People v. Frank

Decision Date06 June 1985
Citation700 P.2d 415,214 Cal.Rptr. 801,38 Cal.3d 711
CourtCalifornia Supreme Court
Parties, 700 P.2d 415 The PEOPLE, Plaintiff and Respondent, v. Theodore Francis FRANK, Defendant and Appellant. In re Theodore Francis FRANK on Habeas Corpus. Crim. 21353, 22347.

Donald L.A. Kerson, Deputy State Public Defender, Frank O. Bell, Jr., State Public Defender, Los Angeles, for defendant and appellant.

A. Wells Petersen, Deputy Atty. Gen., San Diego, for plaintiff and respondent.

MOSK, Justice.

Defendant appeals from a judgment of death imposed under the 1977 death penalty law. (Former Pen.Code, §§ 190-190.6, Stats.1977, ch. 316, §§ 4-14, pp. 1256-1263.) He principally contends that the trial court erred in admitting in evidence certain personal writings seized from his apartment. As will appear, we conclude that the contention is meritorious but that the error requires reversal of the judgment only as to penalty.

On March 14, 1978, Cheryl S. left her two-and-one-half-year old daughter Amy at the home of her babysitter before going to work. The babysitter lived in a community about three miles from Camarillo State Hospital near Highway 101. Amy was dropped off at 6:30 a.m.; she napped until 9 or 9:30 a.m., then went outside to play in the backyard, next to an alley. She soon reentered the house and began watching television in the living room. About 10:15 a.m. the babysitter was in the bedroom when she heard the front door close. A few minutes later she went to look for Amy but was unable to find her. The child was not seen alive thereafter.

Chet Allen lives in a rural area off Topanga Canyon Road, some miles from defendant's apartment. When the members of his family returned on March 14 they discovered their house had been broken into. The furniture was in disarray, the bedspread in one bedroom was rumpled, and a rag in the bathroom appeared to have blood on it. Allen did not call the police until two days later, however, when his dogs found the body of a little girl in the back yard, a few feet from a gully containing water from recent storms. A fingerprint analysis established that the dead child was Amy.

An autopsy revealed that Amy had sustained a number of injuries prior to her death. As a result of pressure from a pliers-like instrument, her nipples had been pinched and partially pulled away from her body. She had suffered three blows to her head, knife-like scratches on her chest and abdomen, and ligature marks on her wrist and ankles. The entrance to her vagina was torn and the hymen broken, possibly by insertion of a penis; her anus exhibited evidence of trauma indicating that a foreign object had been inserted there as well. Sperm were discovered in her vaginal area. Her blood had a .03 percent blood alcohol level, which could result if a child of her size had ingested two cans of beer shortly before death. The actual cause of death was strangulation.

Strong circumstantial evidence introduced at trial linked defendant with the abduction and death of Amy. In March 1978 defendant's wife was working at Camarillo State Hospital. Defendant did not work, but was attending college classes at the time on Mondays, Wednesdays, and Fridays. He drove his wife to work on the morning of Tuesday the 14th from their home in Woodland Hills. If he took the most direct route home from Camarillo State Hospital, he would have passed close to the neighborhood from which Amy was abducted. He was scheduled to see his psychologist at 2 o'clock that afternoon, but did not keep the appointment.

Defendant was known to be a recidivist child molester; in fact, he had been released from the mentally disordered sex offender program at Atascadero State Hospital less then two months before Amy's disappearance. The court admitted evidence of his involvement in two other acts of child molesting. The first incident occurred on May 15, 1973, when a four-year-old girl named Rynetta C. was abducted from an alley in East St. Louis, Illinois. The abductor pulled her into his car, covered her with a coat, and drove her to a secluded location near a body of water. There he made her drink beer, took her clothes off, and tied her hands. He scraped her stomach with a knife and inserted the knife into her vagina. He also attached what appeared to be locking pliers to her vaginal area and immersed her in the water. She escaped to a nearby house, whose occupant saw and identified defendant and placed him at the scene of the molestation.

