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Full Opinion
In re Peter SAKARIAS on Habeas Corpus.
In re Tauno Waidla on Habeas Corpus.
Supreme Court of California.
*269 Cliff Gardner, San Francisco, under appointment by the Supreme Court, and Robert Derham, San Anselmo, for Petitioner Peter Sakarias.
Maria E. Stratton, Federal Public Defender and Sean K. Kennedy, Deputy Federal Public Defender, for Petitioner Tauno Waidla.
Bill Lockyer, Attorney General, David P. Druliner and Robert R. Anderson, Chief Assistant Attorneys General, Carol Wendelin Pollack and Pamela C. Hamanaka, Assistant Attorneys General, Sanjay T. Kumar, Susan Lee Frierson, John R. Gorey and Michael C. Keller, Deputy Attorneys General, for Respondent the People.
Steve Cooley, District Attorney, Brentford J. Ferreira and Hyman Sisman, Deputy District Attorneys, for Los Angeles District Attorney's Office as Amicus Curiae on behalf of Respondent the People.
Certiorari Denied October 11, 2005. See 126 S.Ct. 430.
WERDEGAR, J.
In 1990, petitioners Peter Sakarias and Tauno Waidla were each, in separate trials, convicted of first degree murder with special circumstances and sentenced to death in the killing of Viivi Piirisild. We affirmed each of their convictions and sentences on automatic appeal (People v. Sakarias (2000) 22 Cal.4th 596, 94 Cal. Rptr.2d 17, 995 P.2d 152 (Sakarias); People v. Waidla (2000) 22 Cal.4th 690, 94 Cal.Rptr.2d 396, 996 P.2d 46 (Waidla)), but issued orders to show cause in response to their petitions for writs of habeas corpus, on claims the prosecutor, in each trial, had presented factual theories inconsistent with those presented at the codefendant's trial. In response to Waidla's petition, we also specified a procedural issue: whether claims of error under Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (Miranda) are cognizable on habeas corpus. On receipt of the returns and traverses, we consolidated the two causes for consideration and decision and appointed a referee to hear evidence and make factual findings. The referee has now issued his report, and the parties have filed briefs on the merits.
The evidence at petitioners' trials showed they both participated in the fatal attack on Viivi Piirisild, which was perpetrated with a hatchet and a knife. (See *270 Sakarias, supra, 22 Cal.4th at pp. 611-613, 94 Cal.Rptr.2d 17, 995 P.2d 152; Waidla, supra, 22 Cal.4th at p. 710, 94 Cal.Rptr.2d 396, 996 P.2d 46.) But both petitioners contend their joint prosecutor, Los Angeles County Deputy District Attorney Steven Ipsen, inconsistently and falsely portrayed their respective roles in the attack, attributing to each, in their respective trials, a series of three blows struck to the victim's head with the blade of the hatchet. Petitioners claim this prosecutorial inconsistency deprived them of due process, requiring that their death sentences be vacated. We agree with Sakarias that the prosecutor violated his due process rights by intentionally and without good faith justification arguing inconsistent and irreconcilable factual theories in the two trials, attributing to each petitioner in turn culpable acts that could have been committed by only one person. We also agree this violation prejudiced Sakarias, entitling him to relief. We do not decide whether the prosecutor's conduct was a due process violation as to Waidla, as we conclude any such violation was harmless in his case.
Finally, we hold Miranda claims are cognizable on habeas corpus in California courts, but that such a claim is subject to denial on procedural grounds where, because it rests on facts in the appellate record, the claim was already raised and rejected, or could have been raised but was not, on direct appeal. (In re Harris (1993) 5 Cal.4th 813, 824-829, 21 Cal. Rptr.2d 373, 855 P.2d 391; In re Waltreus (1965) 62 Cal.2d 218, 225, 42 Cal.Rptr. 9, 397 P.2d 1001; In re Dixon (1953) 41 Cal.2d 756, 759, 264 P.2d 513.) Other procedural bars, of course, may also apply to a Miranda claim in a given case.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Facts of the Crime
Waidla and Sakarias were both born in Estonia while that nation was part of the Soviet Union. They met as conscripts in the Soviet Army, from which they defected together, coming in 1987 to Los Angeles. There, they were taken under the wing of an Estonian-American couple, Avo and Viivi Piirisild, who offered to help them obtain jobs and education. For a period in 1987-1988, Waidla lived in the Piirisilds' guest house, performing remodeling work and other chores in exchange for his room and board. (Sakarias, supra, 22 Cal.4th at p. 609, 94 Cal.Rptr.2d 17, 995 P.2d 152; Waidla, supra, 22 Cal.4th at pp. 705-707, 94 Cal.Rptr.2d 396, 996 P.2d 46.)
