Scott Peterson
Scott Peterson
Scott Peterson
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
SCOTT LEE PETERSON,
Defendant and Appellant.
S132449
1
For clarity, we generally will refer to Laci Peterson (neé
Rocha) and Conner by their first names. We will also sometimes
refer to members of Laci’s immediate family — her mother,
Sharon Rocha; her sister, Amy Rocha; and her brother, Brent
Rocha — by their first names. No disrespect is intended to any
of these individuals.
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2
Peterson said he left the house with no jacket on, put on a
green pullover jacket, and then put the camouflage jacket over
that when it started raining. The camouflage jacket, when
Detective Brocchini saw it in Peterson’s truck a few hours later,
was dry.
3
When messages on Laci’s cell phone were played, only one
voice message from Peterson was found.
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4
Troll fishing involves dragging a baited line through the
water.
5
Cadaver dogs are trained to scent and alert to
decomposing human remains.
6
At trial, evidence was introduced that gasoline makes it
extremely difficult for trailing dogs to identify a human scent.
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7
Laci’s disappearance swiftly became the subject of
widespread media attention. To maintain the pretense that she
did not know the truth about Peterson yet, Frey denied watching
the news.
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Laci was “fine” with his having an affair. Later in the month,
once news media had made the affair public, Peterson, in an
interview aired nationwide, repeated that Laci was fine with his
having an affair and said he had disclosed the affair to the police
immediately. On February 19, at the direction of police
investigators, Frey told Peterson they should stop talking.
In January, after obtaining a warrant, police placed a
surveillance camera outside the Peterson home and GPS
tracking devices on Peterson’s vehicles, including a series of cars
and trucks Peterson rented for a few days at a time.
Surveillance data from these devices and visual surveillance by
the police showed Peterson driving the approximately 90 miles
from his home to the Berkeley Marina at least five times in
January, each time using a different vehicle. On January 5, he
drove there in a gray Subaru, spent five or ten minutes, and left.
On January 6, he returned to the marina in a red Honda and
again spent only a few minutes. On January 9, Peterson drove
there in a white pickup truck. On January 11, after determining
that their cover had been blown, the Modesto Police Department
shut down surveillance at the Peterson home. Nonetheless,
from tracking data supplied by the automobiles’ manufacturers,
police were able to determine that Peterson returned to the
marina on January 26 in Laci’s Land Rover and on January 27
in a rented Dodge Dakota.
During the same period, Peterson began to make various
changes to his work and living situations. On January 13,
Peterson gave 30 days’ notice that he was terminating his
warehouse lease, which was not up until October. That same
month, he started discussions to sell the Peterson home. On
January 29, Peterson sold Laci’s car, trading it in for a Dodge
Dakota pickup truck. On January 30, he stopped home mail
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delivery and directed that all mail be delivered to the post office
box he had set up on December 23. The nursery for Conner was
converted into storage space. On February 18, satellite
television service to the Peterson home was canceled; the
satellite company’s records indicated the customer had
explained he was moving overseas.
A $500,000 reward was posted by a private foundation for
information leading to Laci’s return. For months, no useful
leads turned up. Even when potentially promising sightings
were reported, Peterson appeared to show little interest. For
example, the prosecution presented evidence collected from an
authorized wiretap of Peterson’s phone that showed he took
days to follow up with police about a possible sighting in
Washington, though he told others — including his mother —
that he had followed up with police immediately. Peterson
similarly told a business associate he was waiting near the
airport in case he needed to fly up to Washington, though at the
time, Peterson was not near any airport.
In mid-April, a significant storm hit the San Francisco Bay
Area. On April 13, after the storm had passed, a couple walking
their dog came upon Conner’s badly decomposed body,
apparently washed ashore along with other storm debris. The
location was just over a mile from the southern tip of Brooks
Island. The next morning, Laci’s body was discovered on the
shoreline at Point Isabel, south of Conner’s body and again just
over a mile from Brooks Island. Laci’s body had barnacles and
duct tape on it. From residual clumps of fabric, it was possible
to determine that she had been wearing light-colored capris.
