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People v. Story

California Court of Appeals, Sixth District
Jul 7, 2009
No. H030020 (Cal. Ct. App. Jul. 7, 2009)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. GARY DEAN STORY, Defendant and Appellant. H030020 California Court of Appeal, Sixth District July 7, 2009

NOT TO BE PUBLISHED

Santa Clara County Super. Ct. No. 210711

ELIA, J.

In an indictment filed April 24, 2002, the Santa Clara County District Attorney accused Gary Dean Story of the felony murder of Betty Vickers. The murder occurred on October 22, 1976. (Pen. Code, § 187.) Subsequently, on July 27, 2005, the District Attorney filed an amended indictment that excluded the felony murder language.

The indictment accused defendant of Vickers's murder with "malice aforethought and during the perpetration and attempt to perpetrate rape and burglary...."

The amended indictment accused defendant as follows: "he did unlawfully and with malice aforethought, kill BETTY YVONNE VICKERS, a human being."

Following a jury trial, on October 4, 2005, defendant was found guilty of first-degree murder. On March 9, 2006, the court denied defendant's motion for a new trial. The court sentenced defendant to life imprisonment with the possibility of parole.

On March 22, 2006, defendant filed a notice of appeal.

On appeal, this court found that the trial court prejudicially erred in admitting evidence of several sexual offenses committed by defendant, which were admitted pursuant to Evidence Code section 1108, in defendant's murder trial. Accordingly, we reversed the judgment of the trial court.

The California Supreme Court granted review primarily to decide whether a defendant tried for first degree felony murder, with rape the underlying felony, is accused of a sexual offense under the definition contained in Evidence Code section 1108. (People v. Story (2009) 45 Cal.4th 1282, 1285.) The Supreme Court held that because a murder during the course of a rape involves conduct, or at least an attempt to engage in conduct, proscribed by Penal Code section 261, a defendant accused of such a murder is accused of a sexual offense within the meaning of Evidence Code section 1108. Accordingly, the California Supreme Court reversed this court's judgment. (Ibid.)

Evidence Code section 1108 provides that when a defendant is accused of a sexual offense the trial court has discretion to admit evidence of other sexual offenses the defendant committed. As relevant here, Evidence Code section 1108 defines a sexual offense as a crime or attempted crime that "involve[s]" "any conduct proscribed by" various penal provisions, including Penal Code section 261, which defines the crime of rape. (Evid. Code, § 1108, subd. (d)(1).)

However, in so doing, the Supreme Court remanded the case to this court to decide the issue of whether bringing charges against defendant in 2002 for a crime committed in 1976, violated defendant's due process right to a fair trial. (People v. Story, supra, 45 Cal.4th at p. 1300.)

Accordingly, we set forth the facts with this issue in mind, which are taken largely from our previous opinion in this case.

Facts

On October 22, 1976, Betty Vickers's partially nude body was found lying face down on her bed. An autopsy conducted at the time revealed that Ms. Vickers had been strangled.

Circumstances Surrounding the Murder

According to Pamela Victory, a friend of defendant, Ms. Vickers worked at the Palo Alto office of the Wall Street Journal. It was there that Ms. Vickers met defendant, who also worked there. According to Ms. Vickers's house mate, Arlene Bockholdt Baker, and friend, Shirley Ann Kovach Mitchell, in the evenings, Ms. Vickers would often socialize with a group of friends at the bar at a restaurant called the St. James Infirmary. Ms. Vickers's social group included Ms. Baker, Ms. Mitchell and Patricia Courter Knight. Occasionally, defendant would show up at the St. James Infirmary as well. At some point, Ms. Vickers introduced defendant to her group of friends as her coworker. Defendant, who was married at the time, was not part of Ms. Vickers's social group at the bar. However, defendant would sometimes come up and chat with members of the group for a little while before leaving.

At trial, many of the witnesses were referred to by both maiden and married names. For the sake of clarity we refer to them by their current names.

During 1975 and part of 1976, Ms. Vickers lived with Ms. Baker in a two bedroom house in Mountain View. Sometime around August or September 1976, Ms. Vickers moved to an apartment due to Ms. Baker's pending marriage.

Ms. Baker recalled two occasions when defendant was at their home in the summer of 1976. One time, defendant followed Ms. Vickers home from a softball game. Defendant and Ms. Vickers spoke on the front lawn for a while before defendant left. The second time occurred one morning that summer. Shortly after Ms. Baker woke up, Ms. Vickers met her in the kitchen. Ms. Vickers informed Ms. Baker that defendant had spent the night and was still asleep in her room. Ms. Baker indicated her disapproval. Ms. Vickers responded saying that nothing had happened, and that she was menstruating. According to Ms. Baker, Ms. Vickers explained with a laugh that all they did was sleep and added something to the effect of "I didn't let him get any. I guess I showed him."

Ms. Baker testified that Ms. Vickers moved out of the house in early September 1976. She noted that when they lived together, it was common for Ms. Vickers to leave the deadbolt unlocked on the front door. She added that it was not unusual for Ms. Vickers to have a drink or two of wine or beer after coming home from having been out at a bar.

After leaving Ms. Baker's house, Ms. Vickers moved into an apartment on Dana Street in Mountain View. Suzanne Bonfield Lujan rented a ground floor apartment directly below the apartment into which Ms. Vickers had moved. The apartment complex was built around a central pool with the ground floor apartments facing the pool. Each ground floor apartment had a small deck in front. The deck was separated from the main walkway by low hedges. The deck was accessible from the apartment by a sliding glass door and screen door.

On one Sunday morning in early September 1976, Ms. Lujan and her friend Janet Rogers Nielson encountered defendant. The two women were sitting on Ms. Lujan's couch next to the open sliding glass door that led to the deck, when Ms. Lujan noticed defendant walking back and forth on the walkway in front of her apartment. Defendant stopped in front of Ms. Lujan's apartment and started yelling to the two women through the open sliding door. According to Ms. Nielsen, when defendant got their attention, he stepped over the hedge and onto Ms. Lujan's deck without being invited. This prompted Ms. Lujan to close and lock the sliding screen door between the deck and the apartment.

Defendant demanded to know where Ms. Vickers was. When the two women said they did not know Ms. Vickers, defendant argued with the two women through the closed screen door. Defendant reacted to their denials with hostility and accused the two women of lying. Repeatedly, he demanded to know where Ms. Vickers was and refused to accept the women's protestations of having no knowledge of Ms. Vickers by pointing to some empty moving boxes on the ground near the front of Ms. Lujan's apartment. Ms. Lujan responded that the boxes had been dropped from the landing in front of the upstairs apartment. After arguing with the women for roughly three minutes, defendant gave up and left. Promptly, the women closed and locked the sliding glass door to the deck.

Later that evening, around 10:00 pm. or 10:30 pm., Ms. Lujan was home alone, "frosting" her hair. She heard a knock on the front door. She looked through the peephole in the door but saw no one there. Ms. Lujan went back to what she was doing. Less than a minute later, she heard another knock, but again no one was visible through the peephole. Within a minute, she heard a third knock, followed by silence. Ms. Lujan opened the door and saw defendant crouched down in the doorway with a pathetic look on his face.