Relations soon soured between petitioners and the Piirisilds. In May 1988, Waidla demanded the Piirisilds give him money or a sports car they had promised him for his work and threatened, otherwise, to report them for doing construction without a permit. When the Piirisilds told Waidla to leave their home, Waidla threatened to hurt or kill Avo. Later, Viivi received a postcard with a rattlesnake on it from Sakarias and Waidla, who were traveling together. Sakarias later told police he believed Viivi had been spreading harmful rumors about him and Waidla within the Estonian community, damaging their prospects for help from other Estonians around North America. (Sakarias, supra, 22 Cal.4th at pp. 610, 612, 94 Cal.Rptr.2d 17, 995 P.2d 152; Waidla, supra, 22 Cal.4th at pp. 707-709, 94 Cal.Rptr.2d 396, 996 P.2d 46.)
During early July 1988, petitioners broke into the Piirisilds' unoccupied cabin in Crestline. They stayed for several days, leaving only when they ran out of food and taking with them various items of the Piirisilds' property, including a hatchet. On July 12, angry, hungry, and in need of money, they went to the Piirisilds' North Hollywood home and broke in through the back door. They ate food *271 from the kitchen and took some jewelry while waiting for Viivi to return home. Sakarias later told the police he and Waidla were planning to get money for food and to confront Viivi and frighten her into giving them the sports car; he also said that having contemplated killing themselves because of their poor situation, they decided to kill Viivi first so "`she is not gonna see my funeral'" or, with her husband, "`laugh on us for the rest of their lives.'" (Sakarias, supra, 22 Cal.4th at pp. 610, 612-613, 94 Cal.Rptr.2d 17, 995 P.2d 152; Waidla, supra, 22 Cal.4th at pp. 709-710, 94 Cal.Rptr.2d 396, 996 P.2d 46.)
When Viivi entered the house through the front door, petitioners immediately attacked her, using a knife and the hatchet they had taken from the Crestline cabin. They bludgeoned her with the blunt end of the hatchet, stabbed her with the knife, and chopped at her with the hatchet blade. Overall, the medical examiner found five blunt force impacts to Viivi's head (which fractured her skull and facial bones, knocked out her teeth, and broke her larynx), four stab wounds to her chest (two of which passed through vital organs), and three chopping wounds to her upper head. One of this last group of injuries, inflicted before death, was struck with "tremendous" force, penetrating Viivi's skull completely. The other two chopping wounds were inflicted with somewhat less force, after or around the time of death. The medical examiner attributed Viivi's death to the combination of wounds, several of which could have been fatal individually. After the attack in the entryway, petitioners dragged Viivi down the hall to a bedroom, where her body was found. According to the medical examiner's testimony at Waidla's trial, an abrasion on Viivi's lower back, caused by rubbing of her skin against another surface (which could have been incurred when she was dragged to the bedroom), was inflicted after her death. (Sakarias, supra, 22 Cal.4th at pp. 611-613, 94 Cal.Rptr.2d 17, 995 P.2d 152; Waidla, supra, 22 Cal.4th at p. 710, 94 Cal.Rptr.2d 396, 996 P.2d 46.)
Sakarias told police that during the initial attack he wielded the knife while Waidla used the hatchet. Sometime later, at Waidla's direction, he went to the bedroom and chopped Viivi's head twice with the hatchet. (Sakarias, supra, 22 Cal.4th at p. 613, 94 Cal.Rptr.2d 17, 995 P.2d 152.) Waidla gave a statement admitting only a single bludgeoning blow, with the back of the hatchet at the outset of the attack, and denying any memory of how the rest of the attack proceeded. He recanted even that confession at his trial, testifying he had left Los Angeles three days before Viivi Piirisild was killed. (Waidla, supra, 22 Cal.4th at p. 712, 94 Cal.Rptr.2d 396, 996 P.2d 46.)
