Second Civil Number B191050

In the Court of Appeal of the State of California

SECOND APPELLATE DISTRICT DIVISION THREE

BLANCHARD E. TUAL,

Plaintiff and Respondent,

v. ROBERT BLAKE,

Defendant and Appellant.

Appeal From the Superior Court of the County of Los Angeles Case Number EC034380

The Honorable David M. Schacter, Judge

APPELLANT'S OPENING BRIEF

LAW OFFICES OF M. GERALD SCHWARTZBACH A Professional Corporation

M. Gerald Schwartzbach (Bar No. 59985) 655 Redwood Highway, Suite 277 Mill Valley, California 94941-3057

Telephone: (415) 388-2343 Facsimile: (415) 388-2353

e-mail: mgs@mgslawyer.com

Attorneys for Defendant and Appellant, ROBERT BLAKE

In the Court of Appeal of the State of California

SECOND APPELLATE DISTRICT DIVISION THREE

BLANCHARD E. TUAL,

Plaintiff and Respondent,

v. ROBERT BLAKE,

Defendant and Appellant.

APPELLANT'S OPENING BRIEF

TOPICAL INDEX

TOPICAL INDEX i

TABLE OF AUTHORITIES iv

I. INTRODUCTION 1

II. PROCEDURAL BACKGROUND 2

III. STATEMENT OF FACTS 2

A. VOIR DIRE 3

B. MOTIONS IN LIMINE 3

C. TRIAL TESTIMONY 4

1. The Night Of The Shooting 4

2. Forensic Evidence 9

3. Events Beforehand 10

(a) Plaintiff’s Evidence 10

(b) Defense Evidence 14

4. Evidence Pertaining To Earle Caldwell 18

5. Evidence Pertaining To Damages 20

6. Third Party Culpability 21

D. THE MOTION FOR NEW TRIAL 23

1. Appellant’s Motion And Juror Declarations 23

2. Plaintiff’s Opposition And Juror Declarations 26

ARGUMENT 27

I. BY VIOLATING THE COURT’S ADMONITIONS AND PRE-JUDGING THE CASE, FAILING TO DISCLOSE A JUROR’S INABILITY TO HEAR TESTIMONY, CONCEALING INFORMATION DURING VOIR DIRE, RELYING ON EXTERNAL CONSIDERATIONS, AND REACHING A COMPROMISE VERDICT, THE JURORS ENGAGED IN PREJUDICIAL MISCONDUCT 27 A. APPELLANT MADE THE REQUIRED

PRELIMINARY FACTUAL SHOWING 28

i

1. Contrary To Repeated Admonitions, Jurors Formed An Opinion About And Discussed The Case Before It Was Submitted 28

2. The Jurors Committed Misconduct By Relying On External Sources, Contending The Bible Supported A Finding Of Liability, Imposing Damages Not Recoverable In A Wrongful Death Action, And Expressly Seeking To “Send A Message” 29

3. Juror Elias’ Hearing Impairment Rendered Him Incompetent 31

4. Paula Severson’s Failure To Disclose Her Daughter’s Murder Conviction And Life Sentence Constituted Misconduct 32

5. The Verdict Was Reached By Compromise 32

B. APPELLANT’S JUROR DECLARATIONS REFERRED TO OBJECTIVELY VERIFIABLE EVENTS AND THUS WERE ADMISSIBLE UNDER SECTION 1150 33

C. PLAINTIFF FAILED TO REBUT THE PRESUMPTION 35

1. Plaintiff’s Declarations Were Replete With Inadmissible Material 35

2. Plainitff’s Declarations Failed To Address Specific Instances Of Misconduct 35

D. THERE WAS A SUBSTANTIAL LIKELIHOOD ENOUGH JURORS WERE IMPERMISSIBLY INFLUENCED TO HAVE AFFECTED THE VERDICT 40 1. Prejudice Accruing From The Unrebutted

Misconduct In Pre-Judging The Case 40 2. Prejudice Resulting From Juror Elias’ Inability

To Hear Testimony And Failure To So Inform The Court 41

3. Prejudice Resulting From Improper Reference To The Bible And Other Extraneous Information 42

4. Prejudice Resulting From Concealing Information 42

ii

5. It Is Substantially Likely The Juror Misconduct Resulted In Actual Prejudice, Particularly In Light Of The Entire Record 43

II. PREJUDICIAL INSTRUCTIONAL ERROR OCCURRED WHEN THE COURT FAILED TO GIVE APPELLANT'S REQUESTED INSTRUCTION PROHIBITING THE JURY FROM AWARDING DAMAGES TO PUNISH OR MAKE AN EXAMPLE OF HIM 45

III. THE AWARD OF $30 MILLION -- $485 MILLION OVER THE DECEDENT’S LIFE EXPECTANCY -- IS GROSSLY EXCESSIVE AND IS BOTH COMPLETELY DISCONNECTED WITH AND DISPROPORTIONATE TO THE EVIDENCE OF THE REAL PARTIES' LOSS OF SOCIETY, COMFORT, AND PROTECTION 46

IV. THE COURT ERRED BY BOOTSTRAPPING THE ADMISSION OF MS. BAKLEY’S HEARSAY STATEMENTS TO THE ADMISSION OF TAPES SHE ILLEGALLY MADE OF PHONE CONVERSATIONS WITH APPELLANT, AND BY PERMITTING PLAINTIFF TO ELICIT OPINION TESTIMONY THAT APPELLANT INTENTIONALLY CAUSED DECEDENT’S DEATH 49 A. THE COURT ABUSED ITS DISCRETION BY

ALLOWING ADMISSION OF DECEDENT’S HEARSAY STATEMENTS TO PROVE THAT APPELLANT THREATENED HER FOR THE ALLEGED PURPOSE OF LAYING A FOUNDATION FOR HER TAPE RECORDINGS 50

B. ADMISSION OF LAY WITNESSES’ OPINIONS THAT APPELLANT INTENTIONALLY CAUSED DECEDENT’S DEATH WAS AN ABUSE OF DISCRETION 53

C. APPELLANT WAS PREJUDICED BY THE COURT’S ABUSE OF DISCRETION 54

CONCLUSION 55

CERTIFICATE OF COMPLIANCE 56

PROOF OF SERVICE 57

iii

TABLE OF AUTHORITIES

Cases:

Alexander v. McDonald

(1948) 86 Cal.App.2d 670 46 Bell v. State of California

(1998) 63 Cal.App.4th 919 27 Bertero v. National General Corp.

(1974) 13 Cal.3d 43 46 Canavin v. Pacific Southwest Airlines

(1983) 148 Cal.App.3d 512 47 City of Los Angeles v. Decker

(1977) 18 Cal.3d 860 27 City of Pleasant Hill v. First Baptist Church (1969) 1 Cal.App.3d 384 29 Clemens v. Regents of University of California (1971) 20 Cal.App.3d 356 29 Cunningham v. Simpson

(1969) 1 Cal.3d 301 46 De Vera v. Long Beach Pub. Transportation Co.

(1986) 180 Cal.App.3d 782 36 Deward v. Clough (1966) 245 Cal.App.2d 439 29,34,35,40,41, 43 DiRosario v. Havens

(1987) 196 Cal.App.3d 1224 34 Enyart v. City of Los Angeles

(1999) 76 Cal.App.4th 499 27,36

iv

Cases [Cont.]:

Fitch v. Select Products Co. (State Dept. of Health Services)

(2005) 36 Cal.4th 812 47 Flanagan v. Flanagan

(2002) 27 Cal.4th 766 52 Fox v. Pacific Southwest Airlines

(1982) 133 Cal.App.3d 565 49 Griesel v. Dart Industries, Inc.

(1979) 23 Cal.3d 578 33 Horwich v. Superior Court

(1999) 21 Cal.4th 272 47 In re Carpenter

(1995) 9 Cal.4th 634 28,29 In re Hamilton

(1999) 20 Cal.4th 273 27,28

In re Hitchings (1993) 6 Cal.4th 97 28,32,35,40

In re Stankewitz

(1985) 40 Cal.3d 391 33-35 Iwekaogwu v. City of Los Angeles

(1999) 75 Cal.App.4th 803 4 Jordan v. Massachusetts (1912) 225 U.S. 167, 176, 32 S.Ct. 651, 56 L.Ed. 1038 31 Kimic v. San Jose-Los Gatos etc. Ry. Co.

(1909) 156 Cal. 379 38 Kritzer v. Citron

(1950) 101 Cal.App.2d 33 37-38

v

Cases [Cont.]:

Krouse v. Graham

(1977) 19 Cal.3d 59 30,34,47 Locksley v. Ungureanu

(1986) 178 Cal.App.3d 457 36 McDonald v. Southern Pacific Transportation Co.

(1999) 71 Cal.App.4th 256 29 Moore v. Preventive Medicine Medical Group, Inc.

(1986) 178 Cal.App.3d 728 34,35 Pease v. Beech Aircraft Corp.

(1974) 38 Cal.App.3d 450 45 People v. Arcega

(1982) 32 Cal.3d 504 51 People v. Blackwell

(1987) 191 Cal.App.3d 925 32 People v. Castaldia

(1959) 51 Cal.2d 569 32 People v. Clay

(1964) 227 Cal.App.2d 87 54 People v. Coffman and Marlow

(2004) 34 Cal.4th 1 54 People v. Danks

(2004) 32 Cal.4th 269 28,42 People v. Diaz

(1984) 152 Cal.App.3d 926 32 People v. Elkins

(1981) 123 Cal.App.3d 632 36

vi

Cases [Cont.]:

People v. Flores

(1979) 92 Cal.App.3d 461 36 People v. Hedgecock

(1990) 51 Cal.3d 395 33 People v. Hill

(1992) 3 Cal.App.4th 16 53

People v. Hutchinson (1969) 71 Cal.2d 342 28,34-36

People v. Ireland

(1969) 70 Cal.2d 522 51 People v. Majors

(1998) 18 Cal.4th 385, 417 27 People v. Marshall (1990) 50 Cal.3d 907 29 People v. Melton

(1988) 44 Cal.3d 713 54 People v. Merced (2001) 94 Cal.App.4th 1024 29 People v. Nesler

(1997) 16 Cal.4th 561 27,28 People v. Noguera

(1992) 4 Cal.4th 599 50,51 People v. Pedersen

(1978) 86 Cal.App.3d 987 51 People v. Pierce

(1979) 24 Cal.3d 199 36

vii

Cases [Cont.]:

People v. Ruiz

(1988) 44 Cal.3d 589 51 People v. Torres

(1995) 33 Cal.App.4th 37 54 People v. Waidla

(2000) 22 Cal.4th 690 49 People v. Wash

(1993) 6 Cal.4th 215 30 People v. Williams (2001) 25 Cal.4th 441 28 People v. Williams

(1992) 3 Cal.App.4th 1326 53 People v. Wrest

(1992) 3 Cal.4th 1088 30 Pool v. City of Oakland

(1986) 42 Cal.3d 1051 46 Powers v. Sutherland Auto Stage Co.

(1923) 190 Cal. 487 45 Privette v. Superior Court

(1993) 5 Cal.4th 689 33 Province v. Center For Women’s Health and Family Birth

(1993) 20 Cal.App.4th 1673 41 Ray v. Jackson

(1963) 219 Cal.App.2d 445 37 Shaw v. Hughes Aircraft Co.

(2000) 83 Cal.App.4th 1336 33

viii

Cases [Cont.]:

Smith v. Covell

(1980) 100 Cal.App.3d 947 29,40 Smith v. Moffat

(1977) 73 Cal.App.3d 86 33 Tapia v. Barker

(1984) 160 Cal.App.3d 761 40 Tramell v. McDonnell Douglas Corp.

(1984) 163 Cal.App.3d 157 30 Vomaska v. City of San Diego

(1997) 55 Cal.App.4th 905 33,35-36 Warden v. Kahn

(1979) 99 Cal.App.3d 805 51 Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98 31

Statutes:

Code Civ. Proc. § 611 28 Evid. Code § 210 53 Evid. Code § 800 53 Evid. Code § 1150 26,28,33-36 Evid. Code § 1150, subd. (a) 28 Evid. Code § 1250 50-51 Evid. Code § 1250, subd. (a)(1) 50 Evid. Code § 1250, subd. (b) 50 Pen. Code § 632 51-53 Pen. Code § 632, subds. (a) and (d) 51 Pen. Code § 632.7 52 Pen. Code § 633.5 51 BAJI Jury Instructions: BAJI California Jury Instructions (2005) § 14.51 49

ix

I.

INTRODUCTION

In a case featuring no forensic evidence or confession linking

appellant Robert Blake to the murder of decedent Bonny Lee Bakley, nor

any testimony by an eyewitness to the killing, a jury found him liable for

her death and imposed a gargantuan award of $30 million for compensatory

damages. Declarations attached to appellant’s motion for new trial

established that jurors pre-judged the case, referred during deliberations to

matters never introduced into evidence, discussed “sending a message” by

imposing a huge award, contended the Bible supported liability, and

hectored a juror suffering from a hearing impairment (unable by his own

admission to hear testimony) into a finding of liability. The declarations

further established that another juror concealed her daughter’s murder

conviction and life sentence during voir dire.

The foregoing constituted juror misconduct, giving rise to a

presumption of prejudice. Declarations subsequently filed by plaintiff were

replete with inadmissible references to jurors’ subjective reasoning

processes and failed to address the majority of the specific allegations. As

a review of the entire record reveals, the prejudice that accrued from the

juror misconduct was considerable – mandating reversal of the judgment on

this ground alone. Reversal is further required by the erroneous admission

of hearsay statements and tape recordings made by the decedent, and the

utter absence of any evidence supporting the grossly excessive award.

II.

PROCEDURAL BACKGROUND

Plaintiff filed a wrongful death suit against appellant Robert Blake

and co-defendant Earle Caldwell on April 29, 2002. (Appellant’s

Appendix, “AA” 1-6.) As the administrator of the estate of appellant’s

deceased wife, Bonny Lee Bakley, plaintiff brought the suit on behalf of

1

her four children. (AA 3-4.) On February 28, 2003, the court stayed the

civil action pending resolution of appellant’s criminal case. (AA 42.)

Following appellant’s acquittal, the civil trial began August 24, 2005. (AA

53.) On October 27, 2005, the court ruled plaintiff could not request

punitive damages in a wrongful death action. (RT 8898.)

