People v. Foster

• Decision Date: 18 November 2010
• Docket Number: No. S058025.,S058025.
• Citation: 117 Cal.Rptr.3d 658,242 P.3d 105,50 Cal.4th 1301
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Richard Don FOSTER, Defendant and Appellant.

242 P.3d 105

50 Cal.4th 1301

117 Cal.Rptr.3d 658

The PEOPLE, Plaintiff and Respondent,

v.Richard Don FOSTER, Defendant and Appellant.

No. S058025.

Supreme Court of California

Nov. 18, 2010.

William D. Farber (argued), San Rafael, under appointment by the Supreme, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Holly D. Wilkens and Susan Elizabeth Miller (argued), Deputy Attorneys General, for Plaintiff and Respondent.

GEORGE, C.J.

[242 P.3d 116, 50 Cal.4th 1307]

A jury convicted Richard Don Foster of the first degree murder of Gail Johnson (Pen.Code, §§ 187, subd. (a), 189), second degree burglary (Pen.Code, § 459), and second degree robbery (Pen.Code, § 211).[FN1] THE JURY FOUND TRUE THE SPECIAL CIRCUMSTANCE ALLEGATIONS THAT THE murder was committed whiledefendant was engaged in the commission or attempted commission of burglary and robbery. (§ 190.2, subd. (a)(17)(A), (G).) The jury also found true the allegation that defendant personally used a dangerous and deadly weapon, a knife, in connection with the murder and the robbery. (§ 12022, subd. (b).) The jury further found that defendant previously had been convicted of two serious or violent felonies. (§ 667, subd. (a).) Following the penalty phase of the trial, the jury returned a verdict of death. Defendant moved for a new trial (§ 1181), to strike the special circumstances, and for modification of the penalty to life imprisonment without the possibility of parole (§ 190.4, subd. (e)). The trial court denied these motions, sentenced defendant to death, imposed sentence on the noncapital offenses, and ordered restitution in the amount of $200. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in its entirety.

FN1. All further statutory references are to the Penal Code unless otherwise indicated.

I. FACTS

A. Guilt Phase Evidence

1. The prosecution case

a. Summary

In the afternoon of August 26, 1991, Gail Johnson's body was found on the floor ofthe minister's office in the High Desert Church of Religious Science in Apple Valley (the church). She had been stabbed at least eight times. Her purse was found on the floor near her body, and her wallet was missing. Blood found in the minister's office matched defendant's blood, and the combination of 10 particular sequences of DNA found in the blood would be expected to occur in approximately one in every 24 million individuals. The victim's vehicle was found in the parking lot of a business that defendant visited on the day of the crimes. Her wallet was retrieved from a mine shaft in which defendant previously had disposed of other items. A pair of jeans, stained with blood consistent with the victim's blood, also was found in the mine shaft and were the same brand and size as the jeans worn by defendant on the day he was arrested. A bloodstain on a piece of tissue paper found in the mine shaft was consistent with defendant's blood. Defendant had visitedthe church two days prior to the date of the crimes. Evidence was received establishing defendant's commission of two prior offenses in which he found women alone in an office and returned to rob and assault them.

b. The day of the crimes

Loren West testified that on Monday, August 26, 1991, he visited the church at approximately 11:20 a.m. to repair the air conditioning, at which time the victim, Gail Johnson, was in the church office. West recalled opening a locked box of electrical fuses with a key that he obtained from a box provided by the victim. After replacing a fuse, he returned the key to the victim in the church office and departed from the church at approximately 11:45 a.m. He stated that he saw only one vehicle, other than his own, in the church parking lot, and that the victim was the only person he saw at the church. At trial, West was shown a photograph of the keys spread out in a wooden tray at the church office, and testified he "would not have left the key box open with keys laying everywhere."

William Rosenthal testified that when he arrived at the church at approximately 1:00 p.m. that day to deliver stationery, he did not observe any other vehicles in the parking lot or any other persons in the church office. When he looked into the minister's personal office, he saw a person lying on the floor next to the desk. When he called into the minister's office, the person did not respond. He reported his discovery to his manager and called 911.

