Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Del Norte County Super. Ct. No. CFR-02-9762
Kline, P.J.
Robert Allen Wigley, Jr. (appellant) was convicted, following a jury trial, of one count of first degree murder with the special circumstances that the crime was committed while he was engaged in rape, oral copulation, and torture, and one count of soliciting another to commit murder. On appeal, he contends: (1) the trial court erred in refusing his midtrial request for counsel without a full inquiry; (2) the trial court erred in admitting evidence of his prior sexual conduct under Evidence Code section 1108, because that statute was inapplicable to the offenses with which appellant was charged; (3) application of section 1108, which was enacted after he committed his offenses, violates the prohibition against ex post facto laws; (4) his murder conviction must be reversed because one of the three alternate theories on which the jury was instructed was legally erroneous, and it cannot be determined on which theory the jury relied; (5) the cumulative effect of the errors requires reversal; and (6) the trial court’s imposition of an upper-term sentence was unconstitutional because the court relied on factors not found by a jury beyond a reasonable doubt. We shall affirm the judgment.
All further statutory references are to the Evidence Code unless otherwise indicated.
PROCEDURAL BACKGROUND
Appellant was charged by information with first degree murder, with the special circumstances that the crime was committed while he was engaged in rape, oral copulation, and torture (Pen. Code, §§ 187, subd. (a), 190.2, subds. (a)(17)(iii), (a)(17)(vi), and (a)(18)); and with solicitation of another to commit murder (Pen. Code, § 653f, subd. (b)). The information further alleged, pursuant to Penal Code section 667.5, subdivision (b), that appellant had served a prior prison term.
On October 29, 2003, a jury found appellant guilty as charged, and found true the special circumstance allegations. On that same date, appellant pleaded no contest to the prior prison term allegation.
On November 20, 2003, the trial court sentenced appellant to life in prison without possibility of parole on the murder count, to a consecutive aggravated nine-year term on the solicitation of murder count, and to a consecutive one-year enhancement for the prior prison term.
On January 22, 2004, appellant filed a notice of appeal.
Although raised by neither party, we observe that appellant’s notice of appeal was filed on January 22, 2004, two days after the statutory period for filing an appeal expired. (See Cal. Rules of Court, rule 8.308.) (All further rule references are to the California Rules of Court.) However, the record reflects that appellant, who was incarcerated and acting in pro per, signed his notice of appeal on January 16, 2004, well within the 60-day period for filing an appeal. (See In re Benoit (1973) 10 Cal.3d 72, 84-89; In re Jordan (1992) 4 Cal.4th 116, 130.) In In re Jordan, our Supreme Court held that “a prisoner’s notice of appeal is deemed to have been filed in the office of the appropriate county clerk on the date, within the filing period prescribed by rule 31(a) [now rule 8.308], on which it was delivered to the prison authorities.” (In re Jordan, at p. 130.) The court also cited a case in which the appellate court “held that a prisoner’s notice of appeal ‘signed’ (and presumably delivered to prison authorities) eight days prior to expiration of the filing period and received two days after the expiration date was ‘timely filed under the constructive filing exception to the 60-day limit.’ [Citation.]” (In re Jordan, at p. 127, fn. 6, citing People v. Lepe (1987) 195 Cal.App.3d 1347, 1349, fn. 2.) In the similar circumstances of the present case, we deem appellant’s appeal timely filed under the constructive filing exception to the 60-day limit.
FACTUAL BACKGROUND
On October 30, 1994, the body of 18-year-old Camillia Randall was found in a redwood forest near Crescent City. She had been sexually assaulted, beaten, stabbed multiple times, and strangled; her heart and one lung had been removed from her body. In 2001, a “cold hit” by the California Department of Justice’s DNA Laboratory identified appellant as a suspect in the case. Appellant, who had been a manager at the Super 8 Motel in Crescent City at the time of Randall’s death, claimed that his ex-wife had killed Randall during a sexual encounter at the motel. Following an eight-week trial, in which appellant represented himself, a jury convicted him of first degree murder during the commission of rape, oral copulation, and torture, and also convicted him of solicitation to commit murder, based on evidence that he had requested help to escape from jail, which would have included the murder of a guard.
Prosecution Case—Count One
Early on the afternoon of October 26, 1994, Wendy Whiteman’s niece, Camillia Randall, who was like Whiteman’s daughter, left Whiteman’s flower shop in Ashland, Oregon with plans to hitchhike alone to Guerneville, California. Randall, who was “a gentle soul,” naïve and very trusting, usually traveled with other people. Whiteman was unhappy about her traveling alone, but gave her some money so she could get something to eat. Randall dressed in a unique hippie or grunge style and was very natural. She had a backpack with her, which contained a sleeping bag, clothes, and a journal in which she recorded events and also wrote poetry. Randall was very petite; she was barely five feet tall and weighed about 125 pounds.
An entry later found in Randall’s journal described her arrival in Crescent City: “It’s 8:00 now. The third car that picked me up was two old men. Chris Collins and Ernie. They took me to Brookings to Chris’s house. He wanted me to see it so badly. They are good men. . . . I got a shower and then a ride to Crescent City. Now I’m here, what now? [¶] . . . I’ll sleep on the ocean tonight. [¶] I tried calling Aunt. No one’s home. I hope all is well. Tomorrow is Mom’s birthday. Happy birthday, Mom. Best wishes. Feel sort of sad.” Later that night, at 9:05 p.m., Randall reached Whiteman, her aunt, and let her know that she had made it to Crescent City. She was calling from a Denny’s Restaurant and said she was going to sleep on the beach that night and might not call again for a couple of days.
The next day, October 27, 1994, at about 2:30 p.m., Steve Gresham and Harold Wren were walking along Howland Hill Road near Stout Grove—a remote forested area outside of Crescent City—taking photographs, when they saw, about 20 to 30 feet below the side of the road, a yellow sneaker, a blue scarf, and a bundled up green sleeping bag. Wren picked up a small rock and threw it at the sleeping bag to see what the sound was; by the thud they heard, they could tell there was something inside the bag. Gresham called the sheriff’s department about a week later, after he heard that a body had been found at that location by a hiker.
Randall’s body was found lying in a fetal position inside a green sleeping bag on October 30, 1994. A backpack and clothing were found nearby. A rope that was tied around her neck and knees was likely used to carry her to the scene. Randall’s face, back, and arms were covered with multiple scratches, bruises, and cuts. Flesh was missing from her left hand and arm, her left nipple was cut and there was a deep wound in her left armpit. There was an indentation on her forehead and a pattern of bruises consistent with a ligature around her neck. The wounds to Randall’s body were consistent with a double-edged knife and matched holes in the shirt she had worn. The bottoms of her feet were covered with a considerable amount of dirt, which indicated she had recently been walking on the ground barefoot and had not showered thereafter.
Dr. Kenley Falconer, a forensic pathologist, performed an autopsy on Randall on October 31, 1994, the day after her body was found. She had not been dead for many days. The cause of death was strangulation. There was a ligature mark that went almost completely around her neck that was consistent with use of a belt. The rope found around her neck had not caused the ligature marks.
There were both blunt force and sharp force injuries to Randall’s face and head, which had occurred while she was still alive. These included bruises and swelling on her head, forehead, eyes, nose, and mouth, showing she had been “pummeled quite a bit.” There were also several superficial stab wounds on her cheek and around her eyes and a deeper stab wound in her neck. There was a group of stab wounds on the right side of Randall’s torso, which may have occurred before or after death. None of the superficial stab wounds were done with the intent of causing a fatal injury but, instead, appeared “to be done for the purpose of tormenting or causing pain or showing control or just—sadistic reasons,” or to test if the victim was still alive.
There was also an encircling incision around Randall’s left wrist that was produced by a somewhat sharp-edged instrument, such as a dull pocket knife. It was a deep injury that extended through the soft tissue and muscles of her forearm up to the shoulder. Her elbow and shoulder were disjointed and her ulna bone was fractured. There were also apparent defense stab wounds on her arms. Dr. Falconer could not conceive of the injuries to her arms being caused by anything other than a knife, and they were definitely inflicted while Randall was still alive.