On November 18, 2005, the jury voted 10-2 to find appellant liable,

awarding $30,000,000 in compensatory damages; Mr. Caldwell was found

not liable. (AA 282-290; RT 10808-10812.)1 Appellant filed a notice of

intention to move for a new trial on February 27, 2006; he filed a

supporting memorandum and juror declarations on March 27, 2006. (AA

291-295, 412-460.) Plaintiff’s opposition and juror declarations were filed

April 3, 2006. (AA 1583-1623.) On April 10, 2006, the court issued an

order denying the motion without comment. (AA 1754-1755.) Appellant

timely filed notice of appeal on May 8, 2006. (AA 1756-1758.)

III.

STATEMENT OF FACTS

A. VOIR DIRE

The court admonished prospective jurors at the outset not to pre-

judge the case, not to discuss the case amongst themselves, not to form or

express any opinion before the case was submitted, and to base their verdict

only on evidence heard in court. (RT 8-9, 11-12, 130-131.) Jurors were

further informed they would be asked for background information on

various matters, including their children’s occupations. (RT 26-28.) Of the

more than 30 jurors questioned, only two failed to disclose information

about their children: juror #20 revealed she had “one grown daughter and

one grown granddaughter,” but said nothing further about them (RT 40-42);

juror #31 initially volunteered only that she had three children, disclosing in

chambers her son had been murdered. (RT 488, 606, 658-659.) 1 “RT” refers to the reporter’s transcript of trial proceedings.

2

Other prospective jurors disclosed embarrassing information about

their children: one reported four sons had been in and out of prison,

including one still in prison for child molestation (RT 493); others reported

having a daughter who had been arrested for drugs and strip-searched (RT

424-425), children who dabbled in drugs (RT 426), a stepson who had had

a marijuana problem (RT 426), a son involved in drug use (RT 429), and a

nephew who had used cocaine (RT 434).

Juror #20 disclosed nothing further about her children, and did not

answer when counsel asked if any juror had “counseled with a lawyer,” lost

someone to or had been the victim of a violent crime, changed his or her

behavior as a result of violent crime, ever had problems with the law, had

been in county jail at any time, had been “in trouble” civilly or criminally,

would hesitate to go to a lawyer, knew any prosecutors, or had any

experience with the legal system leaving “a bad taste” in the mouth. (RT

408, 410, 412, 416, 437, 715, 724.)

After the jurors were sworn in, the court again instructed them to not

decide any issue and to refrain from discussing the case until it was

submitted. (RT 769-771.) The court also informed them they could not be

influenced by sympathy, prejudice or passion towards any party, witnesses,

or attorney. (RT 756.) On a daily basis throughout trial, the court

reiterated these admonitions2 – and expressly so instructed them at the

conclusion of trial. (RT 10212.)

B. MOTIONS IN LIMINE

Appellant moved in limine to exclude hearsay statements and tape

recordings of telephone conversations purportedly made by Ms. Bakley.

(AA 43-50; 50a–50i, 52a–52g.) The court denied both motions, ruling (a) 2 The admonition was given at virtually every break. (See, e.g., RT 1259, 1277, 1333, 1868, 1946, 2509, 2613, 2806, 2878, 3107, 3389, 3419, 3774, 3989, 4035, 4299, 4401, 4584, 4666, 4900, 5149, 5205, 5286, 5581, 5765, 5794, 5863, 6169, 6679, 6765, 6995, 7269, 8515, 9513, 10083.)

3

appellant failed to establish precisely how the calls were made; (b) if placed

on a cellular or wireless phone, the calls were made over public airwaves

and could not be deemed confidential; and (c) Ms. Bakley’s statements

could be introduced to establish she made the recordings “out of fear”

appellant would commit a felony involving violence. (AA 54-56.)

C. TRIAL TESTIMONY

Because the appellate court is required to review the entire record to

determine whether any juror misconduct prejudiced appellant,3 the

testimony will be summarized in some detail.

1. The Night Of The Shooting

Decedent Bonny Lee Bakley was shot while sitting in the passenger

seat of appellant’s car, parked roughly 10 to 12 feet behind a dumpster on

Woodbridge in Studio City. (RT 1281, 1315-1316, 3976, 4328, 8238.)

Neighbors described the area as reasonably well-lit, with a street light right

behind the vehicle. (RT 1308, 1315-1316, 3984-3985.)

Ms. Bakley died of two gunshot wounds -- one to the right cheek,

the other to the right shoulder. (RT 3753.) There were no exit wounds,

rendering it impossible to determine the path of the bullets. (RT 3759.)

The absence of soot or stippling indicated the muzzle was no closer than

one and a half to two feet away. (RT 3753, 3766.) Although rendered

unconscious, Ms. Bakley lived for a number of minutes. (RT 3767.)

The murder weapon, a WWII Walther P38, was found the next day

after the contents of the dumpster were emptied. (RT 1271-1272.) No

silencer was found on the weapon. (RT 1938.) One live round was

discovered still chambered in the weapon, an empty shell casing was found

on the passenger seat of appellant’s vehicle, and another casing was on the

street outside the passenger door. (RT 1287, 1359-1360.)

Appellant told police and witnesses, and testified at trial, that he and 3 See Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 817-818.

4

Ms. Bakley had dined at nearby Vitello’s restaurant. (RT 3014, 3740, 6715-

6716.) He had brought his small revolver with him because Ms. Bakley

had been afraid. (RT 3967, 6701-6702, 6718.) The gun cut into his

stomach when he sat down, so he placed it on the seat and covered it with a

sweatshirt. (RT 3015, 6720.) After dinner, they walked back to the car

where appellant noticed he had left his revolver at the restaurant. (RT

3014, 3740, 6726.) He ran back, went to the booth where he customarily

dined (and had that night), retrieved the gun from the floor, and hastened

back to his car. (RT 3014, 3092, 3740, 6703, 6728-6729, 6738, 6742.)

Upon arriving, appellant saw that Ms. Bakley appeared to be asleep;

kneeling on the driver’s seat, he shook her lightly. (RT 3741, 6746.)

Observing blood coming out of her mouth, he immediately went for help –

first to the house across the street, where no one answered, then to the

house diagonally across the street on the northeast corner of Kraft and

Woodbridge. (RT 3321-3322, 3741, 6749-6750.)

The homeowner, Sean Stanek, heard loud knocking and banging on

his front door, and a voice yelling for help. (RT 3951, 3977-3978.)

Opening the door, he recognized appellant -- who was frantic, saying his

wife was bloody, and asking Mr. Stanek to call 911. (RT 3950-3951,

3978.) As Mr. Stanek did so, appellant said, “Tell them to get here, tell

them to get here.” (RT 3951-3952, 3979.) He pointed to his car across the

street to indicate where his wife was. (RT 3952.)

Appellant said something about going to Vitello’s to try to find a

doctor, and departed for a short period. (RT 3982, 4024.) Mr. Stanek went

to the car and saw Ms. Bakley in the passenger seat slumped towards the

driver’s side. (RT 3957.) The passenger’s door was locked, with the

window down. (RT 3957, 3961.) After unlocking the passenger door from

the driver’s side, Mr. Stanek pulled Ms. Bakley up and discovered she was

still alive. (RT 3957-3958.)

5

By this time, appellant had returned to the car in the company of a

blonde woman and was yelling: “What’s wrong with her?” (RT 3962,

3982.) He kept screaming, “What happened to her?” (RT 3966.) Once

paramedics arrived, appellant moved to the passenger door area and asked

Mr. Stanek to check on Ms. Bakley. (RT 3966, 4004-4005.) Paramedics

told him to calm appellant down or take him away. (RT 4016-4017.)

Mr. Stanek eventually sat on the curb comforting appellant, who was

shaking violently and crying “gutturally” – though he did not have any

tears. (RT 3966, 4006.) It nonetheless appeared to Mr. Stanek that

appellant was sincere and “righteously upset.” (RT 3972, 3974.) Asked by

the police what happened, appellant said: “I knew this was going to

happen. I knew it. She was afraid. That’s why I carry a piece on me.”

(RT 3967.) Appellant pulled out a gun in a holster from his left back

pocket and gave it to an officer. (RT 3967.)

Leaving Vitello’s around 9:30 p.m., Rebecca Markham and her

husband stood for two or three minutes on the sidewalk to the right of the

front door; she saw no one enter or come out. (RT 4025, 4028-4030.) As

they walked home along Woodbridge, appellant came up in a hurry from

behind after they had passed the alleyway just past the Vitello’s parking lot;

he passed them, walked between the cars into the street, and hurried off the

towards the corner of Kraft and Woodbridge. (RT 4033-4034, 4332.)

After crossing Woodbridge and walking south down Kraft, Ms.

Markham and her husband entered their home at 9:41 or 9:42 – around

when Mr. Stanek heard the loud knocking and banging. (RT 3951, 3977,

4334-4335.) Mary Beth Rennie, walking on the north side of Woodbridge

with Dr. Mike McCoy, observed the Vitello’s parking lot was “fairly full.”

(RT 3317-3318, 3320-3321, 3338-3339, 3343.) Continuing to walk, they

heard appellant yelling for the resident at the corner of Kraft to call 911.

(RT 3321-3322.) Taking “cover” behind a tree across the street, they

6

observed Mr. Stanek call 911 and appellant walk quickly east on the north

side of Woodbridge toward Vitello’s. (RT 3327-3330, 3350-3351, 3357.)

Appellant returned after 30 seconds to a minute, accompanied by a

tall man and shorter blonde woman. (RT 3359, 3395.) He mostly sat on

the curb between the dumpster and the car while others tended to Ms.

Bakley. (RT 3332, 3334.) Appellant seemed to get louder and louder, and

started to cry more and vomit more loudly; Ms. Rennie was surprised by

how much he “held back.” (RT 3333, 3335.) Officer Samer Issa also

observed appellant sitting on the curb, vomiting, blaming himself, and

asking if his wife as okay. (RT 3720, 3724, 3729-3730.) Although

appellant was emotional and “seemed” to be crying, Officer Issa observed

no tears and thus found him insincere. (RT 3724, 3738.)

Captain Kevin Bailey, a 25-year fire department veteran, supervised

the four-man paramedic crew. (RT 8237-8240.) He observed appellant

sitting on the curb, holding his head with his hands and moaning at times –

behavior, he opined, “consistent with someone that would be upset.” (RT

8241.) Based on his experience at many trauma scenes, he found nothing

about appellant’s demeanor or behavior that appeared out of the ordinary.

(RT 8242.) Appellant seemed sincerely upset and asked several times what

had happened. (RT 8245.)

After appellant was briefly placed in a holding cell at the police

station, Detective Martin Pinner administered a gunshot residue test around

midnight -- despite LAPD guidelines cautioning against giving the test if

the subject has handled a firearm (other than the murder weapon). (RT

2863, 2873, 2878, 3002-3003, 3044, 3085.) Informed by Detective John

Michael Coffey his wife was dead, appellant was emotional, put his head in

his hands, moaned, and “appeared to be crying” without tears – causing

Detective Coffey to think it was “made-up.” (RT 2864-2865, 3904-3906.)

Steve Restivo, part-owner of Vitello’s, testified appellant frequently

7

came in without even being seen and went wherever he wanted; he made

reservations if he had someone with him and wanted a booth on a Friday

night.4 (RT 9380-9384, 9387-9389.) The night before the shooting,

waitress Robin Robichaux (who had waited on appellant hundreds of times

since 1987) had taken an 8 p.m. reservation from him. (RT 8583, 8585.)

The next day, appellant was dining with a woman Ms. Robichaux

had previously seen with him at the restaurant. (RT 8584-8585.) Mr.

Restivo had also seen Ms. Bakley two or three other times. (RT 9391) He

did not hear any fighting or loud words between appellant and Ms. Bakley

that night, finding them in a “pleasant” mood when he stopped by the table

a couple of times. (RT 9390-9392.) Ms. Robichaux went to the table six to

ten times during the evening, observing a sweatshirt covering up something

next to appellant; there was nothing unusual about his behavior, and the

two were having a normal dinner. (RT 8587-8588, 8613.)

Appellant normally put his credit card out early and did so this time;

Ms. Robichaux ran it at 9:23 p.m., returning it before appellant was halfway

finished with dinner. (RT 8586-8587.) Around 9:30 p.m., he and Ms.

Bakley went out the front door, and Mr. Restivo left out the back door a

minute or two later. (RT 9384, 9394.) Although Ms. Robichaux’s shift

was over at 9:30, she stayed a few minutes to finish taking care of tables

and stock the wine rack by the front door. (RT 8590.)

Ms. Robichaux next saw appellant 10 to 20 minutes after she had

last seen him: she heard a waiter asking if there was a doctor in the house,

went to the front of the restaurant, and saw appellant leaning against the

doorway, holding onto the wall, and out of breath. (RT 8590-8593.) She

was shocked by his appearance: he was white as a sheet and seemed to

have aged 40 or 50 years. (RT 8593-8594.) One of the remaining diners, a

nurse, went out the front door to assist. (RT 8594-8595.) 4 May 4, 2001 was a Friday night. (RT 2210.)

8

2. Forensic Evidence

When discovered by the police, the murder weapon was covered in

dirt and oil; subsequent efforts to trace the oil to appellant failed. (RT 1324,

1326-1327.) A criminalist testified he found five lead-only “consistent”

particles of gunshot residue on appellant’s hand samples. (RT 3623, 3681.)

During two rounds of testing, he found two highly specific particles and

several consistent particles of gunshot residue on his clothes. (RT 3627,

3632, 3634, 3636, 3641-3642.)

The criminalist explained the primary chemical components of

gunshot residue are lead, barium, and antimony: a “highly specific”

particle has all three elements; a “consistent” particle has a composition of

only one or two, and may have a source other than gunshot residue. (RT

3603-3606.) He thus could not conclude the consistent particles on

appellant’s hands came from a gun as opposed to some other source. (RT

3681-3682.) Because there were highly specific and consistent particles on

appellant’s own handgun and holster, moreover, he could have transferred

some to his hands and clothes. (RT 3625-3626, 3679-3682.)

It was therefore equally likely the particles on appellant’s person and

clothing were the result of him carrying his own firearm. (RT 3656-3657.)

