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People v. Kraft8/10/2000
a felony-murder instruction. We conclude, however, the evidence sufficed to enable a reasonable trier of fact to find that defendant committed a deliberate and premeditated murder while engaged in the commission of sodomy, or, in other words, that the sodomy was not merely incidental to the murder. (See People v. Green (1980) 27 Cal.3d 1, 59-62.) The pattern of offenses disclosed by the evidence in this case, into which the jury could reasonably find the Inderbieten murder fit, is one of gaining control of the victims by means of drugs and/or alcohol, followed by a killing together with some sort of sexual misconduct and/or mutilation-here, both-not apparently done incidentally or as an afterthought.
Even if we agreed with defendant that reversal of the sodomy special circumstance finding were required, however, under the circumstances of this case such reversal would not compel reversal and retrial of penalty. Given that this jury convicted defendant of 16 counts of first degree murder and heard evidence, in the penalty phase, showing he committed eight additional murders, it is not reasonably possible the jury would have returned a more favorable verdict absent the sodomy special-circumstance finding. (People v. Brown (1988) 46 Cal.3d 432, 448.)
C. Instructional and Related Issues
1. Modus Operandi Instructions Given and Refused; Alleged Prosecutorial Bad Faith
Defendant contends the trial court committed several errors in instructing the jury concerning modus operandi. First, as he did in his claim of error in the denial of his motion for severance, he urges there were insufficient distinctive marks common to the various homicides. Hence, he argues, the giving of any modus operandi instruction was unjustified. Second, he contends the special instruction on modus operandi given his jury was legally flawed and compels reversal of eight specified murder counts ("with ramifications that extend to the remainder of the charges"). Third, he claims reversible error in the trial court's refusal of his requested special instructions concerning the Hall and Loggins homicides. Finally, he contends the prosecutor in this case acted in bad faith and presented a false picture to the jury by relying on a modus operandi theory despite his alleged awareness that the modus operandi of some of the homicides resembled that of William Bonin and his confederates. (See People v. Bonin (1988) 46 Cal.3d 659; People v. Bonin (1989) 47 Cal.3d 808.) Defendant's contentions lack merit.
Defendant criticizes the special instruction given the jury as not setting up a single standard against which to assess all of the charged offenses. "No specific group of homicides," he argues, "was offered as determining the pattern of characteristics making up [defendant's] modus operandi." Defendant's premise, that modus operandi requires one single set of distinctive marks common to all charged counts, is unsupported by authority. Indeed, one of the cases on which he relies, People v. Thornton (1974) 11 Cal.3d 738, analyzes the admissibility, on the question of identity, of evidence of several different sexual assaults charged to the defendant in that case in precisely the manner defendant insists is error in this case. That is, in People v. Thornton this court enumerated various unusual characteristics of the crimes and noted those shared by the charged offenses, but we did not, as defendant apparently would have us do, look for characteristics not so shared by a particular offense and thereby disqualify that offense from consideration on modus operandi. Indeed, we noted that the probative value of the evidence of one uncharged offense " s not significantly diminished by the presence of certain m
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