Randall’s left breast was mostly removed and the nipple had been cut or torn. There was a gaping wound in her left chest and an injury to her ribcage, caused by a heavy instrument, such as a pipe, hatchet, or hammer. Her heart and left lung were missing and had been cut out with a knife such as a pocket knife. Although Dr. Falconer carefully looked for signs of animal activity on the body, he found no evidence that any animal activity had occurred; none of the injuries were consistent with animal activity.
A rape kit was performed on Randall’s body, which included oral, vaginal, and anal swabs.
Dr. Boyd Stephens, chief medical examiner for the City and County of San Francisco, was consulted about Randall’s death. He conferred with Dr. Falconer several times, reviewed evidence, and prepared a report. He agreed that the cause of death was ligature strangulation, perhaps with a belt. He also agreed that the many injuries to Randall’s head and face occurred while she was alive. Dr. Stephens also noted a complex of sharp-force injuries that went from Randall’s lower left abdomen around toward the small of her back. She also had additional sharp-force injuries on her right arm.
Dr. Stephens opined that the nature of the various sharp-force injuries, including the smooth, sharp edges of the wounds and the selective removal of the heart and lung, were all inconsistent with animal activity. That Randall was wearing a shirt showing no tearing from animal activity also pointed to no animal involvement in her injuries.
Gene McManus, a sergeant with the Del Norte County Sheriff’s Department, was one of the first people to arrive at the crime scene on October 30, 1994. McManus, who had specialized training in sexual assault investigation and sexually-oriented homicides, opined that the blunt-force trauma to the left side of Randall’s face was due to multiple punches by a right-handed person. Appellant is right-handed.
McManus believed that the sharp-edged wounds on Randall’s left hip area and abdomen, as well as similar wounds at the base of her neck and on her right shoulder, were controlled pokes with a knife, the purpose being strictly to inflict pain and terror on the victim. Similar wounds to her face, especially those around the eye, were likely done to inflict terror on the victim.
Dirt found under Randall’s fingernails and on her knuckles, as well as an injury to a knuckle, were something McManus would expect to see from someone fighting very hard for her life. Her feet were also quite dirty. He would not expect to find so much dirt on the victim’s body if she had recently taken a shower or had been standing on carpet or in a shower during the fight. McManus believed that Randall was brutally attacked, raped and tortured, then strangled to death, and then mutilated.
As to the question of animal activity, upon seeing Randall’s body, McManus initially assumed there had been some animal activity due to the missing flesh from her left arm; he had never seen anything like that before. However, in his experience of looking at the remains of people who have died and then been fed on by a bear, bears are relentless in their feeding, devouring the flesh and disarticulating limbs, which they drag away from the body. With a bear, he would have expected to see attempts at feeding on the soft tissue areas of Randall’s face, scalp, neck, and throat. He did not believe the sharp-force wounds to her body could be from a bear’s claw because there was no patterning of three or four wounds in a row, as would be the case with a claw. The wounds to the left arm, left chest, and left shoulder all appeared to be cuts, not bitten, clawed or torn, as would occur with an animal.
In 1994, Kay Belschner, a criminalist with the California Department of Justice, analyzed the physical evidence collected. She found seminal fluid in the oral and vaginal swabs taken from Randall’s body. That there was almost no sperm found in the crotch of her pants indicated that she was never upright again after the semen was deposited in her vaginal vault. There were fewer sperm in the sample from Randall’s mouth than in the sample from her vaginal vault, which might indicate that the mouth sample was deposited after the vaginal sample. Belschner estimated that the sperm had been deposited within 12 hours before the victim’s death. She believed the oral sex occurred just before Randall died or while she was dying. She did not believe it was possible to manipulate a dead person’s body into performing oral sex, particularly because, after death, a person’s jaw goes slack. The physical evidence was not consistent with consensual sex, but instead was consistent with the victim being raped vaginally, raped orally, tortured, killed and her body being dumped.
No fibers found on the victim or at the crime scene matched any fibers from the Super 8 Motel, where appellant had lived and worked in October 1994. Red fibers found under Randall’s fingernails were cotton. No blood from Randall was detected in the manager’s bathroom or bedroom at the motel. Several animal hairs were found on Randall’s clothing, chin, and abdomen.
Jeannette Wallin, also a criminalist with the California Department of Justice, testified that DNA from appellant’s blood sample, received in 1996, was put in the Department’s offender database. In 2001, a “cold hit” from the DNA data bank matched appellant as the donor of the seminal fluid deposits from Randall’s body. In light of DNA’s unique genetic code, the chances were one in 69 billion that the fluids could have come from someone other than appellant.
Sergeant Sean Brannon, a peace officer stationed at the Del Norte County jail, developed a rapport with appellant during appellant’s incarceration. Appellant would ask for Brannon whenever he needed something or needed someone to talk to. In December 2001, appellant apparently tried to commit suicide by tying a torn piece of a bed sheet around his throat and his bed and choking himself.
Once Brannon cut the bed sheet away from his throat, appellant started talking to Brannon about the present matter. Appellant was crying and said he could not live with Randall’s death anymore. Appellant said that Randall had come to the Super 8 Motel to use the restroom and appellant’s then-wife, Marie, had talked to her. Randall said she was going to sleep in the brush behind the Safeway and, after she left, Marie told appellant to go get her and let her stay at the motel. He found her sitting on a blue wall and brought her back to the motel. Marie then told Randall she could use the shower. While Randall was in the shower, Marie got a flashlight, which was one of her “sex toys,” took off her clothes, and got into the shower with Randall. Randall told Marie “she doesn’t do that,” and Marie got mad and started hitting her with the flashlight, and Randall fell down.
According to appellant, he moved Randall from the bathroom into the bedroom and removed his clothes. He then had sexual intercourse with her. She was alive at that time. As he lay on his back, Marie then held Randall’s mouth over his penis and moved her head up and down until he ejaculated. Marie told him to do it again as she continued moving Randall’s head up and down with her mouth on his penis. After he ejaculated again, he told Marie that the girl had “cum” in her mouth. Marie said to keep the girl quiet while she got a rag because she had “shit on herself.” Randall had been making noises, but stopped at that point. Appellant then set Randall down against the wall and Marie cleaned up the feces with a rag. Marie also had a robe belt around Randall’s neck.
Appellant said Marie then told him that “we need to get rid of her. To go dump her in the river.” Marie told appellant to get some plastic bags and wrap her up in them; Marie then tied her up in the bags with a rope. Appellant then carried Randall out to the back of his Bronco vehicle. He drove while Marie stayed in the back of the vehicle; he heard Marie tell Randall that they were going to help her. He stopped on Howland Hill Road, removed Randall’s body from the truck, and laid her on the side of the road. A few days later, Marie told him the girl’s body had been found.
Another deputy sheriff, Trevor Dunn, was present for part of the conversation between appellant and Brannon. Appellant was crying, and Dunn heard him say, “ ‘I didn’t mean to hurt her. How can I live with this?’ ”
In another conversation at the jail on December 4, 2001, appellant asked Deputy Sheriff Bill Steven whether police had found “the bag” or “the backpack.” Four days later, appellant blurted out to Steven, “ ‘I’m a stupid bastard for dumping the body where it could be found. I should have hidden it better.’ ” He also said something like, “ ‘You don’t know what it’s like to see two naked women fighting, one bigger than the other strangling the other with a rope.’ ” Steven, who had seen Randall’s body at the crime scene, initially believed that some of the trauma to her body was likely associated with animal activity. However, he later ruled out animal activity based on the opinions of other people more knowledgeable on the subject.
Former Del Norte County District Attorney Drossel and his investigator, A.C. Field, interviewed appellant while he was in custody on October 31, 2002. Appellant, who was then representing himself, expressed a desire to speak to them concerning the case. The interview was tape-recorded and the tape was played for the jury.
During the interview, appellant said that Randall had come to the motel at around 9:15 p.m. to use the restroom. She then left and he met her behind the motel and asked her if she would like to come back in. Once inside, Randall spoke to Marie for about an hour. At 11:00 p.m., Randall took a shower and then there was a sexual encounter in the bedroom, which included oral copulation and sexual intercourse, with Marie watching. At about midnight, appellant went to the kitchen to get some food. Marie came out and asked him to continue the sexual encounter with Randall, but he said he was satisfied.