Petitioners sold the jewelry they took and used Viivi's credit cards for airline tickets, telephone calls, and other purchases. They were arrested more than a month later near the United States-Canada border in New York State. (Sakarias, supra, 22 Cal.4th at p. 612, 94 Cal. Rptr.2d 17, 995 P.2d 152; Waidla, supra, 22 Cal.4th at pp. 710-711, 94 Cal.Rptr.2d 396, 996 P.2d 46.)
B. The Inconsistent Factual Theories
Petitioners were jointly charged with Viivi Piirisild's murder, but their cases were severed after Sakarias was found incompetent to stand trial. (Waidla, supra, 22 Cal.4th at p. 704, 94 Cal.Rptr.2d 396, 996 P.2d 46.) Waidla's jury trial began with the prosecution's opening statement on October 24, 1990; penalty arguments were made on January 2, 1991. Sakarias's trial began on September 30, 1991, with penalty arguments on October 30, 1991.
*272 As reflected in the summary above, the evidence at petitioners' trials, taken as a whole, strongly suggests Waidla (who first wielded the hatchet, according to both petitioners' statements) struck the first, antemortem blow with the hatchet blade in the entryway, while Sakarias (who admitted doing so) inflicted the two post- or perimortem chopping wounds in the bedroom. (There was no evidence in either trial to suggest the perpetrators switched weapons during the initial attack.) But the prosecutor, Ipsen, did not argue at either trial the version of the attack best supported by all the evidence. Instead, at each defendant's trial he maintained the defendant on trial had inflicted all the chopping wounds.
In Waidla's trial, Ipsen introduced Waidla's admission that he, rather than Sakarias, had initially used the hatchet against Viivi Piirisild. (Sakarias's confession to police, in which he admitted striking two blows with the hatchet in the bedroom, was not introduced at Waidla's trial.) Although Waidla only admitted hitting Viivi with the back of the hatchet, Ipsen argued the jury should find Waidla actually used the hatchet throughout, "choosing ... the more devastating of the instruments," while Sakarias "accept[ed]" the knife, "the lesser implement." With the hatchet, Ipsen argued, Waidla first inflicted the blunt force injuries, then, "turning the hatchet blade so it was more effective ... [he] was now able to chop through the top of her skull." Ipsen suggested Waidla simply did not want to acknowledge his role in the attack, "his repeated striking of Viivi Piirisild, and swinging with the sharp end of the hatchet ... until she was dead." He emphasized the extended and repeated efforts both assailants made to ensure Viivi's death, "as Mr. Waidla indicated, himself with the hatchet, Mr. Sakarias who came up later with the knife." Waidla's use of the hatchet blade continued, Ipsen argued, even after Viivi was dead: "`[S]he's alive, she's alive, she's alive.' Sharp end, `she's dead,' and then further blows indicating further blows were struck after she was dead, the non-hemorrhagic chop wounds to the head."
Having elicited, in the Waidla trial, the opinion of Dr. James Ribe, the medical examiner, that the abrasion on Viivi's lower back was incurred postmortem, Ipsen emphasized that the initial attack in the living room was fatal: "At the point that she was dragged into the back room, we know that Viivi Piirisild was already dead by the facts as the coroner testified. So, we know it was in that front room that the attack occurred, and that Viivi Piirisild was bludgeoned, chopped and stabbed until life left her body." Finally, in penalty argument, Ipsen urged a death sentence, in part because Waidla, after hitting Viivi repeatedly with the hatchet's blunt end, "chose to change the angle of the blade.... Although he felt her head and her flesh against the back of his hatchet numerous times, he knew his mission wasn't accomplished, and that's when he changed and switched and used the sharp edge of the hatchet to give that death blow."
In Sakarias's trial, the prosecutor asked the medical examiner, Dr. Ribe, about each stabbing, chopping, or blunt force injury shown in the autopsy photographs, in many instances asking whether the wounds were ante- or postmortem, but he did not examine Dr. Ribe about the lower back abrasion at all. He thus avoided eliciting Dr. Ribe's opinion, expressed in Waidla's earlier trial, that the abrasion had occurred after death and could have been caused by dragging Viivi's body along the carpeted hallway to the bedroom.
