P. v. Roberson

















Filed 8/9/12 P. v.
Roberson CA3











NOT
TO BE PUBLISHED







California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.









IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE
DISTRICT

(El
Dorado)

----






>

THE PEOPLE, Plaintiff and Respondent, v. ULYSSES ROBERSON, Defendant and Appellant.

C064027 (Super. Ct. No. S01CRF0236)

Defendant
Ulysses Roberson was convicted of beating his four-year-old son to death. The People’s theory was that defendant led a
quasi-polygamist cult. Defendant and one
of his wives, Rosemary Judith Olive, are of different races (defendant is Black
and Olive is White) and their four-year-old son Alexander Sol “Salaam” Olive,
the victim, was mixed race.

The race issue caused defendant significant
anger, which he focused on the victim long before the href="http://www.fearnotlaw.com/">murder, referring to him as a “bad seed”
and as “having a demon,” among other things.
In December 1985 or January 1986, defendant beat the victim to death
and disposed of the body; Alexander’s body was never found.

Defendant
was charged with murder in 2001. The
case went to trial in 2009; the jury acquitted defendant of first degree
murder, necessarily rejecting alleged torture-murder
and race-murder special circumstances (Pen. Code, § 190, subds. (a)(16)
& (a)(18)), but convicted him of second
degree murder. (Pen. Code, §§ 187,
subd. (a), 189.) The trial court sentenced
defendant to prison for 15 years to life, and he timely appealed.

On
appeal, defendant contends the trial court erred by allowing href="http://www.fearnotlaw.com/">expert testimony on cult behavior to
explain why the witnesses did not promptly report the killing. Defendant further contends the trial court
erred by modifying a cautionary instruction on the frailties of eyewitness
testimony to apply to defense evidence, which consisted of witnesses who
testified they had seen the victim’s age-progressed picture and subsequently
reported seeing a child resembling that picture.

As we
will explain, the expert testimony was not completely lacking in foundation and
relevance, nor was it prejudicial.
Further, any error was harmless in light of overwhelming evidence of
defendant’s guilt. Nor was the
instruction problematic in the manner briefed by defendant. Accordingly, we shall affirm the
judgment.

FACTUAL
BACKGROUND

The
pretrial proceedings were protracted, the trial was long, and the evidence was
convoluted and bizarre. Although
defendant raises fairly narrow claims of error, it is necessary to provide
enough factual detail to provide context to assess defendant’s claims and to
show the overwhelming nature of the evidence.
Nonetheless, we omit many facts developed at trial.

We
will divide the facts into eight sections.
In sections 1-4 we summarize the testimony of four key witnesses, (1)
Olive, the victim’s mother, (2) Raj Roberson (Raj), defendant’s lead wife, (3)
Pamalar Lewis (Lewis), a secondary wife, and (4) Joseph Roberson (Uhrtiko), one
of defendant’s many sons. In section 5
we summarize other prosecution evidence.
In section 6 we summarize the challenged expert cult testimony. In section 7 we summarize the defense
“sightings” evidence, and in section 8 we discuss the People’s rebuttal to that
evidence.

>1. >Olive’s testimony

Olive,
a nurse, was born in 1957. She met
defendant--who was using the name “Tony Amos Rich”--on June 14, 1980, when he
arrived at her Houston hospital with Raj--who was using the name “Ulia Rich”
and was in labor. Defendant claimed to
be “a hermetic scientist, a mystic and a psychic” and invited Olive to his home
to cast her astrology chart. She was
asked to fill out forms detailing her personal history and goals and did so,
because “the whole message was that it was to help me better myself and to be
more in tune with the cycles of life and make appropriate decisions and empower
myself[.]” Olive was given a blue drink
and told to take a bath, fell asleep, and awoke to find herself in the midst of
intercourse with defendant.

Defendant
told Olive they were “connected” and when she told him he had impregnated her,
he asked her to move in, which she did.
The household included Raj, “the baby Yewaur, three-year-old Urenauld”
and “a girl named Traci” (Traci Mills, really Kimberly Gudger). Although Olive had been in school, defendant
told her Raj “was pregnant, and that she was working, and that if I needed to
take care of my baby, I needed to work.”
Olive finished her school term and began working full time.