Defendant smelled of alcohol. He began explaining to Ms. Lujan that he was supposed to meet Ms. Vickers, but she had stood him up. Ms. Lujan noted that defendant's demeanor was completely different from how it had been earlier that day. Defendant was doing his best to be charming and was trying to flirt with her. Ms. Lujan did not want to converse with defendant, but when she opened the door he had placed his foot over the threshold. Ms. Lujan was extremely uncomfortable, but had no choice but to converse with defendant because she could not shut the door. After listening to defendant for about 20 minutes, the timer went off for her hair tinting. She was able to excuse herself, and defendant withdrew his foot and allowed her to close the door.

Ms. Lujan moved out of the downstairs apartment in late September 1976. One or two months later, the police contacted Ms. Lujan and Ms. Nielson. Both women identified defendant from a photographic lineup and a physical lineup.

Ms. Vickers's friends, Ms. Mitchell and Ms. Knight, testified about Ms. Vickers's life in the days leading up to the murder. Ms. Mitchell testified that she frequented the St. James Infirmary along with Ms. Vickers and Ms. Knight. Ms. Vickers had been dating Carl Stanley, Jr., who was also known as "Smokey." Mr. Stanley was a firefighter. He tended bar at the St. James Infirmary when he was off duty. Ms. Vickers was in love with Mr. Stanley, but Mr. Stanley was in love with someone else and broke off the relationship. Ms. Vickers had just begun dating another man named Frank, shortly before her murder.

On the evening of October 21, 1976, Ms. Mitchell, Ms. Vickers and Ms. Knight arranged to meet at St. James Infirmary. Ms. Mitchell drove Ms. Knight to the bar. They arrived at the bar around 8:00 pm. or 8:30 pm. Ms. Vickers arrived later.

According to Ms. Vickers's half-sister Jean Fontes, Ms. Vickers had dinner that night at her home in Pacifica. Ms. Vickers did not leave until around 8:00 pm. or 8:30 pm.

Ms. Vickers arrived at St. James Infirmary around 9:00 pm. or 10.00 pm. Ms. Fonts and Ms. Mitchell testified that Ms. Vickers had no marks, bruises, or injuries visible on her face or neck when they saw her that night.

After Ms. Vickers arrived at the bar, she sat down at a table with her group of friends and had a drink. At some point, defendant, who was also at the bar that night, came over to the group and said hello. Ms. Knight, who conceded that she had drunk a lot that night, did between two and four lines of cocaine and "you name it," thought she recalled someone coming up to the table, standing over them and talking to them. Ms. Knight was not sure if defendant sat down. She could not "guarantee that because it's been so many years." At one point, defendant turned to Ms. Knight and asked her if she wanted to go to Denny's with him to have breakfast. Ms Knight declined. Then, defendant turned to Ms. Vickers and asked her something. Ms. Knight saw Ms. Vickers shake her head. Then, Ms. Vickers resumed her conversation with someone else at the table and turned her back to defendant.

Initially, Ms. Knight's testimony was that someone came up to the table, but she had no idea who the man was. Thereafter, once the prosecutor reminded her that she had given a statement to one of the District Attorney's investigators in which she indicated that she first met defendant on the night Ms. Vickers was murdered, Ms. Knight remembered that it was defendant that had tried to "hit on" her.

Around 1:15 am., Ms. Vickers, Ms. Mitchell, and Ms. Knight got up to leave the bar. Defendant got up and walked out behind the three ladies. While they were walking outside to their cars, Ms. Knight noticed defendant lean over and whisper something in Ms. Vickers's ear. Ms. Vickers responded by shaking her head. Before Ms. Vickers got into her car, she asked Ms. Mitchell if she would accompany her home. Ms. Mitchell did not know why Ms. Vickers asked, but Ms. Mitchell had to decline because she was driving Ms. Knight home and they all had to work the next morning. Ms. Mitchell and Ms. Knight saw Ms. Vickers get in her car and drive off in the direction of her house. They saw defendant get in his car and drive off in the same direction.

After Ms. Lujan moved out of her apartment, Nina Oliver Hitchcock moved into the apartment below Ms. Vickers at the end of September or beginning of October 1976. Ms. Hitchcock testified that the apartments were not particularly sound proof. Typically, she could hear Ms. Vickers walking around in the upstairs unit. Ms. Hitchcock explained that Ms. Vickers seemed to have the same schedule as she did in that they both woke up around 5:30 am. for work. Ms. Hitchcock would usually hear Ms. Vickers get up before her own alarm clock would ring.

In the early morning hours of October 22, 1976, Ms. Hitchcock woke up upon hearing footsteps in Ms. Vickers's apartment. Assuming that is was Ms. Vickers waking up at 5:30 am., Ms. Hitchcock got up and went to the kitchen to make her morning coffee. When Ms. Hitchcock looked at the kitchen clock, however, she saw that it was actually 3:00 am. Ms. Hitchcock wondered why Ms. Vickers was up so early. She went back to bed. Ms. Hitchcock heard no other sounds from Ms. Vickers's apartment from then up to the time she left for work.

The police were summoned to Ms. Vickers's apartment around 5:42 pm. on October 22. A friend had gone to check on Ms. Vickers when she did not show up for work. Officers found Ms. Vickers's body lying face down on the right side of her double bed. Ms. Vickers's face was not on the pillow, and the sheets on the right side of her bed were pulled up to and covering her legs up to her waist. The left side of the bed appeared untouched, without any indentation or appearance of having been disturbed. The apartment was not ransacked and there were no signs of a forced entry into the apartment.

Ms. Vickers was wearing a long football jersey shirt as a nightgown. The jersey was pulled halfway up her back. Ms. Vickers's body was cold to the touch. Her arms and joints were stiff, indicating rigor mortise, and her body displayed dorsal lividity, or pooling of the blood in the part of the body closest to the bed.

A used tampon was lying on the bed next to the body. Ms. Vickers's panties had been removed from her waist and were discovered under a pillow above where her head rested. There was a large stain on the bottom sheet near the body. There were no signs of a robbery or a struggle in the apartment or forced entry at the door.

Physical Evidence

Mountain View police officers collected a number of items from Ms. Vickers's apartment including a tampon on the bed, a pair of panties from under the pillow, the bed sheets, wine glasses and a wine bottle, and cigarette butts from two different brands of cigarette only one of which had lipstick stains. Two of the officers testified at defendant's trial that none of the physical evidence could be located.

Two investigators from the district attorney's office testified that they searched for the physical evidence after the case had been reopened in 2001. Notwithstanding the policy of the police department to never destroy evidence in homicide cases, the only evidence they could find were two three-by-five evidence cards.

Dr. Richard Mason, a clinical pathologist, conducted an autopsy on Ms. Vickers's body. At the time of her murder, Ms. Vickers was five feet six inches tall, weighed 109 pounds, and was 26 years old. Based on the fact that Ms. Vickers was seen alive at 1:30 am. and was in full rigor mortise with fixed lividity when she was found at 5:45 pm., Dr. Mason concluded that Ms. Vickers was killed not too long after she left the St. James Infirmary.

