Opinion
D069297 D069609
12-29-2017
THE PEOPLE, Plaintiff and Respondent, v. DOROTHY G. MARAGLINO et al., Defendants and Appellants.
Randall Bookout, under appointment of the Court of Appeal, for Defendant and Appellant Dorothy Grace Maraglino. Raymond Mark DiGuiseppe, under appointment of the Court of Appeal, for Defendant and Appellant Jessica Lynn Lopez. Arthur Martin, under appointment of the Court of Appeal, for Defendant and Appellant Louis Ray Perez. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V. Hawley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCN304686) CONSOLIDATED APPEALS from a judgment of the Superior Court of San Diego County, K. Michael Kirkman, Judge. Affirmed in part and reversed in part. Randall Bookout, under appointment of the Court of Appeal, for Defendant and Appellant Dorothy Grace Maraglino. Raymond Mark DiGuiseppe, under appointment of the Court of Appeal, for Defendant and Appellant Jessica Lynn Lopez. Arthur Martin, under appointment of the Court of Appeal, for Defendant and Appellant Louis Ray Perez. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V. Hawley, Deputy Attorneys General, for Plaintiff and Respondent.
In 2015, a jury convicted Louis Perez, Dorothy Maraglino, and Jessica Lopez of first degree murder (Pen. Code § 187, subd. (a)), kidnapping (§ 207, subd. (a)), torture (§ 206), and attempted sexual battery by restraint (§§ 243.4, subd. (a) & 664) following the death of Brittany Killgore in April 2012. The jury also convicted Perez and Maraglino of a conspiracy to kidnap (§ 182, subd. (a)(1)), but acquitted Lopez of that charge. In addition, the jury made a true finding as to all defendants on the special circumstance allegation that the murder was committed during a kidnapping (§ 190.2, subd. (a)(17)(B)). The prosecution did not seek the death penalty, and all three defendants were sentenced to life imprisonment without parole (LWOP) for first degree special circumstance murder.
Further statutory references are to the Penal Code, unless otherwise specified.
On appeal, defendants argue the trial court prejudicially erred by admitting evidence of their BDSM lifestyle and not severing their trials. They challenge the sufficiency of the evidence supporting their convictions and true special circumstance findings, and Maraglino argues her resulting LWOP sentence violates the Eighth Amendment. Lopez raises a separate challenge as to the trial testimony of Dr. Alan Abrams, who testified for Perez regarding Lopez's mental health, and Maraglino raises separate claims of instructional error.
The acronym "BDSM" was used throughout trial to refer to "bondage discipline sadomasochism." As described at trial, the BDSM lifestyle included defined roles of "master" and "slave," graphic fantasy writings, and the infliction (and receiving) of pain during "play" sessions.
We find no abuse of discretion in the admission of BDSM evidence or in defendants' joint trial. Viewed in the light most favorable to the verdict, there is insufficient evidence to support Maraglino's convictions for torture and attempted sexual battery by restraint, but sufficient evidence supporting defendants' remaining convictions and special circumstance findings. Consequently, Maraglino's LWOP sentence does not violate her Eighth Amendment rights. We further conclude any error in permitting Dr. Abrams to testify was harmless, as was any instructional error claimed by Maraglino.
FACTUAL SUMMARY
"We recite the evidence in the light most favorable to the jury's verdict." (People v. Banks (2015) 61 Cal.4th 788, 795 (Banks).)
On April 13, 2012, Perez picked up Killgore from her apartment under the pretext of taking her on a dinner cruise. Ten minutes later, Killgore sent her friend a text message saying, "Help." Four days later, detectives recovered her nude body near Lake Skinner in Riverside County. Evidence presented at trial suggested Killgore died while defendants were acting out a BDSM kidnapping fantasy.
Perez, Maraglino, and Lopez were active participants in the BDSM lifestyle, respectively occupying roles in their household of "master," "mistress," and "slave." Perez and Maraglino were in a dominant-submissive relationship wherein Perez was the dominant and Maraglino was his submissive. Perez lived in a separate residence but often visited Maraglino at her home in Fallbrook, California. Lopez was Maraglino's slave and lived in Maraglino's home.
As a masochist, Lopez enjoyed receiving pain; Maraglino would inflict pain on her through BDSM "play." Although a slave in the Maraglino household, Lopez had been a dominant in the past and in an ongoing online relationship with someone named Bella. Maraglino was a "switch," meaning she was submissive with Perez and dominant with Lopez. Maraglino established written procedures, including a "House Manual," "Perfect Slave Checklist," and slave contract. She controlled everything Lopez did inside and outside the home; Lopez wore a dog collar stating she was Maraglino's property. As Maraglino's master, Perez had control over Maraglino's household, including control over Lopez.
Perez was a sadist and enjoyed inflicting pain on others. In his past relationship, he choked J.L. almost every time they had sex and proposed to have her abducted by strangers. He also restrained J.L. during sex and dragged a heavy chain and knife across her body. There were times J.L. did not want Perez to engage in certain acts but did not feel that using her safe word would be effective. In a different relationship, Perez choked A.M. about 25 to 30 percent of the time during sex, either with his hands or with a belt. He told A.M. about kidnapping scenarios he had tried with others. One involved a group of men driving around and taking turns having intercourse with a female in the van; Perez asked A.M. to act as that female. Although there was testimony Perez was considered a "safe" player in the BDSM community who acted only with consent, detectives found a video of Perez beating a woman with various implements as she begged him to stop and continuing to beat her past the point of consciousness.
All three defendants had BDSM abduction, torture, and murder fantasies. Lopez's diary contained a ciphered writing in which she abducted, tortured, and killed someone she disliked, disposing of the body and dousing evidence with bleach. Maraglino authored a writing about abducting three generations of women, each one "prescribed a method of death" and subjected to sexual torture, torture, and forced suicide. Maraglino authored a separate writing, found in Perez's garage, in which she slit the throat of a woman while that woman was having sex with Perez. Maraglino made a handwritten list of "hunting ground[s]" for vulnerable victims that included ways to dispose of a body and avoid detection. Perez and Maraglino discussed their abduction fantasies with Dora B., another of Maraglino's slaves, on two or three occasions. At one point, Maraglino asked Dora how she would react if a kidnapped woman were brought to the home. Dora worried these fantasies "didn't always take consent into account," but she "wanted to believe that it was nothing more than a fantasy."
Perez and Maraglino acted out an abduction fantasy on Nicole A. Without prior agreement, Perez and Maraglino picked up Nicole in a parking lot, blindfolded her, undressed her in the "dungeon" in the basement of Maraglino's home, restrained her, and engaged in BDSM play. Thereafter, Nicole voluntarily joined the household for a short period as Maraglino's slave.
Perez and Maraglino had an open relationship, but Maraglino was paranoid about losing him to another woman. Nicole's relationship with Maraglino soured because Nicole communicated with Perez directly, rather than go through her. As their relationship deteriorated, Maraglino made threatening statements toward Nicole's daughter. When Perez began seeing Marina V., Maraglino talked about killing Marina and wanting her to die a torturous death; in an online forum, she threatened to kill Marina and Marina's daughter. Perez and Maraglino briefly broke up over Marina; they soon rekindled their relationship and in 2011 conceived a child.
Although there was some evidence the relationship between Perez and Maraglino became more conventional after they reunited, there was also evidence they remained involved in BDSM. Lopez remained Maraglino's slave. Maraglino kept her BDSM toys and, on the day of Killgore's disappearance on April 13, 2012, sent Deborah E. a text message about a forced lactation-torture fantasy. On the day before Killgore's disappearance, Perez texted Al.E. about upcoming plans to engage in BDSM play with someone he did not like, which to Al.E. was a "very big red flag." Al.E. told Perez not to go through with it, but he said it would give him "control to temper my feelings and not hurt[] someone I want to hurt badly."
For brevity, this opinion will use the word, "texted" to mean the act of sending a text message.
Killgore's close friend, Elizabeth Hernandez, became friends with Maraglino in 2011. Hernandez would often visit Maraglino's home and bring Killgore with her. Killgore and Hernandez were not involved in BDSM, but both knew that defendants were. Although Maraglino was initially friendly with Killgore, she became hostile toward her after she perceived Killgore flirting with Perez. Maraglino called Killgore "the disease" and "the herpes" when she was not around; asked why Hernandez and Killgore were always together; and seemingly in jest, offered to get rid of Killgore for Hernandez. There was some evidence Maraglino wanted to recruit Hernandez into the BDSM lifestyle because Hernandez seemed impressionable and easy to control. On April 13, 2012, the day of Killgore's disappearance, Maraglino wrote a letter stating:
"I Dee [Maraglino] do hereby give to Ivan [Perez] all my grudges and revenge from my birth till now. I release my anger and entrust justice into Ivan's hands. I accept Ivan will decide, design, and dispense the measure of retribution he deems appropriate to my enemies, tormenters, and violators."
Lopez appeared to have a better relationship with Killgore, but she, like Maraglino, called Killgore "the disease" and "herpes" and joked, on April 13, 2012, that she would make Killgore walk the plank at her pool party the next day.
On the afternoon of April 13, 2012, Hernandez visited Maraglino's home to return a camera charger. She stayed to socialize with Maraglino and Perez; Lopez was not home. Maraglino seemed excited to hear Killgore was going to move to the east coast, saying Hernandez would finally be "free." Hernandez told Perez and Maraglino about her recent excursion on the Hornblower dinner cruise in San Diego. She said Killgore seemed very interested in going, and she wanted to take Killgore on a cruise before she moved. Hernandez recalled nothing out of the ordinary about her conversation. Perez and Maraglino did not mention having tickets or plans to go on a dinner cruise that evening.
Killgore and Hernandez lived in the same apartment complex on Ammunition Road in Fallbrook, as did friends Channy Tal and Jessica Perry. At 4:38 p.m. on April 13, 2012, Perez knocked on Killgore's door. Tal was in the apartment, helping Killgore pack for her upcoming move. Killgore asked Perez how he knew where she lived; Perez replied that he had "asked around." Perez pressed Killgore to come with him on the Hornblower dinner cruise that night, saying he had two tickets but nobody to go with. Killgore declined. Perez gave Killgore his phone number, and security footage showed him leaving the complex at 4:54. When leaving the apartment, Perez texted Maraglino, "That guy wasn't successful," to which Maraglino replied, "Tomorrow is another day."
Tal changed her last name before trial, but we use her maiden name for consistency.
All times are p.m., unless otherwise noted.
A few minutes after Perez left, Killgore texted to ask if he knew anyone who could help move her belongings. At 5:00, Perez texted Killgore, "Party with me tonight & you'll have five guys there in the morning." Killgore replied that she would welcome help moving but felt "weird about the partying" because she did not think Maraglino would like it.
Killgore told Tal she was uncomfortable accompanying Perez because he was in a relationship with Maraglino. Perez responded to Killgore's text, saying Maraglino was "ok with it" and suggesting at 5:19 that Killgore text her to confirm. Killgore replied at 5:26 that she did not know Maraglino's number and did not think Maraglino liked her. Perez reassured Killgore that was not the case and gave her Maraglino's number. At 5:39, Perez checked in to see if Killgore had contacted Maraglino. Killgore replied two minutes later that she had not but would. At 5:42, Maraglino searched the Internet on her phone for "San Diego dinner cruise." A minute later, Perez texted Killgore to say he was "dressing up to go to dinner on the hornblower."
Killgore called Maraglino and left a voicemail message at 5:55. Maraglino called back ten minutes later, and Tal overheard their conversation. Maraglino seemed friendly and was laughing; she told Killgore to go with Perez on the cruise because she was pregnant and would get seasick. After speaking with Maraglino, Killgore decided to go. She told Tal she had no interest in Perez, but thought it would be her last chance to go on the dinner cruise before she moved to Pennsylvania the following week.
Killgore texted Perez around 6:10 agreeing to go, asking what time he would pick her up and when his friends would help her move. At 6:12, Maraglino searched the Internet on her cell phone for "Hornblower San Diego." Perez sent Killgore texts at 6:15 and 6:19 asking her to be ready at 7:30 that night and stating his friends would help her move in the morning. At trial, the parties stipulated that on April 13, 2012, the Hornblower cruise left the dock in San Diego at 7:00, meaning it would not have been possible to make it if they left Fallbrook at 7:30, and that Maraglino, Perez, and Killgore did not have tickets for the cruise.
Killgore left Tal phone numbers for Perez and Maraglino, saying she still felt unsure about going. She borrowed two dresses from Tal and got ready to leave. At 6:38, Killgore texted Hernandez that Perez had stopped by to ask her out and it was "odd." Hernandez followed up, and Killgore texted her at 7:30 that Perez was taking her "[t]o the [H]ornblower and a casino" after Maraglino had given permission. Hernandez testified that this plan confused her because Perez and Killgore hardly interacted.
At 7:31, Perez sent Killgore a text message saying, "I'm running late be there in five minutes, can you meet me at the curb? I got stopped at the front gate." Killgore responded, "At the curb? It's raining you know. Id appreciate it if you drove into the complex." Perez responded, "It's not. I don't want to miss our boat." Perez called Killgore and evidently agreed to drive up to her complex. Surveillance footage showed Perez entering the complex at 7:36. At 7:37, Perez texted Killgore, "I'm here," and Killgore responded, "I'm out now." At 7:39, Killgore texted Perry that she was going with Perez on a dinner cruise and might stop by to visit Perry afterwards. Surveillance footage showed someone getting into the passenger side of Perez's car; the car pulled out of the lot around 7:40. Perez testified that he then drove Killgore to Maraglino's home to pick up a flier, and a neighbor recalled Perez's car swerving up to Maraglino's residence near dusk.
At trial, Perez admitted he knew there were surveillance cameras in Killgore's apartment complex, supporting an inference that he tried to park outside their view when picking Killgore up.
At 7:50, ten minutes after leaving her apartment complex with Perez, Killgore sent Tal a text message that read, "Help." Killgore's cell phone was closer to Maraglino's house than to her apartment when she sent that text. At 7:57, Perez texted Maraglino, "Kitten?" At that point, Maraglino and Lopez were shopping at a grocery store located just minutes away from Killgore's apartment and about 5 to 15 minutes from Maraglino's home (depending on traffic). Around 7:58, Lopez left the store to retrieve her wallet from Maraglino's home while Maraglino waited at the checkout aisle.
Around 8:00, Tal tried three times to contact Killgore. At 8:05, she received a text from Killgore's phone stating, "Yes I love this party." Tal was suspicious because the message did not resemble Killgore's texts. She demanded Killgore call her so she could hear her voice. Tal received another suspicious text message from Killgore's phone at 8:07 that said, "In a few hot guys." Tal insisted Killgore call her immediately, and Killgore's phone made two short calls to Tal at 8:09 and 8:10. Tal texted Killgore that she could not hear her when she called, and Killgore's phone sent Tal a message stating, "Its ok music is too loud." At trial, Perez admitted using Killgore's phone to call her friends while playing loud background music from his car.
Meanwhile, Maraglino, who remained at the grocery checkout aisle, left missed calls on Lopez's phone at 8:07 and 8:09. At 8:10, Maraglino stepped outside and returned a few seconds later with Lopez. At 8:11, Perez texted Maraglino, "Come home," suggesting he was then at Maraglino's home. At 8:12, Lopez and Maraglino were seen on video leaving the grocery store.
Killgore's friends grew very concerned. At 8:14, Hernandez called Killgore; cell location data placed Killgore's phone near Maraglino's house at that time. At 8:21, Hernandez called Maraglino, who lied that she had not spoken to Killgore that day. At 8:30, Tal texted Killgore, demanding she call her. At 8:40, Perry called Perez, who told her he had left Killgore downtown at a club. Perez told Perry he had last seen Killgore talking to some guys outside the club. He kept repeating that Killgore's face looked okay, which struck Perry as odd. Cell location data indicated Perez and Lopez were both in the vicinity of Maraglino's home in Fallbrook up to this point.
Maraglino, who previously worked for a cell phone company, told Perez that cell phones were traceable. Perez then decided to dispose of Killgore's phone in downtown San Diego to corroborate the story he had told Perry. At 9:20, cell location data showed Perez driving southbound from Fallbrook toward San Diego. Perez had Killgore's phone with him. While driving south on the I-15, Perez texted Killgore "Where are you?" and "You're friends are calling me worried." He texted Maraglino asking about her night, and Maraglino replied that she was having a quiet night at home. Perez later admitted to using Killgore's phone to send text messages to her friends. At 10:10, Tal tried again to call Killgore and texted, "Should I just call the cops." Killgore's phone responded from a downtown San Diego location, "Im ok." Perez's license plate was photographed downtown by a San Diego Police Department license reader at 10:34. Perez's phone and Killgore's phone remained downtown until 10:51, when Perry tried again to reach Killgore.
At 11:02, Perez called Perry as he was driving north from San Diego toward Fallbrook. Perez sounded frantic and told Perry he had been driving around looking for Killgore. Perez returned to Maraglino's home after midnight. Thereafter, cell data showed Perez's and Lopez's cell phones moving east toward Temecula. In the early hours of April 14, both Perez's and Lopez's cell phones were traced near Lake Skinner and later traced returning toward Maraglino's home. At trial, Perez explained that he and Lopez wrapped Killgore's corpse in a tarp and put it in a trailer that they hitched to Perez's car. Perez drove the trailer to Lake Skinner, with Lopez tailing his car to cover the trailer's missing license plate, and the two dumped the body near Lake Skinner.
On the morning of April 14, Hernandez confronted Maraglino, saying she knew Maraglino had spoken to Killgore the previous day. Maraglino stuttered and gave the phone to Perez. During the call, Perez changed his story two or three times as to what had happened the previous night.
Tal and Hernandez went to search for Killgore in her apartment; when they did not find her, they called the sheriff's department. Perez called Hernandez around noon and offered to drive her around to look for Killgore; Hernandez told him law enforcement had already arrived. Sheriff's Deputy James Breneman called Perez, who sounded panicked but offered to come talk in person.
Perez drove to Killgore's apartment complex on the afternoon of April 14. After he parked, surveillance footage showed him doing something inside his right rear passenger door. Perez told detectives Killgore was flirty, flighty, and that she had been drinking; Killgore's friends did not agree with these characterizations. Perez claimed he had left Killgore downtown at a club the night before and that Killgore had texted him, "I'm okay." Deputy Breneman was suspicious when he did not find that text on Perez's phone. He also found it strange that Perez's car was caked with fresh mud, given the heavy rains the night before. Perez agreed to provide a voluntary statement at the sheriff's department and was transported there. He consented to a search of his vehicle and was placed under arrest when deputies found an unlawful weapon inside. Later that afternoon, someone turned in Killgore's phone in downtown San Diego.
Deputies searched Maraglino's home on April 15 and 16. On April 16, Lopez and Maraglino were gone, and some items seen the previous day were missing, as if someone had cleaned up. The sheriff's department authorized a search for Maraglino's truck, which bore the license plate, "Ivnsktn" ("Ivan's Kitten," indicating Maraglino was Perez's "Kitten"). Deputies found the truck on April 17 at a hotel parking lot near the San Diego airport. They forcibly opened a room booked under Maraglino's name and found Lopez, bleeding at the neck and half naked after an apparent suicide attempt. In the room were three copies of a seven-page handwritten confession letter by Lopez, with a sign above stating, "Pigs read this."
In the letter, Lopez used derogatory language, describing Killgore as a "miserable cunt" who had tried to come between Perez and Maraglino. Lopez took complete responsibility for Killgore's death, saying sheriffs had arrested the "WRONG FUCKING PERSON" in Perez. Lopez claimed she alone had grabbed Killgore; slammed her body into the stairs; restrained her wrists, ankles, and mouth; subdued her with a Taser; wrapped rope around her neck to apply and release pressure; attempted to hack up the body with power tools; doused the body with bleach; and dumped the body near Lake Skinner. The letter described injuries that would likely be found on Killgore's body—ligature marks around her neck and wrists, a Taser mark near her neck, and bruising and mutilation marks. Lopez expressed her love to Maraglino as her slave and pet; sheriffs found a dog collar in the room marking Lopez (alias Rosalin) as "Property of Ms. Dee [Maraglino]." There were three copies of the confession letter in the hotel room, one addressed to "Master Ivan" (Perez), another to "My parents," and a third to a local media station. Surveillance video showed the hotel receptionist making copies of the letter for Lopez the previous night. Maraglino was in the hotel when Lopez had her letter copied and departed San Diego on the morning of April 17 to visit family in Virginia. Deputies accompanied Lopez to the hospital, and she was arrested thereafter.