Olive
had been close with other family members, but once she moved in with defendant,
he turned her against them, saying “my family was going to come against me, try
to kill that baby within me because it was partially black . . . and that I
couldn’t trust them[.]” When her family
members came to Houston, defendant placed Olive in an apartment where Gudger
also stayed, telling Olive her family was a threat to him. Defendant had taken Olive’s possessions and
he had control of her car and paychecks.

Olive’s
family thought she was in a cult and took her to a “deprogrammer” in Nebraska
in 1981. She then stayed with her
brother, where she gave birth to the victim on May 16, 1981. The deprogrammer warned Olive not to contact
defendant, but she wrote to him, and eventually defendant and Raj contacted
Olive and took her and the victim to Los Angeles.

Defendant
announced that the victim would now be called “Salaam,” meaning “peace,” which
would help the victim avoid trouble, “since he was mixed [race].” The group stayed at a hotel, then went to
defendant’s mother’s house in San Bernardino for a few weeks. Gudger had visited at the hotel, and Urenauld
and Yewaur were at the San Bernardino house, along with a woman named Melvina
Tolbert, “that Ulysses told me he brought back from Texas to California.” The group moved to Venice, where “a girl
named Sue from Texas”--apparently Sue Caviness--joined them.

Olive
worked two jobs and turned her paychecks over to defendant, because, “I decided
that I was going to join this whatever you call it, group, which my son was
part of.” Later, defendant had houses in
Reseda and Fontana, and Olive lived with Lisa Robertson, defendant’s daughter
(about age 12) and “the babies” (the victim and Uhrtiko). Then everyone lived in Fontana, except
Caviness. Defendant again told Olive her
family was a threat to him and was “against” her, and against “my son being
black[.]” Raj--on defendant’s
orders--prepared a restraining order for Olive to sign, and because Olive was
in “an altered mind state,” she made up allegations about her family. To hide Olive and the victim from Olive’s
family, defendant’s mother and her “male companion” “were like my
bodyguards[,]” and defendant’s mother “made me look different than myself and
had dark makeup on to make me look like a black person” and disguised her.href="#_ftn1" name="_ftnref1" title="">[1]

The
group then moved in a motor home to the Bay area, now augmented by Invaka,
Raj’s newest baby, who was born in the summer of 1982. When they left, Olive did not know where they
were going, because defendant “groomed” them not to ask many questions. Defendant stopped in Richmond and told Olive
she had a new name, Ruby Roberson, a new social security number, “and that was
my drop-off point[,]” “a test to see how well” she could manage in a new city,
and she “watched the motor home drive away” with her son in it: She made no protest, but was “blindly
obedient to whatever he told me to do.”href="#_ftn2" name="_ftnref2" title="">[2] She worked at a hospital, but mailed her
check to defendant at a post office box:
he refused to tell her where he lived, because her family was a
threat. Months later, defendant, Raj and
“all the children” visited Olive in Oakland.
Once while in Oakland, defendant began whipping Olive with a leather
belt as she slept, and laughed about it.

By 1984 or the
beginning of 1985, defendant lived in Seattle, and Olive visited two houses
there. At the “University District”
house, defendant lived with the women and children, who came and went between
houses, and defendant sometimes lived alone at the “Mercer Island” house. During the summer of 1985, Olive heard
Urenauld had left the family. Although
Olive hated not having more contact with the victim, defendant wanted her to
work in the Bay area, which she did.

Late
in the summer of 1985, defendant told Olive to live in Sacramento, and Raj
found a house there. At one point,
Gudger opened the door to the police, and she “was ostracized, got her head
shaven and her hair shaped in the shape of a devil horn and got thrown out of
the house” for breaking defendant’s rule that the door was never to be opened
to the police.href="#_ftn3" name="_ftnref3"
title="">[3] A week later, Olive was arrested for
obstructing an investigation when she refused to open the door to the police,
in obedience to defendant’s rule.

By
October or November of 1985, defendant also had a house at South Lake
Tahoe. Defendant generally wanted to
have two houses: “He liked to have his
own house, and he liked to pretty much dictate what was going to happen at each
house” so he could meet “clients” without them knowing he had a group of
children.

Once
when defendant brought Olive to Sacramento, defendant brought the victim, who
Olive found “was kind of weak and quiet and small. Felt very frail to me.” The victim’s lips were cracked and scabby,
and “his entire face was bruised, and especially on the left side by his eye,
by his mouth and face.”

