot wasin custody for burglary. Feurtadot was asleep when Parkerreturnedto their room one night. He awakened to Parker beating him. Parker wasstriking him in the back of the head. The pain was excruciating and Feurtadot was bleeding profusely. He chased Parker out of the room andinto the hallway. He wasunable to pursue Parker because he had to sit down dueto the pain. He felt he was about to lose consciousness. He asked Parker why he attacked him. Parker said nothing and walked away — calmly. Feurtadot was taken to the hospital where he received stitches for a three or four-inch gash in his head. Hewashospitalized for a week as a result of Parker attacking him. At the timehetestified in the penalty phase, Feurtadotstill suffered headaches as a result of Parker striking him in the head 14 years earlier. (10 RT 2147- 2152.) A correctional officer found a curved piece ofsteel, splattered with blood on the floor of the room that Parker and Feurtadot shared. It was a little over 24 inches long and about 1/2 inch in diameter with a circular- shaped ball at one end. While inmates had access to such items in the facility, they were not permitted to bring those itemsinto the living area. Thecorrectional officer did not believe that Parker was taking antipsychotic medication at the time, nor did he investigate whether Feurtadot had stolen anything from Parkerat the time. (10 RT 2159-2170.) On June 1, 1984, Parker was convicted in Kern County Superior Court, pursuantto his plea of guilty, of assaulting Feurtadot with a deadly weapon. (10 CT 3182; 10 RT 2170, 2254.) 35 eet eseNgARORtyEe nttant te Rette oe aan Poms HRBSNRABRR RRtos sr as eSBadiconEARLERARMERRORORBISON osatg Mm e. Victim-Impact Evidence Judith Browntestified about the loss of her youngersister, Sandra Fry, and how the newsofher murder — after she had moved outofthe family homejust three days earlier — devastated their family. (10 RT 2106- 2110.) Cheryl Rawlinstestified about the loss of her youngersister, Kimberly Rawlins, who had just moved out of the apartment she shared with her. (10 RT 2141-2146.) Joseph Lee”’testified aboutthe loss ofhis mother and being nine years old when he heard his mother, Marolyn Carleton, scream out one night. When he entered her bedroom that night he found his mother lying on the floor propped against her nightstand, incoherent and bleeding. (10 RT 2171-2174.) Mary Lee,testified about the loss of hersister, not through illness, accident, or old age, but by a “cruel and senseless act of violence.” Marolyn’s motherdiedof cancerthe year before Parker’s trial, so Ms. Lee read a poem written by her mother in 1988 about the loss of her daughterentitled “what if.” (10 RT 2180-2184.) Sandra Kennedy recalled the loss of her aunt, Debora Kennedy and how her murder devastated their family. She mentioned that Debora’s sister who found her body looked 20 years older than her twin sister at the time of Parker’s trial. (10 RT 2184-2188.) Jackie Bissonnette recalled the loss of her younger sister Debra Senior. Debra was planning on moving home a few weeks before she was murdered in order to attend Orange Coast College. (10 RT 2132-2140.) Jackie read a statement for her mother that related her belief that her husband died three years after Debra’s murder of a broken heart, and she read two poemswritten by Debra that her mother had saved. (10 RT 2132-2140.) ?7 At the time of her murder, Ms. Carleton’s son’s surname was Carleton. (7 RT 1408.) . 36 seteaiaateMEMEtT to 2. Evidence in Mitigation Parker’s penalty phase defense consisted of Parkertestifying in his own behalf, the testimony of a former friend who roomed with Parker while they served in the Marine Corps, and the expert opinion of a forensic psychiatrist. Albert Garcia testified that he was a fellow Marine whom Parker roomed with between 1974 and 1977 while they were based at the Marine station in Tustin. He described Parker asintelligent, quiet, and “always mellow.” He never saw Parkerfight anyone and opined that he had good control over his temper and would always walk away from a fight. Garcia did not believe that Parker had an alcohol problem and he had neverseen him be violent after using alcohol or PCP. The friendship between the two men deteriorated in 1980 as each wenttheir separate way. Garcia was surprised when he learned that Parker had been convicted of rape. Hetried to contact Parker, but Parker did not want to be friends with Garcia any more. Garcia had never seen Parker be inappropriate around a female and considered him to be a model Marine who was promotedto staff sergeant within five years. (11 RT 2272-2285.) Parkertestified in his own behalf. (11 RT 2316-2348.) Parker said he wasfirst prescribed antipsychotic medication in 1984 when he was incarceratedat the California Men’sInstitution in Chino, and the medication made him “calm”so that he wasnot “out of control or nervous” when he wasaround people. (11 RT 2316.) Hesaid he did not take medication once he wasreleased from prison until he was incarcerated again. (11 RT 2316-23 17.) Parker said he did not wantto stop taking the medication whenhetestified because he was concerned he was undertoo muchstress to be unmedicated. (11 RT 2317.) Parker then said that he understood that he caused the families and friends of his victims “quite a bit of pain” over the last 19 or 20 years, and he accepted “full responsibility for 37 2 seh neLORRAINARRANRESEPwea ie atopJan NSRP Zen Be tnt tithe ane cot Heap that.” Hestated that “if mylife is what it takes for them to feel that their family members have been vindicated, then that is what I believe should be done, the taking of mylife should be taken away from me.” (11 RT 2318.) On cross-examination, Parker admitted that he indicated he was out of control and had no doubt he could murder someone in February 1996 while he wasin custodyat the Orange County Jail even thoughhe wasbeing administered psychotropic drugsat the time. (11 RT 2319.) He also admitted feeling the urge to hurt people in July 1999 while at the Orange County Jail notwithstanding receiving psychotropic drugs. Parker also acknowledged he wasfearful in January of 1998 of losing control and becoming violent in court even though he wasreceiving psychotropic drugs at the time. (11 RT 2320.) Parker said he believes Sandra Fry wasthefirst person he murdered. Hewasnotsure “exactly how hefelt” after he attacked Ms. Fry and acknowledged hejust went abouthis businessas usual afterwards. (11 RT 2321-2322.) He wasnot able to say whetheror not it ever crossed his mind what he had doneto Ms. Fry before he murdered Ms. Rawlins. (11 RT 2321.) Parker claimedhefelt sorry for Ms. Rawlins “right after J did it” but acknowledgedhe killed Ms. Carleton two monthslater. (11 RT 2323.) Parker admitted that he knew he wassexually assaulting and killing his victims, knew that it was wrongto do so, and acted of his own free will. (11 RT 2324.) Parker could not explain whyhe attacked Ms. Fry, Ms. Rawlins, and Ms. Carleton in order to rape them, did not achieve sexual intercourse with any ofthem, yet continued killing. Parker denied enjoying killing people. (11 RT 2325.) While Parker said he wassorry for killing Joey Carleton’s mother, he acknowledgedhe kept attacking and killing afterwards. (11 RT 2326.) Parker admitted attacking Ms. P. after Ms. Carleton. 38 He acknowledged describing Ms.P. as having “fought for herlife.” _ (1 RT 2327-2328.) Parker admitted it never gave him pause before attacking and raping Mrs. Green even though he knew shewasthe pregnant wife of a fellow Marine. (11 RT 2325-2326.) Parker acknowledged he engagedin sexual intercourse with Mrs. Green and denied that it was sexually gratifying — yet he kept killing afterwards. (11 RT 2327.) Parkertestified that he thought about stopping but explained that he would put those thoughts out of his mind. (11 RT 2329.) Parker admitted using an iron mallet to kill Ms. Kennedy. (11 RT 2329.) Parker denied knowingthat striking Ms. Kennedy in the head three times with an iron mallet would kill her. (11 RT 2330.) Parker acknowledged being on top ofMs. Kennedyraping her with blood coming out of at least three holes in her head, but claimed that he did not know she was dying. (11 RT 2330-2332.) Parkersaid he did notfeel sexually gratified after raping Ms. Kennedy. (11 RT 2330.) Parker admitted he kept on killing but denied that it was because heliked to kill women or was angry. (11 RT 2331.) | Parker used the “samething I had used on the other ones”to hit Ms.Senior,i.e., a two-by-four, but then describedit as a piece of firewood. Heclaimed he “wasabout to leave” when Ms.Senior“just happened to come homewhile” he wasstill inside her home. He denied knowing she lived there and waiting for her to come home. (11 RT 2332-2333.) Parker could not explain how hefelt after raping and killing Ms. Senior because “it’s been so long” but admitted knowing “I had done wrong.” (11 RT 2334.) Parker said he had feelings of remorse but never thought about getting any medicalassistance for Ms. Senior. (11 RT 2335.) Parker acknowledgedthat after attacking seven women,killing five and an unborn child, achieving an act of sexual intercourse three times — 39 none of which weresexually gratifying, he then kidnapped and raped a 13-year-old child. (11 RT 2335.) Parker testified he “had no idea” how or why he kidnapped and raped a 13-yearold girl. (11 RT 2336-2337.) While he did not ask Paula S. how old she was until after he raped her, he admitted knowing she was a child when he raped her. Parker could not recall Paula telling him that she had been to her father’s funeral the day he raped her. (11 RT 2337.) Parker could not explain why hetold police he probably would have killed Paula if she had not been “so young.” (11 RT 2336.) Parker said he “felt bad” and “felt” he had “done something wrong”after raping Paula. (11 RT 2341.) Parkertestified he told investigators the truth when they interviewed him in 1996 because he did not have any reason to lie anymore. (11 RT 2344-2345.) Parker said he did not know hisvictims died until later but he knew bythe time he raped Paula S. (11 RT 2345-2347.) Parker said he “had no idea” whether he would have kept on raping and murderingif he had not been arrested for the rape of Paula a few daysafter assaulting her — but then admitted there was nothing that was going to stop him from raping and murdering women had he notbeen incarcerated. (11 RT 2341- 2342.) Parker admitted attacking Ms. Demirjian with a metal pipe while visiting his brother in Pasadena. (11 RT 2337-2340.) Parker said he needed money even though he wasin the Marine Corps makinga fairly decentliving and had no overheadsince he wasliving on baseat the time. (11 RT 2339.) Parker denied thinking about raping Ms. Demirjian. (11 RT 2341.) Parker also admitted striking his cellmate in the head with a pipe and explained he attacked him becausehe had beenstealing from him. (11 RT 2348.) Parker acknowledgedhe hadbeenin andoutof custody since 1987. (11 RT 2343.) He admitted he wasarrested for assaulting a woman ona 40 street in Garden Grove in Novemberof 1988 with a switchblade and demanding that she orally copulate him. (11 RT 2343-2344.) Parkerinsisted he felt sorry for his victims before the police told him in 1996 that he had been connected to four murders by DNA- he just never told anyone.”® (11 RT 2343.) . Paul Blair, a forensic psychiatrist, testified for the defense. (11 RT 2354-2453.) His assessmentof Parker included interviewing Parker on October 22, 1998, and October 31, 1998, for a total of about three hours. Dr. Blair also reviewed the tapes of Parker’s statements to police and the Orange County jail psychiatric team’s notes from June 4, 1996, to October 29, 1998. (11 RT 2363.) Dr. Blair found nosignificant differences in Parker’s mental status examination andthejail psychiatric team’s diagnosis of Parker as organic mental syndrome, unspecified psychotic disorder, chronic alcohol abuse, andmajor depression.”” (11 RT 2364, 2379-2380.) During his interview with Dr. Blair, Parker said he heard voices, those of a male and female psychiatrist. He could not identify the voices, but said the female voice at times seemedto be his grandmother. The voices did not *8 In closing argument, defense counsel anticipated that the jury might wonder why Parkerdid not cry during his testimony expressing remorse for his crimes and explainedit wasattributable to his personality and cited to his being a staff sergeant in the Marine Corps. (12 RT 2559.) *° Even thoughParker hadbasically spent his entire adolescence and adult life in three institutions: Boys Republic, the Marine Corps, and the California Department of Corrections, Dr. Blair was not aware that Parker had been at Boys Republic (and evaluated by two psychiatrists before being sent to Boys Republic); and he had not reviewed any records from the Marine Corpsor Parker’s “C-file” from the Department of Corrections. (11 RT 2393, 2397, 2402.) Dr. Blair had not received any ofthe police or coronerreports pertaining to the murders of Parker’s victims. (11 RT 2397.) 4] schecenittiterreiyen so 6 command him to do anything. (11 RT 2366.) Dr. Blair explained that Parker was reporting a series of unusual delusions: he believed that people he did not know weretalking about him, whenin fact they were not doing so; and he also believed that thoughts could be physically put into, as well as removed from,his head. (11 RT 2368.) Parker told Dr. Blair he began using marijuana at age 11. (11 RT 2376.) Parker also claimed to have used PCP and LSD. (11 RT 2375.) Parker claimed an extremely high numberof“acid trips” — at least 1,000. (11 RT 2376-2377.) Dr. Blair is uncertain of anyone taking that many “trips” who had “a brain left” afterwards. (11 RT 2377.) Parker told Dr. Blair that he had used a combination of heroin and cocaine intravenously (speedballs), which Dr. Blair explained also affects the brain. (11 RT 2377.) Parker also claimed to have regularly inhaled glue, paint, and paint thinner between the ages of 7 and 15, which would cause significant liver and brain damage. (11 RT 2377-2378.) Parkeralso told Dr. Blair that he drank a case of beer and half ofa fifth of vodka every day for a 10- to 11-year period. (11 RT 2378.) Parker also claimed five head injuries, three ofwhich produced unconsciousness. (11 RT 2380.) Dr. Blair indicated that Parker’s psychiatric history began 14 years before he interviewed him. (11 RT 2369.) Parker wastreated at Vacaville State Prison without medication, but was treated with psychiatric medication while confined at the California Institution for Men at Chino. (11 RT 2370.) Parker wasalso given antipsychotic medication while in jail to assist him with aggression and confusion andto reduce disorganized thinking. The medication is to reduceifnot eliminate psychosis. (11 RT 2370-2374.) Dr. Blair opined that Parker would present a dangerto others if he were out of custody, and it was “probably true”that if Parker were treated with psychotropic drugs and in a controlled environmentin prison he would 42 not be a dangerto others. (11 RT 2382-2383.) After his interviews of Parker, and reviewingthe tapes of his statementsto police, Dr. Blair considered Parkerto be his “patient” and believed the appropriate punishment for Parker would be to receive psychiatric treatment for the remainderofhis life as a result of a conservatorship and civil commitment. (11 RT 2388-2389.) 3. Prosecution’s Rebuttal Forensic psychiatrist Parke Dietz testified on rebuttal for the prosecution. (11 RT 2461- 2485.) Dr. Dietz reviewed extensive materials relating to Parker and his crimes.*? (11 RT 2465-2467.) Dr. Dietz explained that while his opinions were limited because he did not personally interview Parker he nevertheless was able to obtain most of the information he would obtain from a mental status examination by reviewing the videotapes of police interviews of Parker in 1996. (11 RT 2468-2469.) Dr. Dietz opined that on the date Parker made his statements to police, “his mind was functioning perfectly adequately” and he was *° Dr. Dietz reviewed about 8,000 pagesof material relating to Parkerincluding his records from the Boys Republic, the Marine Corps, California Department of Corrections, Orange County Departmentof Health, and Orange County Jail. (11 RT 2465-2467.) He also reviewed Kern and Orange County probation and sentencing reports relating to Parker. Additionally, Dr. Dietz reviewed reports pertaining to Parker’s kidnapping and rape of Paula S., his assault of Aide Demirjian, rape of Jane P., assault of Mr. Feurtadot, and attack on Toblynn O’Hare. Dr. Dietz also reviewed the transcripts of interviews of Parker’s family members and Albert Garcia. (11 RT 2466.) He reviewedthe reports by Drs. Sharma, Anderson, Spiehler as well! as Dr. Spiehler’s testimony. (11 RT 2466- 2467.) Dr. Dietz reviewed the police and probation reports pertaining to Parker’s capital crimes, as well as interviews of Parker by the Naval Criminal Investigative Services on June 21, 1996, Anaheim Police Department on June 14 and 16, 1996, by Costa Mesa Police Department and Tustin Police Department on June 14, 1996. (11 RT 2467.) 43 dnAOENIERIENGA te teHReeoe estRHRIEets mEREBENGR SE EN Renney oe logical, coherent, rational and understandable. (11 RT 2469.) Based on the behavior Parker exhibited during his 1996 interviews with police, Dr. Dietz observed no evidence whatsoever of any psychotic disorder or organic brain damage. (11 RT 2470.) Brain damagethat occurs at one pointin time does not fully recover at a later point, such that Dr. Dietz was confident that Parker’s mind worked “at least as well” in 1978 and 1979 at the time he raped and murdered his victims, and no brain damageaffected his culpability for his crimes. (11 RT 2469.) The only difference in terms of whatis evident on the videotape ofthe 1996 police interviews of Parker and what might have occurred at the time of the rape/murders is whether Parker was intoxicated with alcohol or drugs. (11 RT 2469-2470.) Beyond Albert Garcia’s testimony he observed Parker using drugs and Parker’s own unconfirmedreports that he was heavily into street drugs, i.e., cocaine, heroin, PCP, LSD andalcohol, Dr. Dietz was unaware of any other evidence of Parker’s drug use. (11 RT 24832484.) In assessing Parker, Dr. Dietz placed more emphasis on what Parker did than what he said. (11 RT 2481.) Dr. Dietz opined that Parker has an antisocial personality disorder (also knownas being a sociopath or psychopath). (11 RT 2471-2475.) Parker’s running away,stealing, and breaking and entering satisfied the antisocial personality disordercriteria of a conduct disorderas a child. (11 RT 2473.) Moreover, he satisfied the criteria for an adult antisocial personality disorder because after age 16 he exhibited aggressive behavior, repeatedly engaged in behavior that could be groundsfor arrest, exhibited reckless disregard for the safety of others and himself, a lack of remorse, wasdeceitful, and constantly engaged in irresponsible behavior. (11 RT 2473-2475.) Dr. Dietz explained that persons with antisocial personality disorders want to do anything they think will make them happy. (11 RT 2480.) 44 In terms of Parker joining the Marine Corps and progressing from private to sergeant, Dr. Dietz explained Parker was respondingto structure: “*’.. He learned howto play that system. At the same time he is being a functional Marine doing a good job with procurement, running six miles a day, being physically fit, passing each physical very well, what he is doing at night is patrolling for victims. That’s his secretlife.” (11 RT 2482.) The prosecution also presented testimony regarding Parker’s stellar job performance in a demandingposition and lack of indication of any drug or alcohol abuse from Parker’s commandingofficer during the time he raped and murdered Sandra Fry and Kimberly Rawlins. Lt. Colonel Larry Kuester was the commanding officer of a CH-53 Sikorsky heavy transport helicopter squadron, the 361st Squadron, at Tustin Marine Station from February 1978 to January of 1980, and Parker wasa staff sergeant assigned to his commandin 1978 through May 1979. (11 RT 2486-2487.) A staff sergeant is a significant position in the Marine Corps (E-6 out of nine enlisted ranks in the Corps) and considered the “backbone”of the organization. (11 RT 2490.) Parker was the material chief for the squadron which involved obtaining the parts necessary to support the maintenance of the aircraft which wasa “very critical function” relating to the flight readiness of the squadron. (11 RT 2487-2488.) Parker performedhis duties in an outstanding mannerand hadthe honorofbeing recommended for Warrant Officers School. (11 RT 2488-2489.) Parker’s commander saw him on at least a weekly basis and never observed him to be intoxicated or hung-over, and his evaluation reports indicated an appearance and a job performancethat contradicted Parker having an alcohol or drug problem. (11 RT 2488-2490.) The command had a zero tolerance toward intoxication or the use of alcohol while on duty — and that was certainly true for the aviation units as lives were ontheline. (11 RT 2493.) Lt. Colonel Kuester did not believe it would be possible for 45 someone whois intoxicated on alcohol or drugs to perform the duties of a parts chief for the squadron. (11 RT 2491.) Parker’s position was not one where he could simply delegate and take off. (11 RT 2492.) Parker was subject to random drug testing and did nottest positive. He underwenta mandatory extensive physical every year. (11 RT 2493-2494.) There was never any indication of Parker having an alcohol or drug problem. (11 RT 2493, 2495.) ARGUMENT IL. THE TRIAL COURT PROPERLY DENIED PARKER’S WHEELER MOTIONFOR FAILURE TO MAKE A PRIMAFACIE CASE OF DISCRIMINATION Parker claims he was deniedhis state and federal constitutional rights whenthetrial court denied his motion claiming the prosecutor improperly exercised peremptory challenges against two African-Americanjurors. (AOB 105-170.) Thetrial court properly found a prima facie case of discrimination had not been made because Parkerhadfailed to make the requisite prima facie showing below. The use of peremptory challengesto strike prospective jurors on the basis of bias against an identifiable group of people, distinguished onracial, religious, ethnic or similar grounds, violates the right of a criminal defendant to be tried by a jury drawn from a representative cross-section of the community underArticle I, section 16, of the California Constitution, andthe right to equal protection under the United States Constitution. (People v. Mills (2010) 48 Cal.4th 158, 173; People v. Hamilton (2009) 45 Cal.4th 863, 898, citing People v.Wheeler (1978) 22 Cal.3d 258, 276- 277, overruled in part in Johnson v. California (2005) 545 U.S. 162 [125 S.Ct. 2410, 162 L.Ed.2d 129]; Batson v. Kentucky (1986) 476 U.S. 79, 88 [106 S.Ct. 1712, 90 L.Ed.2d 69], overruled in part, Powers v. Ohio 46 (1991) 499 US. 400 [111 S.Ct. 1364, 113 L-Ed.2d 411]; People v. Davis (2009) 46 Cal.4th 539.) When a defendant believes the prosecutor’s reason for exercising a peremptory challenge is based upon such discrimination, a timely Batson/Wheeler motion must be made. (People v. Young (2005) 34 Cal.4th 1149, 1172.) There is a rebuttable presumption that a peremptory challenge is being exercised properly, and the burden is on the opposing party to demonstrate impermissible discrimination. (People v. Mills, supra, 48 Cal.4th at p. 184; People v. Bonilla (2007) 41 Cal.4th 313, 343.) Accordingly, the defendant carries the burden ofestablishing the prosecutor exercised a peremptory challenge based on group bias. (Rice v. Collins (2006) 546 U.S. 333, 338 [126 S.Ct. 969, 973-974, 163 L.Ed.2d 824]; Purkett v. Elem (1995) 514 U.S. 765, 767-768 [115 S.Ct. 1769, 131 L-Ed.2d 834].) ‘The United States Supreme Court has recently reaffirmedthat Batson states the procedure andstandardtrial courts should use when handling motions challenging peremptory strikes. “First, the defendant must make out a primafacie case ‘by showingthatthetotality of the relevant facts gives rise to an inference of discriminatory purpose.’ [Citations.] Second, once the defendant has made out a primafaciecase, the ‘burden shifts to the State to explain adequately the racial exclusion’ by offering permissible race-neutral justifications for the strikes. [Citations.] Third, ‘[i]f a race-neutral explanationis tendered,the trial court must then decide ... whether the opponentof the strike has proved purposeful racial discrimination.’ [Citation.]”’” (People v. Hawthorne (2009) 46 Cal.4th 67, 78, quoting People v. Lewis & Oliver (2006) 39 Cal.4th 970, 1008-1009, quoting Johnsonv. California, supra, 545 U.S.at p. 168; see also Snyderv. Louisiana (2008) 552 U.S. 472, 476-477 [128 S.Ct. 1203, 1208, 170 L.Ed.2d 175].) Excluding even a single juror for impermissible reasons requires reversal. (People v. Huggins (2006) 38 Cal.4th 175, 227.) “ 47 A defendantsatisfies his burden of making a prima facie showing “ ‘by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.’” (People v. Taylor (2010) 48 Cal.4th 574, —_— [2010 Cal. LEXIS 2818, *69], quoting Johnson v. California, supra, 545 U.S. at p. 170.) The defendant “must show under the totality of the circumstancesit is reasonable to infer discriminatory intent.” (People v. Kelly (2007) 42 Cal.4th 763, 779; see also People v. Bonilla, supra, 41 Cal.4th at p. 341 [defendant must show inference of discrimination in exercise of peremptory challenges from totality of relevant facts].) “ “The defendant should make as complete a record ofthe 999circumstancesas feasible.’” (People v. Taylor, supra, 48 Cal.4thatp. _, [2010 Cal. LEXISat p. *69], quoting People v. Wheeler, supra, 22 Cal.3d at p. 280.) Thetrial court did not articulate the standard being applied whenit denied Parker’s two Batson/Wheeler motionsfor failure to make a prima facie case. The standard being utilized in California at the time of Parker’s trial was the “strong likelihood” standard. (People v. Wheeler, supra, 22 Cal.3d at p. 280.) That standard was subsequently disapproved by the high court. (Johnson v. California, supra, 545 U.S.at pp. 166-168.) Accordingly, since this Court cannotbe certain thetrial court used the correct “reasonable inference” standard as later established by Johnson,it does not apply the substantial evidence test that would otherwise apply in reviewing the denial of a Batson/Wheeler motion. Instead, this Court reviewsthe record “independently (applying the high court’s standard) to resolve the /egal question whether the record supports an inferencethat the prosecutor excused a juror on the basis of race.” (People v. Hawthorne, supra, 46 Cal.4th at p. 79, emphasis in original; People v. Davis, supra, 46 Cal.4th at p. 582; People v. Hamilton, supra, 45 Cal4th at pp. 898-899; 48 People v. Howard (2008) 42 Cal.4th 1000, 1016-1017; People v. Bonilla, supra, 41 Cal.4th at p. 343.) A. Voir Dire Proceedings After hardship screening, 136 prospective jurors remained for voir dire in Parker’s case. (5 RT 760-761; 10 CT 3113.) Voir dire began on September 29, 1998. (5 RT 757.) A jury wasselected after 71 potential jurors were questioned on voir dire. During voir dire, 17 prospective jurors were excused for cause and or for hardship without objection. (5 RT 858- 86-; 873-875, 980-981, 993-994; 6 RT 1019-1022, 1065-1067, 1070-1076, 1126-1133, 1144-1145, 1155-1158, 1164-1172.) In selecting the jury, the prosecutor exercised 19 peremptory challenges. (5 RT 903, 919, 944, 955, 964, 971-972, 987, 997; 6 RT 1009, 1031, 1034, 1039, 1044, 1055, 1070, 1096, 1099, 1109, 1123; 10 CT 3113-3115.) The prosecutor exercised three peremptory challenges in selecting alternate jurors. (6 RT 1154, 1164, 1176; 10 CT 3115.) The defense challenged 14 prospective jurors (5 RT 910, 937, 951, 961, 964, 980, 992; 6 RT 1019, 1049, 1065, 1092, 1105, 1121, 1126; 10 CT 3113-3115) and twoalternate jurors (6 RT 1181, 1185; 10 CT 3115.) The prosecutor’s fourth challenge excused an African-American woman. (5 RT 929, 955; 10 CT 3113.) The defense objected on Wheeler grounds. (5 RT 931, 934.) The trial court found no primafacie case of discrimination had been made. (5 RT 936.) When the prosecutor exercised its 17th peremptory challenge to excuse an African-American man, the defense again objected on Wheeler grounds.°' (6 RT 1099, 1116-1117.) 3! While Parker raises a Batson claim on appeal without having referenced Batson in objecting below,his objection attrial referencing only Wheeleris considered sufficient to preserve a Batson claim forthefirst (continued...) 49 (oo storeysantanaHELPSeRmagaegidNLRgS core Le eaeCER YOMnt REARING MUR 6 cae ana Sie enact Sake oe ReaeePLeeeeT Thetrial court found that the defense had failed to make a prima facie showing of discriminatory exercise ofperemptory challenges. (6 RT 1119.) 1. Prospective Juror No. 719 Prospective Juror No. 719 was an African-American woman. (5 RT 929.) On her questionnaire, Prospective Juror No. 719 did not respond to all the questions regarding her viewson the death penalty. (See 6 CTIQ” 1884-1885.) In response to the question: “What are your GENERAL FEELINGSregarding the death penalty?,” Prospective Juror No. 719 wrote: “I don’t like it!” (VI CTJQ 1885, uppercasein original.) Prospective Juror No. 719 answered affirmatively to the question regarding whether“religious beliefs which would impair your ability to serve as a juror on this type of case” and in the place where prospective jurors were asked to “please explain” their answer to the question, she wrote: “death.” (VI CTJQ 1886.) In voir dire, Prospective Juror No. 719 indicated she was a 51-year- old widow with no prior jury service. (5 RT 919-920.) She wasa high- school graduate who was unable to work dueto a disability. She indicated that she had difficulty sitting for long periods of time because she had a (...continued) time on appeal. (People v. Howard, supra, 42 Cal.4th at p. 1017, fn. 9; People v. Cornwell (2005) 37 Cal.4th 50,66, fn. 3, overruled on other grounds, People v. Doolin (2009) 45 Cal.4th 390, 421, & fn. 22.) *? Respondenthas utilized the same abbreviations for the Clerk’s Transcript that are used in Appellant’s Opening Brief. Accordingly, “CTJQ”references the Clerk’s Transcript containing the jury questionnaires. 