The clothing was consistent with the recollection of Amy, who
testified that Laci was wearing cream-colored pants when she
last saw her sister on December 23. It was, however,
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Peterson never registered the boat, nor did he ever mention the
purchase to his father; to Grantski, an avid fisherman who had
invited Peterson to fish several times; to other members of the
Rocha family; or to his friend Gregory Reed, with whom he
frequently discussed fishing. Review of the seized computers’
browser histories also showed someone conducting searches on
December 8 for boat ramps on the Pacific Ocean, then examining
nautical charts, currents, and maps for the Berkeley Marina and
San Francisco Bay, including the area around Brooks Island.
There were also visits to fishing-related websites.
December 24, the day Peterson said he was fishing, was
gray, damp, and cold with a bit of wind. Few people were at the
Berkeley Marina. When questioned by police, Peterson would
not say what he was hoping to catch, but the fishing searches
performed from his computer earlier in the month had included
searches relating to sturgeon and striped bass. Angelo
Cuanang, a published author on fishing in the San Francisco
Bay who was accepted by the court as an expert fisherman,
testified that Brooks Island was the wrong place to seek
sturgeon, which congregated in a different part of the bay that
time of year. Sturgeon also preferred live bait to lures, and
Peterson’s rod was too weak to catch them. Anchoring was
essential to reel in sturgeon; the homemade cement anchor in
his boat would have been inadequate. Finally, it was illegal to
troll for sturgeon, as Peterson claimed to have done. Peterson’s
lures and the time of year he was fishing were also wrong for
catching striped bass.
The prosecution’s theory was as follows: Peterson killed
Laci sometime on the night of December 23 or morning of
December 24. On the morning of the 24th, Peterson let their
dog McKenzie out with his leash on to make it appear something
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8
The prosecution introduced photographs of a district
attorney’s office employee, at approximately the same stage of
pregnancy and weight as Laci at her disappearance, fitting into
the bottom of Peterson’s boat.
9
Through an engineer for the company that manufactured
the boat, the prosecution introduced stability tests the boat
model underwent to obtain certification before it was sold.
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driver’s license because the club where he was going to golf that
day gave discounts for local residents such as his brother.
3. Guilt Phase Verdict
The jury found Peterson guilty of murder in the first
degree for killing Laci and murder in the second degree for
killing Conner. (See Pen. Code, §§ 187, 189.) It found true the
sole charged special circumstance, for multiple murder. (See id.,
§ 190.2, subd. (a)(3).)
B. Penalty Phase Trial
1. Prosecution Evidence
Peterson had no criminal record nor any history of violent
acts. At the penalty phase, the prosecution relied exclusively on
the circumstances of the crime and victim impact evidence.
Four members of Laci’s immediate family — her mother,
Sharon; her stepfather, Ron Grantski; her brother, Brent; and
her sister, Amy — testified. They described who Laci was as a
person, shared photographs, memories, and vignettes from her
life, and conveyed the grief and loss they each felt after the
deaths of Laci and her unborn child.
2. Defense Evidence
Through friends, family, neighbors, teachers, coworkers,
employers, and other witnesses, the defense offered evidence
that Peterson had been a kind and positive member of the
community. Peterson grew up in a loving family, displayed a
patient and gentle disposition, and was a solid student. As part
of his high school community service requirement, Peterson
worked at a home for the elderly and tutored homeless children.
He started his own business and worked a variety of other jobs
while in college.
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its infliction.” The court explained the reason for this rule: “A
man who opposes the death penalty, no less than one who favors
it, can make the discretionary judgment entrusted to him by the
State and can thus obey the oath he takes as a juror. But a jury
from which all such men have been excluded cannot perform the
task demanded of it,” namely, to “express the conscience of the
community on the ultimate question of life or death.” (Id. at
p. 519.) Put differently, “a criminal defendant has the right to
an impartial jury drawn from a venire that has not been tilted
in favor of capital punishment by selective prosecutorial
challenges for cause” based solely on general opposition to the
death penalty. (Uttecht v. Brown (2007) 551 U.S. 1, 9.)
The law also recognizes, however, that states must have a
way to ensure capital cases are tried before juries “able to apply
capital punishment within the framework state law prescribes.”