The letter also contained statements that did not correspond with other evidence, including that the murder happened after 11:15 and that Killgore, who did not drive, appeared suddenly at the residence to demand sex with Perez.
Based on Lopez's letter, deputies focused their search team on the Lake Skinner area in Riverside County. Later that afternoon on April 17, deputies found Killgore's nude body about a mile from Lake Skinner. The medical examiner determined the cause of death to be ligature strangulation, with hemorrhaging in her eyes consistent with pressure being intermittently applied and released over a long period. The cricoid cartilage of Killgore's neck had been fractured, indicating someone had applied more than 33 pounds of pressure on her neck. There were bruises on her legs, a bruise outside her left wrist consistent with the use of handcuffs, two cuts forming a "T" on her left wrist, and five small pinprick marks on the left side of her face, consistent with the use of a stun baton. In addition, there was a deep postmortem cut to Killgore's left knee with marks consistent with the use of a power saw. The lack of maggots was consistent with the wound having been doused with bleach. There were postmortem abrasions on Killgore's back, consistent with the body being rolled down the embankment. There were no internal or external injuries to Killgore's genitalia.
As lead sheriff's detective Brian Patterson was driving to Lake Skinner on April 17, Maraglino called him to say that she and Lopez ordered a movie on cable on April 13 called "Adventures of Rin Tin" and had spent the night in. Her cable records later indicated she rented "Tintin" on April 14 and did not rent any movies on the 13th. Maraglino hung up after Patterson pressed her on inconsistencies with Perez's account, insisting that he could not get her to contradict Perez.
Officers searched Maraglino's home again on April 19. They recovered the roll of plastic mentioned in Lopez's letter and photographed a reciprocating saw blade in a drawer near the hallway. They also recovered various images, videos, documents, and BDSM implements from the home. Officers recovered a release of liability form in which Maraglino stated she voluntarily engaged with Perez in BDSM activities, including whipping, beating, and asphyxia, and that she relieved Perez of "injuries or loss of life that may result." They also recovered the April 13, 2012 writing in which Maraglino released her anger to Perez and entrusted him to deliver justice and retribution. Maraglino was arrested in May 2012.
Among these was the "Deed to Dee" and "Perfect Slave" documents, found in the room Maraglino was setting up as a nursery. At trial, Maraglino's counsel presented evidence that the "Deed to Dee" document was found in a broken glass frame at the bottom of a closet to show that Perez and Maraglino had ceased participating in BDSM by April 2012.
A later search of Perez's vehicle revealed a plastic bag containing food wrappers, disposable gloves, a piece of plastic, and a stun baton in working condition. There was blood on the plastic gloves, pieces of plastic, and the plastic bag matching Killgore's DNA. Swabs from the piece of plastic and the gloves matched Perez's DNA. The stun baton contained Perez's DNA on the straps and handle and Killgore's DNA on the prongs. There was no semen found in Perez's car. Tire treads from Perez's car were a possible match to the treads found near Killgore's body at Lake Skinner.
Sheriff's deputies ultimately found no evidence of blood or semen at Maraglino's home. They recovered a rope and knife from Maraglino's truck but could not connect those items to Killgore's murder. They also recovered from Maraglino's truck a receipt for cleaning products, water, paper towels, and rubber gloves purchased on April 14.
A special agent with the Naval Criminal Investigative Service searched Perez's home on base and found additional BDSM writings, including Maraglino's throat-slit fantasy writing. Maraglino's cell phone was found a year and a half later, cleared of text data, disassembled, and underneath several suitcases in a closet in her brother's house in Missouri. The clothes worn by Maraglino, Perez, and Killgore on April 13 were never recovered.
At trial, Perez admitted he had lied to Perry and detectives about taking Killgore downtown, and he admitted taking Killgore's cell phone downtown to match that story. He claimed he had lied to protect Maraglino but denied doing so to give her more time to clean up. Perez admitted he had misled Killgore into believing they were going on a cruise long after they had already missed it in order to get her into his car. He also admitted telling Becky Z. on October 17, 2013, "everybody had a role to play that night, including myself." On redirect, Perez explained this statement referred only to his role in the cover-up and that he had also told Becky, "I didn't kill anybody."
PROCEDURAL BACKGROUND
On May 10, 2013, the San Diego County District Attorney filed an amended information alleging that defendants Perez, Maraglino, and Lopez committed first degree murder (§ 187, subd. (a), count 1); conspiracy to commit kidnapping (§§ 182, subd. (a)(1) & 207, count 2); kidnapping (§ 207, subd. (a), count 3); torture (§ 206, count 4); and attempted sexual battery by restraint (§§ 243.4, subd. (a) & 664, count 5). With respect to count 1, the information further alleged the special circumstance that the killing was committed in the course of a kidnapping (§ 190.2, subd. (a)(17)(B)).
Before trial, Maraglino and Perez filed severance motions seeking separate trials; Lopez did not join their motions. The court denied the motions but stated it would provide limiting instructions as to certain evidence at trial.
During motions in limine, all three defendants sought to exclude BDSM evidence. The court excluded or redacted some BDSM evidence pursuant to Evidence Code section 352, but allowed other BDSM evidence to give the trier of fact context regarding defendants' lifestyle and sexual interests; common plan, preparation, intent, and motive; and the relationships between codefendants to assess their relative culpability. The court largely excluded graphic depictions of BDSM activity but permitted the prosecution to introduce testimony about those subjects. The court precluded the prosecution from introducing out-of-court statements made by one defendant that could be used against a codefendant. At the close of trial, defendants renewed their objection to the admitted BDSM exhibits and testimony. The court stated BDSM evidence had been admitted to provide necessary context and had been excluded or redacted where appropriate.
Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
Witness testimony began on September 14, 2015. The prosecution presented testimony from individuals in the BDSM lifestyle; Killgore's friends Tal, Perry, and Hernandez; grocery store and cell phone company employees; and the sheriff's department deputies and investigators involved in the case. Following the prosecution's case-in-chief, all three defendants filed a motion for acquittal pursuant to section 1118.1 as to counts 4 (torture) and 5 (attempted sexual battery by restraint). They pointed to testimony by the medical examiner that it was possible Killgore died in under a minute and that the cuts to her wrist and bruises happened after death. The court denied the defense motions, determining a reasonable jury could find an attempt to commit sexual battery based on the state in which the body was found and the BDSM evidence presented, and find a sadistic sexual purpose or possibly revenge to support a conviction for torture.
Lopez did not present any testimony in her case-in-chief; her counsel argued she was the perfect slave or patsy—a masochist, not a sadist—and there was no evidence she had any role besides authoring a confession-suicide letter to protect her mistress and master. Maraglino called to the stand her obstetrician and argued she had put her BDSM activities on hold since becoming pregnant and had no role besides assisting in the cover up. Perez testified in his defense, pinning the blame squarely on Lopez in line with her confession letter and claiming he only assisted in the cover up. Perez called a private investigator to the stand to challenge Al.E.'s testimony that he was about to engage in BDSM play with a girl he wanted to hurt badly. He also called a mental health expert to testify about Lopez's mental health problems.
At trial, both the prosecution and Lopez strenuously objected to this evidence under Evidence Code section 352, arguing it was too speculative to have probative value and would necessitate an undue consumption of time. The court ultimately allowed Dr. Abrams to testify for Perez but set strict parameters to limit his testimony.
Following deliberations, on October 21, 2015, the jury convicted Perez and Maraglino of all counts and found true the kidnapping special circumstance allegation in count 1. The jury acquitted Lopez of the conspiracy charge but convicted her of all remaining charges and found true the kidnapping special circumstance allegation.
Lopez filed a motion for a new trial, arguing the trial court should have ordered separate trials given its awareness that Perez intended to shift the blame to Lopez. The court denied Lopez's new trial motion, reasoning that she had sufficient notice and opportunity to respond to Perez's defense; cross-admissible evidence supported a joint trial; and evidence regarding Lopez's mental health was sufficiently limited to avoid undue prejudice that would render the trial unfair.
In her sentencing brief, Maraglino filed a motion to set aside the true finding on the kidnapping special circumstance and argued an LWOP sentence would violate her Eighth Amendment rights. The court denied Maraglino's motion and, on November 19, 2015, sentenced Maraglino and Perez to LWOP on count 1 and life with possibility of parole on count 4. The court imposed a determinate term of an eight-year upper term for count 2, a stayed term for count 3 pursuant to section 654, and a consecutive six-month term for count 5. The court set a $10,000 restitution fine and awarded presentence custody credits on the determinate terms.
On January 8, 2016, the court sentenced Lopez to LWOP on count 1, life with possibility of parole on count 4, a stayed term on count 3 pursuant to section 654, and a two-year upper term for count 5. The court set a $10,000 restitution fine and awarded presentence custody credits on the determinate term.
All three defendants appealed their convictions. In February 2016, we consolidated their appeals.
DISCUSSION
Defendants argue the trial court prejudicially erred by (1) admitting evidence of their BDSM lifestyle, and (2) allowing a joint trial. They challenge the sufficiency of the evidence supporting their convictions and true findings on the kidnapping special circumstance allegation; Maraglino argues, by extension, that her LWOP sentence violates her Eighth Amendment rights.
Beyond these three common arguments, Lopez and Maraglino raise separate contentions on appeal. Lopez challenges the court's decision to allow Perez to present the testimony of Dr. Abrams regarding her mental health. Maraglino argues instructional error based on the court's failure to instruct the jury with CALCRIM Nos. 375 [limited admissibility of evidence], 402 and 417 [natural and probable consequences doctrine] and in instructing the jury with CALCRIM No. 548 [alternative theories of murder]. Lopez and Maraglino both allege the cumulative impact of individual errors deprived them of a fair trial.
Lopez also raised a separate challenge of sentencing error for the attempted sexual battery conviction, but she withdrew that argument in her reply brief on appeal.
As we explain, we find no abuse of discretion in the admission of BDSM-related evidence or in the denial of severance. We find insufficient evidence to support Maraglino's convictions for torture and attempted sexual battery by restraint, but in all other respects, conclude substantial evidence supports defendants' convictions and special circumstance findings. Any error in permitting Dr. Abrams to testify, and any error in instructing the jury in the manner challenged by Maraglino, was harmless. We likewise find no cumulative error requiring reversal.
Because we vacate Maraglino's conviction for torture, we do not address her argument on appeal that the trial court prejudicially erred by failing to instruct the jury on an uncharged conspiracy to commit torture theory.
I.
ADMISSION OF BDSM EVIDENCE
All three defendants challenge the trial court's admission of BDSM-related testimony and exhibits. Although defendants acknowledge some BDSM evidence was properly admitted to show the relationships and hierarchies amongst them, they argue the bulk of the evidence was irrelevant and unduly prejudicial. We conclude the trial court did not abuse its discretion in admitting BDSM-related evidence at trial. The evidence admitted was highly probative of defendants' BDSM-related intent and common plan in kidnapping and killing Killgore, and the court reasonably found the probative value was not outweighed by its prejudicial effect.
A. Legal Principles
"Except as otherwise provided by statute, all relevant evidence is admissible." (Evid. Code, § 351.) Under Evidence Code section 1101, subdivision (a), evidence of a person's character or trait, including evidence of specific instances of conduct, "is inadmissible when offered to prove his or her conduct on a specified occasion." However, the court may admit "evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act." (Evid. Code, § 1101, subd. (b), italics added.) Propensity evidence is admissible for such noncharacter purposes only if the conduct and the charged offenses "are sufficiently similar to support a rational inference of identity, common design or plan, or intent." (People v. Foster (2010) 50 Cal.4th 1301, 1328 (Foster).)
Evidence Code section 1108, subdivision (a) permits the use of "another sexual offense or offenses" as propensity evidence for defendants accused of a sexual offense. The trial court concluded this provision did not apply and that the evidence was best analyzed under Evidence Code section 1101.
Even if relevant to a noncharacter purpose, propensity evidence " ' "must not contravene other policies limiting admission, such as those contained in Evidence Code section 352." ' " (Foster, supra, 50 Cal.4th at p. 1330.) Under Evidence Code section 352, "[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." Evidence is unduly prejudicial under Evidence Code section 352 if it uniquely tends to evoke an emotional bias against a party as an individual, or if would cause the jury to prejudge a person or cause on the basis of extraneous factors. (Foster, supra, at p. 1331.) Because other act evidence may be viewed as " 'inherently prejudicial,' " such evidence is admissible only if it has " 'substantial probative value.' " (Ibid.)
The admissibility of evidence lies squarely within the purview of the trial court. "We review for abuse of discretion rulings by the trial court on the admissibility of evidence, including rulings that turn on the relative probativeness and prejudice of the evidence in question." (People v. Hamilton (2009) 45 Cal.4th 863, 930.) A trial court's "exercise of discretion is not grounds for reversal unless ' "the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." ' " (People v. Ochoa (2001) 26 Cal.4th 398, 437-438.) Applying that standard, as we explain, the trial court did not abuse its discretion in admitting BDSM-related evidence at trial.
B. Procedural Background
The trial court did not simply open the floodgates to whatever BDSM evidence the prosecution sought to introduce. During pretrial motions, it grappled with the question of "where the line ought to be drawn." The court indicated that some BDSM evidence would be required to give the jury necessary context regarding: (1) defendants' lifestyle, BDSM acts, and the extent to which defendants' fantasies and acts pushed the boundaries of consent; (2) the existence of a common plan, preparation, intent, or motive in relation to Killgore's kidnapping and murder; and (3) hierarchy and roles among the defendants to assess relative culpability, if any. Although the court believed the factfinder would need some BDSM evidence to put the evidence in context, extensive evidence along these lines was not required. At a certain point, the court explained, BDSM evidence would become cumulative or more prejudicial than probative.
Applying this general framework, the court evaluated during motions in limine whether to allow the prosecution to present certain BDSM photos, videos, and writings under Evidence Code sections 1101 and 352. The court ruled it would allow BDSM evidence only to the extent it was sufficiently probative of a noncharacter purpose, such as intent or common plan, and not overly inflammatory or cumulative. The court expressed a general preference for testimony over photos, excluding several BDSM photos while permitting testimony regarding those subjects. The court excluded videos depicting BDSM conduct, instead allowing limited still photos captured from the videos or testimony about the topic. Where evidence had bearing as to only one defendant's state of mind, the court indicated it would give limiting instructions excluding its use against the other defendants.
During trial, witnesses testified about BDSM lifestyles and activities (termed "play"); defendants' hierarchy and roles as master, mistress, and slave; defendants' kidnapping fantasies and interests in strangulation; the role of safety and consent; and the extent to which defendants pushed the boundaries of consent. As we explain, we conclude the trial court did not abuse its discretion in determining that this evidence was probative of a noncharacter purpose (Evid. Code, § 1101, subd. (b)) and not unduly prejudicial (Evid. Code, § 352).
C. No Abuse of Discretion in Admitting BDSM Evidence
Defendants agree that at least some BDSM evidence was properly admitted to establish the relationships and hierarchies amongst them. As to Lopez in particular, her main defense was that she was a slave who had little role beyond writing a patently false "exoneration letter" to shift blame from her masters. Given defendants' position, there can be no dispute the trial court reasonably allowed Dora, Brandi T., and Nicole to testify about defendants' hierarchies and roles. Documents such as the "Deed to Dee" (in which Maraglino gave up her rights as a human being to Perez), "Perfect Slave Checklist" (outlining duties for Lopez and other slaves), and "House Rules" (setting forth basic rules for living in the Maraglino household) likewise were properly admitted to show relationships and hierarchies among defendants. (See, e.g., People v. Manson (1976) 61 Cal.App.3d 102, 131, 155-156 [trial court properly permitted evidence of organization's social structure, religion, and criminal activities as probative of intent and nature of the conspiracy].)
What defendants object to is the admission of inflammatory evidence regarding their BDSM activities and lifestyles. We conclude such evidence gave the jury the necessary context regarding defendants' sexual intent and general plan in kidnapping and killing Killgore. Killgore's death "did not occur in a vacuum" (People v. Kelly (2007) 42 Cal.4th 763, 785 (Kelly)), and the BDSM evidence gave context that was "critical to the jury's full understanding of the circumstances of [Killgore's] death"—namely, whether she was kidnapped and killed as part of a BDSM fantasy enactment. (Ibid. [propensity evidence properly introduced to help jury understand what defendant intended in assaulting and killing the victim]; see People v. Davis (2009) 46 Cal.4th 539, 604 (Davis) [prior sexual offenses admissible where defendant's kidnapping, failure to take items of value, evidence of planning, and use of bindings "raised but did not fully answer questions about defendant's motive"].)
In particular, evidence that all three defendants had BDSM kidnapping fantasies, some of which they acted out together, was highly probative of their BDSM intent and common plan in kidnapping Killgore. That Perez threatened to abduct J.L. on three or four occasions and pressed A.M. to participate in a kidnapping scenario further demonstrated his interest in that activity. BDSM evidence also helped explain Killgore's injuries and the physical evidence recovered. Killgore died from prolonged ligature strangulation, and evidence that defendants engaged in breath play, rope play, choking, and prolonged strangulation was highly probative of their BDSM-intent in strangling her. Killgore's legs were bruised, and there were two cuts on her wrist caused by a bladed instrument. Evidence that defendants engaged in floggings and blood play was probative of a BDSM intent behind those injuries. Likewise, evidence that defendants engaged in fire play helped explain the long-barreled lighter and empty bottle of lighter fluid found in Perez's car. More broadly, BDSM evidence suggested a sexual motivation in Killgore's death, particularly given Dora's testimony that BDSM activities in the Maraglino household usually involved a sexual component.
The court allowed the prosecution to present only a handful of photos depicting BDSM conduct. We conclude the court reasonably deemed each to be probative of a noncharacter purpose. A photo of Maraglino and Perez engaging in BDSM on another woman was probative of a common plan, showing the two acting out their BDSM interests together on a third person. A photo of a pegboard with BDSM sex tools gave the jury context necessary to understand testimony about specific BDSM activities. Certain photos were probative of Maraglino's sexual interest in receiving pain while others were probative of her interest in inflicting it, clarifying for the jury her BDSM role in the household as a "switch." Photos of Lopez at her "collaring ceremony" were probative of her role as slave. A photo of a fully clothed woman in restraints was probative of defendants' BDSM interest in using restraints—and relevant given the bruises on Killgore's wrist.
In addition to these photos, the court also admitted BDSM items found in defendants' possession, including a rope, floggers, Taser, stun baton, riding crop, and cane. Each of these was reasonably deemed probative to a noncharacter purpose of revealing defendants' sexual interests in inflicting pain. Given Killgore's injuries and Lopez's confession letter, the rope, Taser, and stun baton were particularly probative of defendants' intent and general plan in kidnapping her.
Other BDSM evidence was probative of defendants' state of mind. At trial, Maraglino argued she was pregnant and no longer active in the BDSM lifestyle when Killgore was killed. Deborah's testimony that Maraglino sent her texts involving torture and forced lactation on the day of Killgore's disappearance was therefore highly probative of Maraglino's continued interest in BDSM at that time. Maraglino's writing absolving Perez of liability for BDSM-related injuries, even death, was highly probative of her knowledge of the risk of danger involved. Finally, Maraglino's writing about places to find vulnerable victims and steps to commit and cover-up a crime was probative of her knowledge and BDSM interest in those activities. Similarly, Lopez's main defense at trial was that she was a patsy, a perfect slave and masochist who enjoyed receiving, not inflicting, pain. To that end, BDSM evidence that she had previously been a dominant and continued to maintain a dominant online relationship with someone named Bella were probative of Lopez's state of mind and interest in inflicting pain. Likewise, testimony that BDSM power dynamics were fluid and that Lopez exercised free will challenged her "patsy" defense.
The court gave a limiting instruction preventing its use against Lopez or Perez.
The court gave a limiting instruction preventing its use against Lopez or Perez.
