People v. Payton, No. S004437

• Court: United States State Supreme Court (California)
• Writing for the Court: ARABIAN; We appointed the Honorable Robert E. Rickles; LUCAS; KENNARD; MOSK
• Citation: 3 Cal.4th 1050,13 Cal.Rptr.2d 526,839 P.2d 1035
• Parties: , 839 P.2d 1035 The PEOPLE, Plaintiff and Respondent, v. William Charles PAYTON, Defendant and Appellant. In re William Charles PAYTON, on Habeas Corpus. Crim.
• Decision Date: 23 November 1992
• Docket Number: 25552,Nos. 25511,No. S004437

Page 526

13 Cal.Rptr.2d 526 3 Cal.4th 1050, 839 P.2d 1035 The PEOPLE, Plaintiff and Respondent,
v.
William Charles PAYTON, Defendant and Appellant.
In re William Charles PAYTON, on Habeas Corpus. No. S004437.
Crim. Nos. 25511, 25552. Supreme Court of California,
In Bank. Nov. 23, 1992.
Rehearing Denied Feb. 10, 1993.

Page 530

[3 Cal.4th 1056] [839 P.2d 1038] Ellen Bailer Fondiler, Barry L. Levin, Stamp & Franklin and Joel Franklin, Pacific Grove, for defendant and appellant.

John K. Van de Kamp and Daniel E. Lungren, Attys. Gen., Steve White and Richard B. Iglehart, Chief Asst. Attys. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., Frederick R. Millar, Jr., Jay M. Bloom, Holly D. Wilkens, John W. Carney and Esteban Hernandez, Deputy Attys. Gen., for plaintiff and respondent.

ARABIAN, Justice.

A jury convicted defendant of the 1980 first degree murder and rape of Pamela Montgomery, and the attempted murders of Patricia Pensinger and Patricia's son, Blaine Pensinger, all counts with the use of a butcher knife. (Pen.Code, §§ 187, 261, subd. (2), 664, 12022, former subd. (a).) ¹ The jury also found true the special circumstance[839 P.2d 1039] allegation that the murder was committed while engaged in the commission or attempted commission of rape. ( § 190.2, subd. (a)(17)(iii).) After a penalty trial, the jury imposed the death penalty. The court denied defendant's automatic motion to modify the verdict. ( § 190.4, subd. (e).) This appeal is automatic. ( § 1239.)

Defendant filed a separate petition for a writ of habeas corpus alleging that a psychological defense based upon his "combat experiences" in Vietnam should have been presented at trial. We issued an order to show cause, and consolidated the matter with the appeal. A referee presided over an evidentiary hearing, and has issued his report.

We affirm the judgment and deny the petition.

3 Cal.4th 1057

I. THE APPEAL

A. THE FACTS

1. Guilt Phase

Patricia Pensinger lived in Garden Grove with her three sons, including 10-year-old Blaine, and some boarders. One boarder, Pamela Montgomery, had moved into the house two days earlier. She was living there while her husband was on duty with the National Guard. Defendant and his wife had also been boarders at one time.

Around 4 a.m., May 26, 1980, Patricia, unable to sleep, was sitting in her kitchen working on a crossword puzzle. She heard the front door open, and then saw defendant enter the kitchen. Defendant said that he had car problems and wanted to talk to Patricia. She offered him a beer, and the two talked for a while. At one point, Pamela Montgomery entered the kitchen briefly to get a glass of water. Patricia introduced defendant to Pamela. After Pamela left the kitchen, defendant and Patricia continued talking. Defendant drank a total of three beers. Eventually, around 4:50 a.m., defendant asked Patricia if he could sleep on her couch in the living room. She agreed, and then went to sleep in her bedroom. Blaine was also sleeping in her bed.

Patricia was awakened some time later by "two blows on [her] back." She rolled over in time to see defendant jump onto the bed on top of her. He stabbed her repeatedly with a knife, primarily on the face and neck. Blaine woke up, and tried to take the knife away from defendant, but defendant also stabbed him. Patricia yelled, "Take me, leave my son." Defendant tried to stab her in the abdomen, then tried a second and a third time to stab her; the knife blade had bent, and would not penetrate. Defendant got off the bed and left the room, yelling, "I'm leaving now."

Patricia told Blaine that she would try to keep defendant busy and that he should try to escape. She went into the kitchen, and saw defendant. The knife he had used was lying on the counter. Defendant reached for a second knife, and stabbed Patricia in the back. Blaine ran through the kitchen. As he ran past, defendant also stabbed him in the back. Defendant then resumed stabbing Patricia. Another son woke up by

Page 531

this time. Patricia yelled for her sons to awaken a male boarder. Defendant dropped the second knife on the kitchen floor, and fled the house through the front door.

Patricia suffered 40 stab wounds to her face, neck, back and chest. Blaine suffered 23 stab wounds to his face, neck and back. Both survived.