(Uttecht v. Brown, supra, 551 U.S. at p. 9.) In Witt, supra, 469
U.S. 412, the court held that trial courts may excuse a
prospective juror for cause based on the juror’s views of capital
punishment if those views “would ‘prevent or substantially
impair the performance of his duties as a juror in accordance
with his instructions and his oath.’ ” (Id. at p. 424, quoting
Adams v. Texas (1980) 448 U.S. 38, 45; accord, People v. Jones
(2017) 3 Cal.5th 583, 614.) But to protect the right to trial by
impartial jury, a trial court may not remove jurors for cause
based on views that do not substantially impair their ability to
serve. “[I]f prospective jurors are barred from jury service
because of their views about capital punishment on ‘any broader
basis’ than inability to follow the law or abide by their oaths, the
death sentence cannot be carried out.” (Adams, at p. 48; accord,
Uttecht, at p. 9; Jones, at p. 614.)
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10
A related question, No. 116, screened for jurors on the
other end of the spectrum. It asked: “Do you have any moral,
religious, or philosophical beliefs in favor of the death penalty
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11
The Administrative Office of the Courts was the name of
a body serving the Judicial Council of California. In 2014, the
name was retired to better reflect that the office was, and is, a
subpart of the Judicial Council.
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affecting the juror pool. The trial court considered the parties’
papers and arguments and made a detailed oral ruling denying
a further venue change. Peterson contends the denial of his
second motion violated his federal constitutional right to trial by
an impartial jury (U.S. Const., 6th & 14 Amends.) and similar
state guarantees.
In a series of cases in the 1960s, the United States
Supreme Court recognized that media publicity about a criminal
trial could in some circumstances deprive the defendant of the
right to trial by an impartial jury. (Sheppard v. Maxwell (1966)
384 U.S. 333; Estes v. Texas (1965) 381 U.S. 532; Rideau v.
Louisiana (1963) 373 U.S. 723; Irvin v. Dowd (1961) 366 U.S.
717; see generally Skilling v. United States (2010) 561 U.S. 358,
378–381.) In the wake of these decisions, to ensure “the
requirement basic to our jurisprudence that every person
accused of crime is entitled to a trial by a fair and impartial jury”
(Maine v. Superior Court (1968) 68 Cal.2d 375, 384), this court
adopted a new standard for pretrial change of venue motions:
Such a motion should “ ‘be granted whenever it is determined
that because of the dissemination of potentially prejudicial
material, there is a reasonable likelihood that in the absence of
such relief, a fair trial cannot be had’ ” (id. at p. 383; see Pen.
Code, § 1033, added by Stats. 1971, ch. 1476, § 3, p. 2915
[codifying the Maine standard]).
Over time, we have elaborated on the prophylactic Maine
standard and identified a series of considerations courts must
weigh to ensure the constitutional right to a fair trial is
preserved. “The factors to be considered are the nature and
gravity of the offense, the nature and extent of the news
coverage, the size of the community, the status of the defendant
in the community, and the popularity and prominence of the
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12
Irvin v. Dowd, supra, 366 U.S. 717, People v. Tidwell
(1970) 3 Cal.3d 62, and People v. Williams (1989) 48 Cal.3d 1112,
upon which Peterson relies to argue it was error to deny a
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was asked to perform was to “follow any human scent that she
could pick up from the envelope.” (Id. at p. 320.) Here, Trimble’s
task was not fundamentally different in nature: She was
presented with Laci’s sunglasses and then directed to smell for
trails of the same human scent, if any, at the Berkeley Marina.
This was not a novel technique; indeed, Anderson testified that
teaching a dog to scent off an object and then seek a
corresponding trail is a routine part of training dogs to trail
humans. Nor was it a technique whose fallibility would have
been opaque to laypersons. Under Jackson, no Kelly hearing
was necessary before the evidence was admitted, provided that
the requisite foundational requirements were satisfied.
Turning to that necessary foundation, Peterson argues we
should supplement the requirements set out in Jackson with
additional requirements derived from the Court of Appeal’s
decisions in People v. Willis (2004) 115 Cal.App.4th 379 (Willis)
and People v. Mitchell (2003) 110 Cal.App.4th 772, 790–794
(Mitchell). We declined to impose these requirements in
Jackson, and there is no reason for a different result here.
(Jackson, supra, 1 Cal.5th at pp. 319–320.)