50 “bad lower back.”** (5 RT 920.) After the defense passed for cause, the prosecutor inquired of Prospective Juror No. 719: Q. ... from your answers to the questionnaire, would it be correct to say that for religious reasons have you a problem with the death penalty? A. Thatis correct. Q. Okay. And wouldit also be fair to say that because of those religious beliefs, your personal beliefs, you’d have difficult [sic] imposing the death penalty? A. Thatis correct. Q. And if given the chanceto vote for life without possibility ofparole, versus death, you’d probably alwaysselect life without possibility of parole over death. Is that a correct statement? A. That is a correct statement. (5 RT 923-924.) The prosecutor then challenged Prospective Juror No. 719 for cause. (5 RT 924.) Prospective Juror No. 719 was then questioned by the court and the parties in chambers. (5 RT 924-929.) The court began by explaining to Prospective Juror No. 719 that the court “wanted to clarify ** In the questionnaire signed on September 22, 1998,in response to the Question: “Do you havespecific health, hearing, or vision problems of a serious nature that might makeit difficult for you to sit as a juror in this case?,” Prospective Juror No. 719 indicated “1. Lower back problems” and “2. Sitting for a long time.” (VI CTJQ 1876, 1888.) On September29, 1998, Prospective Juror No. 719 completed a declaration requesting to be excused due to hardship based on experiencing lower back pain from sitting. (1 CTHS 140.) The court inquired and she indicated she had “a lower-back problem”and“it’s painful” when she walks for a “long distance”orsits for a “long period of time.” (6 RT 927.) 51 betaine Mte ARIAC A MOCIELERE 1 some of your last answers to see what your feelings were.” The court asked Prospective Juror No. 719: “Are youtelling the court andthe parties that under no circumstances would you ever vote for the death penalty?” Prospective Juror No. 719 answered: “I just don’t believe in it. I’m being honest ... I’m just being honest.” (5 RT 924.) The court then asked Prospective Juror No. 719 if her feelings were so strong, that she would not under any circumstances vote for the death penalty no matter whatthe evidence. Prospective Juror No. 719 replied: “I won’t say that. It depends on the evidencealso, I’d take that in consideration. But I just don’t believe in it because we can’t give life. And that’s one reason. AndI just don’t believe in taking life.” The court clarified that her belief was based on her religious beliefs. (5 RT 925.) The court asked whether,if the other jurors convincedher that death was the appropriate penalty, she could see herself voting for death, and Prospective Juror No. 719 responded: “I can’t give you that answer.” She indicated she would be willing to listen to the evidence before making a decision. (5 RT 926.) The prosecutor asked Prospective Juror No. 719 if she had certain religious and personal beliefs against the death penalty and she answered, “Oh yes, that’s correct.” Whenaskedif it “would be fair to say because of those religious beliefs it would be very difficult for you to vote to put someoneto death;is that correct?,” Prospective Juror No. 719 replied: “Oh, yes, definitely.” When asked if she would be biased against voting for the death penalty because ofherreligious beliefs, Prospective Juror No. 719 said she would not agree that she was biased “because she would haveto look at the evidence.” Prospective Juror No. 719 then agreed that her feelings against the death penalty would makeit difficult for her to impose death. (5 RT 928.) 52 2. First Wheeler Motion Thetrial court indicated it was going to disallow the challenge for cause and askedif there was going to be a Wheeler motionif the prosecutor exercised a peremptory challenge to Prospective Juror No. 719. (5 RT 929.) Parker’s counsel responded “I feel that you’ve madethe record that [the prosecutor] probably would not get — not be in a Wheelersituation because of her answers. I think that she gave answers that would probably give him reason to use his peremptory in a nonracial manner.” (5 RT 929.) The prosecutor then indicated to the trial court that Prospective Juror No. 719 was clearly impaired and the challenge for cause would be valid underthe standard articulated in Wainwright v. Witt (1985) 469 U.S. 412, 425 [105 S.Ct. 844, 83 L.Ed.2d 841], which requires excusing a juror for cause basedonhis or her views on capital punishment whenthe “juror’s views would ‘prevent or substantially impair the performanceofhis duties as a juror in accordance with instructions and his oath.”” (5 RT 9390.) The prosecutor argued that the questions posed by the court to Prospective Juror No. 719 related to whether under any circumstances the juror could vote for death, which would be consistent with the standard enunciated in Witherspoonv.Illinois (1968) 391 U.S. 510 [88 S.Ct. 1770, 20 L.Ed.2d 776]. The court acknowledged it was inquiring of Prospective Juror No. 719 using the Witherspoon standard but believed that her demeanor and the mannerin which she answered the questions evidenced substantial compliance underthe Witt standard. (5 RT 930.) The court addedthatit was uncertain whether Prospective Juror No. 71 9 appreciated “the magnitude of the questions” because it wasthe first time they had “gotten into this area in front of other jurors.” (6 RT 930-931.) The court then stated: “So I am disallowing the challenge for cause under Witherspoon, under Witt.” (5 RT 931.) The prosecutor then stated: “T still think when someone says because of myreligious beliefs I’m going to have difficulty 53 Se eaeiseREROONE Peo Wy Fee ew De Se a ERASSeMOESTRIE ARADO DIII CGIee ce es atinabrnancnan Mamihe berateLahaPRMRRAAFONad og Hea ney IN me Sanaa at peroat imposing the death penalty and I don’t believe init, that’s got to be Witt. Yes, she will look at the evidence, okay? Yes, she hasto waittill [sic] the evidence to be certain. But there’s no question she hassaid ‘I don’tlike it’ in her questionnaire, and-she says I’m going to have difficulty imposingit.” (5 RT 931.) Defense counsel then indicated, “One more comment, andIll come back in on Wheeler.” (5 RT 931.) The prosecutor interrupted and explained his discussion about how the Witt standard should be applied was due to anticipating that the subject will invariably come up again in the course of voir dire. Thetrial court then explained: Just because a person in my mindsays“T havereligious difficulties with it and I would havedifficulty applying that,” it’s anticipated that all jurors coming in will have difficulty applying this provision of law if they getto it. And so that, to me, doesn’t meanthat they’re excluded from being oneofthe available jurors. If they say to me “TI will not listen to the evidence or will — I won’t give it any major consideration,” or something along that line, I think we have a Witt application. (5 RT 932.) The prosecutortold the court thatthe situation being described was the previously applicable Witherspoon standard — where a juror would not under any circumstance consider imposing the death penalty. (5 RT 932.) The court then agreed with the prosecutor that Witt called upon the court to make a determination on an individual by individualbasis, and it had done so with respect to Prospective Juror No. 719. (5 RT 933.) Following the prosecutor’s argument regarding the proper application of Witt, defense counsel stated that the prosecutor’s “adamantposition with the court’s fine ruling and the situation leads me to believe that we may very well be getting into a Wheeler situation.” (5 RT 934.) Defense 54 gosteinettnienteoe counsel David Zimmermanobserved: “There’s only three blacks in the ~ whole room,” and defense counsel James Enright stated: “There’s only three blacks out there.” (5 RT 934.) Defense counsel then stated: “Given the limited reservoir pool of potential black jurors, kicking any one off puts us in Wheeler.” (5 RT 934.) The prosecutor advised the court that for purposes of the Wheeler discussion, it could be assumed that he would be using a challenge sometimethat day as to Prospective Juror No. 719 and no prima facie showing had been made. (5 RT 934.) The prosecution’s fourth peremptory challenge was exercised against Prospective Juror No. 719. (5 RT 955; 10 CT 3113.) In overruling the defense Wheeler objection, the trial court noted that defense counsel himselfhad acknowledged that the prospective juror’s responses provided a race-neutral basis for a prosecutor to exercise a peremptory challenge. Thetrial court found no primafacie case of discrimination by the prosecutor based on “the likelihood that a good prosecutor would challenge”ajuror who had responded in the same manneras Prospective Juror No. 719. (5 RT 936.) 3. Prospective Juror No. 213 Prospective Juror No. 213 was an African-American man. (6 RT 1117.) Prospective Juror No. 213 wasthe first juror to pick up a hardship application from the bailiff. (6 RT 1118.) Prospective Juror No. 213 filled out the hardship application and wrote that he could not serve as a juror in Parker’strial for the following reasons: They [sic] are time/date problems: Dates: Oct 1 — Doctors [sic] appt 2:00 pm [Oct 14th] — Doctors [sic] Appt 2:00 pm 55 Cae ta etARRNAdurngaonsing + - ‘eomtiaaiaRinpenarsitteMirasengece + Important * Oct 5 — School Department Meeting 8:00 am to 2:30 pm Nov 16-17 — out of town Andlast but not least I’m Head Basketball Coach — and Basketball Season starts Dec Ist! Our schedule could (during that month) coincide with the trial, and I Must be on the bus or at the games. (1 CTHS™122.) WhenProspective Juror No. 213 wastold by the judgeto take a seat, whichindicated to the prospective juror that there had not been a stipulation as to his hardship application, the judge heard Prospective Juror No. 213 audibly groan and makea facial expression consistent with that groan. (6 RT 1118.) Prospective Juror No. 213 was questioned on voir dire initially in chambers. (6 RT 1082.) The court read the portion of his hardship application regarding the conflict with his coaching basketball. (6 RT 1083.) Prospective Juror No. 213 explained the “biggest problem” would be near Christmas because of tournaments andthat “[w]hen you have tournaments, which you already know they could be at nine in the morning until night, and I cannot change those.” (6 RT 1083-1084.) The prosecutor noted that the case should be completed by December11th. Prospective Juror No. 213 indicated he had notreceived the scheduleyet,but they should have no more than three or four games before December | 1th. (6 RT 1084.) The prosecutor then clarified with Prospective Juror No. 213 that the basketball team’s first game would be on DecemberIst. He then noted that court usually ran until 4:30 p.m. and askedif that would prevent Prospective Juror No. 213 from practicing with his team the entire time that As used herein, “CTHS”references the volumeofthe Clerk’s Transcript containing Exhibits 1-9 (hardship applications). 56 he wasserving on the jury. (6 RT 1084-1085.) Prospective Juror No. 213 - indicated he had not yet been able to talk to the coach ofthe girls’ team in order to coordinate in scheduling practice times for the boys’ team he would be coaching. (6 RT 1085.) The prosecutor askedif it would be tough on the playersif practices were at night, and Prospective Juror No.213 explained that the players were freshmen and the parents would prefer to have them home bysix. (6 RT 1085.) Prospective Juror No. 213 then indicated that he wanted to apologize regarding “the one portion when they asked me whattelevision program, I said ‘You’ve got to be kidding.’ I was punchybythat time and very hungry.” The prosecutor responded,“People havesaid a lot worse. Don’t feel bad.” (6 RT 1086.) The court then asked about the medical appointments on Prospective Juror No. 213’s hardship application, andit wasclarified that the appointment on the December7th wasnot until December] 4th, and while he could move the appointmenton December14th up to 8:00 a.m. and be in court by 9:30 a.m., he had to see his doctor on December14th. (6 RT 1086.) After Prospective Juror No. 213 had left chambers, the defense -advised the court “[w]e want him.” The prosecutor was willing to stipulate that it would be a hardship for Prospective Juror No. 213 to serve on the jury. (6 RT 1086.) Thetrial court then asked if either party wished to question Prospective Juror No. 213 further following the sequestered voir dire regarding the hardship application. (6 RT 1088.) The defense had no questions, but the prosecutor inquired further. He first asked about Prospective Juror No. 213’s prior jury service. (6 RT 1089.) He then asked about Prospective Juror No. 213 testifying for the defense as a character witness for a friend who was accused of murderinghis father. (6 RT 1090.) Healso inquired about psychological counseling that Prospective Juror 57 POconseannyaBealSNeaaifeSoe Heke wangSSNREN He PPR a Sy No. 213 had received in high school which the prospective juror responded by describing as “basic counseling” about a “girlfriend thing.” (6 RT 1091.) The prosecutor then asked aboutthedifficulty that serving on the jury would create in terms of his being the head coachofthe freshman boys basketball team at Los Amigos High School. (6 RT 1091.) The prosecutor then inquired about Prospective Juror No. 213’s attitude toward jury service: [Prosecutor]: I take from it some things you said and the __ way you walked to the jury box, you’re notthrilled; is that a bad waytostate it? [Prospective Juror No. 213]: That’s a bad waytostate it. [Prosecutor]: Well, you put it in your words then. [Prospective Juror No. 213]: Okay, I had — honestly, honestly, when I first came I knew I would be a goodjuror. I knew that. I wasn’t even worried about it. And I listened in the courtroomall yesterday and still knew I would be a good juror. But, my problem wasit’s just a matter of this trial is very, very important. The person’s life is at stake. And that is very important. And I’m dealing with high school kids who everything they do is way more important than everything else in your life. So, I’m trying — I’d have to deal — [Prosecutor]: So you’re torn? [Prospective Juror No. 213]: Yeah. [Prosecutor]: You have a responsibility to the high school players, and yourealize the responsibility here; is that what you’re trying to say? [Prospective Juror No. 213]: Yes, this is a very big responsibility, as much as that is a big responsibility, too. If we can workout[sic], if I can get it so they’re both on different keels, it’s fine with me. Because I don’t have to worry about anything. I don’t have to worry until I get to the game. Then I worry aboutthat. (6 RT 1092-1093.) 58 The prosecutor then asked Prospective Juror No. 213 about his views on the death penalty. Prospective Juror No. 213 said he had “mixed feelings” about the death penalty but indicated it was appropriate in some instances and that he could imposeit if warranted by the evidence. (6 RT 1093-1096.) The prosecutor then passed for cause as to Prospective Juror No. 213. (6 RT 1096.) The prosecutor subsequently exercised his next peremptory challenge to excuse Prospective Juror No. 213. (6 RT 1099.) The peremptory challenge was the 17th exercised by the prosecutor. (10 CT 3115.) The defense objected on Wheeler grounds following the peremptory challenge of Prospective Juror No. 213. (6 RT 1116.) The trial court asked defense counsel to explain the basis for claiming misconductby the prosecutor in exercising a peremptory challenge against Prospective Juror No. 213. Defense counsel Zimmermanresponded: “We only had three black individuals, three African Americansin the whole room, and two of them have been excused by peremptory challenge by the People. I’mjust making myrecordin that regard.” (6 RT 1116.) Thetrial court questioned the representation regarding theracial composition of the jury pool: “[Court]: Well, I’m hesitant to accept the conclusion that you folks have put on the record that there’s only three African Americansin the prospective jury pool.” (6 RT 1116.) [Defense Counsel Enright]: I don’t think there’s three, I think there’s two. [Court]: Well, and that’s an interesting observation, but, the Court is not accepting that. So, from my perspective there might be more. But beyondthat, other than that conclusion that you stated, which takeit is based on you lookedat the jury pool that’s out there and you saw twoorthree people that you thought were African American,is there another reason that you’re putting forward to the Court as, you know, you need to show primafacie why there’s been misconduct? 59 osemriiarnitatin pentting ARE enti aatet NE AR ED hw eeGALTONwe SaELUNEMEERaSre ony gnagh ee ce oe Rents Aa [Defense Counsel Zimmerman]: Yes, because [Prospective Juror No. 719] was excused yesterday. She was African American descent, also. So we’re contendingthatthat establishes a systematic exclusion of the African American potential jurors. Onething, your Honor, we haven’t acknowledged [Prospective Juror No. 213] is of African American descent. [Court]: I will accept that representation based on my contact with [Prospective Juror No. 213]. The only thing I was quibbling about, you folks keep saying there’s only three out there. And I don’t knowthat that’s the case. However, if there is anything else, other than — [Defense Counsel Zimmerman]: No,that’s my objection. (6 RT.1116-1117.) Thetrial court then denied the Wheeler challenge, finding no basis for concluding that “the district attorney is engaging in misconduct, that he systematically is excluding all Afro-Americans from serving as jurors on this case or is systematically excluding any other minority group from serving on this particular case.” (6 RT 1117.) Thetrial court made express findings regarding Prospective Juror No. 213’s demeanor: [Prospective Juror No. 213] did submit a request to be excused for hardship, and we havethat on the record, we’ll keep it. In our discussion in chambersheindicated his reticence. about serving, although he did opinethat if actually selected, he will find a way to makehis job work consistent with the nature of the jury duty. But, just watching his expression, and I have to put two things on the record: Yesterday when webrokein the evening one ofthe first prospective jurors to comeup to the bailiff to get a hardship form was [Prospective Juror No. 213]. As you know, I emptied the courtroom so nobody could return anythingat that time, so we got [Prospective Juror No. 213’s] request today. And then I had (Prospective Juror No. 213) step out into the courtroom waiting whether there was going to be a stipulation or not. 60 So, when I cameback out and advised him what, that he neededto go take the jury seat, there was an audible groan and facial expression consistent with that as he moved from the clerk’s area overto the chair. And just watching his demeanor,his facial expressions when he wasinquired abouthis availability, I thought he was indicating that it’s going to be extremely difficult. Plus some of the other information that was disclosed to the deputy district attorney upon further inquiry. So, I think we haveto be careful, when you make a challenge of this nature, that the Court give a legitimate consideration. And I don’t mean to makeless ofthe challenge. IfI thought it was even close, I would make the deputy district attorney state on the recordhisfeeling as to why he was excusing thisjuror, [Prospective Juror No. 719 [sic]], but, there was ample reason to excuse both of those, other than dealing with race. (6 RT 1117-1119, emphasis added.) B. The Record Does Not Support an Inference of Discrimination Parker contendsthat he met his burden of showing a primafacie case of discrimination because: (1) no other members of the venire appeared to be African-American (AOB 136-137); (2) the two African-American prospective jurors that were challenged were as heterogeneousas the community as a whole other than their race and age (AOB 138-140); (3) the exclusion of two African-Americanjurors is sufficient to demonstrate a pattern of systematic exclusion (AOB 140-143); (4) the statistical disparity between the percentage of African-American jurors versus the non African-Americanjurors challenged by the prosecutionis sufficient standing alone to make a primafacie case of discriminatory intent (AOB 143-147); and (5) the manner of questioning the two African- American jurors supports an inference of discriminatory intent (AOB 147- 61 sensege Prt aye secre oe Fog SAAOEPRETENSESRRPemis oo 148). To the contrary, the record does not support an inference of . discriminatory intent. Even assuming arguendothatall of the African- American prospective jurors were excused when the prosecutor challenged the two African-American prospective jurors, the exclusion of two jurors does not suggest a pattern of impermissible exclusion, nor show a disproportionate number of challenges toward African-American prospective jurors. Further, both the mannerof questioning and the statements by the prospective African-American jurors serve only to refute any suggestion of discriminatory intent. Accordingly, Parker did not make a prima facie showing below. 1. The Exclusion of Two Jurors Is Not Sufficient to Support an Inference of Discrimination Under the Totality of the Circumstances Parker contendsthat he established below that the prosecutor challenged the only members ofthe venire that appeared to be African- Americans. (AOB 136.) However, the record does not show that there were only two African-American prospective jurors amongthe venire. Parker arguesthatthe trial court’s “own observationsestablish that the prosecutor challenged everyone in the venire who appeared to be” African- American. (AOB 137.) Therecordis not clear that the trial court’s observations were consistent with Parker’s counsel’s representations. Whenthetrial court expressly refused to accept the defense representation that there were only two or three African-Americanjurors, the record is not clear that the trial court’s refusal was based on distinguishing those jurors whoappeared to be African-American from those who mightalso be of African-American heritage. (See 6 RT 6117-6118.) Parker contends that his representation is sufficient because the prosecution should be deemedto have admitted the truth of the defense characterization of the venire based 62 on the absence of any objection. (AOB 136.) Sincethe trial court expressly disputed the reference, the lack of any objection to the representation is readily attributable to the trial court’s indication that it was not accepting the representation. In any event, even assuming that the two challenged African-American prospective jurors were the only African- American prospective jurors, the record does not support an inference of discrimination based ona statistical analysis. Parker contends that he made a prima facie showing of discrimination based solely on the statistical disparity from the prosecutor exercising 2 of 19 peremptory challenges against African American potential jurors. (AOB 143-147.) In terms ofwhether the prosecutor struck mostor all of the membersofa particular group, or used a disproportionate number of challenges against the group,it has been repeatedly held thatit is impossible to draw an inference of discrimination from the challenge of one potential juror. (People v. Taylor, supra, 48 CalAth atp. _— [2010 Cal. LEXISat p. *70]; People v. Cornwell, supra, 37 Cal.4th at pp. 69-70; People v. Hamilton, supra, 45 Cal.4th at p. 899; People v. Bonilla, supra, 41 Cal4th at p. 343, fn. 10; People v. Howard, supra, 42 Cal.4th at p. 1018, ~ fn. 10.) Moreover, as this Court has observed,as a practical matter, the challenge of one or two jurors can rarely suggest a pattern of impermissible exclusion. (People v. Bell (2007) 40 Cal.4th 582, 597.) Further, exercising only 2 of 19 peremptory challenges against the group that is the subject of a Batson/Wheeler challenge doesnot entail the exercise of a disproportionate numberof challenges against the group. (/bid. [2 of 16 challenges against African-American women not disproportionate use ofperemptory challenges against that group].) Parker’s reliance on Williams v. Runnels (9th Cir. 2006) 432 F.3d 1102, is misplaced because in that case the court concludedthat the bare statistical facts from the prosecutor using three of his first four peremptory 63 challenges to remove African-American prospective jurors was sufficient for a prima facie showing basedonstatistical disparity alone. (/d.at p. 1107.) Here, the prosecutor did not challenge an African-American prospective juror until exercising his fourth peremptory challenge. Moreover,in the context of the challenge for cause that was denied prior to the exercise of the peremptory challenge, the race neutral reason for the challenge was so obviousthat even the defense credited it on the record. Another challenge to an African-American potential juror in this case did not occur until the prosecutor’s 17th challenge. None of the cases relied upon by Parkeras stating a primafacie case based onstatistical disparity alone reflect the mere exercise of two challenges separated by other challenges as occurredin this case. (AOB 143-144,citing Williams v. Runnels, supra, 432 F.3d at p. 1107; Paulinov. Castro (9th Cir. 2004) 371 F.3d 1083, 1091 [inference of bias based on ‘five out of six peremptory challenges to strike African-Americanjurors].) Indeed, as the Ninth Circuit noted in Williams v. Runnels, when a prosecutor exercisesthe first peremptory challenge against an African- American prospective juror, and that individualis the first person called and struck, the timing of the challenge results in a higher percentage of jurors from the challenge group beingstricken than if the same juror were called and struck at the end of voir dire. Moreover, the timing of the objection is one of the relevant circumstancesthat can refute an inference of discriminatory purpose basedonstatistical disparity. (Williamsv. Runnels, supra, 432 F.3d at p. 1108, & fn. 9.) The placementofthe challenges in this case (4th and 17th) serve to refute the statistical showing Parker is depending upon to support his second Wheeler motion. Additionally, the cases based onstatistical disparity relied upon by Parker do not involve striking as few minority jurors as occurred in this case. (AOB 143-144,citing Williams v. Runnels, supra, 432 F.3dat 64 eset9 clapnye a begieiras tah ne pee panne ae aR eg aydae Garth ton SamimNtacne, : meetsMRSTMAPSae ay Soa aeTe me TONNENERASgtRm” maeSlSaPaNBeeAtm, AoE A p. 1103 [3 out of 4 African-American prospective jurors]; Fernandez v. Roe (9th Cir. 2002) 286 F.3d 1073, 1077-1080 [4 out of 7 Hispanic and 2 African-American prospective jurors]; Turner v. Marshall (9th Cir. 1995) 63 F.3d 807, 812, overruled on other grounds, Tolbert v. Page (9th Cir. 1999) 182 F.3d 677, 681 [5S out of 9 African-American prospective jurors]; United States v. Alvarado (2d Cir. 1991) 923 F.2d 253, 255 [4 out of 7 African-American prospective jurors]; United States v. Hughes (8th Cir. 1989) 880 F.2d 101, 103 [3 out of 6 African-American prospective jurors]; United States v. Battle (8th Cir. 1987) 836 F.2d 1084, 1085-1086 [5 out of 7 African-American prospective jurors].) Even assuming there were no other African-American potential jurors other than Prospective Jurors Nos. 719 and 213, two jurors is too small of a number from whichto draw an inference of discrimination. 2. The Prosecutor’s Questioning of Prospective Jurors Did Not Support an Inference of Discriminatory Exercise of Peremptory Challenges Parker complains for the first time on appeal that the prosecutor’s voir dire of Juror No. 719 was desultory. (AOB 147.) Given the obvious reason for the prosecutor’s exercise of a peremptory challenge after his challenge for cause was denied, there was no adverse inference to be drawn. Parker suggested below the discussion by the prosecutor about the trial court’s denial of the challenge for cause to Prospective Juror No. 719 supported a showingofdiscriminatory intent. (5 RT 931, 934.) Thetrial court’s denial of the prosecutor’s challenge for cause as to Prospective Juror No. 719 in no way supports an inference of discrimination when a peremptory challenge is then exercised. (See People v. Salcido (2008) 44 Cal.4th 93, 139-140; People v. Cornwell, supra, 37 Cal.4th at p. 70.) Parker apparently concedes this point on appeal by notreiterating the 65 ~ een . pete te ssh “ ve ote ESRSPREIUCNenaarenMEateAh Geet ghee eraTEINaseARRAPARNAcep+ rationale relied upon by defense counsel below. Moreover,the circumstancesrelating to the challenge for cause refute any inference of discriminatory intent. The prosecutor explained the reason for questioning the basis for the trial court’s denial of the challenge for cause to Prospective JurorNo. 