Dr. Mason noted that Betty Vickers's blood type was type O. Ms. Vickers had a blood alcohol level of.11 percent. Dr. Mason found that Ms. Vickers had a small amount of blood stained edema fluid in her mouth. She had pulmonary edema (foamy blood in the lungs), which indicated she had been strangled. In addition, Dr. Mason noticed an abrasion on the right side of her neck consistent with manual strangulation. Ms. Vickers had petechial hemorrhages on her face and the linings of her eyelids, and scattered bleeds over her right front chest and near her collarbone. There was an abrasion on the upper part of her left breast, and bruising to her lower lip, upper left arm, and the bridge of her nose. Ms. Vickers had dramatic internal injuries to the larynx and strap muscles, other neck and internal hemorrhaging in the tissue on her front chest and collarbone area. Dr. Mason opined that these injuries reflected that the killer placed his elbows or knees on Ms. Vickers's upper chest as she was lying face up, and applied pressure to pin her down while manually strangling her as she resisted. Dr. Mason noted this type of manual strangulation could cause death by either cutting off the blood flow or the airflow and would take between 30 and 90 seconds to kill a struggling victim.

Dr. Mason noted that there were no visible injuries to Ms. Vickers's vagina, but he explained that it is not uncommon for the victim of a forcible rape to show no vaginal injuries. He did observe some redness in the perianal region that could have been either a rash or a friction injury. Dr. Mason examined Ms. Vickers's vagina and uterus, which showed that she was menstruating at the time of her murder. Dr. Mason took a smear sample from Ms. Vickers's vagina and tested it for the presence of sperm. He did not find any sperm in the sample. Dr. Mason did not test for the presence of semen. However, Dr. Mason observed a significant amount of "white discharge" in Ms. Vickers's vaginal area. Dr. Mason explained that testing for semen is different than checking for sperm; semen requires a chemical test for acid phosphatase, which is an enzyme produced by the prostate gland. Dr. Mason added that, if the rapist had undergone a vasectomy, there would be no sperm in the vagina, even if semen had been present.

Dr. Mason opined that Ms. Vickers was the victim of a rape and murder by forcible manual strangulation. On cross-examination, Dr. Mason admitted that his conclusion that Ms. Vickers was raped was based on the presence of the bloody tampon on the bed.

In response to defense counsel's assertion that Dr. Mason was assuming Ms. Vickers was raped because there was a used tampon on the bed, Dr. Mason testified "Yeah. And, you know, you are going to climb on top of a woman what for, you know, just to thump her or beat her. You know, it's just not common in my experience. I'm sure there are people that get their kicks that way, but it looks like a rape/murder."

James Norris, a forensic science consultant and expert trained in forensic serology, was the Santa Clara County criminalist who examined the biological evidence in this case in 1976. Mr. Norris explained that, in 1976, the science of forensic DNA testing had not yet been developed, and forensic experts relied on chemical testing for the presence of certain known enzymes. For blood, experts relied on the Kastle-Meyer enzyme test, and for semen experts relied on the acid phosphatase test.

Mr. Norris had no independent recollection of this case at the time of trial. Instead he testified from his notes and records.

Mr. Norris explained to the jury that the acid phosphatase test was considered a "presumptive" test because the enzyme acid phosphatase occurs at very high levels in semen, but it also occurs in a few other substances. He explained that vaginal secretions do contain acid phosphatase, but only in very low levels. Semen contains acid phosphatase levels 10 to 100 times higher than do vaginal secretions. In 1976, the Santa Clara County Crime lab was using a "desensitized" acid phosphatase test, developed from the prevailing scientific literature at the time, which would not give a rapid positive test for weak acid phosphatase levels, such as those found in vaginal secretions. The test would only give a rapid positive test for semen and for a few plants, such as fresh horseradish, which contained high levels of a different form of the acid phosphatase enzyme. However, he explained that unlike the semen enzyme, the plant form of the triggering enzyme is unstable and dissipates quickly. The plant enzyme would only give a positive result on the acid phosphatase test if tested within a few hours of staining.

Mr. Norris received the bottom sheet from Ms. Vickers's bed for testing. He explained based on his training and experience that a stain that was visible on the bottom sheet appeared to be a semen stain. He conducted a desensitized acid phosphatase test on a portion of the stain. The stain produced a rapid strong positive result. As a result, he opined that the stain was semen. Mr. Norris excluded vaginal secretions as the origin of the stains because they would not have given such a rapid positive result on the desensitized test. He excluded plant enzymes because they only give positive results when the stains are fresh, and the stained sheet from Ms. Vickers's bed had been stored for several days before testing.

Mr. Norris explained that, because the acid phosphatase test was considered a presumptive test (since other substances could render a positive result), the standard protocol would have been to examine the stain under a microscope to look for the presence of sperm. He conceded that he did not look for sperm in this case. However, he noted that the absence of sperm would not mean the stain was not semen. If the semen came from someone who had undergone a vasectomy, there would be no sperm in the semen.

After concluding that the stain was semen, Mr. Norris conducted a blood typing on the stain. He explained to the jury that 80 percent of people are ABO "secretors," meaning they secrete their blood type in all of their bodily fluids. Accordingly, their blood type can be determined by testing other bodily fluids. The other 20 percent of the population do not secrete their blood type in their bodily fluids.

Mr. Norris took a sample of the sheet from the semen stain and he took two control samples, one near the stain and one at the edge of the sheet far from the stain. The two samples both tested positive for blood type A only. The stain itself tested positive for both type A and type O. Mr. Norris explained that this result indicated to him that the sheet had a background level of type A material, caused either by the sweat of a type A secretor or possibly by some less common cleaning products that give a false positive for type A blood. Accordingly, Mr. Norris subtracted the background type A result from the semen stain and concluded that a blood type O secretor most likely left the stain.

Mr. Norris conducted a "PGM" test on the stain. The PGM test uses electrophoresis to examine the presences of two genetic markers, which show up as bands in a gel. The PGM markers are classified as either "1" or "2," and every individual gets one marker from each parent, so the possible combinations are classified as "1,1," "2,2," or "2,1." Mr. Norris testified that the bands for a "2,1" individual would typically be of equal strength, whereas a sample with two or more commingled sources will not have equal bands. He noted that PGM is not appreciably present in sweat or saliva, so the presence of background sweat or saliva in the sample would not contribute to the PGM result. In this case, the test showed a PGM reading of 2,1 in equal bands, which Mr. Norris concluded as demonstrating that the contributor to the semen stain was a 2,1, and the result did not indicate contributions from more than one donor. Therefore, he concluded that the person that contributed the semen stain was most likely blood type O, with a PGM of 2,1.

Mr. Norris tested a sample of defendant's blood and determined that defendant was type O, with a PGM of 2,1. Mr. Norris tested a sample of blood obtained from Ms. Vickers's body. According to Dr. Mason, Ms. Vickers was also blood type O. Mr. Norris conducted a PGM test on Ms. Vickers's blood, but there was no PGM activity, which is common for samples taken from someone who was already deceased.