In Willis, the dog was not asked to smell for a scent trail,
but instead was exposed to a scent and then “watched to see if
the dog ‘show[ed] interest’ in various locales frequented by the
defendant.” (Willis, supra, 115 Cal.App.4th at p. 386.) This sort
of scent identification, the court held, should be admissible only
upon foundation concerning such matters as “how long scent
remains on an object or at a location” and “whether every person
has a scent that is so unique that it provides an accurate basis
for scent identification.” (Ibid., citing Mitchell, supra, 110
Cal.App.4th at pp. 791–792.) In Mitchell, on which Willis relied,
a dog had been given pads with scent from murder shell casings
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and the victim’s shirt and a lineup of pads with scents from
various people, including the defendants. The dog alerted to a
match with pads containing one defendant’s scent, but not the
other’s. (Mitchell, at pp. 780–781.) The Court of Appeal
distinguished between scent trailing, which was established as
admissible without any Kelly hearing, and a scent lineup of the
sort performed in Mitchell. (Mitchell, at p. 790.) Such a lineup,
the court reasoned, did not have the kind of centuries-long
lineage that scent trailing does, and thus ought to be supported
by additional foundation establishing the uniqueness of human
scents and their persistence and rate of degradation. (Id. at
pp. 793–794.)
Here, the dog-trailing evidence admitted at trial did not
resemble either the open-ended identification at issue in Willis
or the scent lineup at issue in Mitchell. Trimble was not asked
to match a scent to a general location the target may have
frequented at unspecified times in the past, nor was she asked
to distinguish among multiple people or objects on the basis of
their scents. Rather, Trimble was asked to seek out and follow
a trail, if any could be found, based on a given scent. Jackson
rejected the need for additional foundation tied to scent
identification before introducing evidence of a dog’s performance
of a very similar task. (Jackson, supra, 1 Cal.5th at pp. 319–
320.) No more foundation than that required by Malgren and
Jackson for analogous tasks was necessary here.
Again, under the Malgren test, as modified in Jackson, the
prosecution was required to show that Anderson was sufficiently
trained, that Trimble was sufficiently trained and reliable in
tracking humans, that Trimble was properly given an initial
scent to trail, and that some evidence tended to corroborate
Trimble’s trailing. We review the trial court’s determination
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13
A noncontact trail is one left by a person not in contact
with the ground, as on a bicycle or in a vehicle.
14
For example, in a November 1999 exercise, Trimble
successfully trailed a person who had left a trail largely on
asphalt, which retains scent more poorly than vegetation. The
trail was five days old and there had been intervening
rainstorms. In a December 2001 exercise, Trimble successfully
followed a four-day-old noncontact trail left by a bicyclist riding
the 30 miles from Walnut Creek to Dublin. Given the length of
the trail, it was not physically possible for Trimble to cover the
entire distance, so at various points she was driven from one
section of the trail to a later section, but she was able to relocate
and follow the bicyclist’s scent each time.
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15
In his reply brief, Peterson challenges the trial court’s
ruling on the ground that the prosecution presented no other
evidence proving Laci was at the Berkeley Marina. This is true,
but it was not an unreasonable inference based on the evidence
that was presented. Laci disappeared in Modesto, California, a
90-mile drive inland from Berkeley; her remains washed ashore
in the San Francisco Bay, just two to two and one-half miles
from the marina; and the marina was one of the closest access
points to the bay from Modesto. These facts offer some reason
to believe Laci, or her body, was taken to the San Francisco Bay
by way of the marina. This is to say nothing of the other
evidence that Peterson was responsible for Laci’s disappearance
and, by his own admission, was at the Berkeley Marina on
December 24. The trial court did not err in holding that the
corroboration element had been satisfied.
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16
Peterson argues that other jurisdictions require testimony
concerning cue avoidance, but review of the published case law
he relies on and subsequent decisions belies the assertion.