719 wasbecause the subject of the proper application of the Witt standard would no doubt comeup again in the course of voir dire. (5 RT 932.) The trial court impliedly credited the prosecutor’s explanation, and certainly did not perceive anything supporting an inference of discrimination based on the prosecutor’s argument regarding the proper application of the Witt standard. (See 5 RT 932.) Parker concedesthat the prosecutor’s questioning of Prospective Juror No.213 was not desultory but argues it nonetheless raises an inference of discriminatory purpose. (AOB 147.) To the contrary, the obvious race- neutral reasonsfor challenging Prospective Juror No. 213 are evident from the record and clearly refute any inference of discrimination in this case. The record clearly evidences Prospective Juror No. 213’s reluctance to serve on the jury. Thetrial court made express factual findings regarding Prospective Juror No. 213’s demeanor. (6 RT 1119.) Parker arguesthat the findings bythe trial court reflect whatthe trial court observed and do not refute a discriminatory intent by the prosecutor because the prosecutor may not have even observed the behaviorthetrial court described. (AOB 155.) Parker’s pointis unpersuasive since the prosecutor’s own questioning referenced Prospective Juror No. 213’s demeanor whenthe prosecutorstated: “I take from it some things you said and the way you walkedto the jury box, you’re notthrilled.” (6 RT 1093.) Beyond the demeanorevidencing displeasure at serving on the jury, the record evidences other obvious race-neutral groundsfor the prosecutor’s challenge of Prospective Juror No. 213. Consistent with the prosecutor’s voir dire of 66 Prospective Juror No. 213, another obvious race-neutral ground for excusing Prospective Juror No. 213 wasthe fact that he hadtestified for the defense as a character witness for a friend who was accused of murder. (6 RT 1090.) A prosecutor could also be concerned over a juror who had received psychological counseling as a young man overa “girl friend thing.” (6 RT 1091.) Given the obvious race-neutral reasons for exercising peremptory challenges against two African-Americanjurors, Parker clearly failed to make a primafacie showing below. (See People v. Davis, supra, 46 Cal.4th at p. 582.) 3. Comparative Analysis Does Not Support an Inference of Discrimination Parker contendsthat the voir dire of Prospective Juror No. 213 raised an inference of discriminatory purpose because the prosecutor questioned Prospective Juror No. 213 at length about matters that he failed to question similarly situated non African-American jurors about. (AOB 147.) The purpose of conducting comparative analysis is generally not served in a first stage case, i.e., where the trial court finds no primafacie case of discrimination has been made. (People v. Howard, supra, 42 Cal.4th at p. 1020.) As this Court has concluded “evidence of comparative juror analysis must be consideredin the trial court and even forthe first time on appeal if relied upon by defendantand the record is adequate to permit the urged comparisons.” (People v. Hamilton, supra, 45 Cal.4th at p. 903; People v. Cruz (2008) 44 Cal.4th 636, 658, quoting People v. Lenix (2008) 44 Cal.4th 602, 622.) “‘[R]eviewing courts must consider all evidence bearing onthetrial court’s factual finding regarding discriminatory intent.’” (People v. Hamilton, supra, 45 CalAth at p. 903, quoting People v. Lenix, supra, 44 Cal.4th at p. 607.) However, 67 vt akABSAREONRDMRRRRCISRONL nhroe Svnee SoneAcigieRSERAMLOAMORERHRMIICONORRENAIRemesis pt tor ypatinim Oh Hor sftOhke nstatsbewineh Amame:tee Ai [i]n a “first-stage Wheeler-Batson case, comparative juror analysis would makelittle sense. In determining whether defendant has made a primafacie case,the trial court did not ask the prosecutor to give reasonsfor his challenges, the prosecutor did not volunteer any, and the court did not hypothesize any. Nor, obviously, did the trial court compare the challenged and accepted jurors to determinethe plausibility of any asserted or hypothesized reasons. Where,as here, no reasons for the prosecutor's challenges were accepted or posited by either the trial court or this court, there is no fit subject for comparison.” (Bell, supra, 40 Cal.4th 582, 600-601.) “Whatever use comparative juror analysis might have in a third-stage case for determining whether a prosecutor's proffered justifications for his strikes are pretextual, it has little or no use where the analysis does not hinge on the prosecution's actual proffered rationales, and we [mayproperly] decline to engage in a comparative analysis”in a first-stage case. (Bonilla, supra, 41 Cal.4th 313, 350.) (People v. Carasi (2008) 44 Cal.4th 1263, 1295-1296; see also People v. Lenix, supra, 44 Cal.4th at p. 622.) This Court has warned ofthe unreliability of comparative analysis without a complete record of suchan analysis having been developed in the trial court. (People v. Cruz, supra, 44 Cal.4th at pp. 658-659, quoting People v. Lenix, supra, 44 Cal.4th at p. 623; People v. Bell, supra, 40 Cal.4th 582, 600-601; People v . Bonilla, supra, 41 Cal.Ath 313; 350.) Comparative juror analysis is most effectively consideredintrial courts wherean “inclusive record” of the comparisons can be made by the defendant, the prosecutor has an opportunity to respond tothe alleged similarities and the court can evaluate counsels’ arguments based on what it saw and heard during jury selection. (People v. Lenix, supra, 44 Cal.4th at p. 624.) Like the decision in Snyder, this Court also recognized the “inherent limitations” of conducting a comparative juror analysis on a cold appellate record. (/bid.) The mosttroubling aspect of conducting such an analysis on direct appeal is failing to give the prosecutor the “opportunity to 68 explain the differences he perceived in jurors who seemingly gave similar. answers.” (/d. at p. 623.) This is especially true in light of the fact that experienced advocates mayinterpret the tone of the same answersin different ways and a prosecutor may be looking for a certain composition of the jury as a whole. (/d. at pp. 622-623.) Asthis Court has observed: There is more to human communication than merelinguistic content. On appellate review, a voir dire answersits on a page of transcript. In the trial court, however, advocates andtrial judges watch andlisten as the answeris delivered. Myriad subtle nuances may shapeit, includingattitude, attention, interest, body language, facial expression and eye contact. (People v. Lenix, supra, 44 Cal.4th at pp. 622-623.) Asfurther recognized by this Court: [A]lthough a written transcript may reflect that two or more prospective jurors gave the same answers to a question on voir dire, “it cannot convey the different ways in which those answers were given. Yet those differences may legitimately impact the prosecutor’s decision to strike or retain the prospective juror. When a comparative juror analysisis undertaken for the first time on appeal, the prosecutor is never given the opportunity to explain the differences he perceived in jurors who seemingly gave similar answers.”[Citation.] Observing that “[v]oir dire is a process of risk assessment” [citation], we further explainedthat, “[t]wo panelists[1.e., prospective jurors] might give a similar answer on a given point. Yet the risk posed by one panelist might be offset by other answers, behavior,attitudes or experiences that make onejuror, on balance, more or less desirable. These realities, and the complexity of human nature, make a formulaic comparison of isolated responses an exceptionally poor medium to overturn a trial court’s factual finding.” (People v. Cruz, supra, 44 Cal.4th at pp. 658-659, quoting People v. Lenix, supra, 44 Cal.4th at p. 623.) Parker’s comparison fails for precisely the caveats and concerns expressed by this Court regarding comparative analysis for the first time 69 on appeal. For example, Parker complainsthat if the prosecutor’s interest in the topics he indicates were genuine, then he would have questioned Juror No. | about his having seen and beentreated by a psychiatrist (AOB 150, citing 1 CTJQ 8) and Juror No. 4’s brief hospitalization in a psychiatric facility following his mother’s death in 1970. (AOB 151, citing 1 CTJQ 25.) However, neither Jurors Nos. 1 or 4 are actually comparable with Prospective Juror No. 213 in termsofthe total circumstances because the obvious race-neutral reasons for challenging Prospective Juror No. 213 are not also present. Accordingly, the mere lack of questioning Jurors Nos. | and 4 on the subject of their experiences with a psychiatrist is not a basis for inferring discriminatory intent. Parker also argues that time problems werean unlikely reason for the challenge to Prospective Juror No. 213 because the prosecutor did not follow up and question Juror No. 7 about her vacation plans. (AOB 151, citing 1 CTJQ 189.) There is nothing in the record to suggest that Juror No.7’s planned vacation presented a concern for the prosecutor that was comparable to the demeanor and comments by Prospective Juror No. 213 conveying his reluctance to serve. Prospective Juror No. 213’s demeanor and comments presented an obvious race-neutral reason for exercising a peremptory challenge, which wascredited by thetrial court’s observations and findings. Parker also notesthat it is “unlikely” that the prosecutor was concerned with Prospective Juror No. 213’s experience with the criminal justice system because Juror No. 12 had also served on an earlier jury and Juror No. 4 had been a ward ofthe state as a minor because he ran away from home and wastruant from school. (AOB 152,citing 1 CTJQ 21, 23, 93.) Conspicuously absent from Parker’s discussion of Prospective Juror No. 213’s “experience with the criminal justice system”is the fact that he testified as a character witness on behalf of a friend who murderedhis 70 father, which is an experience of an entirely different nature than those reflected in the questionnaires completed by Jurors Nos. 4 and 12. C. The Remedy for the Erroneous Denial of a Wheeler Motion at the First Stage Is to Remand for Further. Proceedings As this Court has explained, whena trial court erroneously denies a Batson/Wheeler motion atthe first stage, the appropriate remedyis to remandthe matter in order for the trial court to undertake the second and third stage analysis required under Batson/Wheeler. If, upon remand,the trial court finds that due to the passage of time, or other reasons, it cannot adequately address or makea reliable determination;orif it finds the prosecutor exercised peremptory challenges improperly, then the matter shouldbe set for a newtrial. (People v. Johnson (2006) 38 Cal.4th 1096, 1103-1104.) Parker arguesthat reversal is the appropriate remedy for the erroneous denial of a Batson/Wheeler motion based on failure to make a primafacie showing. (AOB 168-170.) Herelies on this Court’s refusal to remand for further proceedings in People v. Snow (1987) 44 Cal.3d 216, 226, wherein it was noted that it was “unrealistic” to believe that the prosecutor could better recall after the passage of time the reasons for exercising the challenges called into question by the Wheeler challenge. (AOB 170.) This Court should decline Parker’s invitation to abandonits approach in Johnsonin favorofthe outright reversal that occurred in Snow. This Court hasalready distinguished Snow from Johnson. As this Court explained, after its decision in Snow, the United States Supreme Court identified a less stringenttest for the first stage ofBatson. Thelesser standard forstating a prima facie case may result in morefindingsoferror in casestried before the high court’s decision than in the past. This Court concluded there was 71 no compelling reason to provide a more favorable remedy for those errors than the federal courts themselves provide, especially when Californiatrial courts did not have the benefit of the high court’s decision when conducting _the analysis in question. Moreover, this Court noted that the remand procedure “seems to work reasonably well in federal court.” (Peoplev. Johnson, supra, 38 Cal.4th at p. 1100.) Accordingly, this Court adopted the federal approach of remanding for purposes of conducting the second and third stage analysis required by Batson wheneverthetrial court erred in finding the defendantfailed to make the necessary prima facie showing of discrimination. (People v. Johnson, supra, 38 Cal.4th at p. 1100.) Parker arguesthat this Court “should not waste any more time and resources trying to divine why the prosecutor excused the prospective jurors. That question could and should have been answered overnine years ago.” (AOB 163.) Whetheror not the question should have been answered at the timeoftrial is an entirely separate matter than whether an inquiry should be made on remand. Moreover, in terms of the question being answeredatthe timeoftrial, the trial court did not ask the prosecutor to provide his reasons for exercising peremptory challenges against two African-American potential jurors. While this Court has held it is proper for a trial court to request and considerthe reasonsofthe trial prosecutor for exercising peremptory challenges against jurors whoare the subject of a Batson/Wheeler motion even when the court finds that no primafacie case has been made (People v. Taylor, supra, 48 Cal.4th at p.__— [2010 Cal. LEXISat p. *74], it was only subsequent to Parker’strial that this Court has encouragedtrial courts to do so. (People v. Taylor, supra, at *74; People v. Bonilla, supra, 41 Cal.4th at p. 343, fn. 13; People v. Mayfield (1997) 14 Cal.4th 668, 723-724.) Moreover, the law remains the same — a trial court is not required to inquire regarding the prosecutor’s reasons in a first stage Batson/Wheeler analysis whenit finds no prima facie case 72 neee of discrimination has been made. (/bid.) Under circumstances such as Parker’s case, wherethe trial predated the preferred practice of making a record of the prosecutor’s reasons even whenthetrial court finds no prima facie showing of discrimination has been made, and where the prosecutor wasnot invited to make a record of reasons, Parker’s point is particularly unavailing. Parker notesthat the remedy in Johnsonrelated to a Batson violation, and argues that this Court’s remand in Johnson did not implicate the rule of automatic reversal for violations of state constitutional error under Wheeler. (AOB 169, citing People v. Johnson, supra, 38 Cal.4th at p. 1105, conc. op. of Werdegar, J.) As was noted in Johnson, numerous Courts of Appeal have remanded casesfor further proceedingsafter finding Wheelererror. (Id. at p. 1105, fn. 3 & cases cited therein.) The fact that this Court left the correctness of those decisions for another day whenit decided Johnson does not meanthat outright reversal would be appropriate in this case should the Court find thetrial court erroneously determinedthat a prima facie case of discrimination had not been made. Parker arguesthat no reliable determination could be made on remand | because of faded memories due to the passage oftime, and the inability to consider the observations, recollection, and argumentof oneofhis twotrial counsel, because he has died. (AOB 170.) While defense counsel can be of assistance in pointing out improprieties in the prosecutor’s reasons, whether pretextualor illegal, and could note for the record any crucial facts pertinentto the judge’s ruling that might benefit a reviewing court (See United States v. Thompson (9th Cir. 1987) 827 F.2d 1254, 1260-1261), Parker’s assertion that a reliable determination is not feasible on remand because oneofhis twotrial counsel is deceased overstates the role of defense counselin a trial court’s Batson/Wheeler analysis. (See People v. Ayala (2000) 24 Cal.4th 243, 261-262 [exclusion of defense counsel and 73 aantraleeeleapedei Fe co gcae teenyHERRONPiDtnetNepteMIchemarigne ne tiWring Re cinta te Rahn en, gantenact RaatamdReaisangatee defendant from prosecutor’s statement of reasons harmlesserror]; Lewisv. Lewis (9th Cir. 2003) 321 F.3d 824, 831 & fn. 27 [no clearly established law requiring court to allow defense counsel to argue in context of court’s Batson analysis]; United States v. Tucker (7th Cir. 1980) 836 F.2d 334, 340 [Batson does notrequire an adversarial hearing].) Moreover, the mere passage of time does not foreclose successfully undertaking Batson analysis following a remand manyyearsaftertrial. (See People v. Rodriguez (1996) 50 Cal.App.4th 1013, 1024 [noting two cases wherein court able to fulfill its constitutional obligations under Wheeler following remand yearsaftertrial].)*° In a capitalcase,“it is likely counsel and the court paid close attention to the voir dire questions and the jurors’ responses.” (/d.) Giventhe extensive questionnaires and voirdire transcript in the case that could be reviewed upon remand,there is no reason to believe that the trial court would be unableto dischargeits obligations on remandin this case should this Court find error in the denial of Parker’s Batson/Wheeler motion. (/bid.) In any event, as detailed herein, the record does not support an inference of discrimination from the peremptory challenges of Prospective Juror Nos. 719 and 213. Accordingly,the trial court did not err in finding Parker had failed to make a primafacie case of discriminatory exercise of peremptory challenges. *> Parker has requested judicial notice of the post-remand proceedings in Johnson (AOB 162, fn. 40) in an apparent effort to show that recollections had faded andit could not be established on remand that the prosecutor’s peremptory challenges were based on race-neutral reasons. The outcome in Johnson following remand doesnotalter the appropriateness of the remedy orderedin the case. Thisis particularly true when,as noted in the cases cited above, remands have permitted the prosecution to makea record that refutes any inference of race based peremptory challenges. (See People v. Johnson, supra, 38 Cal.4th at p. 1100; People v. Rodriguez, supra, 50 Cal.App.4th at p. 1024.) 74 Il PARKER’S RIGHTS WERE NOT VIOLATED DURING CUSTODIAL INTERROGATIONS Parker contendshis rights underthe Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, Article I, section 15, of the California Constitution, and Evidence Code section 1204°° were violated whenhis statements to police were admitted into evidence against him. (AOB 171.) Parker claims he did not waive his rights to remain silent and to counsel after being advised of his Miranda’’rights by Costa MesaPolice Detectives Lynda Gielser and William Redmond; and even if he impliedly waived thoserights at the outset of the interview regarding the crimes he committed in Costa Mesa,he alleges he repeatedly invokedhis right to silence while speaking with the two detectives. (AOB 179-184.) Parker argues that all of the statements in his subsequentinterviews with police investigators from the cities of Anaheim, Costa Mesa, and Tustin should have been excluded from the guilt phase of his trial because they were obtained in violation of his invocation of his right to remain silent. (AOB 184-188.) Parker contends he was prejudiced by the denial of his motion to suppress his statements to police in the guilt phase oftrial. (AOB 188- 191.) Parker’s constitutional and statutory rights were not violated as Parker understood and impliedly waived his Miranda rights before speaking with Detectives Giesler and Redmond. Moreover, Parker never invokedhis right to counsel or to silence during the low key and non- *© Evidence Codesection 1204 provides: “A statementthatis otherwise admissible as hearsay evidence is inadmissible against the defendantin a criminal action if the statement was made either by the defendant or by another, under such circumstancesthat it is inadmissible against the defendant under the Constitution of the United States or the State of California.” °7 Miranda v. Arizona (1966) 384 U.S.436 [86 S.Ct. 1602, 16 L.Ed.2d 694]. 75 reneReMa Bias cohabit RORAWOARDeneaa one coercive custodial interviews with investigators from three Orange County cities investigating multiple homicidesin their respective jurisdictions. Further, even assuming the erroneous admission of his statements, he was not prejudiced. Parker was in custodyat a state prison when interviewedbypolice. Under Miranda andits progeny, a suspect cannot be subjected to custodial interrogation absent a knowing andintelligent waiver of the rights to remainsilent, to the presence of an attorney, and for indigent suspects, to the appointment of counsel. Interrogation of a suspect by police must cease “once the defendant, by words or conduct, demonstrates a desire to invoke his right to remain silent, or to consult with an attorney.” (People v. Davis, supra, 46 Cal.4th at p. 585, citing People v. Johnson (1993) 6 Cal.4th 1, 25- 26, overruled on other grounds, People v. Gonzalez (2003) 31 Cal.4th 745; Dickerson v. United States (2000) 530 U.S. 428, 435-443 [120 S.Ct. 2325, 147 L.Bd.2d 405].) As this Court has observed: “{njo particular form of Miranda waiver is required, and a waiver may be implied from a defendant’s words and actions.” (People v. Davis, supra, 46 Cal.4th at p. 585, citing North Carolina v. Butler (1979) 441 U.S. 369, 373-375 [99 S.Ct. 1755, 60 L.Ed.2d 286]; People v. Whitson (1998) 17 Cal.4th 229, 246-250.) “In determining the validity of a Miranda waiver, courts look to whether . it was free from coercion or deception, and whether it was ‘made with a full awareness of both the nature of the right being abandoned andthe consequencesofthe decision to abandonit.’” 46 Cal.4th at p. 585, quoting Moran v. Burnine (1986) 475 U.S. 412, 421 [106 S.Ct. 1135, 89 L.Ed. 2d 410].) “Both aspects are tested against the (People v. Davis, supra, totality of circumstances in each case, keeping in mindtheparticular background, experience and conductof the accused.” (People v. Davis, 76 supra, 46 Cal.4th at p. 585, citing North Carolina v. Butler, supra, 441 US. at pp. 374-375.) Asthis Court has held: “[T]he rule that interrogation must cease because the suspect requested counsel doesnotapply if the requestis equivocal; rather, the suspect must unambiguously request counsel.” (People v. Davis, supra, 46 Cal.4th at p. 587, internal quotations omitted.) The bright-line rule that requires a suspect to unambiguously request counsel applies equally to invocationsofthe right to remain silent. (People v. Rundle (2008) 43 Cal.4th 76, 116, overruled on other grounds, People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 11.) Parker filed a motion seeking to excludeall of his statements to police in the guilt phaseofhis trial.*? (3 CT 925.) Parker contended in his motion to suppress that he had invokedhis right to remain silent at the outset of the initial interview by Detectives Giesler and Redmond, and at numerous times during the interview, as well as at the outset of the subsequent interview by Investigator Tarpley. (3 CT 928-945.) He also contended that Investigator Tarpley’s request for a Miranda waiver was impropersince he allegedly invoked his right to remain silent during the interview with Detectives Giesler and Redmond. (3 CT 943-945.) Parkeralso alleged that his statements to police were not free and voluntary but were instead the result of outrageous police behavior. (3 CT 930-932, 937-940.) Parker’s motion to suppress his statements to police was heard on April 21, 23, and 28, and May 11 and 22, 1998. (1 RT 128-224; 2 RT 225- *8 In the penalty phase, it was Parker whointroducedtheentire interviews by Detectives Giesler and Redmond on June 14th (Penalty Phase Defense Exh. B; see 11 CT 3241-3331 [80-page transcript]), Detectives Tarpley, Giesler and Redmondon June 14th (Penalty Phase Defense Exh. C; see 10 CT 3190-3222 [172-page transcript]), and Detectives Giesler and Redmond and Sergeant Boyland on June 18th (Penalty Phase Defense Exh. D; see 11 CT 3506-3738 [23 1-pagetranscript].) 77 sient eeefaeieINE ARANOMEMEEae tt yuk etka os 265.) The motion was denied without comment on May 22, 1998. (2 RT 268.) While this Court independently determines on appeal whether Parker’s statements to police were obtained in violation of Miranda,it accepts the determinationofthe trial court as to disputedissues offact wherethat determination is supported by substantial evidence (People v. Davis, supra, 46 Cal.4th at p. 586) and gives “great weight” to the “considered conclusions of a lower court that has previously reviewed the same evidence”(People v. Wash (1993) 6 Cal.4th 215, 236, internal quotations omitted). Before denying Parker’s motion to suppress,thetrial court heard testimony from investigators present during the interviews and a pharmacology expert. (1 RT 131-215; 2 RT 229-241.) The court also listened to five audiotapes and viewed three videotapesof interviews of Parker which contained the statements Parker was seeking to exclude. (1 RT 140, 151-152, 158, 216; People’s Exh. Nos. 2, 4-5, 7-9, 11, and 13.) A. Custodial Interviews of Parker On June 14, 1996, Tustin Police Investigator Thomas Tarpley, and Costa Mesa Police Detectives Lynda Giesler*’ and William Redmondleft Orange County at about 5:30 in the morning and drove north of Fresno in order to serve a search warrant for physical evidence on Parker at Avenal State Prison where he wasincarcerated. The search warrant had been obtained on June 13, 1996. In addition to serving the warrant, detectives *° Detective Giesler retired from the Costa Mesa Police Department after 32 years of service in Decemberof 1995. (1 RT 179; 7 RT 1520.) She washired in January 1996 on a part-time basis to assist with investigating unsolved homicides. (1 RT 180; 7 RT 1520.) Detective Giesler was involvedin the investigation of the Rawlins homicide in 1979. (7 RT 1520.) 78 wanted to speak to Parker about homicidesin their jurisdictions that had been linked to Parker by DNA evidence. (1 RT 132-133, 145, 168, 181, 194.) The investigators arrived at the prison around 10:30 a.m. and Parker first met with the two detectives from the Costa Mesa Police Department in an interview room at the Investigative Division of the prison. (1 RT 133- 134.) Detectives Giesler and Redmondwerein civilian clothing. (1 RT 173.) Parker was not aware the detectives wanted to speak with him prior to meeting them in the interview room. (1 RT 173.) They introduced themselves to Parker and showed him their identification. (1 RT 134, 173.) Parker wastold the interview would be recorded. (1 RT 134.) The detectives asked Parker if he was aware why they were there to speak to him. Whenhesaid he did not know,they told him they were in investigating unsolved homicides that occurred in 1978 and 1979 and they wanted to talk to him about DNA evidence foundin those cases and his involvementin the homicides. Theyalso told Parker that since he was in custody at the prison they were going to advise him regarding his rights. (1 RT 135, 174.) While the detectives intended to have the entire interaction with Parker recorded, the voice activation feature of the tape-recorder they were using had notactivated. Detective Giesler noticed the tape-recorder was not running while Detective Redmond wasspeaking with Parker. (1 RT 136, 172, 174.) After learning the recorder was not running, Detective Redmondthen turned the tape-recorder on manually, at a point in the interview after the introductions had occurred but before Miranda admonitions were given. (1 RT 136, 174; Mot. to Suppress, People’s Exh. 79 No.1 [5S CT 2034].) The Miranda admonition and subsequent conversation was recorded. (1 RT 138-139; 5 CT 1545-1626.) Detective Redmondadvised Parker as follows: Detective Redmond: You havethe right to remainsilent, do you understandthat? Gerald Parker: Right. Detective Redmond: Anything you say may be used against you in court, do you understand that? Gerald Parker: Right. Detective Redmond: You havethe right to an attorney ~ before or during any questioning, do you understandthat? Gerald Parker: Right. Detective Redmond: Ifyou cannot afford an attorney, one will be appointed for any questioning if you wish, do you understandthat? Gerald Parker: Right. Detective Redmond: Okay. Do you wantto talk to us about ah, anything that might have occurred back, ‘79, ‘80. Gerald Parker: ‘79, ‘80, why, why would I wantto talk to you about something that occurred back then? “© The 80-pagetranscript of the taped interview conducted by Costa Mesa Police Detectives Giesler and Redmond on June 14th was marked during the hearing on the motion to suppress as “Admissibility Hearing Exhibit No.1,” and a copy ofthat exhibit is contained in the Clerk’s Transcript at 5 CT 1545-1626. The same 80-page transcript was also submitted as Exhibit 1 in support of the People’s Opposition to the Motion to Suppress. (See 4 CT 973-1054.) Respondent will cite to the Admissibility Hearing Exhibit in the Clerk’s Transcript in referencing the transcript of the interview. 80 Detective Redmond: Well, some things have come up and ah, we needto talk to you about them, you can stop talking at any time. Gerald Parker: I can’t, like I said, I, J can’t imagine why I would wantto talk with the Costa Mesa Police Department. Detective Redmond: Okay. Um,okay, what had occurred, are you familiar with DNA? Gerald Parker: Yes, a little bit. Detective Redmond: When yougotofprison thelast time, did you have to give them a blood sample? Gerald Parker: Right. Detective Redmond: Okay. Ah, the time before that, how many times did you haveto give up a blood sample before you left the prison? Gerald Parker: I don’t recall, once, twice. Detective Redmond: Once or twice, okay. What ah, what that’s for, it goes into a main data base computer, okay? What also goes into the computer are robberies, rapes, homicides,etc., okay? Ah, weare going to be just night up front with you, instead of beating around the bush, your DNA came up on a couple of Costa Mesa homicides back in 1979, and ... Gerald Parker: I never lived in Costa Mesa. (5 CT 1547-1549.) Detectives then engaged in a lengthy background discussion with Parker that consumed 57 pagesoftranscript. (5 CT 1549-1605.) Detectives then changed the topic of discussion to the DNA evidence matching Parker’s profile. Detective Giesler then asked Parker: Detective Giesler: I mean 17 years is long enough,I think it’s time to talk aboutit, don’t you? Gerald Parker: Oh yeah. Detective Giesler: Why don’t youtell us what happened? 