Opinion
2d Crim. B323590
04-12-2024
THE PEOPLE, Plaintiff and Respondent, v. HORACE VAN VAULTZ, JR., Defendant and Appellant.
Spolin Law, Aaron Spolin and Jeremy Cutcher for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Superior Court County of Los Angeles No. BA482647 George G. Lomelli, Judge
Spolin Law, Aaron Spolin and Jeremy Cutcher for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
GILBERT, P. J.
A jury convicted Horace Van Vaultz, Jr. of murdering Selena Keough (Pen. Code, § 187, subd. (a)) with the special circumstance that the murder was committed while the defendant was engaged in rape and sodomy. (§ 190.2, subd. (a)(17)(C), (D).) The jury also convicted Vaultz of murdering Mary Duggan with special circumstance that the murder was committed while the defendant Vaultz was engaged in rape. (§ 190.2, subd. (a)(17)(C).) The trial court sentenced Vaultz to consecutive life terms without parole. We affirm.
All statutory references are to the Penal Code unless otherwise indicated.
FACTS
Murder of Selena Keough
In July 1981 at approximately 2:00 a.m., Kenneth Byrne was driving home from work when he noticed a man and a woman talking. The man was approximately six foot three inches tall, very well built and either light skinned or Mexican. The man's car appeared to be a shiny gold colored Cadillac.
A few minutes later Byrne saw the same woman walking up the street. She was crying and carrying her shoes in her hand. Byrne asked if she needed help. She told him to "fuck off," and he drove away. A few moments after that, Byrne saw the same woman talking to the same man.
Later that same day Keough's body was discovered near the location where Byrne had seen the man and woman talking. Keough had bruises on her face and ligature marks around her neck. She was wearing only a shirt. Her legs were spread apart, and her underwear was around her left ankle.
Byrne read a newspaper account and called the police to tell them what he saw. The police interviewed two other men who recalled seeing Keough with an African American male who was driving an older yellow Cadillac.
The coroner performed an autopsy and a sexual assault examination. A forensic pathologist concluded Keough's death was caused by strangulation with a ligature such as a rope or purse strap during a sexual assault. Sperm was found in Keough's vagina and anus, mainly the anus, and there were tears in her vagina and anus.
In 2020, a DNA analysis was made of the sperm taken from Keough's body. The DNA matched Vaultz's DNA.
Murder of Mary Duggan
In June 1986, the police discovered Mary Duggan's naked body in the trunk of her car. Bloody tissue was in her throat and a gag made of knitted fabric was in her mouth. The same fabric was tied around her neck and was used as a ligature to strangle her. Sperm was found in Duggan's vagina.
The DNA testing of the sperm matched with the DNA of the sperm found in Keough's body. The same DNA was found on the gag in Duggan's mouth. Eventually the DNA found in both women was matched with Vaultz's DNA.
Uncharged Murder of Janna Rowe
In December of 1986, Ventura police found the naked body of Janna Rowe under plywood scraps. Her ankles were bound with ligatures made of white cloth. Semen was found in Rowe's vagina, anus, and mouth. Her neck was bruised and damaged. The medical examiner determined that she died by strangulation.
Rowe owned a yellow Datsun vehicle. The police found the Datsun about a mile from the Conejo Inn motel in Thousand Oaks. The motel manager said he rented a room to Vaultz on December 24, 1986. The manager saw a yellow Datsun was parked improperly. Vaultz told the manager that the car belonged to a friend, and that he would move it. The manager saw Vaultz move the car. The manager never saw anyone else with the car.
The police went to the home of Vaultz's mother. Vaultz was present. The police obtained a warrant to search the home. They discovered a unique pendant that Rowe's father had made for her in a jewelry box underneath some clothing. It had Rowe's name on the back.
Vaultz was arrested and tried for Rowe's murder. A jury found him not guilty.
In 2019, DNA evidence showed that the DNA found in the sperm from Rowe's body matched Vaultz's DNA.