Marie returned to the bedroom upset at Randall and appellant for not wanting to continue with the sex. A fight then took place between Marie and Randall at about 12:30 a.m., during which Marie strangled Randall. Appellant came in and propped Randall against the wall in a sitting position; she was already dead at that point. He then moved Randall and pushed her face-down on the bed. Marie started rubbing appellant’s crotch area and then manipulated Randall’s head to orally copulate appellant.
Appellant said he disposed of Randall’s body at around 3:00 a.m. He did not remember whether he left her body by the roadside or if he pushed her off. Appellant claimed that no knives were involved and he never saw any stab wounds; he suggested someone else must have gone down to where her body was found and stabbed her after she had died.
After interviewing appellant, investigator Fields spoke with appellant’s ex-wife, Marie B. Marie B. denied involvement in the homicide. She also recalled being ill in late November 1994 with a stomach problem. Fields asked her to go check her hospital records to find out exactly when she was ill. A week later she brought him hospital records showing she was actually ill in late October and had gone to the hospital on the night of October 25, 1994 and again on October 28, 1994. She had spent the nights of October 26 (the night of the killing) and October 27, 1994 at her parents’ house.
David Bowdish, Jr. was incarcerated in the county jail with appellant in 2002. Appellant talked to Bowdish through the cell doors or venting system on a daily basis. Once, appellant said that he met Randall when she was walking by the Super 8 Motel. When they got inside, there was an argument and appellant and another man beat Randall. Then, appellant, his ex-wife, and the other man had sex with Randall; appellant and the other man then beat and tortured her; then they had some more sex; and then appellant and the other man took the body up to the redwood grove and dropped it off.
Shortly after telling Bowdish this story, appellant told him a different version, in which Randall was walking by the motel and appellant asked his wife to go out and get her. They then took her into the motel room, where they had sex and then beat her before taking her body to the redwood grove to drop it off. In yet another version, appellant claimed that the sexual activity occurred after the beatings. In some versions, there was no other man involved in the encounters. In one version, appellant said Randall died when she was beaten with a pipe. Appellant said he wanted Randall’s body to be found, and said that no one would care about her death because “she was a worthless piece of trash and that nobody would miss her.” He said “the whole thing was fun, the torture.” Appellant also acknowledged to Bowdish that he had removed the heart from Randall’s body.
Appellant also told another county jail inmate, David Anderson, Jr., that he and his wife had killed Randall inside their motel room and that he had then dragged her behind a car or truck and dropped her off alongside the road. Appellant talked about this with Anderson three or four times.
Marie B. was married to appellant from 1992 to 1995. They were managers at the Super 8 Motel from April 1994 to March 1995. On October 25, 1994, Marie B. began having severe abdominal pains, which made her unable to stand up or walk. It started in the morning and, by evening, was unbearable. Her father took her to the hospital that night; she was examined and given medication, then was released that same night at about 10:30 p.m. She went back to the motel until the next morning, October 26, when her father came and picked her up and took her to her parents’ house. Marie B. was on heavy medication and slept on her parents’ couch for two nights, from October 26 (the night of the killing) to October 28. On October 28, she returned to the hospital for a sonogram.
Marie B.’s father, Don B., and sister, Ellen W., both confirmed that Don B. had picked Marie B. up at the motel on the morning of October 26, 1994, and that she stayed at her parents’ house for two nights, starting on October 26.
Early on the morning of October 27, 1994, appellant called Marie B. at her parents’ house. He had messed up the motel “books” and was panicked about getting them straightened out before the boss came and picked them up for the day. He wanted Marie B. to come and take care of it. When she arrived at the motel, she noticed that the managers’ apartment was spotlessly clean: vacuumed, dusted, and mopped. It was surprising because she was the one who normally did the housework; appellant said he had cleaned the house and seemed proud of himself. She stayed at the motel a short time, then returned to her parents’ home until after her sonogram the next day, after which she returned to the motel.
Copies of hospital records for Marie B. were admitted into evidence. The records showed that she was at Sutter Coast Hospital on October 25 and October 28, 1994.
When Marie B. returned from the hospital on October 28, 1994, appellant was burning clothes behind the motel, including a pair of jeans and a pair of tennis shoes. It stuck in her mind because the tennis shoes were brand new and appellant had spent a lot of money on them. Marie B.’s sister, Ellen W., was with her at the time and also saw appellant burning his clothes.
Toward the end of October or beginning of November of 1994, appellant was unusually nice to Marie B. for a period of time. She attributed this to the fact that their anniversary was coming up. She was otherwise very abused in their marriage and, after this brief pause, the abuse continued until Marie B. left appellant. Appellant hit her, strangled her, raped her, and sodomized her quite often. She went to the hospital one time after he punched her hard in the face twice. Her whole face swelled up and she had blood in her left eye. On that occasion, he had first punched her after forcing her to perform oral sex on him in the motel office; he said she was not doing it right. He then forced her to continue orally copulating him, and then punched her again in the face. She told the doctor it was an accident because she was afraid appellant would hurt her worse or kill her if she told what had happened.
Most of the time, appellant hit Marie B. in areas that were not visible. Once, he grabbed her left breast and would not let go, digging his fingers into it, and leaving a bruise down her side. He often punched her in the ribs, which were bruised the majority of the time she was married to him. He also continually told her she was fat, ugly, and worthless. Appellant had a pattern of being brutal and beating her and then apologizing and saying he might as well die. He would usually get his gun and put it to his head or say he was going to run himself off a cliff.
Appellant liked to read True Murder magazines and pocket books during their marriage. He talked about the stories in them quite often and once said, “ ‘those stories are lame’. . . . ‘I could make up one much better than that’. . . . ‘I can do better than they do.’ ” Once, after they no longer lived at the motel, they were in the redwoods at Stout Grove Park when appellant pointed to a hole under a stump and said, “Oh, that would be a perfect place to hide a body.” He also mentioned that there were bears in that area. Another time, when he was reading a book, he said, “ ‘Did you know that if you eat a person’s heart that you gain their power?’ ”
Violence was always part of appellant’s sexual fantasies. He usually held her down in some way during sex and often choked her almost to the point of her passing out. He also fantasized about sexual threesomes with Marie B. and other women. In September 1994, he badgered her for weeks, including beating her and strangling her, to get her to agree to a threesome with her niece, Sheila, who was about 17 years old at the time, and with whom appellant had been having an affair.
Another time, appellant and his cousin, Bennie Wigley, brought a drunken woman home from a bar. When she refused to have sex with the woman, appellant took Marie B. into the closet and choked her while sodomizing her brutally. He then told her to get cleaned up and get into bed. Appellant then brought the woman, who was extremely drunk, into the bedroom, and the woman performed oral sex on Marie B. while Marie B. cried. Appellant then had sex with the woman. The encounter went on for three or four hours.
Finally, Marie B. was involved in a threesome with appellant and her cousin Karen M., who was also appellant’s cousin. Karen M. came over and they played a drinking game. Marie B. got pretty drunk and Karen M. got “very, very drunk.” Marie B. realized that appellant planned to persuade Karen M. to participate in a threesome; Karen M. seemed to have no idea what he had in mind. Marie B. left the room and went to bed to try to avoid the situation, but appellant came in and woke her up, saying Karen M. wanted to have a threesome. He brought Karen M. into the bedroom. She was really drunk and did not seem to be able to walk on her own; she fell onto the bed.
Marie B. did not remember any of the sexual encounters from that night until the very end, when she came out of the bathroom and saw that appellant was sodomizing Karen M., who was saying over and over again, “It hurts, it hurts. Stop, it hurts. I’ve never done this before.” Appellant just kept going, telling her to relax. Marie B. later followed Karen M. into the bathroom. Karen M. was crying and said she was not okay; she was bleeding badly from her anus.