Certain BDSM evidence was highly probative of defendants' sexual interest and common plan in engaging in nonconsensual activity, particularly relevant given Killgore's "Help" text and evidence she was not involved in BDSM. Maraglino and Perez fantasized about kidnapping somebody, "whether they were aware that it was going to occur or not," and beat or play with the person before abandoning or killing her. These fantasies worried Dora because they "didn't always take consent into account." Maraglino and Perez acted out an abduction fantasy on Nicole without her prior consent, demonstrating the two acting in concert to carry out a shared sexual fantasy. Perez enjoyed engaging in nonconsensual and aggressive BDSM activity with A.M. and J.L. In a video found in Maraglino's home, Perez was seen beating a woman past the point of consciousness, ignoring her pleas to stop. Although Perez claimed the woman in the video had not used her safe word, it was highly probative for the jury to consider J.L.'s testimony that when she dated Perez, she did not feel using her safe word with him would have worked. Just before Killgore's death, Perez alarmed Al.E. when he told her he was about to engage in BDSM with a new person he disliked and wanted to badly hurt, challenging notions of mutual consent.
The court gave a limiting instruction that this evidence could not be used against Lopez.
Fantasy writings further demonstrated defendants' shared interest in nonconsensual BDSM activity. In one, Maraglino described abducting, sexually violating, and killing unwilling participants. In another, Maraglino described wanting to slit the throat of a woman while that woman was having sex with Perez. The latter writing was found in Perez's home among other BDSM items, indicating he may have shared her sexual fantasy in murder. Lopez, too, expressed interest in nonconsensual BDSM activity. Her journal contained a ciphered fantasy writing in which she described a "snatch-and-grab" scenario carried out on her former roommate, who she disliked. That fantasy entailed abducting a person, using a stun gun to subdue him, torturing and killing him, and covering up the crime.
The court gave a limiting instruction preventing its use against Lopez or Perez.
The court gave a limiting instruction preventing this writing from being used against Lopez.
The court gave a limiting instruction preventing its use against Perez or Maraglino.
Lopez and Maraglino argue the admission of their fantasy writings allowed the jury to conflate fantasy with reality. They point to testimony that fantasy was a major component of the BDSM lifestyle. However, Al.E. testified that in her experience, BDSM fantasies usually became reality. Moreover, the fantasy evidence admitted was directly relevant to their BDSM intent in kidnapping Killgore. Lopez's ciphered writing was highly probative of her sexual interests, and the court ordered the writing to be significantly redacted of certain disturbing details. Maraglino's writings were likewise highly probative of her sexual interest in abducting, torturing, and killing unwilling participants.
In short, given defendants' argument that BDSM involved consensual conduct, evidence they had interests and motivations beyond those parameters was highly probative of their intent (and to a lesser extent, their common plan) as to Killgore, who was not involved in BDSM and had no sexual interest in Perez. The jury was able to juxtapose this evidence with other trial evidence that: Maraglino and Perez were considered safe and responsible in the BDSM community; Lopez was "basically harmless"; safe words stopped all play; and BDSM activity was consensual. Thus, the trial court did not abuse its discretion in admitting evidence about defendants' BDSM lifestyle, interests, fantasies, and roles under Evidence Code section 1101, subdivision (b).
Defendants point to differences between the BDSM evidence admitted and the circumstances of Killgore's death to argue the evidence was not probative of a noncharacter purpose (Evid. Code, § 1101, subd. (b)). However, defendants' fantasies and prior acts were admitted to prove intent and common plan, not identity. "The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent"; all that is required is that the uncharged conduct is sufficiently similar to support an inference the defendant ' "probably harbor[ed] the same intent in each instance." ' " (People v. Ewoldt (1994) 7 Cal.4th 380, 402.) A greater degree of similarity is required to prove a common plan—"the common features must indicate the existence of a plan rather than a series of similar spontaneous acts but the plan thus revealed need not be distinctive or unusual." (Id. at p. 403, italics added.)
Here, the trial court did not abuse its discretion in concluding that defendants' past BDSM conduct—in particular, their sexual interest in nonconsensual abduction and strangulation—shared sufficient features with the charged offenses to support the inference that the defendants harbored a BDSM intent and, to a lesser extent, carried out a general BDSM plan in kidnapping Killgore. (See People v. Clark (1992) 3 Cal.4th 41, 127 [homicide defendant's " 'sexual high' in slitting prostitutes' throats while engaged in sex" probative of his "sexual interests and motivations" in relation to charged killings]; Davis, supra, 46 Cal.4th at pp. 602-605 [defendant's sexual interest in stalking, binding, and assaulting women probative of his intent, motive, and plan to commit charged sexual offense].)
Maraglino cites People v. Albarran (2007) 149 Cal.App.4th 214, which held that the trial court's admission of gang evidence to prove motive or intent was improper. However, the circumstances of the crime in that case never implicated a gang motive (id. at p. 227), whereas the circumstances of Killgore's disappearance and murder did suggest a BDSM motive.
Our conclusion that the admitted BDSM evidence was relevant to defendants' intent does not end our inquiry. We must also examine whether its probative value was " ' "substantially outweighed by the probability that its admission [would] . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." ' " (Evid. Code, § 352; Foster, supra, 50 Cal.4th at p. 1330.) As we explain, the trial court did not " ' "exercise[ ] its discretion in an arbitrary, capricious, or patently absurd manner" ' " (Foster, supra, at pp. 1328-1329) when it refused to exclude the admitted BDSM evidence under Evidence Code section 352.
The admitted BDSM evidence gave the jury context to understand what defendants intended in kidnapping and killing Killgore given their past BDSM interests, fantasies, and activities. The evidence thus had substantial probative value as to intent and common plan. (Kelly, supra, 42 Cal.4th at p. 785; Foster, supra, 50 Cal.4th at p. 1331.) The evidence strongly suggested defendants' intent and general plan was to kidnap Killgore to act out a nonconsensual BDSM kidnapping fantasy. Excluding BDSM evidence from trial would have left the jury with an incomplete picture of why defendants kidnapped Killgore and acted together in her murder and the cover-up. Where, as here, propensity evidence has "substantial probative value with respect to the issues of intent and a common plan," Evidence Code section 352 does not preclude admission. (Foster, supra, at p. 1331.) Moreover, none of the conduct was particularly inflammatory compared to defendants' charges. (Id. at p. 1332; Kelly, supra, at p. 787.) The trial court did not abuse its discretion in determining the probative value of this evidence was not outweighed by the risk of undue prejudice.
In contrast to the admitted evidence, the court excluded as overly prejudicial BDSM photos depicting: a nude woman in restraints; skin-to-skin touching; knife play; needle play; Lopez with a rope around her neck and breasts, or with candles, some on fire; Maraglino and Lopez engaging in BDSM activities; Lopez and an unidentified woman engaging in BDSM activity with ropes; needle play in Lopez's vaginal area; and Maraglino holding a knife. Thus, in deciding "where the line ought to be drawn," the trial court reasonably exercised its discretion to admit general information regarding defendants' BDSM lifestyle, interests, and roles but exclude photos that would pose undue risk of prejudice.
Likewise, the court excluded several writings from trial as being insufficiently probative, including: Maraglino's recorded statement fantasizing about a woman being raped and tortured; Maraglino's writing describing her desire to watch life slip away; Maraglino's undated writing telling Perez to "destroy them all, rape the women, destroy their reputation, . . . take their last breath"; Maraglino's checklist of sexual fantasies, which included "snatch-and-grab"; and Lopez's undated writing about a torture fantasy. Thus, the court did not simply open the floodgates to all fantasy writings and instead admitted only those writings it deemed to be probative of defendants' mental states, including their interest in nonconsensual BDSM activity.
D. Any Error Was Harmless
To the extent there was any error in admitting BDSM evidence, it was harmless. Defendants concede that at least some BDSM evidence was properly admitted. They do not suggest where the line ought to have been drawn or a reasonable probability that the exclusion of selected evidence would have led to a more favorable result. (See People v. Vasquez (2006) 39 Cal.4th 47, 66, citing People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
Maraglino and Lopez argue the standard articulated in Chapman v. California (1967) 386 U.S. 18, 24 (Chapman) applies because the admission of BDSM evidence rendered their trial fundamentally unfair in violation of due process. Because the BDSM evidence admitted was highly probative of several noncharacter issues at trial, we need not decide to what extent, if any, evidence solely going to character might violate due process. (Kelly, supra, 42 Cal.4th at p. 787.)
During closing arguments, the prosecution made clear that it offered propensity evidence not to portray defendants as morally bad people, but rather to understand their intent in kidnapping and killing Killgore. The trial court gave limiting instructions as to those items of BDSM evidence that could only be considered against particular defendants. These aspects served to blunt any potential prejudice from admitting the BDSM evidence, minimizing the potential for improper use. (Foster, supra, 50 Cal.4th at pp. 1332-1333.) Moreover, as the People argue, there was substantial non-BDSM evidence connecting each defendant to Killgore's kidnapping and murder. As will be discussed, cell phone text messages and witness testimony connected Maraglino and Perez to Killgore's kidnapping; physical evidence in Perez's car contained both his and Killgore's DNA; and Lopez's confession letter implicated her in Killgore's restraint, torture, killing, and cover-up. Thus, defendants have not shown a reasonable probability of a more favorable result had certain BDSM evidence been excluded at trial.
II.
SUFFICIENCY OF THE EVIDENCE
At the close of the prosecution's case-in-chief, all three defendants moved for acquittal under section 1118.1 as to the torture and attempted sexual battery by restraint counts. Maraglino challenges the court's denial of that motion, and all three challenge the sufficiency of the evidence supporting their convictions and kidnapping special circumstance findings.
Section 1118.1 provides: "In a case tried before a jury, the court on motion of the defendant or on its own motion, at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal. If such a motion for judgment of acquittal at the close of the evidence offered by the prosecution is not granted, the defendant may offer evidence without first having reserved that right."
"In determining whether the evidence was sufficient either to sustain a conviction or to support the denial of a section 1118.1 motion, the standard of review is essentially the same." (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1182 (Hajek). "[W]e must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime or special circumstance beyond a reasonable doubt. We review the entire record in the light most favorable to the judgment below to determine whether it discloses sufficient evidence—that is, evidence that is reasonable, credible, and of solid value—supporting the decision, and not whether the evidence proves guilt beyond a reasonable doubt. [Citation.] We neither reweigh the evidence nor reevaluate the credibility of witnesses. [Citation.] We presume in support of the judgment the existence of every fact the jury reasonably could deduce from the evidence. [Citation.] If the circumstances reasonably justify the findings made by the trier of fact, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding." (People v. Jennings (2010) 50 Cal.4th 616, 638-639.)
The jury convicted Perez, and Maraglino on all five counts and made a true finding as to the kidnapping special circumstance allegation. The jury acquitted Lopez of conspiracy to commit kidnapping, convicted her of the remaining counts, and made a true finding as to the kidnapping special circumstance allegation. As we explain, there is insufficient evidence to support Maraglino's convictions for torture and attempted sexual battery by restraint. In all other respects, there is sufficient evidence to support defendants' convictions and true special circumstance findings.
Before turning to the individual crimes, we outline broad principles of aiding and abetting liability. The prosecution's theory was that defendants were liable for the charged crimes as direct perpetrators or aiders or abettors (or, in the case of kidnapping, as members of a criminal conspiracy). (See § 31 [aiders and abettors and direct perpetrators both liable as principals].) To prove guilt on an aiding and abetting theory, the prosecution must prove: (1) the direct perpetrator committed a crime; (2) the defendant knew of the perpetrator's unlawful intent and intended to assist in the offense; and (3) the defendant engaged in conduct that in fact assisted the achievement of the crime. (People v. Perez (2005) 35 Cal.4th 1219, 1225.) "Aiding and abetting does not require participation in an agreement to commit an offense, but merely assistance in committing the offense." (People v. Morante (1999) 20 Cal.4th 403, 433.)
An aider and abettor is one who "actually knows and shares the full extent of the perpetrator's specific criminal intent, and actively promotes, encourages, or assists the perpetrator with the intent and purpose of advancing the perpetrator's successful commission of the target offense." (People v. Snyder (2003) 112 Cal.App.4th 1200, 1220.) "It is not sufficient if the person simply gives assistance with knowledge of the perpetrator's criminal purpose. Merely giving assistance without sharing the perpetrator's purpose and intent establishes liability only as an accessory, not as an accomplice." (Ibid.) Moreover, "the requisite intent to render such aid must be formed prior to or during 'commission' of that offense." (People v. Cooper (1991) 53 Cal.3d 1158, 1164 (Cooper); see CALCRIM No. 401 [The People must prove that "[b]efore or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime."].)
A. Count 3: Kidnapping (All Defendants)
The jury convicted all three defendants of kidnapping in violation of section 207, subdivision (a). We conclude substantial evidence supports defendants' convictions.
A person commits kidnapping pursuant to section 207, subdivision (a) when he or she "forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county." "To prove a defendant guilty of kidnapping, the prosecution must establish that (1) the defendant took, held, or detained another person by using force or by instilling reasonable fear; (2) using that force or fear, the defendant moved the other person, or made the other person move a substantial distance; and (3) the other person did not consent to the movement." (People v. Burney (2009) 47 Cal.4th 203, 232 (Burney); see CALCRIM No. 1215.)
"The second element, that the victim be moved a substantial distance, is called the asportation element." (People v. Perkins (2016) 5 Cal.App.5th 454, 464-465.) To establish asportation, the prosecution must prove the movement was " 'substantial in character.' " (People v. Martinez (1999) 20 Cal.4th 225, 235.) In determining whether the movement was substantial in character, the jury considers "the totality of the circumstances"—that is, "not only the actual distance a victim is moved, but also such factors as whether that movement increased the risk of harm above that which existed prior to the asportation, decreased the likelihood of detection, and increased both the danger inherent in the victim's foreseeable attempts to escape and the attacker's enhanced opportunity to commit additional crimes." (Id. at p. 237; see People v. Delacerda (2015) 236 Cal.App.4th 282, 295 [movement was substantial given evidence defendant dragged victim between 22 and 40 feet and shoved her into a closet; distance was not trivial, and movement was intended to decrease likelihood of detection and increase risk of harm].)
As to the third element (consent), a kidnapping may occur even where a victim initially cooperates voluntarily but is then compelled to move by force or fear. (People v. Camden (1976) 16 Cal.3d 808, 814-815 [substantial evidence supported kidnapping conviction even though victim's initial entry into defendant's car was voluntary, where defendant subsequently restrained her by means of threat or force while asportation continued]; People v. Hovarter (2008) 44 Cal.4th 983, 1017 [same; that the victim may have entered defendant's truck willingly did not necessarily negate the existence of a kidnapping].)
Viewing the record in the light most favorable to the verdict, the jury reasonably found all three defendants played an integral part in the kidnapping. There is sufficient evidence supporting Perez's conviction as a direct perpetrator and Maraglino's and Lopez's convictions as aiders and abettors.
There was ample evidence permitting the jury to reasonably find that Perez directly perpetrated the kidnapping. He pressured Killgore to go with him on a dinner cruise, lying that he had tickets. When he picked Killgore up, he tried to stay outside the view of security cameras. Killgore thought she was going on a cruise when she entered Perez's car, texting her friend shortly thereafter to that effect. Surveillance footage showed Perez's car exiting her apartment complex at 7:40. Ten minutes later, thirteen minutes after entering Perez's car, Killgore texted "Help," indicating her lack of consent. A stun baton recovered from Perez's car had Killgore's DNA on the prongs and Perez's DNA on the handle, suggesting he had used force to restrain her in his car. Postmortem evidence likewise indicated the use of a stun baton on the left side of Killgore's face. Detectives found disposable gloves in Perez's car that had traces of Killgore's blood.
After the "Help" text, Killgore's friends began to text and call. Perez commandeered her phone to send them inaccurate texts and lied about leaving her downtown at a club. Perez admitted on the stand that, contrary to what he told Killgore's friends, he had taken Killgore to Maraglino's home, thus moving her a substantial distance. A neighbor told detectives he saw a white Ford Explorer (the car Perez drove) swerve into Maraglino's driveway around dusk that evening. Killgore's phone was closer to Maraglino's home than her own when Tal called her at 8:03, and it was very close to Maraglino's home when Hernandez called her at 8:14. The jury could reasonably infer from Perez's 8:11 "Come home" text that he remained with Killgore at Maraglino's home, contrary to his testimony he had merely dropped her off there.
A jury could reasonably conclude based on this evidence that Perez detained and moved Killgore a substantial distance by means of force or fear without her consent—i.e., that he directly perpetrated the kidnapping.
Perez argues that while there was substantial evidence Killgore was held, there was insufficient evidence she was moved against her will. He relies on his own testimony that Killgore's apartment and Maraglino's house were five minutes apart to suggest Killgore was already there at the time she texted "Help" at 7:50. However, the prosecution presented contrary testimony that the area in question would typically get congested between 7:30 and 8 on Friday evenings with Marines leaving the nearby base and that heavy rains that night would have affected driving times. Perez also argues Killgore may have entered Maraglino's home willingly and therefore was not moved there by force or fear. However, there was also evidence supporting an opposite inference—Killgore had no real relationship with defendants, thought Maraglino disliked her, and accompanied Perez only because she wanted to go on the cruise. The stun baton was found in Perez's car, further supporting an inference she was moved by force or fear. We reject Perez's attempts to reweigh the evidence on appeal. (People v. Brown (2014) 59 Cal.4th 86, 106 (Brown).) A jury could reasonably find Killgore was moved against her will upon entering Perez's car. Because kidnapping is a continuing offense (People v. Palacios (2007) 41 Cal.4th 720, 726), a jury could also reasonably find the kidnapping continued after Perez brought her to Maraglino's home.
On appeal, Perez seeks judicial notice of Google maps that show driving distances between Maraglino's house and Killgore's apartment and depicts the grocery store in relation to those two locations. Perez already made the argument he makes on appeal using evidence actually presented at trial. During closing arguments, he argued, "the distance from Ms. Maraglino's house to the [grocery store] parking lot is all of about two and a half blocks" and could be covered in "easily under five minutes" or even less time using a "shortcut." Among the trial exhibits was a color photo showing an aerial view of Killgore's apartment, Maraglino's home, and the grocery store. The maps Perez now proffers were not presented before the trial court, and there are no exceptional circumstances to justify taking such notice on appeal. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.) Perez's request for judicial notice is denied.
Perez's theory on appeal strains credulity. He admits picking Killgore up under false pretenses of going to a dinner cruise. He admits bringing her to Maraglino's home. A stun baton found in his car had his DNA on the handle and Killgore's on the prongs. Killgore texted "Help" ten minutes after the car pulled out of her apartment complex, at a time when Lopez and Maraglino were still at the grocery store. At trial, Perez admitted he earlier told detectives Killgore was in the car with him around the time she texted, "Help." The evidence he kidnapped Killgore is overwhelming.
Turning to the other defendants, there is sufficient evidence Maraglino aided and abetted the kidnapping (and conspired to kidnap, as we discuss in the following section). The jury could infer Maraglino and Perez planned the Hornblower ruse after Hernandez stopped by and mentioned Killgore's interest in going. Maraglino searched the Internet for "dinner cruise" and "Hornblower San Diego" after Hernandez left and while Perez was trying to convince Killgore to go. Maraglino then lured Killgore to accompany Perez. Killgore told Perez she was reluctant to party with him and would "need [Maraglino] to say it was ok" to go. She expressed similar reservations to Tal. On Perez's urging, she called Maraglino. Maraglino laughed and told Killgore to go use her ticket because she was pregnant and would get seasick. Killgore told Tal she decided to go after speaking to Maraglino and texted Perez, "Ok I talked to dee [Maraglino] and she [said] she was good with it so i[']ll go." The jury could infer that Killgore would not have gone without Maraglino's encouragement.
