P. v. Story

Filed 1/15/08 P. v. Story CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
GARY DEAN STORY,
Defendant and Appellant.
H030020
(Santa Clara County
Super. Ct. No. 210711)
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, 1976.1 (Pen. Code, § 187.) Subsequently, on July 27, 2005, the District
Attorney filed an amended indictment in which defendant was accused of Ms. Vickers's
murder.2
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.
1 The indictment accused defendant of Vickers's murder with "malice aforethought
and during the perpetration and attempt to perpetrate rape and burglary . . . ."
2 The amended indictment accused defendant as follows: "he did unlawfully and
with malice aforethought, kill BETTY YVONNE VICKERS, a human being."

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On appeal, defendant raises four issues. First, he contends 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. Thus, the trial court erred
in refusing to dismiss the indictment. Second, the admission of four incidents of violent
sexual conduct pursuant to Evidence Code sections 1108 and 1101, subdivision (b)
violated his federal and state constitutional rights. Third, the judgment of conviction
must be reversed because there is insufficient evidence to sustain the conviction for first-
degree murder. Finally, the cumulative effect of the errors in this case so infected the
trial with unfairness as to make his conviction a denial of due process. We agree with
defendant's second contention. Furthermore, we find the error prejudicial. Accordingly,
we reverse defendant's conviction.
We set forth the facts of this case with these issues in mind.
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 housemate, 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.3
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
3 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.

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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.
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

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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 p.m. or 10:30 p.m., 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.

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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 p.m. or 8:30 p.m. 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 p.m. or
8:30 p.m.

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Ms. Vickers arrived at St. James Infirmary around 9:00 p.m. or 10.00 p.m. Ms.
Fontes 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.4 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 and 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.
Around 1:15 a.m., 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
4 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.

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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 a.m. 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 a.m., 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 a.m. 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 p.m. 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 mortis, and her body displayed dorsal lividity, or
pooling of the blood in the part of the body closest to the bed.

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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
a.m. and was in full rigor mortis with fixed lividity when she was found at 5:45 p.m., 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 collar bone. There was an abrasion on the upper

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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.5
5 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,

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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 1976.6 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 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
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.
6 Mr. Norris had no independent recollection of this case at the time of trial. Instead
he testified from his notes and records.

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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.

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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

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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

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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. 7
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
7 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.

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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.8 Defendant did not mention Ms.
Vickers's name. Nor did he indicate that the person he had killed was a woman.
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
M.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
Ms. E. very uncomfortable. Defendant asked Ms. 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, Ms. E. was not interested in defendant. After that date she avoided his calls
and made excuses not to go out with him.
Ms. 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, Ms. E. was carrying a
heavy box to her car when she encountered defendant. Defendant reeked of alcohol.
8 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."

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Defendant offered to carry the box. Out of politeness, Ms. E. allowed him so to do.
Without being invited, defendant followed Ms. E. back into her apartment. They talked
briefly about Ms. E.'s job. The entire time, Ms. E. stood at the door trying to figure out a
way to get defendant to leave. Ms. 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 Ms. E.'s
phone. Ms. 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. Ms. 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, Ms. 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 Ms. E., held her by the throat and started banging her
head violently against the headboard. Ms. 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 Ms. E. had skin and blood under her
fingernails. At a court hearing later, Ms. E. testified that defendant was the person who
assaulted her.
J.Hd was 19 years old in 1975. She lived in Cupertino, California. Ms. Hd. lived
in a small farmhouse owned by her parents. She had a roommate who had two young
children. In July 1975, Ms. Hd. 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 Ms. Hd. and asked her for a corkscrew to open a bottle of wine. Ms. Hd.

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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.
Ms. Hd. began going to St. James Infirmary, where she met Ms. Vickers. One
evening, in the late winter or early spring of 1976, while Ms. Hd. 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 Ms. Hd. 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 Ms.
Hd. 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 Ms. Hd., 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. Ms. Hd.
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 Ms. Hd. 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. Ms. Hd. described defendant's
demeanor as robotic and cold.
A.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 Ms. H.'s friend. Defendant picked Ms. H.

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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 Ms. H. She rebuffed him. In response, defendant grabbed her throat and started
choking her. Then, abruptly, he stopped. Defendant drove Ms. H. to her friend's party,
and the two parted company. Ms. H. made it clear that she wanted nothing to do with
defendant after that incident.
Less than a month later, on May 29, 1980, Ms. H. was home alone in her studio
apartment at around 11:00 p.m. Defendant walked in through the unlocked front door
uninvited. Ms. H. told defendant to leave. Defendant responded by pulling out a gun and
holding it to her head. Defendant motioned Ms. H. over to her bed. Ms. H. told him to
stop, but defendant responded that it would not hurt. Defendant undressed Ms. H. Then,
he undressed. Defendant raped Ms. 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. Ms. H. tried to scream, but she could not make
any noise because she was being strangled. When defendant relaxed his grip, Ms. H.
screamed, so he started choking her again. After about a minute, defendant released her,
got up and started getting dressed. He then told Ms. H. to stay right there and not say
anything. Defendant walked across the room, and Ms. H. took the opportunity to grab
her dress and run into the bathroom. She climbed out the bathroom window and ran to
get help.
P.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 Ms. N. even though she was married and defendant was in
a relationship. At one point, defendant told Ms. N. that he loved her. He wanted her to
leave her husband for him, and he kissed her. Ms. N. was not interested in a romantic
relationship with defendant. She ended up leaving her job to avoid his advances.

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Ms. 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 a.m. and 7:00 a.m. Ms. 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 Ms. N. He said he was having
problems with his girlfriend, was losing his house, and was contemplating suicide. Ms. N.
said it was not a good time to talk, but defendant insisted. Ms. 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. Ms. 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. Ms. 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, Ms. 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

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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.

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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 p.m. 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

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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, Ms. Hd., claimed to be Ms.
Braswell's roommate when she met defendant. Ms. Hd. now denied being her roommate.
Accordingly, defense counsel argued that if Ms. Braswell was available she could have
impeached Ms. Hd.; 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 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
about defendant asking 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

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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 Ms. 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 Ms. 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 H. incident and the assisting nurse who would have been
able to provide information relating to Ms. H.'s mental state at the time of the incident
and who could testify to the absence of marks on Ms. H.'s neck.
As to the incident involving Ms. N., the evidence that was collected included a
rape kit; a Pepsi bottle that Ms. 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 Ms. N.'s attitude in reporting the crime.