81 Gerald Parker: The thing is, I will reserve the right to speak at anothertime,let’s say I ... this ... Detective Giesler: I’m not going to do anything to violate your rights Gerald, I mean, we read you yourrights and, I’m not going to step on yourtoes.... (5 CT 1610.) Parker continued with the discussion. Detective Giesler noted that she had waited 17 years, and Parker responded: “Yeah. You and a wholelot of other people.” (5 CT 1611 .) When Detective Giesler suggested to Parker that he “get the monkey off his back,” Parker replied: “Yeah, the day is not today though.” Detective Giesler asked him: “Whyis today not the day?” Parker explained: “I can’t take it.” (5 CT 1612.) Parker then attempted to explain his reasons for waiting and engagedin a discussion with detectives about whetherit would be better to wait. (5S CT 1612-1616.) Detectives mentioned Parker could explain what happened and “give somebody the reason why,” as “everybody’s got a reason.” Parker responded: “Yeah, but there’s also a good reason for wanting to wait too.” Parker explained,“this is going to be a long drawn outprocess, the rest of mylife is going out the door....” (5 CT 1615.) Detective Redmondthen asked Parker, “did you expect this day to come?,” and Parkerreplied, “[n]ot really.” Parker went on to note that ironically, he had read Joseph Wambaugh’s book The Blooding when he was“doing time the first go around” and “it snapped my mindquite a bit.” (5 CT 1616.) Detective Giesler asked Parker,“can you tell me why?,” and he responded, “I don’t know.” (5 CT 1618.) Detective Giesler then asked Parkerif he couldtry to tell her why, and whether he knew anyofthese women. Parker answered: “Like I say, think I should wait until later on before....” (5 CT 1618.) Detective Giesler attempted to clarify Parker’s statement: 82 aae ECYRR Detective Giesler: “What do you meanby later on? Are you saying, Lynda comeback and see me? Gerald Parker: No, what I am sayingis, I’m, once again, I know they’re not goingto let me leave this prison, they’! transfer me back to the Orange County jail, when my date of release, supposedly date of release comes up. Detective Giesler: You’re probably right. Gerald Parker: And ah, oh I know the procedure quite well. Detective Giesler: You probably knowit better than I do. Gerald Parker: And ah... Detective Giesler: But I don’t understand what you’re saying to me, are you saying, okay Lynda, when I get to Orange County, come and see me? Gerald Parker: No, no, what I’m saying. Detective Giesler: Are you saying, Lynda, I don’t want to ~ talk to you? I mean, I’m being blunt with you Gerald, be blunt with me. Gerald Parker: I’m goingto be blunt with you. Detective Giesler: Be blunt. I can take it. I’ve got broad shoulders. You wantto tell me to go fuck off, I, you know. Gerald Parker: No, no,this, I, I just need sometimeto call upon myself, to bring, to draw up on somestrength. Detective Giesler: Okay. Gerald Parker: To say what I haveto say. (5 CT 1619-1620.) Detective Giesler told Parker she wouldleave a card for him, and asked, when he got down to Orange County, if she could come and seehim again. Parker responded, “Right, right.” Parker then asked: “Can we,to speak to the family, can wekill the tape please?” Detective Giesler told 83 Parker she would prefer notto turn off the tape-recorder because “[t]he tape keeps us both honest Gerald.” (5 CT 1622-1623.) After telling Parker the tape-recorder wasfor his protection, the detectives asked Parkerif they could keep the tape-recorder on, and Parker replied they should waitfor whenhe was in Orange County. (5 CT 1623.) Parker told the detectives “what you should tell the family, is ah, look towards God. That’s the only person I have left. Have mercy on mysoul.” Detective Giesler asked Parkerif he had any questions, and he replied that he was “pretty much abreast”of the “situation” and “there’s not a wholelot that I can think of nowthat I can say.” (5 CT 1623-1624.) Parker was thentold that the detectives were there to collect physical evidence from him:head hair, pubic hair, and fresh blood, as well as finger and palm prints. Parker indicated that would not be a problem. Detective Giesler then told Parker that while she did not know when,they would talk again, and if he wanted to speak with her when that time came that would be fine, and if he did not, that would be fine too. She concludedthe interview at 11:58 a.m., telling Parker: “Ill be fair with you, you befair with me.” (5 CT 1625.) No promisesor threats were made during the interview.. (1 RT 137.) Parker appearedalert and coherent, and there was nothing unusualabout his appearance or demeanor. The detectives had no difficulty understanding him or communicating with him. (2 RT 225.) The detectives were not aware of anything regarding medications being administered to Parker beyond whathe stated to them during the interview. (1 RT 192-193; 2 RT 227.) During the interview, Parker was asked if he had ever experienced violent tendencies while using PCP and he responded: “I’m on psychotropic medication now for, incidents or, that I experience, I’ve been 84 amenablean? ’ Se etaayantAARMENIA Ab VE Bowe SSH Reith rorNIE BRON Hee Sontag SoinARANEQARE dh oiAE npn aE te experiencing violent tendencies, and, voices for some time.*’ (5 CT 1607.) The detectives did not request, or undertake, to have the prison withhold medication to Parker prior to interviewing him. (1 RT 192-193; 2 RT 227.) Tustin Police Investigator Tarpley spoke with Parkerafter the Costa Mesa detectives completed their interview. (1 RT 145-146.) His interview began at 12:09 p.m. (4 CT 1057.) Investigator Tarpley repeated the Miranda admonition to Parker before interviewing him regarding the Tustin crimes. (1 RT 146; 6 CT 1630-1631.) After being advised of each particular right, Parker was asked if he understood the right. Parker responded“yes” each time he wasasked if he understood. Parker was then asked “[w]ould you like to talk about why I’m here today?” (6 CT 1631.) Parker responded “yes.” No promisesor threats were made. (1 RT 146-147.) Parker was alone in the interview room withInvestigator Tarpley until guards entered after aboutfive or ten minutes to reposition Parker’s handsin front of him, and loosen his handcuffs because he appeared uncomfortable while speaking with Investigator Tarpley and complained aboutarthritis in his shoulders. (1 RT 141, 148; 6 CT 1640-1641) Other than complaining about the handcuffs, Parker did not appearto be having anydifficulties and Investigator Tarpley had no difficulty communicating with him. (1 RT 197.) Investigator Tarpley spoke with Parker about background information such as where he hadlived and his family. (6 CT 1631-1656.) Then Investigator Tarpley showed Parker a photograph of Debora Kennedy. (6 CT 1656.) He asked Parker if he knew why his semen would have been *! Parker also mentioned during his interview with Detective Tarpley on June 14th that he was taking psychotropic drugs. When asked what medication he wastaking “right now,” Parker responded he was taking Melluril and Benadrine. (5 CT 1653.) 85 Sor Si? aaahieteREDFHSavSNR found inside of Ms. Kennedy. (6 CT 1657.) Parker responded that the question had come up with the “other detectives” regarding his DNA matching four cases and it was “hard to believe that it matched four and here’s a fifth. I have no idea .... None whatsoever.” (6 CT 1658-1659.) After more background questions, Investigator Tarpley urged Parker to “do the right thing.” (6 CT 1684.) When Investigator Tarpley asked Parkerif he could dothe right thing for him, at about 12:53 p.m., Parker asked,“Is Costa Mesastill here?” (1 RT 142, 197; 6 CT 1684.) Whentold they were, Parker asked, “Can I use the bathroom and the wecangetthis over, get this over with.” (6 CT 1684.) Detectives Redmond and Giesler returned to the interview room and when Parkerreturned from the bathroom, the three detectives discussed the crimes with Parker until ending their interview at 2:34 p.m. (6 CT 1684- 1685, 1799.) The entire discussion with Parker was tape-recorded.” (1 RT 142-143, 146; Mot. to Suppress, People’s Exh. Nos.3 [transcript of interview], 4, and 5 [audiotapes of interview].) Parker told the detectives that he believed there was a man on death row because of something that Parker did, and “outof all these murders and crimes that I committed over the years, that was the one that bothered me the most, now don’t ask me why...” (6 CT 1685-1686.) Parker explained that while he was in the Orange County Jail for a rape he committed in ” The 172-pagetranscript of the taped interview conducted by Tustin Police Detective Thomas Tarpley, and Costa Mesa Police Detectives Giesler and Redmond on June 14th was marked during the hearing on the motion to suppress as “Admissibility Hearing Exhibit No. 3,” and a copy of that exhibit is contained in the Clerk’s Transcript at 6 CT 1627-1799. The same 172-pagetranscript was also submitted as Exhibit 2 in support of the People’s Opposition to the Motion to Suppress. (See 4 CT 1055-1228.) Respondentwill cite to the Admissibility Hearing Exhibit in the Clerk’s Transcript in referencing the transcript of the interview. 86 1980, he read the newspaper about a Marine whohadbeensent to death row for the murder of his wife in Tustin. Parker recalled she was pregnant at the time and the couple were arguing as he stood outside the window of their home. Parker watched as her husbandleft, got in his car and drove away. While he could notrecall her actual face, she [Mrs. Green] looked like the “lady that I killed.” (6 CT 1687.) Parker explained he did not know he had committed four murders in Costa Mesa; he thoughtit was two. (6 CT 1687-1688) Detective Giesler clarified that one of the women he sexually assaulted and bludgeoned had lived. (6 CT 1688.) Parker admitted attacking Ms. Fry, Ms. Rawlins, Ms. Carleton, Mrs. Green, | Ms. Kennedy, and Ms. Senior. (See 6 CT 1685-1796.) Anaheim police were notified that Parker had confessed to the 1978 murder of Sandra Fry during his interview with detectives from the Costa Mesa Police Department. (1 RT 202, 204.) Anaheim Police Detective Richard Raulston and Sergeant Steve Rodig arrived at Corcoran State Prison® around 10:00 p.m. on June 14, 1996, to interview Parker. (1 RT 204; 7 CT 2043.) The Anaheim investigators met with Parker in an interview room in the maximum security section of the prison at about 10:30 p.m. (1 RT 205, 211.) Parker’s handcuffs were removedinside the interview room. (1 RT 205, 252.) Parker was advised they were there because of information they had received from Costa Mesapolice regarding an unsolved homicide in Anaheim. (1 RT 205-206.) Sergeant Rodig advised Parker of his Miranda rights by reading directly from a card that contained the advisements. (1 RT 207.) Parker responded to each question regarding whether he understoodhisrights affirmatively. (1 RT 209.) * Parker was immediately transferred to Corcoran State Prison because prison policy required he be held in a higher security prison after admitting committing multiple homicides. (1 RT 164, 201-202.) 87 sy sensei ietahteneeAOMORIhenEReemmeRerGAEanRentonon Fo ee ttnmaaantAENS eadANAMGOLRAN Pietesets Stee oe Ee Scene at Parker was askedifhe was willing to talk to the investigators and he said yes. (1 RT 209.) Parker then gave a statement admitting killing Sandra Fry. (1 RT 209-210; 7 CT 2046-2060.) No promisesor threats were made. (1 RT 210-211.) Investigators recorded the discussion with Parker. (1 RT 206.) Parker wasalert, appeared to be in goodhealth, and investigators had no difficulty communicating with him during the interview. (2 RT 253.) When Detective Raulston returnedto the police station at about 4:00 a.m. following the interview he was exhausted. He inadvertently placed the original tape into the copyside of the tape duplicator and the blank tape into the master side which resulted in his erasing a portion ofthe original tape. (1 RT 206.) The portion of the tape that was erased contained the introductionsas well as the Miranda admonition.“ (1 RT 207.) Detective Raulston retunedto interview Parker a second time on June 16, 1996, at about 4:00 p.m. (1 RT 211, 212, 253.) The purpose of the interview wasto correct his mistake from erasing a portion ofthe tape- recorded interview from June 14th. (1 RT 215.) Parker was asked about the first interview with Detective Raulston. He wasaskedifhe rememberedbeing advised ofhis rights and he responded he did remember. He wasthen askedifhe recalled waiving his rights and agreeing to talk to detectives and Parked answered“yes.” (12CT 2079.) Detective Raulston then once again advised Parker of his Miranda rights. After each right was explained, Detective Raulston asked Parker if he understoodthe right, and each time Parkerreplied “yes.” (12 CT 2079-2080.) Parker was then asked “ The 33-page transcript of the remainingportion ofthe taped interview conducted by Anaheim Police Detective Raulston on June 14th was marked during the hearing on the motion to suppress as “Admissibility Hearing Exhibit No. 10,” and a copy ofthat exhibit is contained in the Clerk’s Transcript at 7 CT 2042-2076. Respondentwill cite to the Admissibility Hearing Exhibit in the Clerk’s Transcript in referencing the transcript of the interview. 88 if he was willing to discuss two incidents that occurred in Anaheim in 1978 with investigators. Parker responded “yes.” (12 CT 2080.) Nothreats or promises were made during the interview. (1 RT 213.) The interview was tape-recorded. (See 7 CT 2077-2114.) Parker’s appearance wasthe same as during Detective Raulston’s prior interview of him. There were nosignsof illness, he was very alert, and Detective Raulston had no difficulty communicating with him. Parker’s mood was the sameas duringthe prior interview,i.e., he was very amicable and very friendly. (2 RT 254.) Detective Raulston interviewed Parkera third time on June 19, 1996, at about 5:45 p.m. (2 RT 255; 7 CT 2135.) The entire interview wastape- recorded. (2 RT 256; 7 CT 2134-2142.)Duringthethird interview, Detective Raulston was accompaniedby Sergeant Rodig. (2 RT 255; 7 CT 2135.) Parker was advised of his Miranda rights, and after each right was explained he was asked if he understood. Each time, Parkerreplied “yes.” (7 CT 2136.) Parker was advised the investigators wanted to discuss a couple of cases Parker might be involvedin, and askedif he would like to discuss those cases. Parker responded yes. (7 CT 2136.) *° The 46-pagetranscript of the interview conducted by Anaheim Police Detective Raulston on June 16th was marked during the hearing on the motion to suppress as “Admissibility Hearing Exhibit No. 12,” and a copy of that exhibit is contained in the Clerk’s Transcript. (See 7 CT 2077- 2114.) Respondentwill cite to the Admissibility Hearing Exhibit in the Clerk’s Transcript in referencing the transcript of the interview. © The 7-page transcript of the interview conducted by Anaheim Police Detective Raulston on June 19th was marked during the hearing on the motion to suppress as “Admissibility Hearing Exhibit No. 17,” anda copy of that exhibit is contained in the Clerk’s Transcript. (See 7 CT 2077- 2114.) Respondent will cite to the Admissibility Hearing Exhibit in the Clerk’s Transcript in referencing the transcript of the interview. 89 oa etane kopangRAEtRRtaREe Bae ang miteAeamamntoaebaastrncnpens out oF Parker appeared healthy and Detective Raulston did not notice any differences in his demeanor between the interviews on June 14th, 16th, and 19th. Parker wasvery alert and very amicable duringall three interviews by Detective Raulston. (2 RT 255.) Parker remarked to Detective Raulston during the third interview that after he made statements to the Costa Mesa police detectives, “It was like a load of weights beinglifted offmy shoulders.” (2 RT 257; Mot. to Suppress, People’s Exh. No. 17 at p. 5.) Parker was interviewed again by Detective Redmondon June 18, 1997. (1 RT 164.) Detective Redmond was accompanied by Detective Giesler, Sergeant Tom Boylan and evidence technician Bruce Radomski. (1 RT 165; 7 CT 1802.) After traveling to San Quentin and interviewing Mr. Green, who was serving time for the crime Parker committed against Mrs. Green, Detective Tarpley had requested that Detective Redmond reinterview Parker regarding the Green case. (1 RT 165.) Parker was once again advised of his Miranda rights. (1 RT 166; 7 CT 1804.) Parker wasaskedif he wishedto talk to investigators about what happened in Costa Mesa in more detail. (7 CT 1804-1805.) Parker replied,“Yes, I have no problem with that.” (7 CT 1805.) The Miranda advisement and subsequentinterview were video recorded. (1 RT 166.) No promises or threats were made. (1 RT 167.) At the hearing to suppress Parker’s statements to police, the prosecution presented testimony from Dr. Vina Spiehler regarding Parker’s medications.*’ Dr. Spiehler reviewed prison medical and pharmacy records pertaining to Parker. (2 RT 234.) She also reviewed audio- and videotapes “7” Dr. Spiehler received her Ph.D. in pharmacology and toxicology from the Medical School at University of California at Irvine and is board certified in forensic toxicology. (2 RT 229-230.) Dr. Spiehler’s academic and practical training has included researching antipsychotic medications. (2RT 232.) 90 pertaining to interviews of Parker on June 14th, 16th, and 18th, 1996, by police. (2 RT 234.) Parker began receiving an antipsychotic medication named Mellaril, whichis the chemical name for Thioridazine, on April 22, 1996. (2 RT 235-237.) Mellaril is administered to reduce symptoms of mental illness. (2 RT 236.) Possible side effects can include slow involuntary movements such as facial twitches or larger involuntary movementsordifficulty with movementin general. (2 RT 236-237.) Parker was also receiving four other medications that were not antipsychotic medications: Depakote, Cogentin, Vasotec, and Clonidine. (2 RT 236.) Depakoteis an anti- epileptic medication to reduce convulsions andseizures andis prescribed for mania and bipolar disorders. (2 RT 237.) Dr. Spiehler noted that Mellaril is intended to be given along with Cogentin since Cogentin is administered to reduce the side effects from Thioridazine. (2 RT -237- 238.) Vasotec is a blood pressure medication that acts in the body, not in the brain so it would not affect the other medications being administered to Parker. (2 RT 237-238.) Clonidine is another blood pressure medication that does have someeffects centrally in the brain as it reduces blood pressure by reducing catecholamine system activity. (2 RT 237.) Clonidine can haveinteraction with the other medications that were administered to Parker but the Physician’s Desk Reference indicates it is acceptable to combine the medications. (2 RT 238.) Both Mellaril and Depakote are typically administered in the evening before bedtime because both produce pronounced drowsiness. (2 RT 238- 239.) The prison records indicated that the medications were not to be administered until after Parker was interviewed by police, and the pharmacy records indicated the medications were not administeredatall on June 14, 1996. (2 RT 239.) The nurse’s notes indicated that Parker was given his standard dosage of 150 milligrams of Mellaril by mouth at 11:41 91 Ceee p.m. on June 14, 1996. (2 RT 240.) Dr. Spiehler opined there would be no effect from delaying a dosage of Mellaril for several hours. (2 RT 240.) A delay of four hours in administering the medication would not impact the effectiveness of the medication in treating mentalillness. (2 RT 241.) Dr. Spiehler explained that the lack of any effect from the medication being delayed a few hours is because it takes a number of weeksfor the medication to have an effect on a person because it is changing the balance in the brain neurochemicals and receptors for the neurochemicals. (2 RT 240-241.) Dr. Spiehler opined that Parker soundedalert, oriented and responsive during the interview on June 14, 1996. (2 RT 244-245.) On June 16, 1996, Dr. Spiehler noted that Parker’s speech was low, slow, and sounded slurred.(2 RT 245.) She observedthat Parker appeared calm,alert, oriented and responsive on the videotapes.” (2 RT 246.) B. Parker Impliedly Waived his Miranda Rights Parkerclearly understood his rights based uponhisaffirmative response following explanation of each right that he understood eachright. Moreover, his response “I can’t imagine why I would wantto talk to the “8 When Parker was interviewed on June 16, 1996, he wasreceiving Mellaril. (2 RT 241.) When he wasinterviewed on June 18, 1996,his medication had been changed from Mellaril to Haldolas a substitute for Mellaril. (2 RT 241.) Haldol is an antipsychotic medication given to reduce symptomsofmental illness and to balance the chemical messengers in the brain. (2 RT.241.) Side effects of Haldol are drowsiness, rapid heart beat, lower blood pressure, and sometimesvision problems. (2 RT 242.) Parker was administered Haldolat 5:00 p.m. on June 18, 1996. (2 RT 243.) ”? The defense consulted with Dr. Sharma, a psychiatrist, regarding Dr. Spiehler’s testimony and ultimately did not call any expert to testify at the hearing on Parker’s motion to suppress evidence. (2 RT 247-248, 261- 262, 264, 266-267.) 92 SEY cetNRAEOA oneRminerMARRSAPOPOS HCUnINLaaeNORNS Hote fae pp teete get tees anunmencmaeNgem uRAineehsagan Bek eee Costa Mesa Police Department” when askedifhe wanted to speak with the detectives shows a clear understanding that he fully understood it was his choice whetheror not he wanted to speak with the detectives. Moreover, Parker displayed no reluctancein speaking with detectives and instead willingly engagedin discussionsto find out what information they had regarding him and the crimesintheircities. The law is clear that a suspect need notutter any particular words in order to waive the protections afforded by Miranda. Therelevant inquiry is whether the defendant in fact knowingly and voluntarily waived the rights delineated in Miranda. (North Carolina v. Butler, supra, 441 U.S. at p. 373; People v. Whitson, supra, 17 Cal.Ath at p. 246.) Accordingly, a valid Miranda waiver may be express or implied. (/d. at p. 247.) Waiver can be inferred from the actions, words, or other course of conductofthe person interviewed. (/d. at p. 246.) A defendant’s willingness to answer questions after acknowledging an understanding of the Mirandarights is sufficient to constitute an implied waiver. (People v. Medina (1995) 11 Cal.4th 694, 752; People v. Sully (1991) 53 Cal.3d 1195, 1233.) As this Court has observed: Once the defendant has been informed ofhis rights, and indicates that he understandsthoserights, it would seem that his choosing to speak and not requesting a lawyeris sufficient evidence that he knowsofhis rights and chooses notto exercise them. (People v. Johnson (1969) 70 Cal.2d 541, 558, overruled on different grounds in People v. DeVaughn (1977) 18 Cal.3d 889, 899,fn. 8.) If the totality of the circumstances surroundingthe interrogation reveals both an uncoerced choice and the requisite level of comprehension, a trial court may properly conclude that Miranda rights have been waived. (Moran v. Burbine, supra, 475 U.S. at p. 421.) Onceit is determined that the suspect’s decision not to rely on his rights was uncoerced,thathe atall 93 times knew he could stand mute and request a lawyer, and that he was aware of the State’s intention to use his statements to secure a conviction, the analysis is complete and the waiveris valid as a matter of law. (/d. at pp. 422-423; see also People v. Whitson, supra, 17 Cal.4th at p. 247.) Parker was advised of and expressly waived his Mirandarights in the five interviews with investigators that followedhis initial interview with Detectives Giesler and Redmond. Notably, the first subsequent interview wherein Parker expressly waived his Mirandarights occurred prior to Parker confessing his crimes to Detectives Giesler and Redmond. Investigator Tarpley advised Parker of his Miranda rights before being rejoined by Detectives Giesler and Redmond, and obtained an express waiverof those rights. (1 RT 146; 6 CT 1630-1631.) Later that same evening, after being transferred to Corcoran State Prison, Parker was again advised of his Miranda rights by Anaheim Police investigators, and once again, expressly waivedhis rights. (1 RT 207, 209.) Twodayslater, Parker was advised of his Miranda rights again by Anaheim Police investigators and he once again expressly waivedhis rights. (12 CT 2079-2080.) The following day, Parker was again advised of his Miranda rights by Costa MesaDetectives Giesler and Redmond. (1 RT 166; 7 CT 1804-1805.) Whenasked if he would speak to them, Parker “Yes, I have no problem with that.” (7 CT 1805.) The next day, Parker was once again advised of his Miranda rights by Anaheim investigators, and he again expressly waivedhis rights. (7 CT 2136.) Parker’s prior experience with the criminaljustice system also evidences his awareness and understandingofhis rights to counsel and to remain silent. (See People v. Hawthorne, supra, 46 Cal.4th at p. 87.) Before speaking with detectives, Parker had pled guilty to felonies in three previous cases — includingassaulting a fellow inmate. (See 10 CT 3176- 3189; 10 RT 2170, 2254.) In discussing the lack of likelihood of his being 94 released whenhis current prison term was up in 23 days once his DNA had been connected to multiple homicides, Parker himself acknowledged that he knew the procedures “quite well.” (5 CT 1619-1620.) The numberof Miranda advisements and express waivers, combined with the extensive experience Parker had with the criminaljustice system, clearly demonstrate that he knowingly and voluntarily waivedhis rights before talking to Detectives Giesler and Redmond. Parker complains he did not waive his Miranda rights because he told the police,“I can’t imagine why I would wantto talk to the Costa Mesa Police Department.” (AOB 179-180.) Parker argues that his statement was a rhetorical question that would be commonly understood to mean “no.” (AOB 180.) He claims the words he chose were inconsistent with a present willingness to freely and voluntarily discuss the case with police andthat any reasonable investigator would have understood that he was unwilling to talk with them. (AOB 180, citing People v. Crittenden (1994) 9 Cal.4th 83, 129.) Parker’s reliance on People v. Crittenden, supra, 9 Cal.4th at page 129, is unavailing. In Crittenden, the defendant responded to Miranda advisements by asking, “Did you say I could have a lawyer?”and the evidence showedthat the defendant had not been able to entirely hear the admonitions because of being disruptive. (People v. Crittenden, supra, 9 Cal. 4th at pp. 124, 131.) In other words, the defendant in Crittenden wasactually inquiring about what he had beentold as opposed to posing a rhetorical question. Ignoring that Parker’s question wasrhetorical, Parker reasons that clarifying questions regarding whetherhe intended to waive his Miranda rights should have been asked in responseto his statement. (AOB 180.) He complains that Detective Redmond’s response wasnotto clarify, but merely “to skirt the issue of invocation altogether.” (AOB 180, citing 95 People v. Johnson, supra, 6 Cal.4th at p. 27 and People v. Russo (1983) 148 Cal.App.3d 1172, 1177.) Parker’s reliance on People v. Johnson, supra, is misplaced. In Johnson, this Court found the comment“maybe I should talk to a lawyer” was “troublesome” but foundthe trial court’s determination that it was not an invocation of the right to remain silent was supported by substantial evidence given the detective’s immediate effort to clarify the remark. (People v. Johnson, supra, 6 Cal.4th at pp. 28, 30.) Parker’s reference to People v. Russo, supra, is also unavailing as the defendant in Russo wastold as a part of the admonitions from police that if he did not commit the crime he would not need an attorney and his statement was “TI don’t know if I should have a lawyerhere or what.” (People v. Russo, supra, 148 Cal.App. 3d 1172, 1174, 1177-1178.) Parker’s comment“I can’t imagine why I would wantto talk to the Costa Mesa Police Department” is not an ambiguous commentthat warranted clarification as to whether Parker was invokinghis right to remain silent. Whentold at the outset that his DNA had been connected to homicides in Costa Mesa, Parker quickly interjected he had neverlived in Costa Mesa. Parker fully understoodhis rights and was intent on finding out whatinvestigators knew abouthis crimes.’ Thetotality of the circumstances makesit clear that Parker impliedly waivedhis rights in speaking with Detectives Giesler and Redmond. *° While Parker said at the beginning of his discussion with Detective Giesler and Redmondthat he knewa “little bit” about DNA (see 5 CT 1548), he subsequently admitted much more extensive knowledge of DNA.when he admitted that he had read Joseph Wambaugh’s book The Blooding when he was“doingtimethe first go around” and “it snapped my mind quite a bit.” (5 CT 1616.) 