A. Guilt Phase

The People presented the jury with a story to the following effect.

In November 1986, defendant was released on parole after serving a term of imprisonment for what would be revealed to be convictions for voluntary manslaughter and assault with a deadly weapon in the Los Angeles Superior Court in 1982. He was bound to Los Angeles by the conditions of his parole.

In March 1987, in violation of such conditions, defendant moved from Los Angeles to Sacramento. Over the following months, he lived, on and off, with Leslie Colyer and Neetelfer Hawkins. He spent the major part of his time obtaining and consuming drugs and alcohol.

On May 12, late at night, defendant was socializing outside an apartment building. Present also was Sandra S. She lived in one of the units with her lover and her son. She was then working as a prostitute. Defendant was drunk, and was vomiting. He made a sexual advance on her, but was repulsed. She eventually returned to her apartment, and went to bed.

On May 13, about noon, Sandra S. awoke. Her lover and her son were not at home. She had a "real bad feeling." Looking toward the foot of the bed, she saw defendant. He was standing with his zipper open, and was masturbating. She said, "Oh, God, no." In a voice that was firm and serious, he responded, "Oh, God, yes." She called for her lover. With coldness and calculation, he said, "He can't help you now." He then began to rape her. Percy Spence, who was one of her friends, walked in. He asked, "Are you having a date?" She yelled, "No, no[,] no, no, it's not." Defendant stated, "Yes, it is." Several times, she repeated, "No, it's not." Spence said, "Oh, man, don't be doing that," and ran out. When defendant was finished, he put into his pants a long knife in a sheath, which he had evidently brought to the scene. Anthony Simpkins, another of Sandra S.'s friends, had arrived by this time. As he was entering, he passed Spence. Simpkins asked, "[W]hat's happening[?]" Spence answered, "[O]h, just let it be." Sandra S. ran to Simpkins almost hysterical, and told him defendant had raped her. Defendant fled. As he did so, he proceeded up the street in the direction of Edwin [14 Cal. 4th 178] Glidewell, with whom he was acquainted. Glidewell owned a 1975 Chevrolet Camaro, which was parked nearby with the key in the ignition. Defendant jumped into the driver's seat, started the engine, and took off. Glidewell gave chase, but failed in the effort.

On May 15, defendant met Ross as she was cashing a welfare check she had received earlier that day. With him at the wheel of Glidewell's Camaro, they immediately set out to obtain and consume drugs and alcohol. They continued to do so over the days that followed. In the course of their wanderings, they visited, among others, defendant's friend Neetelfer Hawkins and a friend of Ross named Gail Patton.

On May 17, late in the morning, defendant asked Ross to drive Glidewell's Camaro as he rode as a passenger. She entered a shopping center. He directed her to an office of the Golden 1 Credit Union. She parked, and he exited. At 11:28 a.m., Allen Birkman, a civilian identification technician for the Sacramento Police Department, withdrew $60 from his wife's account at the credit union's automatic teller machine. Defendant accosted Birkman; a struggle ensued; defendant stabbed Birkman in the heart. Ross pulled out of the parking space, and defendant managed to jump in. They made good their escape. Birkman called for help. Within seconds, a passerby named Charles Kosobud came to his aid. Birkman was holding his right hand to his chest, and had blood flowing through his fingers; he had a wallet in his left hand; he was swaying. Steadying him, Kosobud asked if they had robbed him; Birkman responded, "No, but they tried." Kosobud asked who. Birkman responded, "Two blacks." (Ross is an African-American. Defendant is, in his own words, "Spanish and Islander," meaning "[a] native [Cuban].") Birkman soon collapsed onto the ground. Officer Calvin Lim of the Sacramento Police Department arrived at the scene. Birkman was already receiving emergency medical aid. Within several minutes, he was placed in an ambulance for transport to a hospital; Lim rode along. Birkman had difficulty breathing, and appeared to be in pain; he said he felt numbness or tingling in his body. Lim asked if he knew who had attacked him; he responded, "[a] male black, approximately six foot tall"-like defendant-who "got into a Camaro." Within several more minutes, they arrived at the hospital.

Sometime before noon, Ross and defendant reached Gail Patton's apartment, which was not far from the Golden 1 Credit Union. Ross parked Glidewell's Camaro nearby. She entered the apartment with a long knife and a sheath. She appeared frightened. After wiping the weapon, she told Patton to give it to defendant. Defendant entered some minutes later. He appeared normal. Patton gave him the long knife and the sheath. Police officers [14 Cal. 4th 179] approached Patton's apartment. Defendant and Ross apparently directed Patton not to say anything. At the apartment's entrance, the officers told Patton that they were investigating the incident at the Golden 1 Credit Union. They asked whether she knew anything about Glidewell's Camaro. She answered no. They departed. She told defendant to go. He did so. He left behind the long knife and the sheath. He also left behind Glidewell's Camaro.

About 1:30 p.m., Greta Slatten, who was 78 years old, drove to a convenience store in a 1987 Ford Taurus she had recently bought. The store happened to be about two-thirds of a mile from Patton's apartment. There was no other automobile in the parking lot. There was only one other person-defendant. Slatten caught sight of him, and remained in her car with the doors locked. He went to a public telephone. She then exited the vehicle with her purse and keys, locked the doors, entered the store, and made a purchase. As she went to return to her automobile, she passed defendant, who was still at the telephone. She then lost consciousness. After she came to, she found that she was in a hospital, and had suffered injuries that required suturing with 20 stitches, prevented her from opening her mouth, and blackened the left side of her face from her hairline down through her neck. Defendant had taken her car, her keys, and her purse, and had fled.