Attempted Murder of Wendi Wall
In February 1984, Wendi Wall and her friend went to a bar in Garden Grove. A man who identified himself as Randdi Stone walked up and spoke to Wall's friend. Wall later identified Stone as Vaultz.
Wall and her friend left the bar and drove to her friend's apartment. Vaultz was there waiting in the living room. Wall's friend said she was tired and was going to bed. Wall and Vaultz left the apartment. Wall's car was parked next to Vaultz's Cadillac.
As Wall was getting into her car, Vaultz pushed her over, put one leg into the car and tried to kiss her. Wall was very frightened and told Vaultz no. Vaultz pushed her on her back. She resisted and told him to stop, but he would not relent. Vaultz threatened to kill her if she screamed. He said, "I have killed before and I will kill again. I was in the Marines." He pulled the strap off her purse and began to choke her with it. He grabbed her by the strap around her neck and pulled her out of her car, saying there was more room in his car. Wall told him that she had to use the bathroom. He led her to some bushes. When Vaultz let go of Wall's arm, she fled to her friend's apartment. Her friend let her in. Her friend asked Wall not to notify the police.
The next day Wall told her mother what had happened. Her mother called the police. The police reported that Wall had swelling and bruising on her neck and bruising on her left arm.
Former Wife
Diane Trevino testified that she met Vaultz in 1981 or 1982. They married in 1985 or 1986. Vaultz used various fake names including Randdi Stone and his nickname is Horace the Horrible.
Vaultz was physically abusive toward Trevino. He raped her several times. At first Trevino would resist. But she realized that her resistance stimulated him, so she played dead to get it over with. Vaultz choked Trevino during intercourse at least five times. He said he learned to strangle people when he was in the military. On one occasion while raping her, he said, "I just killed two bitches because of you." He also said he used a purse strap to strangle someone. Trevino searched their apartment and found a broken purse strap in a closet.
Trevino also testified that Vaultz told her about his former girlfriend, S.H. Vaultz indicated that he put a gun in S.H.'s mouth and that Trevino" '[had] it easy.' "
Defense
Keough and Duggan
Vaultz testified on his own behalf. He said that he did not remember Keough or Duggan. He claimed to have had sex with over 200 women and could not remember them all. He said he could not give an answer for how his DNA got on a cloth stuffed in Duggan's mouth.
Rowe
Vaultz said he and Rowe were friends. He rented Rowe a motel room on December 24 because she needed a place to stay. Vaultz said that in the motel room, Rowe made him ejaculate with her hands. He claimed that Rowe masturbated, placing her finger in her vagina. He gave her some cocaine, then he left the motel room. Vaultz said Rowe gave him a broach or medallion to hold onto. He claimed that he did not see Rowe from December 24 through December 28.
Vaultz admitted that he moved Rowe's car from the motel parking lot. He also admitted that he lied to the police when he denied moving Rowe's car. Vaultz said during that time he was selling cocaine and was "deceptive about a lot of things."
Wall
On one occasion, Vaultz and Trevino were at a bar. Vaultz testified that Trevino attacked him and had to be removed by bouncers. Trevino and Vaultz went home where they continued to argue. Vaultz returned to the bar to get away from Trevino. Back at the bar, Vaultz met Wall and her friend. Wall's friend asked Wall if they could leave because her back hurt. Vaultz said that he left by himself.
Vaultz testified that before he got to his car, Wall called out to him. She kissed him and they started kissing each other. They went to his car. Inside the car, he started to undo her blouse. She hit his face. He immediately grabbed her throat. Wall said, "Okay, okay, we can do something." Vaultz said that he thought, "she thinks I'm trying to, you know, rape her or something." Vaultz said he got out of the car, and Wall returned to her friend's apartment.
Vaultz denied he tried to kill Wall or that he told her he was in the military. He pled no contest to assault with intent to commit great bodily injury.
S.H.
Vaultz admitted that he put a gun in the face of a former girlfriend, S.H. Initially Vaultz denied that he put a gun in her mouth. Then he admitted it was possible.