96 C. Parker Had Not Invoked His Miranda Rights When Detective Tarpley Interviewed Him Regarding Crimes Committed in Tustin Alternatively, Parker contends that even if he did waive his Miranda rights at the outsetofhis initial interview with Detective Redmond, he invokedhis right to remain silent repeatedly and unambiguously during that interview. (AOB 180-184.) Parker claims that he unambiguously invoked his right to remain silent after Detective Giesler asked him to tell her what happened,and hereplied: “I will reserve the right to speak at another time.” (AOB 182, quoting 5 CT 1610.) The statement Parkercites followed detectives starting to focus on the crimes to which Parker’s DNA had been linked and was madeafter Parker agreed with Detective Giesler whenshestated “I think it’s time to talk about it, don’t you?” (5 CT 1610.) In context, Parker’s statement did not indicate Parker was no longer willing to talk with the detectives. At most, it meant he did not want to discuss the subject of details relating to the crimes at that moment. Parker argues that Detective Giesler understood his statement about reserving the right to speak to be an invocation ofhis right to remain silent whenshe responded: “I’m not going to do anything to violate your rights Gerald. I mean weread youyour rights, and I’m not going to step on your toes.” (/bid.) To the contrary, Detective Giesler was confirmingthat the detectives were adhering to Parker’s understanding of the process — which was that he could decide whether and when to speak to the detectives about whathedid to the victims in the case they were investigating. Parker continued speaking freely with detectives after Detective Giesler’s statement gave him every opportunity to indicate an intent to stop speaking with detectives. Parker contendshe also invokedhis right to remain silent during the interview when hestated: “The dayis not today.” And, when asked, 97 stot eubeenlinkMAGPASeatBELRARASEIRAE SOREN ge “why?,” he replied, “I can’t take it.” (AOB 183, fn. 46, citing 5 CT 1612.) Parker was merely explaining his reasoning for choosing to wait to explain things to the detectives. Parker also contendsit was an invocation ofhis right to remain silent when detectives explained it would be good for Parker to “get it off his chest,” and Parker replied: “Yeah but there’s also a reason for wanting to wait too.” (AOB 183, fn. 46, citing 5 CT 1615.) Parker also relies on his: “Like I say, once again,there’s, there’s I think for me, there’s a time and a place for saying what I have to say, and in reference to what happened,I, there’s nothing else that I can tell you.” (AOB 183, fn. 46, citing 5 CT 1616-1617.) Additionally, he argues he invokedhis rightto remain silent when hetold detectives: “Like I say, I think I should wait until later on before ....” (AOB 183, fn. 46, citing 5 CT 1618.) Lastly, he relies on his statement: “I just need some timeto call upon myself, to bring, to draw upon somestrength... to say what I have to say.” (AOB 183, fn. 46, citing 5 CT 1620.) Noneofthese statements constituted an invocation of Parker’s right to remainsilent. In context, Parker never conveyed any intentionother than wanting to speak with detectives. He was explaining and discussing the pros and cons of waiting with detectives. At most, Parker’s statements evidencehis altering the course of questioning. He clearly remained willing to talk throughouthis discussions with investigators. He never soughtto stop questioning altogether. (See People v. Clark (1992) 3 Cal.4th 41, 122.) Parker’s comments were not an invocation of his right to remainsilent. (See People v. Rundle, supra, 43 Cal.4th at p. 116, overuled on other grounds, People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 11.) Parker attempts to distinguish his case from People v. Rundle because in Rundle the defendant had already confessed to murder before attempting to stop the interview because he had a headacheafter expressing no prior reluctance to speak with police. (AOB 183.) Parker argues that he 98 expressed reluctance to speak with investigators from the outset, did not confess to any crime and continued to deny responsibility. (AOB 184.) Asdetailed above, there was no reluctance to speak with Detectives at any time. D. Detective Tarpley Did Not Improperly Reinitiate Questioning In People v. Fioritto (1968) 68 Cal.2d 714, 719, this Court held that the California Constitution does not permit police to reinitiate an interrogation after a suspect has invokedhis right to remain silent even if police repeat Miranda warnings. Subsequently, the United States Supreme Court determinedthat police may lawfully reinitiate questioning provided the suspect’s rights are “scrupulously honored.” (Michigan v. Mosley (1975) 423 U.S. 96 [96 S.Ct. 321, 46 L.Ed.2d 313].) California did not adopt the rule enunciated in Michigan v. Mosley. (People v. Pettingill (1978) 21 Cal.3d 231, 251.) As Parker correctly notes, Proposition 8 did not retroactively abrogate application of the Fioritto rule for secondary investigations to acts occurring before enactmentofthe initiative on June 9, 1982. (AOB 185-186, citing People v. Smith (1983) 34 Cal.3d 251, 258, and People v. Weaver (2001) 26 Cal.4th 876, 921, fn. 5 [the date of the crime andnot the confession is the controlling date for purposes of application of Proposition 8].) Accordingly, it would be a violation of Fioritto-Pettingill for Detective Tarpley to interview Parkerif he had actually invokedhis right to remain silent at any time during his interview with Detectives Redmond and Giesler absent Parkerinitiating contact with detectives. Moreover, any violation of Fioritto-Pettingill would be unaffected by Parker having been readmonishedand waiving his Miranda rights. However, inasmuch as Parker never invoked his Mirandarights 99 prior to Detective Tarpley interviewing him,it was not improper for him to question Parker. E. Any Failure to Exclude Parker’s Statements Did Not Prejudice Him Wherethe erroneous admission of statements obtained in violation of Miranda is harmless beyonda reasonable doubt, a defendantis not entitled to relief. (People v. Davis, supra, 46 Cal.4th at p. 539.) Parker contends he was prejudiced by the admission of his statements to police.*’ (AOB 188- 190.) To the contrary, Parker would not have enjoyed a more favorable outcomeevenif his statements to police had been excludedas the evidence of his guilt independentof his statements was overwhelming. Parker’s DNA wasfound onall of his victims’ bodies with the exception of Ms. Carleton. The probability of a random match with the DNAprofile on the semen recovered from Ms. Fry’s body was | in 6.9 million for Caucasians and | in 4.4 million for African-Americans. (8 RT 1645-1646.) The probabilities for a random match with the general population with the semen from the string of the tampon in Ms. Rawlins’ body was | in 670 billion, and 1 in 404 billion for African-Americans. (8 RT 1613-1617.) Parker’s DNAprofile matched the DNA detected in sperm fractions from vaginal swabs taken from Mrs. Green. (8 RT 1621- *! In the guilt phase, the prosecution did notoffer all of the interviews with Parker into evidence. Instead, it offered a redacted 77-page transcript of the June 14th interview by Detectives Giesler and Redmond (Trial Exh. No. 93; see 8 CT 2466-2543), a redacted 130-page transcript of the June 14th interview by Detectives Tarpley, Giesler and Redmond(Trial Exh. No. 95; see 9 CT 2545-2674), a redacted 193-page transcript of the June 18th interview with Detectives Giesler and Redmond and Sergeant Boyland (Trial Exh. No. 103; see 9 CT 2681-2873A), and a redacted 25- page transcript of the June 16th interview by Detective Raulston (Trial Exh. No. 24; see 8 CT 2439-2464.) 100 1624, 1649-1653.) The same DNAprofile and sameprobabilities applied to the semen found on the bodies ofMs. Kennedy and Ms. Senior. (8 RT 1574, 1613-1617.) Parker argues his words contributed to the jury accepting the validity of the DNA evidence which wasthe only evidence besides his confessions linking him to the murders of Kimberly Rawlins, Debora Kennedy, and Chantal Green. (AOB 189.) Parkerfails to explain whythe jury would require any assistance from Parker’s confessions to credit the validity ofDNA evidence. Moreover, the damning DNA evidence wasnotthe only evidence linking Parkerto theseries of brutal attacks. Parker’s fingerprint wasleft at the point of entry in Sandra Fry’s apartment, and his palm print wasleft near the point of entry into Debra Senior’s apartment. (7 RT 1270-1271, 1291-1294, 1302-1305, 1452, 1460.) Beyond the fingerprint evidenceat two scenes and the DNAevidence, there wasalso a similarity in the manner in which Parker’s crimes were committed. While the amountof force continued to escalate over the series of attacks, all of Parker’s victims were struck multiple times in the head with a blunt object. The crimes in Costa Mesa occurred in close proximity to each other. The attacks on Ms. Rawlins and Ms. Carleton occurred on the samestreet (307 and 224 AvocadoStreet) in Costa Mesa. (See Statement of Facts, supra.) The crimes in Tustin also occurred in close proximity to each other. Considering the totality of the evidence against Parker independent of his statementsto police, it is clear beyond a reasonable doubt that he would have been convicted even if his statements to police had been excluded. 101 1 Teneeyabesrlttas eA EMRRCmCEOUentsea FE aE a ee eeee Ill. THE TRIAL COURT PROPERLY REFUSED TO INSTRUCT THE JURY WITH CALJIC NOs. 4.30 AND 4.31 REGARDING THE DEFENSE OF UNCONSCIOUSNESS Parker contends his conviction and death sentence must be reversed because he was deniedhis constitutional rights to a jury trial, due process of law, a reliable determination of guilt, and to present a defense whenthetrial court refused his request to instruct the jury with CALJIC Nos. 4.30 and 4.31 on the defense of unconsciousness. (AOB 191-202.) Thetrial court did noterr in refusing the instructions as there was no substantial evidence presented to the jury supporting a defense of unconsciousness. Moreover, the jury rejected, under properinstructions, any suggestion that Parker was impaired at the time of the murders. For this reason, Parker could not demonstrate prejudice even assuming thetrial court erred in failing to instruct on the defense of unconsciousness. Unconsciousnessis ordinarily a complete defense to a charge of criminal homicide. (Pen. Code, § 26; People v. Halvorsen (2007) 42 Cal.4th 379, 417; People v. Abilez (2007) 41 Cal.4th 472, 516; People v. Ochoa (1998) 19 Cal.4th 353, 423.) However,if the state of unconsciousnessis induced by voluntary intoxication, the lack of consciousnessis not a complete defense and it does not excuse the homicide. (Pen. Code § 22; People v. Halvorsen, supra, 42 Cal.4th at p. 417; People v. Abilez, supra, 41 Cal.4th at p. 516; People v. Ochoa, supra, 19 Cal.4th at p. 423.) Where the defendant was voluntarily intoxicated, the requisite element of criminal negligence is deemedto exist regardless of whether the defendant was unconsciousat the time of the killing, and the defendantis guilty of involuntary manslaughter. (People v. Abilez, supra, 41 Cal.4th at p. 516; People v. Ochoa, supra, 19 Cal.4th at p. 423.) 102 Unconsciousness within the meaning of Penal Code section 26 does not mean the defendantis in a comaor unable to walk. (People v. Halvorsen, supra, 42 Cal.4th at p. 417.) Unconsciousnesscan exist “where the subject physically acts in fact but is not, at the time, conscious of acting.’”” (Ibid.; People v. Ochoa, supra, 19 Cal.4th at p. 423, quoting People v. Kelly (1973) 10 Cal.3d 565, 572.) Parker requestedthe trial court instruct the jury with standard CALJIC jury instruction Nos. 4.30 (Unconscious Act — Defined — Burden of Proof) and 4.31 (Presumption of Consciousness). (8 RT 1798.) These requested standard jury instructions stated: | A person who while unconscious commits what would otherwise be a criminal act, is not guilty ofa crime. This rule of law applies to persons who are not conscious ofacting but who perform acts while asleep or while suffering from a delirium of fever, or because ofan attack of [psychomotor] epilepsy, a blow on the head,the involuntary taking ofdrugs or the involuntary consumption ofintoxicating liquor, or any similar cause. Unconsciousnessdoes not require that a person be incapable of movement. Evidence has been received which may tend to show that the defendant was unconsciousat the time and place of the commission ofthe alleged crime for which [he][she] is here on trial. If, after a consideration ofall the evidence, you have a reasonable doubt that the defendant was consciousat the time the alleged crime was committed, [he][she] must be found not guilty. (9 CT 2889 [CALJIC No. 4.30], emphasis added.) If the evidence establishes beyond a reasonable doubtthat at the time of the commissionofthe alleged crime the defendant acts as if [he][she] were conscious, you should find that [he][she] was conscious, unless from all the evidence you have a reasonable doubtthat the defendant was in fact consciousat the time of the alleged crime. oO 103 If the evidenceraises a reasonable doubt that the defendant wasin fact conscious, you must find that [he][she] was unconscious. (9 CT 2890 [CALJIC No.4.31].) There must be substantial evidence that a defendant was unconscious before he is entitled to have the jury instructed on a defense of unconsciousness. (People v. Halvorsen, supra, 42 Cal.4th at p. 418.) “If the defense presents substantial evidence of unconsciousness, the trial court errs in refusing to instruct on its effect as a complete defense.” (/d.at p. 417.) Thetrial court did noterr in refusing to instruct with CALJIC Nos. 4.30 and 4.31 on unconsciousness as a complete defense because of the lack of substantial evidence presented to the jury that Parker was unconscious when he committed the charged offenses. In discussing the proposedinstructions, the prosecutor indicated that CALCIIC Nos. 4.30 and 4.31 had no application because Parker’s statements to police that had been admitted into evidence involvedhis voluntary consumption of alcohol. (8 RT 1799.) Thetrial court asked if there was any evidence other than the defendant voluntarily ingesting drugs or alcoholthat the defense wasrelying on in requesting instruction with CALJIC Nos. 4.30 and 4.31. (/bid.) In response, Parker’s counsel argued that it was possible that, because of the voluntary ingestion of alcohol and drugs, at some point the continued consumption of alcohol and drugs by Parker resulted in an involuntary ingestion of alcohol and drugs. (8 RT 1799-1800.) Counsel acknowledgedthat there had been no expert testimony to support the contention that at some point ingestion of alcohol and drugs could render subsequent ingestion of alcoholand drugs involuntary, but argued there were “articles” discussing the involuntary nature of alcohol and drug abuse. (8 RT 1800.) Thetrial court noted the absenceof any expert testimony to support the theory that consumption of 104 alcohol and drugs by Parker became other than voluntary. The request for instruction with CALJIC Nos. 4.30 and 4.31 was denied bythetrial court based on insufficient evidence to support giving the instructions. (8 RT 1800.) In addition to being unsupported by any evidence, the defense theory that voluntary consumption of alcohol and drugs became involuntary prior to murdering his victimsis legally unsupportable. The voluntary consumption of alcohol and/or drugsis attributed to the defendant’s negligence suchthat it cannot serve as a complete defense to criminal liability for a homicide. (People v. Ochoa, supra, 19 Cal.4th at p. 423.) Defensetrial counsel’s suggestion that at some point Parker was so intoxicated due to the voluntary consumption of alcohol and drugs that additional intoxication was other than voluntary cannot withstand scrutiny. The distinction Parker attempted to draw regarding his voluntary consumption of alcohol is completely at odds with the definition of unconsciousness within the meaning of Penal Codesection 26. Onappeal, Parker apparently recognizes the lack of both factual and legal support for the theory advanced belowsince he has chosento rely instead on an argument never advanced below. Parker now arguesthat the trial court misapprehendedhis statements to police because one ofhis statements was subject to being interpreted as evidence that he was unconsciousat the time of his crimes. As the basis for his request for instruction on unconsciousness as a complete defense to the charged crimes, Parker cites to his statement to Detective Tarpley wherein he referenced “blackouts.” (AOB 199-200,citing 9 CT 2580-2581.) The statement waspart of a discussion wherein Investigator Tarpley showed Parker a photograph of Debora Kennedy and asked him if he had any idea why Parker’s semen would have been foundinside of her. (9 CT 2571.) Parker said he had no idea. (9 CT 2572.) As the discussion continued, 105 Parker interjected his voluntary abuse of drugs and alcoholas a possible explanation as to how he could have killed someonebutnot recalled doing SO. Investigator Tarpley: Okay, um, have youeverkilled anybody in your entire life? Gerald Parker: If I have, that’s something I’m not knowledgeable about. Investigator Tarpley: You might have killed somebody, but you just don’t have knowledgeofit today? Gerald Parker: True. Investigator Tarpley: Okay, and that would be because of drugs and um... Gerald Parker: Drugs and alcoholuse. I, I have been a drug and alcohol user for years. I just abuse, abuse over and over. [tape changed and Parker confirms nothing said while tape in recorder was changed] Investigator Tarpley: Okay. Um, okay,the last thing I think wetalked about was that you might have a done a homicide, but ifyou did do it, you don’t have any knowledge of it. Gerald Parker: Right. Investigator Tarpley: It would have been when you were underthe influence of drugs or something like that? Gerald Parker: Right. Investigator Tarpley: Gerald, I feel comfortable talking to you andI think you feel comfortable um,talking to me. Gerald Parker: Correct. Investigator Tarpley: Okay? Um,I’ve got a jobto do, and I’m sure you’re aware ofthat, okay, and I do have an obligation to this girl’s um, family, and I appreciate you know,giving them 106 the message that they should look to God and everything, um, you lived close to her, okay. You lived practically almost on the samestreet as her. Gerald Parker: Right. Investigator Tarpley: You might have done,is it possible that you might have done somethingto herthat today,that if you had it to do over again, you wouldn’t do? Gerald Parker: I hope to God not, you know,like I said, I never, I can’t recall ever seeing this woman and I don’t think SO. Investigator Tarpley: Would it be possible that early in the moming one, one day in October, 1979, that you might have goneinto a ah, two story apartment, gone in through the ground floor, and found a womanin bed and, might have attacked her, but just might not rememberher, um, because of the condition that you were in? Would that be possible? Gerald Parker: J?’s possible. Investigator Tarpley: Okay. Gerald Parker: And the reason why I sayit’s possible because, just because what some ofthepeople that I have known have told me about. I, I have friends that told me that I black out sometimes and say things, have said things and done things that I don’t recall, you know,that they said I did, I don’t know,I... (9 CT 2580-2583, emphasis added.) Parker contendshis self-serving commentto police about friends indicating he sometimessaid and did things he did notrecall, and his friends telling him that he would “blackout” was sufficient to require the trial court to instruct on unconsciousnessas a complete defense to the charged crimes. Parker argues that any doubts regarding the sufficiency of the evidence supporting his unconsciousness defense should be resolved in his favor — particularly in a capital case. (AOB 198,citing People v. Wilson (1967) 66 Cal.2d 749, 762-763.) Parker’s point is unavailing 107 because his “blackout” commentdoesnot present anything to which a benefit of the doubt could be accorded. There was never any connection made by the defense about the effect of drugs and alcohol on Parker’s crimes other than what he explained to Investigator Tarpley: it impededhis ability to get an erection when attempting to rape his victims. (9 CT 2608.) Evenifthe “blackouts” are assumedto be unrelated to Parker’s voluntary abuse of drugs and alcohol, his self-serving hearsay comment about “blackouts” is not substantial evidence supporting the request to instruct with CALJIC Nos. 4.30 and 4.31. A defendant’s “professed inability to recall the event, without more, [is] insufficient to warrant an unconsciousnessinstruction.” (People v. Rogers (2006) 39 Cal.4th 826, 888.) Parker’s showing below did not even rise to the inadequate level of a claimedinability to recall. This is because Parker’s initial self-serving claim of a lack of recollection was followed by detailed confessions to six murders whose commission evidenced sophisticated planning and premeditation. His recall of his crimes, even seventeen years later, included accurate depictions of each crimescene, descriptions of his victims, and minute details that included the location of furniture, appliances, or his victim’s belongings. The defense never offered any evidence whatsoeverto refute the evidence that Parker’s mentalstate was oneof obviousclarity. The comment about Parker’s friends relating things he had done or said that he could no longer remember obviously did not include his crimes against Sandra Fry, Kimberly Rawlins, Marolyn Carleton, Chantal Green, Debora Kennedy, and Debra Senior. As this Court found in Halvorsen: Defendant’s own testimony makesclear that he did not lack awarenessofhis actions during the course of the offenses. The complicated and purposive nature of his conduct in driving from place to place, aiming at his victims, and shooting them invital 108 areas of the body suggests the same. That he did not, by the time oftrial, accurately recall certain details of the shootings does not support an inference he was unconscious when he committed them. . (People v. Halvorsen, supra, 42 Cal.4th at p. 418.) The evidencein this case did not evenrise to the level this Court found lacking in Halvorsen,as the evidencein this case did not include Parkertestifying at trial to a lack of recall. Instead, the evidence consisted of Parker’s statements to police which includedhis recalling in detail the same rape/murderthat prompted Parker to interject his voluntary abuse of alcohol and drugs andhis vague reference to “blackout.” Specifically, Parker wasable to recall that Debora Kennedy wasonthe floor in her apartment watchingtelevision over 16 years earlier, when he entered through a window. (9 CT 2609.) He recalled taking a mallet out of a pick- up truck parked in front of another apartment that was about two doors down from Ms. Kennedy’s apartment. (9 CT 2610.) He wasable to recall that he had raped Ms. Kennedyandejaculated inside of her. (9 CT 2612.) In addition to People v. Wilson, supra, Parker relies upon People v. Bridgehouse (1956) 47 Cal.2d 406, overruled on other grounds, People v. Blakeley (2000) 23 Cal.4th 82, 89, where the defendant’s testimony characterized his action as “distorted by a haze of mental void” and claimed a “hazy” and “very vague recollection.” (AOB 198,citing People v. Bridgehouse, supra, 47 Cal.2d at p. 410.) Similarly, in People v. Wilson, supra, the defendanttestified he did not remembershooting his victim. (People v. Wilson, supra, 66 Cal.2d at p. 762.) As this Court has noted, “in both Wilson and Bridgehouse, the defendantstestified to a mentalstate consistent with unconsciousness and with prior statements to police.” (People v. Halvorsen, supra, 42 Cal.4th at p. 418.) Parker’s statements to police do not reach the defense showing made in eitherBridgehouse or Wilson. 109 The evidence of unconsciousnessrelied upon on appealin this case is also less than that found insufficient for instruction on unconsciousness in Rogers, as the defendant in Rogers had at least professed a lack of recall about his crimes. In contrast, the evidence in this case consists solely of Parker’s statements to police — where an initial claim of no knowledgeis then followed by remarkable recall regarding details of his crimes notwithstanding the passage of over 16 years before DNAtesting enabled authorities to connect his crimes to each other, and then to Parker. In addition to Parker’s specific recollection in 1996 regarding raping and murdering Ms. Kennedyright after making a vague reference to “blackout[s],” Parker also displayed remarkable recall regarding his murder of Sandra Fry in 1978. Parker described how heentered her apartment complex, and correctly recalled that he heard music playing inside her apartment. (8 CT 2244-2449; 7 RT 1273.) He rememberedthat he climbed inside the apartment through a bedroom window. (8 CT 2447-2448.) He recalled how petite Ms. Fry was, and the color and length of her hair, and that she was wearing blue jeans. (8 CT 2450; 8 RT 1753.) Herecalled how he waited for her to get off the phone, and then he waited a few more minutes after she hung up the phone. (8 CT 2450-2453.) His description included recalling his being unable to get an erection and accurately recalling that he ejaculated onto her body. (8 CT 2459; 7 RT 1283-1286, 1291; 8 RT 1631.) He could rememberthat he left her apartment through the same window heentered. (8 CT 2460-2461.) Parker recalled how she was having difficulty breathing and was able to compare the soundto the breathing of his other victims. (8 CT 2460.) Anyone whocould recall and contrast to police the soundsofhis victims as he would leave them for dead is hardly someone whoserecollection is consistent with any inference of 110 having been unconsciousduring a series of brutal murders committed over an 11 month period.” Parker’s recall of raping and murdering Kimberly Rawlins in 1979 wasalso quite detailed. He wasableto correctly recall that she waspetite. (9 CT 2623; 7 RT 1362.) He was able to rememberthat he listened while she visited with two friends and waited for the lights to go out after her guests had left. (9 CT 2622-2623; 7 RT 1338.) Parker accurately described the kitchen andthe purse on the table to police almost two decadesafter murdering Ms. Rawlings. (7 RT 1701.) He correctly recalled that Ms. Rawlins and her roommate shared a bedroom. (7 RT 1702.) WhenParker was asked abouta second incident on Avocado Street in Costa Mesaandtold that the victim’s “little boy” was at home, Parker responded: “Oh yeah, Geez, how did I forget that one.” (9 CT 2621, 2629.) He then proceededto correctly describe a wall at the back of the apartment complex, and wherethe single story building with his victim’s apartment waslocated in the complex. He described entering Marolyn Carleton’s apartment in 1979 throughan unlockedsliding glass door onherpatio. (9 CT 2629-2630.) He wasable to recall that Ms. Carleton was lying in her bed whenhehit her in the head three or four times. (9 CT 2630, 2634.) He remembered being interrupted while trying to sexually assault Ms. Carleton whenherson called out to her. Parker described the boy as sounding like he was about 10 or 11 years old based on the “way he spoke.” (9 CT 2631.) He remembered the child wasin the darkened hallway and was | asking if something was “wrong with mommy.” (9 CT 2631.) He also »? In contrastto his recollection of his crimes, Parker could not recall the rank of his friend and fellow Marine Albert Garcia, citing the passage of time. (5 CT 1551.) 3 Joey Carleton was 9 years old when Parker murdered his mother. (7 RT 1407; 10 RT 2171.) 111 Skaneene SaNePMCIDEON recalled that as he was leaving the apartment he bumpedinto the boy in the hallway and physically moved him to the side. Based on movingthe child out of his way, he guessed the boy wasaboutthree feet tall. (9 CT 2631- 2632.) Parker remembered he hadleft the apartment the same way he entered, throughthesliding glass door. (9 CT 2633.) Parker’s detailed recollection of violently attacking and raping the wife of a fellow Marine despite her being obviously pregnant belies any reliance upon Parker’sinitial self-serving statement to police referencing “blackout[s] sometimes”as constituting substantial evidence of unconsciousness. The diagram Parker drew of the Green’s residence in 1996 from memory wasaccurate. (8 RT 1706.) Parker had nodifficulty recalling driving up to an apartment complex and overhearing Mr. and Mrs. Green arguing inside their apartment in 1979. (9 CT 2597.) He remembered how heheard Mr. Green’s car driving away andrecalled picking up a weapon and walking into the Greens’ apartment through a door that had been left open. He remembered how Mrs. Green sat up when he entered her bedroom but then laid back down as though she recognized him. He remembered rushing towardher and hitting her in the head. (9 CT 2600-2601.) He rememberedthat she was obviously pregnant as he raped her and ejaculatedinside of her. (9 CT 2601-2602, 2607, 2618.) Parkeralso recalled in detail raping and murdering 17-year-old Debra Senior in 1979. He accurately remembered breaking into the apartment through a crank style windowin the bathroom of her apartment before she came homethat night, and knocking down the showercurtain and curtain rod when he camethrough the bathroom window. (9 CT 2639-2640; 7 RT 1449, 1450, 1452.) Parker remembered “this one was young. I don’t 112 know,17, 18 somethinglike that.” He also recalled that she was “small, probably about”five feet five or six inchestall. (9 CT 2648.) Parker’s detailed recollection of his crimes from 1978 and 1979 during his interview with police in 1996 contradicts the belated interpretation of his vague reference to “blackout[s] sometimes”as a basis for claimingthetrial court erred in refusing to instruct with CALJIC Nos. 4.30 and 4.31. Similar to the situation in Halvorsen, Parker’s ability to recall “in sharp detail” the commission of his crimes, demonstrate that he wasnot entitled to an instruction on a defense of unconsciousness notwithstanding any self-serving, vaguereferenceto “blackout”in his interview with Investigator Tarpley. Parker arguesthe failure to instruct essentially left him without any defense whatsoeversince his attorneys conducted minimalcross- examination and presented noaffirmative defense. (AOB 201.) The limitations on Parker’s defense wereattributable to the trail of evidence against him, including DNA evidence connecting him to the attempted rape and murderof Sandra Fry, attempted rape and murder of Kimberly Rawlins, rape of Diana Green, murder of Chantal Green, rape and murder of Debora Kennedy, and rape and murder of Debra Senior; fingerprint evidence connecting him to the rape and murder of Sandra Fry and rape and murder of Debra Senior, and his admissionsto police connecting him toall 4 Ms. Senior was 17 years old and 5 feet, 10 inchestall, and weighed only 120 pounds. (8 RT 1754.) Accordingly, Parker’s recollection of her petite stature was accurate, as washis recollection about her being young. The 5-inch difference in height from what he recalled is readily attributable to the fact that his interaction with her consisted of him walking up from behind her while she was seated on her couchasleep andstriking her repeatedly in the head with a blunt object, rendering her unconsciousbefore carrying her into her bedroom and placing her onto a mattress on the floor where he then raped herandleft her for dead. (9 CT 2642-2645.) 