*273 Due to this omission, no evidence was before Sakarias's jury that Viivi Piirisild was dead by the time Sakarias, as he admitted, struck her with the hatchet in the bedroom. The prosecutor was thus able to, and did, argue that Sakarias had, in the bedroom, inflicted all three chopping injuries, including the first, antemortem one. Thus Ipsen, in his guilt phase argument, told the jury that Sakarias, in the bedroom, inflicted "three ... sharp hatchet wounds to the top of Viivi's head with a tremendous force .... [¶] ... [¶] We know that there are in fact three hatchet wounds; the first penetrating the top of the skull, and I know it was the first because it was a hemorrhagic wound, the one in the hairline, the one that chopped the top of her head completely off with the exception of some of the scalp that kept it completely on. [¶] We know that when it's hemorrhagic it means that Viivi, whether conscious or not, still suffered that blow while alive, and we know that the last two in the forehead area being non-hemorrhagic were at a time when her body had ceased to live, or unfortunately actually possibly that the blood flow was not great enough to cause hemorrhage. [¶] ... [¶] Again, Mr. Sakarias indicates he believes he hit her two times with the hatchet when he used the hatchet. Again, by the evidence, he was off by only one blow."
In the penalty phase argument at Sakarias's trial, the prosecutor again portrayed Sakarias as having inflicted the antemortem hatchet-blade wound, which he characterized as finally causing Viivi's death. Sakarias's participation in the crime could not be considered minor, Ipsen argued; he was "as involved in the murder of Viivi Piirisild as one could ask, swinging what I suggest were the blows that actually ended her life." Referring to Sakarias in the second person, Ipsen argued that if, after the attack in the living room, "you had called 911, realizing what you had done and attempted to save her life, ... perhaps you would deserve the pity, the sympathy, perhaps the scales of justice would lean in your direction. [¶] ... [¶] If, when you walked back to the back room with that hatchet and thought Viivi Piirisild is still alive, and you must have, otherwise you wouldn't have gone back there with that hatchet, and if you just simply didn't chop the top of her head off, as the evidence indicated you did in that back room, thus finally ending her life."
In addition to the prosecutorial arguments just recited, petitioners also complain of inconsistency in the prosecutor's penalty phase arguments relating to domination. (See Pen.Code, § 190.3, factor (g) ["substantial domination" by another may be considered in mitigation].) At Waidla's trial, Ipsen argued Waidla "is not one who is dominated by another, but instead the facts indicate that he was the dominate [sic] person between himself and Mr. Sakarias, that he was the planner, he was the one who knew of the Piirisild home and knew of the facts surrounding the burglary, the robbery of Mrs. Piirisild." At Sakarias's trial, in contrast, Ipsen argued Sakarias was "in no way" dominated by Waidla: "They were separate individuals joined by a common plan, a common hatred, common goals." Petitioners' actions in killing Viivi and escaping were those of "a partnership like a right hand and a left hand," with "absolutely no evidence of domination."
C. The Habeas Corpus Proceedings
We issued orders to show cause based on petitioners' allegations that the inconsistent factual presentations outlined above deprived them of fair trials on the question of penalty, in violation of the due process guarantee of the Fourteenth Amendment to the United States Constitution, the Eighth Amendment's prohibition on cruel *274 and unusual punishment, and article I, section 15 of the California Constitution. In their returns, the People, represented by the Attorney General, admitted Ipsen had argued inconsistent theories of the attack on Viivi Piirisild, but denied he did so intentionally, that he knowingly presented any false evidence or argument at either trial, that he manipulated the evidence to increase each petitioner's culpability, or that any inconsistencies could have affected the verdicts. The People relied in part on a declaration by Ipsen, executed November 7, 2001, stating that he did not "knowingly present any false evidence or argument to either jury" and did not "intentionally" present inconsistent theories in argument. He did not, in Sakarias's trial, intentionally omit evidence of the postmortem abrasion or its significance, and when he argued to Sakarias's jury that Sakarias had inflicted the antemortem hatchet blow, Ipsen declared, he "did not remember that I had argued something different to the Waidla jury."
Petitioners, by their traverses, placed at issue the truth of the People's denials. We therefore appointed a referee to hear evidence and answer the following factual questions concerning Ipsen's conduct of the two trials:
1. Was prosecutor Steven Ipsen's argument of inconsistent factual theories to the juries in the trials of petitioners Waidla and Sakarias intentional or inadvertent?
2. (a) Did Ipsen believe, at the time of Sakarias's trial, that the murder victim, Viivi Piirisild, was already dead at the time she was dragged from the living room to the bedroom? (b) Did he have reason to believe Piirisild was dead when moved to the bedroom?