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One of the officers noted in his report that Ms. 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 Ms. N.'s assailant.
As to the incident involving Ms. Everette 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.
In addition to defendant's motion to dismiss the indictment, defendant strenuously
objected to the introduction of evidence of four separate incidents of sexual misconduct,
which the prosecution intended to offer pursuant to Evidence Code sections 1108 and
1101, subdivision (b). As to the Evidence Code section 1108 evidence, defense counsel
argued that the evidence should be excluded because Evidence Code section 1108 could

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not be used in a case where no sex crime was charged;9 Evidence Code section 1108
violates due process; 10 Evidence Code section 1108 violates equal protection; the
evidence was substantially more prejudicial than probative; admission of the four
incidents in this case violated due process because the evidence is a generation old and
the physical evidence has been lost or destroyed; and the introduction of the evidence in
this case violated ex-post facto provisions of the state and federal Constitutions because
Evidence Code section 1108 was being applied retroactively. Further, defense counsel
argued that if the court allowed the introduction of the evidence, the court should limit
the evidence to that which was relevant to defendant's propensity to commit sex offenses.
Finally, defense counsel argued the defendant's bad acts were insufficiently similar
to qualify for admission under Evidence Code 1101 to prove defendant's identity or
common scheme. Following argument by counsel, the court denied defendant's motion.
As a result, the four victims of the defendant's alleged sexual misconduct testified
at defendant's murder trial.
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."
9 Defense counsel alleged that the incident involving Ms. E. did not qualify as a
sexual offense because defendant had pleaded guilty to assault with a deadly weapon.
10 Defense counsel recognized that the California Supreme Court in People v.
Falsetta (1999) 21 Cal.4th 903 held that Evidence Code section 1108 does not violate
due process on its face. However, counsel pointed out that the United States Supreme
Court had not yet ruled on the constitutionality of Evidence Code section 1108.

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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 Youngblood cases and in the prior
ruling of this Court.[11]
11 California v. Trombetta (1984) 467 U.S. 479 (104 S.Ct. 2528), Arizona v.
Youngblood (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."

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"And although the case of People versus Hartman[12 ] 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."
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'
12 People v. Hartman (1985) 170 Cal.App.3d 572.

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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 dispositive "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

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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."
Defendant contends 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 argues that the loss of the evidence is "monumental." He asserts 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.
In People v. Archerd (1970) 3 Cal.3d 615 (Archerd), our Supreme Court
considered what rules should apply when an accused claims there has been an

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unreasonable delay in arresting and charging him. In Archerd, the Supreme Court held
that the speedy trial right had no application to such a claim. As the Supreme Court
explained, "One does not become an accused until the filing of a complaint. The
provisions of the Sixth Amendment contemplate a pending charge, not the mere
possibility of a criminal charge." (Id. at p. 639.) Nevertheless, the Archerd court did find
that due process could be violated by a pre-accusation delay. Specifically, if the delay
were purposeful, oppressive, and prejudicial to the accused's ability to defend him or her
self, it could violate due process. (Id. at p. 640.) As a consequence, the Archerd court
established prejudice as an essential element of a due process claim. Furthermore, the
Archerd court established that "Prejudice . . . may be shown by the loss of a material
witness or other missing evidence or fading memory caused by lapse of time." 13 (Ibid.)
Subsequently, in Scherling v. Superior Court (1978) 22 Cal.3d 493 (Scherling),
the California Supreme Court affirmed that due process is the appropriate test to be
applied to a delay occurring after a crime is committed but before a formal complaint is
filed or the defendant is arrested. (Id. at p. 505.) The Scherling court stated, "regardless
of whether defendant's claim is based on a due process analysis or a right to a speedy trial
13 In Archerd, there was an 11-year delay between the first of a series of murders
committed by the defendant and the time an indictment was filed against him. The delay
was caused by the absence of a scientific test to confirm the suspicion of the police that
the defendant had murdered his victims by the injection of insulin. (Archerd, supra, 3
Cal.3d at pp. 620-621.) The Supreme Court addressed the question of whether the
defendant was denied a speedy trial and due process of law by the pre-indictment delay.
(Id. at pp. 639-640.) In Archerd, the defendant made no showing at the trial that any
crucial defense was lost by reason of the delay. The prosecution located any material
witnesses requested by defendant or stipulated as to what the testimony would be. The
prosecution produced evidence to show that there was a reasonable investigation, which
commenced with the murder of Zella Archerd, and continued until the scientific
breakthrough occurred that could form the foundation for a successful investigation and
prosecution to alter all of the medical opinions, which, previously, had thwarted
prosecution. (Id. at p. 641.)

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not defined by statute, the test is the same, i.e., any prejudice to the defendant resulting
from the delay must be weighed against justification for the delay." (Ibid.)14
The Scherling court went on to explain what it meant by this balancing test as
follows. "We do not intend to imply that only a deliberate delay by the prosecution for
the purpose of prejudicing the defense may justify a conclusion that a defendant has been
deprived of due process. The ultimate inquiry in determining a claim based upon due
process is whether the defendant will be denied a fair trial. If such deprivation results
from unjustified delay by the prosecution coupled with prejudice, it makes no difference
whether the delay was deliberately designed to disadvantage the defendant, or whether it
was caused by negligence of law enforcement agencies or the prosecution. In both
situations, the defendant will be denied his right to a fair trial as a result of government
conduct. [Citation.] Thus, although delay may have been caused only by the negligence
of the government, the prejudice suffered by a defendant may be sufficient when
balanced against the reasons for the delay to constitute a denial of due process."
(Scherling, supra, 22 Cal.3d at p. 507.)15
More recently, in People v. Catlin (2001) 26 Cal.4th 81 (Catlin), our Supreme
Court reaffirmed that a "Delay in prosecution that occurs before the accused is arrested or
14 In Scherling, in 1976 the defendant was charged with four counts of burglary
committed in 1966 and 1967. (Scherling supra, 22 Cal.3d at p. 496.) The defendant
contended that he was prejudiced by the delay in charging him with the burglaries
because his memory of the crimes has faded and because a number of witnesses who
were available to verify his defense had died or were unavailable. (Id. at pp. 505-506.)
15 The Scherling court found no prejudice and thus no need to consider justification
for the delay. (Scherling, supra, 22 Cal.3d at p. 506.) Accordingly, the court's statement
that negligent delay may be enough was dictum. However, where the Supreme Court
unequivocally states a principle of law in a unanimous opinion, then the statement, albeit
dictum, is entitled to respect from the Courts of Appeal and should be followed absent
sound reasons otherwise. (Hubbard v. Superior Court (1997) 66 Cal.App.4th 1163,
1169; see 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 947, pp. 989-991.) For its
part, the Supreme Court treats the absence of deliberate or intentional delay as a relevant
factor, but not in itself determinative. (Catlin, supra, 26 Cal.4th at pp. 109-110.)