Olive gave the victim a bath, but he was
“withdrawn and quiet[,]” though usually he had “a very bubbly
personality.” During the bath Olive saw
“severe scabs on both his ankles with edema above and below the scabs.” When she asked the victim what happened, he
said, “‘my daddy tied shoestrings, and I was hanging with shoestrings.’” When defendant was asked about this, he told
Olive the victim “was a bad seed . . . he was bad for this family. He needed to get out of this family. I needed to find a place for him. He was giving a bad influence. He can’t talk right.” The latter point referred to the victim’s
speech pattern, which defendant tried to force the victim to change by denying
him food.href="#_ftn4" name="_ftnref4" title="">[4]

Defendant
also said the victim “had a demon, and he had him on the verge of death, and he
was getting the demon out of him and the demon was the same demon that the
other child had, Urenauld.” To get the
victim on the verge of death, defendant “hung [the victim] upside down by his
ankles and left him there for three days.”
Olive said she would find a place for the victim, but did not take the
victim because she “was mentally incapable” and allowed defendant “to dominate
and make a lot of decisions[.]”

The
last time Olive saw the victim, he was standing in a corner, where defendant
ordered him to stand, sucking his thumb.
That would have been on December 19, 1985, the day she started a job at
San Francisco General Hospital. The
first week of January 1986, defendant visited Olive in href="http://www.adrservices.org/neutrals/frederick-mandabach.php">San
Francisco. Although Olive expected
to go to Sacramento to visit the victim, defendant and Felicia Burns (Bradley)
took her to a restaurant in Sausalito, where defendant told her he had sent the
victim away to a Muslim school “‘to teach him how to be black.’” When Olive asked questions, defendant became
“extremely forceful and said, ‘I am not talking about this.’” They then went to the South Lake Tahoe house,
and when Olive again asked about the victim, defendant yelled at her and told
her not to bring his name up. This was
about January 4, 1986. Defendant “kept
saying that people were watching him, and everybody was watching him, and he
could hear sounds.” He posted people to
keep watch, and carried a shotgun or rifle.
Previously, he had carried a pistol, and he continued to do so. Olive saw that Invaka had a black eye, and
Yewaur was made to stand in a corner in his underwear. On future visits, defendant refused to talk
about the victim, and he screamed at Olive when she mentioned the victim to
Pamalar Lewis.

On
January 18, 1986, defendant called Olive and told her Raj was in labor, and
Olive took a bus from San Francisco to assist.
Defendant still refused to talk to Olive about the victim, and defendant
and Raj confronted Olive about “disobeying repeatedly” by asking about the
victim. Defendant told Olive, “‘1986 is
going to be a new year. I want to
get you pregnant right away, and we’re going to replace Salaam.’” When Olive persisted, defendant said he would
kill her, and began punching her, and kicked her when she was crouched on the
floor. Raj, holding her newborn baby,
managed to push defendant away from Olive.
During the beating, defendant said “that Raj saved my life . . . and I
needed to suffer pain, and I needed to be taught how to shut my mouth.” Olive tried to walk away but Raj picked her
up in a van and brought her back to the house, where Olive was kept on a
mattress, weak and in pain, for several days.
During this period, defendant would wake her up and verbally abuse her,
and laugh “about me being taught to keep my mouth shut.”

About
a week later, defendant drove Olive to San Francisco so she could pick up her
paychecks. Although she was visibly
injured, defendant told her not to seek medical treatment to avoid police
involvement, and defendant remained in the car with a shotgun. Eventually Olive said she would make up a
story about being mugged, and he dropped her off at the hospital, where she
stayed for two weeks, and needed to have jaw surgery. At the prompting of a doctor she knew, she
made a report to the San Francisco Police Department about what had happened. Later, Garzetta Billingslea drove Olive to
South Lake Tahoe, where Olive again reported the beating. At that time, “my jaw was completely wired,
and I had a hard time talking. The other
thing is that . . . I don’t know if you call it posttraumatic stress syndrome,
posttorture syndrome, postconcentration camp syndrome, postpsychological
manipulation, but I was . . . not as healthy as I am now.”

Olive
later contacted the National Center for Missing and Exploited Children (NCMEC),
and appeared on Unsolved Mysteries,
in an effort to find the victim, including using an “age-progressed”
photograph, containing modifications to a real photograph of the victim that
purported to show what he would have looked like as he matured. In December 1985, the victim’s hair color was
dark or brownish red.