3. At Sakarias's trial, did Ipsen deliberately refrain from asking the medical examiner, Dr. James Ribe, about a postmortem abrasion on the victim's back?
4. At Waidla's trial, did Ipsen refrain from seeking admission of Sakarias's confession into evidence because it contradicted the factual theory he intended to argue to the Waidla jury?
The referee heard testimony from Ipsen and from the former head of Ipsen's branch of the district attorney's office. In addition, the referee admitted and reviewed numerous exhibits, including crime scene and autopsy photographs from the two trials, and took notice of the reporters' transcripts of the trials. The referee summarized his findings on the submitted questions as follows:
"1. Ipsen's argument of inconsistent factual theories to the juries in the trials of Waidla and Sakarias was an intentional strategic decision designed to fit the evidence Ipsen presented at the successive trials, to meet the proffered defense theories, and to maximize the portrayal of each defendant's culpability.
"2. (a) At the time of the Sakarias trial, Ipsen did not believe that Piirisild was already dead when she was dragged from the living room to the bedroom. (b) At the time of the Sakarias trial, Ipsen had strong reason to believe that Piirisild was dead when she was dragged from the living room to the bedroom. Although Ipsen also had some lesser reason to believe she may have been alive, the great weight of the evidence did not support that view. Further, as explained below in Issue No. 3, Ipsen intentionally did not elicit testimony from Dr. Ribe about the postmortem abrasion on Piirisild's back, because the most likely interpretation of the abrasion was inconsistent with the theory of the killing Ipsen presented at Sakarias' trial.
"3. Ipsen deliberately refrained from asking Dr. Ribe about the postmortem abrasion on Piirisild's back. He did so to tailor his evidentiary presentation to his *275 changed theory of the hatchet wounds. The most likely explanation of that abrasion would have been inconsistent with the factual theory of the killing he presented in Sakarias' trial.
"4. Ipsen believed that Sakarias' confession was inadmissible at Waidla's trial. For that reason, and not because it contradicted the factual theory he intended to argue to the Waidla jury, he did not offer it against Waidla."
The parties (and the Los Angeles County District Attorney's Office, as amicus curiae) have filed postreference briefs on the merits. They take no exception to the referee's findings, but dispute the legal consequences of those findings.
II. DISCUSSION
A. Review of Referee's Findings
"The referee's findings are not binding on us, but are entitled to great weight when supported by substantial evidence. (In re Ross (1995) 10 Cal.4th 184, 201 [40 Cal.Rptr.2d 544, 892 P.2d 1287]; In re Marquez (1992) 1 Cal.4th 584, 603 [3 Cal.Rptr.2d 727, 822 P.2d 435].) Deference to the referee is called for on factual questions, especially those requiring resolution of testimonial conflicts and assessment of witnesses' credibility, because the referee has the opportunity to observe the witnesses' demeanor and manner of testifying. (In re Ross, supra, 10 Cal.4th at p. 201, 40 Cal.Rptr.2d 544, 892 P.2d 1287; In re Jackson (1992) 3 Cal.4th 578, 585 [11 Cal.Rptr.2d 531, 835 P.2d 371].)" (In re Malone (1996) 12 Cal.4th 935, 946, 50 Cal. Rptr.2d 281, 911 P.2d 468.) Upon review, we find each of the referee's findings supported by substantial evidence and, like the parties, we accept them.
1. Ipsen's use of divergent factual theories was intentional
Ipsen testified at the reference hearing, as he stated in his earlier declaration, that his presentation of inconsistent theories was "not intentional." He noted that in the interval between the trials he probably handled other cases and described himself as an "instinct[ive]" litigator who did not typically follow detailed notes or a script in his examination of witnesses. When he made his closing argument in the Sakarias case, he did not have in mind what he had argued to the Waidla jury: "the last thing I'm thinking about when I'm arguing in one trial is trying to remember what I argued in another trial."
The referee found Ipsen's claim of inadvertence "unconvincing": "Despite a lapse of eight months between trials, it is unlikely that a competent and committed prosecutor like Ipsen, handling the severed trials of two defendants jointly charged with capital murder, would simply forget at the second trial what specific factual theory of the gruesome murder he presented at the first.... [T]he Waidla and Sakarias trials were Ipsen's first murder cases, his first death penalty cases. He was depressed about the death verdict in Waidla for approximately two weeks.[[1]] It is improbable that his factual depiction of the killing in Waidla would have totally escaped his notice in Sakarias. Moreover, the assertion of inadvertence in presenting the inconsistent theories implies a level of carelessness that is simply not present in Ipsen's prosecution of Sakarias."