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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. [Citations.] A claim
based upon the federal Constitution also requires a showing that the delay was
undertaken to gain a tactical advantage over the defendant. [Citations.]" (Id. at p. 107.)
The Catlin court observed that " '[p]rejudice may be shown by loss of material witnesses
due to lapse of time [citation] or loss of evidence because of fading memory attributable
to the delay.' [Citation.]" (Ibid.) 16
16 In Catlin, the defendant was charged in 1985 with the 1976 murder of his fourth
wife Joyce. (Catlin, supra, 26 Cal.4th at p. 98.) On appeal, the defendant contended that
the delay in charging him with the murder of Joyce caused him prejudice, in that two
persons who had attended the autopsy performed on Joyce's body namely Dr.
Ambrosecchia and Primus Jones had died before the 1990 trial. In addition, the
defendant complained of the loss of the letter from the Bethesda Naval Hospital stating
that the slides of Joyce's tissue had some characteristics of paraquat poisoning but that no
paraquat could be found because of the preservative used. Further, he complained that
the jar of tissue samples had been destroyed before he was arrested, that the Bakersfield
Police Department records relating to Joyce's murder had been destroyed, and that some
of the labels on the tissue blocks that were prepared after Joyce's autopsy had been lost.
Finally, defendant contended he was prejudiced by his own loss of memory of the events
of 1976 and by his inability to produce alibi witnesses to testify concerning his
whereabouts when Joyce ingested paraquat or to testify regarding his lack of access to
paraquat at the time. (Id. at p. 108.)
In Catlin, the Supreme Court found that the defendant's claims of prejudice were
weak. The evidence indicated that Dr. Ambrosecchia did not perform the autopsy, and
there is no evidence suggesting that Ambrosecchia or Primus Jones would have testified
favorably to the defense. Various witnesses testified that Joyce's tissue could not be
subjected to a chemical analysis for paraquat because it was preserved in formalin rather
than frozen. Further, it appeared that the missing letter from the Bethesda Naval Hospital
was consistent with this view. The loss of the jar containing tissue samples was
insignificant, because preservation in formalin made it impossible to test for paraquat.
Moreover, the Defendant had not suggested how records of the police investigation of the
crime would have been relevant to his defense. As for defendant's loss of memory and

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"Due process guarantees that a criminal defendant will be treated with 'that
fundamental fairness essential to the very concept of justice. In order to declare a denial
of it we must find that the absence of that fairness fatally infected the trial; the acts
complained of must be of such quality as necessarily prevents a fair trial.' [Citation.]"
(U.S. v. Valenzuela-Bernal (1982) 458 U.S. 858, 872 [102 S.Ct. 3440].)
Essentially, the trial court's task "is to determine whether precharging delay
violates the fundamental conceptions of justice which lie at the base of our civil and
political institutions and which define the community's sense of fair play and decency."
(People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 914.)
The question of whether preaccusation delay is unreasonable and prejudicial is a
question of fact. The trial court's ruling is upheld on appeal if supported by substantial
evidence. (People v. Mitchell (1972) 8 Cal.3d 164, 167; People v. Dunn-Gonzalez,
supra, 47 Cal.App.4th at pp. 911-912.) The facts and circumstances must be viewed in
light of (1) time involved; (2) who caused the delay; (3) the purposeful aspect of the
delay; (4) prejudice to the defendant; and (5) waiver by the defendant. If the government
deliberately uses delay to strengthen its position by weakening that of the defense or
otherwise impairs a defendant's right to a fair trial, an inordinate preindictment delay may
be shown to be prejudicial. (People v. Archerd, supra, 3 Cal.3d at p. 640.)
As noted, in balancing the prejudice to defendant against the justification for the
delay, Judge Condron added to the balance "all the other known evidence" including the
"similarity of other sexual assault strangulation cases in which the defendant is known to
be the perpetrator." For reasons that we will explain later, this evidence should not have
been added to the balancing process. However, because we find the admission of the
alibi witnesses, the details of defendant's whereabouts at the time Joyce ingested paraquat
were not highly significant, given the defendant's unlimited access to the victim and the
circumstance that the paraquat could have been administered at any point over a lengthy
period. (Catlin, supra, at p. 109.)

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Evidence Code section 1108/1101 evidence prejudicial, we must reverse defendant's
conviction. Our ruling on this evidentiary issue renders moot defendant's contention that
he was denied due process and a fair trial.
That being said, we make the following observation. This court is extremely
disturbed about the loss of all the physical evidence in this case. After more than a
quarter of a century, defendant's burden to show that he was prejudiced by the loss is
unattainable. When evidence is lost, it is not possible to show that it would have been
favorable to the defense particularly in a case such as this where the defense was denied
any opportunity to test it. In other words, a defendant can do nothing other than speculate
that the evidence would have exculpated him. As our Supreme Court has stated in
another context, "Due process requires that criminal defendants have an opportunity to
examine, and in appropriate cases have chemical tests performed on, evidence to be
offered against them. [Citation.]" (People v. Backus (1979) 23 Cal.3d 360, 384.)17 That
could not happen in this case because none of the evidence existed, not even that used in
the testing of the bed sheet.
Evidence Code Sections 1108 and 1101 Evidence18
As noted, before trial defendant moved the court to exclude evidence of four
separate incidents of sexual misconduct, which the prosecution intended to offer pursuant
to sections 1108 and 1101, subdivision (b). Initially, Judge Condron ruled that the
evidence was inadmissible under section 1101, subdivision (b) to prove identity. Defense
counsel asked that the court exclude some of the incidents pursuant to section 352, noting
that defendant was acquitted following trial in the H. incident. Defense counsel
17 The only restriction on this is if the defendant's testing would consume the entire
sample. (People v. Cooper (1991) 53 Cal.3d 771, 815 ["the defendant has no right to
obtain the evidence collected by the prosecution, to destroy that evidence in independent
testing, and then to withhold from the prosecution the results of the testing"].)
18 Unless noted, all subsequent statutory references are to the Evidence Code.