2. Raj’s
testimony

“Raj”
(an acronym coined by defendant from her true name, Renee Alyce Jones),
testified under immunity, and the jury was instructed it could find she was
defendant’s accomplice. She was 54 and
was a youth program director in Cleveland.
She met defendant at college in Atlanta in 1974 or 1975, where he cast
her astrology chart. She quit school and
moved in with him. Her parents forced
her home, and had a deprogrammer take her to California. After about a month, Raj returned to
defendant, and became pregnant by him when she was 20.

When
Raj was about seven months pregnant, the couple went to San Francisco, where
defendant did “a lot of drugs,” and fired a gun into the ceiling, resulting in
his arrest. Raj returned to her parents
in Cleveland to have her baby, named Renauld, a name defendant changed to
Urenauld. Three months later, Raj
returned to defendant, because her parents told her she was stupid and that she
“needed to be deprogrammed again.” The
couple moved to Houston, where they had two more sons, Yewaur and Joseph
(Uhrtiko). Before that they had lived in
Los Angeles, where Raj was arrested due to a check-kiting scheme defendant
concocted, that Gudger helped carry out.

When Raj resisted
defendant, he slapped and beat her, and asked her to play Russian
roulette. Once when she told him a car
loan had been denied, he started “slapping me across my face like it’s my
fault.” He often wore a gun on a holster
around the house.

When
they moved to Houston, Gudger lived with them.
Raj did not like defendant’s sexual relationship with Gudger, but did
not feel she could go home. Raj used the
name “Ulia Rich” and defendant used “Tony Rich” to avoid Los Angeles warrants
arising from the check scheme. Raj met
Olive at the hospital, and eventually Olive moved in. Tolbert also moved in and had a relationship
with defendant. Raj had introduced her
to defendant when he wanted someone to help out with the family’s
finances. Defendant would woo women into
a relationship but once they were in, they “just became workers.”

When
the family lived in Seattle, it included Janan Ali (who joined the family in
Fontana), Tolbert, Raj and the various children; Gudger and Olive stayed in San
Francisco. Defendant set house rules,
Raj enforced them, and he would slap her if they were violated. He controlled the money. Raj was “too afraid to challenge him.” Once at the Oakland house, defendant beat
Olive up after Olive asked him something.
Renauld and the victim bore the brunt of defendant’s violence, “they got
the worst spankings, the worst punishments.”
Defendant once denied Renauld food for three days. When Raj questioned defendant’s methods, he
cursed her, and he hit her on more than 50 occasions, but she was too afraid to
call for help. She saw the victim with
welts on his legs and back, and once saw defendant hold the victim in the air
by his arm and beat him with a belt.

Once
at defendant’s direction, Raj spanked Renauld lightly twice with a belt over some
cookies, but defendant was not satisfied and beat Renauld “until he was black
and blue, and his face was bruised up.”
Defendant used a belt, but had been calling for a stick to use. When Raj comforted her son, defendant “told
me to let him go and was cursing me out.”
Defendant seemed crazy and Raj told him to leave before the police
came. Before defendant left, he told Raj
to tell the police “that Renauld had been playing with his little brother’s
penis, which was not true, and that I was the one that beat Renauld, because .
. . I’m female, so it wouldn’t be bad for me.”
When the police arrived, Raj told them that story, because she was
afraid defendant would hurt or kill her and the children later.href="#_ftn5" name="_ftnref5" title="">[5] Raj signed a statement admitting she beat
Renauld with a stick, and pled guilty to felony assault. Defendant had threatened to kill her and
Renauld if she left him, or have someone else do it for him. Renauld did not live with the family
thereafter.

When
the family moved to the Sacramento area, Lewis joined the family. While living in Sacramento, Raj once saw
defendant “had bound Salaam’s ankles” with wire or something else, causing
scars, and another time he put the victim in a cold garage.

The
family moved to South Lake Tahoe in November 1985, and Raj gave birth to a
daughter, Unkw (Barbara), on January 18, 1986.
Raj, defendant, Lewis, and “all the kids” (Raj’s sons except for
Renauld, Gudger’s daughter Jackie (Yves), Tolbert’s son Herbert, and the
victim) lived at the Lake Tahoe house; the other women visited.