There is also sufficient evidence Lopez aided and abetted in the kidnapping. Kidnapping is a continuing offense. The crime continues " 'until such time as the kidnapper releases or otherwise disposes of the victim and [the defendant] has reached a place of temporary safety . . . .' " (People v. Palacios, supra, 41 Cal.4th at p. 726 [kidnapping of robbery victim continued after victim's items were stolen while victim remained detained].) "[A]s long as the detention continues, the crime continues." (People v. Masten (1982) 137 Cal.App.3d 579, 588.) The jury could infer from Perez's "Come home" text that Lopez went to Maraglino's home after leaving the grocery store. Once she reached the home, the jury could infer she knew from past conversations in the house Killgore had been kidnapped. The jury was entitled to infer from Lopez's letter that she assisted in Killgore's kidnapping from that point forward by restraining her with a Taser, handcuffs, duct tape, and a rope; knocking her down; and slamming her into the stairs.
Lopez argues there is no evidence she knew of the plan to deceive Killgore into accompanying Perez. However, because kidnapping is a continuing offense, her intent to aid and abet the kidnapping did not need to precede the initial movement against the victim's will. The kidnapping remained in progress while Killgore was detained at Maraglino's home, and Lopez assisted from that point by restraining Killgore.
We find support in Burney, supra, 47 Cal.4th 203, in which our high court rejected the claim that a kidnapping ended once the defendant stopped his car because movement had ceased. (Id. at pp. 233-234.) As the court explained, "the kidnapping was clearly still in progress" when the defendant stopped the car and shot the victim. (Ibid.) The court cited with approval language in People v. Farmer (1983) 145 Cal.App.3d 948, 952, that " '[a] victim forcibly transported without her consent is still being "kidnapped" while the detention continues and an injury inflicted during detention is inflicted "in the commission of" the kidnapping.' " (Burney, supra, at p. 234.) Similarly, in Cooper, our high court explained that the "commission" of a crime is a continuum for purposes of accomplice liability; "the unknowing defendant who happens on the scene of a rape after the rape has been initially committed and aids the perpetrator in continuing criminal acts is an accomplice under this concept of 'commission,' because he formed his intent to facilitate the commission of the rape during its commission." (Cooper, supra, 53 Cal.3d 1158, 1164, fn. 7.) Thus, sufficient evidence supports Lopez's kidnapping conviction based on the confession letter describing her conduct while the kidnapping remained in progress.
The People contend there is sufficient evidence to support Lopez's kidnapping conviction based on her 13-minute departure from the grocery store immediately after Perez texted Maraglino, claiming this gave her enough time to return home and come back to the grocery store. We disregard this as an unreasonable and speculative construction of the circumstantial evidence. (See, e.g., CALCRIM No. 224 [jury must accept only reasonable conclusions from circumstantial evidence].) We instead affirm Lopez's kidnapping conviction based on inferences reasonably drawn from her confession letter.
Lopez argues throughout her appeal that her confession letter was "unreliable" and "patently false," and "wholly unbelievable" because: (1) its vile language was at odds with Lopez's typical demeanor toward the victim; (2) it made the Fallbrook home the setting of the entire ordeal, whereas no physical or DNA evidence placed Killgore there on April 13; (3) it described incidents, like slamming Killgore into the stairs, that were inconsistent with postmortem injuries; (4) its timeline did not make sense, suggesting Killgore was still alive at 11:15; and (5) there is no physical evidence corroborating that Lopez drove Killgore's body to Lake Skinner. "These points go to the weight of the evidence, not its admissibility." (Brown, supra, 59 Cal.4th at p. 104.) Lopez's counsel vigorously argued the letter's credibility before the jury. "The final determination as to the weight of the evidence is for the jury to make. We do not reweigh it and substitute our view for theirs." (Id. at p. 106.) Moreover, the issues Lopez raises do not render her confession letter inherently unreliable and untrustworthy. (Id. at pp. 104-105.) The letter accurately described Killgore's postmortem injuries, including ligature marks around her neck and wrists, a Taser mark near her neck, bruising and mutilation marks, and a deep cut with a power saw that went down to the bone in Killgore's knee. It led detectives to find Killgore's body at Lake Skinner. Handwriting analysis confirmed Lopez wrote the letter. A jury could properly rely on Lopez's confession in evaluating her individual guilt.
The jury was also entitled to consider steps taken by all three defendants to cover their tracks to infer consciousness of guilt. (Cooper, supra, 53 Cal.3d at p. 833 [defendants' destruction of physical evidence supported reasonable inference of consciousness of guilt]; People v. Thornton (2007) 41 Cal.4th 391, 438-439 [evidence suggesting consciousness of guilt "may be evidence tending to prove, in light of all the evidence the trier of fact hears, that a criminal defendant knew he or she committed a crime"].) Maraglino, who previously worked for a cell phone company, told Perez how data could be traced, prompting Perez to dispose of Killgore's phone downtown. Items went missing between detectives' first and second searches of Maraglino's home, and there was a receipt for cleaning products purchased on April 14 in Maraglino's car. Maraglino deleted her texts and hid her disassembled phone in her brother's house in Missouri. Lopez covered Killgore's body with bleach and helped Perez dump it in a remote locale. The clothes worn by Perez and Maraglino that night were never recovered.
Although not required for guilt, "[h]aving a motive may be a factor tending to show that the defendant is guilty." (CALCRIM No. 370.) The evidence suggested a BDSM motivation behind Killgore's kidnapping. All three defendants had BDSM kidnapping fantasies, some of which they acted out without prior consent. Perez threatened to abduct J.L. on three or four occasions and pressed A.M. to participate in a kidnapping scenario he had tried on other women. Maraglino and Perez fantasized about kidnapping somebody, "whether they were aware that it was going to occur or not," and they acted out an abduction fantasy on Nicole without her prior consent. Maraglino asked Dora, Lopez's former co-slave, how she would feel if a kidnapped person were brought to the home. Lopez wrote a journal entry about kidnapping, subduing with a stun gun, torturing, killing, and dismembering a person she did not like. Maraglino likewise authored BDSM abduction fantasies and listed "hunting ground[s]" to find vulnerable victims.
There was also motive evidence that defendants harbored ill will toward Killgore. Maraglino was paranoid about losing Perez to another woman and felt Killgore had flirted with Perez. In her confession letter, Lopez claimed she restrained, tortured, and killed Killgore to keep her from coming between Perez and Maraglino, as a woman named Marina had done in the past. Maraglino and Lopez both referred to Killgore as "the disease" or "the herpes," and Maraglino offered (perhaps in jest) to get rid of Killgore for Hernandez. On the day of Killgore's abduction, Maraglino seemed happy about Killgore's upcoming move and authored a document entrusting Perez to decide the measure of retribution appropriate for her enemies. A couple of days before Killgore's kidnapping, Perez told Al.E. he was about to engage in a BDSM session with a girl he did not like and wanted to hurt badly. Although Perez claimed otherwise, the jury could reasonably infer Perez was referring to Killgore.
In short, there is sufficient evidence from which a reasonable jury could find all three defendants guilty of kidnapping, either as direct perpetrators or as aiders and abettors.
B. Count 2: Conspiracy to Commit Kidnapping (Perez and Maraglino)
Perez and Maraglino were convicted of conspiracy to kidnap, in violation of section 182. "Section 182 prohibits a conspiracy by two or more people to 'commit any crime.' (§ 182, subd. (a)(1).)" (People v. Johnson (2013) 57 Cal.4th 250, 257 (Johnson).) " 'Conspiracy is an inchoate offense, the essence of which is an agreement to commit an unlawful act.' [Citations.] Conspiracy separately punishes not the completed crime, or even its attempt. The crime of conspiracy punishes the agreement itself and 'does not require the commission of the substantive offense that is the object of the conspiracy.' " (Id. at p. 258.) " 'Traditionally the law has considered conspiracy and the completed substantive offense to be separate crimes.' " (Id. at pp. 258-259.) "The gist of the crime of conspiracy . . . is the agreement or confederation of the conspirators to commit one or more unlawful acts . . . ." (Braverman v. United States (1942) 317 U.S. 49, 53.)
"[A]n agreement to commit a crime, by itself, does not complete the crime of conspiracy." (Johnson, supra, 57 Cal.4th at p. 259; see § 184.) There must be proof of an overt act, for " ' "evil thoughts alone cannot constitute a criminal offense." ' " (Johnson, supra, at p. 259.) Once a conspirator has performed an overt act in furtherance of the agreement, the agreement itself becomes punishable. (Ibid.) Thus, "a conspiracy requires an intentional agreement to commit the offense, a specific intent that one or more conspirators will commit the elements of that offense, and an overt act in furtherance of the conspiracy." (Id. at p. 266; see CALCRIM No. 415.)
Perez and Maraglino do not challenge the sufficiency of the evidence supporting a finding that one of them committed one of the enumerated overt acts in the amended information. Instead, their argument centers around whether there was sufficient evidence to show an agreement and the requisite intent to kidnap. Perez claims there was sufficient evidence he and Maraglino tried to get Killgore to go out with him on a date but insufficient evidence they agreed or intended to kidnap Killgore. For example, Perez argues Maraglino's Internet searches for "dinner cruise" and "Hornblower San Diego" merely indicated their interest in Perez taking Killgore on a cruise.
Perez also challenges his conspiracy conviction on the same grounds as the kidnapping conviction, arguing there was insufficient evidence Killgore was moved against her will. We reject that claim for the reasons discussed in the previous section.
Maraglino likewise tries to recast the evidence in her favor. She focuses on the lack of DNA evidence recovered from her home and suggests as one possibility that Perez killed Killgore in his car. Alternatively, she suggests Perez may have taken Killgore to Maraglino's home and killed her there while Maraglino was still at the grocery store. Maraglino claims her Internet searches for "dinner cruise" and her text to Perez that "Tomorrow is another day" did not demonstrate the formation of a conspiracy. She further argues her fantasy writing about the torture and murder of three generations of women is not sufficiently similar to the facts surrounding Killgore's death to support an inference of intent.
These points go to the weight of the evidence, not the sufficiency. (Brown, supra, 59 Cal.4th at p. 104.) The jury's verdict " ' "may not reversed simply because the circumstances might also be reconciled with a contrary finding." ' " (Id. at p. 106.) As the People argue, the appropriate question is whether, when interpreted in the light most favorable to the jury's verdicts, there was sufficient evidence from which the jury could reasonably convict Maraglino and Perez of the relevant offenses. We may reverse for insufficient evidence only when there is " 'no hypothesis whatever' " to support the jury's verdict. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Applying that standard, there was ample evidence from which the jury could find Maraglino and Perez guilty of a conspiracy to kidnap. Contrary to their contentions, there was sufficient evidence of both an intent and agreement to kidnap Killgore.
As to intent, as we have already discussed in relation to the kidnapping charge, there was substantial evidence of an intent to kidnap based on defendants' sexual interests and dislike of Killgore. Our earlier analysis applies with equal force here.
There was also sufficient evidence of an agreement between Perez and Maraglino to kidnap Killgore. An agreement to commit an unlawful act (here, kidnapping) need not be express. (Johnson, supra, 57 Cal.4th at p. 264 [" 'To prove an agreement, it is not necessary to establish the parties met and expressly agreed; rather, "a criminal conspiracy may be shown by direct or circumstantial evidence that the parties positively or tacitly came to a mutual understanding to accomplish the act and unlawful design." ' "].) There is ample circumstantial evidence Maraglino and Perez came to a mutual understanding to accomplish the kidnapping.
On the afternoon of April 13, Hernandez stopped by and told Perez and Maraglino she wanted to take Killgore on the Hornblower cruise. The conversation seemed routine; there was no discussion of Maraglino or Perez having tickets or Perez wanting to help Killgore move her belongings. Hernandez was confused when she later got a text from Killgore saying Perez wanted to take her out, as Killgore and Perez rarely interacted.
After Hernandez left, Perez showed up unannounced at Killgore's apartment and tried to convince her to go on a dinner cruise that night, claiming he had tickets that would go to waste. Killgore was surprised and asked how he knew where she lived. She declined to accompany him, and Perez texted Maraglino, "That guy wasn't successful." Maraglino replied, "Tomorrow is another day."
Killgore texted Perez shortly thereafter asking for moving help. Perez again pressed her to accompany him. Killgore said she was hesitant because Maraglino did not seem to like her; she said she would "need [Maraglino] to say it was ok" to go. Perez assured her Maraglino bore no ill will and told her to text Maraglino. About twenty minutes later, Killgore had yet to commit, and Perez asked whether she had spoken to Maraglino. While Perez was trying to convince Killgore to go, Maraglino searched for "dinner cruise" and "Hornblower San Diego."
Killgore and Maraglino finally spoke at 6:05; Tal overheard their conversation. Killgore asked for permission to go on the dinner cruise. Maraglino was laughing and joking on the other line; she said it was fine because she was pregnant and would get seasick and encouraged Killgore to go so her ticket did not go to waste. Killgore then texted Perez, "Ok I talked to [Maraglino] and she was good with it so i[']ll go." Perez told Killgore he would pick her up "by 730." At trial, the parties stipulated that the Hornblower cruise was from 7 to 10 p.m. on April 13 and that Perez, Maraglino, Lopez, and Killgore were not listed among the ticketholders.
The jury could reasonably infer Maraglino knew from her Internet searches that Perez and Killgore would miss the cruise. Perez admitted knowing when texting Killgore at 7:32 that he did not "wanna miss our boat" that they could not make it. Neither conveyed this information to Killgore, who texted her friend at 7:39 to say she was going on a cruise. Maraglino and Perez together convinced Killgore to accompany Perez on a dinner cruise they knew they would not make. The jury could reasonably infer they agreed to kidnap Killgore.
Therefore, viewing the evidence in the light most favorable to the verdict, there is sufficient evidence from which the jury could find Maraglino and Perez both intended and agreed to kidnap Killgore. Substantial evidence supports their conspiracy convictions.
C. Count 4: Torture (All Defendants)
Maraglino argues the trial court abused its discretion in denying her motion for acquittal under section 1118.1 for the torture charge. All three defendants contend the evidence was insufficient to support their torture convictions for torture. Viewing the record in the light most favorable to the jury's verdict, we conclude there is sufficient evidence to support Perez's and Lopez's torture convictions but insufficient evidence to support Maraglino's torture conviction.
"Every person who, with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury as defined in Section 12022.7 upon the person of another, is guilty of torture. [¶] The crime of torture does not require any proof that the victim suffered pain." (§ 206.) Thus, torture requires both proof of "great bodily injury" and specific intent. (See CALCRIM No. 810.) Great bodily injury does not require permanent, disabling, or disfiguring injuries; abrasions, lacerations, and bruising may suffice. (People v. Odom (2016) 244 Cal.App.4th 237, 247 (Odom); People v. Pre (2004) 117 Cal.App.4th 413, 420 (Pre).) Intent is a state of mind that may be established by circumstantial evidence surrounding the commission of the offense. (People v. Mungia (2008) 44 Cal.4th 1101, 1137.) "The focus must be on the defendant's intent to inflict pain for revenge, extortion, persuasion or for any sadistic purpose rather than on the severity of the injuries or the duration of the attack." (Pre, supra, at p. 424.)
Section 12022.7, subdivision (f) defines "great bodily injury" as "a significant or substantial physical injury."
In reviewing a claim of insufficiency of the evidence, comparison with other cases is of limited utility, since each case necessarily depends on its own facts. (Odom, supra, 244 Cal.App.4th at p. 248; Pre, supra, 117 Cal.App.4th at p. 423.) Thus, we do not consider in our analysis whether other cases may have involved more gruesome acts of torture.
There is ample evidence Killgore suffered great bodily injury. The medical examiner testified she died by ligature strangulation, with hemorrhaging in her eyes suggesting pressure had been applied to her neck and released over a period longer than a minute. The cricoid cartilage in Killgore's neck was fractured and crushed, indicating that over 33 pounds of pressure were applied to her neck. There were two cuts to her wrist, as well as bruising on her wrists and legs. There were five pinprick marks on the left side of her face, consistent with the use of a stun baton. A stun baton was recovered from Perez's car that could deliver 1 million volts of current. By comparison, there was evidence law enforcement typically used a device capable of delivering 50,000 volts, which itself would be expected to cause pain. Bruising on Killgore's left wrist was consistent with the use of handcuffs or some type of restraint.
Lopez argues, as she did in her section 1118.1 motion, that it was "equally plausible that Killgore died within less than a minute." She also argues the cuts to Killgore's wrist may have been sustained postmortem and that Killgore's bruises were minor. However, "the brevity of the attack does not, in and of itself, compel a conclusion the defendant must be acquitted of torture" (Pre, supra, 117 Cal.App.4th at p. 420), and there was sufficient evidence of premortem injuries (such as the cricoid fracture, hemorrhaging indicating prolonged strangulation, and pre-mortem bruising)—not to mention Killgore's death—from which the jury could reasonably infer the infliction of great bodily injury. The jury's verdict " ' "may not reversed simply because the circumstances might also be reconciled with a contrary finding." ' " (Brown, supra, 59 Cal.4th at p. 106.)
Importantly, there is sufficient evidence linking Perez and Lopez to Killgore's injuries. Lopez's detailed confession letter admitted prolonged strangulation, the use of a Taser, the use of restraints causing bruising, and slamming the victim into the stairs. Perez testified that Lopez admitted to strangling Killgore. DNA evidence on the stun baton found in Perez's car supported the inference Perez had used it on Killgore, injuring the left side of her face.
There is also sufficient evidence Perez and Lopez acted with the requisite intent "to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose." (§ 206.) "[S]adistic purpose" is defined by its common meaning—" ' "the infliction of pain on another person for the purpose of experiencing pleasure." ' " (Pre, supra, 117 Cal.App.4th at p. 420.)
As to Perez, the jury could infer he inflicted pain on Killgore for a sadistic purpose. On appeal, Perez claims he choked women to enhance their sexual pleasure, not to cause pain. This contradicts testimony that as a sadist, Perez enjoyed inflicting pain to enhance his own sexual pleasure. Perez had sexual interests in choking, beating, and instilling fear in women. He routinely choked A.M. and J.L. during sex, engaged in BDSM breath play with Nicole, and beat J.L. hard enough to leave visible bruises. He derived sexual pleasure from dehumanizing women, instilling fear in them and making them feel powerless. Detectives found a video in Maraglino's home of Perez beating a woman past the point of consciousness, ignoring her pleas to stop. Perez had a copy of Maraglino's throat-slit fantasy writing in his possession. Although Perez dismisses that writing as a homicidal fantasy unrelated to the circumstances of this case, it tends to indicate his sexual interest in causing significant pain or even death. Based on the nature of Killgore's injuries and Perez's sexual interests, the jury could reasonably infer he inflicted pain on Killgore for his own sexual gratification.
Perez argues his use of a stun baton is not probative of intent absent evidence he previously used a stun baton during BDSM activity. However, the jury could infer sadistic intent from the totality of circumstances. (Odom, supra, 244 Cal.App.4th at p. 247.) Perez fantasized about kidnapping a person without consent and beating her, and there was substantial evidence he kidnapped Killgore to fulfill his BDSM interests. (See discussion, ante.) The jury could reasonably infer Perez used the stun baton to take the next logical step and inflict pain for his sexual gratification. In assessing intent, our high court has advised that "it is appropriate to consider whether the victim was bound and gagged, or was isolated from others, thus rendering the victim unable to resist a defendant's acts of violence." (Hajek, supra, 58 Cal.4th at p. 1188.) Evidence Perez used a stun baton to subdue Killgore supports a reasonable inference of sadistic intent.
The jury could also infer Perez acted with the intent to exact revenge on Maraglino's behalf. On the day of Killgore's disappearance, Maraglino gave Perez a writing entrusting him to deliver justice and retribution against her enemies. There was evidence Maraglino was paranoid about losing Perez to another woman and disliked Killgore for seeming to flirt with Perez. The jury could reasonably infer from this evidence that Perez intended to inflict extreme pain and suffering for revenge.