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suggested that the court limit the evidence to one or two of the incidents that had resulted
in defendant's guilty plea. The following day, the court changed its ruling and allowed
the admission of the incidents for the purpose of establishing identity and denied
defendant's request that any of the incidents be excluded pursuant to section 352. As to
the admission of the prior sexual offenses under section 1108, the court ruled that the
evidence of the other sexual assaults was admissible because the court concluded that
section 1108 does not require "that a specific sex offense be charged, only that the
offense charged involved conduct prescribed by . . . specific statutes."
Consequently, the court instructed the jury as follows: "Evidence has been
introduced for the purpose of showing that the defendant engaged in a sexual offense on
one or more occasions other than that charged in this case." The court went on to define
the term sexual offense to include rape or attempted rape. The court continued, "If you
find that the defendant committed a prior sexual offense, you may, but are not required
to, infer that the defendant had a disposition to commit sexual offenses. [¶] If you find
that the defendant had this disposition, you may, but are not required to, infer that he was
likely to commit and did commit the crime of which he is accused. [¶] However, if you
find by a preponderance of the evidence that the defendant committed prior sexual
offenses, that is not sufficient by itself to prove beyond a reasonable doubt that he
committed rape or attempted rape in this case."
Section 1108
In full, section 1108 provides, "(a) In a criminal action in which the defendant is
accused of a sexual offense, evidence of the defendant's commission of another sexual
offense or offenses is not made inadmissible by Section 1101, if the evidence is not
inadmissible pursuant to Section 352. [¶] (b) In an action in which evidence is to be
offered under this section, the people shall disclose the evidence to the defendant,
including statements of witnesses or a summary of the substance of any testimony that is
expected to be offered in compliance with the provisions of Section 1054.7 of the Penal

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Code. [¶] (c) This section shall not be construed to limit the admission or consideration
of evidence under any other section of this code. [¶] (d) As used in this section, the
following definitions shall apply: [¶] (1) 'Sexual offense' means a crime under the law of
a state or of the United States that involved any of the following: [¶] (A) Any conduct
proscribed by Section 243.4, 261, 261.5, 262, 264.1, 266c, 269, 286, 288, 288a, 288.2,
288.5, or 289, or subdivision (b), (c), or (d) of Section 311.2 or Section 311.3, 311.4,
311.10, 311.11, 314, or 647.6, of the Penal Code. [¶] (B) Any conduct proscribed by
Section 220 of the Penal Code, except assault with intent to commit mayhem. [¶] (C)
Contact, without consent, between any part of the defendant's body or an object and the
genitals or anus of another person. [¶] (D) Contact, without consent, between the
genitals or anus of the defendant and any part of another person's body. [¶] (E) Deriving
sexual pleasure or gratification from the infliction of death, bodily injury, or physical
pain on another person. [¶] (F) An attempt or conspiracy to engage in conduct described
in this paragraph. [¶] (2) 'Consent' shall have the same meaning as provided in Section
261.6 of the Penal Code, except that it does not include consent which is legally
ineffective because of the age, mental disorder, or developmental or physical disability of
the victim."
Defendant contends that section 1108 applies only to accusations of a " 'sexual
offense' " and as he was not charged with a " 'sexual offense' " the trial court erred in
applying the statute and instructing the jury pursuant to it.
Generally, we review the admissibility of evidence of prior sex offenses under an
abuse of discretion standard. (People v. Cudjo (1993) 6 Cal.4th 585, 609.) However, to
the extent that the trial court's ruling depends on the proper interpretation of a statute, it
presents a question of law, to which we apply de novo review. (People v. Taylor (1992)
6 Cal.App.4th 1084, 1090-1091.)
When construing a statute, first we "examine the words at issue to determine
whether their meaning is ambiguous." (Sand v. Superior Court (1983) 34 Cal.3d 567,

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570.) If the statutory law is " ' "clear and unambiguous there is no need for construction,
and courts should not indulge in it." ' " (In re Lance W. (1985) 37 Cal.3d 873, 886; see
also People v. Baker (1968) 69 Cal.2d 44, 50, [emphasizing that the plain meaning of
words used is not to be disregarded].) Nevertheless, "the 'plain meaning' rule does not
prohibit a court from determining whether the literal meaning of a statute comports with
its purpose or whether such a construction of one provision is consistent with other
provisions of the statute." (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.)
By its own terms, section 1108 applies only to situations where the defendant is
"accused of a sexual offense." As the California Supreme Court explained in People v.
Falsetta (1999) 21 Cal.4th 903 (Falsetta), "on its face, section 1108 is limited to the
defendant's sex offenses, and it applies only when he is charged with committing another
sex offense."19 (Id. at p. 916, underlining added.)
Section 1108 permits the trier of fact to consider a defendant's prior sex offenses
as propensity evidence. (Falsetta, supra, 21 Cal.4th at pp. 911-912.) In enacting section
1108, the Legislature determined that "evidence of prior sex offenses is so uniquely
probative in sex crime prosecutions" that "it is presumed admissible without regard to the
limitations of Evidence Code section 1101." (People v. Yovanov (1999) 69 Cal.App.4th
392, 405.)
In this case, as respondent concedes, defendant was charged with an "open" count
of murder. However, respondent argues that the only theory of first degree murder in this
case was first degree felony murder with the underlying felony of rape or attempted
rape.20 Accordingly, respondent argues without citation to authority that in a case where
19 Although the statute uses the word "accused" one does not become accused, unless
one is charged. That is, when there is a formal charge of criminal wrongdoing.
20 The court gave the jury the felony murder instruction with the underlying felony
of rape or burglary or an attempt to commit burglary or rape. In addition, the court gave
the jury the definition of burglary, the underlying felony being the intent to commit rape.

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the prosecution charges an open count, but argues that the murder is felony murder, with
the underlying felony being rape, that is a sexual offense.
Section 1108 defines "sexual offense" as a crime under the law of a state or of the
United States involving either conduct proscribed by a series of enumerated Penal Code
sections or nonconsensual sexual contact. Murder (Pen. Code, § 187) is not found in any
of the enumerated Penal Code sections nor does it include as a necessary element
nonconsensual sexual contact.
Section 1108 does include within its definition any crime that involves "[d]eriving
sexual pleasure or gratification from the infliction of death, bodily injury, or physical
pain on another person." (§ 1108, subd. (d)(1)(E).) The Legislature did not include in
this definition murder or even felony murder where the underlying felony is rape. We
recite a familiar maxim of statutory construction: expressio unius est exclusio alterius.
That is, to specify one thing in a statute is to impliedly exclude other things not specified.
To put it another way, when the Legislature expressly includes certain offenses in a
statute, it intends to exclude those not mentioned. (People v. Sanchez (1997) 52
Cal.App.4th 997, 1001.)
Just last year, Division 7 of the Second District Court of Appeal considered
whether section 1108, subdivision (d)(1)(E) permits the trier of fact to consider a
defendant's prior sexual offenses in a case where the circumstances under which a violent
crime has been committed suggest that the defendant derived sexual pleasure or
gratification from the victim's pain, even though sexual pleasure or gratification is neither
a necessary element of the charged offense nor alleged in the information as an
enhancement or aggravating factor. (People v. Walker (2006) 139 Cal.App.4th 782, 799
(Walker), review denied Aug. 30, 2006.)
In Walker, the defendant was on trial for the asphyxiation murder of Kathryn
Walters, a prostitute. (Walker, supra, 139 Cal.App.4th at p. 788.) He was charged with a
single count of first degree murder—Penal Code section 187, subdivision (a). (Id. at p.