The prosecutor asked, "So would it be safe to say that you've been lying to this jury for the last day and a half?" Vaultz answered, "I'm saying it's a lot more than what's been projected."
Trevino
Vaultz said he and Trevino were married in 1985. He admitted to choking her, but claimed it was at Trevino's request because it brought her to orgasm. Vaultz denied that he told Trevino that he killed two women because of her. He also claimed that he never beat up Trevino.
Vaultz addressed Trevino's testimony about finding a purse strap in their apartment. He said that Trevino found the purse strap shortly after they moved into the apartment. He claimed that it must have come from a closet shelf they neglected to look at when they moved in. He denied that he used the strap to strangle women.
In 1995, Vaultz was convicted of corporal injury to a spouse or cohabitant. (§ 273.5.)
DISCUSSION
I. Prosecutorial Misconduct
Vaultz contends the prosecutor committed numerous acts of misconduct.
"When a prosecutor's intemperate behavior is sufficiently egregious that it infects the trial with such a degree of unfairness as to render the subsequent conviction a denial of due process, the federal Constitution is violated. Prosecutorial misconduct that falls short of rendering the trial fundamentally unfair may still constitute misconduct under state law if it involves the use of deceptive or reprehensible methods to persuade the trial court or the jury." (People v. Panah (2005) 35 Cal.4th 395, 462.)
To preserve a claim of prosecutorial misconduct the defendant must make a timely objection, make known the basis of the objection and ask the trial court to admonish the jury. (People v. Panah, supra, 35 Cal.4th at p. 462.) There are two exceptions to this rule: (1) the objection or admonishment would have been futile, and (2) the admonition would have been insufficient to cure the harm. (Ibid.) Forfeiture for failure to request an admonition will also not apply where the trial court immediately overruled the objection to the misconduct, leaving the defendant no opportunity to request an admonition. (Ibid.)
Harmless Error
None of the alleged misconduct rises to the level of federal constitutional error. Thus, in assessing prejudice, we apply the standard in People v. Watson (1956) 46 Cal.2d 818. We ask whether it is reasonably probable that the defendant would have obtained a more favorable result in the absence of the error. (Id. at p. 836.) In this case, however, the evidence against Vaultz is so overwhelming that the alleged misconduct is harmless by any standard.
Vaultz's DNA was found inside three women who were strangled to death with a ligature during a sexual assault. Vaultz did not challenge the DNA evidence. His defense counsel admitted that Vaultz's DNA was found inside the three dead women. Vaultz strangled a fourth victim with a purse strap during a sexual assault, but fortunately she managed to escape. A purse strap was found in Vaultz's apartment and jewelry belonging to one of the deceased victims was found in Vaultz's mother's home. A car belonging to one of the deceased victims was improperly parked in a hotel parking lot. When the hotel manager complained, Vaultz, not the car's owner, moved the car.
Vaultz's testimony was anything but credible. When three women who were strangled to death were found to have the defendant's DNA inside them, his response of not remembering two of them, is not the most convincing evidence. One of the victims whom Vaultz allegedly did not remember had a cloth containing his DNA in her mouth. Vaultz had no explanation for how it got there. Vaultz did remember the third victim, Rowe. He admitted that he was alone with Rowe in a hotel room shortly before her body was found; that he, not Rowe, drove her car from the hotel; and that he lied to the police about driving her car. Vaultz admitted that he choked Wall and that he choked one of his former wives a number of times. He also admitted that he put a gun to the head of another girlfriend and possibly put the gun into her mouth. Vaultz obviously has a problem with violence against women.
Given the insurmountable evidence against Vaultz, no miscarriage of justice occurred.
II. Prosecutor's Conduct During Trial
Comment on Transcripts
While defense counsel was passing out transcripts to the jury, the prosecutor said within earshot of the jury," 'He's wasting the jury's time with these excerpts.'" Defense counsel did not object immediately. Instead, he thought about it over the weekend. On Monday defense counsel stated: "I was standing with my back to the jury and so I know they heard it, at least the front people. When it affects Mr. Vaultz's right to a fair trial, then I have an issue. I clearly heard it. I thought it was inappropriate. I'm asking the court to take control of it. I'm thinking it's out of line."