The evidence likewise supports a reasonable inference of intent as to Lopez—either for sexual gratification or revenge. Although a masochist in the Maraglino household, Lopez was a sadist in other BDSM relationships. She authored a "snatch-and-grab" fantasy writing in ciphered code describing what she wanted to do to a person she disliked. The fantasy involved abduction; the use of a stun gun to subdue; taking the person to a secure location; burning the phone to render it untraceable; torturing, killing, and dismembering him; disposing of the body; and bleaching physical evidence. There was evidence Lopez disliked Killgore, and her confession letter bore similarities to the "snatch-and-grab" fantasy, including: subduing with a Taser, torturing and killing, attempting to dismember the body, and using bleach on the remains. The confession letter seemed to take pleasure in Killgore's "happy blood" and Lopez's use of a large cellophane roll and power tools on Killgore's body. The jury could reasonably infer she inflicted pain on Killgore with a sadistic purpose—i.e., " ' "for the purpose of experiencing pleasure." ' " (Pre, supra, 117 Cal.App.4th at p. 420.)
The jury could also reasonably infer that Lopez inflicted pain on Killgore for revenge. Maraglino hated Killgore for flirting with Perez and entrusted Perez to deliver retribution against her enemies. She had lost Perez before to a woman named Marina, and at the time, said she wanted Marina to die in pain and "die a torturous death." As her pet slave, Lopez adopted all of Maraglino's opinions as her own. In her confession letter, Lopez claimed Killgore "deserved" her fate for being a "whore" who tried to come between Maraglino and Perez just like Marina had done before. Lopez wrote that Perez's clothes "reeked of [Killgore's] perfume" and stated she "didn't dare think of what it meant." Although Lopez claims the letter only supports an inference she intended to control and kill Killgore, the jury could reasonably infer she inflicted pain for the purpose of exacting revenge on Maraglino's behalf.
Thus, sufficient evidence supports Lopez's and Perez's torture convictions. The jury could reasonably infer both inflicted great bodily injury on Killgore with the requisite specific intent. (§ 206.)
The same cannot be said as to Maraglino. On appeal, the People argue they did not rely on a conspiracy theory or the natural and probable consequences theory of aiding and abetting liability as to any of the charges against Maraglino and that instead, "the prosecution's theory of the case rested exclusively on the theory of direct aiding and abetting liability." However, there is no evidence Maraglino directly aided and abetted in Killgore's torture. The jury could reasonably infer Maraglino had sadistic intent to torture based on her BDSM writings and interests, or possibly for revenge due to her dislike of Killgore. But intent is only half the test. There is insufficient evidence from which the jury could reasonably infer Maraglino engaged in conduct "that in fact assist[ed] the achievement of the crime" (People v. Perez, supra, 35 Cal.4th at p. 1225) of torture.
Under the natural and probable consequences theory, " 'a person who aids and abets a confederate in the commission of a criminal act is liable not only for that crime (the target crime), but also for any other offense (nontarget crime) committed by the confederate as a "natural and probable consequence" of the crime originally aided and abetted.' " (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 298-299.) " 'The . . . question is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable.' " (People v. Medina (2009) 46 Cal.4th 913, 920.) "Liability under the natural and probable consequences doctrine 'is measured by whether a reasonable person in the defendant's position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted.' " (Ibid.) We discuss this doctrine in greater detail in addressing Maraglino's claim of instructional error, post.
After Perez picked Killgore up from her apartment, the most that could be said about Maraglino is that she was home at the time of the torture, based on Perez's "Come home" text message to her. But mere presence at the scene of the crime is not sufficient to render Maraglino an aider and abettor of torture, absent other evidence bearing on her guilt. (People v. Lam Thanh Nguyen (2015) 61 Cal.4th 1015, 1055.) Likewise, while there is evidence Maraglino told Perez to dump Killgore's cell phone downtown, and evidence she was in the hotel when Lopez penned her confession letter, these facts do not support a reasonable inference she took any action that aided and abetted Killgore's torture itself. (See People v. Perez (1992) 2 Cal.4th 1117, 1133 [" ' "A reasonable inference . . . may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. . . ." ' "].)
The court denied defendants' 1118.1 motion because Killgore's injuries indicated great bodily injury and there was evidence suggesting a sadistic purpose or desire for revenge. However, based on the state of the evidence at the close of the prosecution's case-in-chief, there was insufficient evidence linking Maraglino's conduct to Killgore's injuries. The court abused its discretion in denying that motion, and there is insufficient evidence to support Maraglino's conviction for torture.
Because we reverse her torture conviction on sufficiency of evidence grounds, we need not reach Maraglino's argument that this conviction must be reversed due to the trial court's failure to instruct the jury on conspiracy to commit torture.
D. Count 5: Attempted Sexual Battery by Restraint (All Defendants)
Maraglino argues the trial court abused its discretion in denying her motion for acquittal under section 1118.1 for the attempted sexual battery charge. All three defendants contend the evidence was insufficient to support their convictions. Viewing the record in the light most favorable to the jury's verdict, we conclude there is sufficient evidence to support Perez's and Lopez's convictions but insufficient evidence to support Maraglino's conviction for attempted sexual battery by restraint.
"Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery." (§ 243.4, subd. (a).) " '[T]ouches' means physical contact with the skin of another person, whether accomplished directly or through the clothing of the person committing the offense." (Id., subd. (f).) " 'Intimate part' means the sexual organ, anus, groin, or buttocks of any person, and the breast of a female." (Id. subd. (g)(1).) Unlawful restraint requires something more than the "mere exertion of physical effort required to commit the prohibited sexual act." (People v. Pahl (1991) 226 Cal.App.3d 1651, 1661.)
Defendants were charged with attempted sexual battery. "Criminal activity exists along a continuum. At its conclusion is the commission of a completed crime, like murder. The principle of attempt recognizes that some measure of criminal culpability may attach before a defendant actually completes the intended crime. Thus, a person who tries to commit a crime but who fails, or is foiled, may still be convicted of an attempt to commit that crime. A criminal attempt still requires mens rea and actus reus. 'An attempt to commit a crime consists of . . . a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.' (§ 21a.) To ensure that attempt principles do not punish a guilty mental state alone, an act toward the completion of the crime is required before an attempt will be recognized." (Johnson, supra, 57 Cal.4th at pp. 257-258.)
Thus, attempted sexual battery requires proof of a direct but ineffectual act to touch an intimate part of the victim's body while the victim was restrained and against her will. The touching must be done for the specific purpose of sexual arousal, gratification, or abuse. (CALCRIM No. 935; People v. Dixon (1999) 75 Cal.App.4th 935, 942.)
There is sufficient evidence Perez and Lopez unlawfully restrained Killgore. A stun baton found in Perez's car could deliver 1 million volts of current, and Lopez's confession letter admitted using a Taser to subdue her. Killgore had five pinprick marks on the left side of her face, consistent with the stun baton or a Taser being used. DNA evidence further supported the inference Perez used the stun baton on Killgore. Lopez's letter also admitted using handcuffs to restrain Killgore, and Killgore had bruising on her left wrist consistent with that admission. There was ample evidence Killgore was also restrained at the neck. She died of ligature strangulation, and Lopez's letter admitted strangling her with a rope, "wrapping the rope around [her] foot for leverage." There was a rope in the car Lopez and Maraglino took to the hotel on April 16, although they could not definitely link it to the marks imprinted on Killgore's neck.
The jury could reasonably infer from the ruse to lure Killgore and her "Help" text that she did not consent to any touching or attempted touching. The use of a stun baton also supported a reasonable inference Killgore did not consent. Killgore was "vanilla kink aware"; she knew about defendants' lifestyle but did not engage in BDSM. She hardly ever spoke to Perez, had no interest in him, and could sense Maraglino did not like her. It is reasonable to infer that any touching or attempted touching was not consensual.
A sexual purpose can be inferred from the BDSM evidence. The events of April 13 and Killgore's injuries were consistent with all three defendants' sexual interests, and the jury could reasonably infer Killgore was killed during a BDSM enactment. Perez was a sadist who derived sexual gratification from inflicting pain on others. He enjoyed choking, beating, using knives, belts, and floggers, and engaging in aggressive nonconsensual sexual acts. He and Maraglino fantasized about kidnapping scenarios involving torture and rape, and he had acted out kidnapping scenarios involving group sex on other women. Maraglino derived sexual pleasure from inflicting pain on others through choking, flogging, caning, needle play, and fire play. Killgore died of ligature strangulation, and rope play was common in the home. Maraglino and Lopez wrote graphic sexual fantasies involving torture. Lopez's ciphered journal entry expressed interest in torturing, killing, and dismembering a person. Moreover, Killgore's body was found nude, "suggesting a sexual motivation." (People v. Clark, supra, 3 Cal.4th at p. 127.) In short, there is sufficient evidence all three defendants possessed the requisite intent to attempt to touch Killgore for sexual arousal, gratification, or abuse.
There is sufficient evidence as to Perez and Lopez of a direct but ineffectual act to make direct contact with an intimate part of Killgore's body. Killgore's nude body was "found in a location where her lack of clothing was not easily explainable." (People v. Jennings (1991) 53 Cal.3d 334, 367-368.) "When the body of a young woman is found unclothed in a remote locale, an inference arises that some sexual activity occurred. . . ." (Id. at p. 368.) The jury could infer Perez took a "direct but ineffectual act" toward touching Killgore's intimate parts when he used the stun baton on her. Dora, Lopez's former co-slave, testified that BDSM play in Maraglino's household was "usually" followed by sex acts, including Perez engaging in skin-to-skin touching of her genitals. The jury could reasonably infer Perez used the stun baton to carry out the rest of his BDSM fantasy and engage in sex acts, as he had done with other women. The jury could also infer that Lopez aided and abetted Perez once she returned home from the grocery store, given her admission in the confession letter that she subdued and restrained Killgore in Maraglino's home. From abduction-rape fantasies discussed openly in the home, monthly BDSM "play parties," and her own BDSM lifestyle with her codefendants, the jury could reasonably infer Lopez knew Perez intended to touch Killgore's intimate parts against her will and helped him try to do so.
People v. Jennings, supra, 53 Cal.3d 334 addressed whether the state of a victim's nude body could establish sufficient evidence of rape for corpus delicti purposes (to corroborate defendant's extrajudicial admission). (Id. at p. 367.) Although not faced with the same legal question, we believe Killgore's nudity supports a reasonable inference of attempted touching of her intimate parts.
Perez argues his conviction for attempted sexual battery was wholly dependent on prior bad act evidence to prove both intent and the criminal act and claims there was no evidence Perez touched or attempted to touch Killgore while she was alive. Perez's argument ignores the stun baton found in his car, which contained both Killgore's DNA on the prongs and Perez's on the handle and strap. The stun baton supports a reasonable inference that Perez attempted to make unwanted intimate contact with Killgore, and the BDSM evidence supports a reasonable inference the purpose was for his sexual gratification.
Lopez points to the lack of semen or genital trauma to suggest there was no evidence Killgore's intimate parts had been touched. However, such evidence is not required to support a conviction for attempted sexual battery. An attempt requires only "a direct but ineffectual act" (§ 21a) to touch Killgore's intimate parts, and there is substantial evidence of that here.
As with the torture count, Maraglino's conviction requires a different analysis. In denying defendants' section 1118.1 motion, the court reasoned that the jury could infer intent and criminal attempt based on the state in which Killgore's body was found and defendants' BDSM activity, interests, and writings. The court explained that the manner of death was consistent with the types of BDSM activity defendants engaged in. While this analysis was sound as to Perez and Lopez, who could be linked to Killgore's injuries through the stun baton and confession letter, it was not sound as to Maraglino, who could not be linked to any direct but ineffectual act to touch Killgore's intimate parts. As discussed above in relation to the torture conviction, there is insufficient evidence to support a reasonable inference that Maraglino directly aided and abetted in any of the charged offenses after returning home from the grocery store.
Because the prosecution did not proceed on a theory Killgore's attempted sexual battery was a natural and probable consequence of the kidnapping, or that Maraglino was part of a conspiracy to commit sexual battery, Maraglino's conviction for attempted sexual battery lacks sufficient evidentiary support. The trial court abused its discretion in denying Maraglino's section 1118.1 motion as to this count, and there is insufficient evidence to support her conviction for attempted sexual battery by restraint.
E. Count 1: First Degree Special Circumstance Felony Murder (All Defendants)
The jury convicted defendants of first degree murder (§ 187, subd. (a)) and made a true finding on the special circumstance allegation that the murder happened during a kidnapping (§ 190.2, subd. (a)(17)(B)). All three defendants challenge the sufficiency of the evidence supporting their convictions for first degree felony murder and the true special circumstance findings; Maraglino argues by extension that her resulting LWOP sentence violates her Eighth Amendment rights. We conclude sufficient evidence supports defendants' convictions for first degree felony murder and true special circumstance findings.
1. First Degree Felony Murder
All murder committed in the perpetration of or attempt to perpetrate kidnapping or torture is murder in the first degree. (§ 189.) "The mental state required for felony murder is ' "the specific intent to commit the underlying felony" ' [citation], and ' "the evidence must establish that the defendant harbored the felonious intent either prior to or during the commission of the acts which resulted in the victim's death." ' " (People v. Brooks (2017) 2 Cal.5th 674, 733.) "First degree felony murder does not require proof of a strict causal or temporal relationship between the felony and the killing." (Ibid.) "Rather, a killing has been 'committed in the perpetration of' the underlying felony within the meaning of section 189 'if the killing and the felony are parts of one continuous transaction.' " (Id. at pp. 733-734.) Accomplice liability for felony murder rests on aiding and abetting the underlying felony or attempted felony resulting in the murder. (People v. Clark (2016) 63 Cal.4th 522, 615 (Clark).)
"The purpose of the felony murder rule is to deter those who commit the enumerated felonies from killing by holding them strictly responsible for any killing committed by a cofelon, whether intentional, negligent, or accidental, during the perpetration or attempted perpetration of the felony." (People v. Cavitt (2004) 33 Cal.4th 187, 197 (Cavitt).) " 'The Legislature has said in effect that this deterrent purpose outweighs the normal legislative policy of examining the individual state of mind of each person causing an unlawful killing to determine whether the killing was with or without malice, deliberate or accidental, and calibrating our treatment of the person accordingly. Once a person perpetrates or attempts to perpetrate one of the enumerated felonies, then in the judgment of the Legislature, he is no longer entitled to such fine judicial calibration, but will be deemed guilty of first degree murder for any homicide committed in the course thereof.' " (Ibid.)
The prosecution offered two theories of first degree felony murder, kidnapping murder and torture murder. On appeal, Perez challenges his first degree felony murder conviction on the basis there was insufficient evidence to support his underlying convictions for kidnapping and torture. He concedes there was substantial evidence to support a first degree murder conviction on a premeditated and deliberate malice aforethought theory, but argues there was insufficient evidence to convict him on a kidnapping murder or torture murder theory. We need not address this argument at length. Because his felony convictions for kidnapping and torture are supported by substantial evidence (see discussion, ante), the trial court did not err in instructing the jury on felony murder, and the jury reasonably convicted Perez of first degree felony murder based on his role in the underlying felonies.
Given our holding, we likewise need not reach Perez's argument that in the event there is insufficient evidence to support his underlying torture and kidnapping convictions, we should remand the case for retrial on malice aforethought murder.
Maraglino and Lopez do not specifically address the elements of felony murder in attacking their convictions. Maraglino broadly challenges the sufficiency of the evidence for all of her convictions on the basis there was no evidence she knew of any plan to commit a criminal offense against Killgore. As discussed above, we conclude there is ample evidence supporting her culpability for kidnapping as a direct aider and abettor and as a conspirator with Perez. Although we found insufficient evidence supporting her convictions for torture or attempted sexual battery, the kidnapping conviction alone is sufficient to sustain her first degree felony murder conviction.
As we discuss elsewhere in the opinion, it is clear that the jury convicted Maraglino of first degree felony murder based on a kidnapping theory, given the true special circumstance finding.
Lopez takes a similar approach, challenging the admissibility and reliability of the BDSM evidence, confession letter, and Perez's testimony to argue the evidence supporting all of her convictions was insubstantial, based on improper character references, and not credible given Lopez's prior dealings with Killgore and her lack of involvement in planning the kidnapping. Because we have rejected these underlying contentions and concluded sufficient evidence supports Lopez's torture and kidnapping convictions, there is sufficient evidence to support her conviction for first degree felony murder.
2. Kidnapping Special Circumstance
What is sufficient to establish the elements for first degree felony murder is not necessarily sufficient to establish first degree special circumstance felony murder. (Clark, supra, 63 Cal.4th at p. 616.) This is because the United States Supreme Court has ruled it unconstitutional under the Eighth Amendment to "treat all felony murderers as equally culpable and eligible for death." (Banks, supra, 61 Cal.4th at p. 810.) The Eighth Amendment requires states to offer guidance to differentiate those for whom death is appropriate from those for whom it is not. (Id. at p. 797.)
Although the standards articulated for capital liability of aiders and abettors were developed in death penalty cases, they apply equally in cases involving eligibility under section 190.2, subdivision (d) for life imprisonment without parole. (Banks, supra, 61 Cal.4th at p. 804.)
California uses a two-step process—first, looking to the existence of one or more special circumstances, rendering the defendant death eligible (§ 190.2, subd. (a)), and second, evaluating aggravating and mitigating factors to determine if death or life imprisonment without parole is appropriate (§ 190.3). (Banks, supra, 61 Cal.4th at p. 797.) Relevant here, the kidnapping special circumstance recognizes capital liability for a murder "committed while the defendant was engaged in, or was an accomplice in, the commission of . . . [¶] . . . [¶] Kidnapping in violation of Section 207." (§ 190.2, subd. (a)(17)(B).)
"The standard of review for a sufficiency of the evidence claim as to a special circumstance is whether, when evidence that is reasonable, credible, and of solid value is viewed 'in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the allegation beyond a reasonable doubt.' " (Clark, supra, 63 Cal.4th at p. 610.) This is the same standard applied to review the sufficiency of the evidence supporting a conviction. (Banks, supra, 61 Cal.4th at p. 804.)
We conclude there is sufficient evidence to support the jury's true findings as to the kidnapping special circumstance allegation as to all three defendants.
The special circumstance statute extends death eligibility to both actual killers and certain aiders and abettors of first degree murder. (Banks, supra, 61 Cal.4th at p. 797.) An actual killer "need not have had any intent to kill at the time of the commission of the [kidnapping]" to be death eligible. (§ 190.2, subd. (b).)
Section 190.2, subdivision (b) provides: "Unless an intent to kill is specifically required under subdivision (a) for a special circumstance enumerated therein, an actual killer, as to whom the special circumstance has been found to be true under Section 190.4, need not have had any intent to kill at the time of the commission of the offense which is the basis of the special circumstance in order to suffer death or confinement in the state prison for life without the possibility of parole."
There is sufficient evidence Perez was the actual killer and murdered Killgore while engaged in a kidnapping. He deceived Killgore to go out with him, tried to park outside the view of security cameras, and took Killgore against her will to Maraglino's home. His DNA was on the stun baton, and items in his car had traces of Killgore's blood. He used Killgore's phone to deceive her worried friends after the "Help" text, planted Killgore's cell phone downtown, and disposed of her nude body in a remote location. He changed his story multiple times to Killgore's friends and detectives as they tried to piece together what had happened. The kidnapping was consistent with Perez's BDSM fantasies of kidnapping a woman without consent, beating and raping her, and either abandoning or killing her. Killgore's death by ligature strangulation was likewise consistent with Perez's sexual interests. On the day of Killgore's murder, Maraglino left it to Perez to decide the measure of retribution appropriate for her enemies.
This evidence supports the jury's true finding on the kidnapping special circumstance allegation as to Perez. Because there is sufficient evidence to support an inference Perez was the actual killer, the jury did not need to find that he acted with intent to kill during the kidnapping. (§ 190.2, subd. (b).) As we explain, there is also sufficient evidence to support the special circumstance findings as to Maraglino and Lopez.
"The special circumstances statute extends death eligibility not only to killers, but also to certain aiders and abettors of first degree murder." (Banks, supra, 61 Cal.4th at p. 797.) "In order to support a finding of special-circumstance murder . . . against an aider and abettor who is not the actual killer, the prosecution must show either that the aider and abettor had intent to kill (§ 190.2, subd. (c)) or acted with reckless indifference to human life while acting as a major participant in the underlying felony. (§ 190.2, subd. (d).)" (People v. Bustos (1994) 23 Cal.App.4th 1747, 1753.) In other words, where an aider and abettor of felony murder lacks the intent to kill, section 190.2, subdivision (d) "imposes both a special actus reus requirement, major participation in the crime, and a specific mens rea requirement, reckless indifference with human life" to convict of special-circumstances murder eligible for death. (Banks, supra, p. 798.) The California Supreme Court defined both of those elements—"major participant" and "reckless indifference to human life"—in Banks.