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789.) During the trial, pursuant to section 1108, subdivision (a), the People were allowed
to introduce evidence of the defendant's three prior sexual assaults on two women, only
one of whom was a prostitute, to establish the defendant's predisposition to commit the
offenses for which he was charged. (Id. at p. 788.)
In holding that the trial court had erred in admitting the evidence, the Walker court
noted that murder "is not one of the sexual offenses enumerated in section 1108,
subdivision (d)(1)(A) or (B) and the crime with which Walker was charged did not
involve as one of its necessary adjudicated elements deriving sexual pleasure or
gratification from inflicting death, bodily injury or physical pain on his victim." (Walker,
supra, 139 Cal.App.4th at p. 802.) The Walker court reasoned, "[s]ection 1108,
subdivision (a), limits the statute's scope to criminal actions in which the defendant is
'accused of a sexual offense'; and subdivision (d)(1) defines 'sexual offense' to mean a
'crime . . . that involve[s]' certain categories and enumerated types of sexual misconduct.
In ordinary usage these terms connote that the requisite sexual transgression must be an
element or component of the crime itself without regard to the evidence establishing a
specific violation." (Id. at p. 800.)
Both Walker, supra, 139 Cal.App.4th 782 and Falsetta, supra, 21 Cal.4th 903,
stand for the proposition that section 1108 must be narrowly limited to apply only when
the defendant is charged with committing a sexual offense. The Legislature enacted
section 1108 because it believed that sex crimes were hard to prove and that offenders
often recidivated thereby displaying propensity to commit these specific types of crimes.
(Falsetta, supra, 21 Cal.4th at pp. 911-912: " 'Our elected Legislature has determined
that the policy considerations favoring the exclusion of evidence of uncharged sexual
offenses are outweighed in criminal sexual offense cases by the policy considerations
favoring the admission of such evidence. The Legislature has determined the need for
this evidence is "critical" given the serious and secretive nature of sex crimes and the
often resulting credibility contest at trial.' ") One of the reasons that the California

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Supreme Court upheld the constitutionality of section 1108 in Falsetta was because "No
far ranging attacks on the defendant's character can occur under section 1108." (Id. at p.
916.)
If a defendant is not charged with a sexual crime, section 1108 does not apply.
Murder is not a sexual crime. This rule follows both from the rules of statutory
construction and the intent of the Legislature. The Legislature could have included
murder, but did not. Section 1108 was not designed, as it was used in this case, to allow
damaging propensity evidence to bolster a prosecution for murder.
Respondent argues that section 1108 evidence is admissible for any crime,
provided the crime involves conduct that is set out in subsections (A) through (F). In
other words, section 1108 does not place any categorical restriction on what statutory
offenses may be eligible for having prior offenses introduced under section 1108.
Respondent's construction of the statute would allow prior sexual offenses to be admitted
in any case where the defendant committed a crime during which he engaged in conduct
of a sexual nature. We decline to extend the statute that far in light of the Legislature's
declared intent in enacting section 1108. Specifically, "the Legislature 'declared that the
willingness to commit a sexual offense is not common to most individuals; thus, evidence
of any prior sexual offenses is particularly probative and necessary for determining the
credibility of the witness.' [Citation.]" (People v. Soto (1998) 64 Cal.App.4th 966, 983.)
Here, there was no witness whose credibility needed to be determined.
Accordingly, we conclude that the trial court erred in admitting the prior sexual
offenses under section 1108.
However, because the trial court admitted the evidence of defendant's prior sexual
offenses under section 1108 and 1101, subdivision (b), we can find error in its admission
only if the testimony was inadmissible under both sections. (People v. Branch (2001) 91
Cal.App.4th 274, 280-281.)
Section 1101

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In ruling that the evidence of prior sexual offenses was admissible under section
1101, subdivision (b) to prove identity, Judge Condron found "distinct characteristics."
Specifically, she found that the "ages of the victims, and the age differential between the
defendant and the victims, the fact that the victims were all [C]aucasian, the fact they
were all casual acquaintances of the defendant, that the defendant had demonstrated in
each and every one of them an interest or attraction prior to the commission of the
offense that in each case the victim refused or rebuked the defendant's advances in one
case because the victim was married, in the other cases they simply declined or refused,
that in every case the defendant committed these crimes after dark and always in the
victim's home, that the defendant appeared without invitation and unexpectedly at the
victim's home, that in every case the defendant engaged in a ruse or a surprise entry that
is by taking advantage and simply walking in unannounced when there was no secure
door or using a ruse such as wanting to use the phone, losing his job and needing to talk
. . . in other cases. . . . [¶] In every case the conduct was described as cold, emotionless,
merely robotic. In every case the defendant undressed the victim. In every case there
was either the use of or threat of a gun, and in every case where the victim physically
resisted there was manual strangulation."
As a result of this ruling, the court instructed the jury pursuant to CALJIC No.
2.50 that they could consider the evidence that defendant had committed crimes or acts
similar to those for which he was on trial, for the limited purpose of determining if it
tended to show "The identity of the person who committed the crime, if any, of which the
defendant is accused." 21
21 In full, as given by the court in this case, CALJIC No. 2.50 provides, "Evidence
has been introduced for the purpose of showing that the defendant committed crimes or
acts similar to those for which he is on trial. [¶] Except as you will otherwise be
instructed, this evidence, if believed, may not be considered by you to prove that
defendant is a person of bad character or that he has a disposition to commit crimes. It
may be considered by you only for the limited purpose of determining if it tends to show:

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Under section 1101, subdivision (b), " '[E]vidence of uncharged crimes is
admissible to prove, among other things, the identity of the perpetrator of the charged
crimes, the existence of a common design or plan, or the intent with which the perpetrator
acted in the commission of the charged crimes. [Citation.] Evidence of uncharged
crimes is admissible to prove identity, common design or plan, or intent only if the
charged and uncharged crimes are sufficiently similar to support a rational inference of
identity, common design or plan, or intent.' " (People v. Carter (2005) 36 Cal.4th 1114,
1147 (Carter); Walker, supra, 139 Cal.App.4th at pp. 795-796.)
A defendant's similar crime can be circumstantial evidence tending to prove
identity, intent, and motive in the present crime. "Like other circumstantial evidence,
admissibility depends on the materiality of the fact sought to be proved, the tendency of
the prior crime to prove the material fact, and the existence vel non of some other rule
requiring exclusion." (People v. Roldan (2005) 35 Cal.4th 646, 705.) On appeal, we
review the trial court's ruling on the issue, essentially a determination of relevance, for
abuse of discretion. (Carter, supra, 36 Cal.4th at p. 1147.)
" 'To be relevant on the issue of identity, the uncharged crimes must be highly
similar to the charged offenses. [Citation.] Evidence of an uncharged crime is relevant
to prove identity only if the charged and uncharged offenses display a " 'pattern and
characteristics . . . so unusual and distinctive as to be like a signature.' " [Citation.] "The
[¶] A characteristic method, plan or scheme in the commission of criminal acts similar to
the method, plan or scheme used in the commission of the offense in this case which
would further tend to show the existence of the intent which is a necessary element of the
crime charged, or the identity of the person who committed the crime, if any, of which
the defendant is accused; [¶] The existence of the intent which is a necessary element of
the crime charged; [¶] The identity of the person who committed the crime, if any, of
which the defendant is accused; [¶] A motive for the commission of the crime charge[d];
[¶] That the defendant had knowledge or possessed the means that might have been
useful or necessary for the commission of the crime charged; [¶] For the limited purpose
for which you may consider such evidence, you must weigh it in the same manner as you
do all other evidence in the case."