The prosecutor admitted she made the comment, but she said she was talking to her co-counsel. The trial court stated, "Nonetheless, out of the abundance of caution, comments from either side, do not make them out loud."
Defense counsel waived the objection by failing to request that the trial court admonish the jury. The prosecutor could have told the jury as much in closing argument. In addition, the jury was instructed that it must decide the case on the evidence, and that the attorneys' comments are not evidence. We presume the jury followed the instruction. (People v. Bonin (1988) 46 Cal.3d 659, 699.)
Temporary Restraining order (TRO)
On cross-examination of Trevino, defense counsel asked if when she filed for divorce, she ever sought a temporary restraining order against Vaultz. Trevino answered no. Then defense counsel questioned Trevino as follows: "[Defense Counsel]: And in your divorce, isn't it true that you actually had a temporary restraining order against you from assaulting him? [Trevino]: I don't remember that at all. I don't think that's true. [Defense Counsel]: You had a temporary restraining order against you for harassing, molesting, assaulting, disturbing the peace of Horace, as well as him against you. [Trevino]: No, I don't think that's true. I don't recall that at all."
The prosecution asked for a sidebar. At the sidebar the prosecutor objected that there was no TRO and the defense counsel was trying to make it seem that there was. The prosecutor demanded to see the document on which defense counsel was relying. The court took a recess and allowed the prosecutor to view the document.
The document was not a TRO. It was part of the parties' divorce papers containing language ordering both parties not to harass or assault the other party. The prosecutor's objection was entirely proper. There was no TRO. There was no prosecutorial misconduct.
Vaultz's reliance on Family Code section 6305 is misplaced. The section provides: "The court may not issue a mutual order enjoining the parties from specific acts of abuse described in Section 6320 (a) unless both parties personally appear and each party presents written evidence of abuse or domestic violence and (b) the court makes detailed findings of fact indicating that neither party acted primarily in self-defense." Trevino testified the parties were divorced in 1986. Section 6305 was added to the Family Code in 1993. (Stats. 1993, ch. 19, § 154.) Its predecessor statute, former Civil Code section 545.5, was not added until 1990. (Stats. 1990, ch. 935, § 4.) The statutes were apparently enacted because some courts were routinely adding mutual restraining orders to their dissolution decrees.
Moreover, Vaultz's issue appears to be that the prosecutor accused him of misconduct. But the accusation was outside the presence of the jury. It could not have affected the verdict. There was no prejudice. (See People v. Williams (2009) 170 Cal.App.4th 587, 630 [defendant has not shown how the prosecutor's statement made outside the presence of the jury could have affected the outcome].)
Vaultz makes additional allegations of prosecutorial misconduct that occurred outside the presence of the jury. We need not discuss them. They could not have affected the outcome.
III. Prosecutor's Conduct on Cross-Examination of Vaultz (a)
During cross-examination of Vaultz, the prosecutor asked questions and made such comments as: "Do you think [the jurors are] all a bunch of morons?" "[W]e'll talk about some of the other lies." In response to one of the prosecutor's questions, Vaultz described his sexual interaction with Rowe. The prosecutor commented, "I'm so happy that came out of your mouth and not mine." The prosecutor asked Vaultz to tell her the point at which there are so many unexplained coincidences that he would agree his story sounds untruthful.
Although we cannot condone the prosecutor's remarks, given the state of the evidence against Vaultz, any misconduct was harmless.
(b)
Part of Vaultz's defense was that he had sex with numerous women and could not remember them all. In an effort to prove this point, defense counsel showed the jury pictures of Vaultz having sex with a number of women. One of the women was Vaultz's former wife who had died. The prosecutor asked Vaultz, "Do you think . . . showing pictures of women are dead in intimate positions is respectful?" Vaultz argues that the prosecutor improperly suggested he killed the women. But the prosecutor suggested no such thing. The prosecutor simply suggested that Vaultz had no respect for women. There was no misconduct.