Section 190.2, subdivision (c) provides: "Every person, not the actual killer, who, with the intent to kill, aids, abets, counsels, commands, induces, solicits, requests, or assists any actor in the commission of murder in the first degree shall be punished by death or imprisonment in the state prison for life without the possibility of parole if one or more of the special circumstances enumerated in subdivision (a) has been found to be true under Section 190.4."
Section 190.2, subdivision (d) provides: "Notwithstanding subdivision (c), every person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of a felony enumerated in paragraph (17) of subdivision (a) which results in the death of some person or persons, and who is found guilty of murder in the first degree therefor, shall be punished by death or imprisonment in the state prison for life without the possibility of parole if a special circumstance enumerated in paragraph (17) of subdivision (a) has been found to be true under Section 190.4."
To be a "major participant" in a felony, "a defendant's personal involvement [in the crimes leading to the victim's death] must be substantial, greater than the actions of an ordinary aider and abettor to an ordinary felony murder." (Banks, supra, 61 Cal.4th at p. 802.) A jury "must consider the totality of the circumstances" to determine "whether a defendant's culpability is sufficient to make him or her death eligible." (Id. at pp. 802, 803.) Among the factors to consider:
"What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did the defendant do after lethal force was used?"(Banks, supra, 61 Cal.4th at p. 803.)
"No one of these considerations is necessary, nor is any one of them necessarily sufficient." (Banks, supra, 61 Cal.4th at p. 803.) Instead, all of these factors "may be weighed in determining the ultimate question, whether the defendant's participation 'in criminal activities known to carry a grave risk of death' [citation] was sufficiently significant to be considered 'major' [citations]." (Ibid.) "In cases where lethal force is not part of the agreed-upon plan, absence from the scene may significantly diminish culpability for death." (Id. at p. 803, fn. 5; see Clark, supra, 63 Cal.4th at p. 614.)
"Reckless indifference to human life" under section 190.2, subdivision (d) can be determined under either a subjective or objective standard. (Clark, supra, 63 Cal.4th at p. 617.) Under the subjective standard, "[t]he defendant must be aware of and willingly involved in the violent manner in which the particular offense is committed, demonstrating reckless indifference to the significant risk of death his or her actions create." (Banks, supra, 61 Cal.4th at p. 801.) Under this standard, there must be evidence the defendants " 'subjectively appreciated that their acts were likely to result in the taking of innocent life.' " (Id. at pp. 801-802.) "Awareness of no more than the foreseeable risk of death inherent in any armed crime is insufficient; only knowingly creating a 'grave risk of death' satisfies the constitutional minimum." (Id. at p. 808.) Likewise, mere participation in inherently dangerous felonies subject to first degree felony murder treatment does not suffice to show that a defendant acted with reckless indifference to human life. (Id. at pp. 809-810.)
By contrast, the objective standard considers "what 'a law abiding person would observe in the actor's situation.' " (Clark, supra, 63 Cal.4th at p. 617.) "[A] defendant's good faith but unreasonable belief that he or she was not posing a risk to human life in pursuing the felony does not suffice to foreclose a determination of reckless indifference to human life." (Id. at p. 622.) Among the factors to consider for objective recklessness are: (1) defendant's knowledge weapons will be used, defendant's personal use of weapons, and the number of weapons involved; (2) defendant's physical presence and opportunities to prevent the murder and/or aid the victim; (3) the duration of the felony and whether the victim was murdered after a prolonged period of restraint; (4) the defendant's knowledge of a cohort's likelihood of killing; and (5) the defendant's efforts to minimize the risks of violence in the commission of the felony. (Id. at pp. 618-623.)
Maraglino contends there is insufficient evidence she acted with intent to kill—or that she was a major participant in the kidnapping who acted with reckless indifference to human life. As a result, she argues her sentence of life without parole violates the Eighth Amendment. We disagree and conclude the jury could reasonably infer she was both a major participant and acted with reckless indifference to human life. (§ 190.2, subd. (d).)
There is sufficient evidence to support the inference Maraglino was a major participant in the kidnapping. Killgore made it clear she would not accompany Perez on the dinner cruise without Maraglino's approval. Maraglino provided essential assistance, convincing Killgore to accompany Perez. The jury could infer she helped plan the kidnapping conspiracy shortly after Hernandez came and told them about her recent experience on the Hornblower cruise. After Killgore initially declined the invitation, Perez texted Maraglino, "That guy wasn't successful," and Maraglino responded, "Tomorrow is another day." As Perez was trying to convince Killgore to go on the cruise, Maraglino was searching the Internet on her phone for "dinner cruise" and "Hornblower San Diego."
After the "Help" text, when Hernandez called Maraglino worriedly, Maraglino denied having spoken to Killgore. That night, she told Perez to get rid of Killgore's cell phone downtown. She later tried to hide her role, telling detectives she had only let Killgore get Perez's help for the move, not go out with him. Maraglino deleted her text messages, disassembled her cell phone, and hid it in the bottom of a closet in her brother's house in Missouri. She was at the hotel when Lopez penned her confession letter and flew to Virginia while Lopez attempted suicide in the hotel room. Based on the totality of circumstances, the jury could reasonably find Maraglino was a major participant in criminal activities known to pose a grave risk of death (Banks, supra, 61 Cal.4th at p. 803).
Maraglino relies heavily on Banks, which reversed a true special circumstance finding as to the getaway driver in an armed robbery. (Banks, supra, 61 Cal.4th at pp. 804-811.) However, Maraglino's involvement was substantially greater than the getaway driver in Banks, who played no role in planning the robbery or procuring the weapons and was absent from the scene during the robbery and murder. (Id. at p. 805.)
There is sufficient evidence from which the jury could find Maraglino acted with reckless indifference to human life under either a subjective or objective standard. The jury could reasonably find Maraglino knowingly created a grave risk of death, beyond the risk posed in aiding any kidnapping. This was no ordinary kidnapping; it was a BDSM-related kidnapping to fulfill shared sexual fantasies. Maraglino and Perez fantasized about kidnapping a person without consent and beating, raping, and killing her. She had a video in her possession showing Perez continuing in extreme BDSM activity with a woman past the point of consciousness. Her fantasy writings involved abduction, torture, and murder. Maraglino signed a release of liability form indicating her awareness that BDSM activities with Perez could result in "loss of life." She also authored a document on the day of Killgore's murder releasing her anger to Perez and entrusting justice in his hands.
Likewise, under an objective standard, the jury could find that a reasonable person in Maraglino's situation would have recognized the risk her actions posed to Killgore's life. Maraglino knew Perez's sexual interests and the risks of engaging in BDSM with him, and the jury could infer she was home during Killgore's prolonged restraint. (Clark, supra, 63 Cal.4th at pp. 618-621.) Given the fantasies they shared, the jury could infer a reasonable person would know Perez's likelihood to kill Killgore. (Id. at p. 621.) There is no indication Maraglino tried to minimize the risk of violence during the kidnapping. (Id. at pp. 621-622.) Given her dislike of Killgore and letter entrusting justice to Perez, the jury could infer a reasonable person would have recognized an elevated risk to human life beyond the risk apparent in any kidnapping. (Cf. id. at pp. 622-623.)
In Clark, supra, 63 Cal.4th 522, the court found insufficient evidence the defendant was recklessly indifferent to human life under an objective standard. (Id. at p. 623.) Although the defendant planned and organized the crime and set it in motion, he took efforts to minimize the possibility of violence and was not on the ground for the immediate events leading up to the murder. (Ibid.) The court concluded there was nothing in the plan that elevated the risk to human life beyond those posed in any armed robbery. (Ibid.) Here, by contrast, the jury could properly find that a reasonable person in Maraglino's situation would have foreseen a risk to Killgore's life beyond the risk apparent in any kidnapping.
Therefore, substantial evidence supports Maraglino's true special circumstance finding, and her LWOP sentence does not violate the Eighth Amendment.
Substantial evidence also supports Lopez's true special circumstance finding. Although there is no evidence Lopez played a role in planning the kidnapping, she became actively involved once Killgore was brought to Maraglino's home. In her letter, she confessed to restraining Killgore with a Taser, rope, handcuffs, and tape and strangling her to death. She admitted to dousing the body with bleach, trying to dismember it, and dumping it near Lake Skinner. Killgore's injuries were consistent with the letter, and the body was recovered where the letter said it would be found. The jury could reasonably infer from the letter that Lopez acted with intent to kill; Lopez wrote as much, saying she saw Killgore trying to get between Maraglino and Perez and knew what she had to do. She added that Killgore "just wouldn't die" but "knew she deserved it and didn't fight much." "[A]iders and abettors who act with the intent to kill become death eligible whether or not their conduct makes them major participants in the crime. (§ 190.2, subd. (c).)" (Banks, supra, 61 Cal.4th at p. 798, fn. 4.)
To the extent the jury believed Lopez was the actual killer based on her confession letter, it did not have to find that she acted with intent to kill (§ 190.2, subd. (b)) and could have made a true special circumstance finding as to Perez based on his role as a major participant in the kidnapping and actions demonstrating a reckless indifference to human life (§ 190.2, subd. (d)).
F. Lopez's Posttrial Challenge to Sufficiency of the Evidence
Following the verdicts, Lopez filed a new trial motion challenging the admission of Dr. Abrams's testimony. She made no argument in that motion that "the verdict or finding is contrary to law or evidence" (§ 1181, subd. (6)). Nevertheless, on appeal, Lopez argues the trial court erred in denying a new trial based on an argument she made in her concurrently filed sentencing brief. We find no error. (See People v. Coffman and Marlow (2004) 34 Cal.4th 1, 127 [abuse of discretion standard applies].)
Section 1181 states in pertinent part, "[w]hen a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial in the following cases only: [¶] . . . [¶] 6. When the verdict or finding is contrary to law or evidence . . . ."
In her sentencing brief, Lopez argued the court should reverse the first degree felony murder and kidnapping convictions as "not supported by law" because there was insufficient evidence Killgore was still alive when Lopez returned from the grocery store. If Killgore was already dead, she argued, she could only be liable as an accessory after the fact. On appeal, Lopez extends this argument, claiming that same logic would also "dictate a finding of insufficient evidence as a matter of law to support the remaining convictions of torture and attempted sexual battery." She argues the court did not consider her argument in evaluating her new trial motion. She requests this court to remand the matter to the trial court, even if we find sufficient evidence to support her convictions, "to specifically consider and rule upon Lopez's motion for a new trial based upon insufficient evidence."
At the outset, Lopez is incorrect that the trial court never considered her argument. Before proceeding to sentencing the court indicated it had read and reviewed the probation report, new trial motion, and challenges to the verdict raised in Lopez's sentencing brief. It stated it had considered issues Lopez raised "as relates to the propriety of the verdict." Before proceeding to sentencing, the court asked the parties if there was anything else they wished to discuss. Lopez submitted on her sentencing brief. The record does not support her claim that the court failed to consider her argument. (People v. Lightsey (2012) 54 Cal.4th 668, 730 ["When the trial court denied the new trial motion 'in light of [the court's] review of the various arguments presented here today, along with the written motion,' we assume the court considered and rejected all grounds defendant raised, including the two grounds defendant now argues were omitted from the court's consideration."]; People v. Lewis (2006) 39 Cal.4th 970, 1062-1063 [same, rejecting argument ruling on new trial motion "was so perfunctory that we cannot be confident that the court properly exercised its discretion, or exercised any discretion at all"].)
On the merits, the trial court had no authority to grant the relief Lopez requested on a motion for a new trial. Lopez did not request a new trial on grounds of insufficient evidence. Instead, she asked the court to reverse her convictions for first degree felony murder and kidnapping. This the trial court could not do on a new trial motion. (Porter v. Superior Court (2009) 47 Cal.4th 125, 133.) "Whereas a jury must acquit if it finds the evidence insufficient, a trial court ruling on an 1181 motion may only grant the defendant a new trial if it is not convinced of guilt beyond a reasonable doubt." (Ibid.)
Even if we construed Lopez's papers as a new trial request on grounds of insufficient evidence, the trial court was well within its discretion to deny the motion. As discussed, sufficient evidence supports each of Lopez's convictions and the true special circumstance finding. As a factual matter, there was sufficient evidence from which a reasonable jury could infer that Perez brought Killgore to Maraglino's home. Perez testified he brought Killgore there after picking her up, and a neighbor recalled seeing his car pull up to the home. Killgore's phone was closer to Maraglino's home than her own when Tal called her at 8:03, and it was very close to Maraglino's home when Hernandez called her at 8:14. Perez's "Come home" text at 8:11 and Lopez's departure from the grocery store a minute later supports a reasonable inference she joined Perez at the home. As to Lopez's contention Killgore may not have been alive, her confession letter supports a contrary inference. Lopez claimed she decided to kill Killgore after she barged in and demanded help opening Perez's car. While certain details of this letter were contradicted by other evidence at trial, the jury was entitled to infer from the letter that Killgore was alive after she was brought to Maraglino's home.
We decline Lopez's request to remand the case for the trial court to consider her motion for a new trial on grounds of insufficient evidence.
III.
JOINT TRIAL
Defendants challenge their joint trial on appeal. Maraglino moved for severance, arguing that: her codefendants' statements could incriminate her; she could be prejudiced by her association with them; and she would be unable to call them as exculpatory witnesses. Perez also moved for severance, arguing his codefendants' statements might inculpate him and that their defenses were antagonistic. Lopez did not request severance.
Concluding much of the evidence would be cross-admissible at separate trials, the trial court denied the severance motions. The court found there did not appear to be such significant evidence against one defendant that other defendants' rights would be impacted by mere association with that defendant. It noted it had excluded Aranda-Bruton statements and agreed to provide appropriate limiting instructions as to particular evidence. Nor did antagonistic defenses require separate trials; the court cited People v. Hardy (1992) 2 Cal.4th 86 for the proposition that conflicting accounts provided "a reason for rather than against a joint trial." (Id. at p. 169, fn. 19, italics omitted.)
Under Bruton v. United States (1968) 391 U.S. 123 and People v. Aranda (1965) 63 Cal.2d 518, a codefendant's out-of-court statement incriminating himself and his codefendants is inadmissible in a joint trial; limiting instructions are insufficient to protect each codefendant's Sixth Amendment rights. Here, the trial court excluded under Aranda-Bruton a statement by Maraglino to a social worker that she was upstairs in her home when Lopez and Perez were downstairs playing with Killgore on the night of her murder. The court also ordered there needed to be proper context to avoid Aranda-Bruton concerns as to Lopez's statement to a third party that, "[s]ometimes my mistress likes to turn me loose on unsuspecting prey." Ultimately, the prosecution did not introduce that statement at trial.
Maraglino challenges the court's denial of her pretrial severance motion and argues the resulting joint trial deprived her of effective assistance of counsel, due process, and a fair trial. Perez does not challenge the denial of his severance motion but claims the joint trial was grossly unfair. Lopez did not move for severance but argues the joint trial was grossly unfair.
By not filing a motion to sever or joining her codefendants' pretrial severance motions, Lopez waived any claim that the denial of those motions resulted in prejudicial error. (People v. Mitcham (1992) 1 Cal.4th 1027, 1048.) Thus, her claim is limited to whether, upon an examination of the entire case, a joint trial resulted in "an unfairness so gross . . . as to deprive [her] of due process of law." (People v. Burns (1969) 270 Cal.App.2d 238, 252.)
Substantively, each defendant claims the jury found him or her guilty by virtue of association with the other two and that the BDSM evidence admitted against the others would not have been admitted in a separate trial. Lopez and Perez further argue that their antagonistic defenses compelled separate trials. We conclude the trial court did not abuse its discretion in denying Maraglino's severance motion and that the resulting joint trial was not grossly unfair to any defendant.
A. Legal Principles
"When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order[s] separate trials." (§ 1098, italics added.) "Our Legislature has thus 'expressed a preference for joint trials.' " (People v. Avila (2006) 38 Cal.4th 491, 574 (Avila); see People v. Thompson (2016) 1 Cal.5th 1043, 1079 (Thompson).) Joint trials promote efficiency and serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts. (Bryant, supra, 60 Cal.4th at pp. 378-379.)
Although joint trials are preferred, a trial court may, in its discretion, order separate trials " 'in the face of an incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony.' " (Avila, supra, 38 Cal.4th at pp. 574-575.) In arguing the court should have severed the trials, defendants primarily argue severance was warranted due to prejudicial association and conflicting defenses among them.
"We review a trial court's denial of a severance motion for abuse of discretion based on the facts as they appeared at the time the court ruled on the motion." (Avila, supra, 38 Cal.4th at p. 575.) "If the court's joinder ruling was proper at the time it was made, a reviewing court may reverse a judgment only on a showing that joinder ' "resulted in 'gross unfairness' amounting to a denial of due process." ' " (Ibid.; see Thompson, supra, 1 Cal.5th at p. 1079 ["[E]ven if a trial court acted within its discretion in denying severance, ' "the reviewing court may nevertheless reverse a conviction where, because of the consolidation, a gross unfairness has occurred such as to deprive the defendant of a fair trial or due process of law." ' "].)
B. No Abuse of Discretion in Denying Maraglino's Severance Motion
Reviewing the facts as they appeared at the time the court denied Maraglino's motion (Avila, supra, 38 Cal.4th at p. 575), we find no abuse of discretion.
Maraglino, Perez, and Lopez were all charged with the same crimes arising out of the same events. "Defendants 'charged with common crimes involving common events and victims' present a ' "classic case" ' for a joint trial." (People v. Tafoya (2007) 42 Cal.4th 147, 162; see Avila, supra, 38 Cal.4th at p. 575.) " 'Under Penal Code section 1098, a trial court must order a joint trial as the "rule" and may order separate trials only as an 'exception." ' " (People v. Cleveland (2004) 32 Cal.4th 704, 726.) "[A] joint trial may actually enhance fairness and reliability" by giving the jury " 'a more complete view of all the acts underlying the charges than would be possible in separate trials' " and thereby help the jury " 'arrive more reliably at its conclusions regarding the guilt or innocence of a particular defendant and to assign fairly the respective responsibilities of each.' " (Bryant, supra, 60 Cal.4th at p. 381, italics omitted.)
Maraglino contends her association with Perez and Lopez warranted severance. She argues that while there was substantial evidence of guilt against Perez, and to a lesser extent Lopez, the prosecution's case against her consisted entirely of improper guilt-by-association inferences. To the contrary, based on the record at the time Maraglino's severance motion was made, we conclude the trial court reasonably found there was no prejudicial association warranting a separate trial. During motions in limine, the court deemed admissible Maraglino's writings demonstrating an interest in nonconsensual kidnapping and/or murder and her April 13, 2012 writing giving Perez all her grudges and entrusting him with justice. The court had ruled the prosecution could introduce text messages and call logs recovered from Maraglino's cell phone. The cell phone evidence, and evidence presented at the six-day preliminary hearing, suggested Maraglino played a major role in the kidnapping conspiracy, by convincing Killgore to accompany Perez. Although the court also allowed the prosecution to introduce graphic evidence against Lopez and Perez, it agreed to give appropriate limiting instructions, and "[j]urors are expected to follow instructions in limiting evidence to its proper function." (Bryant, supra, 60 Cal.4th at p. 381.)
Severance is not compelled merely because "different defendants participating together in a crime will have different levels of involvement and different personal backgrounds," for "[i]ndividuals who choose to commit crimes together are not generally entitled to shield the true extent of their association by the expedient of demanding separate trials." (Bryant, supra, 60 Cal.4th at p. 383.) Instead, to justify severance, "the characteristics or culpability of one or more defendants must be such that the jury will find the remaining defendants guilty simply because of their association with a reprehensible person, rather than assessing each defendant's individual guilt of the crimes at issue." (Ibid.) Given the strength of the evidence against her, the trial court reasonably concluded that the evidence against Perez or Lopez was not of such nature that the jury would find Maraglino guilty by her mere association with them.