Raj
last saw the victim near the end of December 1985. She saw defendant yelling at the victim and
coming from the garage with him, then saw them return to the garage. She went into the garage, which was “freezing
cold[,]” but when defendant would not tell her why he put the victim in the
garage, she covered the window because “I didn’t want somebody to look into the
window and see Salaam out in the garage as cold as it was.” When Raj went in the garage later, defendant
was punching the victim in the stomach, and when he realized she was in the
room, he cursed her and told her to get out.
As Raj was napping upstairs later, defendant “whispered in my ear,
‘Salaam is dead. I think I killed
him. Salaam is dead.’” Raj began to cry, which made defendant
angry. He told her to pull herself
together, that he would kill her and everybody else and that there would be no
witnesses, and then he held a gun to her stomach and said that he would shoot
her and all the children. When Raj went
downstairs, defendant was carrying the victim in a blanket and “it’s obvious
that he’s dead[,]” but when Yewaur asked what was wrong with the victim,
defendant said he was asleep. Defendant
then put the victim’s body in a tub with running water.

Raj
was too afraid to call 911, thinking defendant “would leave no witnesses, that
he would kill everybody” as he had said.
When it was dark, the children were dressed and put in the van, except
for Yewaur, and Raj saw defendant putting bags and boxes in the van, including
one box large enough to hold the body that had “weight” to it. As they left, defendant “was threatening me
that if I told anyone, that he would blow me away and the kids away, and he
kept stressing that repeatedly, and that he would take no witnesses.” Later Raj testified defendant also said he
would have her killed by somebody he knew if she talked. Raj thought they traveled toward San
Francisco. Defendant stopped the van
twice and got out, once for 20 to 40 minutes, when he took things out of the van. When he returned to the van, he continued to
make threats. They returned to South
Lake Tahoe. Defendant told Raj to tell
people the victim was with Olive, and Raj complied. When Olive came to the house after Raj’s baby
had been born, Olive asked where the victim was and defendant “punched her dead
in her face and was beating her and stomping her” until Raj intervened.

Raj testified that
after 1992, defendant was “legally and physically” barred from contacting
her. During that time she wrote letters to
him professing her love, because he helped with her “living arrangements in
order for me to get custody of my kids.”href="#_ftn6" name="_ftnref6" title="">[6] Raj stopped loving defendant when he became
violent, but continued to have his children “Because he was very
controlling. It was a controlled
environment. You did what he said, and
that’s it. You just did what he
said.” Raj continued to be afraid of
him, because of his threats to have somebody else hurt her and the children.

3. Lewis’s
testimony

Pamalar
Lewis, a clinical researcher, attended a summer session at UC Berkeley in
1985. She met defendant (known to her as
“Dr. U.” at that time, when she was about 20 years old. He claimed to be a doctor in psychology, and
they began dating. She went with him to
Seattle to help him move people out of a house, including “Melvina [Tolbert],
[Olive], Raj and children.” Defendant
persuaded Lewis to move to Sacramento by promising to give her “something
better.”

Lewis
testified defendant disciplined Salaam by placing him in a closet, and once she
saw the victim hanging “from the . . . rail of the crib upside down” with his
head on the mattress for at least an hour.
She “saw rope burns around his ankles” with torn flesh and drawn blood,
and he was suspended upside down from the pole of his playpen for two
days. She did not ask why this was done,
because she was afraid and did not intercede because “you just didn’t
interfere.” She was afraid of defendant,
but also may have loved him.

Lewis heard defendant
speak about getting the devil out of the victim, and he withheld food from the
children. Raj imposed minor discipline,
but reported children to defendant for “physical” punishments, such as with a
belt, and reported the victim more often.
Defendant did not work, but Gudger and Olive gave him their paychecks,
and Lewis gave Raj money “to help out.”

Lewis last saw the
victim between December 22, 1985 and January 7, 1986. Lewis learned the victim was being punished
in the garage, and saw him “without clothes on and laying on the concrete floor.” It was cold, so she got the victim a blue
blanket, and covered him. When defendant
saw the victim had a blanket, he went to the garage, hit the victim, then
returned, stating the victim “had a lot of spunk that, you know, he was near
dead, and yet he got a blanket[.]” Lewis
saw defendant take the blanket off the victim before he held the victim by the
ankles and beat the victim with a piece of firewood. Lewis heard the victim call out, “‘I won’t do
it again.’ Something like that.” Before the beating, Raj “put a curtain up to
cover the window so neighbors wouldn’t see.”
The firewood was a piece “like a board” that came prepackaged from the
store, also described at trial as a “stick.”
Lewis did not intercede because she was afraid of defendant.