[3 Cal.4th 1058] Not so fortunate was Pamela Montgomery. Her body, clad only in a nightgown that was open in the front, was found lying in a pool of blood on her bedroom floor. The body had 12 stab wounds, including 6 in a line from above the stomach to the pubic area. Three of the latter wounds alone would have been fatal. There were also some "defense wounds" sustained when the victim tried to defend herself. The victim had been dead about 15 to 30 minutes before the body was discovered.

Blood was found in various places in the bedroom and in a nearby bathroom. A pair of panties entwined around some shorts were found on the victim's bed. Saliva consistent with defendant's (and with that of a sizable portion of the general population) was found on the victim's breast. Semen[839 P.2d 1040] that could have come from defendant was found in the victim's vaginal area. Defendant's fingerprint was found on a beer bottle in the kitchen.

After fleeing the Pensinger house, defendant went home, arriving around 6:15 a.m. Defendant's wife, Deborah Payton, waived the privilege not to testify against her husband, and testified that defendant's clothes, face, and hands were covered with blood. Some of the blood was still wet. His index finger was cut. When defendant removed his clothes, she observed that his genital area was covered with a "lot" of blood, as were his legs, chest and other parts of his body. His body contained scratches and what Deborah described as "fingernail digs," as if "somebody had applied quite a bit of pressure with fingernails."

Defendant and his wife left town that morning. Defendant was eventually arrested in Florida.

While in the Orange County jail, defendant told a fellow inmate about the crime. He said he raped and stabbed a woman, then stabbed a boy and the boy's mother. Defendant said he had "this urge to kill."

The defense presented no guilt phase evidence.

2. Penalty Phase

The prosecution presented evidence that in 1973, defendant stabbed a woman he was living with repeatedly in the chest and arm. A county jail inmate testified that defendant told him about the crimes committed in the Pensinger house. As a reason for the crimes, defendant said that he had a "severe problem with sex and women," and that he would "stab them and rape them." Defendant said "that all women on the street that he seen was a potential victim, regardless of age or looks."

[3 Cal.4th 1059] The parties stipulated that defendant had suffered two prior felony convictions, both in 1976, one in Idaho for possession of over three ounces of marijuana, and one in Oregon for unlawful consensual sexual intercourse with a minor under the age of eighteen.

The defense presented evidence that defendant had become a religious person since his arrest and custody in jail. His mother testified that he was "totally immersed in the Lord." A minister who had known defendant for many years believed that his recent "commitment to the Lord" was sincere. A mission director testified about defendant's religious conversion and the good qualities he exhibited in jail. Defendant had established Bible study classes in jail, and had almost completed an autobiography that had an "excellent chance of being published in an international ... Christian publishing house." Many jail inmates "respect him and trust him and have a confidence in him." He hoped to develop a "ministry within the prison system" that would rehabilitate people. A deputy sheriff testified that defendant led Bible study sessions in jail, and had a positive influence on other inmates. Four fellow inmates testified about defendant's beneficial influence in jail.

Page 532

B. DISCUSSION

1. Guilt Phase

(a) Instruction Regarding Informant's Testimony

Defendant contends the trial court erred by failing to instruct on its own motion that the testimony of a jailhouse informant should be viewed with suspicion and distrust, and that such testimony is inherently unreliable. We have repeatedly rejected similar contentions. (People v. Gonzalez (1990) 51 Cal.3d 1179, 1209-1210, 275 Cal.Rptr. 729, 800 P.2d 1159, and cases cited therein.) Defendant was given full opportunity to explore in front of the jury any motive to cooperate or other bias on the part of all the witnesses, including the jailhouse informant. The standard instructions on judging the credibility of witnesses adequately guided the jury's assessment of the jailmate's testimony. (Ibid.) ²

[839 P.2d 1041] Defendant also argues that the jury should not convict on the basis of uncorroborated testimony of informants. (Cf. § 1111 [accomplice testimony [3 Cal.4th 1060] must be corroborated].) Neither we nor the Legislature has created such a requirement, but we need not resolve the question here, for the informant's testimony formed but a small part of the overall strong evidence against defendant. (See People v. Alcala (1984) 36 Cal.3d 604, 624, fn. 10, 205 Cal.Rptr. 775, 685 P.2d 1126.)

(b) Instructions on Diminished Capacity

Defendant contends the court's instructions on diminished capacity were insufficient. ³ As in People v. Frierson (1979) 25 Cal.3d 142, 155-157, 158 Cal.Rptr. 281, 599 P.2d 587, we disagree for three reasons: (1) there was insufficient evidence to warrant diminished capacity instructions at all, (2) the instructions the court did give were sufficient, and (3) any error was harmless given the actual verdicts.

Defendant relied solely on the following testimony of Patricia Pensinger to support the diminished capacity claim. Defendant drank three beers while they talked in the kitchen. Defendant "had a funny way of shuffling his feet when he walks when he gets...