(c)
The prosecutor asked Vaultz about an incident where he pointed a gun at former girlfriend. The prosecutor asked Vaultz: "So going and getting a gun and holding it up to somebody's head, that takes time and thinking; right? [Defense Counsel]: Your Honor, I'm going to object. It misstates the testimony. He said he pointed it at her; he didn't say at the head. The Court: Right. [Prosecutor]: I'll ask it. Where did you say you pointed the gun at her? [Vaultz]: It was to her face. [Prosecutor]: Did you ever put the gun in her mouth? [Vaultz]: I don't remember. [Prosecutor]: So you might have? Is that your answer here today? [Vaultz]: It's possible. [Prosecutor]: So not only did you put a gun up to her face, but you might have put a gun in her mouth? [Vaultz]: It's possible."
Vaultz argues the prosecutor falsely indicated he lied and that the prosecutor misinterpreted the evidence when she said: "So when I asked you about [S.H.], you weren't straight up with the jury yesterday, you just said you pointed a gun at her.' Then your attorney said you never pointed it at her head, and you're telling us that you did. Now, suddenly, on cross-examination, you're admitting you put a gun in her mouth, maybe. How do you forget something like that? What's wrong with you?"
The prosecutor did not misrepresent the evidence. Initially Vaultz admitted that he pointed a gun at S.H., then he admitted he pointed the gun at her face, then he admitted he possibly put the gun in her mouth. Vaultz's testimony was evolving. He was not being "straight up with the jury." The only possible misconduct was the prosecutor's question, "What's wrong with you?" Given the state of the evidence that does not constitute reversible misconduct.
(d)
In another instance, the prosecutor asked Vaultz if a witness lied about being at a motel on a certain date. Vaultz answered, "She was doing coke too." The prosecutor replied, "Okay. Another excuse." The comment was inappropriate, but it does not constitute a basis for reversal.
(e)
On direct examination, Vaultz's counsel asked if on January 31, 1987, he returned to the Conejo Inn motel where he had stayed with Rowe. Vaultz answered that he could not recall. Vaultz's counsel showed him a motel registration form and asked if he filled it out. Vaultz answered yes, but he explained that he did not complete the form. He claimed that he did not check into the motel. He admitted, however, that he filled out the form with a false name.
On cross-examination, the prosecutor asked Vaultz whether he said the motel registration looks to be made-up. Vaultz answered that he did not recall saying that. The prosecutor accused Vaultz of changing his testimony.
On direct examination, Vaultz did not use the term "made-up." But a document filled out with a false name may well be considered made-up. In any event, the case did not turn on the validity of any particular document or whether Vaultz changed his testimony about it. The case turned on DNA evidence. Vaultz did not challenge the DNA evidence. Far from it, his counsel admitted in closing argument that Vaultz's DNA was found in all three murdered women. Any misconduct was harmless.
(f)
Vaultz accuses the prosecutor of mischaracterizing his testimony about the reason for his divorce. Vaultz testified that his wife, Trevino, divorced him because her father did not like her being with a black man and she was afraid of being disinherited. On cross-examination, the prosecutor stated, "[T]hat's not what you said, actually sir." In fact, it was what he said. But the case is not about Vaultz's divorce. Any misconduct was harmless.
(g)
Defense counsel successfully moved to exclude evidence that Vaultz peeped over a fence into a residence where a teenage girl was living with her mother. Nevertheless, the prosecutor asked Vaultz about the incident. The trial court sustained Vaultz's objection. The prosecutor explained that she was not going to go into the peeping incident, but whether Vaultz used numerous aliases. The court stated that the aliases are another issue. The prosecutor then asked Vaultz if he used the fake name "Ernie" to get into a teenage girl's house. The court sustained Vaultz's objection.
It appears that the prosecutor deliberately violated the trial court's ruling excluding the evidence of the peeping incident. That is a serious breach of prosecutorial ethics and was also entirely unnecessary. The evidence against Vaultz in the murder of three women was so strong that evidence of peeping over a fence had no effect on the result. The misconduct was unnecessary but in the context of this case, harmless.