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strength of the inference in any case depends upon two factors: (1) the degree of
distinctiveness of individual shared marks, and (2) the number of minimally distinctive
shared marks." ' " (Carter, supra, 36 Cal.4th at p. 1148.)
Viewing the evidence in the light most favorable to the trial court's ruling (Carter,
supra, 36 Cal.4th at p. 1148), we disagree that the circumstances of defendant's prior
sexual offenses reveal a substantially distinctive pattern.
Respondent argues that there were numerous similarities that elevated the
defendant's previous sexual offenses into a signature "whereby [defendant] targeted
female acquaintances, for whom he had expressed an interest but who had rejected his
overture, by making an unforced entry into their homes at night, raping them, and
manually strangling them if they resisted." Accordingly, respondent argues that the
"pattern of the prior offenses fit perfectly with the rape and murder of Betty Vickers."
In People v. Rivera (1985) 41 Cal.3d 388 (Rivera), the defendant was charged
with murder and burglary, and the trial court admitted evidence of a prior robbery to
prove identity based on the following similarities: (1) both crimes occurred on a Friday
night; (2) both occurred at approximately 11:30 p.m.; (3) both involved convenience
markets; (4) both markets were in the same neighborhood; (5) both markets were located
on street corners; (6) both crimes involved three perpetrators; (7) both involved getaway
vehicles; (8) prior to both crimes, two or three people were observed standing outside the
store; and (9) the defendant used similar alibis. (Id. at pp. 390-393.)
Nevertheless, the Supreme Court concluded that the evidence was inadmissible.
"Taken alone or together . . . these characteristics are not sufficiently unique or distinctive
so as to demonstrate a 'signature' or other indication that defendant perpetrated both
crimes. Convenience stores are often on street corners and are prime targets for crimes;
undoubtedly many of these offenses occur late on Friday evenings and involve a getaway
car and more than one perpetrator; finally, alibi is a common defense. Moreover, the
dissimilarities between the two crimes are significant: (1) the prior offense was armed

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robbery, a crime against the person, whereas the charged offense was planned as a
burglary, a crime against property; (2) the prior involved the taking of money, while the
charged crime involved the taking of beer; (3) the coperpetrators in each case were
different." (Rivera, supra, 41 Cal.3d at p. 393.)
Similarly, in this case all that can be said of the evidence of the charged crime is
that defendant knew Ms. Vickers and they were casual acquaintances; Ms. Vickers was
found dead in her bed from manual strangulation; and according to the coroner, she had
been raped. Moreover, defendant's pattern of sexual conduct in the other cases was not
consistent or distinctive. In each case, the defendant forced or attempted to force an
acquaintance to have sex with him. In only two cases was there any suggestion that
defendant attempted to strangle the victim, one before an attempted rape and one after a
rape. Furthermore, the manner in which defendant attempted to strangle these victims,
bears very little similarity to the strangulation of Ms. Vickers as described by Dr. Mason.
Any "pattern" that can be found in these incidents is entirely unremarkable.
The similarities noted by respondent must be common to a substantial portion of
acquaintance rapists. By definition, their victims are acquaintances, who were forced to
have intercourse. Respondent has not convinced us that a peculiar pattern in defendant's
prior sex offenses establishes his identity as Ms. Vickers's killer by setting him apart from
the general class of acquaintance rapists.
Consequently, the court erred in admitting the evidence of defendant's prior sexual
offenses to prove he murdered Ms. Vickers.
Nevertheless, although we have concluded that the trial court erred in admitting
the evidence of defendant's prior sexual offenses under both sections 1108 and 1101,
subdivision (b), the erroneous admission of prior misconduct evidence does not compel
reversal unless a result more favorable to the defendant would have been reasonably
probable if such evidence were excluded. (Carter, supra, 36 Cal.4th at p. 1152.)
Respondent argues that any error in this case was harmless because the "physical

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evidence, the medical evidence, and the circumstantial evidence, including [defendant's]
extended absence from home during the precise time of the murder, and his efforts to lie
to the police about his whereabouts and to persuade his former wife to make up a false
alibi for him, when viewed in conjunction with [defendant]'s repeated admissions to his
ex-wife Linda Blainey that he killed a woman before and got away with it, and to his ex-
wife Patricia Diane Schneck that he had committed a murder in California, was arrested
for it, but was ultimately released because of insufficient evidence to go forward, pointed
unerringly to [defendant]'s guilt."
First, we point out that the record does not support respondent's assertion that
defendant admitted to his ex-wife Linda Blainey that he killed a woman. Second, the
physical evidence only pointed to defendant as a possible source of the presumptive
semen stain found on the bed sheet. As Mr. Norris testified, the semen stain could have
come from any male human being who had a blood type of O and a PGM of 2,1.
Furthermore, there was absolutely no evidence presented as to when the semen stain was
deposited on the bed sheet. The remaining physical evidence—the position and state of
the body—indicates a sex act, but not necessarily rape or attempted rape. The medical
evidence adds nothing to the equation because all it indicates is that Ms. Vickers was
strangled.22 As to the other evidence, what is left is the lack of an alibi, defendant's
attempts to procure an alibi as testified to by Ms. Ebertowski and the admissions to one
of his ex-wives that he had killed before and got away with it and to another ex-wife that
he committed a murder, was arrested for it, put on trial, but was released. 23
22 We find the coroner's conclusion that there was evidence of rape in this case to be
dubious. No reasonable juror could conclude that the presence of a bloody tampon on the
bed alone was sufficient to indicate that Ms. Vickers had been raped.
23 It appears that defendant was arrested on November 22, 1976 for Ms. Vickers's
murder, but was released from custody. On November 26, defendant was taken into
custody on a probation violation. He was arraigned on the probation violation in docket
number 58272. A probation violation hearing was held during which then Judge Panelli
ruled that there was not violation of probation. Specifically, Judge Panelli noted that the