Karen M., who was 22 years old in October 1994, came to the Super 8 Motel on the evening of October 4, 1994, where she drank with appellant and Marie B.. Marie went to bed and she and appellant continued drinking. She became intoxicated fairly quickly. At some point, appellant helped her off the floor and took her into the bedroom. Appellant kneeled over Marie B. and Karen M. while they performed oral sex on each other. Appellant then had vaginal intercourse with Karen M. while Marie B. touched her. Appellant said he wanted to have anal intercourse and, although Karen M. said no, appellant rolled her over, lay on top of her back and penetrated her. It was very painful and she kept crying and yelling at him to stop, but he would not stop. After appellant had ejaculated he stopped, and she went into the bathroom. She was shaking and crying and there was a lot of blood in the toilet. Marie B. came in and asked if she was okay; Karen M. said she was not okay. After about 10 minutes, Karen M. returned to the bedroom and lay down on the bed. Appellant then had “missionary sex” with her, which went on for a long time, maybe two hours. The entire encounter lasted about seven hours. None of it was consensual, given her level of intoxication and her feeling that she could not do anything to stop it.
Prosecution Case — Count Two
Inmate David Anderson, Jr. was in Del Norte County jail with appellant in 2001 to 2002. Appellant wanted Anderson to help him escape. Appellant’s plan was that, on June 10, 2002, when Anderson would be out of jail and when a single deputy would transport appellant to court on a motion to “fire his lawyers,” Anderson would be waiting near the entrance to the courthouse. When the deputy got appellant out of the van, Anderson would shoot the deputy. Anderson would receive money either from appellant or from a man named Cecil Wade who would get the firearms. Appellant said Anderson should get everything set up through Wade, and he gave Anderson Wade’s phone number. There was supposed to be another car waiting so they could drive to the other car, switch cars, and drive to a church to unbury some money that appellant had there. Anderson told law enforcement about the plot within a day or two because he did not want any involvement in it.
Fellow jail inmate David Bowdish, Jr. said that Anderson had told him about appellant’s escape plan and that appellant also told Bowdish about two other possible escape plans. Anderson said that the plan was for Bowdish to shoot a deputy when the deputy took appellant across the street to the courthouse. In another version of the escape plan, appellant told Bowdish that he (appellant) would get into the clothing exchange room of the jail, “take out a guard,” and put on the guard’s clothes. Anderson said he agreed to help appellant with his escape plan because he was scared of appellant.
Tony Luis, commander of the Del Norte Sheriff’s Office, Corrections Division, learned of appellant’s escape plans and told appellant he knew that appellant’s plan was to kill a bailiff on the way to or from court, and that precautions would be taken to protect the jail staff. Appellant said he would never shoot a deputy. Luis had not mentioned anything about shooting or firearms being involved.
Defense Case
Cecil Wade, who had some business dealings with appellant in Oregon, never had any discussions with appellant about breaking him out of jail. Wade did not own any firearms.
John Snawder testified that appellant had worked for him in his body shop in Dillard, Oregon for about four months. In 2002, he received a call from the FBI, asking if he knew something about guns. He had no idea what they were talking about.
Janet Doyle was a friend of appellant’s who also knew Marie B. She did not know appellant to be violent when he was sober.
Dr. Michael Propst, a consultant in forensic pathology, was the chief medical examiner in Alaska for over 30 years. He examined reports and photographs regarding this matter and found multiple sharp-force injuries made by a knife on Randall’s face, arms, thorax, abdomen and back. The cause of death appeared to be ligature strangulation. He saw some evidence of postmortem animal activity in that there were at least a couple of marks that looked like the canine teeth of a predator animal, such as a bear or coyote. Those marks also could have been caused by scratches from brush as Randall rolled down the hill or from a person trying to mimic claw marks. There were also marks consistent with chewing or gnawing on the left arm which was denuded of flesh down to the bone. However, the fact that all ligaments had been removed from the arm suggested human, rather than animal, activity. Also, no carnivore would have caused the wound around the left wrist or the wound in the shoulder area. The nipple removal was an indicator of human sexual connotation.
The series of small puncture wounds on Randall’s face and body were consistent with torture. Only a human could have opened the ribcage and removed just the heart and a lung, given that Randall was found with her shirt covering the area of the opening. Dr. Propst concluded: “This seems to be a rape homicide with elements of torture in it.”
DISCUSSION
I. Appellant’s Midtrial Request for Appointment of Counsel
A. Trial Court Background
At appellant’s arraignment on charges of capital murder on December 4, 2001, the trial court, with appellant’s approval, appointed deputy public defender Rick McClendon to represent him. A week later, on December 11, 2001, the trial court granted appellant’s Marsden motion to relieve McClendon as counsel, finding that there had been “a breakdown in the relationship between Mr. McClendon and Mr. Wigley of such a kind as to make it impossible for the attorney to properly represent the defendant.”
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
On December 14, 2001, the court appointed Patrick Foley to represent appellant. On January 4, 2002, the court granted Foley’s request to appoint Mario de Solenni as cocounsel.
On May 8, 2002, the court received a letter from appellant requesting that a Marsden hearing be placed on calendar so that he could request that de Solenni and Foley be replaced with particular counsel from Humboldt County. Foley and de Solenni filed separate responses, in which each declared that appellant had failed to cooperate with his attorneys; they also raised questions about appellant’s mental competence. On May 17, 2002, the court set a June 10 hearing date and denied appellant’s request to appoint a specific attorney to represent him.
On June 10, 2002, appellant withdrew his Marsden motion. On June 18, 2002, the trial court received a long letter from appellant, in which he complained about his attorneys’ incompetence and asked to renew his Marsden motion. On July 5, 2002, the court continued the hearing on appellant’s Marsden motion in light of de Solenni’s representation that he intended to file a Penal Code section 1368 motion regarding appellant’s competence.
On July 8, 2002, de Solenni filed a Penal Code section 1368 motion requesting suspension of proceedings on the ground that he believed appellant might be mentally incompetent to assist counsel. Criminal proceedings were suspended on July 16, 2002, and two doctors were appointed on July 19 to examine appellant. At the July 19 hearing, appellant stated, “I would like a Faretta motion. Faretta immediately.”
Faretta v. California (1975) 422 U.S. 806 (Faretta).
On August 29, 2002, appellant filed a Faretta motion, requesting dismissal of Foley and de Solenni and waiving his right to counsel.
On September 20, 2002, after both doctors found appellant competent, the trial court declared appellant competent to stand trial and reinstated the proceedings.
On October 2, 2002, appellant moved to disqualify the trial court (Judge Follet) for cause, pursuant to Code of Civil Procedure section 170.1. On October 16, 2002, the judge assigned to hear the motion to disqualify denied it.
On October 17, 2002, the trial court granted appellant’s Faretta motion, relieved Foley and de Solenni as counsel, but appointed Foley as standby counsel. Although not reflected in the October 17, 2002 order, apparently, de Solenni also was appointed as standby counsel.
On December 3, 2002, the trial court granted appellant’s request to continue the jury trial, scheduled to begin on December 9, 2002, and set a trial date of June 2, 2003.
On March 4, 2003, the court granted de Solenni’s motion to be relieved as standby counsel. On March 27, 2003, the prosecution notified the court that it was no longer seeking the death penalty in appellant’s case. On that same date, the court relieved Foley as standby counsel over appellant’s objection on the ground that Foley was not present at the hearing. Appellant had sought removal of both Foley and de Solenni as standby counsel since January 2003.
On April 4, 2003, appellant moved to disqualify the trial court (Judge Weir) under Code of Civil Procedure section 170.1. On April 17, 2003, the judge assigned to hear the motion to disqualify denied it.
On April 29, 2003, the court granted appellant’s motion for another postponement of the trial, which was set to begin on June 2, 2003. The court set a trial date of September 8, 2003.
On August 8, 2003, appellant again moved for a continuance of trial. Appellant withdrew the motion on August 27, 2003. Then, on September 2, 2003, appellant moved the court to postpone the trial for three more months. On September 3, 2003, the trial court denied the continuance motion.
Trial began on September 8, 2003, with juror voir dire. At the start of the third day of trial, outside of the jury’s presence, appellant objected that the prosecution had not disclosed fiber evidence showing that Randall’s body was at the Super 8 Motel. Appellant stated that, unless he was able to prove his case by having all of the evidence provided to him, “I’m going to do, as convicts call it, lawyer up and I’ll walk out.” When the court asked appellant what he wanted the court to do, appellant responded that, if the prosecution did not provide him with the evidence he wanted, “then I’m going to ask the Court for a lawyer, file a motion to dismiss and let the lawyer address the motion to dismiss, but until that time I don’t see how the trial can continue until that issue’s resolved.”