Later she saw defendant
drag the victim upstairs by his arm, and he seemed to be alive.href="#_ftn7" name="_ftnref7" title="">[7] That evening, Lewis saw Raj, who was very
pregnant, in the van with children, and saw defendant bring “a bundle” in the
blue blanket that could have been the victim.
Defendant told Lewis not to go upstairs, but after he left, she went
upstairs with Yewaur, the only child left behind, to look for the victim, whom
she never saw again, and from an upstairs window Lewis saw the van leave.

On a later date, Lewis
saw Olive with facial injuries, and defendant said, “if Raj had not been there,
he would have killed” Olive. Lewis
testified that during the time she was at the South Lake Tahoe house, she did
not leave because there was “a cooperative effort” to keep her there.href="#_ftn8" name="_ftnref8" title="">[8]

>4. Joseph’s
testimony

Joseph
Roberson (“Uhrtiko”, the son of Raj and defendant, testified he was born in
May 1981. Joseph remembered that the
last time he saw the victim, the victim was in a blanket defendant was
carrying, and the victim’s “arm was hanging out, and he didn’t look awake or
anything.” Once, defendant disciplined
the victim by holding him upside down by one leg and “whooping” him. Joseph remembered an occasion where defendant
announced it was “payday,” and all the women turned over their paychecks and
money. Joseph had two felony
convictions, for theft and assaultive conduct.

5. Other
prosecution evidence

Felicia
Burns (Bradley) testified she met defendant in January 1986, when she was 18,
through her coworker Tolbert, who asked Burns to fill out a form with personal
information on it, so defendant could cast her astrology chart. Burns flew to San Francisco from Seattle, and
had intercourse with defendant. The next
day Burns met Olive, had lunch in Berkeley, then went to the South Lake Tahoe
house. There were a number of children
there, but when Burns asked about “Salaam,” defendant “said he didn’t like him
because he was half white” and “told me that he sent him away because he was
bad and incorrigible.” Sometimes
defendant “would threaten the other children and tell them that he would send
them away like he sent Salaam.” He would
also tell children “that the state would take them, that they would end up in
foster homes, or that satanic groups would somehow get them and would sacrifice
them to the devil.” He would terrify the
young children by describing “that they would drain the children’s blood and
use it as a sacrifice, blood sacrifice.”

Defendant
also told Burns the victim was with Gudger.
Burns stayed at the South Lake Tahoe house for several weeks because, “I
was a kid. I was 18 years old with
nothing to do.” She left after she saw
defendant break Olive’s jaw, after Olive asked him about Salaam. Burns was too afraid to take Olive to the
hospital or report the assault. During
the period she was at South Lake Tahoe, Burns worked as a nanny for the
children, but also took trips with defendant to San Francisco, where he bought
cocaine, which he pressured her to use.
The last time she left the house with him, “he said that we had to get
away because they wanted to take the children and sacrifice them.” Defendant said, “he wanted all of us to work
and pretty much go underground and buy some motor homes and recruit other
people so we can have our own underground family network.” After going to Los Angeles with the family,
Burns ultimately returned to Seattle.
When she received a call from defendant claiming that he was God, it
“kind of woke me up[,]” and she began to “detach” herself from defendant. However, when she first was contacted by the
police she was not cooperative because, “I was brainwashed[.]” She was afraid of defendant because he had
vowed to seek revenge on anybody who betrayed him. Later, when she felt safe, she cooperated
with the police. Burns had two misdemeanor
theft-related convictions.

Michael
Houchen, a former Los Angeles detective, testified that on March 5, 1986, he
spoke with Raj, who was belligerent and evasive and told him she did not know
where the victim was, but speculated he was with his mother. Defendant told Detective Houchen that Salaam
had been dropped off with “Joy” and “Pam” some time before and defendant
assumed the victim was with his mother.