Appellant’s clothes were also subject to cross-contamination because they

had been jumbled together in a single bag, which was placed in a box that

sat in the back of police car over a weekend. (RT 3627-3629, 3663, 3682-

3687.) The criminalist proved in an experiment that the clothing could

have been contaminated from the police car. (RT 3627-3628, 3663-3664,

3683-3684, 3686-3687.) Further, appellant’s hands samples had no

chlorine, bismuth, or other element often seen when a person has washed

his hands with soap. (RT 367.)

A defense expert testified her crime lab test-fired the murder weapon

a dozen times using the same type of ammunition used on the night of the

9

murder. (RT 9136-9142, 9429-9421.) After a single shot, there were 1,890

particles of gunshot residue on the shooter’s hands; after two shots, there

were 2,440 particles, including 737 highly specific particles. (RT 9430-

9431, 9439.) According to the leading study on the rate at which gunshot

residue is removed from hands by normal activity, there should be 29.48

highly specific particles remaining on the hands of a shooter two and a half

hours after having fired the murder weapon twice with this type of

ammunition, and 97.6 total particles of gunshot residue. (RT 9442-9449.)

The expert concluded appellant’s hands did not reflect what one

would expect to see on the hands of a shooter. (RT 9451.) Had he fired the

Walther P-38 at 9:30 p.m., she would also have expected to find more

gunshot residue on his clothes. (RT 9473-9474.) In her opinion, the

activities attributed to him that night were typical and did not especially

involve an attempt to remove anything from the hands. (RT 9452-9453.)

She further testified she saw no indication a silencer had been mounted on

the gun. (RT 9378.)

Having personally examined appellant’s vehicle, the expert testified

the majority of the blood to Ms. Bakley’s left was on the console dividing

the passenger seat from the driver’s seat. (RT 9474-9475.) There were a

few minuscule specks of blood on the driver’s seat extending

approximately three inches from the right-hand seat bolster. (RT 9475.) It

was thus highly unlikely appellant would have gotten any blood on him if

he had gotten into the vehicle in the way he described. (RT 9477.)

3. Events Beforehand

(a) Plaintiff’s Evidence

Ms. Bakley was on federal probation requiring that she not leave the

state of Arkansas. (RT 1514-1515.) She earned her living by sending nude

and semi-nude photos of herself to older men, offering to visit them in

return for money, tickets, or credit card numbers. (RT 8173-8174.)

10

According to her daughter, Holly Gawron, Ms. Bakley used false

identifications to open post office boxes for her business and was arrested

after police found 8-10 false IDs in her vehicle. (RT 4655-4656.)

Ms. Bakley’s goal had always been to marry a celebrity and she had

at one point dated Jerry Lee Lewis -- naming her daughter Jeri Lee Lewis

after him. (RT 1556, 4854-4855, 4893.) Her relationship with appellant

began in 1999, when she was 43 years old; she immediately began plotting

to become pregnant by him with the help of fertility drugs and a fertility

monitor programmed by Ms. Gawron. (RT 4652, 4665, 4810, 4929, 6610.)

At the same time, she was dating Christian Brando (Marlon Brando’s son),

an ex-convict who had shot someone in the head. (RT 4940-4941, 8712.)

On three occasions when appellant called after finding out Ms.

Bakley was pregnant, Ms. Gawron testified he mistook her for her mother,

threatened her, and screamed profanities. (RT 4660, 4662.) She further

claimed Ms. Bakley told her she recorded a telephone conversation with

appellant because he had threatened her over the phone – telling her, while

she was pregnant, he had “a bullet with her name on it . . .” (RT 4660,

4665-4666.) Glenn Gawron, Ms. Bakley’s son, also claimed his mother

told him this. (RT 7521-7522.) Plaintiff played one recording in which

appellant expressed anger at Ms. Bakley for becoming pregnant, requesting

that she terminate the pregnancy. (RT 926, 4805-4806; Exh 523.)

Private investigator and former LAPD officer William Welch claimed

appellant told him in October 1999 that a woman had informed him she was

pregnant -- then said he “wanted to abort her, and if that didn’t work, he

wanted to whack her.” (RT 1503-1504, 1507, 1509.) After the baby was

born in June 2000 (and named “Christian Shannon Brando”5), testing

5Ms. Bakley told Holly Gawron she named the baby this to make appellant jealous. (RT 4941.) The baby’s name was changed at some point to “Rosie Lenore Sophia Blake.” (RT 4807-4808.)

11

revealed appellant was the baby’s father; he told Mr. Welch and another

private investigator and former LAPD officer, William Jordan, that he

wanted custody. (RT 1512-1514, 4811-4812, 6430-6431, 8164-8165, 8170-

8172, 8174-8176.)

In September 2000, Ms. Bakley went to California so appellant

could see his baby. (RT 4813.) Knowing she was in violation of her

probation, Mr. Jordan suggested appellant legally acquire physical custody

by asking her to leave the baby with him for a few days. (RT 8164-8165,

8170-8172, 8177.) Appellant introduced former personal assistant Cody

Blackwell to Ms. Bakley as a nurse, and suggested leaving the baby with

her while they went to lunch. (RT 5186-5189.) He then arranged to meet

alone with Ms. Blackwell and the baby, describing Ms. Bakley as a con

artist involved with drug addicts. (RT 5185, 5190-5195.)

To ensure Ms. Bakley would leave without the baby, Mr. Jordan

went to her hotel and warned her that her probation would be revoked – and

called her probation officer to inform him she was in California. (RT 4385-

4386, 4388-4389, 8178.) She was ordered to return to Arkansas and placed

on home detention. (RT 4389-4391.) Shortly thereafter, she received

permission to return to California to file a child stealing complaint. (RT

4392-4394, 4815.) On October 3, 2000, appellant called Ms. Bakley’s

probation officer and told him he was negotiating with her to enter into a

prenuptial agreement. (RT 4396, 8185-8186.) The baby would stay with

him and Ms. Bakley would return to Little Rock to complete her supervised

release in January 2001. (RT 4386-4387.)

According to Mr. Welch, appellant suggested planting cocaine on

Ms. Bakley in September or October of 2000. (RT 1516, 1518, 1519.) On

October 27 and November 5, 2000, appellant showed Luis Mendoza

documents proving Ms. Bakley had traveled in violation of her probation

condition – adding that she and her brother were trafficking in narcotics.

12

(RT 3173-3175, 4247-4248, 4271-4275, 4279-4280, 4283, 4285-4286,

4290-4292, 4295-4296.) Mr. Mendoza subsequently conveyed the

information to federal agents, who told him there was insufficient evidence.

(RT 4298-4299, 4305, 4307-4308.)

Deemed unavailable for the civil trial, Frank Minucci’s criminal trial

testimony was read into the record and lodged as an exhibit. (RT 7510,

7809; Exh. 1118.) He testified that he talked to appellant by telephone for

about a year and a half beginning in late 1998 or early 1999 -- sometimes

twice a week, and for as long as an hour and a half. (AA 114-115, 137-

138.) At some point, he alleged, appellant phoned and said he had

“something really heavy” for him to do, and was “screaming” about a

“broad that got him by the balls” who was “saying the kid [was] his.” (AA

122.) He wanted to “annihilate the bitch,” who was a “pig” and “sold dirty

pictures.” (AA 126-127.) Appellant said he did not want to talk about it on

the phone. (AA 122.) He eventually called and said he now “had to marry

the bitch.” (AA 125.)

Ten days after Ms. Bakley was killed, retired stuntman Gary

McLarty claimed he had been solicited by appellant around March 2001 to

kill her. (RT 4509-4510, 4513, 4534, 4549.) Appellant drove him to his

house in Studio City and complained about a “girl” who had had a baby and

was milking him out of money. (RT 4522-4523.) He showed Mr. McLarty

the sliding glass door leading to the back house where Ms. Bakley was

staying, explaining how somebody could “pop her” at night while she was

sleeping. (RT 4524, 4526-4527.) He also talked about someone “popping”

her in Laughlin, off a highway somewhere, or in a car after dinner at a

restaurant. (RT 4527-4528, 4530-4532.) When Mr. McLarty asked “how

much” he was talking about, appellant said “$10,000.” (RT 4533.)

In November 2001, another retired stuntman, Ronald “Duffy”

Hambleton, claimed to police that appellant also solicited him – after

13

having repeatedly denied this in several interviews. (RT 7636-7637.) He

testified at the criminal trial (having also been deemed unavailable for the

civil trial) that, after meeting in Studio City in March 2001, appellant drove

him to a restaurant and began immediately talking about problems he was

having with his “scandalous” and “seedy” wife. (RT 7579-7586, 7615,

7625, 7672.) At the restaurant, appellant loudly talked about “getting rid”

of her. (RT 7591-7592.) He then drove Mr. Hambleton by his house,

sketching various scenarios by which his wife might be “snuffed.” (RT

7645, 7589-7591, 7593-7594.)

After purchasing a calling card at Mr. Hambleton’s suggestion,

appellant drove him to his house and suggested other “snuff” scenarios.

(RT 7598-7603.) Mr. Hambleton told him he could not become involved

because of his own pending criminal case. (RT 7613.) At two later

meetings, appellant suggested other scenarios at possible specific locations

between Memphis and Los Angeles – and also suggested Mr. Hambleton

hide in appellant’s van and “take care of business” when he and Ms. Bakley

went to Vitello’s, as a long-time friend of 30 years would already “have the

holes dug.” (RT 7615, 7619-7622, 7625) Mr. Hambleton mentioned the

name “Earle,” but appellant never told him “Earle” was going to dig any

holes. (RT 7626; AA 253.)

(b) Defense Evidence

Acknowledging Ms. Bakley often taped her telephone conversations

for non-safety reasons, Ms. Gawron claimed the tapes of appellant

threatening her had “never been found” -- although she also alleged her

mother had given all such tapes to her sister for safekeeping. (RT 4846-

4847, 5123, 5410, 5452.) At deposition, Ms. Gawron testified Ms. Bakley

did not find appellant’s yelling on the phone threatening, was not afraid,

and did not tell her anything appellant said in their phone conversations.

(RT 51313, 5137-5138.) Glenn Gawron testified at his deposition he tuned

14

his mother out when she talked about appellant. (RT 7532-7434.)

Mr. Welch initially stressed to police that appellant was not talking

about killing Ms. Bakley. (RT 1551, 1552.) He told another private

investigator in September 2000 that appellant was trying to get Ms.

Bakley’s probation revoked, but was willing to put up with her in order to

take care of his child. (RT 9606-9608.) Robert David Renzi, who attended

the wedding on November 19, 2000, believed appellant wanted to do “the

right thing” by marrying Ms. Bakley. (RT 4220-4222, 4225, 4819.) He had

heard phone conversations in which appellant told his lawyers he wanted to

marry her even though they were advising him against it. (RT 4217.)

Appellant told Mr. Renzi he was going to try to work things out,

later telling him married life was “all right.” (RT 4218, 4238.) He was

concerned for Ms. Bakely because of people who “might have it in for her,”

and carried a gun when he went out with her. (RT 4226.) Appellant never

asked Mr. Renzi or Mr. Jordan to harm Ms. Bakley. (RT 4238-4239, 4242,

4244, 4247, 8175.) Once Mr. Jordan learned appellant was going to marry

her, he never heard a cross word about her again. (RT 8232.)

On one occasion when Mr. Jordan and appellant were dining at

Vitello’s, two or three months before Ms. Bakley was killed, they were

walking up to the front to leave when appellant patted his side with one

hand and said, “Oh, God, I forgot my piece”; he then ran back to the booth,

came back, patted the same area, and said, “I almost forgot this.” (RT

8189-8191, 8193.) Mr. Jordan and various other witnesses testified

appellant never parked in the Vitello’s parking lot, always parking in the

same area as the night Ms. Bakley was killed. (RT 3976, 8189-8190, 8624,

9385-9386.)

An investigations manager with AT&T testified that he found only

eight calls from Mr. Minucci’s phone number to appellant’s various phones

numbers between July 1998 and July 2000: the first two in April 1999

15

were billed as three-minute calls, the next six (ending in April 2000) were

billed as one minute calls. (RT 9672-9674, 9676-9681.) He found only

three calls from Appellant’s telephone number to the Minucci number, all

in April 1999: the first two were one-minute calls, and the last was a 17-

minute call. (RT 9681-9684.)

Mr. McLarty admitted appellant never actually told him he wanted

him or anybody else to harm Ms. Bakley: he simply assumed appellant was

insinuating this. (RT 4562-4563.) Both he and Mr. Hambleton engaged in

heavy use of drugs6 -- and Mr. McLarty had in fact engaged in heavy use of

cocaine 24 hours before being admitted to the hospital for a heart problem

shortly before meeting with appellant. (RT 4554-4556, 4559-4560.) When

Mr. McLarty later told his separated wife, Karen McLarty, that he had gone

to the police to claim appellant had tried to hire him, she could tell he was

under the influence of cocaine. (RT 8568-8569.)

While under the influence, Mr. McLarty was delusional, “invent[ed]

things,” and was extremely paranoid – thinking people were tracking him

and tunneling under his property, satellites were flying over his ranch

watching him, and his car and cell phone were bugged. (RT 4558-9, 4573-

4574, 4578-4579, 8562-8564.) Before being hospitalized for 17 days in

September 2004, he admitted, he had crawled on his belly part of the

distance to where Mrs. McLarty lived to avoid detection by people he

thought were after him. (RT 4558, 4570, 4573-4574, 4580.)

Two defense witnesses testified they personally observed Mr.

Hambleton ingest methamphetamine on a daily basis from as early as 1990

until 2000; he also permitted methamphetamine manufacturing on his

6 Appellant called Dr. Ronald Siegel, an expert on cocaine and methamphetamine use, to explain the psychological and physical effects of those drugs. (RT 8815-8824.) He testified that long-term use of the drugs can affect and “twist” perception, and may result in paranoia, hallucinations, and delusions. (RT 8861-8862, 8865, 8874-8877.)

16

property. (RT 7643-7644, 8493-8495, 8506, 8520-8523, 8526, 8528-8529.)

When Mr. Hambleton ingested methamphetamine, he became highly

paranoid and delusional – seeing “tree people,” whom he believed were the

police or FBI dressed up as bushes watching him, and digging holes in his

yard because he thought he saw horned animals. (RT 8503-8505, 8529.)