Later that day, during cross-examination of prosecution expert Dr. Boyd Stephens, appellant offered a “Quantico report” into evidence and the court sustained the prosecutor’s hearsay objection. When appellant said, in the jury’s presence, that the report had been submitted to the defense by the prosecution, the court excused the jury for a recess. Following a discussion of the requirements of the Evidence Code and what the report would show, the following colloquy took place:
“DEFENDANT WIGLEY: But the point is, your Honor, that my evidence is a hell of a lot more relevant and consistent with what I’m saying than theirs is. Their case is full of presumptions, innuendoes and bullshit and if you’re going to continue to beat me up I want a lawyer. I’m invoking my right to counsel. We can let them deal with that shit.
“THE COURT: Well, we’ve got a little problem here. [¶] . . . [¶] Because we’re halfway through the trial and if we stop now and appointed you a lawyer, no competent attorney could be up to speed and ready to represent you in this thing without a great deal of work. So that would leave us with a choice of you going to trial with a lawyer who was unprepared and unready, or what?
“DEFENDANT WIGLEY: Well—what? You’re the judge. You tell me “or what. [¶] . . . [¶]
“THE COURT: You can go to trial with a lawyer who is unprepared or else I suppose what you’re looking for is the continuance motion to be granted that was denied you last week. And so—by some—by a back-door process, having—having been—you were granted continuances earlier in this trial, finally after—after you were given a continuance of several months and you then asked for another one. I said, ‘No, now you got to be ready to go to trial. Your motion for continuance is denied.’ So if what this is is a back-door attempt to overrule the court’s ruling and get you a continuance anyway so that a lawyer can take several months to prepare this case, I don’t think I’m going to go along with that.
“I warned you when you—when you—insisted against my advice that you wanted to represent yourself in this case, I warned you of the dangers, the pitfalls, the problems, the difficulties that you would—that you would face. You were made fully aware of all of that stuff. I advised you against it. I told you I thought it was a very bad idea and that it would probably lead to trouble and disaster for you and it would probably sharply increase the odds that you would get convicted of this—of these charges. But you nevertheless decided that you wanted to over—to overlook those problems and represent yourself.
“You’re a grown man. You made your choice and so here you are. Now you’re in a predicament, and I’m sorry about that but I don’t think I’m going to—I’m going to grant your request, give you an attorney and then either declare a mistrial or—or—or a several-months recess of this trial, try to hold this jury together for several weeks or months while somebody out of the blue tries to dredge through fifteen boxes of stuff and get up to speed on this case. I’m not going to do that.
“DEFENDANT WIGLEY: I think Patrick Foley’s already up to speed on this case.
“THE COURT: Well, you can discuss matters with Mr. Foley if you like. But at this point, this trial is underway and you’re going to have to live with your mistakes, I’m afraid.”
A short time later, the court reiterated, “if what you’re asking for is—now is appointment of a lawyer to represent you, because of the fact that that would entail stopping the trial, probably declaring a mistrial, because of the fact that jeopardy has attached in the constitutional sense in this case, I’m—I’m going to decline to do that. I’m not going to—I’m not going to give you the continuance that would be necessary to bring this thing up to—up to speed which would—I would estimate would be probably several months of work by a competent attorney. And so—that’s my ruling on that issue.”
At the end of the day’s proceedings, the court supplemented its ruling by telling appellant that if “Mr. Foley was ready to undertake the case and so—I’m going to supplement what I said earlier this afternoon and that is that if Mr. Foley will present himself before the Court, represent that he is ready and willing to undertake representation of you and that it will not result in any delay of the trial that is now under way, in other words, if he were here tomorrow morning at 9:00 o’clock sharp ready to go, I—I would consider appointing him to represent you. But if he’s going to require, as I would expect, a lengthy period of preparation, I—I would not do that.
“So I wanted to make clear that—that I would not preclude you from—from seeking representation so long as it does not delay or hinder the progress of the trial.”
Twelve days later, on September 22, 2003, in response to the court’s question regarding how much more time the prosecution case would take, the prosecutor indicated that he had about three more days of evidence to present. Appellant then objected, stating that he was not sure he had received all of the photographs in the prosecution’s possession from his former attorneys. The court offered to let appellant compare the photographs he had with those the prosecutor had and those that were already in evidence, to see if he had them all. Appellant’s defense investigator offered to meet with the prosecutor to compare photographs and the court agreed.
Appellant then complained that he had not yet received a transcript he had requested of a prior witness’s testimony, which he needed to cross-examine that witness. The court said it could be that they would not be able to finish hearing evidence in the trial until the transcript was provided. The court said that, at the next break that morning, appellant should communicate with the court reporter to find out when the transcript would be ready.
Finally, appellant complained about the lack of blood and fiber evidence showing that Randall was at the Super 8 Motel, and said he needed the fiber evidence to prove that she was at the motel.
When the court asked appellant what he was asking the court to do, appellant said, “If I’m not going to get the pictures, the evidence, the transcripts and all that, then—I am going to ask the Court for an attorney so that attorney can get that stuff and—if the Prosecution wants to fight the fact that Camillia Randall is at the Super 8 then fine. . . . [¶] . . . If [the prosecution] is going to argue with me then fine, to hell with them, you know, and I will get an attorney. That’s the position I will take. But—” When the court asked if he was requesting appointment of an attorney, appellant said, “If the court’s going to take the position of not giving me everything I need and all that, yes.”
The court responded, “Well, I’m going to leave that—that is still where we left it the last time we had that discussion, and that is that—I—you elected to—to go unrepresented despite my strong advice against that. You even asked to have the standby counsel removed so that they weren’t even ready to stand in and represent you and that was done. I told you when—last week sometime when I told you last week that I was not going to appoint an attorney if that meant it was going to delay the trial, you said Mr. Foley was ready to represent you although you had earlier asked that Mr. Foley be dismissed on the ground that he was ‘stabbing you in the back’ was I think the phrase you used. I said if Mr. Foley would present himself here ready to go without a delay that I would consider appointing him, and Mr. Foley has not shown up so I don’t know whether you have communicated with him or not and that’s—and that’s where we left it and that’s still where it is.
“I’m not going to delay the trial because—it would take, I guess, with all—the material in this trial it would take months before an attorney could start from scratch and be ready to represent you. It would be unrealistic to expect that we could hold this jury together, you know, without—death, illness, you know, whatever, or—or them being contaminated by something they may have read in the newspaper. I’ve—I’ve told them not to read about it, hear about this case, and I presume they’ve followed that admonition but after—after enough time passes just the normal corrosion, I guess, of people interacting in normal society and culture there’s a danger that they’re going to see or hear something about this case, so there’s really no way to delay—simply recess this trial for a period of months while some lawyer gets ready to try to pick up and represent you halfway through.
“If Mr. Foley is ready to step in and go for it, yes, I’ll consider that. But otherwise—[¶] . . . [¶]—we’re not going to—appoint an attorney at this point if it means that kind of delay.”
Appellant responded, “Well, I don’t see how it’s all that hard for the Court to see that the deterioration of the way this is going could result in a mistrial or—spinning our wheels, as you called it, through the appellate process and all that. If I’m gonna be denied counsel by the Court then, you know, if Mr. Foley say was unwilling to come down here and represent me or too busy and I said to the Court, ‘Look, I cannot handle getting what I need when I need it and all that to address these issues so therefore I cannot address this trial.’
“An attorney would have the power to get the transcripts, walk to her door and say, ‘I need these.’ And go every day until he got ‘em. An attorney would have the power to take all the photos, to go to the Prosecut[or]’s office and get them.”
After additional discussion along the same lines, appellant suggested that the court “[a]ppoint this defense an attorney from this county, George Mavris, or Leroy Davies, to get the evidence that I need from the Prosecution and help to cover those issues.” The court then said, “All right, your—your request is that I appoint you an attorney to seek discovery from the District Attorney. Again, if an attorney will present themselves here at the court ready to undertake such a thing without a—without resulting in a delay, I will consider that.”