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The jury began to deliberate in this case on September 30, around mid-morning.
They deliberated again on October 3, during which time they requested read back of the
testimony of Mr. Norris, Dr. Mason and Ms. Everette. The jury continued to deliberate
on October 4th, returning a verdict around mid-afternoon.
The length of jury deliberations and requests from the jury to rehear evidence
during deliberations suggest that defendant's case was close. (See e.g., People v. Cribas
(1991) 231 Cal.App.3d 596, 607-608.)24 The only issues the jury had to decide were the
identity of Ms. Vickers's murderer and did that person enter the apartment with the intent
to commit rape or did he commit rape or attempt to commit a rape and then murder Ms.
Vickers. Although the circumstantial evidence points to defendant as a possible suspect,
we find the circumstantial evidence very thin. This is particularly so in light of CALJIC
2.71 (oral admissions), which contains three pieces of information for a jury presented
with evidence of a defendant's out-of-court oral statements. CALJIC 2.71 identifies such
statements as "admissions" where the statements "tend to prove" the defendant's guilt. In
addition, it tells the jury that it has the power to decide whether such statements were
made. Further, CALJIC 2.71 informs the jury that it also is the judge of whether these
People "presented numerous witnesses concerning the sexual behavior of the defendant
with a variety of females. There also has been some innuendo as to the defendant's
involvement with the homicide of Betty Vickers. However, in weighing and evaluating
the testimony of numerous witnesses presented, the defendant's involvement with the
death of Betty Vickers remains shadowy and inconclusive." Finally, Judge Panelli found
that the "evidence presented by the People relative to defendant's involvement with the
Vickers' homicide was not very persuasive." Nevertheless, Judge Panelli noted,
"apparently there was some evidence obtained by the Mountain View Police Department
which may have had some bearing on the issue, but was not presented because of certain
exclusionary rules."
24 In the past our Supreme Court has indicated jury deliberations that last almost six
hours are an indication that the issue of guilt is not "open and shut." (People v. Woodard
(1979) 23 Cal.3d 329, 341; People v. Cardenas (1982) 31 Cal.3d 897, 907, plurality opn.,
Bird, C .J.)

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statements were "true." Finally, the instruction admonishes the jury to view evidence of
such oral statements "with caution."
Accordingly, we cannot say with any certainty that the jury would still have found
defendant guilty of first degree murder without the erroneous admission of the section
1108 and 1101, subdivision (b) evidence. As a result, we think that a result more
favorable to the defendant would have been reasonably probable if such evidence had
been excluded. Consequently, we must reverse defendant's conviction.
Given that the judgment must be reversed, it is not necessary to address
defendant's remaining contentions other than defendant's contention relating to claims of
insufficient evidence to support the verdict of first degree felony murder. (People v.
Pierce (1979) 24 Cal.3d 199, 209-210.)
Sufficiency of the Evidence of First Degree Felony Murder
Defendant contends that his judgment of conviction for first degree murder must
be reversed because the evidence was insufficient to sustain a conviction. Defendant
argues that the problem with the theory of felony murder is that the evidence was not
sufficient to establish rape or burglary, or attempts to commit those crimes.
Under the substantial evidence standard of review, we determine not whether a
criminal defendant is guilty beyond a reasonable doubt, but whether substantial evidence
supports the jury's findings, or in other words, whether a reasonable jury could have
found the elements of the crime to have been proven beyond a reasonable doubt. (People
v. Cuevas (1995) 12 Cal.4th 252, 274; People v. Fairbank (1997) 16 Cal.4th 1223, 1254.)
We "view the record in the light most favorable to the verdict and uphold the verdict" if it
is supported by evidence that is "reasonable, credible, and of solid value." (People v.
Marshall (1997) 15 Cal.4th 1, 31.) In addition, we presume in support of the judgment
all facts that the trier of fact reasonably could have deduced from the evidence. (People
v. Campbell (1976) 63 Cal.App.3d 599, 608.)

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"The standard of review is the same in cases in which the prosecution relies
mainly on circumstantial evidence. [Citation.] ' "Although it is the duty of the jury to
acquit a defendant if it finds that circumstantial evidence is susceptible of two
interpretations, one of which suggests guilt and the other innocence [citations], it is the
jury, not the appellate court[, ] which must be convinced of the defendant's guilt beyond a
reasonable doubt. ' "If the circumstances reasonably justify the trier of fact's findings, the
opinion of the reviewing court that the circumstances might also be reconciled with a
contrary finding does not warrant reversal of the judgment." ' [Citations.]" ' [Citation.]"
(People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
Thus, "In a case, such as the present one, [where the finding is] based upon
circumstantial evidence, we must decide whether the circumstances reasonably justify the
findings of the trier of fact, but our opinion that the circumstances also might reasonably
be reconciled with a contrary finding would not warrant reversal of the judgment.
[Citation.]" (People v. Proctor (1992) 4 Cal.4th 499, 528-529.)
As noted earlier, in this case the jury was presented with two theories of first
degree felony murder. The jury had to decide if defendant entered the apartment with the
intent to commit rape and then murdered Ms. Vickers. Or did the defendant murder Ms.
Vickers in the course of raping or attempting to rape her.
"Intent to commit rape is the intent to commit the act against the will of the
complainant. [Citations.] A defendant's specific intent to commit a crime may be
inferred from all of the facts and circumstances disclosed by the evidence. [Citation.]"
(People v. Guerra (2006) 37 Cal.4th 1067, 1130.)
Respondent relies heavily on the testimony of Ms. Knight,25 the location of Ms.
Vickers's body, the fact that Ms. Vickers was partially clothed, the blood-stained tampon
25 Respondent presumes that after defendant asked Ms. Knight to have breakfast with
him at Denny's, and she refused, that defendant asked Ms. Vickers the same or a similar
question and Ms. Vickers was declining a sexual encounter. This is a highly speculative

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on Ms. Vickers's bed, the presence of the semen stain on the sheet, and the fact that Ms.
Vickers was "brutally murdered in the very spot where the sex act occurred" to argue that
the sex was not consensual.
First degree felony murder is the unlawful killing of a human being, whether
intentional, unintentional or accidental, which occurs as a result of the commission or
attempt to commit arson, rape, robbery, burglary, mayhem, or any act punishable under
Penal Code section 288, and where there is in the mind of the perpetrator the specific
intent to commit one or more of these crimes. (Pen. Code, § 189; People v. Dillon (1983)
34 Cal.3d 441, 475.) The intentional commission of the underlying felony is not only an
essential element of the crime of first degree felony murder. It is the sole basis for
holding the killing is murder in the first degree. (People v. Anderson (1968) 70 Cal.2d
15, 34-36.)
In short, " '[I]n order to establish a defendant's guilt of first degree murder on the
theory that he committed the killing during the perpetration [or attempted perpetration] of
one of the enumerated felonies [in section 189 of the Penal Code], the prosecution must
prove that he harbored the specific intent to commit one of such enumerated felonies.'
[Citation.] Additionally, the evidence must establish that the defendant harbored the
felonious intent either prior to or during the commission of the acts[,] which resulted in
the victim's death . . . ." (People v. Anderson, supra, 70 Cal.2d at p. 34.)
In older cases involving a charge of sexual assault, in the absence of physical
evidence that a sexual assault had occurred (e.g., the presence of semen or vaginal
trauma), the California Supreme Court declined to infer an intent to commit a sexual
assault on the victim, even if the victim was unclothed. (See, e.g., People v. Granados
(1957) 49 Cal.2d 490, 497; People v. Craig (1957) 49 Cal.2d 313, 318-319; People v.
inference. An inference is not reasonable if it is based only on speculation. (People v.
Raley (1992) 2 Cal.4th 870, 891.)