Karen
Preston, a Seattle optometrist born in 1958, met defendant in June 1985, after
she was introduced to him by her patient, Tolbert, who called him “Dr. U.” and
said “he had methods for helping people with their difficulties in life.” When Preston’s father was in an accident,
Tolbert told Preston this was “‘especially’” when she should see him. Preston, “extremely off balance” and
“vulnerable[,]” went to meet defendant, who claimed an expertise with “various
metaphysical disciplines.” Defendant
asked her to bear his children “from the beginning.” Of the many children in the household,
“Salaam definitely stood out to me because he was a little bit more active than
the other children. A little bit more
impish, I guess, is the best word to use.
He had red hair that was curly and very adorable. He was adorable.”

Although
Preston had loved defendant, she became afraid of him. Defendant complained about Urenauld, who had
“gone to the neighbors and had resulted in a call to the police[,]” and
complained about the victim, stating he “was a terrible behavior problem, and
that they were searching for methods to resolve that.” After defendant broke off the relationship
because Preston was “challenging him[,]” Preston posted bail for Raj and leased
a van for the family, “because I had been rejected by him, and I might have
believed in some way that it would make him feel favorably toward me
again.” Preston did not feel free to cut
defendant off, because he owed her money and she was physically afraid. Defendant “talked about kind of a cosmic war
that he was engaged in, psychic war that he was engaged in, good against evil
sort of a thing.”

During
a call in January 1986, defendant said, “the problem with Salaam had been
resolved, and that he had sent Salaam away, and that he was not coming
back.” When Preston asked for details,
defendant repeated that Salaam had been sent away and would not be coming back,
and when asked if he had been sent to a foster home, defendant said no and,
“That was all I needed to know.” This
horrified Preston. During one call
defendant said, “that Urenauld had created problems for the family that were,
in essence, tearing it apart, and that he was not going to let

. . . another child do that to the family.” During another call, in November or December
1985, defendant said that during a business meeting at his house, “one of the
individuals had died at his home, and that this had created a plethora of
problems for him in terms of how to deal with the consequences of the death
that had occurred at his house.”

Nicole
Mankis, who babysat for the family, testified defendant treated the victim
differently, saying the victim was “evil” like Urenauld, and that defendant
“had to discipline the evil out of him.”
The children lined up and knelt before defendant to receive food. Raj was the “preferential partner” and had
better privileges than the other women who “worked and behaved like servants
and were obedient, and Raj was obedient.”
Mankis became frightened of defendant when he showed her the book >Magick, by Aleister Crowley, and claimed
to have special powers, but because she was 16 and had no money, she stayed.

Renauld
Jones (“Urenauld” testified the victim was punished more severely than other
children, and defendant “on a very regular basis talked about the way he spoke,
his race, the fact that he was White, and because he was White, he was the
devil or he had demons.” Defendant
withheld food, and Jones still had scars from beatings. Sometimes he would be locked under the stairs
or in a storage area, once for days. He
was taught not to trust anybody and not talk about what happened at home. He was told his father was a doctor, a
martial arts expert and God. When
defendant beat Jones (then age eight) with wood in Seattle, Jones ran away, was
taken to a hospital, and never returned.
In 1991, at Raj’s request, Jones wrote a letter stating that Raj had
beaten him, not defendant. In 2006,
defendant asked Jones to convince family members “to retract any statements
that they made with regards to the pending trial.”

Garzetta
Billingslea testified she was born in 1957 and met defendant in October 1985,
at Olive’s suggestion, “because I was going through changes through
life[.]” Defendant (“Dr. U.” asked her
to fill out some paperwork, and they had an intimate relationship for a couple
of months before Christmas 1985. Defendant
made negative comments about the victim’s mixed race. Billingslea saw the victim tied upside down
from a crib or playpen. She did not
intervene because “People were more into Ulysses and following his orders,
everyone in the house, and for you to do otherwise would be a mistake.” All the women were subservient to
defendant. Before Christmas, Billingslea
retrieved her things from the South Lake Tahoe house, and the children were
there, except for the victim.

While
under arrest in March 1986, defendant told peace officers Olive had taken the
victim with her when she left the South Lake Tahoe house in December 1985. In 2000, when an FBI agent asked defendant
where the victim was, defendant said to talk to Olive. Former South Lake Tahoe Police detective
Douglas Pelissero testified Jean Solomon told him that on the weekend of March
8-9, 1986, defendant and Raj told her the victim was with Olive.

In May
1986, Pelissero searched a storage locker in Los Angeles that Raj had rented,
and among other things found a doctor’s bag with “‘Dr. U.R.’” on it. DNA testing of blood on a blue blanket found
in March 1986 in a U-Haul at the South Lake Tahoe house showed the blood was
“consistent with originating from a biological offspring” of defendant and
Olive.