Both Mr. McLarty and Mr. Hambleton followed the case “pretty

closely” in the media. (RT 4615, 4618, 7700-7702.) When officers served

a warrant on his property in May 2001, Mr. Hambleton had a number of

tabloids about the case. (RT 7699.) On cross-examination, Mr. Hambleton

admitted to numerous contradictions: he told police appellant first started

talking about “getting rid” of his wife only after they had arrived at his

house; he could not recall the exact words appellant used and never said he

used the word “snuff”; he first claimed appellant did not care if he was

present when Ms. Bakley was killed, then later insisted he “adamantly”

wanted to be present; and he claimed to police appellant never mentioned

any specific place where the “snuff” might occur on the route from

Memphis. (AA 245-248, 248-249, 254-255, 261-262.)

During his taped police interview, appellant stated that he had been

“looking over his shoulder” ever since Ms. Bakley came into his life. (RT

2863, 2865, 3091-3092.) Both he and Mr. Caldwell testified to seeing an

individual nicknamed “Buzzcut” (because of his short cropped flat top style

hair cut) hanging around in a black pickup truck in the months before the

murder. (RT 2436-2440.3022, 6667.) Before Ms. Bakley’s death, Mr.

Caldwell told then girlfriend Lisa Johnson that “Buzzcut” drove by and

parked in front of appellant’s house. (RT 2821-2823.) Appellant also saw

a blue van and a “big old Lincoln Continental.” (RT 6667-6668, 6670.)

Appellant called Mr. McLarty and Mr. Hambleton in an attempt to

hire them to provide security, figuring it would be pointless to call the

LAPD since no laws had been broken. (RT 6670, 6673.) Mr. McLarty

17

testified that Roy Harrison told him “someone was bothering” appellant’s

family. (RT 4517.) According to Karen McLarty, Mr. McLarty admitted

in March 2001 he had asked their son to “throw a couple of punches to hit

this guy that was stalking Robert Blake’s wife and annoying Mr. Blake” –

saying they would be paid $10,000. (RT 8564, 8567, 8574, 8579-8580.)

4. Evidence Pertaining To Earle Caldwell

Between October and December 2000, Holly and Glenn Gawron

found a tackle box in Ms. Bakley’s Mercedes, opened it, discovered

cocaine, snorted some, and then drove to Alabama to sell it to a 17-year-old

friend. (RT 4826-4827, 4832-4833, 7526.) The bottom of the box also

contained a couple of pages from The Memphis Flyer. (RT 4830-4831,

4835, 7526.)

Mr. Caldwell told Lisa Johnson around October 2000 that appellant

asked him to go to Arkansas to plant drugs on Ms. Bakley, but that the trip

was unsuccessful. (RT 2769-2770.) On May 1, 2001, Mr. Caldwell called

Ms. Johnson and told her he was going “up north to visit his mom.” (RT

2787.) On May 5, 2001, he called her, expressed shock over Ms. Bakley’s

death, and asked her to remove several items from his apartment; when she

did so, she found a tin of Altoids containing a brown clear white rocky

substance and a bottle containing a clear liquid. (RT 2781-2783, 2803.)

Tawn Mastry, an ex-girlfriend whose relationship with Mr. Caldwell

ended in 1988, claimed he showed her a commemorative box containing an

ornate older gun in pieces which she believed he said was from WWII. (RT

1808, 1810-1811, 1830.) She never saw it put together or used, saw it a

couple of times for five minutes, and last saw it in 1986.7 (RT 1832, 1837,

1861-1862.) Noel Manchan testified Mr. Caldwell asked her a few months

7In 2004, Ms. Mastry said she was 55% sure a photograph of a Walther P-38 in a “six-pack” was most similar to Mr. Caldwell’s gun; at trial, her confidence level increased to 75%. (RT 1828, 1849-1851.)

18

before May 2001 about getting an unregistered gun. (RT 1885-1886.)

In June 2001, police seized an 1896 broom handle Mauser from Mr.

Caldwell’s Jeep, and a list with references to such items as “25 Auto,” “get

blank gun ready,” “black duct tape,” “old rugs,” “pool acid,” “Draino,”

“two shovels,” “sledge,” and “lye.” (RT 2406, 2241-2252.) 7 distinct hits

on the word “silencer” were discovered on a computer seized from his

residence; police also seized a catalogue containing a reference to a manual

describing the construction of silencers, and a folded back page containing

a reference to a manual on the principles of ambush. (RT 1910, 1915-1916,

1919, 3096-3097, 3108, 3111.)

Mr. Caldwell testified he drove to the Bay Area a few days before

the murder because he had not seen his wife in three weeks, and Ms.

Bakley wanted time with her baby and appellant alone. (RT 2208-2210.)

The items on the list were largely to be used for handyman tasks at

appellant’s Hidden Hills home. (RT 2241-2244.) The “25 auto” referred to

a 25,000 mile service check due on his Jeep, and the “get blank gun ready”

referred to a gun to be used by appellant in publicity photos. (RT 2249-

2251.) The Altoids tin contained five-year-old marijuana, and the bottle

contained a performance enhancing substance that was no longer legal.

(RT 2217-2219.) He has never owned a Walther P38, and acquired a

“fancy” Smith and Wesson 357 25 years earlier that had some scroll work

and a commemorative box. (RT 2257-2259.) What he asked Ms. Manchan

about was a “private party” 22 Ruger. (RT 2484-2486.)

All 7 hits on the word “silencer” on Mr. Caldwell’s computer

occurred within a few minutes on January 30, 2001, and the sites were

never revisited. (RT 3114, 3158-3159.) Only three documents pertaining

to guns were pulled from the seven hits, and they were viewed on the

computer for less than two minutes. (RT 3160-3161.) There was no

evidence he ordered any item from the catalogue, all the information on the

19

folded back page pertained to military science, and there were no marks of

any kind on the page. (RT 1919, 1924-1925, 1928, 1933-1934.)

5. Evidence Pertaining To Damages

Ms. Bakley had four children: Holly, Glenn, and Debra Gawron

(formerly Jeri Lee Lewis), and Rose Blake. (RT 4637.) Growing up, Ms.

Bakley supported the family; Paul Gawron (father of Holly, Glenn, and

Debra/Jeri) stayed at home and made sure the children went off to school.

(RT 4639, 5147-5148, 7538-7539.) Ms. Bakley treated Ms. Gawron like a

daughter and best friend, was “prim and proper and caring,” and had a very

mild temperament. (RT 4641, 4644.) She gave her advice regarding how

to raise a newborn, and was the most caring woman in her life. (RT 5401-

5402.) Glenn Gawron described Ms. Bakley as very kind and a good

person who gave him advice. (RT 7515, 7527.) In his entire life, nobody

has ever loved him as much as his mother did. (RT 7519-7520.)

Holly Gawron opined her “little sister Jeri” is suffering from lack of

advice and comfort now that her mother is gone. (RT 5281.) Both Holly

and Glenn Gawron testified, however, that Jeri was living with Paul

Gawron in 2000 and 2001, and continues to live with him – and Holly has

not seen Jeri for two or three years. (RT 5429-5430, 7538.) Cody

Blackwell testified she felt Rose needed medical treatment in September

2000 after Ms. Bakley brought her to Los Angeles, because she was very

constipated and had great difficulty having a bowel movement. (RT 5199-

5200.) She also had diaper rash. (RT 5225.) At the same time, defense

witness Pamela Hudak testified, the baby was lethargic, small, wrinkled,

dehydrated, constipated, and had multiple scratches on her arms, scaling on

her head, and a severe diaper rash. (RT 9004-9005.)

Because they stayed in Alabama for two weeks while they sold the

cocaine, Holly and Glenn did not spend Christmas 2000 with Ms. Bakley –

who did not know where they were. (RT 4833, 5266, 7556.) Ms. Gawron

20

was present when the FBI executed a search warrant at their home, was

questioned (along with her brother) when police arrested their mother after

searching her vehicle, admitted her mother was not above lying from time

to time, and was aware Ms. Bakley used false IDs (including Ms. Gawron’s

own ID). (RT 4655-4656, 4869, 4916.) She and Glenn helped their mother

in her business by addressing and stamping envelopes for her form letters,

and Holly once placed calls in an attempt to leave a prerecorded message

Ms. Bakley had made. (RT 4845-4846, 4648, 7542, 7544.)

6. Third Party Culpability

Lidia Benevides, appellant’s housekeeper, twice saw a strange car

parked across the street, with the same man sitting inside. (RT 9112-9113.)

The car was old, dirty, medium in size, “patchy” in color, and needed paint.

(RT 9112, 9123.) The two occasions she saw the car were two weeks apart,

and she last saw it approximately three weeks before Ms. Bakley’s murder.

(RT 9113.) William Jordan testified appellant asked him whether he had

somebody surveilling him in a black pickup truck; on another occasion, he

asked about a black Lincoln Continental. (RT 8196.)

Ms. Bakley made a recording of a phone conversation in which

Christian Brando said to her: “You’re lucky somebody ain’t out there to

put a bullet in your head.”8 (RT 5266, 5450, 8110-8111; Exh 1101.) In

February 2001, Dianne Mattson overheard a telephone conversation on

speaker phone between Mr. Brando on one end, and his close friend Jerry

Lee Petty (a retired stuntman living in Los Angeles), a stuntman named

“Duffy,” and a third male described as homeless and toothless, on the other.

(RT 8709, 8718, 8721-8722.) Mr. Brando, visibly upset, stated during the

conversation that somebody needed to put a bullet through Ms. Bakley’s

head. (RT 8725-8726.)

8 Called as a witness by appellant, Mr. Brando asserted his Fifth Amendment right not to incriminate himself. (See RT 8104-8125, 8153-8162.)

21

Rocky Dickerson and Brian Fiebelkorn (a neighbor living down the

street from Mr. Petty) confirmed Mr. Petty was friends with and/or spoke of

both Mr. Brando and a stuntman named “Duffy.” (RT 8474, 8476-8477,

9041, 9056) Both also testified that Mark Jones, a transient missing his

front teeth, lived on and off down the street from Mr. Petty. (RT 8479-

8481, 9038-9039, 9043.) In early 2001, Mr. Fiebelkorn saw Mr.

Hambleton on several occasions at that residence. (RT 9041, 9043.) One

time, Mr. Hambleton said he was looking for “Mark.” (RT 9045.) Another

transient, “Travelling Travis,” visited Mr. Petty in February 2001, drove a

black pickup and had a “flat top” haircut. (RT 9046-9047.)

Mr. Fiebelkorn further testified that, around February 2001, he saw

Mr. Jones with an automatic gun that resembled a photo of a Walther P-38.

(RT 9061-9065, 9085-9086.) Another homeless methamphetamine user

who “rotated through” the neighborhood, William Jay Smith, asked Mr.

Fiebelkorn about cashing a $10,000 check in March 2001. (RT 9051-9052,

9070, 9073-9074.) After Mr. Petty committed suicide on March 15, 2001,

Mr. Jones became paranoid and started to carry the gun Mr. Fiebelkorn had

previously seen. (RT 9043, 9065.)

On May 31, 2001, Mark Jones himself committed suicide by

attaching a hose to Mr. Fiebrlkorn’s two-toned 1973 Lincoln Continental

and asphyxiating himself. (RT 9037-9038, 9081.) In the weeks before, Mr.

Jones had become despondent, acting as if he were “remorseful.” (RT

9087.) He had taken the Lincoln Continental without Mr. Fiebelkorn’s

permission on some unknown earlier date. (RT 9037-9038.) “Travelling

Travis” was himself murdered in August 2003. (RT 9049-9050.)

At some point, Mr. Hambleton called Keith Seals and told him he

had a $10,000 job for him but did not want to talk about it on the phone.

(RT 8537-8538.) He later told Mr. Seals the person to whom he gave the

$10,000 job had “fucked it all up.” (RT 8539.) Another witness identified

22

a photograph of the murder weapon and said she was 98 percent sure she

had seen the gun at Mr. Hambleton’s. (RT 8508-8509.)

H. THE MOTION FOR NEW TRIAL

1. Appellant’s Motion And Juror Declarations

In support of his motion for new trial on grounds of juror

misconduct, appellant attached the declarations of jurors Onesimo Lucero,

Olivia Valdivia (the two jurors voting against liability), and Jose Elias (a

juror voting for liability):

(a) According to all three, it was common for jurors to express

their views about the case before deliberations began. (AA 1568, 1573,

1577-1578.) Ms. Valdivia engaged in such discussions during cigarette

breaks and at lunch with Jurors Demetrius Hall, Tony Aldana, and Mr.

Lucero. (AA 1568.) During a cigarette break before deliberations, Juror

Hall told Ms. Valdivia he had decided to “vote against Blake” because “he

left Bonnie alone in the car” – and he wouldn’t leave anyone alone.” (AA

1568.) Juror Hall told the same thing to Mr. Lucero. (AA 1573.)

(b) Mr. Lucero and Ms. Valdivia both stated that, before

appellant testified, Jurors Hall and Tony Aldana said they had not liked him

from the beginning. (AA 1569, 1573.)

(c) Ms. Valdivia stated Jurors Dave Hernandez, Dave Lopez, and

“Jackie” made favorable comments about the LAPD outside the jury room,

during breaks and at lunch. (AA 1568-1569.) During the time appellant

was still testifying, according to Mr. Lucero, several jurors (Eloy Mendoza,

Lopez, Hernandez, and Jackie “Mack”) said they believed the police

witnesses were more credible than appellant. (AA 1573.)

(d) According to Mr. Lucero and Ms. Valdivia, Eloy Mendoza

talked about the Bible throughout trial and during deliberations – saying it

supported a finding of liability. (AA 1569, 1573.) Mr. Lucero declared

that he “expressed his views about the Bible in such a strong manner” that

23

he and Ms. Valdivia had heated exchanged over the issue. (AA 1573.)

(e) According to all three, Jurors Aldana, Lopez, Mendoza,

Hernandez, Jackie “Mack,” and foreman Bob Horn argued during

deliberations that the damages awarded should be large enough to send a

message to the world that rich people and celebrities cannot get away with

murder, and talked about O.J. Simpson getting away with murder and

Michael Jackson with child molestation . (AA 1569-1570, 1574-1575,

1578.) According to Mr. Lucero, some jurors said they should award

enough damages so that Ms. Bakley’s children would have enough money

to obtain custody of Rose. (AA 1574-1575.) Speculating that Ms.