Maraglino also argues that BDSM power dynamics alone presented a compelling reason for severance, suggesting her discomfort with taking a position antagonistic to Perez hampered her ability to defend herself in a joint trial. As the People argue, Maraglino does not explain how that dynamic would be different in a separate trial. Indeed, Maraglino stood to gain from a joint trial; the trial court excluded on confrontation clause grounds her statement to a social worker that she was upstairs in her home when Perez and Lopez were downstairs engaging in BDSM "play" with Killgore. Moreover, Maraglino's emotional conflicts with being tried in proximity to Perez did not entitle her to a separate trial. (People v. Zendejas (2016) 247 Cal.App.4th 1098, 1105 [alleged " 'torment, stress, and distress' " in being seated near a codefendant did not justify overriding the preference for a joint trial].)
The court did not abuse its discretion in denying Maraglino's severance motion.
C. Joint Trial Did Not Result in Gross Unfairness
All three defendants argue their joint trial resulted in gross unfairness depriving them of a fair trial or due process of law. At the outset, we note that much of the challenged evidence would have come in even at separate trials to establish each defendant's relationship with the other two, BDSM roles, and sexual interests. Killgore's death did not occur in a vacuum (Kelly, supra, 42 Cal.4th at p. 785), and BDSM evidence helped establish how and why defendants worked together to kill Killgore. (See Bryant, supra, 60 Cal.4th at p. 381 ["[T]he prosecution's theory regarding Smith's and Wheeler's involvement rested on their roles as active Family members who took direction from Bryant. As a result, much evidence about which they complain would have been relevant even at a separate trial."].)
Maraglino argues that inherent BDSM power dynamics forced her attorney to "soft-pedal any attacks she might have made" against Perez and Lopez in a separate trial, resulting in gross unfairness and ineffective assistance of counsel. However, a defendant's emotional distress at being seated near her codefendant during a joint trial does not impinge on her constitutional rights to a fair trial and effective assistance of counsel. (People v. Zendejas, supra, 247 Cal.App.4th at p. 1105.) Nor does the record suggest Maraglino's trial counsel was hampered in the manner suggested; during closing arguments, her counsel stressed that, in contrast to her codefendants, there was little connecting Maraglino to the crimes.
Maraglino also contends her conviction was based on guilt-by-association, citing Lopez's ciphered fantasy writing and Perez's treatment of other women. However, the court provided limiting instructions as to Lopez's fantasy writing, and Maraglino authored equally graphic and disturbing writings describing abduction, kidnapping, torture, and murder; hunting for vulnerable victims; and committing and covering up a crime. As to evidence that Perez engaged in nonconsensual BDSM behavior with other women, Maraglino also discussed kidnapping somebody, "whether they were aware that it was going to occur or not," and she and Perez played out a nonconsensual kidnapping fantasy on Nicole. Moreover, there was strong evidence of Maraglino's role in the kidnapping given her texts and conversation with Killgore. She disliked Killgore and, on the day of her death, had entrusted Perez to deliver retribution against her enemies. Maraglino was not convicted based on her prejudicial association with Lopez and Perez. (Bryant, supra, 60 Cal.4th at p. 383.)
For similar reasons, we reject Perez's contention the jury could not compartmentalize Maraglino's and Lopez's fantasy writings. The court gave limiting instructions as to those writings preventing their use against Perez, and we presume the jury followed those instructions. (Bryant, supra, 60 Cal.4th at p. 381.) Moreover, Perez fantasized about kidnapping, raping, and killing women and played out BDSM kidnapping scenarios, including with Maraglino. There was ample evidence he enjoyed choking women, inflicting pain, and pushing the boundaries of consent. Detectives found Maraglino's throat-slit writing and April 13 retribution writing in his possession, supporting their use against him even in a separate trial.
Nor is this a case in which the evidence against Maraglino or Lopez was so strong that the jury would find Perez guilty simply because of his association with them. (Bryant, supra, 60 Cal.4th at p. 383.) Apart from the BDSM evidence, the jury could consider Perez's unannounced visit to Killgore's apartment on April 13; deception about the Hornblower cruise; attempts to park his car outside the security cameras' view; Killgore's "Help" text soon after getting in his car; his deception to Killgore's concerned friends; physical evidence in Perez's car containing Killgore's DNA and his DNA; and his admission he disposed of physical evidence and dumped Killgore's body.
A similar analysis applies to Lopez. Lopez claims much of the BDSM evidence said nothing about her, given her interest as a masochistic slave in receiving pain. However, the jury also heard evidence that BDSM power dynamics were fluid and Lopez was a dominant in past and present relationships. Lopez authored a detailed "snatch-and-grab" fantasy about abducting, torturing, killing, and dismembering a person she did not like, and she expressed dislike for Killgore as recently as the day of her murder. Critically, her detailed confession letter accurately described Killgore's injuries and led detectives to the body. It also gave a motive for killing Killgore—to prevent Killgore from coming between Perez and Maraglino, as Marina had previously done. Cell phone location data indicated Lopez accompanied Perez to dump the body at Lake Skinner. In short, this is not a case in which the jury was likely to find Lopez guilty simply because of her association with a reprehensible person. (Bryant, supra, 60 Cal.4th at p. 383.)
Although all three claim they were tried with a significantly more culpable defendant, a joint trial is not unfair "[s]imply because the prosecution's case will be stronger if defendants are tried together, or that one defense undermines another." (Bryant, supra, 60 Cal.4th at p. 379.) "[S]everance is not required simply because a joint trial may reduce the likelihood of one or more of the defendants obtaining an acquittal." (Ibid.) Throughout trial and again before deliberations, the court instructed the jury on the limited purpose of particular evidence. It instructed the jury under CALCRIM No. 203 that it was to "separately consider the evidence as it applies to each defendant" and "decide each charge for each defendant separately." That the jury acquitted Lopez of conspiracy to commit kidnapping underscores its ability to assess each defendants' charges on their individual merits. (See People v. Ervin (2000) 22 Cal.4th 48, 69 [verdicts imposing different punishments at penalty phase indicated jury was able to independently assess respective culpability of each defendant and apply limiting instructions].)
Lopez and Perez raise an additional argument on appeal, claiming their antagonistic defenses required severance and rendered a joint trial grossly unfair. Lopez argues testimony by Perez's mental health expert, Dr. Abrams, never would have been introduced in a separate trial, as it served solely to support Perez's blame-shifting defense. We are not convinced.
That Lopez and Perez each argued the other was to blame did not by itself require separate trials; antagonistic defenses do not per se require severance. (Avila, supra, 38 Cal.4th at p. 576.) " ' "Although several California decisions have stated that the existence of conflicting defenses may compel severance of codefendants' trials, none has found an abuse of discretion or reversed a conviction on this basis." [Citation.] If the fact of conflicting or antagonistic defenses alone required separate trials, it would negate the legislative preference for joint trials and separate trials "would appear to be mandatory in almost every case." ' " (Thompson, supra, 1 Cal.5th at p. 1081.)
For severance to be warranted, the conflict must be so prejudicial that the defenses are irreconcilable and the jury will thereby infer that this conflict alone demonstrates that both codefendants are guilty. (Avila, supra, 38 Cal.4th at p. 576; Thompson, supra, 1 Cal.5th at p. 1081.) Where, as here, there is sufficient independent evidence against each defendant, it is not the conflict alone that demonstrates his or her guilt, and antagonistic defenses do not compel severance. (Avila, supra, p. 576; Thompson, supra, p. 1081.) Indeed, Perez and Lopez's conflicting accounts may be "a reason for rather than against a joint trial." (People v. Hardy, supra, 2 Cal.4th at p. 169, fn. 19, italics omitted.) In a case such as this one, with multiple defendants playing different roles, a joint trial "may actually enhance fairness and reliability," giving the jury a more complete picture and helping it arrive at more reliable and fair conclusions regarding guilt and relative culpability. (Bryant, supra, 60 Cal.4th at p. 381, italics omitted.)
Lopez is correct that the prosecution would not have sought to put Dr. Abrams on the stand in a separate trial; the prosecution joined her strenuous objection to his testimony at trial. Nevertheless, the trial court limited the scope his testimony, and Lopez established through effective cross-examination that Dr. Abrams had not examined her; had incomplete health records; was paid by Perez to testify; and made a diagnosis that is somewhat controversial in the psychiatric field. Given the ample evidence discussed above, all of which would have been admissible in a separate trial, any error in allowing Dr. Abrams to testify at a joint trial was harmless. (Thompson, supra, 1 Cal.5th at p. 1082; see also section IV, post.)
As to Perez's claim that a joint trial allowed Lopez to act as a " 'second prosecutor,' " Lopez's effective cross-examination of Perez and her closing arguments "did not lessen the prosecution's burden, or result in gross unfairness amounting to a denial of due process." (People v. Letner and Tobin (2010) 50 Cal.4th 99, 153.) Because there was sufficient independent evidence of his guilt, the conflict between defendants did not itself lead to Perez's convictions. (Ibid.; Bryant, supra, 60 Cal.4th at p. 380.) " '[T]his was not a case in which only one defendant could be guilty. The prosecution did not charge both and leave it to the defendants to convince the jury that the other was that person.' " (Hajek, supra, 58 Cal.4th at p. 1174.) "Proceeding with a joint trial despite the existence of inconsistent or mutually antagonistic defenses is thus consistent with constitutional guarantees, at least in the absence of some greater showing of prejudice or an unfair trial." (Thompson, supra, 1 Cal.5th at pp. 1081-1082.)
As in Avila, "[t]his was a classic case for a joint trial: all defendants faced equivalent charges, most of the evidence was cross-admissible, and there was strong evidence against each defendant." (Avila, supra, 38 Cal.4th at p. 575.) Defendants have not shown that a joint trial resulted in gross unfairness amounting to a denial of due process or a violation of their constitutional rights to a reliable and individualized verdict. (Letner, supra, 50 Cal.4th at p. 154.)
Because joinder did not result in gross unfairness, it follows that the denial of Lopez's new trial motion on that basis was not an abuse of discretion. We further note that the trial court reasonably concluded in denying the motion that Lopez failed to show that Perez's blame-shifting defense at trial was an unfair surprise. As the court noted, Lopez wrote a letter taking full responsibility before attempting suicide, and it was obvious Perez would try to shift the blame to her.
IV.
ADMISSION OF DR. ABRAMS'S TESTIMONY (LOPEZ)
At trial, over strenuous objection by the prosecution and Lopez, the court permitted Perez to present expert testimony of psychiatrist Dr. Abrams on Lopez's mental health. On appeal, Lopez argues the trial court committed reversible error in allowing Dr. Abrams to testify. We conclude any error was harmless.
A. Procedural Background
Toward the end of the prosecution's case-in-chief, the trial court held an evidentiary hearing outside the presence of the jury to consider whether to allow Dr. Abrams to testify at trial. At that hearing, Dr. Abrams testified (much as he would at trial) that Lopez appeared to have disassociative identity disorder (D.I.D.), borderline personality disorder, and depressive disorder. On cross-examination, Lopez's counsel elicited that Dr. Abrams lacked complete records, had not interviewed Lopez, relied on media reports to reach his conclusion, and was hired by Perez. During counsels' arguments, Perez claimed he had a right to present expert testimony to support his defense that Lopez acted alone to kill Killgore, arguing the evidence would challenge Lopez's defense that she had no role and wrote the confession letter solely as a slave. The People argued for exclusion under Evidence Code section 352 on grounds Dr. Abrams's testimony was not relevant, would confuse the issues, and result in an undue consumption of time. The People pointed out Dr. Abrams offered no link between Lopez's mental health and the actual act of killing and lacked information to make a diagnosis. Lopez joined in these arguments and further contended the testimony was improper character evidence, supporting the inference Lopez must have become unhinged and killed Killgore in a disassociative state. Given that she had not put her mental health at issue in the case, Lopez argued it was unduly prejudicial and lacked probative value.
The court deferred its ruling until Perez testified, to gauge relevance. It stated that to the extent Dr. Abrams testified at trial, there would be "strict parameters drawn." Following Perez's testimony, his counsel revisited the issue, and the prosecution and Lopez reasserted their objections. Following an unreported sidebar, the court permitted Dr. Abrams to offer limited testimony.
In a trial record spanning 30 volumes with nearly 3,000 pages of witness testimony alone, Dr. Abrams's testimony spans just 11 pages, two of which covered his training and background. Dr. Abrams testified that based on his limited review of Lopez's mental health records, he believed she had D.I.D., or, as it is commonly known, multiple personality disorder. Dr. Abrams testified,
"[T]he diagnosis of [disassociative] identity disorder is made if a person has a sense of discontinuity of belief [as to] who they are with at least one other co-occurring self, and there's a sense of a loss of agency or loss of control related to at least one of these alternate personalities and a sense of difference from that personality."He acknowledged "a long history of controversy" within the psychiatric field about D.I.D. but claimed most believe it to be a valid diagnostic disorder.
Dr. Abrams also believed Lopez had borderline personality disorder and depression. Common symptoms of the former included poor anger management, sense of self, paranoia, impulsive behavior, recurrent suicide attempts, unstable emotional relationships, highly reactive mood states and instability. He testified, "people with a borderline personality disorder chronically feel empty, and they have marked anxiety when they feel they're going to be abandoned."
During cross-examination, Lopez's counsel elicited that Dr. Abrams had been hired by Perez's counsel at a rate of $250 per hour and had not been asked to do a mental health evaluation of Maraglino or Perez.
B. Any Error in Allowing Dr. Abrams to Testify Was Harmless
Lopez argues that Dr. Abrams's testimony was "ultimately nothing more than inadmissible character evidence improperly inviting the jury to speculate that, simply because the expert believed she had such disturbing conditions, she was 'somebody who could engage in this sort of heinous act.' " We review the trial court's rulings on relevance and admissibility of evidence for abuse of discretion. (Davis, supra, 46 Cal.4th at p. 602.) As we explain, while it is a close question as to whether the trial court erred in allowing Dr. Abrams to testify, we conclude the error was harmless given the other unchallenged evidence implicating Lopez at trial.
Expert testimony is admissible when it is "[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (Evid. Code, § 801, subd. (a).) Testimony regarding D.I.D. and borderline personality disorder were proper subjects of expert opinion, assuming relevance, as areas sufficiently beyond common experience. (Davis, supra, 46 Cal.4th at p. 605 [no error in expert testimony giving general description and symptoms of paraphilia].) It is a much "closer question" whether the trial court erred in permitting Dr. Abrams testify that Lopez appeared to have those disorders. (Ibid. ["closer question" as to expert testimony that defendant's behavior was " 'consistent' with paraphilia"].)
As a general rule, evidence of a person's character is inadmissible to prove the conduct of that person on a specified occasion. (People v. Ewoldt, supra, 7 Cal.4th at p. 393; Evid. Code, § 1101, subd. (a).) To the extent Dr. Abrams's testimony was at all relevant, this is effectively the purpose it served. His testimony about D.I.D. and borderline personality disorder invited the jury to speculate that Lopez harbored a mindset to torture and kill Killgore in an altered state. Indeed, this is precisely how Perez's counsel used this evidence during closing arguments, claiming "we know" Lopez suffers from "serious mental health problems" and "has a clear psychiatric disorder," as "identified by a very qualified psychiatrist" who "has not been challenged in this courtroom by any other expert." He insisted Lopez had "an extreme mental disorder" and was "deeply psychologically troubled" and urged the jury to find she had a motive to kill given her symptoms of "loss of control, anger management, paranoia, impulsive behavior, overidealizing people, and anxiety of abandonment."
As the prosecution argued at the evidentiary hearing, and as Lopez argued during closing arguments, Dr. Abrams offered no link between Lopez's potential mental health conditions and the commission of murder. Although Evidence Code section 1101, subdivision (b) permits specific act evidence tending to show a defendant possessed the requisite mental state, "[t]he problem here is that Dr. [Abrams's] testimony was not limited to evidence of specific acts" and instead "offered an expert opinion on the ultimate issue [of intent]." (People v. McFarland (2000) 78 Cal.App.4th 489, 495.) Lopez did not put her mental health at issue for the evidence to be otherwise admissible under Evidence Code section 1102. (Ibid.)
Nevertheless, even if the trial court should have excluded Dr. Abrams's testimony, we conclude any error was harmless. We review the improper admission of character evidence under the standard articulated in Watson, supra, 46 Cal.2d 818. (People v. Malone (1988) 47 Cal.3d 1, 22.) We consider whether it is reasonably probable the jury would have returned a more favorable verdict had the trial court excluded the challenged evidence. (Watson, supra, at p. 836.) Probability "does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility." (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 918.)
Lopez argues the error implicated her due process rights to a fair trial and therefore should be reviewed under the harmless beyond a reasonable doubt standard of Chapman, supra, 386 U.S. 18. However, "the application of ordinary rules of evidence does not implicate the federal Constitution, and thus we review allegations of error under the 'reasonable probability' standard of People v. Watson . . . ." (People v. Harris (2005) 37 Cal.4th 310, 336; see People v. Wilson (2008) 44 Cal.4th 758, 797.)
Here, Lopez fails to show that it is reasonably probable the jury would have returned a more favorable verdict had the trial court excluded Dr. Abrams's testimony. Disregarding his testimony, as we did in assessing the sufficiency of the evidence supporting her convictions (see section II, ante), the evidence against Lopez was substantial. She disliked Killgore, referring to her as "the disease" and "the herpes." She went to Maraglino's home after Perez had brought Killgore there. She authored a detailed confession letter that took responsibility, accurately described Killgore's injuries, and led detectives to the body. There was cell phone location data (and Perez's testimony) suggesting she helped Perez dispose of the body. Lopez does not challenge the admission of her confession letter or cell phone location data at trial. Given this and other strong evidence against Lopez, we cannot conclude a different verdict was reasonably probable (Watson, supra, 46 Cal.2d at p. 836) had Dr. Abrams's testimony been excluded. (See Davis, supra, 46 Cal.4th at p. 605 [allowing testimony that defendant's conduct was consistent with paraphilia was harmless given other evidence of guilt].)
We would reach the same result if the error implicated Lopez's federal constitutional rights. Fundamental fairness is the touchstone of due process (Gagnon v. Scarpelli (1973) 411 U.S. 778, 790), and the erroneous admission of evidence does not violate due process unless it rendered the trial fundamentally unfair (People v. Partida (2005) 37 Cal.4th 428, 436, 439). Assuming the Chapman standard applied, any error was harmless beyond a reasonable doubt given the other unchallenged evidence admitted at trial. (Chapman, supra, 386 U.S. 18, 24.)
Moreover, Dr. Abrams's brief testimony supported an inference "the jury could easily have drawn by itself, without Dr. [Abrams's] help." (Davis, supra, 46 Cal.4th at p. 605.) At trial, witnesses testified that Lopez had mental health problems; anger management issues; claimed to have multiple personalities; and took antipsychotic drugs. Lopez signed her confession letter with multiple names—"Jessica Lopez, aka Rosalin, Loraine, Idaelea, Elizabeth, Dipatria, Angel"—and wrote she had to dump the body fast because her "pills were about to kick in." Even without Dr. Abrams's testimony, there was ample evidence Lopez may have been suffering from a mental health disorder. On this record, we find any error was harmless. (Ibid.)
V.
INSTRUCTIONAL ERROR (MARAGLINO)
Maraglino raises three separate claims of instructional error. First, she claims the court should have instructed the jury sua sponte with CALCRIM No. 375 for it to consider BDSM evidence for a noncharacter purpose. Second, she claims the trial court erred in failing to instruct the jury sua sponte with CALCRIM Nos. 402 and 417 because Killgore's murder was not the natural and probable consequence of the conspiracy to kidnap. Finally, she argues that by instructing the jurors with CALCRIM No. 548, the trial court erroneously told the jury it was not required to agree on whether to convict her of first degree or second degree murder.
As previously noted, our reversal of her torture conviction eliminates the need to address her fourth claimed error, that the trial court should have instructed the jury on the uncharged conspiracy to commit torture theory.