On May 18, Birkman died as a result of the stab wound he suffered to the heart. The wound could have been inflicted by the long knife that defendant left behind at Patton's apartment.

That day or soon thereafter, Leslie Colyer spoke with defendant over the telephone. She had earlier been approached by the police, who had inquired as to his whereabouts and advised they were seeking him in connection with a homicide. In the course of the telephone conversation, she told him that the victim of the homicide was a police officer.

On May 27, defendant was arrested in Mississippi and jailed. He was apprehended at the wheel of Slatten's Taurus; Charles Robinson, who was hitchhiking, was a passenger. In the automobile was found a second long knife in a sheath. The next day, Robinson was also arrested and jailed. Defendant and Robinson shared a cell. Defendant told him that "he had killed a police officer in California"-referring evidently to Birkman. He was later returned to California.

The tale that defendant told was different from the People's. Testifying on his own behalf and introducing other evidence, he denied he had raped Sandra S.: he said she had consented, at least in part in order to obtain some [14 Cal. 4th 180] cocaine he offered. He denied he had stolen Glidewell's Camaro: he said Glidewell had given him the automobile as security for a debt he incurred when he bought about $400 worth of cocaine from him on credit. He denied he had robbed or murdered Birkman: he said he was elsewhere at the time of the attack, and was the victim of mistaken identity. He denied he had robbed Slatten: again, he asserted alibi and misidentification; he said he had gotten possession of her Taurus the day she was robbed by giving some cocaine in trade to a young man who called himself "J.R." He generally denied he had ever had any knife in his possession.

The tale that Ross told was also different from the People's. Testifying on her own behalf and introducing other evidence, she did not deny defendant had robbed or murdered Birkman; rather, she denied she had possessed the requisite mental state-she said she did not even suspect what he had evidently intended, but had accompanied him out of fear.

B. Penalty Phase
 

In addition, the People presented evidence of three prior felony convictions. First, in 1982, in the Los Angeles Superior Court, defendant was convicted of voluntary manslaughter with personal use of a deadly weapon. Second, at the same time and in the same court, he was convicted of assault with a deadly weapon. Third, in 1983, in the San Luis Obispo Superior Court, he was convicted of escape from prison without force or violence.

The People also presented evidence of four instances of criminal activity, beyond the circumstances of the capital offense, that involved the use or attempted use of force or violence or the express or implied threat to use force or violence. The first and second instances comprised the circumstances surrounding the voluntary manslaughter and assault with a deadly weapon convictions. Late one night in 1981, a man ran into a small liquor store in Hollywood. In pursuit was defendant. The man was unarmed. Defendant was brandishing a long knife in his right hand. The man stopped, and put his hands up in front of him for protection. With his left hand, defendant pulled the man's hands down, said, "Chinga su madre," stabbed him fatally through the throat, and then withdrew the blade. Knife in hand, he started to move on one of the store's clerks. He halted when another of [14 Cal. 4th 181] the clerks pulled out a shotgun and told him to stop. He then fled. The third and fourth instances consisted of separate attacks on fellow jail inmates during the pendency of the present proceedings, one in 1987 and the other in 1988, in each of which he punched a victim who could not defend himself.

For life imprisonment without possibility of parole, defendant presented evidence relevant to his background and character. He was born in Cuba around 1960, and was raised there. As a young child, he suffered a significant injury to his head, which may have contributed to a condition that later showed itself as perhaps epilepsy, and also lost his mother to death. Thereafter, he lived an unstable life, and was subjected to abuse and neglect, especially at the hands of a woman with whom his father set up house. He began to exhibit problem behavior. He came to the United States in the so-called "Mariel Boatlift" of 1980. He was apparently detained at camps including Fort Chaffee in Arkansas. He went to Richmond, Virginia, in 1981, under the sponsorship of a married couple with small children. He lived with the family about six weeks. He displayed kindness and generosity, but also anger and immaturity. He made his way to California later that year. There ensued the crimes referred to above. For various reasons, social as well as personal, he did not successfully assimilate into American society. It was opined that he suffered from conditions including "profound emotional immaturity" and "extreme culture shock." Nevertheless, he was capable of love and helpfulness. For example, he had shown, and continued to show, such qualities in his dealings with Neetelfer Hawkins and with her mother and her disabled son.

Defendant also presented evidence responsive to that introduced by the People. Thus, he attempted to disprove one of his attacks on the two jail inmates. He went into the circumstances surrounding the prison escape conviction, showing, among other things, that, with two other Spanish-speaking prisoners, he had essentially walked away from what was little more than an "honor camp" (albeit after somewhat elaborate planning), offered no resistance to the correctional officers who effected the capture, and even helped them by serving as an interpreter for his two companions. He also went more deeply into the circumstances surrounding the voluntary manslaughter conviction, revealing in its course that he killed the victim apparently in revenge for the latter's burglary of the residence of a man who was his lover.