Bakley’s family would never be able to get to appellant’s money, some

jurors (Hall, Lopez and “Jackie Mack”) stated they could award a large

amount of money because it would not likely be collectable – adding that

appellant probably had hidden his money. (AA 1575.) In addition, several

jurors (Mendoza, Lopez, Hall, Horn, “Mack,” and Hernandez) said that one

cannot put an amount on the life of a mother. (AA 1574.)

(f) Ms. Valdivia realized that Juror #20 was Paula Severson –

whose daughter, Karen, had been convicted of convicted of second degree

murder in 1990 after a sensationalized, high-publicized trial. (AA 1568.)

Appellant attached supporting documents evidencing the fact that she was

sentenced to 15 years to life in prison. (AA 1506-1553.)

(g) Ms. Valdivia further stated that, for a number of days during

the deliberations, the vote was 8 to 4 in favor of a finding of liability; Ms.

Severson was among the 4 against a finding of liability. (AA 1568.) On

the Friday before the Wednesday verdict, Ms. Severson told Ms. Valdvia

that her husband called her a “Pollyanna and told her to live in the real

world”; the following Monday, Ms. Severson said she was going to change

her vote. (AA 1568.)

(h) Mr. Elias was 75 years old at the time of trial and has hearing

24

problems. (AA 1577.) He stated in his declaration that the hearing device

provided him did not help, and he stopped using it. (AA 1577.) By his

own admission, he told other jurors he had difficulty hearing testimony.

(AA 1577.) Mr. Lucero and Ms. Valdivia confirmed this – and, according

to Mr. Lucero, Mr. Elias said he missed half of the testimony. (AA 1569,

1573-1574.)

(i) During deliberations, Mr. Elias was one of the 4 voting in

favor of appellant on the issue of liability. (AA 1568-1569.) Ms. Valdivia

heard others (including Jurors Lopez and Mendoza) tell Mr. Elias what they

contended was the substance of various witnesses’ testimony. (AA 1569.)

Juror Mendoza once asked him, “Don’t you hear?”; Mr. Elias answered,

“No, I don’t.” (AA 1569.) Juror Mendoza told him, “This is what’s going

on . . . he (appellant) walked over and shot her.” (AA 1569.) Mr. Mendoza

frequently told Mr. Elias about testimony the latter said he had not heard.

(AA 1569.) At one point during deliberations, jurors Hall and Lopez spoke

harshly to Mr. Elias and stood over him. (AA 1569.)

(j) Mr. Elias stated that jurors voting for a finding of liability

told him that, if he did not change his vote, there would be a hung jury and

a mistrial; the same jurors told him that, if he voted for liability, they may

not award any money damages. (AA 1578.) After this, he voted in

plaintiff’s favor. (AA 1578.)

Appellant also attached a transcript of the post-verdict press

conference, in which jurors (including foreman Bob Horn and David

Lopez) publicly stated the verdict was intended to send a “message” to the

world that “celebrities and rich people” cannot get away with murder. (AA

1558-1566.) When a reporter specifically asked whether the jury believed

appellant pulled the trigger or merely caused Ms. Bakley’s death, juror

Tony Aldana replied: “To this point, who knows”; both he and another

juror then stated, “We’re not sure.” (AA 1562.)

25

2. Plaintiff’s Opposition And Juror Declarations

In opposing the motion, plaintiff attached declarations from five

jurors (including Ms. Valdivia) generally stating that the verdict was

reached fairly and after consideration of the evidence and no side was

prejudiced. (AA 1607-1609- 1611, 1613-1620.) Appellant moved to

strike all portions that were conclusory, speculative, irrelevant, and

inadmissible under Evidence Code section 1150. (AA 1654-1736.)

Concerning specific allegations of misconduct, the declarations stated:9

(a) Ms. Valdivia opined that nothing about her conversations

with jurors outside the deliberation room affected the verdict reached –

characterizing such conversations as “brief and harmless,” and stating that

she at no time “ever in any way plot[ted] against either side or [got] into the

details of the case or witnesses.” (AA 1607-1608, 1611.)

(b) Juror Tony Aldana denied ever saying to Mr. Lucero that he

had not liked appellant from the beginning. (AA 1614.)

(c) Jurors Aldana, Eloy Mendoza, David Hernandez, and Bob

Horn declared they never heard any jurors making comments prior to

deliberations that the police were more credible than appellant; they also

denied making (or hearing made) any “inaccurate” comments to Mr. Elias

about evidence or testimony presented in court. (AA 1609, 1614-1615,

1618, 1620.)

(d) Juror Mendoza declared, “My belief in the bible did not

prejudice either side in this case, or prevent me from being a fair juror or

the fairness of the verdict.” (AA 1620.)

9Plaintiff also attached declarations from two alternate jurors. (AA 1610, 1612.)

26

ARGUMENT

I.

BY VIOLATING THE COURT’S ADMONITIONS AND PRE-JUDGING THE CASE, FAILING TO DISCLOSE A

JUROR’S INABILITY TO HEAR TESTIMONY, CONCEALING INFORMATION DURING VOIR DIRE,

RELYING ON EXTERNAL CONSIDERATIONS, AND REACHING A COMPROMISE VERDICT, THE

JURORS ENGAGED IN PREJUDICIAL MISCONDUCT When a new trial is sought on the ground of juror misconduct, the

trial court (1) determines whether the affidavits supporting the motion are

admissible; (2) decides whether the facts establish misconduct; and (3) if

misconduct is found, determines whether the complaining party was

prejudiced by the misconduct. (Bell v. State of California (1998) 63

Cal.App.4th 919, 932.) The appellate court will not disturb the trial court’s

credibility assessments or factual findings if supported by substantial

evidence. (People v. Majors (1998) 18 Cal.4th 385, 417, 424-425.)

Whether prejudice arose from juror misconduct is, however, a mixed

question of law and fact subject to a reviewing court’s independent

determination. (Enyart v. City of Los Angeles (1999) 76 Cal.App.4th 499,

507-508.) On review of an order denying a new trial, an appellate court is

required to review the entire record to determine whether the error was

prejudicial. (City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 872.)

The judgment will not be disturbed if “there is no reasonable probability of

prejudice, i.e., no substantial likelihood that one or more jurors were

actually biased . . . ” (In re Hamilton (1999) 20 Cal.4th 273, 296-297.)

Proof of jury misconduct thus has two fundamental elements: the

moving party must make an adequate factual showing to establish the

misconduct; assuming such a showing, the claimed misconduct must have

materially affected the party’s substantial rights. (See People v. Nesler

(1997) 16 Cal.4th 561, 580.) A party may prove (or rebut the presumption

27

of prejudice created by) juror misconduct with declarations, subject to the

restrictions of Evidence Code section 1150 (“section 1150”). (People v.

Hutchinson (1969) 71 Cal.2d 342, 350-351.) Under subdivision (a) of

section 1150, such declarations are limited to “otherwise admissible

evidence . . . as to statements made, or conduct, conditions, or events

occurring, either within or without the jury room, of such a character as is

likely to have influenced the verdict improperly.”

Section 1150 thus distinguishes between “proof of overt acts,

objectively ascertainable, and proof of the subjective reasoning processes of

the individual juror, which can be neither corroborated nor disproved . . .”

(People v. Hutchinson, supra, 71 Cal.2d at p. 349.) The focus is on overt

events or circumstances “open to [corroboration by] sight, hearing, and the

other senses.” (Id., at p. 350; People v. Danks (2004) 32 Cal.4th 269, 302.)

An overt event that directly violates the oaths, duties, and admonitions

imposed on actual or prospective jurors constitutes juror misconduct – and

thus is properly included in a juror declaration impeaching the verdict.

(See People v. Nesler, supra, 16 Cal.4th at pp. 578-579; In re Carpenter

(1995) 9 Cal.4th 634, 647; In re Hitchings (1993) 6 Cal.4th 97, 118.)

A. APPELLANT MADE THE REQUIRED PRELIMINARY FACTUAL SHOWING

The declarations supporting the motion for new trial listed a series of

“overt events” contravening the jurors’ oaths, duties, and admonitions.

1. Contrary To Repeated Admonitions, Jurors Formed An Opinion About And Discussed The Case Before It Was Submitted

Generally speaking, a juror commits misconduct by violating his or

her oath or by failing to follow the instructions and admonitions given.

(People v. Williams (2001) 25 Cal.4th 441, 451; In re Hamilton, supra, 20

Cal.4th at p. 305.) Code of Civil Procedure section 611 specifically

requires that jurors be admonished they may not form or express an opinion

on the case until it is finally submitted to them. Jurors in this case were

28

continually so admonished from the outset of trial. (RT 8, 11-12, 769.)

According to appellant’s declarations, however, jurors repeatedly

violated the admonition not to pre-judge the case: (1) Juror Demetrius Hall

declared early in the trial that he would vote for a liability finding because

appellant left Ms. Bakley alone in the car; (2) at least four jurors (Dave

Hernandez, Dave Lopez, Eloy Mendoza, and Jackie “Mack”) said they

believed the police witnesses were more credible than appellant while the

latter was testifying; and (3) Jurors Hall and Tony Aldana stated, before

appellant testified, that they had not liked him from the beginning.

Such pre-judging is contrary to statute and the court’s instruction,

contravenes a party’s “constitutional right to trial by a jury consisting of 12

unbiased unprejudiced individuals,” and is universally deemed to constitute

serious juror misconduct. (People v. Merced (2001) 94 Cal.App.4th 1024,

1031; City of Pleasant Hill v. First Baptist Church (1969) 1 Cal.App.3d

384, 429; Deward v. Clough (1966) 245 Cal.App.2d 439, 444; Clemens v.

Regents of University of California (1971) 20 Cal.App.3d 356, 361.)

2. The Jurors Committed Misconduct By Relying On External Sources, Contending The Bible Supported A Finding Of Liability, Imposing Damages Not Recoverable In A Wrongful Death Action, And Expressly Seeking To “Send A Message” “‘It is misconduct for a juror during the trial to . . . receive any

information on the subject of the litigation except in open court and in the

manner provided by law.’” (Smith v. Covell (1980) 100 Cal.App.3d 947,

952-953; McDonald v. Southern Pacific Transportation Co. (1999) 71

Cal.App.4th 256, 263.) The receipt of information that was not part of the

evidence received at trial leads to a presumption the defendant was thereby

prejudiced and may establish juror bias. (People v. Marshall (1990) 50

Cal.3d 907, 949-951; In re Carpenter, supra, 9 Cal.4th at pp. 650-655.)

Appellant’s juror declarations stated that Eloy Mendoza argued the

Bible supported a finding of liability. As courts have explained, “[t]he

29

primary vice in referring to the Bible and other religious authority is that

such argument may ‘diminish the jury’s sense of responsibility for its

verdict and . . . imply that another, higher law should be applied . . .,

displacing the law in the court’s instructions.’” (People v. Wash (1993) 6

Cal.4th 215, 261; People v. Wrest (1992) 3 Cal.4th 1088, 1107.)

Nor was this the only instance of jurors relying on matters never

introduced into evidence. Reversal is required where juror declarations

establish an express agreement to allow impermissible outside factors to

become a basis for a decision/verdict, or where they indicate extensive

discussion evidencing an implied agreement. (Krouse v. Graham (1977) 19

Cal.3d 59, 75; Tramell v. McDonnell Douglas Corp. (1984) 163

Cal.App.3d 157, 172-173.) In Krouse v. Graham, supra, 19 Cal.3d 59, the

declarations established the jury had expressly agreed to inflate damages to

include attorney fees – which are not recoverable in personal injury or

wrongful death actions. (Id., at p. 81.) In Tramell v. McDonnell Douglas

Corp., supra, 163 Cal.App.3d 157, the declarations established there was

extensive discussion among jurors evidencing an implied agreement to

inflate the verdict to compensate for fees and taxes. (Id., at pp. 172-173.)

According to the declarations in this case, jurors discussed (a) setting

the damage figure high enough to “send a message” that celebrities and rich

people cannot get away with murder, (b) the fact that O. J. Simpson and

Michael Jackson had escaped punishment; (c) the possibility that appellant

had hidden funds and/or a protected pension, and therefore would never be

called upon to pay the damages awarded, and (d) setting the figure high

enough to enable Ms. Bakley’s heirs to obtain custody of Rose Blake. Such

discussion evidenced an agreement to include punitive damages in

compensatory damages, and set an award based on factors outside the

evidence and contrary to the court’s instruction that damages could only be

that amount which would compensate the heirs for the loss of the value of

30

society, comfort, protection and care provided by the decedent.

3. Juror Elias’ Hearing Impairment Rendered Him Incompetent

The right to unbiased and unprejudiced jurors is an inseparable part

of the right to trial by jury guaranteed by the constitution. (Weathers v.

Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 110.) Inherent in the

right to a fair and impartial jury is the requirement that each juror be

competent and able to understand the facts and issues presented in the trial.

(Jordan v. Massachusetts (1912) 225 U.S. 167, 176, 32 S.Ct. 651, 56 L.Ed.

1038.) In this case, Juror Elias admitted in his declaration that his hearing

impairment precluded him from hearing at least “some” of the testimony.

The record reflects that Mr. Elias was provided such a device. When

the court began asking him questions in voir dire, he responded by

saying:10 “You have to speak up. I’m hard of hearing . . .in both ears.”

(RT 70.) Later, during proceedings in chambers concerning possible

misconduct by Christian Brando, Mr. Elias interrupted the court’s first

question by saying: “A little louder. You always mumble.” (RT 8459.)

He added, “And my nieces, I can never understand them.” (RT 8460.)

When the court specifically asked Mr. Elias if he wanted the hearing device

(referring to the device he had earlier been provided), Mr. Elias replied:

“No, no, no. I can hear you, but just open your mouth.” (RT 8460.) After

he then said he did not hear Mr. Brando say anything, the court asked:

“Well, you hear with the machine?” (RT 8461.) Mr. Elias replied, “I have

the machine. It’s not working for me now.” (RT 8461.) When the court

asked if he could “hear people,” he said “yes.” (RT 8461.)

By Mr. Elias’ own admission, however, he could not hear “some of

the testimony”; according to Mr. Lucero, he told other jurors he missed half

the testimony. He at best therefore told the court a half truth when

specifically asked whether he could “hear people.” Appellant was, 10 Mr. Elias was Juror #8.