Mr. Norris acknowledged that while in his opinion the most likely interpretation of the results was that the person that contributed the semen stain was a blood type O secretor with a PGM of 2,1 that was not the only possible interpretation of the results. He noted that, although he had subtracted the type A result from the stain because it was also present in the two controls he tested, the presence of blood type A in the stain could be interpreted as coming from the person that had contributed the semen. He explained to the jury that the stain could have been a commingling of semen and vaginal fluid, the semen could have been contributed by a non-secretor of any blood type, and the type O result could have come from the victim. Mr. Norris observed that it was possible that the 2,1 PGM result could have been from the commingling of two different sources. He explained that the only blood types that could conclusively be excluded were type B and type AB secretors, which make up about 10 percent of the population. However, while he acknowledged there were several possible interpretations of the results, his opinion was that the most likely explanation of the results was that the contributor of the semen stain had blood type O, PGM 2,1, which included defendant as the possible source.

Evidence Relating To Defendant

Detective Healy questioned defendant a few days after the murder. Defendant told the police that he was at St. James Infirmary on October 22, 1976, and acknowledged he left the bar at the same time as Ms. Vickers and her friends, but he claimed that he drove straight home without making any stops. Defendant confirmed that his home was at 1546 Lochinvar Street, in Sunnyvale. On November 10, 1976, Detective Healy executed a search warrant at defendant's home. He took possession of a notebook type journal. In addition, he took a sample of blood from defendant. Defendant was arrested for Ms. Vickers's murder, but the district attorney's office did not file a complaint.

Defendant was married to Marilyn Garisto in October 1976, and they lived together at 1546 Lochinvar Street. At defendant's trial, Ms. Garisto testified that on October 22, 1976, defendant was out all night and did not come home until 4:00 a.m. In 1976, she believed defendant was seeing other women, and so she kept entries in her journal about defendant's actions. Her original journal entry made at the time showed that defendant was home at 2 a.m. At some point, the entry was changed to 4 a.m. Ms. Garisto could not remember why the entry was changed. When she questioned defendant about his absence, he told her he had been out "driving around," but he did not say where.

Christine Ebertowski had been married to defendant from 1971 to 1973, and the two were still friends in 1976. Ms. Ebertowski confirmed that defendant underwent a vasectomy in 1973. She testified that a few days after the murder, defendant contacted her and arranged to take her out to lunch so they could talk. At that meeting defendant informed Ms. Ebertowski that the police might contact her about his whereabouts in the early morning hours of October 22. Defendant asked Ms. Ebertowski to provide him with an alibi. Defendant explained to her that he had been with Ms. Vickers at the St. James Infirmary and had left at the same time she had. He said that he drove around for a while and drove past Ms. Ebertowski's house. Defendant told Ms. Ebertowski that somebody might come to talk to her. At no point in the conversation did he deny killing Ms. Vickers. Ms. Ebertowski thought about defendant's request for a few days. Ultimately, she decided not to agree to give him an alibi.

Initially, when an investigator interviewed her in 1976 Ms. Ebertowski omitted telling him that the defendant had asked her for an alibi. In fact, she told the investigator that the defendant had not asked for an alibi.

Back in 1976, Ms. Victory had not spoken with defendant since June of that year. She testified that when she heard about Ms. Vickers's murder she called defendant to discuss it. Defendant told her that he was at the same bar as Ms. Vickers on the night she was murdered and that he stayed at the bar until closing.

A couple of months later, investigators contacted Ms. Victory. Ms. Victory realized that defendant was a suspect in Ms. Vickers's murder. Sometime after that interview defendant called her. He said he was told that she had spoken to the police and had told them that he had admitted to her he had killed Ms. Vickers. Ms. Victory assured defendant that she made no such statement to the police. However, she commented to defendant that he had never denied killing Ms. Vickers. There was a silent pause. Then, defendant responded, "don't worry about it."

Patricia Diane Schneck was married to defendant in the early 1980s, after defendant left California for Arizona. On several occasions before and during their marriage, defendant made threats against Ms. Schneck. She recalled several occasions when he told her he would kill her; that he would get away with it "because he had before in the past." On one occasion, he remarked, "Why do you think I had to leave California?" Ms. Schneck recounted defendant told her, "that there was a trial and there wasn't enough evidence" so she assumed that he was arrested. Defendant complained that he had a good life in California but had to leave. Defendant did not mention Ms. Vickers's name. Nor did he indicate that the person he had killed was a woman.

Ms. Schneck testified "there was confrontation going on but he didn't say like I killed before and I'll kill you and I got away with it in California. That didn't happen like in all just one conversation. It just happened like at one conversation and a week or week and a half later, you know, something would be said, an argument or anything like that, and then he would make another statement. I mean it wasn't just like, you know, one after the other."

After defendant's marriage to Ms. Schneck ended, defendant married Linda Jo Blainey in 1986 in Arizona. Ms. Blainey had two children from a previous marriage and her ex-husband would come over for visitation. Ms. Blainey recounted that on several occasions, defendant would complain to her about her ex-husband coming over. On those occasions, he threatened to kill her ex-husband and told Ms. Blainey that he had "killed before and gotten away with it."

1108/1101 Evidence

Maureen E. lived in San Jose, California in August 1973. She met defendant because she had been dating a mutual friend. On one occasion, when she and her friend went out to dinner together with defendant, defendant touched her foot under the table. This made Maureen E. very uncomfortable. Defendant asked Maureen E. out several times, and she finally agreed to go out with defendant for a Sunday afternoon drive. They may have kissed once during the drive. When defendant brought her home, he kissed her again. However, Maureen E. was not interested in defendant. After that date she avoided his calls and made excuses not to go out with him.

Maureen E. was dating someone else on February 13, 1974. She was in the process of moving out of her apartment. At around 8:00 p.m. that night, Maureen E. was carrying a heavy box to her car when she encountered defendant. Defendant reeked of alcohol. Defendant offered to carry the box. Out of politeness, Maureen E. allowed him so to do. Without being invited, defendant followed Maureen E. back into her apartment. They talked briefly about Maureen E.'s job. The entire time, Maureen E. stood at the door trying to figure out a way to get defendant to leave. Maureen E. got a phone call from her boyfriend. She told defendant that he needed to leave because her boyfriend was coming over. Defendant hesitated and looked a little unfocused, but then left.

About five minutes later, defendant knocked at the door and asked to use Maureen E.'s phone. Maureen E. opened the door and gestured to her phone. As she was turning and pointing to the phone, defendant pulled out a gun and hit her on the right side of the head with it. Maureen E. was dazed and temporarily knocked unconscious. She recalled waking up being dragged across the floor by her arms into her bedroom. Her vision was blurred from the blow, but she felt defendant rip off her clothes and unzip his own pants. She blacked out again, and when she came to, she heard defendant rummaging in her kitchen, going through drawers. In order to save herself, Maureen E. got up, smashed the glass out of a window, and started screaming wildly. Defendant ran in, grabbed her throat and threw her on the bed. He got on top of Maureen E., held her by the throat and started banging her head violently against the headboard. Maureen E. tried to claw at his face to fight him off, but he used his weight and his legs to pin her down. Defendant squeezed her throat until she lost consciousness again. A stranger who had responded to her screams and was trying to revive her awakened her. Defendant had fled, and Maureen E. had skin and blood under her fingernails. At a court hearing later, Maureen E. testified that defendant was the person who assaulted her.