Although some of the cases he cites have referred to such
testimony, or the absence thereof, in passing, none holds that
such testimony is necessary before dog-trailing evidence may be
admitted. (See U.S. v. Trayer (D.C. Cir. 1990) 898 F.2d 805, 809;
U.S. v. One Million, Thirty-Two Thousand, Nine Hundred
Eighty Dollars in U.S. Currency ($1,032,980.00) (N.D.Ohio
2012) 855 F.Supp.2d 678, 699; Harris v. State (Fla. 2011) 71
So.3d 756, 768–769, revd. sub nom. Florida v. Harris, supra, 568
U.S. 237; State v. Helzer (2011) 350 Or. 153, 158–159 [252 P.3d
288]; State v. England (Tenn. 2000) 19 S.W.3d 762, 768–769.)
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17
Indeed, Christopher Boyer, the head of the Contra Costa
County Sheriff’s Department’s search and rescue team, testified
that humidity enhances the ability of scent to adhere to surfaces
and may make it easier for dogs to trail.
18
A third test Peterson cites, from October 2002, was the
subject of vigorous debate as to whether Trimble succeeded and
whether the test was even an enclosed-target test.
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relevant to the weight the jury might accord this evidence, but
not its admissibility.
Finally, Peterson argues that the dog-trailing evidence
should have been excluded because Anderson failed to perform
a “missing member” test on Laci’s sunglasses. Anderson
explained that when a scenting object has two “equally intense”
scents on it, a handler may present the object and then have the
dog smell the target she does not want the dog to trail. Trailing
dogs are then taught to seek out a trail that matches the
remaining scent — the person that is missing, i.e., the “missing
member.” Peterson suggests it is possible that he may have
touched Laci’s sunglasses at some point in the past. He argues
Anderson therefore should have performed a missing member
check to eliminate the possibility that Trimble was following
Peterson’s own scent from when he was, concededly, at the
Berkeley Marina a few days earlier.
There are two difficulties with this argument. First,
Anderson testified, and Peterson does not dispute, that trailing
dogs are trained to follow the freshest, most recent scent on a
particular object. There is no evidence in the record that
Peterson handled Laci’s sunglasses so recently that his scent
would be equally fresh and risk confusing Trimble. Indeed,
there is nothing in the record to show Peterson handled the
sunglasses at all. The most Peterson can point to is hearsay,
inadmissible for its truth, that Peterson had handled Laci’s
purse at some unspecified time in the past. Second, and in any
event, conducting a missing member test is not a foundational
requirement for admission of dog-trailing evidence. Peterson
does not dispute that Laci handled her own sunglasses, and that
Trimble was then given the sunglasses as a scent object before
attempting to find a trail. Given this, the prosecution
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to where she was found. The trailing evidence did not add much
beyond what could already be inferred from other evidence. It
also did not rule out the defense’s theory “that somebody [else]
abducted her” and then disposed of her in the bay. And the
trailing testimony aside, there was considerable other
circumstantial evidence incriminating Peterson, from the
simple fact that Laci’s and Conner’s bodies washed ashore 90
miles from their home but within sight of where Peterson
admitted he went fishing the day they disappeared; to the
research Peterson did on bay currents in the weeks preceding
her disappearance and the fishing boat he bought but mentioned
to no one; to Peterson’s inability to explain what he was fishing
for in the middle of the day; to his repeated subsequent
surreptitious trips to the marina in the weeks after her
disappearance; to the many steps he took in the weeks after she
went missing — selling her car, exploring sale of the house,
turning the nursery into a storage room — that indicated he
already knew Laci and Conner were never coming back. Even
under the most stringent harmlessness standard, for federal
constitutional error (Chapman v. California (1967) 386 U.S. 18,
24), it is clear beyond a reasonable doubt exclusion of the limited
dog-trailing evidence admitted by the trial court would have had
no impact on the jury’s determination that Peterson was guilty.
D. Instructions on Dog Scent Trailing Evidence
1. CALJIC No. 2.16 Does Not Provide an Alternate
Theory of First Degree Murder
The jury was instructed with a modified version of
CALJIC No. 2.16, which provided guidance concerning how to
evaluate the dog-trailing evidence that had been introduced.
Peterson argues that the instruction permitted the jury to find
him guilty of first degree murder, without proof of malice, based
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19
Peterson makes one other argument — that the dog-
trailing evidence immediately followed a court instruction on
motive that allowed the jury to consider the presence of a motive
as weighing in favor of guilt and the absence of a motive as
weighing in favor of acquittal, and a reasonable juror would
have inferred from this sequence that by negative inference it
was not permitted to consider dog-trailing evidence as
supporting acquittal. The motive instruction actually came
after the dog-trailing evidence instruction, and, in any event, we
do not read the dog-trailing instruction as reasonably
susceptible to the understanding that jurors could not consider
such evidence as supporting acquittal.