31

however, entitled to 12 competent jurors: Mr. Elias both failed to hear

portions of the testimony and failed to disclose this fact to the court –

despite having ample opportunity to do so, and even though the court

specifically asked if he could “hear people.”

4. Paula Severson’s Failure To Disclose Her Daughter’s Murder Conviction And Life Sentence Constituted Misconduct A juror who conceals relevant facts during the voir dire examination

undermines the jury selection process and commits misconduct. (People v.

Castaldia (1959) 51 Cal.2d 569, 572; People v. Blackwell (1987) 191

Cal.App.3d 925, 929; People v. Diaz (1984) 152 Cal.App.3d 926, 932.)

Without truthful answers on voir dire, the unquestioned right to challenge a

prospective juror for cause is rendered nugatory. (In re Hitchings, supra, 6

Cal.4th at p. 111.) Such concealment also eviscerates a party’s statutory

right to exercise a peremptory challenge and remove a prospective juror the

party believes cannot be fair and impartial. (Ibid.)

Juror Paula Severson never disclosed the fact that her daughter had

been convicted of murder and was serving a life sentence as voir dire was

being conducted – even though (1) she was asked to disclose details about

her children’s occupations; (2) other jurors disclosed embarrassing

convictions suffered by their children (and their incarceration in prison);

and (3) counsel asked if any jurors ever counseled with a lawyer, had been

in county jail at any time, had been in trouble civilly or criminally, would

hesitate to go to a lawyer, knew any prosecutors, or had any experience

with the legal system leaving “a bad taste” in the mouth. In short, she

remained totally mute each time a question was asked that underscored her

obligation to disclose her daughter’s conviction and sentence.

5. The Verdict Was Reached By Compromise

To satisfy the constitutional right to trial by jury, each juror is

required to have the opportunity to participate fully in deliberations. (See

32

Griesel v. Dart Industries, Inc. (1979) 23 Cal.3d 578, 584, overruled on

another ground in Privette v. Superior Court (1993) 5 Cal.4th 689, 696.)

Compromise verdicts, which arise from disregard of the court’s instructions

and profoundly impugn the integrity of the judicial process, are therefore

improper – as are statements or overt conduct pressuring jurors to close

deliberations before they are ready. (Shaw v. Hughes Aircraft Co. (2000)

83 Cal.App.4th 1336, 1346; Smith v. Moffat (1977) 73 Cal.App.3d 86, 94-

95; Vomaska v. City of San Diego (1997) 55 Cal.App.4th 905, 912, fn. 12.)

In contravention of the foregoing, Mr. Elias expressly described

improper statements threatening that the jury would be hung and a mistrial

declared if he did not switch his vote; he further stated that he was falsely

promised that, if he switched his vote, the other jurors proposing the

compromise agreement might vote for no money damages. Declarations by

Jurors Lucero and Valdivia further described coercive and intimidating

conduct directed at Mr. Elias during deliberations by various jurors –

including Jurors Hall, Mendoza, and Lopez.

B. APPELLANT’S JUROR DECLARATIONS REFERRED TO OBJECTIVELY VERIFIABLE EVENTS AND THUS WERE ADMISSIBLE UNDER SECTION 1150 When a statement by a juror during deliberations may itself be an act

of misconduct, evidence of that statement is admissible under section 1150.

(People v. Hedgecock (1990) 51 Cal.3d 395, 419.) In In re Stankewitz

(1985) 40 Cal.3d 391, for example, a juror’s erroneous legal advice to his

fellow jurors during deliberations constituted an overt act of misconduct –

rendering a declaration describing the act admissible under section 1150.

(Id., at p. 398.) The very making of the statement was misconduct, and

thus “as much an objective fact as a juror’s reading of a novel during the

taking of testimony . . . or a juror’s consultation with an outside attorney for

advice on the law applicable to the case.” (Ibid.)

33

Consistent with Stankewitz, courts have held that evidence of jury

discussion during deliberations on an improper topic is admissible as an

“overt act” – including juror statements regarding the court’s authority to

reduce an excessive jury award (DiRosario v. Havens (1987) 196

Cal.App.3d 1224, 1238), discussing the effect of attorney’s fees and income

taxes on the damage award (Trammell v. McDonnell Douglas Corp., supra,

163 Cal.App.3d at p. 172), evidencing an agreement to refuse to follow the

court’s instructions (Krouse v. Graham, supra, 19 Cal.3d 59, 81), and

disregarding the court’s admonition not to draw any inference of liability

from a party’s out-of-court settlement (Moore v. Preventive Medicine

Medical Group, Inc. (1986) 178 Cal.App.3d 728, 740 fn. 8, 742-743).

Statements made by non-jurors are also admissible when their “very

making” may improperly influence jurors. In People v. Hutchinson, supra,

71 Cal.2d 342, for instance, a juror affidavit described angry and

threatening statements made by a bailiff who repeatedly urged the jurors to

reach a quick decision. (Id., at p. 346, fn. 1.) Finding the affidavit

admissible to prove the statements and conduct of the bailiff and ordering a

redetermination of the defendant’s motion for new trial, the court quoted

section 1150 in concluding “[t]he bailiff's remarks and the tone of their

delivery constitute statements and conduct that are ‘likely to have

influenced the verdict improperly.’” (Id., at p. 351.)

Finally, statements made by jurors before deliberations may

properly be included in any declarations if their very making constituted

misconduct – as in Deward v. Clough, supra, 245 Cal.App.2d 439, where

an affidavit stated that during the last day of the trial a juror made a

statement to two or three other jurors before the completion of oral

argument, “I don’t see why they don’t open up the jury room now. We

could bring in a verdict already.” (Id., at p. 443.) Likewise, in People v.

Brown (1976) 61 Cal.App.3d 476, a declaration stated that a juror

34

announced before the prosecution had completed its case that there was “no

doubt” the defendant was “guilty.” (Id., at p. 479.) The court expressly

found that the declaration was “clearly admissible” to impeach the verdict

under the express provisions of section 1150. (Id., at p. 479, fn. 2; see also

People v. Hutchinson, supra, 71 Cal.2d at pp. 350-351.)

The facts here are identical. As in Deward and Brown, statements

by jurors before the case had concluded violated the court’s edicts and their

oaths – and thus constituted “overt acts” open to the senses and subject to

corroboration. And as in Stankewitz, DiRosario, Moore and Trammell,

statements during deliberations which themselves constituted misconduct

(as when jurors expressly agreed to violate the court’s instructions by

awarding punitive damages, or made “angry and threatening statements”

urging other jurors to reach a quick decision) are overt acts open to the

senses and thus subject to corroboration. Rather than referring to the

jurors’ subjective reasoning processes, appellant’s declarations focused on

statements (a) evidencing prejudgment; (b) involving matters outside the

record they had been foreclosed from discussing; (c) pressuring another

juror to render a verdict; (d) withholding material information during vcir

dire; and (e) by a hearing impaired juror confessing (to other jurors and in

his declaration) that he could not hear testimony.

C. PLAINTIFF FAILED TO REBUT THE PRESUMPTION

Juror misconduct generally raises a presumption of prejudice which

may be rebutted by an affirmative evidentiary showing that prejudice does

not exist. (In re Hitchings, supra, 6 Cal.4th at pp. 118-119.) No such

showing was made by plaintiff.

1. Plaintiff’s Declarations Were Replete With Inadmissible Material Under section 1150, portions of declarations which refer to the

subjective reasoning processes of jurors are inadmissible. (Vomaska v. City

35

of San Diego, supra, 55 Cal.App.4th at p. 910; Enyart v. City of Los

Angeles, supra, 76 Cal.App.4th at p. 508, fn. 5.) Accordingly, a declaration

describing what a juror “felt” or how he or she understood the trial court’s

instructions is not competent. (People v. Hutchinson, supra, 71 Cal.2d at

pp. 50-351; People v. Elkins (1981) 123 Cal.App.3d 632, 636-637; People

v. Flores (1979) 92 Cal.App.3d 461, 468-469.)

Further, allegations that the juror who committed misconduct “did

not influence” the jurors’ verdict are inadmissible under section 1150.

(People v. Pierce (1979) 24 Cal.3d 199, 208, fn. 4.) Accordingly, a portion

of a juror’s declaration averring that he based his decision on everything

presented by the attorneys, and that he “felt” the plaintiff was negligent, “is

impermissible as it purports to describe his mental process which is not

objectively verifiable.” (Locksley v. Ungureanu (1986) 178 Cal.App.3d

457, 461.) Moreover, portions of declarations which are merely conclusory

are not admissible under section 1150. (De Vera v. Long Beach Pub.

Transportation Co. (1986) 180 Cal.App.3d 782, 796.)

The five juror declarations filed in opposition to the new trial motion

were teeming with such inadmissible material:

(a) The declarations stated (i) the jurors “worked extremely hard”

and were “totally dedicated to” their “responsibility to listen to all the

evidence presented and return a fair and just verdict”; (ii) “both sides

absolutely received a fair trial”; (iii) “[n]othing prejudiced Mr. Blake,” (iv)

the verdict was reached after they “worked as a group and went through the

law and evidence” and “was based on the witnesses and evidence”; and (iv)

“the trials and verdict relating either to the Michael Jackson or OJ Simpson

case had absolutely nothing to do with” the findings. (AA 1607, 1609,

1614-1618, 1620.)

(b) Jurors Aldana, Hernandez, and Mendoza all declared they

“took this obligation very serious,” “did [their] absolute best to be a fair and

36

impartial juror to both sides,” and “worked extremely hard . . . following

[the]. . . instructions and reaching the verdict.” (AA 1609, 1614, 1620.)

(c) Jury foreman Horn declared he never observed any juror

misconduct, it “appeared” the jurors “worked hard with the evidence and

law . . .,” they “did not factor in improper factors like Mr. Blake hiding

money, costs of baby adoptions or pensions,” and did not “consider [or] . . .

award any punitive damages.” (AA 1617.)

(d) Juror Valdivia now opined that the verdict and trial were fair,

stated she had no reason to believe Ms. Severson “committed any

misconduct or prejudiced the case in any way,” expressed the belief that

Ms. Severson’s failure “to volunteer” information and Mr. Mendoza’s

belief in the Bible” did not prejudice either side or render the trial unfair,

and declared she witnessed no conduct that she considered “misconduct”

prejudicing either side’s right to a fair trial or warranting a new trial. (AA

1607-1608.) Nothing that happened outside the deliberations, she stated,

affected her ability to follow the law and the instructions, -- as her

conversations outside of deliberations were “brief and harmless.” (AA

1607.) She further claimed she was on the verge of finding liability when

the majority was reached without her. (AA 1611.)

All of the foregoing portions of the declarations were speculative,

offered improper legal conclusions and opinions, failed to set forth

objectively ascertainable words or conduct, and gave bare, subjective

impressions. “Mere statements that the declarant ‘believed’ a juror was

prejudiced . . . are worthless conclusions.” (Ray v. Jackson (1963) 219

Cal.App.2d 445, 456.) For identical reasons, mere statements that

declarants believed fellow jurors were not prejudiced are equally “worthless

conclusions”: “[t]he affidavits of jurors may not be received as evidence

that the misconduct of one of their number did not influence their

deliberations or decision.” (Kritzer v. Citron (1950) 101 Cal.App.2d 33,

37

36-37; Kimic v. San Jose-Los Gatos etc. Ry. Co. (1909) 156 Cal. 379, 397.)

2. Plainitff’s Declarations Failed To Address Specific Instances Of Misconduct Stripped of their inadmissible portions, plaintiff’s juror declarations

failed to address many of appellant’s specific allegations of misconduct:

(a) Plaintiff failed to secure a declaration from Demetrius Hall

denying that he announced early in trial that he could not understand why

appellant had left Ms. Bakley alone in the car, and would find appellant

liable because of this. Further, no declaration from any juror denied that he

said this: indeed, Ms. Valdivia never retracted the claim she had earlier

attested to under penalty of perjury that Mr. Hall had told her this before

deliberations. Instead, she now merely claimed (somewhat

incomprehensibly), “At no time did our cigarette breaks, myself, Demetrius

Hall, Tony Aldana, ever in any way plot against either side or get into the

details of the case or witnesses.” (AA 1607, 1611.) Of course, no one has

ever alleged that jurors “plotted” against either side.

(b) No declaration was secured from Jurors Dave Lopez and

Jackie “Mack” – thus neither denied making favorable comments about the

Los Angeles Police Department before deliberations. Further, Ms. Valdivia

never retracted her allegation that they did so.

(c) No declaration was secured from Mr. Hall denying that he

said he had disliked appellant from the beginning, and Ms. Valdivia never

retracted her allegation that he made such a statement.

(d) Plaintiff offered no declaration rebutting Jose Elias’

admission that he did not hear testimony or his allegation that he repeatedly

told other jurors that he was having difficulty hearing testimony.

(e) Plaintiff attached no declaration from Juror Severson, and

Ms. Valdivia never retracted her claims that (i) she and Ms. Severson talked

about the fact that the latter was on Ms. Valdivia’s postal route; (ii) Ms.

38

Severson’s “face became very hardened” when Ms. Valdivia mentioned the

two murders in her neighborhood; and (iii) Ms. Severson’s daughter had

been convicted of one of the murders. (AA 1568.)

(f) No declarant denied Ms. Valdivia’s claim that Mr. Mendoza

announced during deliberations that the Bible support a finding of liability.

In fact, Mr. Mendoza himself never denied this -- declaring only that his

“belief” in the Bible did not prejudice either side or “prevent [him] from

being a fair juror.” Ms. Valdivia never retracted her claim, and no other

declarant denied hearing Mr. Mendoza say this: rather, Jurors Hernandez

and Aldana merely declared they had never made or heard any comments

from any juror about Mr. Mendoza’s belief in the Bible affecting the

fairness of the trial; Mr. Horn improperly opined that Mr. Mendoza’s belief

did not prejudice either side. (AA 1609, 1615, 1618.)

(g) No declarations were attached from Jurors Hall, Lopez, or

“Mack” denying the statements attributed to them by Mr. Lucero and Ms.

Valdivia – to the effect that the damages awarded should be large enough to

“send a message,” and that such an award would likely not be collectable.

Further, while statements made in the post-verdict press conference were

not themselves improper, they corroborated the claim (never retracted by

Ms. Valdivia) that the same jurors announcing the verdict was intended to

“send a message” had engaged in the same discussion during deliberations.

