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People v. Kraft8/10/2000
arks of dissimilarity between the uncharged and charged offenses." (People v. Thornton, supra, at p. 758, italics in original; see also id. at p. 759.) As the Attorney General points out, even though various victims in this case were killed under different circumstances, certain unique circumstances nevertheless were common to two or more murders. We conclude that, given the commonality of certain features of the various offenses present in the record of this case, the task of determining the degree of distinctiveness and the number of such circumstances necessary to establish defendant's identity as the perpetrator of these offenses was a matter for the jury. Finding no error, therefore, in submission to the jury of the modus operandi theory, we likewise find no merit in defendant's related claim that the resulting judgment lacks the reliability required by the Eighth and Fourteenth Amendments to the federal Constitution.
Defendant further contends the trial court erred in refusing his special instruction relating to the modus operandi of the Hall count. There was no error: The requested instruction was plainly argumentative, singling out particular pieces of evidence for the jury's consideration without attempting to explain any principle of law. (See People v. Wright (1988) 45 Cal.3d 1126, 1137.) The same infirmity afflicted the requested special instruction pertaining to the Loggins count, which for the same reason was properly refused.
Defendant contends the prosecutor acted in bad faith in trying the present case largely on a modus operandi theory despite his asserted awareness that the method ascribed to defendant matched that employed by Bonin in the latter's numerous killings. As the Attorney General correctly argues, however, the record in this case does not reveal the prosecutor's reasoning as to why the 16 charged murders were committed not by Bonin but by defendant. Defendant invites us to take judicial notice of the records in the Bonin cases, but he fails to explain how doing so would illuminate the prosecutor's thought processes in this case. In any event, for us effectively to augment this record with the records of the Bonin cases would be improper. (See People v. Sakarias (2000) 22 Cal.4th 596, 635-636.) We therefore decline to consider the claim of prosecutorial bad faith in this proceeding. Defendant's citation to Napue v. Illinois (1959) 360 U.S. 264, in which the high court overturned a conviction obtained by the prosecution's knowing use of false evidence, is inapposite given the absence of any suggestion the prosecutor in this case engaged in such a practice. Likewise not on point are Pyle v. Kansas (1942) 317 U.S. 213, involving prosecutorial coercion of witnesses, and Alcorta v. Texas (1957) 355 U.S. 28, involving the prosecutor's failure to correct a witness's false testimony.
2. Trial Court's Refusal To Give Requested Pinpoint Instructions Concerning Identity of Perpetrator
Defendant contends the trial court erred in refusing his requested instructions on the identity of the killer with respect to the counts involving Keith, Loggins, Crotwell, "John Doe Huntington Beach," Klingbeil, Inderbieten, Wiebe, Moore, Crisel, Young, Nelson, DeVaul, and Gambrel, and with respect to the possibility of multiple killers with respect to the Hall and Loggins counts. We conclude the trial court acted within its discretion in refusing as argumentative the requested instructions. A defendant has the right, on request, to instructions that pinpoint the theory of the defense, not specific evidence as such. (People v. Wright, supra, 45 Cal.3d at p. 1137.) The trial court properly refused the requested instructions, which merely invited the jury to draw inferences
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