Mike Malloy, who was working that day as an engineer employed by the Apple Valley Fire District, testified that at approximately 1:00 p.m., he was assigned to respond to a call regarding "a person down" at the church. He located the victim on the floor in the minister's office, on her back, fully clothed, with blood on her shirt. Malloy determined she was not breathing and had no pulse. He testified that after an EKG test revealed that "her heart was systole ... or flat-lined," he did not attempt to revive her.

c. Crime-scene evidence

Dr. Frank Sheridan, the Chief Medical Examiner for the County of San Bernardino, conducted an autopsy. He testified the victim was 53 years of age, 64 inches tall, and weighed 140 pounds. He described numerous defensive wounds on the victim's hands and arms, and confirmed that these wounds "could occur ... if someone is slashing at her ... and she's trying to ward off the blows." He stated there were bruises on the right side of her nose and jawline that were consistent with being punched, and a bruise on the back of her head that probably occurred when the victimfell backward. All of these wounds were inflicted while the victim was alive.

Sheridan testified that the victim was stabbed once in the neck and at least seven times in the chest. He did not find anything, such as indentations on the victim's skin, indicating that the knife used in the attack had a handguard that would have prevented the perpetrator's hand from slipping past the handle. He testified that the neck wound was not as deep as the others, and may have been inflicted while the victim was standing and the perpetrator held the knife at her neck. One of the chest wounds was caused by two stabs through the sternum. Sheridan agreed that if the perpetrator's hand had blood on it when the knife hit the sternum, the perpetrator could have lost his grip and been cut. Sheridan concluded the victim was lying on her back when the chest wounds were inflicted, because she had a bruise on the back of her head, the chest wounds occurred in quick succession, and two of the wounds extended to the back of the ribcage, indicating that the force of the thrust did not push her body back.

Sheridan examined a photograph of defendant's right hand taken approximately two weeks after the murder. He testified that an injury on defendant's palm was consistent with one that would be suffered if a person were to stab with a knife and the knife were to slip. Sheridan also testified that defendant's wound would have bled and was consistent with the injury having occurred two weeks earlier.

David Stockwell, a criminalist in the San Bernardino County Sheriff's Department, was assigned to assist in the collection of evidence from the crime scene. He testified that the victim's body was found on the floor of the minister's office, on her back, between the desk and the wall of the office. Under the desk were numerous items that appeared to be from a purse, and a purse was beneath shelves that were affixed to the wall. One of the victim's shoes was on the floor near her foot, and her other shoe was on the desk. ² A telephone and telephone cord also were on the floor, and the office window was broken. Stockwell was aware that a key was found in the trash can in the minister's office. He observed blood on numerous items in the minister's office.

Stockwell received blood samples from the victim and defendant, which he analyzed to determine 11 genetic markers. His analysis did not involve DNA directly, but focused instead upon particular proteins produced pursuant to the donor's DNA coding. He testified that the 11 particular markers in defendant's blood appear most frequently in the Caucasian population, and those 11 markers are found in one in 42,600 Caucasian individuals.

Stockwell analyzed numerous bloodstains found in the church but was unable to test every stain he collected for each of these 11 genetic markers, because some of the samples were too small.³ All of the bloodstains for which Stockwell obtainedtesting results were (1) consistent with the victim's blood,(2) consistent with defendant's blood, or (3) consistent with a mixture of both individuals' blood. He testified that stains on the victim and on her clothing, and a blood smear on an ottoman located next to her body, were consistent with the victim's blood. Bloodstains, found on the window blinds in the minister's office, apparently had been deposited as a result of being flung with some force from a moving object and were consistent with the victim's blood. Stockwell analyzed samples obtained from the purse and concluded two smears were consistent with the victim's blood, three drops were consistent with defendant's blood, and two drops were consistent with a mixture of blood from both individuals. Stockwell explained that because the mixtures appeared within single drops of blood, the two sources of blood must have mixed before contacting the surface of the purse. Bloodstains consistent with a mixture of the victim's blood and defendant's blood also were collected from the desk, the chair, two shelves of the bookcase, one of the shelves affixed to the wall, and the carpet in the minister's office. Mixed stains also were found on the carpet outside the minister's office and on the floor of the church foyer. Finally, bloodstains consistent with only defendant's blood were found on the carpet in the minister's office, the floor at the...