(h) Ms. Valdivia never retracted her claim that other jurors told

Mr. Elias what they contended was the substance of various witnesses’

testimony, that Jurors Hall and Lopez spoke harshly to and stood over Mr.

Elias, or that Mr. Mendoza once told him, “This is what’s going on . . . he

(appellant) walked over and shot her.” No declarations from jurors Hall

and Lopez denying this were secured, and plaintiff’s declarations merely

stated that they “never made or heard any inaccurate comments to Mr. Elias

about evidence or testimony presented in court” or “pressure[d] or ma[d]e

39

any promises or compromises to him to change his vote.” (AA 1609, 1615,

1618, 1620.) Further, no declarant denied telling Mr. Elias that they might

not award damages if he voted for liability or that Mr. Mendoza made the

statement attributed to him by Ms. Valdivia.

D. THERE WAS A SUBSTANTIAL LIKELIHOOD ENOUGH JURORS WERE IMPERMISSIBLY INFLUENCED TO HAVE AFFECTED THE VERDICT Where no affidavits or declarations are introduced to counter the

evidence of jury misconduct proffered on a new trial motion, the acts are

deemed established, and the only issue is whether they are harmful or

prejudicial. (Tapia v. Barker (1984) 160 Cal.App.3d 761, 766; Deward v.

Clough, supra, 245 Cal.App.2d at pp. 442-445; Smith v. Covell, supra, 100

Cal.App.3d at pp. 947, 952-954.) As already noted, the issue of whether an

individual verdict must be overturned for jury misconduct “is resolved by

reference to the substantial likelihood test, an objective standard.” (In re

Hitchings, supra, 6 Cal.4th 97, 118.) Given the entire record, there is a

substantial likelihood actual prejudice ensued.

1. Prejudice Accruing From The Unrebutted Misconduct In Pre-Judging The Case

In Deward v. Clough, supra, 245 Cal.App.2d 439, as noted above,

one juror announced before deliberations that the jury “could bring in a

verdict.” (Id., at p. 443.) The appellate court reversed the result (even

though the jury voted 11 to 1 for the defendant) because the juror had

decided the case prior to the commencement of deliberation. (Id., at pp.

445-453.) As the court commented, the juror who judged the case before

its completion had neither kept the promise he made before his selection as

a juror nor heeded the court’s admonitions. (Id., at pp. 443-444.)

Characterizing the misconduct as “serious,” the court found the pre-judging

particularly prejudicial because the jury instructions “were of more than

usual importance under the facts of the case.” (Id., at p. 443.)

40

The same result was reached in Province v. Center For Women’s

Health and Family Birth (1993) 20 Cal.App.4th 1673, where a juror

prejudged the case by deciding to vote for the defense before the plaintiff

completed her case. The court concluded the integrity of the trial was

undermined because of the substantial likelihood at least one juror was

impermissibly influenced: under such circumstances, the court could not

find the jury was impartial. (Id., at p. 1679.)

Jurors in this case similarly violated their oaths and flagrantly

disregarded the court’s admonitions not to pre-judge the case. In the most

egregious example, Juror Hall announced early in trial that appellant was

liable because “he left Bonnie alone in the car.” This was, however, an act

of mere negligence – and therefore contrary to the instruction requiring that

a decision on the issue of liability be based only upon a finding that

appellant intentionally caused Ms. Bakley’s death. (RT 10209.)

Thus the stated basis for Mr. Hall’s pre-deliberative decision was

one upon which he was foreclosed from considering. As in Deward, Mr.

Hall’s failure to await the instructions was profoundly prejudicial.

Appellant was equally prejudiced by other instances of pre-judging, also

unrebutted, involving Jurors Lopez and “Mack”: in deciding that police

witnesses were more credible than appellant and in advocating a large

damage award because it would likely not be collectable, they also acted in

egregious contravention of the court’s admonitions and their oaths.

2. Prejudice Resulting From Juror Elias’ Inability To Hear Testimony And Failure To So Inform The Court

Plaintiff failed to rebut the presumption of prejudice accruing from

Mr. Elias’ admitted failure to hear much of the testimony and consequent

incompetence -- and failed to offer any evidence refuting the allegations

Mr. Elias repeatedly told fellow jurors he could not hear much of the

testimony, was supplied “versions” of the testimony by others, and was

41

bullied by Jurors Hall and Lopez. Given Mr. Elias’ admission that he could

not hear “some” of the testimony, he could not possibly have competently

assessed whether appellant intentionally caused the decedent’s death based

on all the evidence presented. He exacerbated matters, moreover, by failing

to admit that he had not heard at least some of the testimony when

expressly asked by the court if he could “hear people.”

3. Prejudice Resulting From Improper Reference To The Bible And Other Extraneous Information Juror Mendoza contended during deliberations that the Bible

supported a finding of liability and became embroiled in a dispute with Ms.

Valdivia over his repeated religious references. The instant facts thus

contrast with those in People v. Danks, supra, 32 Cal.4th 269 -- where the

California Supreme Court deemed it misconduct to bring a copy of a

biblical passage into the jury room, but found it was not substantially likely

to have resulted in actual bias. In so finding, the court noted the juror did

not repeatedly refer to this extrajudicial information and did not purport to

validate her view as truth based on the Bible or impose it on others. (Id., at

p. 308.) The facts here are otherwise: Mr. Mendoza did repeatedly refer to

the Bible, did contend that it validated his view, and did attempt to impose

his view on others. Statements by jurors during deliberations evidencing an

agreement to punish appellant and set an award based on factors outside the

evidence and contrary to the court’s instruction were no less prejudicial.

4. Prejudice Resulting From Concealing Information

Appellant was entitled to know that Juror Severson’s daughter had

been convicted of murder following a sensational and highly publicized

trial, and was sentence to life imprisonment -- particularly once Ms.

Severson admitted during voir dire that she believed “rich people”

occasionally receive preferential treatment. (RT 311.) Had appellant

known Ms. Severson’s daughter had been convicted of murder (the very

42

charge of which he had just been acquitted), he certainly could have

concluded that she would attempt to redress a perceived inequity by voting

for liability.

5. It Is Substantially Likely The Juror Misconduct Resulted In Actual Prejudice, Particularly In Light Of The Entire Record In deciding to grant a new trial, courts have found it reasonably

probable that jurors who have not violated their oaths or engaged in the sort

of misconduct described here could have arrived at a different verdict – as

in Deward v. Clough, supra, 245 Cal.App.2d at p. 446, where the court

found that juror misconduct in prejudging the case required a new trial

where the original defense verdict was 11-1. Given the final vote of 10-2

for liability, the disqualification for bias of any two of the foregoing six

majority voters “could have resulted in a different verdict.” It is therefore

substantially likely enough jurors engaged in and/or were impermissibly

influenced by misconduct to have affected the verdict to appellant’s

detriment, particularly because this is not a situation in which misconduct is

counter-balanced by overwhelming evidence in favor of the verdict:

(a) No witness claimed to have seen or heard the murder, and

plaintiff produced no evidence of any confession by appellant.

(b) The forensic evidence did not establish that appellant was the

shooter; if anything, it indicated that he could not have pulled the trigger

(given the absence of the expected number highly specific particles of

gunshot residue on his hands and clothing).

(c) Plaintiff produced no tape recording in which appellant

threatened Ms. Bakley with physical violence, and the recording in which

he indicated displeasure with her was made while she was pregnant and

thus more than a year before the killing; the same is true of the “abort or

whack” conversation with William Welch. Further, whatever actions

appellant took to ensure he would have custody of his child before his

43

marriage to Ms. Bakley, the evidence did not conclusively establish he

continued such efforts after the marriage:

(i) Several witnesses testified that appellant never said “a cross

word” about her after they married on November 19, 2000.

(ii) Even if Mr. Minucci’s testimony could be credited in the face

of evidence that his phone relationship with appellant consisted of just a

few brief calls, their conversations ended in April of 2000 – well before

Ms. Bakley even gave birth.

(iii) The only evidence appellant plotted against Ms. Bakley after

the marriage was two-fold: (A) testimony concerning the “conspiracy” to

plant drugs on her, and (B) testimony he solicited the two stuntmen to kill

his wife. Such evidence was, however, at best, suspect:

(A) To support the claimed conspiracy to plant drugs, plaintiff

produced testimony (by the heirs to Ms. Bakley’s estate, and principal

beneficiaries of the jury’s award) that drugs were found in her car sometime

between October and December 2000; plaintiff also produced testimony by

Lisa Johnson that Mr. Caldwell said he had gone to Arkansas to plant

drugs. Against such testimony, the physical evidence suggested the

individual who placed the drugs in the box was from Memphis, given the

presence of pages from a newspaper never distributed in Arkansas; there

was no evidence Mr. Caldwell went to Tennessee or had access to such a

newspaper; and Ms. Johnson testified that Mr. Caldwell told her the attempt

to plant drugs was unsuccessful. In any event, inasmuch as the jurors found

that Mr. Caldwell was not involved in a conspiracy to kill Ms. Bakley, they

obviously rejected either the claim that he planted the drugs or the claim

that the “planting of drugs” was related to the killing.

(B) The stuntmen’s credibility was undeniably at the very least

somewhat questionable – given that they waited anywhere from 10 days to

6 months after the killing before belatedly claiming to police they had been

44

solicited; Mr. Hambleton repeatedly denied to police in several interviews

in the months between May and November 2001 that appellant had ever

solicited him, then gave contradictory versions of events; Mr. McLarty

admitted appellant never actually asked him to kill Ms. Bakley; in support

of the appellant’s testimony that he was attempting to recruit the stuntmen

to “rough up” a stalker, Mr. McLarty’s wife testified that he told her

appellant had offered him $10,000 to “throw a couple of punches” at a

stalker; and both were heavy users of cocaine and/or methamphetamine,

and prone to delusions and paranoia.

In sum, jurors pre-judged the case before it was submitted, failed to

report that one could not hear portions of the testimony, concealed material

information during voir dire, referred to extraneous information during

deliberations, impermissibly speculated on the collectability of an award,

and improperly agreed to award punitive or exemplary damages – all of

which necessarily affected the outcome of trial, to appellant’s detriment.

In light of the entire record, therefore, there was “reasonable probability of

actual harm to the complaining party” resulting from the juror misconduct –

mandating reversal of the judgment.

II.

PREJUDICIAL INSTRUCTIONAL ERROR OCCURRED WHEN THE COURT FAILED TO GIVE APPELLANT'S REQUESTED

INSTRUCTION PROHIBITING THE JURY FROM AWARDING DAMAGES TO PUNISH OR MAKE AN EXAMPLE OF HIM

As even plaintiff conceded (RT 8899), only compensatory damages

may be recovered in a wrongful death case. (Powers v. Sutherland Auto

Stage Co. (1923) 190 Cal. 487; Pease v. Beech Aircraft Corp. (1974) 38

Cal.App.3d 450, 460.) Even where the decedent’s death was caused by the

defendant’s reckless and wanton misconduct, exemplary and punitive

damages are not recoverable. (Id., at pp. 460-461.)

At the outset of trial, therefore, appellant requested the jury be

45

instructed that no punitive or exemplary damages could be awarded. (AA

95.) The court failed, however, to give this instruction. (RT 10202-10235.)

The juror declarations supporting the motion for new trial established that

the jury discussed awarding $30,000,000 as punishment and as a deterrent

to “celebrities” and “the rich.” Even if there were no evidence of such

statements, however, the sheer size of this award plainly betokened a

resolve on the jury’s part to punish appellant and make an example of him.

It was therefore error for the trial court to fail to instruct the jurors they

could not award punitive or exemplary damages.

III.

THE AWARD OF $30 MILLION -- $485 MILLION OVER THE DECEDENT’S LIFE EXPECTANCY -- IS GROSSLY EXCESSIVE

AND IS BOTH COMPLETELY DISCONNECTED WITH AND DISPROPORTIONATE TO THE EVIDENCE OF THE REAL

PARTIES' LOSS OF SOCIETY, COMFORT, AND PROTECTION A motion for a new trial is a prerequisite to raising an issue on

appeal that the damage award was excessive. (Alexander v. McDonald

(1948) 86 Cal.App.2d 670, 671.) The trial court’s determination on the

new trial motion is not binding upon a reviewing court, but “is to be

accorded great weight because having been present at the trial[,] the trial

judge was necessarily more familiar with the evidence.” (Bertero v.

National General Corp. (1974) 13 Cal.3d 43, 64.)

A damage award will not be reversed as excessive unless the record,

viewed in the light most favorable to the judgment, supports the conclusion

it is excessive as a matter of law or so grossly disproportionate as to raise

the presumption the jury acted out of passion or prejudice. (See

Cunningham v. Simpson (1969) 1 Cal.3d 301, 308-309; Pool v. City of

Oakland (1986) 42 Cal.3d 1051, 1067-1068.)

In this case, the award of $30,000,000 compensatory damages --

46

actually $485,676,00011 -- must be deemed excessive as a matter of law

and/or so grossly disproportionate as to raise the presumption the jury acted

out of passion or prejudice. A wrongful death action in California is a

cause of action in favor of the heirs as beneficiaries, based upon their own

independent pecuniary injury suffered by loss of a relative. (Fitch v. Select

Products Co. (State Dept. of Health Services) (2005) 36 Cal.4th 812, 819;

Horwich v. Superior Court (1999) 21 Cal.4th 272, 283.) Damages for

mental and emotional distress, including grief and sorrow, are thus not

recoverable in a wrongful death action. (Krouse v. Graham, supra, 19

Cal.3d 59, 72.) It is reversible error when a sizable plaintiff’s verdict “may

very well have included a substantial award for their grief and suffering . .

.” (Id., at pp. 72-73.)

Notwithstanding the foregoing, loss of such nonpecuniary factors as

the society, comfort, care and protection of a decedent, is recoverable in a

wrongful death action. (Krouse v. Graham, supra, 19 Cal.3d at p. 69.)

Such factors must nonetheless bear a reasonable relationship to

measurable pecuniary value. (See Fitch v. Select Products Co. (State

Dept. of Health Services), supra, 36 Cal.4th at p. 819; Horwich v. Superior

Court, supra, 21 Cal.4th at p. 276, fn. 3 [“Heirs are limited to recovery for

pecuniary damages only”]; see, also, Canavin v. Pacific Southwest Airlines

(1983) 148 Cal.App.3d 512, 520 [“the loss of comfort and society are to be

considered only with reference to the value of the life of the deceased and

the pecuniary loss to the plaintiff caused by the death.”].)