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20
Indeed, recognizing that Dr. Cheng’s testimony might
help the defense as much as it hurt, defense counsel said before
Dr. Cheng testified, “[I]n some ways, I want it to come in
because I believe his ultimate conclusion is that he can’t say
anything about Laci.”
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weather, and the location. From our own review of the proffered
video, we cannot say the court abused its broad discretion to
determine the video’s admissibility. (See People v. Jones, supra,
51 Cal.4th at pp. 375–376.) The video shows the waters of the
bay were extremely choppy during the experiment. Even before
the defense employee tried to hoist the dummy, the boat was
taking on water because the employee was stepping on the
boat’s gunwale, on the same side as an elevated seat (Peterson’s
boat had no similar elevated seat) and the side toward which the
boat’s roughly 75-pound motor had been angled. This
concentration of weight allowed waves to break over the boat’s
gunwales. However stable the boat might have been if attempts
were made to counterbalance, no such attempts were made in
the defense’s demonstration. The boat also had plywood decking
added, which would have not only raised the center of gravity,
but also concealed whatever might have lain underneath.
Peterson emphasized to the trial court that it had already
admitted evidence of a prosecution experiment in which a
district attorney’s office employee, also late in her third
trimester of pregnancy and weighing the same as Laci, lay down
in Peterson’s boat to show how someone could fit without being
noticeable. Peterson strenuously argued that, by parity of
reasoning, his experiment should be admissible too. He makes
the same point on appeal. But the two situations are not
symmetric, and that asymmetry explains why a court could
exercise its discretion to admit one experiment but not the other.
As discussed, Peterson laid no foundation establishing the
extent to which the conditions during his videotaped experiment
mirrored those that would have obtained during the alleged
disposal of the body. In contrast, the prosecution’s photographs
showed precisely the feasibility of what they posited had
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the prosecution to be present and watch the way this thing went
down. What’s wrong with that?” The court also said it would be
helpful if the reenactment included footage showing where
Brooks Island was, relative to the demonstration, and was
conducted in the general area the prosecution’s expert,
Dr. Cheng, had suggested was most likely. If the defense
wanted to redo the experiment with some adjustments, the court
offered to revisit its ruling. Ultimately, Peterson elected not to
redo the experiment.
Peterson now contends that by offering to revisit its
ruling, but conditioning access to the boat on the prosecution
being able to observe any reenactment, the court committed
presumptively prejudicial error compelling automatic reversal.
Peterson has not preserved any claim of error.
During the Evidence Code section 402 hearing on
admissibility of the defense’s video and its aftermath, Peterson
did not object to the trial court’s suggested condition, even as the
court invited objection by asking, “What’s wrong with that?”
Nor did Peterson move for the court to grant him access to the
boat and to lift any condition that a member of the prosecution
view experiments with that boat, or in any other way object to
the court’s conditional offer of access to Peterson’s boat. Instead,
counsel thanked the court for its openness to revisiting its
decision and said he would check the weather for suitable
conditions and confer with his client.
At the close of the Evidence Code section 402 hearing,
then, here is where matters stood. The defense had presented a
video of a demonstration on the bay, and the court had —
permissibly, as we have just discussed — exercised its discretion
to exclude that video. The court had also, sua sponte, made clear
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21
Our recent decision in People v. Armstrong, supra, 6
Cal.5th 735, is similarly distinguishable. There, we found
misconduct after a prosecutor persuaded the trial court to
exclude defense evidence of what the victim said before she was
attacked — evidence that should have been admitted — and
then attributed to the victim a different statement nowhere
supported in the record. (Id. at pp. 785–787, 796–797.) The
prosecutor here, in contrast, commented only on the admissible
evidence and did so accurately.
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more than a century ago in Higgins v. L.A. Gas & Electric Co.
(1911) 159 Cal. 651, 656–657 (Higgins): “It is a fundamental
rule that all evidence shall be taken in open court and that each
party to a controversy shall have knowledge of, and thus be
enabled to meet and answer, any evidence brought against him.