(h)
The prosecutor asked Vaultz: "Okay. So you told us that you grabbed [Wall] around the neck and then you thought to yourself - this was your testimony - 'She thinks I'm trying to rape her.' Do you remember telling the jury that?" Vaultz answered: "I may have said it like that. I don't remember. I need to see it." The prosecutor went on to suggest that Vaultz was changing the facts to meet the circumstances, and that he does not remember things from day to day.
Vaultz now claims that his testimony on cross-examination was consistent with his testimony on direct examination. If so, the answer to the prosecutor's question should be "yes," and not "I don't remember." The prosecutor had reason to believe that Vaultz was being deliberately vague. She had the right to pursue the matter on cross-examination. There was no misconduct.
(i)
Vaultz argues that the prosecutor tried to intimidate him by standing inappropriately close to him. Vaultz's counsel objected to the distance during trial. The trial court stated, "That distance is fine." Assuming the prosecutor was standing too close to Vaultz, nothing in the record shows he was in the least intimidated. Moreover, Vaultz cannot seriously believe that we would overturn a double murder conviction supported by DNA and overwhelming corroborative evidence because the prosecutor was standing too close. There was no misconduct.
(j)
As Vaultz was testifying on direct examination about his treatment of Wall, he began to cry. The prosecutor said out loud, "Here we go." The trial court admonished the prosecutor. The comment was clearly inappropriate but harmless.
(k)
The prosecutor asked Vaultz: "You've told multiple women that you learned how to choke women to death, choke people to death, take them down, kill them, while you were in the military?" Vaultz answered, "Never have." He said he was positive about it.
Later Vaultz admitted that he may have discussed his military training with Trevino and another woman. The prosecutor accused Vaultz of changing his testimony.
Vaultz claims that he did not change his testimony; that the original question was about choking women to death. In fact, the original question was not only about choking women to death, but also "chok[ing] people to death." (Italics added.) The prosecutor's cross-examination was proper.
III. Prosecutors Conduct in Closing Argument
(a)
The prosecutor began closing arguments by apologizing for saying "Here we go," when Vaultz started crying on the stand. That is not misconduct; she should apologize. Nor is it misconduct to argue that Vaultz's tears were not genuine.
(b)
Vaultz argues the prosecutor suggested that she had knowledge of other instances in which he was violent with women. At one point the prosecutor was discussing the DNA evidence found in the bodies of the three women who were killed. Then the prosecutor said: "Because this doesn't even begin to cover the defendant's violent history against women, as you heard about throughout the course of this trial, or his repetitive way of putting his hands around women's necks, as you heard him say, when he got mad."
The prosecutor was not suggesting that she had knowledge of instances of violence against women beyond the evidence at trial. The prosecutor was pointing out that there is evidence "as you heard about throughout the course of this trial" in addition to the DNA evidence.
(c)
The prosecutor argued that Vaultz lied. Vaultz claimed that at times during cross-examination the prosecutor misstated his testimony and falsely accused him of lying. But the prosecutor's argument did not relate to any specific instance of lying. Her point was that Vaultz's entire testimony was a lie. That is a fair argument.
(d)
The prosecutor argued that Vaultz was combative on crossexamination. Vaultz claims that it was the prosecutor who was combative. But the jury was entirely capable of determining whether Vaultz was combative. Moreover, the prosecutor admitted her part in the combat. She said, "Everything was combative. I don't know, I'm like a dog with a bone. What can I tell you?"
(e)
Vaultz claims the prosecutor falsely told the jury that defense counsel tried to get Wall to admit she reported Vaultz because he is an African American. In fact, that is exactly what defense counsel tried to do.
During cross-examination, defense counsel asked Wall, "At the time you were in the parking lot, do you remember telling the officer that you were confronted by a male Negro - that's the word - confronted by a male Negro subject described as being the subject on the original crime report? Did you tell him that?" Wall understood exactly the import of the question. She answered, "No that was not my word. No. That was not my word."