Jayne H. was 19 years old in 1975. She lived in Cupertino, California. Jayne H. lived in a small farmhouse owned by her parents. She had a roommate who had two young children. In July 1975, Jayne H. and her roommate had a party. A friend of her roommate brought defendant to the party. At some point during the party, defendant came up to Jayne H. and asked her for a corkscrew to open a bottle of wine. Jayne H. thought this was a little odd since she did not know defendant and she was not drinking. She did not have any further contact with defendant until early the next year.

Jayne H. began going to St. James Infirmary, where she met Ms. Vickers. One evening, in the late winter or early spring of 1976, while Jayne H. was at St. James Infirmary defendant came up to her and started chatting with her. He reminded her that he had met her once before at her house. Defendant told Jayne H. an elaborate story about how he had gone to prison for attempted murder. He said that he managed an apartment complex with his wife, and had to carry a gun because he often had large sums of cash on him. Defendant explained that at some point he got in an argument in a bar, retrieved his gun, and threatened a guy and was convicted of attempted murder. This story made Jayne H. very uncomfortable. She excused herself to go to the bathroom, but then took the opportunity to leave the bar and go home.

Later that evening, around 11:00 p.m., defendant knocked at her door. She opened it a crack to ask him what he wanted. Defendant wanted to know why she left without saying goodbye. Defendant opened the door and entered the house uninvited. He tried to kiss Jayne H., but she said no and asked him to stop. She told him to leave, but defendant continued his advances. Defendant started to undress her over her protestations. Jayne H. explained that she was afraid to make a scene because there were two young children sleeping in the house and she did not want to expose them to a traumatic event. Defendant undressed Jayne H. and had intercourse with her. She did not want to have sex with defendant and told him no, but she did not physically resist him. After he ejaculated, defendant pulled up his pants and left. Jayne H. described defendant's demeanor as robotic and cold.

Andrea H. lived in Phoenix, Arizona in 1980. She met defendant through a mutual friend. The two chatted, and they exchanged phone numbers. The following night, they were each invited to a different party. They decided to go out on a date together, first to defendant's office party and then to the party of Andrea H.'s friend. Defendant picked Andrea H. up at her home and drove her to his office party. After a couple of hours, they went out to defendant's car to drive to the other party. When they got into the car, defendant tried to kiss Andrea H. She rebuffed him. In response, defendant grabbed her throat and started choking her. Then, abruptly, he stopped. Defendant drove Andrea H. to her friend's party, and the two parted company. Andrea H. made it clear that she wanted nothing to do with defendant after that incident.

Less than a month later, on May 29, 1980, Andrea H. was home alone in her studio apartment at around 11:00 p.m. Defendant walked in through the unlocked front door uninvited. Andrea H. told defendant to leave. Defendant responded by pulling out a gun and holding it to her head. Defendant motioned Andrea H. over to her bed. Andrea H. told him to stop, but defendant responded that it would not hurt. Defendant undressed Andrea H. Then, he undressed. Defendant raped Andrea H. When he finished, he said to her that it wasn't so bad. She said, "Yes it was." Defendant responded by getting on top of her, straddling her, grabbing her throat, and choking her. Andrea H. tried to scream, but she could not make any noise because she was being strangled. When defendant relaxed his grip, Andrea H. screamed, so he started choking her again. After about a minute, defendant released her, got up and started getting dressed. He then told Andrea H. to stay right there and not say anything. Defendant walked across the room, and Andrea H. took the opportunity to grab her dress and run into the bathroom. She climbed out the bathroom window and ran to get help.

Peggi N. lived in Phoenix, Arizona in 1986. She worked at the same company as defendant. The two were friends, and occasionally carpooled to work together. Defendant began flirting with Peggi N. even though she was married and defendant was in a relationship. At one point, defendant told Peggi N. that he loved her. He wanted her to leave her husband for him, and he kissed her. Peggi N. was not interested in a romantic relationship with defendant. She ended up leaving her job to avoid his advances.

Peggi N.'s husband had a job delivering newspapers in the early morning hours. Her husband would leave at 2:00 a.m. and return between 5:30 am. and 7:00 am. Peggi N. recounted that, on June 15, 1986, the phone rang in the early morning hours, after her husband had left for work. At first, she did not answer the phone. She thought it might be her husband's supervisor calling because he might have been late. The phone rang again 10 minutes later. Again, she did not answer it. It rang a third time. Finally on the fourth call, she answered the phone, but there was no one on the other end of the line. A short time later there was a knock on the door. She could not see anyone through the peephole, so she went to the carport door and looked out. She saw defendant at the front door. She had not invited him to come over.

Defendant was distraught, and wanted to talk to Peggi N. He said he was having problems with his girlfriend, was losing his house, and was contemplating suicide. Peggi N. said it was not a good time to talk, but defendant insisted. Peggi N. told defendant he could not come inside the house, but she would talk to him outside. She just needed to change out of her pajamas. Peggi N. went to her room to change. As she was changing clothes, defendant suddenly walked into the bedroom, holding a gun. Defendant told her to take off her clothes. Peggi N. asked defendant if they could just talk outside, but defendant refused. She asked if they could go into the living room because her son was asleep in the next room. Defendant led her to the living room, undressed her, and had intercourse with her. She did not want to have intercourse. Afterwards, she let defendant talk to her for a while, and then he left. After defendant left, Peggi N. called the police.

Defense Case

Celia Hartnett testified for the defense as an expert witness in serological examinations. She disagreed with several of the conclusions drawn by Mr. Norris about the biological evidence. With respect to PGM testing, she testified that you cannot tell anything from the relative band strengths in the electrophoresis bands for a 1 and 2. Thus, a result of 2,1 could come from a single person with a type 2,1, or from a mixture of two people who are 1,1 and 2,2. Equal band strengths would not preclude the results having come from a mixture of two sources. She noted that, if you do not know the victim's PGM number, then you cannot exclude the possibility that the stain was contributed by either a 1,1 or a 2,2, and was commingled with the victim's biological fluid to create a 2,1 result.

Ms. Hartnett reiterated that the acid phosphatase test was just a presumptive test because other substances can give a positive result for that test. She said a positive acid phosphatase test should be followed up with a microscope examination of the sample to look for the presence of sperm, which would conclusively show the substance was semen. She added that, if there was no sperm present, a second follow up test was available in 1976, which involved testing for the presence of the P-30 enzyme. The standard procedure for testing a semen stain should have included a follow up test.

Ms. Hartnett disagreed with Mr. Norris's conclusion about the blood type of the semen donor. She would not have subtracted out the type A result from the stain due to the presence of the background reading of type A in the control areas. She opined that the presence of the type A result in the semen stain could still mean that the contributor was a blood type A or blood type O secretor, or possibly a non-secretor of any blood type. She concluded that, since the only groups that could conclusively be excluded as contributors were secretors with blood types B or AB, the possible contributors included roughly 88 percent of the population.