It is this fundamental rule which is to govern the use of such
exhibits by the jury. They may use the exhibit according to its
nature to aid them in weighing the evidence which has been
given and in reaching a conclusion upon a controverted matter.
They may carry out experiments within the lines of offered
evidence, but if their experiments shall invade new fields and
they shall be influenced in their verdict by discoveries from such
experiments which will not fall fairly within the scope and
purview of the evidence, then, manifestly, the jury has been
itself taking evidence without the knowledge of either party,
evidence which it is not possible for the party injured to meet,
answer, or explain.”
We reviewed these principles and endorsed them anew in
Collins, supra, 49 Cal.4th at pages 243 to 249. After discussing
Higgins, the cases it relied on, and the many cases that had
followed it, we elaborated on the guiding principles: “Not every
jury experiment constitutes misconduct. Improper experiments
are those that allow the jury to discover new evidence by delving
into areas not examined during trial. The distinction between
proper and improper jury conduct turns on this difference. The
jury may weigh and evaluate the evidence it has received. It is
entitled to scrutinize that evidence, subjecting it to careful
consideration by testing all reasonable inferences. It may
reexamine the evidence in a slightly different context as long as
that evaluation is within the ‘ “scope and purview of the
evidence.” ’ [Citation.] What the jury cannot do is conduct a
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a. Background
Three weeks into trial, the court’s bailiff received
information from multiple jurors that Juror No. 5 was
discussing the evidence with others over the objections of jurors
who had asked him to stop and in contravention of the court’s
daily admonitions to the jury to not discuss the case until after
closing argument. To investigate the allegations, the court
questioned every member of the jury individually, in chambers
and under oath, beginning with Juror No. 5.
Specific written allegations from one juror included claims
that Juror No. 5 had commented on the homemade boat anchor
introduced as a prosecution exhibit, testimony from prosecution
witness Detective Brocchini, Laci’s pregnancy weight gain, the
sufficiency of reports prepared by the Modesto Police
Department, deficiencies in the prosecution’s presentation, and
how the juror was being portrayed in the media. When called in
to court to testify, Juror No. 5 initially denied the allegations
were true but then agreed that “general conversations” about
some of these topics might have occurred. Describing the anchor
conversation, he said that a juror had wondered about the
anchor’s weight, and in response he had discussed his own
experience using anchors when fishing. Juror No. 5 denied
commenting on Detective Brocchini’s testimony, the
prosecution’s presentation, or Laci’s weight but said comments
about her weight had been made by others. His response to
being called a “loose cannon” and other names by commentators
on a cable network covering the trial, Court TV, was “keep them
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22
Media coverage of the Peterson trial was sufficiently
intense that perceived interactions (both verbal and nonverbal)
between various jurors and members of the defense and
prosecution as they entered and exited the courtroom became
the subject of ongoing comment in the press and on television.
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Juror No. 5’s statements that “[i]f anyone has a problem with
this, they should be man enough to come up to [me].”
Every juror was questioned. Some jurors had not heard
any of what Juror No. 8 reported, but others confirmed either
comments Juror No. 5 had made or more generally that these
topics had been discussed. Alternate Juror No. 2 admitted
having asked about the anchor’s weight and being assured it
could be examined during deliberations. Jurors No. 7 and No. 9
confirmed a conversation about fishing and anchors had taken
place, although they could not be certain of the source. Juror
No. 4 affirmed that there had been discussion concerning the
weight of the anchor, though he too was unsure of the source.
Other jurors were able to specifically attribute comments to
Juror No. 5: Juror No. 6 said Juror No. 5 had discussed how
currents can pull a boat’s anchor, and Alternate Juror No. 6
heard Juror No. 5 say the anchor in the case was smaller than
anticipated, too small to anchor a boat like Peterson’s.