113 om eneMBNRENy BoonoA Laeat musty malas aparece dehatomateuate AM Rats stinnamipinA tee six of the murders and sexual offenses against the six women. Parker received the instructions to which he wasentitled, and has no basis upon which to complain regardingthe trial court’s refusal to instruct on the complete defense of unconsciousness. Even assumingerror, Parker would notbe entitled to relief. A conviction of a charged offense may be reversed in consequence only if it appears reasonably probable the defendant would have obtained a more favorable outcomehadthe error not occurred. (People v. Breverman (1998) 19 Cal.4th 142, 178.) As this Court has explained: Such posttrial review focuses not on what a reasonable jury could do, but what such a jury is likely to have donein the absence ofthe error under consideration. In making that evaluation, an appellate court may consider, amongotherthings, whether the evidence supporting the existing judgmentis so relatively strong, and the evidence supporting a different outcomeis so comparatively weak, and there is no reasonable probability the error of which the defendant complains affected the results. (People v. Breverman, supra, at p. 177.) Parker claims he was prejudiced because the defense was denied the opportunity to argue that Parker was unconscious during the commission of his crimes, and because the erroneousrefusal to give the unconsciousness instruction was exacerbated byinstruction on malice aforethought which would have permitted the jury to find implied malice aforethought without regard to whether Parker could formulate the requisite specific intent. (AOB202,citing People v. Wilson, supra, 66 Cal.2d at p. 762.) Parker’s argumentis unavailing because the jury was properly instructed with CALJIC Nos. 8.77 and 8.79 on diminished capacity as a result of the voluntary consumption of alcohol and drugs and CALJIC Nos. 4.21 and 4.22 on voluntary intoxication. (10 CT 2941-2942; 9 RT 1933-1935.) 114 Parker acknowledgesthat his jury wasinstructed on the partial defenses of diminished capacity and voluntary intoxication, but merely notes that unconsciousnessis “entirely separate from these partial defenses.” (AOB 202,citing People v. Baker (1954) 42 Cal.2d 550, 575.) The distinction between a partial and complete defense doesnotalter the fact that the jury rejected Parker’s evidence of alcohol and drug abuseas having any impact uponhis crimes underproperinstructions. Parker’s “unconsciousness”defense is premised uponhis voluntary consumption of alcohol and drugs making the jury’s rejection of his voluntary intoxication and diminished capacity defenses relevant to assessing prejudice from any failure to instruct on unconsciousness. The instructions on diminished capacity and voluntary intoxication in effect informed the jury that if they believed that Parker was “impaired” as a result of voluntary consumption of alcohol during the crimes such that he could not form the requisite intent for murder, including premeditation and deliberation, intent to kill, and intent to rape (as to felony murder), then they should find him guilty of involuntary manslaughter. (9 RT 1904- 1946.) Underthis lesser requirement of being merely “impaired,” the jury rejected Parker’s evidence of intoxication as the jury did not find Parker guilty of either second degree murder or voluntary manslaughter. The jury’s rejection of Parker’s self-serving claims of intoxication is unsurprising given the evidence. For example, Parker recalled to investigators in 1996 that he made “quite a bit of noise” climbing into Ms.Senior’s apartment in 1979 because the showercurtain fell into the bathtub. (9 CT 2772.) When he wasaskedif he injured himself climbing in through the window,Parker respondedthat he was “‘so drunk....” (9 CT 2773.) Of course, Parker also explained that he had been “circling” Ms. Senior’s neighborhood posing as a jogger before climbing into a small bathroom windowfive feet above the groundin order to gain access to her 115 apartment.°> (9 CT 2768-2769.) The level of intoxication Parker was suggesting to investigators was belied by his ability to be joggingin circles through Ms.Senior’s neighborhood before havingthe agility to climb into her bathroom window. Parker was not unconscious whenhe selected and attacked his victims. Even assumingthetrial court erred in refusing to instruct the jury on unconsciousness as a complete defense, Parker was not prejudiced unless there is a reasonable probability of a more favorable outcomeif only the jury had been instructed with CALJIC Nos. 4.30 and 4.31. (Peoplev. Wilson, supra, 66 Cal.2d at p. 762, citing People v. Watson (1956) 46 Cal.2d 818, 836.) Parker’s effort to elevate his claim of error to one of federal constitutional dimension (see AOB 191, 202) is of no consequence, because even assumingthe failure to instruct implicates Parker’s federal constitutional rights, Parker cannot show a reasonable possibility of a different outcomeif only the jury had been instructed with CALJIC Nos. 4.30 and 4.31. (People v. Bennett (2009) 45 Cal4th 577, 605, fn. 13 [the reasonable possibility standard of prejudice is the same in substance and effect as the beyond a reasonable doubt standard enunciated in Chapmanv. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705].) Given that there wasvirtually no evidence of unconsciousness other than Parker’s misleading responseto an investigator’s interrogation technique, andthe fact that the jury rejected his claim of having consumedalcohol and drugs (the supposed cause of any unconsciousness) as evidenced by not returning verdicts for less than first degree murder, Parker cannot show prejudice under any harmlesserror standard. °° Parker is 6 feet 1 inch tall. (12 CT 3803.) The bathroom windowParker climbed through to gain access to Ms. Senior’s apartment is 2 feet high and 2 feet wide. (7 RT 1451.) 116 IV. VICTIM-IMPACT EVIDENCE WAS PROPERLY ADMITTED Parker complainsthat his statutory rights, state and federal constitutional rights to a fair and reliable penalty determination and due processof law, and the prohibition against ex post facto laws, were violated by the admission of “highly-emotional and largely irrelevant” victim- impact evidencein the penalty phaseof trial. (AOB 203-2 12.) Thetrial court did not abuse its discretion in finding that the victim-impact evidence was not unduly prejudicial, and its admission did not violate Parker’s rights to a fair and reliable penalty determination and due process,or the proscription on ex post facto laws. Evidence of a murder’s impact on the victim’s family and friends was not admissible in the penalty phase ofa capital trial until 1991, when the United States Supreme Court held that “[v]ictim impact evidenceis simply another form or method of informing the sentencing authority about the specific harm caused by the crime in question,” and is thus admissible evidence. (Payne v. Tennessee (1991) 501 U.S. 808, 825 [111 S.Ct. 2597, 115 L.Ed.2d 720], overruling Booth v. Maryland (1987) 482 U.S. 496, 501 502 [107 S.Ct. 2529, 96 L.Ed.2d 440]).) California law also permits victim-impact evidence and argumentin appropriate cases at the penalty phase ofa capital trial to show the circumstancesof the crime. (People v. Navarette (2003) 30 Cal.4th 458, 515; People v. Edwards (1991) 54 Cal.3d 787, 835.) The admission of victim-impact evidence, however,is not without limits. “[I]rrelevant information or inflammatory rhetoric that diverts the jury’s attention from its proper role or invites an irrational, purely subjective response should be curtailed.” (People v. Jackson (2009) 45 Cal.4th 662, 692.) Moreover, victim-impact evidence cannot be “so unduly prejudicial that it renders the trial fundamentally unfair”in contravention of a defendant’s right to due process underthe Fourteenth 117 Amendment. (Payne, supra, 501 U.S.at p. 825; People v. Edwards, supra, 54 Cal.3d at p. 835.) A. The Proceedings Below Parker objected to the introduction of any victim-impact evidence or photographs depicting the victimsin life on the groundsthat the testimony may be unduly emotional and prejudicial. (10 RT 2047; see People v. Stitely (2005) 35 Cal.4th 514, 565, fn. 23.) Defense counsel also expressed concern about the impact on the jury from observing membersofthe victims’ families crying in the courtroom during testimony by victim- impact witnesses. (10 RT 2046.) The trial court overruled the defense objection, noting that reasonable steps wouldbe taken to prevent emotional displays by family members during the victim-impact testimony. (10 RT 2048.) The trial court took steps to address defense concernsthat jurors not be exposed to family members crying outside the courtroom after the victim-impact testimony by admonishing spectators outside the presence of the jury prior to the victim-impact testimonyin the case: ... First ofall, to family members whoare presentat today’s proceeding. And some of you may have beenpresentduring all or part ofthe first part of the proceeding. And I do not want a family member to misconstrue my comments. I have not, I want to stress to you, I have not seen any activity or conduct on the part of a family member that would be deemed inappropriate or improper. Today’s proceedings, which gets into the penalty phase of the trial, involves giving the family members an opportunity to testify before the jury and to the impact concerningthe loss of a loved one. And as you acutely recognize, time, or the passage of time doesnotabate that sense of loss. It is normal. It would be reasonableto anticipate that you will show your feelings concerningthat loss, the impact of losing a loved one. And there’s nothing improperaboutthat. 118 But, I want to take whatever steps are reasonableto try to avoid having someonesay that the jury decision, whatever that may be at the conclusion ofthis phase of the proceeding, was unduly influenced by emotion during the courseofthetrial. To try to avoid someonesaying that, I simply will provide for the family memberto testify. And then once we conclude whatis called victim impact evidence, I’m going to have the jury be excused from the courtroom, and ask you to remain where you’reat until they have sufficient time to get on the elevator and go abouttheir business. (10 RT 2061-2062.) After the victim-impact testimony concluded, defense counsel indicated that it was a denial of due process to admit victim-impact evidencein trial relating to crimes that occurred at a time when victim- impact testimony was not admissible. (10 RT 2256-2257.) Thetrial court noted the objection was untimely and meritless. (10 RT 2257.) Parker brought a motion for new trial on the groundthat the victim- impact testimony wasso prejudicial it denied him fair trial and due process of law. (12 CT 3763.) Parker complainedin his new trial motion that victim-impact witnesses, spectators, and jurors were crying during the victim-impact testimony. (12 CT 3764.) Healso indentified the testimony by Jackie Bissonnette regarding the murderofher sister, Debra Senior, and the testimony of Sandra Kennedy regarding the murderofhersister, Debora Kennedy,as exceeding the limits on victim-impact testimony. (12 CT 3765 fn. 1.) The trial court denied the motion for a new trial after finding that the victim-impact testimony was not unduly prejudicial to Parker. (12 CT 3861.) The victim-impact testimony during the penalty phase consisted of the following: 119 1. Sandra Fry Judith Browntestified about the loss of her youngersister Sandra Fry. Sandra wasone of ten children. Sandra was very compassionate and loved people and animals. When Sandra was murdered, she had moved outofthe family home into an apartmentthree days earlier. News of her death was devastating. Thelast time the family got together wasat her funeral. After she died,all her siblings gradually left California. Brown was pregnant when Sandra was murdered. She wasoverprotective of her son and he grew up fearful. She identified a photograph of Sandra taken about four months before her murder. (10 RT 2106-2110; People’s Exh. No. 119.) 2. Kimberly Rawlins Chery! Rawlinstestified about losing her babysister and bestfriend, Kimberly Rawlins. She recalled her sister as a very happy and giving person, and a gorgeous petite young woman. Thetwosisters had gone camping the weekend before the murder and hadplansto go to the Spaghetti Factory restaurant the night of her murder, but Kimberly had stayed home because she had cramps. (10 RT 2141-2142, 2144.) Kimberly’s goal was to do everything twice — oncefor the thrill and a second time in orderto doit with a little bit of grace. The plan was for Kimberly to help Cheryl throughherfirst two years of college, and then Cheryl would help Kimberly with herfirst two years of college. Kimberly workedat a warehouse, shippingcritical implant devices and was very good at her job. (10 RT 2141-2142.) Kimberly had just moved out the apartment she shared with Cheryl when she was murdered. Cheryl found out about Kimberly’s murder from an officer who came to her door. She was so upset thatthe officer hadto tell her to put on more clothes in order to go and identify the body. (10 RT 2142-2144.) The family initially could 120 not afford a grave marker. Cheryl and Kimberly’s brother wentto the cemetery and could not find Kimberly’s grave. He had been soberfor quite sometime butstarted drinking again after Kimberly’s murder and the family was not sure of his whereabouts. (10 RT 2144-2 146.) Cheryl described Kimberly’s death as “like a rip. And you can do whatever you want, but all you’re doing is wiping the pus away.” (10 RT 2145.) A photograph of Kimberly taken the Christmas before she waskilled was introduced into evidence. (10 RT 2146; People’s Exh. No. 121.) 3. Marolyn Carleton Joseph Leetestified regarding the loss of his mother, Marolyn Carleton. He was nine years old when Parker murdered his mother. Herecalled awakening that night to his mother screaming his name. He knocked on the door and yelled, “Mom, what’s wrong?” There was no answer. The door to her bedroom opened a few secondslater and a figure with a dark complexion and dark hair pushed him up against the sink and fled down the hallway out of the apartment he shared with his mother. - He turned onthe light in his mother’s bedroom and found his mother lying on the floor, propped against her night stand. She was incoherent and when he placed his hand behindherhead, he realized it was bloody. He went into the bathroom and got a wet washcloth to try to stop the bleeding. Herealized there was too much blood andcalled the operator for assistance. (10 RT 2171-2712.) His mother was the “most understanding, loving and caring person always looking out for my well-being.” She always put him first even though she was working and going to school. He explained that she “was everything a young boylike myself at the time would wantin a mother. She cared, protected, guided, put me before herself, and loved me like only a mother could. She was everything to me. She was myfriend, myteacher, mylife, and mostofall she was my mother. When she died 121 that early morning,a part of me died. That can neverbe replaced.” (10 RT 2172-2174.) Mary Leetestified about losing her sister. They spoke to each other every day on the phoneand shared everything: secrets, recipes, and how Marolyn’s son was doing in school. Marolyn wasexcited about having gone back to school. Mary carried a photograph of Marolynin her wallet taken on August 20, 1979 — whenthey had beenat the Angel’s game and Mary hadsangthe national anthem at Anaheim Stadium. Less than a month later, Marolyn’slife was taken not throughillness, accident, or old age, but by a “cruel and senseless act of violence.” Their mother was not available to testify about the loss of Marolyn becauseshe died ofcancer the year before Parker’s trial, so Mary read a poem written by their mother in - 1988 entitled “whatif.” Mary identified a photograph of Marolyn taken before she was murdered. (10 RT 2180-2184; People’s Exh. No. 123.) 4. Debora Kennedy Sandra Kennedyrecalled the loss of her aunt, Debora Kennedy. Debora wasa giving,sensitive, and creative person. Debora used to babysit Sandra, but they were only two years apart so they werelike sisters. They spent their summers together. Sandra had gone to Knott’s Berry Farm with her boyfriend the night Debora was murdered. She wascalled homeand found police officers there and the family was crying. Debora’s murder devastated her family. Debora’s sister found Debora’s body, and at the time of the penalty phase, Sandra notedthatparticular sister looked 20 years older than her twin sister. After Debora’s murder, Sandra worried there was a vendetta against their family. Out of respect for their grandmother, whohad stroke shortly after Debora’s murder, the family chosenot to talk about it a whole lot. Sandra identified a photograph of 122 Debora taken before she was murdered. (10 RT 2184-2188; People’s Exh. No.124.) 5. Debra Senior Jackie Bissonnette recalled the loss of her youngersister Debra Senior. Debra was the youngest of four children and four years younger than Jackie. Not a day goes by without Debra being in her thoughts. Debra loved animals and dreamed of owning a horse. Jackie remembers Debra’s smile, her laugh, her kindness. Debra was knownto her family and friends as “Debbie” and Jackie namedher eldest child Debbie after her sister. Even though Debra was only 17 years old when she died, she had already graduated from high school and was workingfull-time. Debra missedher friends whenher parents movedto the city of Orange so when a friend asked if she wanted to rent an apartment with her in Costa Mesa, she accepted the offer. When she was murdered, Debra planned on moving homein a few weeksin order to attend Orange Coast College. Their parents were out of town when Debra was murdered: her mother had gone up north to a wedding and her father had gone to Yosemite for the weekend with her brother Mike in order to spend time with him while he was on leave from the Navy. Jackie had no wayto reach her parents and dreaded telling them the news. Her mother arrived homefirst, with cake for Mike’s birthday. Jackie only recalls seeing the pain she saw in her mother’s eyes upon learning that Debra had been murdered one other time — about an hour later when she saw herfather’s eyes as he was told the news. The pain the family felt was indescribable. Her father died three years after Debra’s murder. (10 RT 2132-2140.) Jackie read a statement for her mother. It conveyed the hopes and dreamsthat she and her husband had when they emigrated from England by wayofCanada in 1959. When Debra wasborn, she was born an American, 123 oF eeMnMARAE oe oe Bee cee aRRctASEMANAORARNbba HME Fp nn oe ee GER ne ga rt oe eacancete ethene beneple E foet so they tried to find the most American name they could — so they chose Debbie after Debbie Reynolds. Whenher husbanddiedthree yearslater of myocardial infarction she was sure it was becausehis heart was broken when Debra was murdered. Debra loved poetry and her motherselected two poemsshe had saved for Jackie to read aspart of her statement. (10 RT 2132-2140.) A photograph depicting DebraSenior a few months before her death wasintroduced into evidence. (10 RT 2139, 2271; People’s Exh. No 120].) B. The Testimony of Eight Victim-Impact Witnesses Regarding the Murders of Five Womenas Evidence of the Circumstances of his Capital Crimes Did Not Deprive Parkerof a Fair and Reliable Penalty Determination Parker complains that testimony reflecting the mourning processes of eight family members rendered the penalty verdict unreliable. (AOB 207.) Herelies on a decision from New Jersey to urge a standard for victim impactthat limits victim-impact testimony to “one witness per victim” absent“special circumstances.” Parker reasons one witness per victim is “adequate” to provide the jury with a “glimpse” of his victims’ uniqueness. (AOB 206,citing State v. Muhammad (N.J. 1996) 678 A.2d 164, 180.) This Court has consistently expressed its approval ofPayne and rejected any bright-line limitations on victim-impact testimony. (See People v. Prince (2007) 40 Cal.4th 1179, 1288; People v. Lewis & Oliver (2006) 39 Cal.4th 970, 1056-1057; People v. Pollock (2004) 32 Cal.4th 1153, 1183; People v. Raley (1992) 2 Cal.4th 870, 915.) Moreover, this Court has repeatedly approved of multiple witnessestestifying to victim impact. (People v. Zamudio (2008) 43 Cal.4th 327, 364, quoting People v. Pollock, supra, 32 Cal.4th at p. 1183 [“trial court may admit ‘victim impact testimony from multiple witnesses who werenot present at a murder scene 124 and who described circumstances and victim characteristics unknown to the defendant.””’]; People v. Panah (2005) 35 Cal.4th 395, 416, 494-495 [no due process violation where five membersof victim’s family testified regarding the victim andtheir loss]; see John H. Blume, “Ten Years of . Payne: Victim Impact Evidence in Capital Cases,” 88 Cornell L. Rev. 257, 270 (2003) [moststates allowing victim-impact evidence place no limit on the numberofwitnesses].) Parker’s complaint ignores the reason there were eight victim-impact witnesses whotestified — the sole reason so many victim-impact witnessestestified to Parker ruining their lives was because of the numberand nature of his violent acts towards innocent individuals. As this Court has held: Unless it invites a purely irrational response from the jury, the devastating effect of a capital crime on loved onesand the community is relevant and admissible as a circumstance of the crime undersection 190.3, factor (a). (People v. Lewis & Oliver, supra, 39 Cal.4th at pp. 1056-1057.) In so holding, this Court recognizes that the prosecution hasa legitimate interest in rebutting the mitigating evidence that the defendantis entitled to introduce, by introducing aggravating evidence of theharm caused bythe crime, ““reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death 999represents a unique loss to society and in particular to his family.’” (People v. Prince, supra, 40 Cal.4th at p. 1286, quoting Payne, supra, 501 U.S.at p. 825.) 1. The Trial Court Properly Admitted Photographs Depicting the Victims in Life as Victim-Impact Evidence Parker objected to admission of photographsofthe victimsin life. (10 RT 2033, 2040-2041, 2047, 2060-2061.) The jury was presented with 125 Fae GROANSAreeye nFGEPR 8 only five photographs depicting five of Parker’s victims as they appeared in life shortly before their murders.*° (10 RT 2033, 2060.) There was nothing unduly emotional or remarkable about the photographs depicting each of these victims in life. (See People’s Exh. Nos. 120-124.) There was nothing unduly prejudicial or unfair about admitting a single photograph of each of the five adult victims as they appearedin life shortly before their murders. (People v. Stitely, supra, 35 Cal.4th at pp. 564-565; People v. Boyette (2002) 29 Cal.4th 381, 444; People v. Carpenter (1997) 15 Cal.4th 312, 401; People v. Cox (1991) 53 Cal.3d 618, 688). 2. The Victim-Impact Evidence Was Not Unduly Cumulative Parker complains that Marolyn Carleton’s son, Joseph Lee, was permitted to testify about the impact of his mother’s murderand “then read a prepared statement”to the jury. (AOB 207,citing 10 RT 2172-2174.) He also complains that Marolyn Carleton’s sister, Mary Lee, was then permitted to read her prepared statement and also read a poem her deceased mother wrote in memory of her murdered daughter. (AOB 207,citing 10 RT 2180-2184.) Additionally, he complains that Jackie Bissonnette read her statement about her sister Debra Senior and a statement prepared by her mother which included two poemsthat her murdered daughter had written. (AOB 207, citing 10 RT 2132-2140, 2271.) There is nothing about Mr. Lee relying on a prepared statementin addition to answering questions that would have diverted “the jury’s attention from its proper role” or invited °° The prosecution did not offer any photograph of Chantal Marie Green as victim-impact evidence. (10 RT 2040.) The prosecutioninitially offered a photograph of Sandra Fry that was taken one to two years before her murder. (10 RT 2040.) The photograph that was ultimately introduced into evidence was taken within a few months of her murder. (10 RT 2060.) 126 “an irrational, purely subjective response” in reaching a penalty-phase verdict. The sameis true regarding two short poems Debra Senior had written that her mother wanted to share as a means of communicating her loss. The fact that Marolyn Carleton’s mother did notlive to testify at Parker’s penalty phase about the loss of her daughter did not preclude Marolyn’ssister from reading a poem their mother wrote aboutthe loss of Marolyn. There’was nothing improper about communicating the effect of the murder on other members of the family. (People v. Brown (2004) 33 Cal.4th 382, 398; People v. Taylor (2001) 26 Cal.4th 1155, 1172.) It is well established that testimony by family members about the various waystheir lives were adversely affected by a victim’s death is proper. (People v. Huggins, supra, 38 Cal.4th at pp. 236-238.) In describing the character of a victim, witnesses mayalsotestify to “the psychological effects of [a victim’s] death on other individuals and the community.” (/d.) That families are aggrieved is an “obvious truism” and an “obvious and predictable” consequence of murder. (People v. Sanders (1995) 11 Cal.4th 475, 550.) Moreover, specific examplesor stories concerning a victim’s life are wholly permissible as relevant victim-impact evidence. (People v. Roldan (2005) 35 Cal.4th 646, 722, 730-732.) 3. The Victim-Impact Evidence Did Not Impermissibly Extend to Matters Beyond the “Direct Harm” From Parker’s Murders Parker contends the victim-impact evidence wasirrelevant and prejudicial becauseit included “prejudicial information aboutillnesses and unfortunate circumstances family membershadsuffered that had nological connection to” his brutally assaulting and murdering their family members. (AOB 207.) Specifically, he complains that the jury learned that the mother of Marolyn Carleton had recently died of cancer (10 RT 2187); that Debra 127 1 penceNeRigmt:eleceROMEReAME ARRnanabaRL Oat cess danger 8 Fae mua Kennedy’s sister (who had found her body) married a neo-Nazi andisolated herself from her family (10 RT 2187); and Debra Senior’s father died three years after her murder becauseit broke his heart (10 RT 2138). Parker argues that this information left the jury with the impression he was responsible for “more than just the direct harm caused by his crime.” (AOB 207.) There was nothing unexpected or prejudicial in learning that Debra Senior’s mother believed that her husband died from a broken heart as a result of dealing with the aftermath of their daughter being senseless and brutally raped and murdered. Similarly, that the jury would learn that Marolyn Carleton’s motherdid notlive to testify at Parker’s trial regarding the loss of her daughter, or that Debra Kennedy’s sister had difficulties after her sister’s murder, is not anything that was unduly inflammatory or prejudicial, nor of a nature as to invite an irrational or purely emotional response from jurors. (See People v. Hamilton, supra, 45 Cal.4th at pp. 926-927.) There was no unfairness from the victim-impact evidence presented below. As this Court aptly observed: “[i]t is commonsense that surviving families would suffer repercussions from a young woman’s senseless and seemingly random murder long after the crimeis over.” (People v. Brown (2003) 31 Cal.4th 518, 573.) Noneof the evidence concerning victim impact, considered individually or cumulatively, would have diverted “the jury’s attention from its proper role”or invited “anirrational, purely subjective response” on the penalty-phase verdict (People v. Edwards, supra, 54 Cal.3dat p. 836), “untethered to the facts of the case” (People v. Pollock, supra, 32 Cal.4th at p. 1180). 