Finally, on October 6, 2003, after appellant told the court he had several issues he wanted to discuss, the court removed the jury from the courtroom. After a lengthy discussion of several other issues, appellant said, “I would like to have the funds allocated from the Court to hire an attorney to get my evidence presented, to assist me with presenting evidence in this case.” The court responded, “Well, as I’ve indicated, if—if you can—if you can present to the Court an attorney who is ready to undertake the representation—your representation without delaying the trial, I will consider that.” Appellant then said he was talking about “co-counsel,” and the court said, “Well, again, the answer essentially is the same; that it cannot result in a delay. And if you present somebody here who—who is ready to undertake that, I will consider it.”
B. Legal Analysis
A defendant may invoke his or her constitutionally mandated right to self-representation prior to the commencement of trial, providing he or she knowingly and intelligently waives the right to counsel. (Faretta, supra, 422 U.S. at pp. 835-836.) After a defendant waives the right to counsel, whether to grant a subsequent request for reappointment of counsel is addressed to the sound discretion of the trial court. (People v. Gallego (1990) 52 Cal.3d 115, 163-164; accord, People v. Lawley (2002) 27 Cal.4th 102, 149.)
Factors for the trial court to consider in ruling on a defendant’s midtrial request to change from self-representation to counsel-representation include, among others: (1) the defendant’s prior history of substituting counsel; (2) the reasons given for the request to return to representation by counsel; (3) the length and stage of the trial proceedings; (4) the disruption or delay that reasonably might be expected to ensue from granting the motion; and (5) the likelihood of the defendant’s effectiveness in defending against the charges if required to continue acting as his or her own attorney. (People v. Gallego, supra, 52 Cal.3d at p. 164.) However, as the Gallego court further explained: “ ‘While the consideration of these criteria is obviously relevant and helpful to a trial court in resolving the issue, they are not absolutes, and in the final analysis it is the totality of the facts and circumstances which the trial court must consider in exercising its discretion as to whether or not to permit a defendant to again change his mind regarding representation in midtrial.’ ” (Ibid., quoting People v. Smith (1980) 109 Cal.App.3d 476, 484.)
Here, looking at the totality of the circumstances, we conclude that the court acted well within its discretion when it denied appellant’s requests for reappointment of counsel. (See People v. Lawley, supra, 27 Cal.4th at p. 149; People v. Gallego, supra, 52 Cal.3d at pp. 163-164.) Appellant asserts that the trial court improperly failed to address all of the factors that should go into the inquiry regarding whether to reappoint counsel. However, as we shall explain, the court explicitly addressed most of the factors and, to the extent it did not discuss the reasons appellant gave for the request to return to representation by counsel or the likelihood of appellant’s effectiveness in defending against the charges if required to continue representing himself, the record clearly supports the court’s implied findings on these factors.
Respondent argues that appellant’s requests were conditional in that he never made an unequivocal request for reappointment of counsel. We believe that the requests—with the exception of the request for cocounsel (People v. Clark (1992) 3 Cal.4th 41, 97)—were, as the trial court also found, sufficiently unequivocal to warrant consideration.
First, as to appellant’s prior history of substitution of counsel, the record demonstrates that appellant had a lengthy history of moving for substitution of counsel, requesting to represent himself, requesting dismissal of standby counsel, and moving to disqualify the trial judge. Appellant also had requested and received a four-month continuance of the trial; he then unsuccessfully moved for an additional two-month continuance just before trial began. These various actions on appellant’s part support the trial court’s observation that appellant’s midtrial requests for reappointment of counsel appeared to be attempts to further manipulate the system and disrupt the trial. (See, e.g., People v. Trujillo (1984) 154 Cal.App.3d 1077, 1087 [no abuse of discretion in denial of motion for reappointment of counsel “in view of [the defendant’s] deliberate attempt to manipulate the court system”].)
Second, the reasons appellant gave for the request to return to representation by counsel—the court’s determination that a “Quantico report” appellant wanted to introduce at trial was inadmissible; the prosecution’s failure to disclose blood and fiber evidence showing Randall had been in the Super 8 motel; the prosecution’s failure to turn over all of the photographs in its possession; appellant’s inability to obtain a transcript from earlier in the trial needed for cross-examination of a witness; and, regarding the request for cocounsel, the need for assistance in presenting evidence—are insufficient. The court offered solutions to two of appellant’s concerns, arranging for the defense investigator to meet with the prosecutor to ensure that the defense had copies of all photographs in the prosecution’s possession, and stating that, at the next break, appellant could call the court reporter to find out when the transcript would be ready and that it would delay the trial if necessary until the transcript was received. Furthermore, appellant does not now suggest, nor does the record support any suggestion, that in fact the “Quantico report” was admissible or that there was fiber evidence that was withheld from the defense.
Third, as to the length and stage of the proceedings, appellant’s requests for reappointment of counsel came in the midst of a lengthy trial. Although the first request came relatively early in the trial, several significant prosecution witnesses had already testified. Appellant first requested reappointment of counsel during the third day of trial, after the jury had been impaneled and five prosecution witnesses had already testified, including Wendy Whiteman, the victim’s aunt; Dr. Kenley Falconer, the forensic pathologist who performed the autopsy on Randall’s body; and Dr. Boyd Stephens, San Francisco’s chief medical examiner, who had been consulted about Randall’s death and who was in the middle of his testimony when appellant made his request for counsel. (See People v. Smith (1980) 112 Cal.App.3d 37, 51 [where defendant moved for reappointment of counsel on second day of trial after a crucial witness (a victim) had already testified, this factor weighed against reappointment of counsel].) The present case is thus distinguishable from several cases cited by appellant in which the courts of appeal found “abuses of discretion in trial courts’ refusal to reinstate counsel at significantly earlier stages: in [People v. Hill (1983) 148 Cal.App.3d 744, 760], before jury selection; in [People v. Elliott (1977) 70 Cal.App.3d 984, 993-994], after jury selection; and in [People v. Cruz (1978) 83 Cal.App.3d 308, 319-320], on the date set for trial.” (People v. Lawley, supra, 27 Cal.4th at p. 151, fn. 20; see also People v. Ngaue (1991) 229 Cal.App.3d 1115, 1125 [where a panel of this Division found that, like cases in which a request for reappointment of counsel came at early stages of trial, a request for posttrial reappointment of counsel would not disrupt trial or require a lengthy continuance]; cf. Menefield v. Borg (9th Cir. 1989) 881 F.2d 696, 701 [“in the absence of extraordinary circumstances, an accused who requests an attorney at the time of a motion for a new trial is entitled to have one appointed, unless the government can show that the request is made for a bad faith purpose”].)
Fourth, regarding the disruption or delay that might be expected to ensue if the motion were granted, the court was justifiably concerned that a delay of several weeks or, more likely, months would be necessary before new counsel would be ready to represent appellant. Thus, there was also the danger that reappointment of counsel would lead to a mistrial due to the delay, which would plainly prejudice the prosecution. (See, e.g., People v. Smith, supra, 112 Cal.App.3d at p. 50 [possible delay “was inestimable considering a mistrial, new counsel’s need for time in which to prepare in light of nature of the crimes and special allegations, the large number of victims and witnesses and review of proceedings already had, including various motions”].)
Fifth, as to appellant’s likely effectiveness in defending against the charges if he continued to represent himself, while the court did not explicitly discuss this factor, the record plainly shows that appellant actively handled his defense, including bringing numerous motions, presenting evidence, performing detailed direct examinations and cross-examinations of witnesses, and making objections, from the beginning of this case through its conclusion. (See, e.g., People v. Lawley, supra, 27 Cal.4th at p. 150 [self-representation was adequate where defendant successfully interposed objections, cross-examined prosecution witnesses, and presented evidence].) In addition, appellant’s second request was for counsel to assist him in obtaining discovery and transcripts for which, as previously discussed, the court had already arranged assistance, and his third request was not even for appointment of an attorney, but for funds to obtain cocounsel. (See People v. Clark, supra, 3 Cal.4th at p. 97 [a defendant is not entitled “both to be represented by counsel and to participate in the presentation of his own case. Indeed, such an arrangement is generally undesirable”].) We also observe that the court was exceedingly patient with appellant throughout the proceedings, courteously addressing the many issues appellant repeatedly raised and attempting to understand the concerns buried in appellant’s frequent tirades against the prosecution. The record thus does not support a conclusion that appellant was incapable of effectively presenting a defense. (See People v. Lawley, at p. 150.)