(f)
The prosecutor began her final argument by stating: "So defense counsel's opening statement started with the words, 'I have a story to tell ....' And that's exactly what it was. It was a completely made-up, false, distorted version with zero credibility."
Vaultz argues that the prosecutor improperly commented on defense counsel and suggested that defense counsel had a duty to make up a defense. It is misconduct for a prosecutor to falsely accuse defense counsel of fabricating a defense. (People v. Stitely (2005) 35 Cal.4th 514, 560.) But such cases usually involve accusations that defense counsel has tampered with the evidence, such as, by suborning perjury (see People v. Arias (1996) 13 Cal.4th 92, 182), or that defense counsel assisted the defendant in fabricating the story to which the defendant testified at trial. (See People v. Bain (1971) 5 Cal.3d 839, 845.) Here the prosecutor accused the defense counsel of making an argument that did not comport with the evidence. That is different than accusing the defense counsel of assisting the client in fabricating false testimony. A prosecutor has broad leeway in arguing defense counsel's argument does not comport with the evidence. (See Stitely, at p. 559 [not misconduct for a prosecutor to tell the jury defense counsel's argument is a ridiculous attempt to allow defendant to walk free, an outrageous attempt to demean the victim, or that defense counsel's argument is a" 'legal smoke screen' "].) The defense counsel raised no objection. In any event, if it was misconduct, it was harmless.
(g)
Finally, Vaultz accuses the prosecutor of grossly misrepresenting defense counsel's argument. But the prosecutor simply exaggerated. The jury heard defense counsel's argument. It shows what defense counsel said.
The evidence of Vaultz's guilt was so overwhelming that the alleged errors here, taken separately or together, do not mandate reversal.
(h)
Professional Conduct
We direct the prosecution's attention to People v. Hill, 17 Cal.4th 800 (Hill). Yes, we in the legal profession are human and may recoil when exposed to the facts in certain cases. This is particularly true in criminal cases. Yet we have an obligation to follow the standards demanded of our respective professions. This is particularly the case for prosecutors. On page 819 of the Hill opinion, our Supreme Court states that "[p]rosecutors . . . are held to an elevated standard of conduct. We advise the prosecutor here to carefully read Business &Professions Code, section 6068 subdivisions (b) and (f).
Prosecutors who violate their oath of office whether meaning to or not, run the risk of assuring a defense verdict in some cases that otherwise could result in a different outcome. As we stressed in this opinion, the overwhelming evidence of guilt compelled the result this panel reached.
Defense counsel also ran afoul of his obligation not to mischaracterize evidence. All in the legal profession must keep in mind the rules of conduct that set our standards. Doing so ensures public confidence in our legal institutions.
IIII. Evidence Code Section 1103, Subdivision (c)(1)
Vaultz contends the trial court abused its discretion in excluding evidence under Evidence Code section 1103, subdivision (c)(1).
Defense counsel stated that he wanted to call Duggan's sister who would testify to an incident where Duggan was in her car flirting with a man who was a complete stranger driving another car. Allegedly at Duggan's request the man pulled over. Duggan then left her car, entered the man's car and they drove off.
Defense counsel explained that Vaultz testified that he was involved with a number of different women and "His DNA is on there." Duggan "is just not a goody-goody, as they say. She's out there as well. And that gives the inference to the jury that he may have had sex with this person. This person may have been out there. All these things are connected ...."
The prosecutor objected that the defense counsel was trying to "dirty-up" the victim. The court sustained the objection on the grounds that the evidence is irrelevant and that it is improper to show the promiscuity of the victim.
Evidence Code section 1103, subdivision (c)(1), provides, in part: "Notwithstanding any other provision of this code to the contrary . . . opinion evidence, reputation evidence, and evidence of specific instances of the complaining witness' sexual conduct, or any of that evidence, is not admissible by the defendant in order to prove consent by the complaining witness."