128 4. The Victim-Impact Testimony Was Not Unduly Emotional Parkerrelies on his trial attorney noting that “at least one” juror was “emotionally affected by the crying in the audience”andthat the jury had to be affected by walking past a “phalanx of family members.” (AOB 208.) Healso contendsthe trial court itself noted the “emotionally charged” courtroom created by victim-impact testimony. (AOB 208,citing 9 RT 2013-2014.) Whatthetrial court stated was that it “had not seen any undue display of emotion”on the part of the jurors. (9 RT 2013-2014.) Thetrial - court made the observation that the nature of the killings Parker committed had to have a “tremendous emotional impact on jurors” and that someone would “have to be dead not to be impacted by what’s going on.” (9 RT 2013-2014.) Further, the trial court subsequently stated for the record after the victim-impact testimony concludedthat it observed nothing that could be classified as an undue emotional display by any family members observing the trial while a victim-impact witness was on the stand testifying. (10 RT 2257.) Reference bythetrial court to the emotions being experienced by jurors is not about any showing of emotionthatis attributable to the number, nature, or content of the victim-impact testimony. Rather,it is in reference to the fact that Parker’s crimes themselves were horrific and disturbing based upon the nature and amount of force he used andthe predatory nature of his series of murders. The victim-impact testimony was not unduly prejudicial or emotional in conveying the loss from the senseless brutal murder of so many young women. 129 otANtelePLEORDDEERAmeBcigs Te ape we eet ete sce z teeta ean He “ ome ‘ si a etSparenatanteaSataneMMETNRteR e* 5. The Unsolicited Comment From a Victim-Impact Witness Regarding the Bible and Her Belief Parker Would Receive the Death Penalty Did Not Prejudice Parker Parker complains that the prosecutor did not prevent Sandra Kennedy from making a statement relating to the Bible and herbelief that Parker would receive the death penalty while under cross-examination by defense counsel. (AOB 209,citing 10 RT 2189.) Thetrial court and prosecutor undertook all reasonable precautions to ensure the victim-impact testimony was appropriate. The prosecutor submitted a written summary of the testimony to be elicited. (9 RT 2026.) The prosecutor understood that the testimony would berestricted to the loss of the victim on the witness and his or her family and conveyedto the victim-impact witnesses that certain areas, including appropriate penalty, were not something they could comment about. (9 RT 1998.) Notwithstanding the efforts by thetrial court and prosecutor, the following exchange occurred during cross- examination of Ms. Kennedy: You don’t believe that there was a family vendetta, do you? A. Now,after hearing all the evidence in court, he’s just a coldblooded murderer with no dignity, regard, or respect for anyone,including himself. And,Mr. Parker, I suggest you meet God before you get executed and ask for forgivenessfor all of these lives that you took. I’ve forgiven you, I have. I will never forget. I have a compassion for you that God has put in my heart after months and monthsofprayer, preparing forthistrial. I have prayed for you. J have you on a prayer chain at my church. I’m even prepared to write you from prison if you don’t get the death penalty because I want you to knowthat your eternallife, your spiritual life, weighs in the balances right now. 130 Andthe Bible says that you will be tormentedin hell for eternity if you do not accept responsibility for what you’ve done and ask Godon bended knees in humility and brokenness for forgiveness and ask him to cleanse you andprepare youto take you home because I’m quite certain you will get the death penalty. God does not withhold consequencesfor actions, butin the Spiritual realm he canstill save you. I havea lot of pain anda lot of disregard for you, but God also spoke something to me concerning you and your heart, and that is somewhere alongthe line you were so hurt or so abandonedthat you felt no self-worth. I may be wrong aboutthat, but that’s what I believe God spoke to my heart and that you have been numb from early childhood and that this vendetta that you haveagainst women has nothing to do with you hating women,it has to do with you feeling broken and hurt and abandoned and worthless. And I’m really sorry that that has taken place in your life from early childhood, but it by no means wasany, any excuse for doing what you did. Andthe fact that you said that you were under the influence of drugs when it happened, well you know what? You weren’t underthe influence of drugs when you decidedto take the drugs. You should have gotten yourself some help to take care of your anger. And I’m really sorry that you didn’t because I’m quite certain that you lived a violentlife, you will die a violent death. Thatis scriptural. The Court: Miss Kennedy, I want to thank you for coming up here andtelling us what the impact was on yourself and on your family. I’m goingto let you step downat this time. (10 RT 2188-2190.) AsParker acknowledges, his defense counsel utilized Sandra Kennedy’s emotional response under cross-examination during closing argument. (12 RT 2564-2565.) What Parkerignoresis how effectively the defense used the response by Sandra Kennedyto defense counsel’s question. Specifically, defense counsel argued: 13] Se And I’d like to talk about the alternatives, death or life imprisonment. Death or condemnedto everlasting redemption. Andin that regard I’d like to read you a brief paragraph of what Miss Sandra Kennedy said to Mr. Parker. You rememberthat. And she said to Mr. Parker. “Mr. Parker, I suggest you meet God before you get executed and ask forgivenessfor all the lives that you took. I’ve forgiven you. I have. I will never forget. I have compassion for you that God has put in my heart after months and monthsofprayer preparing forthistrial. I have prayed for you. I have you on a prayer chain at my church. I’m even prepared to write you from prison if you don’t get the death penalty because I want you to know that your eternallife, your spiritual life, weighs in the balance now. And the Bible said that you will be tormented in hell for eternity if you do not accept responsibility for what you’ve done and ask God on bended knees in humility and brokenness and forgiveness.” That’s what she said. And shesaid it from the heart. And some people didn’t like to hear her say that because there wasn’t enoughhatein it, there wasn’t enough real venom in it. There wasa thoughtfulness to it. (12 RT 2564-2565.) As Parker acknowledges, his counsel asked that the jury not be admonished about Ms. Kennedy’s response to the question on cross- examination. (AOB 209,citing 10 RT 2254-2259.) Parkercriticizes the trial court for not conducting a “hearing” to determine admissibility ofthe proposed victim-impact testimony. (AOB 210.) Parker’s complaint ignores the fact that the trial court was extremely diligent about victim- impact testimony. (See 9 RT 2013-2018 [discussion about precautionsto avoid unduedisplay ofemotion from family members in courtroom observing victim-witness testimony], 2026 [court reviewed in advance of testimony an outline of victim-witness testimony].) Moreover, a hearing would not have ensured that a witness would not respond to a question posed on cross-examination in a mannerthat was inconsistent with what 132 occurred in a hearing — especially when the court had discussed the matter extensively with counsel and the prosecutor had discussed the scope of proper testimony with the witnesses in advanceoftheir testifying. 6. Even Assuming Erroneous Admission of Victim- Impact Evidence, Parker Was Not Prejudiced Erroneous admission of victim-impact evidenceis subject to a harmless-error analysis. (People v. Lewis & Oliver, supra, 39 Cal.4th at p. 1058; People v. Johnson (1992) 3 Cal.4th 1183, 1246.) There is no reasonable possibility that Parker would have enjoyed a more favorable outcome,absent the victim-impact evidence. (People v. Jones (2003) 29 Cal.4th 1229, 1265, fn. 11; People v. Bennett, supra, 45 Cal.4th at p. 605, fn. 13 [the reasonable possibility standard of prejudice is the same in substance as the beyond a reasonable doubt standard enunciated in Chapman v. California, supra, 386 U.S.at p. 18].) The testimony of the victim-impact witnesses consumed only 29 pagesof transcript: 4 pages regarding Sandra Fry, 6 pages regarding Kimberly Rawlins, 7 pages regarding Marolyn Carleton, 6 pages regarding Debra Senior, and 6 pages regarding Debora Kennedy. (See 10 RT 2106- 2110 [Sandra Fry]; 10 RT 2132-2138 [Debra Senior]; 10 RT 2140-2146 [Kimberly Rawlins]; 10 RT 2171-2174, 2180-2184 [Marolyn Carleton]; 10 RT 2184-2190 [Debora Kennedy].) The victim-impact testimony was very concise in conveying the loss of so many victims. Moreover,the victim-impact evidence “paled in comparison to other evidence in aggravation” and “could not have tipped the balance in favor of death.” (People v. Lewis & Oliver, supra, 39 Cal.4th at p. 1058.) Parker’s vicious crimes, including abducting and raping a child on the day ofher father’s funeral, raping and brutally beating the pregnant wife of a fellow Marine and remaining silent while her husband was convicted and punished for 133 art SomatntacraeteNStnAiCaneSneha IRE Parker’s crimes, combined with his utter lack of remorse for his numerous senseless brutal crimes, makeit clear that his death sentence doesnotrest with any impropervictim-impact witness testimony. Moreover, following the victim-impact testimony, which concluded with the testimony by Sandra Kennedy,the trial court admonishedthe jury: This completes the taking of testimony this morning. The law provides for an opportunity for family membersto come before you andtell you the impact that has occurred in their lives and their family [sic] lives as it pertains to the unlawful taking of life. Not easy on them or anybodyelse or on jurors. But I am concernedthat at all stages of the proceeding that no one will say that the jury, who will make a decision as to the penalty or punishment, was unduly swayed by the emotion or the personal feelings of the victim family. You’re entitled to listen to that evidence, considerit fully, give it whatever weight you deem is appropriate or necessary at the completion of the taking of all the evidence. And that comes under what we describe as factor (A). That’s the law side ofit. There’s always a humanside to these proceedings. And whatI needto dois I’m goingto have youstep into the jury room until I clear the hallway. And so if you can bear with me just a few minutes, and then we’ll take the lunch break, and then you need to comebackat 1:30, at which time we’ll take some additional evidence. (10 RT 2190-2191.) The jury wasalso instructed at the outset of the penalty phase instructions not to be swayedbybias or prejudice against Parker. (12 RT 2568; 10 CT 3046 [CALJIC No.8.84.1].) The jury wasalso instructed: You may consider victim impact evidence only under factor (A). 134 The jury may consider victim impact evidencerelating to victim’s personal characteristics and impact of the murder on the victim’s family under factor A. However, the jury may not consider a victim’s family membercharacterizations and opinions,if any, about the crime, the defendant, or the appropriate sentence. (12 RT 2572-2573; 10 CT 3052-3053.) The jury is presumedto have followed the court’s instructions. (People v. Rich (1988) 45 Cal.3d 1036.) In light of the relative brevity of the victim-impact evidence,the considerable evidence in aggravation, and the instructions given,it is clear the admission of the victim-impact testimony did not undermine the fundamentalfairness of the penalty determination. Even if the victim- impact evidence had been excluded, the outcome would have remained the same. Parker’s death sentence doesnotrest with unduly prejudicial victim- impact evidence; rather, the sentences rest squarely with the evidencein aggravation, including the circumstances of his numerous senseless and brutal crimes. C. Retrospective Admission of Victim-Impact Evidence Did Not Violate the Ex Post Facto and Due Process Guarantees Parker contendsthat the admission of victim-impact evidence constitutes an impermissible retroactive application of the law in violation of ex post facto and due process guarantees in the California and United States Constitutions. (AOB 211.) Parker forfeited his claim dueto his failure to object to the admission of victim-impactevidence on these grounds below. (People v. Hamilton, supra, 45 Cal.4th at p. 926; People v. Huggins, supra, 38 Cal.4th at p. 236; Evid. Code § 353.) The defense objected to the victim-impact evidence on the ground it was unduly 135 Lay SMRSm AMPcbntecemEn cnt RedonoNNE ek mae a tem ean ee prejudicial. The defense then made an untimely objectionto all victim- impact evidence on the ground the evidence violated Parker’s right to due process. (10 RT 2256-2257.) At that time, defense counselstated: “Well, we’re kind of amazedthat in 1991 you couldn’t do this and now you can do this. And quite, frankly, reflecting on it overnight, I find the whole process to be a denial of due process.” (/d.) The reference to the evidence being inadmissible in 1991, is not a proper invocation of an objection to the admissibility of evidence based on ex post facto grounds. In any event, even if the issue was properly preserved below,as Parker recognizes (AOB 211), this Court has repeatedly rejected this same contention. (Peoplev. Mills, supra, 48 Cal.4th at p. 213; People v. Hamilton, supra, 45 Cal.4th at p. 926; People v. Brown, supra, 33 Cal.4th at p. 394.) D. Factor (a) Is Not Unconstitutionally Vague or Overbroad Parker contendsthat factor (a) of Penal Code section 190.3 is unconstitutionally vague and overbroad andcreates the risk of an arbitrary andirrational judgment of death. (AOB 211-212.) Specifically, he complains that he could not have knownor foreseen the testimony about his victims or the impact of his killings. (AOB 211.) He also complains about testimony of the “continuing emotional impact on the families more than 20 yearslater’ doesnot fall within any reasonable or common sense definition of the “circumstances of the crime.” (AOB 211-212.) This Court has already rejected the argumentthat it is anything other than foreseeable that families would continue to be effected by the loss oftheir loved ones decadesafter they are murdered. (People v. Hamilton, supra, 45 Cal.4th at p. 927; People v. Prince, supra, 40 Cal.4th at p. 1287, fn. 28.) The victim-impact testimony contained nothing that was not reasonably foreseeable from Parkertrolling neighborhoodsin search of lone females 136 inside apartments in order to surprise them and viciously bludgeon them in the head, in order to render them unconscious and rape them, then leave them for dead. V. PARKER’S CONSTITUTIONAL RIGHTS WERE NOT DENIED BASED ON THE SCOPE OF THE DEFENSE PENALTY PHASE ARGUMENT Parker contends that his death sentence mustbe reversed because his state and federal constitutional rights to an individualized penalty determination, to due process, and to present a closing argument were violated whenthetrial court arbitrarily and erroneously restricted his closing argumentin the penalty phase and prevented him from arguing his lack of future dangerousness. (AOB 213-223.) Even assumingthetrial curtailed defense argument on the subject, Parker was not prejudiced. The only conceivable point regardinglack of future dangerousness supported by the evidence wasin fact argued by defense counsel. Further, the evidence in aggravation overwhelmingly outweighed any evidencein mitigation. For these reasons, even assumingerror, it was harmless. The prosecution may urge the jury to return a death verdict based on the future dangerousness of the defendant if the argumentis supported by the evidence; and the defense may argue the lack of future dangerousness whensupported bythe evidence. (People v. Ervine (2009) 47 Cal.4th 745, 797; People v. Harris (2005) 37 Cal.4th 310, 358.) Parker’s future dangerousness was an appropriate matter for the prosecutor to address in the penalty phase argumentbased on the violence evidencedin the underlying capital crimes underfactor (a) and uncharged crimesof violence introduced underfactor (b). (People v. Davenport (1995) 11 Cal.4th 1171, 1223; People v.Bean (1988) 46 Cal.3d 919, 951.) 137 ve ne yscttdnota ahaABUDDoyeRiySamatte a ea Re he Ra Parker contendshis state and federal constitutional rights were arbitrarily and erroneously denied whenthetrial court prohibited his counsel from arguing his lack of future dangerousnessto the jury during the penalty phase.”’ (AOB 12 RT 2535-2536.) Parker notes that the trial court indicated it did not believe there was any need for the prosecution to argue the subject of future dangerousness, and therefore no need for either side to be addressing the issue of future dangerousness. (12 RT 2535-2536.) While Parker claimsthe trial court ruled the defense could not argue Parker’s lack of future danger,it is not clear that the trial court ultimately did so. Thetrial court had asked for case authority on the subject of future dangerousness, and in response the prosecution identified People v. Davenport, supra, 11 Cal.4th 1171. (12 RT 2534-2535.) The prosecutor noted that both sides had presented evidence on the issue. (12 RT 2535.) Thetrial court told the prosecutor it was concerned about“relying on Davenport holding the day in the future” and expressed concern about the °7 Parkeralso complainshe was not permitted to mitigate the fear ofjurors about what might happen if they believed Parker were sentenced to life in prison only to be ultimately released. (AOB 222,citing People v. Pride (1995) 3 Cal.4th 195, 268.) In Pride, a juror who worked as a cook in a prison purportedly commented during deliberations that prisoners that are not housed on death row have “far greater opportunity to escape.” In explaining why no misconduct occurred, this Court noted: “[t]he average juror undoubtedly worries that a dangerous inmate might escape. While [the jurors’] statements elaborating on this theme were purportedly based on his experience inside the prison system, he only said what any citizen might assume wastrue — that inmates sentenced to death are subjected to the tightest form of security and that they have fewer opportunities to escape than other inmates. No misconductor presumption of prejudice appears.” (People v. Pride, supra, 3 Cal.4th at p. 268.) Parker’s reference to Pride as indicating he was somehow foreclosed by the trial court from addressing jurors’ fear ofwhat might happen if he were sentenced to life in prison only to be ultimately released is particularly unavailing since Parker’s own mental health expert opined he would be a dangerto others if he were out of custody. (11 RT 2382.) 138 eetfbiRtISOSRAESRTNN Sey ne prosecutor even talking about the subject of future dangerousness “given the evidence you have going to the jury.” The trial court then told the prosecutor: “So I just think you’re skating on thin ice if you get on that topic, and if what you’re asking for is guidance about argument, don’t get into that.” (12 RT 2535.) The prosecutor then replied: “That’s what I’m doing.” (12 RT 2535.) The Court then expressed concern that the defense was goingto raise the issue. (12 RT 2535.) However, nothing suggests the trial court was ruling the defense could not argue future dangerousness. Instead, it appears the trial court was concernedthat the defense would argue the subject, which wouldincreasethe likelihoodofthe prosecution arguing future dangerousness. (12 RT 2536.) Defense counsel previously explained the defense wanted to argue, consistent with the evidence presented, that Parker could continued to be medicated in state prison, and that facilities and doctors exist to do that. (11 RT 2509.) In the discussion regarding future dangerousness, defense counsel explained that it was the defense’s intention to discuss psychotropic medication. (12 RT 2536.) Accordingly, the defense neverindicated an interest in going beyond makingthe points that were actually argued to the jury below. Nor did the prosecution interpose any objection or seek any limitation on the defense closing argument that would have prevented argument on future dangerousness. Underthese circumstances, Parker has not shown thatthetrial court ultimately restricted defense closing argumenton the subject of future dangerousness. To the contrary, the last word from thetrial court was in the context of advice to the prosecution to tread lightly, and advice to the defense not to draw the prosecution into arguing the future dangerousness. In any event, even assumingthe trial court’s comments limited Parker’s abilityto argue future dangerousness, it was to Parker’s benefit. 139 (See People v. Harris, supra, 37 Cal.4th at p. 358.) While Parker contends the prosecutor argued that notwithstanding medication, Parker remained . danger to society, and therefore argued future dangerousnessto the jury (AOB216), the prosecutor did no such thing. Notwithstanding the extensive evidence of Parker’s violent behavior — including attacking an inmate while he wasasleep, the prosecutor did not argue Parker’s future dangerousnessas basis for returning a death verdict. The prosecutor’s closing penalty phase argument was simple: WhenMr.Parker went out to rape and murder,he did it by choice,he did it willfully, and worst of all he kept doingit. Andthe onlyreason andthe only explanation there is for whyhe kept doingit is because he enjoyedit. There’s absolutely no question that the aggravating circumstancesin this case, particularly the circumstances of the crime, substantially to an overwhelming margin outweigh the mitigating circumstancesin this case. (12 RT 2556-2557.) In context, the prosecutor was arguing that Parker’s moral culpability for his crimes was unrelated to, and therefore not mitigated by, any mental problems. The excerpts of the prosecutor’s argument that Parker relies on to claim the prosecutor argued future dangerousnessrelate to explaining that Parker’s recent mental problems were not worthy of the jury’s sympathy and did not mitigate his moral culpability for his crimes. Noting the testimony by Parker’s mentalhealth expert that Parker had begunto display symptomsofpsychosis, the prosecutor told the jury the prosecution wasnot contesting that Parker might have some present mental problems and has deteriorated to the point where he needsto be prescribed medication to suppress his symptomsand his aggression. The prosecutor then explained that would not mean “he’s now somehow a changed man and somehow becauseofthis fact he deserves your mercy.” The prosecutor 140 went on to explain that there was no evidence that Parker had any problems requiring psychiatric intervention when he committed his crimes. (12 RT 2551.) He then noted that none of Parker’s supposed mental problems manifest themselves in violence or aggression. Pointing out that the voices Parker claimed to hear when Dr. Blair interviewed him did nottell him to commit crimes,the prosecutorthen asked: Andwhyis that significant? Well, where does the violence come from, okay? Where is the — it comes from him. Now, you can sedate him, you can tranquilize him, but you can’t change him. The violence comes from Mr. Parker. And maybe more importantly, from both doctors — and you may have concludedthis — none of the problems,these so-called problems, interfere with his ability to make choices and distinguish right from wrong. Okay. Whatevertheyare, they don’t impair his judgmentand they don’t impairhis ability to distinguish right from wrong. Whenhe madehis decision to rape and murder, he madeit on his ownfree will in all instances. Nothing that has to do with - any — anything with mental problems now even impairs him today as far as making those decisions. And as Dr. Dietz told you, he certainly wasn’t impaired back then becausehis brain was no worsethan it is now. (12 RT 2552.) The prosecutor’s argument wasthat “evidence ofMr. Parker’s mental status ... doesn’t mitigate or lessen his offenses.” (12 RT 2554.) Continuing the argumentrelating to Parker’s moral culpability for his crimes notwithstanding any current mental problems, the prosecutor discussed Parker’s antisocial personality disorder and argued: ... he does what makes him feel happy. Rememberthat? That’s whatthe antisocial personality does. He does what makes him feel happy, and he doesit without conscience. If Mr. Parker 141 cen foreseeA 28:ARTOIEOPERRRR IE euEe oma SS UG Re oB Oh ane a tae needs drugsand alcoholto feel happy, he’ll do it. If he needs to rape and murder, he’ ll doit. (12 RT 2553.) ...1f you give him structure in the Marine Corps,in the Boy’s Republic, if you give him rules, he will adapt, he will learn to thrive. The problem is whenhegets outside ofthe structure, then society is going to pay for what he needsto do to be happy. So is this evidence of Mr. Parker’s mentalstatus,is it — doesit — if it doesn’t mitigate or lessen his offenses,is it mitigation at all? Well, you get to decide. (12 RT 2553-2554.) Parker complains he was denied the opportunity to meet and rebut the prosecution’s argument. (AOB 221.) There was nothing to rebut on the subject of future dangerousness, because the prosecutor did not argue the subject of Parker’s future dangerousness. (See, 12 RT 2540-2557.) Parker also claims the jury was prevented from hearing and considering his counsel’s argument regarding his lack of future dangerousness. (AOB 220.) Parker acknowledges, however, the defense addressed the subject of future dangerousness in penalty phase argument, but complains it was “touched only briefly.” (AOB 217.) Given that Parker’s closing argument consisted of 10 pagesoftranscript (12 RT 2558-2566), the discussion about medication andit rendering Parker non-violent would hardly have been overlooked by the jury.’ Moreover, Parkerfails to explain what more °8 Parkercites the length of the defense argumentasindicating his right to present closing argument wasinfringed. (AOB 221.) The argument of both counsel was focused. The prosecution argument consumed a mere 20 pages, which included reading instructions and mentioning the six murders, as well as Parker’s rape of a child and another woman,and brutal beating of another woman with a pipe. (See 11 RT (continued...) 142 could possibly have been said, based on the evidence, beyond what was argued,i.e., Parker has mental problems which is why prison authorities andthe jail medicated him, and whenheis medicated he does not have violent tendencies. The defense argued lack of future dangerousness consistent with the evidence when defense counsel stated: ... There is no evidence contrary to this that this man was not diagnosed for his own mentalillness twenty years ago, no one diagnosed him, no one sedated him, no one medicated him. What happens? Hefinally gets arrested after all these horrific crimes, for which I make no excuse,and they eventually diagnose him for his mentalillness. Who doesthat? The prison authorities can’t and [the prosecutor] can’ttell you any different, uncontroverted evidence. They put him on antipsychotic/psychotropic medication. They did it. He’s been 29 monthsin the jail waiting for his trial. The jail psychiatric team — and you’ll see the records — did the same thing. They medicated him. And when he’s medicated, what happens? The violent tendencies are gone. Weeven adjusted his medication a couple of times you heard. Violent tendencies are gone. It’s not the same man. (12 RT 2558.) There was absolutely nothing else for the defense to say on the subject — based on the evidence. The weakness of argumenton Parker’s lack of future dangerousnessis notthe result of restrictions by the trial court. Rather, the weaknessofthe argumentis because the evidence of Parker’s lack of future dangerousness was weak. Whenaskedif Parker would present a dangerto others, his own expert opined that Parker would be a dangerto others if he was out of custody, and it was “probably true”that (...continued) 2540-2557, 2560-2561.) Nothing in the length of the defense argument suggests a denial of Parker’s right to present closing argument. 