Concerning Detective Brocchini, Juror No. 6 said someone
had commented that Detective Brocchini was “[g]etting a
reaming” on cross-examination, and Juror No. 4 said Juror
No. 5 had asked him if he got anything out of Detective
Brocchini’s testimony. Juror No. 6 said Juror No. 5 had made
remarks about the Modesto Police Department, though he could
not recall the content, and had said the prosecution did not seem
organized. Juror No. 3 likewise reported that Juror No. 5 had
commented on the prosecutors’ presentation. Alternate Jurors
No. 5 and No. 6 heard discussions of the prosecution’s and
defense’s presentations, though they could not say whether
Juror No. 5 had participated. Juror No. 2 and others told Juror
No. 5 he should not be discussing the case, while Alternate Juror
No. 3 overheard another juror remind Juror No. 5 they shouldn’t
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b. Discussion
Under Penal Code section 1089, “[i]f at any time, whether
before or after the final submission of the case to the jury, a juror
dies or becomes ill, or upon other good cause shown to the court
is found to be unable to perform his or her duty, . . . the court
may order the juror to be discharged and draw the name of an
alternate” to replace the discharged juror. A failure to follow the
court’s instructions is misconduct and a basis for dismissal.
(People v. Williams (2015) 61 Cal.4th 1244, 1262; People v.
Linton (2013) 56 Cal.4th 1146, 1194.) This extends to the
obligation not to discuss a case prematurely. Courts are
required to instruct jurors not to discuss any aspect of a case
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23
Under Penal Code section 1122, subdivision (a)(1), a court
must admonish the jury before opening statements not to
“converse among themselves, or with anyone else . . . on any
subject connected with the trial.” Under subdivision (b), the
court must repeat this admonishment at every adjournment
until the case is submitted to the jury.
24
After the jurors were sworn, they were instructed, in the
language of CALJIC No. 0.50, that “[y]ou must not converse
among yourselves or with anyone else on any subject connected
with this trial” except when deliberating.
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a. Background
After the conclusion of the guilt phase trial and before the
beginning of the penalty phase trial, the San Mateo District
Attorney’s Office received a call from a local attorney concerning
Juror No. 8. The tipster relayed conversations she had had with
a neighbor, Gino Gonzalez, who was a bartender. Gonzalez
reportedly said Juror No. 8 frequented his bar, and Gonzalez
had learned that the jury kept secret notebooks and had already
decided to impose the death penalty. The attorney
acknowledged that her report involved “ ‘multiple [levels of]
hearsay.’ ”
At the court’s request, the investigator who received the
call followed up directly with Gonzalez. Gonzalez said the
attorney’s report was “ ‘ridiculous and not true in any sense.’ ”
Gonzalez knew Juror No. 8 and that he was on a jury in an
unspecified high-profile case, but had never heard Juror No. 8
discuss which case it was or anything about the case.
The court held a hearing and had the tipster attorney
testify. She described the circumstances and affirmed the
content of her conversations with Gonzalez but acknowledged
that she did not know whether Gonzalez had gotten his
information directly from Juror No. 8 or from Juror No. 8’s
girlfriend, who worked with Gonzalez. She added that Gonzalez
reported serving beer to Juror No. 8 in the morning, after the
juror came in following a night shift and before he went to court.
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b. Discussion
“A trial court learning of grounds for dismissal [of a juror]
‘has an affirmative obligation to investigate.’ [Citation.]
However, ‘[b]oth the scope of any investigation and the ultimate
decision whether to discharge a given juror are committed to the
sound discretion of the trial court.’ ” (People v. Duff, supra, 58
Cal.4th at p. 560; see People v. Manibusan (2013) 58 Cal.4th 40,
53–54.) Hearsay evidence of “alleged jury misconduct ordinarily
is insufficient to establish an abuse of discretion in either
denying the motion [for a mistrial based on misconduct] or
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III. DISPOSITION
We affirm the judgment as to guilt, reverse the judgment
as to the sentence of death, and remand the matter for a new
penalty determination.
KRUGER, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
GROBAN, J.
100
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Court: Superior
County: San Mateo
Judge: Alfred Delucchi
__________________________________________________________________________________
Counsel:
Cliff Gardner, under appointment by the Supreme Court; Catherine White and Lazuli Whitt for Defendant
and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler and Ronald S. Matthias,
Assistant Attorneys General, Glenn R. Pruden and Donna M. Provenzano, Deputy Attorneys General, for
Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Cliff Gardner
Law Office of Cliff Gardner
1448 San Pablo Avenue
Berkeley, CA 94702
(510) 524-1093
Donna M. Provenzano
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-1303