Finally, we also note that the court provided appellant the opportunity to present Foley or another attorney to the court who would be ready to begin representing appellant (or serving as cocounsel) without delay. Appellant, however, did not take advantage of this offer, and never even intimated that he had attempted to contact Foley or another attorney regarding either representing him or acting as cocounsel.
Accordingly, in light of “the totality of the facts and circumstances,” appellant has shown no abuse of discretion in the court’s denial of his requests for reappointment of counsel. (People v. Gallego, supra, 52 Cal.3d at p. 164; accord, People v. Lawley, supra, 27 Cal.4th at p. 149.)
II. Admission of Prior Sexual Conduct Under Section 1108
Appellant contends the admission of the testimony of Marie B. and Karen M. regarding his prior sexual misconduct violated his federal and state constitutional rights because section 1108 is inapplicable to the two offenses—murder and solicitation of murder—with which appellant was charged.
Respondent asserts that appellant waived this issue by failing to raise it in the trial court. However, in context and given that appellant was representing himself at the time of the hearing on the motion to admit this evidence, we find that the issue was preserved for appeal.
Following an evidentiary hearing, at which Marie B. and Karen M. testified, the trial court granted the prosecution’s motion to admit the two women’s testimony regarding appellant’s prior sexual misconduct, pursuant to section 1108. Both women testified regarding the prior sexual incidents during appellant’s trial.
The court did, however, deny the request to admit the evidence pursuant to section 1101, subdivision (b).
Section 1108, subdivision (a), provides: “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.” Subdivision (d)(1) of section 1108 defines “sexual offense” as “a crime under the law of a state or of the United States that involved any of the following:
“(A) Any conduct proscribed by Section 243.4, 261, 261.5, 262, 264.1, 266c, 269, 286, 288, 288a, 288.2, 288.5, or 289, or subdivision (b), (c), or (d) of Section 311.2 or Section 311.3, 311.4, 311.10, 311.11, 314, or 647.6, of the Penal Code.
Among the offenses set forth in subdivision (d)(1)(A) of section 1108 are rape (Pen. Code, § 261, subd. (a)(2)), and oral copulation by force or fear (Pen. Code, § 288a, subd. (b)(2)).
“(B) Any conduct proscribed by Section 220 of the Penal Code, except assault with intent to commit mayhem.
“(C) Contact, without consent, between any part of the defendant’s body or an object and the genitals or anus of another person.
“(D) Contact, without consent, between the genitals or anus of the defendant and any part of another person’s body.
“(E) Deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person.
“(F) An attempt or conspiracy to engage in conduct described in this paragraph.”
According to appellant, because he was not accused of a “sexual offense” in this case as defined in section 1108, the trial court improperly admitted the prior sexual offense evidence. In support of his contention, he cites People v. Walker (2006) 139 Cal.App.4th 782, 789 (Walker), in which the defendant was charged with first degree murder of a prostitute. As evidence that the defendant committed the murder with the motive of killing prostitutes, the trial court admitted, pursuant to sections 1101 and 1108, evidence of the defendant’s prior sexual assaults against women, some of whom were prostitutes. (Id. at pp. 791-792.)
On appeal, the defendant claimed, and the reviewing court found, that this prior sexual offense evidence was not admissible under section 1108 because first degree murder is not a “sexual offense” within the meaning of the statute. (Walker, supra, 139 Cal.App.4th at p. 802.) As the appellate court explained: “Section 1108 permits the trier of fact to consider a defendant’s prior sexual offenses as propensity evidence only in ‘a criminal action in which the defendant is accused of a sexual offense.’ [Citations.] Section 1108, subdivision (d)(1), defines ‘sexual offense’ as a crime under the law of a state or of the United States involving either conduct proscribed by a series of enumerated Penal Code sections or non consensual sexual contact. It also includes in the definition, in subdivision (d)(1)(E), any crime that involves ‘[d]eriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person.’ ” (Id. at pp. 797-798, fn. omitted.)
The court concluded that, because murder is not one of the sexual offenses enumerated in section 1108, subdivision (d)(1)(A) or (B), and the crime of which the defendant was accused did not involve, as one of its necessary adjudicated elements, deriving pleasure or gratification from inflicting death, bodily injury or physical pain on his victim, evidence of the defendant’s prior sexual offenses should not have been admitted. (Walker, supra, 139 Cal.App.4th at p. 802.) However, the court came to a different conclusion regarding possible allegations of special circumstances, which is relevant here: “Although murder, standing alone (Pen. Code, § 187, subd. (a)), is not one of the offenses enumerated in section 1108, subdivision (d)(1), there can be no question certain murder charges would qualify as ‘sexual offenses’ within the meaning of that provision—for example, a charge of first degree murder alleging special circumstances under Penal Code section 190.2, subdivision (a)(17)(C), (D), (E), (F) and (K) (murder committed while the defendant was engaged in, or accomplice in, commission of . . . rape, sodomy or other specified sexual crimes). In such a case the defendant is accused of a crime that involves conduct proscribed by section 1108, subdivision (d)(1)(A). [Citation.]” (Walker, at p. 798, italics added; see also People v. Pierce (2002) 104 Cal.App.4th 893, 898-899 [finding that assault with intent to commit rape was a sexual offense within meaning of section 1108 before amendment of that section to expressly include assaults with intent to commit specified felonies requiring sexual intent].)
Here, unlike the defendant in Walker, appellant was charged with—and convicted of—first degree murder with the special circumstances of rape, oral copulation, and torture. Such special circumstances, as the Walker court stated, plainly constitute “sexual offenses” within the meaning of section 1108, subdivision (d)(1)(A). (See Pen. Code, §§ 261, subd. (a)(2) [rape] and 288a, subd. (b)(2) [oral copulation by force or violence]; see also Walker, supra, 139 Cal.App.4th at p. 798; People v. Pierce, supra, 104 Cal.App.4th at pp. 898-899.) Hence, appellant’s claims that he was not charged in this matter with a sexual offense and that section 1108 is inapplicable are without merit.
III. Section 1108 and Ex Post Facto Principles
Appellant contends application of section 1108, which was enacted after he committed his offenses, violates the prohibition against ex post facto laws found in Article I, section 10 of the United States Constitution.
The murder of Camillia Randall took place in October 1994, but section 1108 did not become effective until January 1, 1996. Relying on Carmell v. Texas (2000) 529 U.S. 513 (Carmell), appellant argues that applying section 1108 retrospectively was unconstitutional because it lessened the amount of evidence necessary to convict him.
Since appellant’s trial commenced after January 1, 1996, the trial court applied section 1108.
In Carmell, supra, 529 U.S. 513, 522, the United States Supreme Court explained that a law that “ ‘alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender,’ ” violates the ex post fact clause of the federal Constitution. (Quoting Calder v. Bull (1798) 3 Dall. 386, 390 [1 L.Ed. 648], italics omitted.) In Carmell, when the offense (of rape) was committed, the law required that the testimony of a rape victim be independently corroborated. At trial, however, the court applied a new law that eliminated the corroboration requirement and allowed the jury to convict the defendant on the victim’s testimony only. (Id. at pp. 530-531.) The Supreme Court held that, because the law unquestionably reduced the amount of evidence needed to convict the defendant, its retrospective application was impermissible. (Id. at pp. 530-534.)
The Carmell court observed, however, that not every change in the rules of evidence “implicates the Ex Post Facto Clause. Ordinary rules of evidence, for example, do not violate the Clause. . . . [S]uch rules, by simply permitting evidence to be admitted at trial, do not at all subvert the presumption of innocence, because they do not concern whether the admissible evidence is sufficient to overcome the presumption.” (Carmell, supra, 529 U.S. at p. 533, fn. 23.)
Unlike the law in question in Carmell, section 1108 changes neither the amount nor type of evidence that is necessary to convict a defendant. Even before section 1108’s enactment, evidence of an uncharged offense was admissible for any of the purposes specified in section 1101, subdivision (b). Section 1108 merely expands the admissibility of this kind of evidence for the additional purpose of showing propensity to commit sex offenses.
Consequently, we conclude the retrospective application of section 1108 in this case did not violate the prohibition against ex post facto laws.