There was no such economic tether in this case. In fact, real

parties did not seek pecuniary recovery on the grounds normally sought by

11Jurors were instructed the average life expectancy of a 44-year-old female is 38.5 years. (RT 10214-10215.) An award of $30,000,000 today is actually an award of $485,676,000 over 38 years, when an interest factor of 7.5% (the prime lending rate at the time of the motion for new trial) is applied.

47

heirs, since the income and other pecuniary contributions which might

have been made by Ms. Bakley arose directly and solely from her illegal

activities. Nor did real parties provide any other evidence supporting the

award. At most, they presented evidence of their grief, sorrow, and

loneliness from the loss of their mother – none of which is legally

compensable. Even if loss of society, comfort and protection could be

considered as a separate element of damage without requiring that they be

tethered to a showing of pecuniary loss, the $30,000,000 (or $485,676,000)

award was profoundly excessive.

The evidence established Ms. Bakley sported a criminal record,

earned her living by deceiving “lovelorn older gentlemen,” and included

her children for at least administrative assistance in her illegal schemes.

Holly and Glenn Gawron testified they were aware of Ms. Bakley’s

conviction, her house arrest, her use of false IDs (including Holly

Gawron’s), the illicit ways she sought to acquire money from lonely men,

and her regular violation of the terms of her probation. Holly Gawron also

testified that she was present on occasions when the FBI searched their

home and was subjected to police questioning after Ms. Bakley was

arrested – and also admitted to assisting Ms. Bakley in her plot to become

pregnant by appellant. Indeed, referring to her mother, she stated: “What

she did never influenced me.” (RT 5421.)

Both Holly and Glenn Gawron also testified Ms. Bakley was not

(and had not for some time been) living with any of her children at the time

of her death. As they acknowledged, Debra Gawron was living with her

father in the years before and after Ms. Bakley was pregnant, and had

minimal contact with her mother. Numerous other witnesses, including

plaintiff’s witness Cody Blackwell, testified that Rose Blake was suffering

from medical problems while in her mother’s care. In sum, Ms. Bakley did

not provide her children with a stable, normal, or safe environment – and

48

there was no evidence her conduct or the negative influence of her lifestyle

would have changed had she lived.

Accordingly, testimony by the adult testifying heirs that they

experienced the requisite loss must be weighed against the fact that the

decedent was a convicted felon, provided little positive guidance to her

children, and was heavily imbued in illegal scams and fraud. In light of

this, and in the absence of evidence of financial assistance, there simply

was no basis for a finding that her heirs were entitled to the astounding

award so generously conferred on them by the jury. Of course, it is

doubtful whether any evidence could justify the outrageous sum of

$485,676,000. Here, the jury’s award was so manifestly disproportionate to

the evidence, it could only have been improperly intended to punish and

make an example of appellant.12

IV. THE COURT ERRED BY BOOTSTRAPPING THE ADMISSION

OF MS. BAKLEY’S HEARSAY STATEMENTS TO THE ADMISSION OF TAPES SHE ILLEGALLY MADE OF PHONE

CONVERSATIONS WITH APPELLANT, AND BY PERMITTING PLAINTIFF TO ELICIT OPINION TESTIMONY THAT

APPELLANT INTENTIONALLY CAUSED DECEDENT’S DEATH A trial court’s rulings on the admissibility of evidence are reviewed

under the deferential abuse of discretion standard of review. (People v.

Waidla (2000) 22 Cal.4th 690, 717-718.) In this case, Holly and Glenn

Gawron both claimed at trial (having never done so when deposed) that Ms.

Bakley told them appellant threatened her during her pregnancy by saying

he had “a bullet with her name on it”; Ms. Gawron further claimed Ms. 12 It should also be noted that wrongful death damages must be reduced to present cash value. (Fox v. Pacific Southwest Airlines (1982) 133 Cal.App.3d 565, 569.) As BAJI California Jury Instructions (2005) § 14.51 states, a verdict is returned against the defendant “shall be in a single sum, representing the aggregate of the present case value of all the losses suffered by the heirs of the deceased.” If a reasonable discount rate were applied, the damage award would be $1,853,058.

49

Bakley told her she taped telephone conversations with appellant because

of such threats. In denying appellant’s motions in limine to exclude

decedent’s hearsay statements and tape recordings, the court tied the

admission of the latter to that of the former: (1) the tapes Ms. Bakley made

were admissible on the ground that she did so out of fear appellant would

commit a violent felony toward her; (2) Ms. Bakley’s hearsay statements

relating threats made by appellant were admissible to establish she

entertained such fears pursuant to Evidence Code section 1250 (“section

1250”). The court also permitted plaintiff’s counsel to elicit lay opinion

testimony over defense objection that appellant intentionally caused the

death of Ms. Bakley. (RT 1583, 2852-2853.) The court abused its

discretion in each of these rulings.

A. THE COURT ABUSED ITS DISCRETION BY ALLOWING ADMISSION OF DECEDENT’S HEARSAY STATEMENTS TO PROVE THAT APPELLANT THREATENED HER FOR THE ALLEGED PURPOSE OF LAYING A FOUNDATION FOR HER TAPE RECORDINGS Subdivision (a)(1) of section 1250 provides that evidence of a

statement of declarant’s then existing state of mind or emotion is

admissible if the declarant’s state of mind “is itself an issue.” (Evid. Code

§ 1250, subd. (a)(1).) Under subdivision (b) of the statute, however,

evidence of a declarant’s statement of memory or belief is not admissible as

proof of the fact remembered or believed. The California Supreme Court

has therefore repeatedly held that hearsay statements of victims concerning

fears of or threats against them by the accused are not within the exception

when offered to prove the conduct of the accused. (People v. Noguera

(1992) 4 Cal.4th 599, 622.)

Moreover, although a victim’s out-of-court statements of fear of an

accused are admissible when the victim’s conduct in conformity with that

fear is in dispute, the court has also held that evidence of the victim’s

50

statements expressing fear of or purporting to describe actions by a

defendant are inadmissible unless the defense raises an issue of fact with

respect to the victim’s conduct immediately preceding the victim’s death (to

support, for example, a self-defense claim). (People v. Ireland (1969) 70

Cal.2d 522, 529-531; People v. Arcega (1982) 32 Cal.3d 504, 526-527;

People v. Ruiz (1988) 44 Cal.3d 589, 609; People v. Noguera, supra, 4

Cal.4th at p. 621.)

Since appellant never claimed Ms. Bakley engaged in conduct which

led to an accidental or justifiable homicide, the only ground offered for the

admission of the statements was essentially derivative – tied to plaintiff’s

asserted justification for offering a tape recording made almost two years

before the shooting. Under Penal Code section 632, the intentional

electronic recording of a confidential telephone communication without the

consent or knowledge of all parties to such communication is illegal, and

the tape recording thus obtained is inadmissible in any judicial proceeding.

(Pen. Code § 632, subds. (a) and (d); Warden v. Kahn (1979) 99

Cal.App.3d 805, 812; People v. Pedersen (1978) 86 Cal.App.3d 987, 993.)

The court ruled the tape made by Ms. Bakley of a telephone

conversation with appellant could be introduced pursuant to Penal Code

section 633.5, which permits a party to a confidential communication” to

record such communication “for the purpose of obtaining evidence

reasonably believed to relate to the commission by another party . . . of . . .

any felony involving violence against the person . . .” This ruling was,

however, contrary to the law.

In the first place, it amounts to the claim that Ms. Bakley’s hearsay

statements regarding threats made by appellant could be offered for the

sole purpose of proving that he made such threats – and thus to prove “the

fact remembered or believed.” This is expressly contrary to section 1250

and the relevant case law. In the second place, the court cited no

51

justification for the tacit assumption that the admission of evidence which

would ordinarily be inadmissible could simply be bootstrapped to other

inadmissible evidence – thus rendering them both admissible, even though

separately the evidence would be entirely inadmissible. The court also

cited no justification for the suggestion that Ms. Bakley’s tape recording in

1999 would somehow be relevant to events in May 2001, even though it

contained no threat by appellant to commit an act of violence toward her.

Nor was the tape admissible on the other cited ground by the court.

Apart from whether it was proper to require appellant to establish the

means by which the calls were made, the court’s ruling that calls made by

cellular or cordless phones would be “over public airwaves” and thus not

confidential was utterly unsupported by the law. Penal Code Section 632

expressly prohibits the recording of any confidential communication “by

means of a telegraph, telephone, or other device, except a radio . . .” The

Legislature has, moreover, expressed the strong intent to maintain the

privacy of cellular or cordless phone communications: Penal Code section

632.7 prohibits the recording of all (not merely confidential)

communications involving cellular telephones and cordless telephones.

“[A] conversation is confidential under section 632 if a party to that

conversation has an objectively reasonable expectation that the

conversation is not being overheard or recorded.” (Flanagan v. Flanagan

(2002) 27 Cal.4th 766, 776.) A telephone call between a celebrity and his

pregnant paramour, involving their discussion of her deception regarding

her pregnancy, is one that involves an objectively reasonable expectation of

privacy – or, more specifically, a reasonable expectation on the part of the

celebrity that the telephone conversation is private, that no one is “listening

in,” and that his statements will not be recorded without his consent. As

such, the telephone conversation was illegally recorded in violation of the

provisions of section 632 and was not admissible in any judicial

52

proceeding; further, Ms. Bakley’s hearsay statements relating appellant’s

“threats” can only be purported to justify the admission of any tapes of such

conversations if offered to prove the truth of the matter asserted.

B. ADMISSION OF LAY WITNESSES’ OPINIONS THAT APPELLANT INTENTIONALLY CAUSED DECEDENT’S DEATH WAS AN ABUSE OF DISCRETION Over defense objection, the court permitted plaintiff’s counsel to

elicit opinion testimony from William Welch that appellant was a “potential

killer, and probably could have hired it done also” (RT 1583), and from

Lisa Johnson that appellant planned Ms. Bakley’s wrongful death. (RT

2852-2853.) It is a fundamental rule of evidence that witnesses must

ordinarily testify to facts and not opinions. (People v. Williams (1992) 3

Cal.App.4th 1326, 1332.)

Under Evidence Code section 800, “[i]f a witness is not testifying as

an expert, his testimony in the form of an opinion is limited to such an

opinion as is permitted by law, including but not limited to an opinion that is .

. . [r]ationally based on the perception of the witness; and . . . [h]elpful to a

clear understanding of his testimony.” Matters beyond common experience

are not proper subjects of lay opinion testimony. (People v. Williams, supra,

3 Cal.App.4th at 1333.)

In addition, Evidence Code section 210 provides that “relevant

evidence” has some “tendency in reason to prove or disprove any disputed

fact that is of consequence to the determination of the action.” Evidence

which has no tendency in reason to prove or disprove any disputed fact of

consequence to the determination of the action is therefore irrelevant -- as is

evidence which has a tendency in reason to prove or disprove a fact which

is not of consequence to the determination of the action. (People v. Hill

(1992) 3 Cal.App.4th 16, 29.)

Testimony by plaintiff’s witnesses that appellant intentionally

53

caused Ms. Bakley’s death was inadmissible lay opinion that was neither

rationally based upon the perception of the witnesses nor necessary to a

clear understanding of their testimony. Indeed, lay opinion regarding the

veracity of particular statements by another is generally inadmissible

(People v. Melton (1988) 44 Cal.3d 713, 744), and opinion testimony as to

the guilt or innocence of a defendant in criminal cases is similarly

inadmissible. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 77-78;

People v. Torres (1995) 33 Cal.App.4th 37, 46-47; People v. Clay (1964)

227 Cal.App.2d 87, 98-99.) Such opinion testimony served no proper

evidentiary purpose and was admitted erroneously.

C. APPELLANT WAS PREJUDICED BY THE COURT’S ABUSE OF DISCRETION In one of the tapes played at trial, appellant expressed anger at Ms.

Bakley for deliberately becoming pregnant and asked that she abort her

pregnancy. For unexplained reasons, moreover, the tape had somehow

been slowed down – making appellant sound “sinister.” (RT 901-902,

926.) Given that one juror opined during deliberations that the Bible

supported a finding of liability, the prejudice inherent in the admission of a

tape containing a request to terminate a pregnancy is plain. No less

prejudicial were Ms. Bakley hearsay statements concerning appellant’s

threats and opinions by lay witnesses who knew appellant that he planned

the killing : given that jurors expressed dislike for appellant from the start

and announced their intention to punish and make an example of him, the

prejudicial effect of such statements is undeniable.

54

CONCLUSION

In contravening the court’s admonitions and pre-judging the case to

appellant’s detriment, failing to disclose a juror’s inability to hear

testimony, discussing considerations that were outside the evidence and

contrary to the court’s instructions, withholding critical information during

voir dire, and hectoring and bargaining with others, jurors voting for

liability inarguably engaged in misconduct which affected the outcome of

trial and caused actual harm to appellant. Further, the court abused its

discretion by admitting evidence of hearsay statements by the decedent.

Together with the further fact that the $30 million award (in fact,

$485,676,000) was grossly excessive and on its face unsupported by the

evidence, reversal of the judgment is mandated.

DATED: February 27, 2007 Respectfully submitted,

________________________________ M. GERALD SCHWARTZBACH Attorney for Appellant ROBERT BLAKE

55

CERTIFICATE OF COMPLIANCE WITH RULE 8.204(c)(1)

I, M. Gerald Schwartzbach, declare that:

I am an attorney at law licensed to practice in the State of California,

and I am the attorney of record for defendant and appellant Robert Blake in

this matter.

This Certificate of Compliance is submitted in accordance with Rule

8.204(c)(1) of the California Rules of Court.

Appellant’s Opening Brief was produced with a computer and is

proportionately spaced in 13 point Times Roman typeface. The text of this

brief (excluding tables and proof of service) consists of 16,887 words as

counted by the word-processing program used to generate the document.

I declare under penalty of perjury under the laws of the State of

California that the foregoing is true and correct.

Executed on February __, 2007 at Mill Valley, California.

__________________________________ M. GERALD SCHWARTZBACH

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