The second incident took place on July 5, 1978, a few months after the death of Amy. An eight-year-old girl named Linda G. was taken from an alley in Panorama City, California, by a man who lured her into his car. The man drove her about 16 miles down Highway 101 to the Griffith Park area, forced her to drink four beers, and proceeded to molest her. He pinched her breasts, and inserted a pen into her vagina and a tire gauge into her anus. He also forced her to orally copulate him, and finally plunged her into a stream. Eventually, he left her alone long enough for her to summon help. Linda identified defendant as her assailant, and so testified at trial.

Defendant was also linked to an attempted abduction of a young child on the morning of Amy's disappearance and in the same neighborhood. About 9 a.m. on March 14, 1978, Lillia Rocha, who lived near the home of Amy's babysitter, interrupted an apparent attempt to abduct her four-year-old son from an alley next to her house. Mrs. Rocha gave a detailed description of the man that matched defendant's appearance, but did not positively identify him.

A pair of vise-grips, a type of locking pliers, were found in defendant's apartment. At trial, there was extensive expert testimony on the many points of similarity between the distinctive pattern of the teeth of these vise-grips and the marks left on Amy's breasts. The witnesses concluded from the nature and extent of this correlation that defendant's vise-grips were the same tool that had been clamped onto Amy's body prior to her death.

After his arrest, defendant became friendly with another inmate named James Smith. He spoke with Smith on numerous occasions, admitting that he was a child molester. Defendant described his method of luring or coercing his preferred victims--little girls between the ages of three and five--into his vehicle, driving them to remote locations, molesting them, then returning them to the place where he had picked them up.

Defendant also told Smith he had seen Amy on several occasions while driving his wife to work, and had twice attempted to pick her up. Both attempts occurred approximately one week before Amy's death; both failed when other persons intervened. Nevertheless, defendant denied having committed the crimes against Amy, offering at various times three different alibis. Later, however, he asked Smith to find out for him about the defenses of diminished capacity and temporary insanity; when Smith asked defendant directly whether he was guilty, defendant did not deny it and replied only that "if he was to tell me that, ... it would be cutting his own throat."

Defendant also talked frequently with an inmate named Donald Cummings. He told Cummings that he often drove around after dropping his wife off at work; he admitted spotting Amy "a couple of times" during such rides. When discussing why certain persons repeatedly committed the same crime, defendant said, "take for instance, a person like me ... I did this before, over and over, you get going doing something, your adrenalin builds up, the excitement is there." He added, however, that "this time, I got carried too far" and "things got out of hand." A third inmate testified that when asked how he could "do such a thing to a child," defendant replied, "I was with her that day, but they aren't going to know that."

Defendant was charged with murder under the 1977 death penalty statute. As special circumstances, it was alleged that the murder of Amy was willful, deliberate and premeditated, and that it (1) was committed during the commission of a rape (former Pen.Code, § 190.2, subd. (c)(3)(iii)), (2) was committed during the commission of a kidnaping (id., subd. (c)(3)(ii)), (3) was committed during the commission of child molesting (id., subd. (c)(3)(iv)), and (4) involved the infliction of torture (id., subd. (c)(4)). Additional counts charged him with forcible rape (Pen.Code, § 261, subd. 2), kidnaping (id., § 207), and child molesting (id., § 288). The information further alleged that each of the latter three crimes involved the intentional infliction of great bodily injury. (Id., § 12022.7.)

The jury found defendant guilty of first degree murder, rape, kidnaping, and child molesting. It found the great bodily injury allegations and the kidnaping special circumstance to be true, but found the other three special circumstances not to be true. At the penalty phase the jury returned a verdict of death. This appeal is automatic. (Id., § 1239, subd. (b).)

I

While defendant was a patient at Atascadero State Hospital between October 1974 and January 1978 he used as personal notebooks a pair of pocket address books and a pocket datebook. In each he jotted down numerous random thoughts of an intimate nature, relating mainly to his emotional and sexual life. The notebooks were seized in a search of his apartment under color of a warrant, and portions of them were admitted in evidence against him at the guilt and penalty phases of his trial. His primary contention is that this evidence was the product of an unreasonable search and seizure. This court, like the United States Supreme Court, seeks to encourage the use of warrants in preference to warrantless searches, however justifiable such a search may be as an exception to the warrant requirement. We therefore follow the rule that " 'courts should not invalidate the warrant by interpreting the affidavit in a...

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