IV. Propriety of the Instruction on the Theory of Deliberation and Premeditation
Appellant contends his murder conviction must be reversed because one of the three alternate theories on which the jury was instructed was legally erroneous, and it cannot be determined on which theory the jury relied. Specifically, he asserts that, while the instructions on murder by torture (CALJIC No. 8.24) and felony-murder (during the commission of rape or forcible oral copulation) (CALJIC No. 8.21) were proper, the instruction on deliberate and premeditated murder (CALJIC No. 8.20) was not supported by any evidence whatsoever. Because no unanimity instruction was given, appellant claims that it is impossible to know whether the jury’s verdict rested on the improper theory of deliberation and premeditation.
It appears that appellant is in fact arguing that, while the instructions on all three theories were legally correct, the theory of premeditated murder was factually unsupportable. With respect to factually inadequate theories, our Supreme Court in People v. Guiton (1993) 4 Cal.4th 1116, 1131, explained: “The jury [is] as well equipped as any court to analyze the evidence and to reach a rational conclusion. The jurors’ ‘own intelligence and expertise will save them from’ the error of giving them ‘the option of relying upon a factually inadequate theory.’ [Citation.]” (Quoting Griffin v. United States (1991) 502 U.S. 46, 59.)
Here, we need not decide whether an instruction that was based on a factually unsupportable theory would require reversal in the circumstances of this case, where no unanimity instruction was given. That is, because we find that there was sufficient evidence from which the jury could have concluded that appellant committed murder with deliberation and premeditation.
The evidence necessary to support a verdict of first degree murder on a premeditation and deliberation theory is often of three types: planning activity, motive, and manner of killing. (People v. Bonillas (1989) 48 Cal.3d 757, 792, citing People v. Anderson (1968) 70 Cal.2d 15, 26-27; but see People v. Thomas (1992) 2 Cal.4th 489, 517 [“[u]nreflective reliance on Anderson for a definition of premeditation is inappropriate”].) In People v. Bonillas, the defendant argued on appeal that the jury should have been instructed during the penalty phase that the offense—murder committed during a burglary—as a matter of law, was not premeditated and deliberate. Our Supreme Court disagreed, finding that, “[a]lthough there was no evidence of planning activity with respect to the killing, there was evidence of motive. The victim was defendant’s neighbor and would easily have been able to recognize and identify defendant as the perpetrator of the burglary. In addition, the manner of the killing does furnish some indication of an intention to kill. Ligature strangulation is in its nature a deliberate act. In this case, the ligature was knotted twice and applied after the victim had already been rendered unconscious and unresistant. Taking time to do this was inconsistent with defendant’s stated objective, which was simply to escape. Although the quantum of Anderson ‘type’ evidence presented might not have been overwhelming there was evidence from which premeditation and deliberation could rationally be inferred.” (People v. Bonillas, at pp. 792-793; see also People v. Perez (1992) 2 Cal.4th 1117, 1126 [“As to motive, regardless of what inspired the initial entry and attack, it is reasonable to infer that defendant determined it was necessary to kill [the victim] to prevent her from identifying him”].)
Here, likewise, appellant’s murder of Randall by ligature strangulation, after he had already rendered her helpless and sexually attacked her, provides evidence of premeditation and deliberation. (See People v. Bonillas, supra, 48 Cal.3d at pp. 792-793.) Moreover, it is reasonable to infer that appellant decided he needed to kill Randall so that she could not identify him, having met him at or near the motel he managed. (See People v. Perez, supra, 2 Cal.4th at pp. 1126-1127.)
Accordingly, there was sufficient evidence both of motive and manner of killing for the jury to rationally conclude that appellant murdered Randall with premeditation and deliberation. (See People v. Bonillas, supra, 48 Cal.3d at pp. 792-793.)
V. The Cumulative Effect of the Alleged Errors
Appellant contends the cumulative effect of the errors requires reversal. However, in reviewing appellant’s claims, we have found no error on the part of the trial court. Thus, his claim of cumulative error cannot succeed.
VI. Imposition of an Upper Term Sentence
In a supplemental brief, appellant contends that, in light of the United States Supreme Court’s recent opinion in Cunningham v. California (2007) __ U.S. __, 127 S.Ct. 856, the trial court’s imposition of the upper term was unconstitutional because the court relied on factors not found by a jury beyond a reasonable doubt. In Cunningham, the court rejected People v. Black (2005) 35 Cal.4th 1238 (Black I), in which our Supreme Court held that California’s determinate sentencing law was constitutional under Apprendi v. New Jersey (2000) 530 U.S. 466, Blakeley v. Washington (2004) 542 U.S. 296, and United States v. Booker (2005) 543 U.S. 220. The Cunningham court held that California’s sentencing law violates a defendant’s Sixth and Fourteenth Amendment right to a jury trial because it “assigns to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated ‘upper term’ sentence.” (Cunningham, supra, 127 S.Ct. at p. 860.) The court explained that “the Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Ibid.)
Very recently, in People v. Black (2007) 41 Cal.4th 799, 806 (Black II), the California Supreme Court addressed several issues arising from the Cunningham decision, concluding, inter alia, that an upper term sentence does not violate a defendant’s right to a jury trial when “at least one aggravating circumstance [is] established by means that satisfy Sixth Amendment requirements and thus [make him or her] eligible for the upper term.” In Black II, the trial court had sentenced the defendant to the upper term for the offense of continuous sexual abuse of a child based on “ ‘the nature, seriousness, and circumstances of the crime,’ ” noting that the “defendant had forced the victim to have sexual intercourse with him on numerous occasions, that the victim was particularly vulnerable to him as his stepdaughter, that he had abused a position of trust and confidence, and that he had inflicted emotional and physical injury on the victim.” (Id. at p. 807.)
Our Supreme Court found, inter alia, that where the aggravating factor found in rule 4.421(b)(2)—that a “defendant’s prior convictions . . . are numerous or of increasing seriousness”—is satisfied, regardless of whether the trial court explicitly relied on that factor, an upper term sentence is constitutional. (Black II, supra, 41 Cal.4th at pp. 812-813.) The court explained that, “so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Id. at p. 813.) The court further explained: “The determinations whether a defendant has suffered prior convictions, and whether those convictions are ‘numerous or of increasing seriousness’ (. . . rule 4.421(b)(2)), require consideration of only the number, dates, and offenses of the prior convictions alleged. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense. This type of determination is ‘quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court.’ [Citation.]” (Black II, at pp. 819-820.)
In the present case, in sentencing appellant to the upper term, the trial court stated: “I’m going to turn first to the circumstances in aggravation and mitigation because that represents the sentencing choice as to Count II [soliciting another to commit murder]. I do find as to Count II that under Rule 421(a)(8) [now rule 4.421(a)(8)] that there was a degree of planning involved in the commission of Count II, and that under Rule 421(b)(2) [now rule 4.421(b)(2)] the defendant’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness. I find those to be aggravating factors to Count II. [¶] I find no factors in mitigation as to Count II and therefore I determine that the aggravated term should apply as to Count II.”
Appellant’s probation report shows that he suffered eight convictions prior to his arrest in this case: felony sexual battery (Pen. Code, § 243.4, subd. (a)) on November 15, 1999; misdemeanor battery (Pen. Code, § 242) on April 13, 1999; battery upon a peace officer (Pen. Code, § 243, subd. (c)) and evasion of a peace officer (Veh. Code, § 2800.2) on November 28, 1995; evasion of a peace officer (Veh. Code, § 2800.2), use of a controlled substance (Health & Saf. Code, § 11550), and battery upon a peace officer (Pen. Code, § 243, subd. (c)) on November 16, 1995; and evasion of a peace officer (Veh. Code, § 2800.2) on November 14, 1989. Given the sheer number of prior convictions, the court properly imposed the upper term on the basis of numerous prior convictions. (See rule 4.421(b)(2); Black II, supra, 41 Cal.4th at pp. 818-820 [prior convictions included three misdemeanors and two felony convictions].) It was then permissible for the court to also rely on the circumstance of planning found in rule 4.421(a)(8) in exercising its discretion to choose the upper term. (See Black II, at p. 809.)
Because our Supreme Court’s decision in Black II is dispositive of this issue, we reject appellant’s claim of sentencing error.
DISPOSITION
The judgment is affirmed.
We concur: Lambden, J., Richman, J.