Proceedings Below

Before trial, among other things, defendant moved to dismiss the indictment on the ground that his due process right to a fair trial was violated because the physical evidence in Ms. Vickers's case, which had been gathered by the Mountain View police, had been lost.

Specifically, Mountain View police had collected a fitted bed sheet from Ms. Vickers's bed; a blood stained pillowcase; other bedding; underwear belonging to Ms. Vickers; physical evidence from Ms. Vickers's body including vaginal smears that contained large amounts of vaginal fluid and epithelial cells, and rectal smears containing epithelial cells; fingerprints; numerous items taken from the living room including a glass table lighter and wine bottle; items taken from Ms. Vickers's bedroom, including an electric blanket and yellow bedspread; and hair samples. Defense counsel argued that all these things could have been tested and would exculpate defendant.

Moreover, defense counsel asserted that the District Attorney did not charge defendant in 1976. Rather, the District Attorney brought a probation violation charge against defendant. Numerous witnesses testified at the probation violation hearing. According to defense counsel, some of the same witnesses were on the prosecution's witness list. One of the witnesses was someone who was in a relationship with defendant. In 1976, this person told the police that although defendant was sexually aggressive, he was not physically aggressive. More recently, this person told the District Attorney that defendant had raped her and she testified to this at the probation violation hearing. Defense counsel argued that had this case been charged in 1976, defendant would have had the transcript of the hearing to impeach the prosecution's current witnesses.

Defense counsel indicated that a number of witnesses in Ms. Vickers's case were unavailable to testify. Of specific importance, Bruce Gundlach, Carl Stanley and Terry Braswell had all died in the intervening years. As to their importance to defendant's case, defense counsel noted that Mr. Gundlach was one of Ms. Vickers's neighbors. He arrived home about 10:15 pm. on the night of the murder and heard nothing out of the ordinary. Defense counsel contended that this helped to defeat the prosecution's theory that a violent rape had occurred in Ms. Vickers's apartment that night.

As to Mr. Stanley, defense counsel pointed out that he was the on-again, off-again boyfriend of the victim. According to another witness, Lynn Berkstrom, Mr. Stanley and Ms. Vickers had numerous arguments. Further, according to Ms. Lujan, Ms. Vickers's downstairs neighbor, there were often noises coming from the victim's apartment that sounded as if someone was being pushed around. Defense counsel argued that these facts merited the consideration of Mr. Stanley as a suspect in Ms. Vickers's murder. However, the defense had no evidence that the police ever interviewed Mr. Stanley and he believed that this alternative theory had been ignored. Defense counsel argued that Mr. Stanley's death made it impossible to interview him in an attempt to discover if he was responsible for Ms. Vickers's death or at least build evidence to make a third-party culpability defense.

As to Ms. Braswell she knew defendant around the time of Ms. Vickers's death. Although she had said some things harmful to defendant's defense, she would have served to impeach another prosecution witness. That witness, Jayne H., claimed to be Ms. Braswell's roommate when she met defendant. Jayne H. now denied being her roommate. Accordingly, defense counsel argued that if Ms. Braswell was available she could have impeached Jayne H.; an important witness who claimed that defendant raped her.

Finally, defense counsel asserted that several of the prosecution witnesses had no independent recollection of things that they said back in 1976. For instance Ms. Victory allegedly told the police in 1976 that defendant had made derogatory comments about Ms. Vickers and that he did not like her. However, during her grand jury testimony Ms. Victory could not recall saying this and attempts to refresh her recollection failed. Nevertheless, she testified that she trusted the statement she made to the detective back in 1976. Accordingly, defense counsel argued that Ms. Victory's memory had "clearly diminished over the time to the point that she has no independent recollection of important facts." Defense counsel contended that without her memory, he could not effectively cross-examine or challenge the basis of Ms. Victory's statement.

Furthermore, Ms. Ebertowski, defendant's ex-wife, testified before the grand jury that defendant had asked her for an alibi. However, when she was asked whether he had made a statement about why he needed the alibi or what was causing the police investigation she indicated that she could not remember. Accordingly, defense counsel argued that this damaging piece of testimony was beyond cross-examination because Ms. Ebertowski could not independently remember the circumstances under which the request was made.

As to the incident involving Andrea H., no physical evidence existed in that case. Accordingly, defense counsel argued that it would have been helpful in defending against the use of this incident as Evidence Code 1108/1101 evidence because defendant was acquitted of the offense involving Andrea H. in a jury trial at a time when the evidence existed.

Furthermore, defense counsel contended that numerous witnesses were missing who could have been helpful to the defense. Specifically, two officers who testified at defendant's trial concerning the Howard incident and the assisting nurse who would have been able to provide information relating to Andrea H.'s mental state at the time of the incident and who could testify to the absence of marks on Andrea H.'s neck.

As to the incident involving Peggi N., the evidence that was collected included a rape kit; a Pepsi bottle that Peggi N. indicated was handled by the suspect; and photographs taken by police at the scene. Defense counsel argued that the rape kit could have been used to demonstrate a lack of trauma or have pointed to a different suspect. Counsel pointed out that the sexual assault report prepared for the case showed no indication of trauma; a wet mount collected showed the presence of sperm and serological samples had been obtained. Counsel noted that none of the evidence presently existed. Counsel contended that although defendant had pleaded guilty at the time, nonetheless, he was entitled to challenge the facts of this case at the upcoming trial because at the time he was facing a "stiff sentence" and pleaded guilty in exchange for a sentence of one year in county jail and probation.

Defense counsel argued that the unavailability of the investigating officers prevented him from eliciting testimony about Peggi N.'s attitude in reporting the crime. One of the officers noted in his report that Peggi N. reluctantly called the police and that it was her husband's idea to call. In addition, defendant's ex-wife had provided him with an alibi at the time. Defendant's ex-wife indicated that she had been arguing with defendant and called the "Crime Stoppers" telephone number during this argument. A defense investigation revealed that "Crime Stoppers" did not keep records of these calls. If the call was made, there was no way to prove it.

Finally, the defense was unable to locate Mark Hall, a criminalist with the Phoenix Police Department. Mr. Hall had compared the print found on the Pepsi bottle to that of defendant and found it did not match. Defense counsel argued that Mr. Hall was a key witness whose testimony would have suggested that defendant was not Peggi N.'s assailant.

As to the incident involving Maureen E. defense counsel pointed out that the evidence that was collected had been destroyed. Thus, there were no medical records or sexual assault kit to assist the defense in determining the identity of the perpetrator or assuming it was defendant the "intent he possessed, i.e. was it a sexual crime?"

While the jury was deliberating in defendant's murder case the court considered the motion to dismiss the indictment on the ground that defendant's due process right to a fair trial had been violated. After hearing from counsel, the court found that the prejudice to defendant was minimal and there was a reasonable justification for the delay. The court ruled there was no violation of due process and denied defendant's motion to dismiss.

Discussion

Due Process Right to a Fair Trial

In denying defendant's motion to dismiss the indictment, Judge Condron explained her understanding of defendant's motion as follows: "Defendant seeks dismissal of the indictment in this case based on a denial of due process, that is, his ability to receive a fair trial due to the loss of physical and other evidence following a significant preaccusation delay."