Substantial evidence supports the referee's conclusion. Ipsen testified at the hearing that he "always," including at the *276 time of Waidla's trial, "had a belief that Mr. Sakarias inflicted hatchet wounds in the back room." Ipsen also testified he probably had the Sakarias statement, which contained that admission, before Waidla's trial. In addition, Waidla's statement to police, admitted at his trial, indicated that Sakarias had taken the hatchet into the bedroom after they dragged Viivi Piirisild there. Yet, in argument to the Waidla jury, Ipsen not only did not suggest Sakarias had ever used the hatchet, instead impliedly attributing all such blows to Waidla, but expressly argued Waidla had struck Viivi repeatedly with the blade, inflicting not only the hemorrhagic "death blow" but also the additional "non-hemorrhagic chop wounds to the head." As Ipsen, according to his testimony, believed at the time that Sakarias had struck some of the hatchet blows, and as Waidla's statement, which was in evidence, would have supported such an argument (or at least an argument that Sakarias might have struck Viivi with the hatchet in the bedroom), "the inference," as the referee found, "is clear: Ipsen set aside that belief, and argued that Waidla inflicted all the hatchet wounds, thus enhancing the theory of Waidla's culpability."
At Sakarias's trial, of course, the prosecutor introduced, and relied upon, Sakarias's confession, which included his account of taking the hatchet into the bedroom and striking Viivi twice with it. But Ipsen also attributed to Sakarias the hemorrhagic, antemortem chopping wound, despite having proven and argued in Waidla's trial, some months earlier, that Viivi was already dead when moved to the bedroom. As the referee found, on substantial evidence, Ipsen intentionally refrained from putting the same evidence before the Sakarias jury. The inference is therefore strong that his argument to the Sakarias jury, that Sakarias had inflicted the hemorrhagic chopping wound, was also intentional.
2. Ipsen had strong reason to believe, while prosecuting Sakarias, that the victim was already dead when moved to the bedroom
Although there were slight grounds for doubt, the referee found, "the great weight of the available evidence" supported the view that Viivi Piirisild died in the living room. The postmortem abrasion, in particular, was best explained as the result of Viivi's body being dragged across the carpet to the bedroom. While the abrasion could conceivably have had other causes, "[t]he dragging explained the size, nature, and location of the abrasion" and was also consistent with the condition of Viivi's clothing.
The finding that Ipsen had strong reason to believe Viivi was already dead when moved to the bedroom is supported by substantial evidence. The police detective testified in Sakarias's trial that among the bloodstains on the living room carpet was a large concentration of blood "consistent with a body lying in that position bleeding for ... an extended period of time ...," possibly as long as 10 or 15 minutes. In contrast, the detective described no bloodstains on the floor of the bedroom and no large-volume stains at all; rather, the blood in the bedroom, spattered on walls and the ceiling, was in one area "minimal" in volume and in another had "enough substance to actually start to trickle down the wall" but "wasn't a great amount of blood." By far the most persuasive explanation for the abrasion on Viivi's lower back, as the referee stated, was that it was caused by dragging her body to the bedroom. Since the medical examiner, as far as Ipsen knew, had not changed his opinion that the abrasion was incurred after death, Ipsen had no objective grounds on *277 which to abandon his theory, which fit with all this evidence, that petitioners' initial attack on Viivi Piirisild, in her living room, was fatal.
3. Ipsen deliberately refrained from asking Dr. Ribe about the postmortem abrasion in Sakarias's trial
The referee, observing that in Sakarias's trial Ipsen had introduced virtually all the same autopsy photographs as in Waidla's trial but had omitted exhibit 59K, which showed the abrasion on Viivi Piirisild's back, concluded Ipsen's omissions of this exhibit and of questioning regarding the abrasion were deliberate, designed to avoid the presentation of evidence "inconvenient" to his new and different theory of the attack, evidence "much easier to omit than to explain."