We review claims of instructional error de novo. (People v. Manriquez (2005) 37 Cal.4th 547, 581; People v. Waidla (2000) 22 Cal.4th 690, 733.) When the jury is misinstructed on an element of the offense, reversal is required unless the error was harmless beyond a reasonable doubt. (People v. Wilkins (2013) 56 Cal.4th 333, 348.) For errors of state law only, such as a refusal to give a pinpoint instruction, reversal is required only if it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. (Id. at pp. 348-349; People v. Mower (2002) 28 Cal.4th 457, 484.) As we explain, we conclude that to the extent any error occurred, it was harmless.
A. CALCRIM No. 375 [Limited Purpose of Other Act Evidence]
CALCRIM No. 375 provides instruction on evaluating other act evidence for the limited purpose of deciding whether the defendant had a certain intent, motive, identity, or common plan. It instructs the jury not to consider the evidence for any other purpose and not to conclude from the evidence that the defendant "has a bad character or is disposed to commit crime." (CALCRIM No. 375.) Maraglino argues that by not providing this instruction, the trial court "virtually invited" the jury to convict her "because she was a bad person, not because of what the prosecution proved she did." We conclude any error in failing to provide the instruction was harmless under Watson.
Maraglino applies the Watson standard in contending the failure to provide CALCRIM No. 375 resulted in prejudicial error and does not suggest the Chapman standard applies.
During the conference on jury instructions, the court noted "evidence was introduced that would suggest the application of [CALCRIM No.] 375," but Perez's counsel objected to the instruction and none of the other parties had insisted it be given. Therefore, it decided not to give the instruction but allow counsel to argue "the context of such evidence and how such evidence ought to be viewed by the jury." Prior to instructing the jury, the court again stated its willingness to give CALCRIM No. 375 if requested by counsel, but Maraglino's counsel made no request. The People argue Maraglino forfeited her argument on appeal. We need not address this contention because her claim fails on the merits.
"Although the trial court may in an appropriate case instruct sua sponte on the limited admissibility of evidence of past criminal conduct, . . . it is under no duty to do so." (People v. Collie (1981) 30 Cal.3d 43, 63 (Collie); People v. Valdez (2012) 55 Cal.4th 82, 139 (Valdez).) A sua sponte instruction is required only in the "occasional extraordinary case in which unprotested evidence of past offenses is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose." (Collie, supra, at p. 64, italics added).
This holding in Collie, supra, 30 Cal.3d 43 is equally applicable where there is evidence of past bad acts as opposed to prior criminal offenses. (People v. Milner (1988) 45 Cal.3d 227, 252.)
We agree with Maraglino that BDSM evidence was a focal point of the case and "highly prejudicial" in the sense that it was damaging to her case. However, we do not agree the evidence was only "minimally relevant to any legitimate purpose" (Collie, supra, 30 Cal.3d at p. 64). As discussed in section I, it was highly probative of noncharacter matters such as intent and common plan. (People v. Woods (1991) 226 Cal.App.3d 1037, 1054 [no sua sponte duty to instruct on limited admissibility of gang evidence where evidence was highly probative of motive and intent]; Valdez, supra, 55 Cal.4th at p. 139 [no sua sponte duty because evidence was not " 'minimally relevant to [a] legitimate purpose' "].) Killgore's death "did not occur in a vacuum" (Kelly, supra, 42 Cal.4th at p. 785), and as we have explained, the BDSM evidence helped the jury understand the circumstances of her death. This was not the extraordinary case in which the trial court had a duty to instruct the jury sua sponte with CALCRIM No. 375.
Even if we were to assume the trial court had a sua sponte instructional duty, any error was harmless. "[C]laims of instructional error are examined based on a review of the instructions as a whole in light of the entire record." (People v. Lucas (2014) 60 Cal.4th 153, 282.) The trial court instructed the jury with CALCRIM No. 303 [Limited Purpose Evidence in General] and CALCRIM No. 304 [Multiple Defendants Limited Availability of Evidence]. It also gave limiting instructions regarding specific items of BDSM evidence that could be considered against only one or two of the defendants for a noncharacter purpose. The prosecution made clear during closing arguments that BDSM evidence was introduced not to portray defendants as morally bad people deserving of judgment but instead to help jurors understand defendants' motivations, intent, relationships, collaboration, and sexual interests in non-consensual activity. For example, the prosecution called attention to evidence that Maraglino sent sexually explicit texts on the day of Killgore's murder and told the jury the purpose of this evidence was not "to embarrass her or put her life on display" but instead to prove that BDSM "wasn't a thing of the past" despite her pregnancy.
As a whole, the instructions and closing arguments substantially covered the concepts under CALCRIM No. 375. There is no reasonable probability the jury would have returned a more favorable verdict had the trial court provided CALCRIM No. 375. (Watson, supra, 46 Cal.2d at p. 836.)
B. CALCRIM Nos. 402 and 417 [Natural and Probable Consequences Doctrine]
Maraglino argues the trial court erred by failing to instruct the jury sua sponte that it could not convict her of murder unless it was a natural and probable consequence of her role in the kidnapping or torture. She claims that even if she "conspired with Perez to kidnap and inflict pain during a BDSM session on Killgore, [she] had no reason to believe he would kill her." This theory differs markedly from her theory at trial that she was only "guilty of covering up after the fact for someone she loved." Maraglino argues prejudicial error in not providing CALCRIM Nos. 402 and 417 on the natural and probable consequences doctrine and claims her murder conviction must be reversed. We find no error.
CALCRIM Nos. 402 and 417 instruct jurors on the natural and probable consequences doctrine, which is a theory of aiding and abetting liability derived from common law. (People v. Chiu (2014) 59 Cal.4th 155, 163-164 (Chiu).) "Under that doctrine, 'a person who aids and abets a confederate in the commission of a criminal act is liable not only for that crime (the target crime), but also for any other offense (nontarget crime) committed by the confederate as a "natural and probable consequence" of the crime actually aided and abetted.' " (Valdez, supra, 55 Cal.4th at p. 152.) The doctrine works similarly for conspiracy liability, with an added limitation that conspirators are not liable for an act independent or foreign to the common plan. (People v. Smith (2014) 60 Cal.4th 603, 615-617.)
"In the context of murder, the natural and probable consequences doctrine serves the legitimate public policy concern of deterring aiders and abettors from aiding or encouraging the commission of offenses that would naturally, probably, and foreseeably result in an unlawful killing." (Chiu, supra, 59 Cal.4th at p. 165.) "A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes." (CALCRIM Nos. 402, 417.)
In Chiu, our high court concluded the natural and probable consequences theory of aiding and abetting liability could not support a conviction for first degree premeditated murder; instead, accomplice liability for that crime "must be based on direct aiding and abetting principles." (Chiu, supra, 59 Cal.4th at pp. 158-159.) The court focused on the "additional elements of willfulness, premeditation, and deliberation" in first degree malice aforethought murder and concluded that a defendant who aids and abets a target crime that would naturally, probably, and foreseeably result in a murder is only culpable of second degree malice aforethought murder. (Id. at p. 166.) In reaching this result, the court cautioned that "[a]n aider and abettor's liability for murder under the natural and probable consequences doctrine operates independently of the felony-murder rule." (Ibid., italics added.) Thus, Chiu's holding "does not affect or limit an aider and abettor's liability for first degree felony murder under section 189." (Ibid.)
Maraglino urges us to find that one who aids and abets, or conspires to commit, a target felony (kidnapping) during which a killing occurs escapes liability for that killing if it was not the foreseeable result of the target felony. Such a contention would be correct only if her murder prosecution were based on the aider and abettor or conspiracy theory of second degree malice aforethought murder, "without reference to the felony-murder rule." (People v. Anderson (1991) 233 Cal.App.3d 1646, 1655 (Anderson).) However, Maraglino's murder prosecution rested on the felony-murder rule. During closing arguments, the prosecutor stated, "I'm going to talk to you about the theory of murder, first-degree murder, felony murder" and described that theory as "the most straightforward way to understand . . . this particular murder." The prosecution stated its view that the malice-aforethought theory of murder did not apply, stating, "It's a valid theory of murder, but I suggest to you you shouldn't analyze it. You should just analyze simply the first-degree felony-murder liability."
The trial court instructed the jury with CALCRIM Nos. 540A and 540B, which set forth the elements for first degree felony murder. The jury was instructed to consider kidnapping and torture as the underlying felonies and instructed on the elements of those offenses. The court also instructed the jury on the kidnapping special circumstance allegation. By making a true finding on that allegation as to Maraglino, it is clear the jury was persuaded by the first degree felony murder theory and rejected alternative theories of murder.
In this felony murder case, Maraglino could be liable for any killing perpetrated during a kidnapping she aided and abetted, even if the killing was not a natural and probable consequence. (Anderson, supra, 233 Cal.App.3d at p. 1655.) Maraglino's claim that the killing was not foreseeable in the plan to kidnap or injure Killgore makes little difference, as first degree felony murder encompasses "a variety of unintended homicides" and "condemns alike consequences that are highly probable, conceivably plausible, or wholly unforeseeable." (People v. Dillon (1983) 34 Cal.3d 441, 477, italics added.) "[T]here is no requirement that killings which occur during the perpetration of a felony be a natural and probable consequence of the felony aided and abetted." (People v. Escobar (1996) 48 Cal.App.4th 999, 1020.)
In Anderson, "the trial court correctly instructed the jurors that appellants could be liable as aiders and abettors for the robbery if it was a natural, reasonable, or probable consequence of appellants' acts; and that, if appellants were liable for the robbery as aiders and abettors, they were also liable for killings perpetrated during the robbery under the felony-murder rule." (Anderson, supra, 233 Cal.App.3d at p. 1655.) Here, the prosecution's theory of felony murder rested on aiding and abetting or conspiring to commit kidnapping or torture. Unlike in Anderson, the prosecution did not rely on the natural and probable consequences theory of aiding and abetting liability as to the underlying felonies and instead relied on direct aiding and abetting principles. As Anderson holds, the natural and probable consequences theory has no application to defendants' culpability for first degree felony murder. (Ibid.)
In short, here, as in Anderson, instruction on the natural and probable consequences doctrine was not required because the prosecution relied on a felony-murder theory to support the murder charge. (Anderson, supra, 233 Cal.App.3d at pp. 1658-1659; People v. Prettyman (1996) 14 Cal.4th 248, 270 [sua sponte duty to instruct on natural and probable consequences doctrine arises only when prosecution relies on that theory to establish defendant's guilt]; People v. Carter (1957) 48 Cal.2d 737, 758 [no duty to give an instruction lacking foundation in "any theory on which the case was tried"].)
In her reply brief, Maraglino cites language in Cavitt, supra, 33 Cal.4th 187 and People v. Huynh (2012) 212 Cal.App.4th 285 that felony murder culpability for a nonkiller requires some "logical nexus" between the underlying felony and the act resulting in death. (Cavitt, supra, at p. 201; Huynh, supra, at p. 309.) Maraglino confuses two different legal principles. The logical nexus requirement for felony murder indeed serves "to exclude homicidal acts that are completely unrelated to the felony for which the parties have combined" (Cavitt, supra, at p. 201), but this principle is distinct from the natural and probable consequences theory of aiding and abetting liability. (Chiu, supra, 59 Cal.4th at p. 166 [noting the two principles "operate[] independently"].) As Justice Werdegar explained in Cavitt, although the two share similarities, " 'complicity appears broader under the felony-murder rule than under the natural and probable consequences doctrine, which we have described as resting on foreseeability [citation], in that a felon may be held responsible for a killing by his or her cofelon, under the felony-murder rule, even if the killing was not foreseeable to the nonkiller . . . . ' " (Cavitt, supra, at p. 212 & fn. 2 (conc. opn. of Werdegar, J.).) Cavitt and Hunyh do not support Maraglino's argument that the court should have instructed the jury on the natural and probable consequences doctrine for the jury to convict her of first degree felony murder.
Moreover, Cavitt rejected the defense contention that the court had a sua sponte duty to clarify the logical nexus requirement for felony murder. (Cavitt, supra, 33 Cal.4th at pp. 203-204.)
Indeed, the trial court did instruct the jury on the natural and probable consequences doctrine as to the theory of second degree malice aforethought murder. Under CALCRIM Nos. 520 and 521, the jury was instructed that guilt for second degree malice aforethought murder could rest on implied malice—i.e., that the defendant committed an act knowing the "natural and probable consequences of the act were dangerous to human life." (CALCRIM No. 520.) To the extent Maraglino argues additional clarification on the scope of the doctrine was required under CALCRIM Nos. 402 and 417, the trial court had no sua sponte duty to clarify the scope of an element of a crime. (Cavitt, supra, 33 Cal.4th at pp. 203-204.) Moreover, any error in not providing clarification to support the second degree malice murder theory was harmless under any applicable standard, as the jury necessarily convicted Maraglino of first degree felony murder given its kidnapping special circumstance finding.
We find no error in failing to provide CALCRIM Nos. 402 and 417.
C. CALCRIM No. 548 [Murder: Alternative Theories]
The trial court relied on CALCRIM No. 548 to instruct the jury:
"The defendants have been prosecuted for murder under two theories: (1) malice aforethought, and (2) felony murder. Each theory of murder has different requirements, and I will instruct you on both. You may not find a defendant guilty of murder unless all of you agree that the People have proved a defendant committed murder under at least one of these theories. You do not all need to agree on the same theory." (Italics added.)Maraglino contends that as a result of the last sentence in CALCRIM No. 548, the jury was improperly instructed it did not need to agree on whether Maraglino was guilty of first or second degree murder. She cites People v. Sanchez (2013) 221 Cal.App.4th 1012 (Sanchez) and People v. Johnson (2016) 243 Cal.App.4th 1247 (Johnson), both reversing convictions for first degree murder on this basis. We conclude any error was harmless beyond a reasonable doubt in light of the jury's true finding on the kidnapping special circumstance allegation.
The current version of CALCRIM No. 548 adds optional language at the end of the last sentence: "you do not all need to agree on the same theory [, but you must unanimously agree whether the murder is in the first or second degree]."
"Where a defendant is charged with first degree murder, the jurors are not required to agree on 'one or more of several theories proposed by the prosecution; it is sufficient that each juror is convinced beyond a reasonable doubt that the defendant is guilty of first degree murder as that offense is defined by statute.' " (Johnson, supra, 243 Cal.App.4th at p. 1278.) "However, the law is also clear that the jury must unanimously determine whether murder is in the first or second degree." (Ibid.) "Section 1157 states in part that '[w]henever a defendant is convicted of a crime . . . which is distinguished into degrees, the jury, or the court if a jury trial is waived, must find the degree of the crime . . . of which he is guilty.' " (Ibid.)
Jury unanimity is guaranteed as a matter of due process under both state and federal constitutions. (People v. Aravalo-Iraheta (2011) 193 Cal.App.4th 1574, 1588.) "A defendant challenging an instruction as being subject to erroneous interpretation by the jury must demonstrate a reasonable likelihood that the jury understood the instruction in the way asserted by the defendant." (People v. Cross (2008) 45 Cal.4th 58, 67-68.) We apply the Chapman standard to evaluate instructional error on jury unanimity. (Sanchez, supra, 221 Cal.App.4th at pp. 1026-1027.) "If other aspects of the verdict or evidence leave no reasonable doubt that the jury made the [necessary] findings . . . , the erroneous . . . instruction was harmless." (People v. Chun (2009) 45 Cal.4th 1172, 1204-1205.)
In Sanchez, a defendant was instructed on only two theories of murder—first degree felony murder or second degree malice aforethought murder. (Sanchez, supra, 221 Cal.App.4th at p. 1026.) In this context, language in CALCRIM No. 548 that the jury did not all need to agree on the same theory of guilt was erroneous and prejudicial, as it indicated the jury did not need to reach unanimity on the degree of murder. (Id. at pp. 1024-1025.) There, as here, the trial court instructed the jury with CALCRIM No. 640 that: "As with all of the charges in this case, to return a verdict of guilty or not guilty on a count, you must all agree on that decision." (Sanchez, supra, at p. 1022, fn. 9.) However, the court concluded there was no way to determine on the record whether the jury followed CALCRIM No. 640 or the language given under CALCRIM No. 548. (Id. at p. 1025.)
Johnson involved the same two theories of murder, first degree felony murder and second degree malice murder. (Johnson, supra, 243 Cal.App.4th at pp. 1279-1280.) The court followed Sanchez and found prejudicial error because the challenged language in CALCRIM No. 548 "suggested to the jury that it need not agree on the degree of murder." (Id. at p. 1280.) As a remedy, Sanchez and Johnson both reduced the first degree murder conviction to second degree murder because the court could not determine based on other aspects of the verdict or the evidence that the jury unanimously found that the defendant committed first degree felony murder. (Sanchez, supra, 221 Cal.App.4th at p. 1027; Johnson, supra, at p. 1281.)
The kidnapping special circumstance finding puts this case in a different position. Unlike in Sanchez and Johnson, the jury made a true finding on the special circumstance allegation that the murder occurred during the commission of a kidnapping. The jury was instructed to consider the special circumstance only "[i]f you find the defendant guilty of first degree murder," and that "all 12 of you must agree . . . separately for each defendant" to find the special circumstance allegation true. The true finding on Maraglino's kidnapping special circumstance allegation " 'indicates that the jury unanimously found [her] guilty of first degree murder on the valid theory that the killing occurred during the . . . commission of a [kidnapping].' " (People v. Hughes (2002) 27 Cal.4th 287, 368; see People v. Moore (2011) 51 Cal.4th 386, 412 [instructional error as to unanimity on degree of murder held harmless in light of true special circumstance findings; "[t]he lesser offenses of second degree murder and manslaughter were not legally available verdicts if defendant killed [the victim] in the commission of burglary and robbery, as the jury unanimously determined he had"].)
Unlike in Sanchez and Johnson, "other aspects of the verdict or the evidence leave no reasonable doubt that the jury made the [necessary] findings." (People v. Chun, supra, 45 Cal.4th at p. 1205; cf. Sanchez, supra, 221 Cal.App.4th at p. 1027; Johnson, supra, 243 Cal.App.4th at p. 1281.) "Any confusion generated by the challenged instructions, therefore, could not have affected the jury's verdicts" and was harmless beyond a reasonable doubt. (People v. Moore, supra, 51 Cal.4th at p. 412.)
Maraglino attempts to overcome this result by incorporating her earlier argument that the kidnapping special circumstance finding was not supported by substantial evidence. Having already rejected that argument, we need not revisit it here. Any error in the trial court's instruction under CALCRIM No. 548 was harmless.
VI.
CUMULATIVE ERROR (MARAGLINO AND LOPEZ)
Maraglino and Lopez argue the cumulative impact of trial errors rendered their trial fundamentally unfair, necessitating reversal of their respective judgments of conviction. "Under the 'cumulative error' doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial." (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) We reverse the judgment if it is reasonably probable the jury would have reached a result more favorable to the defendant absent a combination of errors. (People v. Williams (2009) 170 Cal.App.4th 587, 646.) "The 'litmus test' for cumulative error 'is whether defendant received due process and a fair trial." (People v. Cuccia (2002) 97 Cal.App.4th 785, 795.)
We have either rejected Lopez's claims of error on the merits or found, as to Dr. Abrams's testimony, any error nonprejudicial. We reach the same conclusion with respect to the cumulative effect of any assumed errors. (See People v. Sapp (2003) 31 Cal.4th 240, 316.) Although insufficient evidence supported Maraglino's convictions for torture and attempted sexual battery by restraint, we have cured that error by reversing those convictions on appeal. We rejected Maraglino's other claims of error on the merits or found any assumed errors, such as the instruction under CALCRIM No. 548, nonprejudicial. The cumulative effect of any errors did not infringe on any of her state or federal constitutional, statutory, or other legal rights. (See People v. Wrest (1992) 3 Cal.4th 1088, 1111; People v. Williams (2017) 7 Cal.App.5th 644, 694.) Both Lopez and Maraglino received the fundamentally fair trial to which they were entitled.
DISPOSITION
The judgment entered against Dorothy Maraglino is modified to reverse the conviction of torture in count 4 and to reverse the conviction of attempted sexual battery by restraint in count 5. The court is ordered to amend the abstract of judgment in a manner consistent with this disposition, and forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgments are affirmed.
HUFFMAN, J. WE CONCUR: BENKE, Acting P. J. IRION, J.