Judge Condron went on to address the loss of each piece of evidence. "First, defendant alleges that the loss of certain physical evidence obtained by the Mountain View Police Department during the investigation of this case in 1976 creates prejudice, specifically, a fitted bed sheet, pillowcase, other bedding, underwear, vaginal smear, fingerprint cards and hair samples. Defendant argues there is a prejudice that warrants dismissal.

"I note at the outset that the loss of that evidence in this case appears to have occurred based on all the evidence presented at the time the Mountain View Police Department was relocated and immediately prior to the implementation of a bar code system of cataloging evidence... in late 1980. It was not degraded by the passage of time nor was it destroyed as some part of scheduled disposition in inactive cases.

"In fact, the nearly 30 year delay in this case is in no way causally related to the evidence's mysterious disappearance but on the prosecution's failure to provide evidence in its possession as addressed in the Trombetta and Young blood cases and in the prior ruling of this Court.

California v. Trombetta (1984) 467 U.S. 479 (104 S.Ct. 2528), Arizona v. Young blood (1988) 488 U.S. 51 (109 S.Ct. 333). Before trial, defendant brought a Trombetta motion to dismiss the indictment on the ground that the prosecution had failed to preserve exculpatory evidence. Following an evidentiary hearing, in denying the motion, Judge Condron found that there was no evidence of bad faith. Rather, she found the evidence was "clearly lost due to some degree of negligence in maintaining physical property for a period of nearly 20 years on an inactive case file. [¶] However, there is no question that even that negligent loss of evidence has to be evaluated in the context of the possible prejudice to the defendant particularly with respect to exculpatory [sic] evidence that the People might seek to introduce against him at the trial. Specifically, the issue had been raised with regard to the bed sheet and the pillowcase. [¶] No other arguments have been made regarding any of the other evidence. No evidence was presented to the court from which this court could find that the other evidence was even potentially exculpatory.... [¶] With respect to the bed sheet, the alleged exculpatory value of that sheet is that the presence of the physical sheet, and the ability to test it again and presumably come out with the same result because a different result... would be inculpatory to the defendant... the benefit of that is not lost because the test results are what they are."

"And although the case of People versus Hartman cited by the defendant does appear to be on point in many cases, actual prejudice due to the lapse of time and loss of evidence was merely presumed and never addressed."

People v. Hartman (1985) 170 Cal.App.3d572.

As to the serological evidence, Judge Condron was skeptical that the evidence could still be tested to exculpate defendant. Further, she determined that there was no "actual prejudice to the defendant in the inability to conduct further serological or DNA testing." Judge Condron concluded that in the context of the entire body of evidence presented, "the completely speculative nature of the serological evidence was relatively insignificant. The prejudice, if any, is minimal."

As to the prints and hair samples that were lost, Judge Condron found that at most they could "indicate that persons other than defendant were in the apartment at some time or that the defendant was in the apartment at some time." Accordingly, Judge Condron concluded that there was no prejudice shown in the loss of this evidence.

Judge Condron found that there was no dimming of memories of the witnesses that saw defendant at the apartment complex on the day before Ms. Vickers's murder. Nor was there any prejudice from the fact that the original photographic line-up, from which they had identified defendant, had been lost.

As to the Evidence Code section 1108/1101, subdivision (b) evidence, Judge Condron accepted that several people had died since the incidents. However, she found that there was "no indication other than that based on pure speculation that any of the proffered or suggested now lost evidence could in any way have assisted the defendant in the presence [sic] of a defense in this case."

In conclusion, Judge Condron found that "with the exception of the evidence of the fitted bed sheet found beneath the victim in this case, no prejudice has been shown as to the loss of any of the claimed evidence, no determination of failure of witnesses' memory or loss of witnesses who are in any way material to the prosecution or defense of this case."

Turning to the justification for the delay, Judge Condron found that although in 1976 there was "a strong suspicion of the guilt of the defendant in this case, [it] was not sufficient... to proceed to a trial and to be convinced that [the prosecution] would succeed in convincing a jury beyond a reasonable doubt of the guilt of the defendant." Judge Condron found that the serological evidence was the same at trial as it was back in 1976. However, in the intervening years there were "at least two additional incidents which were similar enough in nature that they might be admissible in a trial of this matter. [Investigators] discovered that the defendant had made admissions of having killed a woman in California and gotten away with it, having been arrested for it and released based on insufficiency of the evidence, and there was no other such situation in the defendant's criminal history, and that in combination with the preexisting evidence, resulted in the district attorney's [sic] making a determination to proceed with the prosecution in this case." Judge Condron continued, "The bottom line is that the People made a determination, one with which this Court will not interfere unless it was patently unreasonable at the time not to proceed with the prosecution. That after the development of significant other evidence and the defendant's conduct in the intervening years and its determination in conjunction with the prior offenses, and I mean prior to the Vickers' murder, turned a case that was otherwise relatively marginal into one that was virtually overwhelming.... [¶] So there is a reasonable justification for the delay in this case."

In balancing the prejudice to defendant against the justification for the delay, Judge Condron noted that it was "with great reluctance" that she followed the "case of People versus Hartman." Judge Condron found the case not to be dis positive "on the issue of the causal relationship...." Ultimately, Judge Condron found that "All of the cases that address the loss of physical evidence with respect to the question of prejudice are clear in that the purely speculative nature of that loss is not sufficient to demonstrate actual prejudice such as is required here, but most certainly in this case where there is no indication or evidence... that the absence of the presence of sperm would preclude the defendant from being the contributor of that stain [on the bed sheet]." Judge Condron continued, "There is no evidence that presence of sperm would eliminate the defendant as either, A, a possible contributor of that stain, or B, even if not a contributor of that stain, that it would eliminate him as the perpetrator of this crime, or that it would in any way rebut the otherwise reasonable inferences that there was a burglary and attempted or completed sexual assault and a murder and that defendant was the perpetrator thereof. [¶] The prejudice in conjunction with all the other known evidence, that is, the similarity of other sexual assault strangulation cases in which the defendant is known to be the perpetrator, the timing of this with respect to the defendant's contact, his demonstrated interest in the victim, her rejection of him and his own admissions of culpability in this offense demonstrate the minimal prejudice, and when weighed against the justification for the delay in the prosecution until such evidence was sufficient to create a reasonable anticipation that a jury could find beyond a reasonable doubt that the defendant was guilty thereof, I find that there is no denial of due process and the motion to dismiss is denied."

In his appeal in this court, defendant contended that because the quarter-century delay in prosecuting this case resulted in the loss of all physical evidence in the case, he was denied his due process right to a fair trial and the trial court erred in refusing to dismiss the information.

Defendant argued that the loss of the evidence was "monumental." He asserted that "absolutely everything" that was seized from Ms. Vickers's apartment was lost or destroyed because of the passage of time. This loss was critical to his defense because there was no physical evidence and no eyewitnesses to connect him to the homicide or to his presence in Ms. Vickers's apartment.