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Anderson, supra, 70 Cal.2d at p. 35.)26 More recently, however, the California Supreme
Court distinguished these decisions by noting the lack of semen or absence of sexual
trauma on the victim did not rebut an inference, based on the other physical evidence
surrounding the attack, that the defendant entered the victim's house with the intent to
rape. (People v. Holloway (2004) 33 Cal.4th 96, 138-139 (Holloway).)
In Holloway, the defendant was convicted of the first degree murder of two
women, Debra Cimmino and Diane Pencin, the attempted rape of one victim, and
burglary of the victims' joint residence. The jury found true the special circumstances of
multiple murder, murder of one victim in the commission of attempted rape, and murder
of the other victim in the commission of burglary. (Holloway, supra, 33 Cal.4th. at p.
103.)
On appeal, Holloway challenged the sufficiency of the evidence that he entered
the victims' residence with the intent to commit rape. (Holloway, supra, 33 Cal.4th at p.
138.) The evidence showed that "Diane's body was found lying on her back on her bed,
nude, but her mother testified that Diane did not sleep in the nude, and defendant told the
police both victims, presumably clothed, answered the door when he went to the
townhouse. The bedroom was in disarray and a pair of panties was found tucked between
the mattress and the bed frame. Diane's wrists and ankles bore ligature marks, and her
stab wounds were to the front of her body." (Ibid.)
Taking the foregoing evidence together with the physical evidence "indicating an
incomplete sexual attack on Debbie Cimmino in the backseat of her car (her partially
unclothed body, a vaginal tear, foreign pubic hairs found on her body and on the robe
26 In People v. Craig, supra, 49 Cal.2d at page 318, the California Supreme Court
regarded the condition of the defendant's clothing as inconsistent with the prosecution's
rape murder theory. In all three decisions, the Supreme Court noted the lack of semen,
wounds to the victims' genital area, or both. (Id. at pp. 317, 319; People v. Granados,
supra, 49 Cal.2d at p. 497; People v. Anderson, supra, 70 Cal.2d at p. 22.)

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covering it, the location of defendant's palm print above the backseat, and a lack of semen
on the body or surrounding items)" (Holloway, supra, 33 Cal.4th at p. 138), the Attorney
General argued the jury could have rationally inferred defendant tried to rape Debbie in
the car but failed and, frustrated, turned his sexually assaultive intent on Diane, entering
or reentering the townhouse, removing Diane's nightclothes, tying her up by the wrists
and ankles on the bed, and eventually stabbing and strangling her in that position. The
Attorney General conceded that the defendant also entered with the intent of killing
Diane to eliminate a witness who could tie him to Debbie's death, but had that been his
only intent he would have had no reason to remove Diane's clothing or bind her hands
and feet. (Ibid.) The California Supreme Court agreed that from "this evidence a rational
trier of fact could have found beyond a reasonable doubt that defendant entered the
townhouse with the intent to sexually assault Diane." (Ibid.) The court noted, "evidence
of another sexual assault linked to the charged attack, together with the physical evidence
surrounding the attack itself, sufficiently supported the finding of sexually assaultive
intent." (Ibid.)
There would be no better proof that the murderer entered Ms. Vickers's apartment
with intent to commit rape than a showing he did in fact commit rape after his entry.
However, although we do have evidence of a sex act, the semen stain and the presence of
the white discharge in Ms. Vickers's vagina, there is no definitive evidence that Ms.
Vickers was raped. That is, there is no solid or credible evidence of rape. There was no
sexual trauma to the vagina, no evidence of restraints used during the sex act and no other
injuries to the body from which the jury could infer that Ms. Vickers physically resisted
her attacker during the sex act, or her attacker inflicted physical violence on her during
the sex act. 27
27 Dr. Mason indicated that Ms. Vickers's internal injuries to the larynx and strap
muscles, other neck injuries and internal hemorrhaging in the tissue on her front chest
and collarbone area reflected that the killer placed his elbows or knees on Ms. Vickers's

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Although intent may be shown by circumstantial evidence, the circumstantial
evidence must be substantial. Specifically, it must be such that a reasonable jury could
find it allows only one reasonable inference, that of criminal intent. The evidence
bearing on the murderer's actual intent when he attacked Ms. Vickers is simply too
ambiguous and uninformative to be of "solid value." (People v. Marshall, supra, 15
Cal.4th at p. 31.) The lack of evidence of any injury to Ms. Vickers, other than those
inflicted when she was strangled, does not allow a reasonable jury to simply know
beyond a reasonable doubt that Ms. Vickers's murderer intended to force her to have sex
with him before killing her.
Accordingly, we conclude that there was insufficient evidence from which the jury
could conclude that defendant, assuming that he was the murderer, entered Ms. Vickers's
apartment with the intent to commit rape.
As to the evidence of rape, again, it is too ambiguous to conclude that defendant
committed murder in the course of raping Ms. Vickers. Respondent asserts that because
Ms. Vickers was menstruating a reasonable inference to be drawn from the evidence is
that sexual intercourse was not consensual. Further, the condition of the body and the
scene demonstrate the intercourse was not consensual. Moreover, the blood stained
tampon on the bed indicates that Ms. Vickers was not in control of the situation.
As respondent concedes, a conviction for rape in 1976 required evidence of actual
resistance by the victim. The jury was so instructed. In this case, however, there was no
evidence of resistance. The bed was undisturbed on one side indicating that there was not
a struggle; the downstairs neighbor did not hear any disturbance; there was no evidence
of restraints used during the sex act; there was no bruising to the body other than that
caused by the actual strangulation; and there was no vaginal trauma. Furthermore, there
upper chest as she was lying face up, and applied pressure to pin her down while
manually strangling her as she resisted.

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was no evidence that the murderer brandished a gun or any other weapon with which he
threatened Ms. Vickers so that she did not resist.
Accordingly, we conclude that there was insufficient evidence that Ms. Vickers
was murdered in the course of rape or attempted rape.
Disposition
The judgment is reversed.
_____________________________
ELIA, J.
WE CONCUR:
_____________________________
RUSHING, P. J.
_____________________________
PREMO, J.

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