143 Py arieleepeekNaeNRE ERIEEIEIO pe VERE Te Bea EB EE aS he would not be a dangerto others if he were in a controlled environment in prison and being treated with psychotropic drugs. (11 RT 2382-2383.) Also, while Parker’s counsel argued he would not pose a future dangerif medicated, Parker admitted in his testimony that he wanted to hurt others even while medicated. (11 RT 2320.) While defense counsel arguedit aS a positive aspect, i.e., that Parker’s medication could be adjusted by authorities (see 11 RT 2558), the reality is that the facts did not lend themselves to convincing anyone that someoneasviolent as Parker would not pose a danger in the future. Parker mischaracterizes the prosecutor as “taking full advantage” of the exclusion of mitigation argumentand injecting the issue of future dangerousnessinto closing argument. (AOB 222.) The prosecutor said nothing about Parker’s future dangerousnessin his rebuttal closing argument. The prosecutor never even argued that Parker’s violence could not be controlled by medication. Instead, the prosecutor focused on Parker’s moral culpability for his crimes and arguedthat his current mental problems and medication had nothing to do with mitigating whathe did to his victims — he is the same person who raped and murderedhis victims. Specifically, the prosecutor argued: No question whoeverdid these crimes had a problem. Mr.Parker did have a problem. It’s called antisocial personality. Whatthe defenseis talking about and whatDr. Blair is talking about, in 1996, 17 years after these crimes, he’s reported that he hears voices. Isn’t that too bad. He should hear voices. Andnow,in the present, to quiet voices, to controlhis violence in aninstitutional setting, he’s medicated. So what? How doesthat mitigate his offenses? What does the medication — what does the medication do? Whatis it for? It’s to hide his symptoms. That’s what the medication is for. It 144 itnhnRASIRRORvs hides the same guy. The same guy whodidall these rapes and murders. Mr.Parker hasn’t changed. He’s the same guy. Thank you. (12 RT 2560-2561.) Even assuming Parker’s state and federal constitutional rights were infringed based on his being constrainedin his ability to argue that he would not pose a dangerto others if confined to prison for life without possibility of parole, he was not prejudiced. Parkeris not entitled to relief because it cannotbesaid that there is a reasonable possibility that the jury would not have returned a death verdict if only defense counsel had argued that Parker did not present a future danger. (People v. Brown (1988) 46 Cal.3d 432, 448; see also People v. Bennett, supra, 45 Cal.4th at p. 605, fn. 13 [the reasonable possibility standard of prejudice is the same in substance and effect as the beyond-a-reasonable-doubt standard enunciated in Chapman v. California, supra, 386 U.S. 18].) Thelack ofprejudice is evident from the weaknessofthe evidence supporting an argument that Parker posed no future danger discussed hereinabove, as well as the undeniable benefit that Parker obtained from the prosecution forgoing argument on the subject of future dangerousnessin a case where the evidence of his crimes showshim to be an extremely violent and dangerous person. Additionally, Parker was not prejudiced because the evidence in mitigation paled dramatically — including the suggestion that a medicated Parker would pose no future danger — with the overwhelming evidence in aggravation. Parker complains he wasnot allowed to make an argumentthat was “designed to give the jurors a reason to spare [his] life” and his inability to argue his lack of future dangerousness created an unconstitutionalrisk that 145 1 RYoPchienMielecSRNLRMIEnhsittgANYha Ee po ome a Sanwa ‘ secon owe : at siiace em nays, ylnarennaapdoatba cetnantAthineENNithSci a death sentence was imposed“in spite of factors calling for a lesser sentence.” (AOB 218.) In the context of Parker’s case, and the evidence before the jury, Parker does not explain how further argument on the subject of his lack of dangerousness while medicated in a controlled prison environment wouldrealistically give the jury anything beyonda theoretical, as opposed to an actual, basis to sparehislife. Even accepting the defense premisethat the jury could have connected the dots between being medicatedin a controlled environment within a prison to not posing a dangerin the future if only the trial court had madeit clear that both parties could address the subject of future dangerousness, Parker unquestionably gained from thetrial court’s concern over the subject. If the prosecutor had argued future dangerousness, he no doubt would have included the observation that medication was no guarantee that another inmate would not be awakened by Parker bludgeoning him with a pipe for some perceived transgression based on the evidence before the jury regarding Parker’s unprovoked assault upon fellow inmate David Feurtadot. (See 10 RT 2147-2152, 2159-2170.) The prosecutor would have been free to argue from Parker’s past conductthat he will be a dangerin prison. (People v. Zambrano (2007) 41 Cal.4th 1082, 1179.) The incomprehensible brutality in Parker’s numerous crimes gave the prosecution a lot to draw on in arguing that Parker would be a future danger. Moreover, in discussing Parker’s potential to endanger others while confined in a prison, the prosecutor could have discussed the danger he would havepresented to others in the prison, including female prison guards. (People v. Huggins, supra, 38 Cal.4th at p. 253; People v. Bradford (1997) 14 Cal.4th 1005, 1063-1064.) Notably, Parker does not detail the evidence or identify those factors that called for a lesser sentence for his numerous premeditated and horrifically violent murders. In other words, while Parker complains on 146 appeal he was prevented from “fully develop[ing] the themein their case and mak[ing] an explicit argument to the jury” (AOB 222), he neglects to fill in the blanksin his brief to support his claim he wasprejudiced. The fact the defense below could not overcome the evidence in aggravation is because of the compelling weight of that evidence in comparison to the minimal mitigation in this case. The prosecutor’s argument waseffective in its simplicity because Parker showed his many victims no mercy and no sympathy, and his lack of remorse was not simply evidentin the matter of fact manner in which he recounted his crimes,it wasevidenced by killing again — and again. (12 RT 2542.) Parker took away a young boy’s only parent. He wasnot dissuadedin the least when he realized he was inside a fellow Marine’s home, as he proceeded to brutally, beat and rape that fellow Marine’s obviously pregnant wife and said nothing even though he believed the woman’s husband wason death row for what Parker did to his wife. (12 RT 2543.) Parker raped and murdered a teenager living in herfirst apartment and raped a child on the day of her father’s funeral. (12 RT 2543-2544.) As the prosecutor asked the jury, what sympathy did Parker show the young womenhe brutally bludgeoned and left for dead? How remorseful is someone whogoesout and does the samething again and again? If, as Parker claimed, he only intended to rob Ms. Demirjian because he needed money, why didn’t he take her purse and leave instead of continuously beating her with a metal pipe? What would have happenedto herif a neighbor had not responded to her screams? (12 RT 2544.) The only reasonto spare Parker’s life would be mercy and sympathy, yet Parker never showed any mercy or sympathy throughouthis adult life. (12 RT 2545.) Parker wasa staff sergeant in the Marine Corps who went out in search of females alone in their homesso he could rape them. It never occurred to him to rape a woman withoutfirst beating her 147 HectorRARERALARAshaRPEcoMe Rt OB sere He a NE unconsciouswith a blunt object. He then left them for dead after he was done violating them for sexual gratification. The penalty phase verdict was not affected by closing argument. There is no reasonably possibility that Parker would have enjoyed a more favorable outcomein the penalty phase if only his attorneys had been able to more fully argue that he would not pose a dangerin the future. VI. CALIFORNIA’S DEATH PENALTY STATUTE AND MODEL JURY INSTRUCTIONS REGARDING THE JURY’S PENALTY DETERMINATION ARE CONSTITUTIONAL Parker raises numerous claims relating to the constitutionality of California’s death penalty statute and the standard jury instructions regarding the jury’s penalty determination. (AOB 224-238.) He acknowledged his contentions have been repeatedly rejected by this Court and raises his claims on appeal in orderto fairly present the issues and preserve his claims for federal review. (AOB 224,citing Peoplev. Schmeck (2005) 37 Cal.4th 240, 303-304.) Each of Parker’s contentions have been consistently and repeated rejected by this Court, and he offers no basis for this Court reconsidering its views on these issues in his appeal. A. California’s Death Penalty Statute and the Instructions Below Properly Address Burdensof Proof Parker makes numerousfamiliar challenges to California’s death penalty statute and instructions based on the absence of burdensofproof and unanimousfindings in reaching a penalty verdict. (AOB 224-235.) AsParker acknowledges, his contentions have repeatedly been rejected, and he offers no reason for this Court doing otherwisein his appeal. 148 1. Parker’s Jury Was Not Required to Make Findings Beyond a Reasonable Doubtas to the Existence of Aggravating Factors, That Aggravating Factors Outweighed Mitigating Factors, or That Death Was The Appropriate Penalty Parker contends that the Sixth Amendmentrequiredthat his jury find beyond a reasonable doubt that: (1) aggravating factors were present; (2) aggravating factors outweighed mitigating factors; and (3) aggravating factors were so substantial as to make death the appropriate punishment. (AOB 225, citing Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435]; Blakely v. Washington (2004) 542 U.S. 296, 303- 305 [124 S.Ct. 2531, 159 L.Ed.2d 403]; Ring v. Arizona (2002) 536 U.S. 584, 604 [122 S.Ct. 2428, 153 L.Ed.2d 556].) As Parker acknowledgeshis contention has been repeatedly rejected by this Court. (People v. D’Arcy (2010) 48 Cal.4th 257, 307; People v. Burney (2009) 47 Cal.4th 203, 260; People v. Friend (2009) 47 Cal.4th 1, 90; AOB 226,citing People v. Prieto (2003) 30 Cal.4th 226, 263.) Parker offers no basis for this Court reconsidering its prior decisions rejecting his contention. Parker also contendsthe prohibition against cruel and unusual punishment was violated and he was denied due process of law because his jury was not required to find beyond a reasonable doubtthat aggravating factors outweighed factors in mitigation and that death is the appropriate punishment. (AOB 224-226.) As Parker acknowledges, this Court has repeatedly rejected this same contention. (People v. D’Arcy, supra, 48 Cal.4th at p. 307; People v. Friend, supra, 47 Cal.4th at p. 90; AOB 226, citing People v. Blair (2005) 36 Cal.4th 686, 753.) Parker provides no reason for this Court to revisit this issue. 149 + tetraeekERLEUEERMCROMRINIERQI YN ys Kone ipa omens aNa a 2. Parker’s Jury Was Not Required to Apply a Burdenof Proof to Its Penalty Verdict Beyond Consideration of Unadjudicated Criminal Acts UnderFactor (b) Parker also argues that since the Sixth, Eighth, and Fourteenth Amendments compelthat the jury be given the required guidance for imposing the death penalty the jury mustbe instructed as to a burden of proof, even if that burdenis less than the beyond a reasonable doubt standard. (AOB 226-227.) As Parker acknowledges, this Court has rejected the contentionthat capital sentencing is susceptible to burdens of proofor persuasion becauseit is largely moral and normative and unlike other sentencing.” (People v. Friend, supra, 47 Cal.4th at p. 90; AOB 227, citing People v. Lenart (2004) 32 Cal.4th 1107, 1136-1137.) Accordingly, the only burdenof proofapplicable to the penalty phase of Parker’s trial is the state law requirementthat before a juror considered any unajudicated criminal acts as evidencein aggravation underfactor (b), the juror must find those acts proven beyond a reasonable doubt. (See People v. D’Arcy, supra, 48 Cal.4th at p. 308; People v. Robertson (1982) 33 Cal.3d 21, 53- 55, 60-62.) Parker offers no reason for this Court to reconsiderits decisions rejecting application of burdensofproofto capital sentencing and the lack of any requirementthat a jury be instructed as to a presumption of life instruction. *? Parkeralso notes this Court has rejected any requirementthat a penalty phase jury be instructed on a presumptionoflife. (AOB 227,citing People v. Arias (1996) 13 Cal.4th 92, 190.) Parker argues such an instruction is required in subsection8 ofthis claim. (See AOB 234-235.) Accordingly, Respondent addressesits lack of merit in subsection 8 herein. 150 3. Parker’s Jury Was Not Required to Unanimously Find the Existence of Aggravating Factors, or to Be Instructed It Must Unanimously Find Unadjudicated Criminal Activity True Before Considering It as a Factor in Aggravation Parker contendsthat the Sixth, Eighth, and Fourteenth Amendments required his jury to unanimouslyfind the existence of aggravating factors, and be instructed it must unanimously find prior unajudicated criminal acts true before considering such conductas a factor in aggravation. (AOB 227- 230.) As Parker acknowledges, this Court has repeatedly rejected both contentions. (People v. D’Arcy, supra, 48 Cal.4th at p. 308; People v. Whisenhunt (2008) 44 Cal.4th 174, 228; AOB 228-229,citing Peoplev. Ward (2005) 36 Cal.4th 186, 221-222; People v. Prieto, supra, 30 Cal.4th at p. 275; People v. Anderson (2001) 25 Cal.4th 543, 584-585; People v. Taylor (1990) 52 Cal.3d 719, 749.) Parker offers no reason for this Court to revisit its prior decisions rejecting these same contentions. 4. The Penalty Phase Instructions Were Not Vague or Ambiguous Parker complainsthe instruction to the jury to return a verdict of death if “persuadedthat the aggravating circumstancesare so substantial in comparison with the mitigating circumstancesthatit warrants death instead of life without parole” was unconstitutionally vague and ambiguous because the phrase “so substantial” is impermissibly broad and does not channeldiscretion sufficiently to minimize the risk of an arbitrary and capricious imposition of the death penalty. (AOB 230-231.) As Parker acknowledges this Court has rejected his contention. (People v. D’Arcy, supra, 48 Cal.4th at p. 302; People v. Friend, supra, 47 Cal.4th at p. 90; AOB231, citing People v. Breaux (1991) 1 Cal.4th 281, 316, fn. 14.) 151 cebseESETUNS BCRRS ABMNHIINORER se SteTene Feet at ves tk 1 atBate Parker offers no reason for this Court to revisit its prior rejection ofhis argument. 5. The Penalty Phase Instructions Adequately Informed the Jury Regarding Its Determination Whether Death Was the Appropriate Punishment Parker contends the jury was not adequately instructed that it was to determine whether death was the appropriate punishment because standard CALJIC jury instruction number8.88 instructs the jury to return a death verdict if the aggravating evidence “warrants” death as opposedto life withoutpossibility of parole. (AOB 231.) As Parker acknowledges, this Court has rejecting this contention. (People v. Friend, supra, 47 Cal.4th at p. 90; AOB 231, citing People v. Arias, supra, 13 Cal.4th at p. 171.) Parker provides no reason for this Court to revisit its decisions rejecting the contention. 6. CALJIC No. 8.88 Does Not Fail to Conform to the Mandate of Penal Code Section 190.3 Because It Does Not Inform Jurors They Must Return a Verdict of Life Without Possibility of Parole if They Determine That Mitigation Outweighs Aggravation Parker complains the instructions did not inform the jury of the converse proposition that if they did not find the factors in aggravation outweighedfactors in mitigation they must return a verdict oflife without possibility of parole if they determined mitigation outweighed aggravation. (AOB 232.) As Parker acknowledges, this Court has rejected the contention the jury must be expressly admonishedthat it must return a verdict oflife without possibility of parole if it finds the factors in aggravation are outweighed by factors in mitigation. (People v. Taylor (2009) 47 Cal.4th 850, 900; AOB 232,citing People v. Duncan (1991) 152 53 Cal.3d 955, 978.) As this Court has explained the conceptis clearly implicit in modeljury instruction CALJIC No. 8.88. (People v. Taylor, supra, 47 Cal.4th at p. 900.) Parker argues that this Court’s analysis conflicts with its decisions disapproving of instructions that emphasize the prosecution theory of the case while ignoring or minimizing the defense theory. (AOB 232, citing People v. Moore (1954) 43 Cal.2d 517, 526-527; People v. Kelley (1980) 113 Cal.App.3d 1005, 1013-1014.) Carter’s reliance on this Court’s decision addressing pinpointinstructions on the issue of self-defense (People v. Moore, supra, 43 Cal.2d at pp. 526-531) or an intermediate appellate court decision on instructions relating to the burden of proof regarding mitigation that excuses orjustify a homicide (People v. Kelly, supra, 113 Cal.App.3d at pp. 1013-1014) ora pronouncement on due process from the high court in the context of requiring the disclosure of alibi defense evidenceas a part of reciprocal discovery (Wardius v. Oregon (1973) 412 U.S. 470, 473-474 [93 S.Ct. 2208, 37 L.Ed.2d 82]) affords no basis for this Court to revisit its past decisions rejecting this same claim of instructionalerror. 7. The Instructions Did Not Convey a Burden of Proof as to Mitigating Evidence Nor Impermissibly Foreclose Full Consideration of Mitigating Evidence Parker complainshis rights under the Eighth Amendmentwere violated because ofa likelihood the instructions permitted the jury to apply a burden of proof for mitigation evidence and thereby prevented consideration of evidence in mitigation. (AOB 233-234.) Parker argues that since the jury was instructed in the guilt phase it had to unanimously find special circumstancestrue, there is a substantial likelihood that the jurors would believe that unanimity was also required to find a factorin 153 cL eventRORARAMAademcmaa, SEMIS cnrag Ee Ee Ae nee gee te Sanginee mitigation existed. (AOB 233.) Parker’s supposition is particularly unavailing inasmuchas the jury was instructed during the penalty phase: “Please set aside the legal instructions given during the guilt phase and any other prior jury instructions provided to you during the course of these proceedings. Theinstructions that apply to this phaseofthetrial will now beread to you.” (10 RT 2064; 10 CT 3044.) Building upon this untenable premise, Parker then arguesthat this supposed implied “unanimity requirement”limited the consideration of mitigation evidencein violation of the Eighth Amendment. (AOB 233, citing McKoy v. North Carolina (1990) 494 U.S. 433, 442-443 [110 S.Ct. 1227, 108 L.Ed.2d 369] [invalidating state’s requirement that jury unanimously agree that evidence was mitigating before that mitigation evidence could be considered by a juror in a capital sentencing].) Contrary to Parker’s argument,as this Court has repeatedly held, the standard model jury instructions given below did notfail to provide sufficient guidance regarding consideration of mitigation evidence. (People v. D’Arcy, supra, 48 Cal.4th at p. 303; People v. Rogers (2009) 46 Cal.4th 1136, 1179.) 8. No Presumption of Life Instruction Was Required Parker arguesthat the presumption oflife in a penalty phaseis the correlate of the presumption of innocence and the absence of an instruction to the jury that the law favorslife and presumeslife imprisonment without parole to be the appropriate choice violates his right to due process, to be free from cruel and unusual punishment, equal protection, and his right to a reliable death sentence. (AOB 234.) This Court has repeatedly rejected the argumentthat an instruction on the presumptionoflife is required in a penalty phase proceeding. (People v. Ervine (2009) 47 Cal.4th 745, 811; People v. Whisenhunt, supra, 44 Cal.4th a p. 228; People v. Geier (2007) 154 nenbDEEROH 41 Cal.4th 555, 618.) Parker provides no basis for this Court to revisit its viewsregarding the absence of any such requirement. B. The Absence of Written Findings Does Not Deny Parker Meaningful Appellate Review Parker complains that he was denied his constitutional rights under the Sixth, Eighth, and Fourteenth Amendments becausethefailure to require written findings during the penalty phase deniedhis right to meaningful appellate review. (AOB 235.) As Parker acknowledges,this Court has rejected this argument. (People v. Gamache (2010) 48 Cal.4th 347, 406; People v. D’Arcy, supra, 48 Cal.4th at p. 307; People v. Friend, supra, 47 Cal.4th at p. 90; AOB 235, citing People v. Cook (2006) 39 Cal.4th 566, 619.) Parker provides no basis for this Court to reconsider its past rejections of the same claim. C. The Jury Instructions on Mitigating and Aggravating Factors Were Constitutional Parker contendsthat the jury instructions on mitigation and aggravation were unconstitutional because ofthe use of restrictive adjectives in the list of potential mitigating factors and failed to delete inapplicable sentencing factors. (AOB 235-236.) As Parker acknowledges, this Court has repeatedly held that use of the words “extreme” and “substantial” in CALJIC No.8.85 and Penal Code section 190.3, factors (d) and (g) respectively, is not a barrier to consideration of mitigating evidence and doesnotviolate the Fifth, Sixth, Eighth, and Fourteenth Amendments. (People v. D’Arcy, supra, 48 Cal.4th at p. 308; People v. Friend, supra, 47 Cal.4th at p. 90; AOB 236,citing People v. Avila (2006) 38 Cal.4th 491, | 614; People v. Jackson, supra, 45 Cal.4th at p. 708.) The use of the word “extreme” regarding “mental or emotional disturbance”in factor (d) and “substantial” regarding “duress or substantial domination by another”in 155 factor (g) was proper. Moreover, even if the jury were to find mitigating evidence regarding a mental conditionfell short of being “extreme”that same mitigating evidence would then be considered underthe catch-all of factor (k). (People v. Gamache, supra, 48 Cal.4th at p. 406; People v. Mills, supra, 48 Cal.4th at p. 211.) Here, Parker’s jury was expressly instructed: “Evidence of defendant’s mental state, illness, or disturbance maybe considered a factor in mitigation evenif it did not rise to the level of a legal defense. It need not be an extreme mentalstate, illness, or disturbance in order to constitute a mitigating factor.” (12 RT 2575-2576; 10 CT 3059.) Accordingly, Parker could not conceivably have been disadvantaged by the standard instructions, even assumingerror. Parker also concedesthat this Court has rejected his complaintthatit is unconstitutional to neglect to delete inapplicable factors from the jury instructions. (AOB 236,citing People v. Cook, supra, 36 Cal.4th at p. 618.) While Parker asks this Court to reconsiderits past decisions on deleting inapplicable factors, he provides no analysis or reason for doing so other than simply asserting that the failure to delete inapplicable factors “would likely confuse the jury.” (AOB 236.) This Court has been urged to reconsider its views on the deletion of inapplicable factors based on the argumentthatif the jury were instructed on inapplicable factors, it might simply countup all the possible factors and give unjustified weight to inapplicable factors. (People v. Mills, supra, 48 Cal. 4th at p. 210.) As this Court explained in declining to depart from its past rulings on the subject, such a possibility was “highly unlikely” because the jury “wasinstructed that any one mitigating factor could support a decision that death is an inappropriate penalty, and any mitigating factor could outweighall the aggravating ones.” (/d.) Accordingly, any dangerthat the jury would simply addupthe factors is eliminated. (/d.) 156 Parker’s jury was likewiseinstructed. (See 12 RT 2608; 10 CT 3110 [CALJIC No. 8.88].) Moreover, Parker’s jury wasalso instructed: In the list of aggravating and mitigating circumstances listed in the previous instruction, the factors (A) and (B)are the only statutory factors that can possibly be considered aggravating factors. They mayalso be considered as mitigating factors. It is for the jury to determine whether factors (A) and (B) are either mitigating or aggravating. The absence of evidenceas to a possible mitigating factor shall not be considered as a factor in aggravation. If no evidence waspresentedby either party as to a particular factor, then that factor is not applicableto this case.[*] (12 RT 2572; 10 CT 3051.) There is no basis for concern regarding possible confusion, and nostate or federal constitutional error predicated uponthe jury being instructed regarding inapplicable sentencing factors. D. There Is No Constitutional Requirementof Inter-Case Proportionality Review Parker complains that California’s death penalty schemeis unconstitutional becauseit fails to provide for intra-case proportionality review. (AOB 236-237.) This Court has repeatedly rejected the argument that its refusal to conductintercase proportionality review of a death sentence violates the federal constitution. (People v. Gamache, supra, 48 Cal.4th at p. 407; People v. D’Arcy, supra, 48 Cal.4th at p. 307; People v. Lewis, supra, 46 Cal.4th at p. 1320; People v. Dykes (2009) 46 Cal.4th 731, 819; People v. San Nicholas (2004) 34 Cal.4th 614, 677.) Parker provides no reason for this Court to reconsiderits views on the subject. ® The jury wasinstructed that factor(c) refers to prior felony convictions that were entered on a defendant’s record before the offenses were committed, and expressly instructed that “in these proceedings Factor (C) isinapplicable.” (12 RT 2574; 10 CT 3057.) ~ 157 pinesneeNHelmerACSScat Ta cenai ae es 2 ‘ en OOO es SeeRee E. California’s Capital Sentencing Scheme Does Not Violate Equal Protection Parker contendshis right to equal protection was violated because California’s death penalty schemeprovides“significantly fewer procedural protections” than for those who are charged with non-capital crimes. (AOB 237.) Specifically, he complainsthat there is no requirementof a unanimousfinding beyonda reasonable doubt for any aggravating factor or written reasonsjustifying a death sentence. (AOB 237.) Parker acknowledges this same contention has been rejected by this Court. (AOB 237, citing People v. Manriquez (2005) 37 Cal.4th 547, 590.) Parkerprovidesno basis for this Court to reconsider its repeated rejection of the argument. F. California’s Use of the Death Penalty Does Not Violate International Law Parker contends that California’s use of the death penalty falls short of “international norms” and thereby denies him his constitutional rights under the Eighth and Fourteenth Amendments by violating “evolving standards of decency.” (AOB 238.) Parker acknowledges this Court has rejected claims that California’s useofthe death penalty violates international law. (AOB 238,citing People v. Cook, supra, 39 Cal4th at pp. 618-619; People vy. Snow (2003) 30 Cal.4th 43, 127; People v. Ghent (1987) 43 Cal.3d 739, 778-779.) Parker urges this Court to reconsider its previous rejections of the claim in light of the United States Supreme Court’s decision in Roper v. Simmons (2005) 543 U.S. 551, 554 [125 S.Ct. 1183, 161 L.Ed.2d 1], prohibiting capital punishmentfor crimes committed by juveniles. As this Court has repeatedly reaffirmed, international law does not prohibit a sentence of death rendered in accordance with state and 158 federal constitutional and statutory requirements. (People v. Friend, supra, 47 Cal.4th 1, 90.) Nothing in Roperalters that fact. VII. PARKER WASNot DENIEDA FAIR TRIAL AND RELIABLE DEATH JUDGMENT BASED ON CUMULATIVE ERROR®™ Parker contends that he was denied a fundamentally fair trial and reliable death judgment based upon the cumulative effect of errors in his trial. (AOB 239-240.) There wasnoerror, and thus no effect from errors to accumulate. Moreover, whether considered individually or for their cumulative effect, the alleged errors could not have affected the outcome of the trial. (People v. Seaton (2001) 26 Cal.4th 598, 691-692; People v. Ochoa (2001) 26 Cal4th 398, 458; People v. Catlin (2001) 26 Cal.4th 81, 180.) Evena capital defendantis entitled only to fair trial, not a perfect one. (People v. Stewart (2004) 33 Cal.4th 425, 522; People v. Cunningham (2001) 25 Cal.4th 926, 1009; People v. Box (2000) 23 Cal.4th 1153, 1214.) The record demonstrates that Parker received a fair trial. He is entitled to nothing more. °! There are seven arguments in Appellant’s Opening Brief. However, the cumulative-error argumentis numbered ArgumentVIII. Respondentaddresses the cumulative-error argument herein in ArgumentVII. 159 sreaomtyiniemeatahemnAernsatAERIESe CONCLUSION For the foregoing reasons, respondent respectfully requests this Court affirm the judgmentofconviction and sentence of deathin its entirety. Dated: May 20, 2010 Respectfully submitted, EDMUND G. BROWN JR. Attorney General of California DANER, GILLETTE Chief Assistant Attorney General GARY W. SCHONS Senior Assistant Attorney General ANNIE FEATHERMAN FRASER Deputy Attorney General OLLY D. WILKENS Supervising Deputy Attorney General Attorneysfor Respondent HDW:sm $D1999XS0003 70277108.doc 160 CERTIFICATE OF COMPLIANCE I certify that the attached RESPONDENT’S BRIEF uses a 13-point Times New Romanfont and contains 46,757 words. Dated: May 20, 2010 EDMUND G. BROWN JR. . Attorney General of California ——— HOLLY D. WILKENS Supervising Deputy Attorney General Attorneysfor Respondent 6 ne tangent gerRearALEaAimthtOaeHcg Beretta He entMUR ATARIE-greetings. sence mb RptteghcraaeEDATITAN NTGRETe ne a werent DECLARATION OF SERVICE BY U.S. MAIL Case Name: People v. Gerald Parker No.: S076169 I declare: I am employed in the Office of the Attorney General, which is the office of a memberofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the businesspractice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placedin theinternal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service that same dayin the ordinary course of business. On May20, 2010, I served the attached RESPONDENT’SBRIEFbyplacing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail collection system at the Office of the Attorney General at 110 West A Street, Suite 1100, P.O. Box 85266, San Diego, CA 92186-5266, addressed as follows: JEFFREY J GALE CLERK OF THE COURT ATTORNEY AT LAW ATTN HON FRANCISCO P BRISENO 5714 FOLSOM BLVD NO 212 ORANGE CO SUPERIOR COURT SACRAMENTO CA 95826 POBOX 1994 Attorneyfor Appellant SANTA ANA CA 92702-1994 Gerald Parker (2 Copies) ANTHONY J RACKAUCKAS DISTRICT ATTORNEY CALIFORNIA APPELLATE PROJECT COUNTY OF ORANGE 101 SECOND ST STE 600 POBOX 808 SAN FRANCISCO CA 94105-3672 SANTA ANA CA 92702 HABEAS CORPUS RESOURCE CENTER 303 SECOND ST STE 400 SOUTH SAN FRANCISCO CA 94107 I declare under penalty of perjury underthe laws of the State of California the foregoingis true and correct and that this declaration was executed on May 20, 2010, at San Diego, California. STEPHEN MCGEE Fy)vf) Declarant A“ Piaa =