We conclude this finding is supported by substantial evidence. Though Ipsen testified he had "no memory of deciding not to introduce that [exhibit]," he agreed it was "odd" that "the one photograph is not in." To be sure, Ipsen's examination of Dr. Ribe in Sakarias's trial was not as long as in Waidla's; Ipsen testified he was less concerned with the medical and physical evidence in Sakarias's trial, where Sakarias had confessed to the attack and raised a psychiatric defense, than in Waidla's. But even in Sakarias's trial, the examination of Dr. Ribe was methodical, covering each of Viivi Piirisild's major injuries and including questions as to the hemorrhagic or nonhemorrhagic character of most. In an earlier examination of the police detective, moreover, Ipsen had already presented evidence that the abrasion on Viivi's body and the condition of the carpeting corroborated Sakarias's statement that petitioners had dragged her body to the bedroom. As the referee reasoned, "It is highly improbable that Ipsen recognized the significance of the abrasion as evidence that the body was dragged, but forgot the significance of the abrasion as evidence that Piirisild died in the living room before being dragged to the bedroom." In light of this circumstantial evidence, and given Ipsen's lack of specific memory as to how he came to omit examination on the postmortem character of the abrasion, the referee could reasonably conclude the omission was deliberate.
4. Ipsen did not offer Sakarias's confession at Waidla's trial because he believed it would be inadmissible
Ipsen testified he would have liked to introduce Sakarias's confession, which implicated Waidla equally, in Waidla's trial, but assumed it would be subject to a successful objection. "My understanding of the law at the time and still today, is that when I'm prosecuting Mr. Waidla and charging him with murder, I can't use the statement of his accomplice against him." At trial before a judge he knew to be highly experienced in criminal law, "If I had tried to get in evidence, which everyone knows is inadmissible and is wrong, I'd look like an idiot to say I'd like to offer the codefendant's statement."
The referee accepted Ipsen's testimony on this point, stating the confession would have been inadmissible under People v. Aranda (1965) 63 Cal.2d 518, 47 Cal.Rptr. 353, 407 P.2d 265 and Bruton v. United States (1968) 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476. The prosecutor's failure to offer the statement, the referee found, "did not relate to its inconsistency with the factual theory he intended to present at Waidla's trial."
Ipsen's testimony constitutes substantial evidence supporting the referee's finding. Though the Aranda/Bruton rule of exclusion applies only to statements of jointly tried codefendants (People v. Brown (2003) *278 31 Cal.4th 518, 537, 3 Cal.Rptr.3d 145, 73 P.3d 1137), Ipsen could have reasonably assumed that most or all of Sakarias's confession would be inadmissible in Waidla's trial. Under California's hearsay exception for declarations against penal interest (Evid.Code, § 1230), admissibility is limited to the "`specifically disserving'" portions of the statement. (People v. Duarte (2000) 24 Cal.4th 603, 612, 101 Cal.Rptr.2d 701, 12 P.3d 1110; People v. Leach (1975) 15 Cal.3d 419, 441, 124 Cal. Rptr. 752, 541 P.2d 296.) Thus, Sakarias's statements that Waidla had initiated the attack on Viivi Piirisild, struck Viivi with the hatchet as she pleaded for him to stop, called for Sakarias to assist, and later directed him to strike Viivi with the hatchet in the bedroom (see Sakarias, supra, 22 Cal.4th at p. 613, 94 Cal.Rptr.2d 17, 995 P.2d 152) could well have been held inadmissible as attempts to deflect culpability away from the declarant. (See People v. Duarte, supra, at pp. 612-613, 101 Cal. Rptr.2d 701, 12 P.3d 1110; see also id. at p. 626, 101 Cal.Rptr.2d 701, 12 P.3d 1110 (conc. opn. of Baxter, J.) [6th Amend. confrontation clause "may most often prohibit the use against an accused of directly incriminating statements against him that were made by a nontestifying accomplice while in police custody"].)[2] Redaction of the confession to excise those portions would not necessarily have endowed the statement as a whole, made as it was under custodial questioning regarding Sakarias's role in the homicide, with the indicia of reliability required under Evidence Code section 1230. (See People v. Duarte, supra, at pp. 614-618, 101 Cal.Rptr.2d 701, 12 P.3d 1110.) Finally, while the prosecutor might have overcome hearsay and confrontation clause objections to portions of the Sakarias statement solely implicating Sakarias, those portions would have been irrelevant in Waidla's trial. With this background law, Ipsen's testimony that he assumed the Sakarias statement would be in