Since our original discussion in this case of this issue, the California Supreme Court has clarified that " '[T]he right of due process protects a criminal defendant's interest in fair adjudication by preventing unjustified delays that weaken the defense through the dimming of memories, the death or disappearance of witnesses, and the loss or destruction of material physical evidence.' [Citation.] Accordingly, '[d]elay in prosecution that occurs before the accused is arrested or the complaint is filed may constitute a denial of the right to a fair trial and to due process of law under the state and federal Constitutions. A defendant seeking to dismiss a charge on this ground must demonstrate prejudice arising from the delay. The prosecution may offer justification for the delay, and the court considering a motion to dismiss balances the harm to the defendant against the justification for the delay.' [Citation.]" (People v. Nelson (2008) 43 Cal.4th 1242, 1250 (Nelson).)

The Nelson court explained that " '[a] claim based upon the federal Constitution... requires a showing that the delay was undertaken to gain a tactical advantage over the defendant. ' [Citations.]" (Nelson, supra, 43 Cal.4th at p. 1251.) However, "under California law, negligent, as well as purposeful, delay in bringing charges may, when accompanied by a showing of prejudice, violate due process." Furthermore,"whether the delay was negligent or purposeful is relevant to the balancing process. Purposeful delay to gain an advantage is totally unjustified, and a relatively weak showing of prejudice would suffice to tip the scales towards finding a due process violation. If the delay was merely negligent, a greater showing of prejudice would be required to establish a due process violation." (Id. at pp. 1255-1256.) Prejudice is never presumed. (Id. at p. 1250.)

The presence or absence of actual prejudice "is a factual question to be determined by the trial court." (People v. Hill (1984) 37 Cal.3d 491, 499.) We review the trial court's determination that a defendant has failed to carry the burden of demonstrating actual prejudice for sufficiency of the evidence. The trial court's determination must be upheld if supported by substantial evidence. (Ibid.)

In this case, defendant demonstrated some prejudice due to the precharging delay. We agree with the trial court's prejudice analysis in that regard. As the trial court noted, with the exception of the evidence of the fitted bed sheet found beneath the victim in this case, no prejudice can been shown as to the loss of any of the claimed evidence. At most, the physical evidence could have shown that at some point in time someone was in Ms. Vickers's apartment. As to witnesses that were lost or faded memories of those witnesses that testified, some of this evidence would have been cumulative of other evidence in the case. Furthermore, defendant's speculation that some of the evidence that missing witnesses could have supplied would have been helpful to his defense is just that—speculation. However, we proceed, as did the trial court, on the assumption that defendant demonstrated minimal prejudice from the delay.

Turning to the other side of the balancing test, justification for the delay was relatively strong. The prosecution presented evidence in this case, as the prosecution did in Nelson, that "[t]he delay was investigative delay, nothing else. The police may have had some basis to suspect defendant of the crime shortly after it was committed in 1976." (Nelson, supra, 43 Cal.4th at p. 1256.) However, the complete body of evidence relating to the crime did not exist in 1976. That is, the police did not have enough evidence to charge defendant until 2001 when they discovered two additional witnesses, Andrea H. and Peggi N., who told them of incidents of rape that had occurred in 1980 and 1986. Moreover, it was not until 2001 when the case was reopened that the evidence of defendant's admissions to his third wife Patricia Schneck and to his fourth wife, Linda Blainey came to light.

Thus, it was not until 2001 that the prosecution believed it had sufficient evidence to charge defendant. "A court should not second-guess the prosecution's decision regarding whether sufficient evidence exists to warrant bringing charges. 'The due process clause does not permit courts to abort criminal prosecutions simply because they disagree with a prosecutor's judgment as to when to seek an indictment.... Prosecutors are under no duty to file charges as soon as probable cause exists but before they are satisfied they will be able to establish the suspects guilt beyond a reasonable doubt.... Investigative delay is fundamentally unlike delay undertaken by the government solely to gain tactical advantage over an accused because investigative delay is not so one-sided. A prosecutor abides by elementary standards of fair play and decency by refusing to seek indictments until he or she is completely satisfied the defendant should be prosecuted and the office of the prosecutor will be able to promptly establish guilt beyond a reasonable doubt.' [Citations.]" (Nelson, supra, 43 Cal.4th at p. 1256.) Indeed, many legitimate reasons exist why the government might delay bringing charges even after it has sufficient evidence to convict. (Ibid.)

On remand to this court, defendant points out that the 1980 incident, involving Andrea H., and the 1986 incident, involving Peggi N., could have been discovered by the police in the intervening years. Further, as to the 1986 incident, involving Peggi N., he was prosecuted and entered a guilty plea to one charge. Accordingly, that case and the underlying facts were a matter of public record for 15 years.

Defendant filed a supplemental brief pursuant to California Rules of Court, rule 8.200(b).

We may not second-guess how the state allocates its resources or how law enforcement agencies could have conducted an investigation in any given case. The difficulty in allocating scarce prosecutorial resources is a valid justification for delay. "It is not enough for a defendant to argue that if the prosecutorial agencies had made his or her case a higher priority or had done things a bit differently they would have solved the case sooner." (Nelson, supra, 43 Cal.4th at p. 1257.)

Accordingly, in defendant's case, balancing the prejudice defendant has demonstrated against the strong justification for the delay, we find no due process violation. The delay here was not for the purpose of gaining an advantage over the defendant. Thus, there was no federal due process violation. Moreover, the record does not establish even prosecutorial negligence. The delay was the result of insufficient evidence to identify defendant as a suspect. When new evidence came to light in 2001, which turned an extremely weak case against defendant into a virtually overwhelming case, the district attorney's office proceeded promptly to bring defendant to trial.

Defendant argues that his case is similar to that of the defendant in People v. Boysen (2007) 165 Cal.App.4th 761 (Boysen). In Boysen, the trial court found that the defendant was prejudiced by a 24-year delay between a murder and its prosecution. After weighing the prejudice against the reasons for the lengthy delay, the trial court dismissed the criminal charges. (Id. at p.771.) The Fourth District Court of Appeal affirmed. The court concluded that the trial court's finding of actual prejudice was supported by substantial evidence; namely, that the delay resulted in the loss of the most important alibi evidence. (Id. at pp. 778-780.)

Nevertheless, as the appellate court noted, what had changed in the intervening 24 years was "not the evidence but the willingness to proceed." (Boysen, supra, 165 Cal.App.4th at p. 781.) To put it another way, there was no justification for the delay. Accordingly, we find Boysen distinguishable from this case because here there was strong justification for the delay.

Finally, we note in passing that one issue remains that we did not address in our original opinion in this case. That is, appellant's argument that there was insufficient evidence to sustain his conviction for first degree murder. That argument is now foreclosed in light of the Supreme Court's opinion in People v. Story, supra, 45 Cal.4th 1282.

Disposition

The judgment is affirmed.

WE CONCUR: RUSHING, P. J. PREMO, J.


Summaries of

People v. Story

California Court of Appeals, Sixth District
Jul 7, 2009
No. H030020 (Cal. Ct. App. Jul. 7, 2009)
Case details for

People v. Story

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. GARY DEAN STORY, Defendant and…

Court:California Court of Appeals, Sixth District

Date published: Jul 7, 2009

Citations

No. H030020 (Cal. Ct. App. Jul. 7, 2009)