Vaultz claims that the trial court abused its discretion in relying on Evidence Code section 1103, subdivision (c)(1). He argues that Evidence Code section 1103, subdivision (c)(1), applies only to evidence that is used to show the victim consented. Here Vaultz is not arguing that he had consensual sex with Duggan at the time she was murdered.
But Vaultz knocked down a straw man. The trial court did not rule that the evidence was inadmissible under Evidence Code section 1103, subdivision (c)(1). The court ruled that the evidence was irrelevant. The court was correct.
Vaultz testified that he had sex with multiple partners. According to defense counsel, the evidence would show that Duggan was having sex with multiple partners. Then defense counsel asserted, "All these things are connected ...." Exactly how these things are connected, defense counsel did not say. The connection is far from obvious. The trial court did not abuse its discretion in finding the evidence irrelevant.
For the first time on appeal, Vaultz suggests that from evidence that Duggan flirted and got into a car with a stranger, the jury could conclude that Duggan may have had sex with Vaultz a few days prior to her death. Any such conclusion would require multiple levels of speculation. The jury would have to speculate that in getting into a stranger's car, Duggan intended to have sex with the stranger; then based on a single incident the jury would have to speculate that Duggan was promiscuous; finally, the jury would have to speculate that Duggan had consensual sex with Vaultz days before she was murdered. The connection between the proposed evidence and the suggested conclusion is so attenuated as to render the proposed evidence irrelevant.
Moreover, the tower of speculation falls in the face of the actual evidence. The uncontested evidence is that Duggan's body was found with a cloth in her mouth composed of the same material as the ligature used to strangle her. The cloth in her mouth contained Vaultz's DNA. Thus the uncontradicted evidence quite clearly shows that the DNA found in Duggan was not the result of her having consensual sex with Vaultz some days before the murder.
V. Evidence of Pornography
Vaultz contends that the trial court abused its discretion in allowing evidence of pornography found on his computer.
During the execution of a search warrant, the police found pornography depicting bondage, dominance, and sadomasochism, known as "BDSM," on Vaultz's computer. The prosecutor wanted to introduce evidence of the pornography, arguing that BDSM was consistent with how Vaultz treated the victims. The prosecutor did not want to introduce into evidence the pornography itself, but only a listing of the type of pornography found.
Vaultz objected under Evidence Code section 352. The trial court overruled the objection. The following collogue took place between the prosecutor and a police detective: "[Prosecutor]: And did you review some of the digital images, those forensic images, from the defendant's laptops? [Detective]: Yes. I was with Detective Voorhis and we reviewed them together. [Prosecutor]: Okay. Did you observe some pornography that is representative of bondage, dominance, sadomasochism, what people commonly refer to as B-D-S-M-? [Detective]: Yes. [Prosecutor]: Were there approximately 30 to 40 such images? [Detective]: Yes." The images themselves were not introduced into evidence.
Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
Vaultz claims the evidence was not relevant, and any probative value was outweighed by the potential for undue prejudice.
Possession of pornography is properly admitted when its relevance to motive and intent is not outweighed by undue prejudice. (People v. Byers (2021) 61 Cal.App.5th 447, 453.) Thus, in People v. Memro (1995) 11 Cal.4th 786, 864-865, our Supreme Court held that in a prosecution for violating section 288, lewd act on a child, pictures of young boys in sexually graphic poses were relevant to show defendant had a sexual attraction to young boys and the intent to act on it. The court also said that although the pictures would undoubtedly be disturbing to most people, the court could not say the pictures were substantially more prejudicial than probative. (Ibid.)
Here the testimony about the pornographic pictures found on Vaultz's computer was relevant to show Vaultz's interest in bondage and sadomasochistic sex and his intent to act on it. As in People v. Memro, supra, 11 Cal.4th, we cannot say the evidence was unduly prejudicial. In Memro, our Supreme Court concluded the evidence was not unduly prejudicial even though the pictures would be disturbing to most people. Here there were not even any pictures in evidence. The trial court did not abuse its discretion in admitting the evidence.
DISPOSITION
The judgment is affirmed.
We concur: YEGAN, J. CODY, J.