6. Expert
testimony about cults

Professor
Janja Lalich testified as an expert about “closed groups,” and we discuss her
testimony again in Part I, post.

Before the jury, Lalich
testified she is a sociology professor at Chico State, and studies groups and
group dynamics. She studies
“self-sealing systems” created by “a charismatic leader who professes to have
some kind of special power or special authority” and she testified these groups
typically evolve into “closed groups, ultra authoritarian groups” that do not
necessarily live “off on some compound somewhere, but everybody is in agreement
with the role of the leader . . . and they don’t entertain any kind of counter
ideas or alternative ideas about the world.”
Lalich herself was in such a group for over 10 years.

Such groups begin with a charismatic leader purporting to have
special powers to whom people submit their authority and attempt to please, and
who promulgates rules and regulations that can include diet, clothing,
childbearing and name changes. She cited
as an example the Heaven’s Gate group, whose members wore bags on their heads
for months before committing suicide.
Although authority stems from the leader, peer pressure helps enforce
the rules. New members are typically
people at a transition point in their lives, who are enticed in and encouraged
to break prior social and family ties.
“If you have family in the group, or you’ve become very close to the
people in the group, that’s going to make it more and more difficult to think
about leaving and will keep you further and further bound to the group.” Members may do things against their
self-interest, such as committing crimes, and giving up money or even children
for the group. Lalich had studied cases
of members failing to intercede to help a child who is punished to set an
example, or failing to report abuse or even death later, “to keep everything
inside the group.” When people
eventually leave the group, “they’re often very confused and shameful and
guilty and embarrassed . . . and so in the beginning especially, it’s very
difficult for them to gain clarity on the experience.” However, she knew of no case where a child >homicide had not been reported for 16
years. She did not know defendant or
about his case, except “the basics[,]” and she offered no opinions about this
particular case.

7. Unsolved
Mysteries “sightings” evidence

Gilbert
Zamora, a forensic artist and sworn officer with the San Jose Police
Department, testified as a defense witness about age-progression training and
techniques, to assist in locating missing children. He identified an age-progressed photograph of
the victim, prepared by another artist, and opined it fairly depicted the
victim for use as an investigative tool.

Eight
witnesses from around the country testified to having seen the age-progressed
depiction of the victim either on one of its multiple airings on >Unsolved Mysteries or elsewhere, and
having seen a male that resembled the photograph, typically mentioning the hair
color. None of these witnesses had ever
seen the victim in life, and most saw the male in question only once. Ken Hunt, a former South Lake Tahoe police
officer, received printouts from Unsolved
Mysteries reporting claims to have seen the victim arising from two airings
of the show, from 47 states and two or three countries.

We
briefly describe the “sightings” testimony.

In
1993, Rhinda Clem worked in a Yakima hospital where, “pretty regularly” over
about a year, she saw “a young thin boy about ten. Ten or eleven, a mulatto” that resembled the
victim’s photograph. In 1988, Kathy
McKinney saw “an orange-haired black child” near a Sacramento elementary school
who resembled the photograph. Leigh
Trimaldi lived in West Palm Beach in 1995 and within a week of seeing >Unsolved Mysteries saw a boy about 12
who had “very orangey, reddish-orangey” hair and facial features and “mulatto
skin tone” that resembled the photograph.
Andrea Gaither saw the Unsolved
Mysteries broadcast between 2002 and 2004, and saw the video from a link on
the webpage for the NCMEC, and testified that in 2002, in Garland, Texas, she
saw a young “biracial” man with “xanthous” or “yellowish” skin and “natural red
hair with very tight curly texture” resembling the photograph. James Elves lived in Seattle in 1992, watched
the Unsolved Mysteries broadcast, and
called the program because a boy he knew “really well” in the neighborhood
resembled the photograph. The boy was
known as “Diamond” and stayed with his grandmother, “Ruby,” who was “part
black[.]” Karen Christensen lived in
Everett, Washington in 1993, saw the photograph on Unsolved Mysteries, and a couple of days later saw a “biracial” boy
near an elementary school who had “copperish” red hair waiting for a bus, and
who looked like the photograph.
Christine Tassio visited Seattle in 1993, and while sitting on a bench
saw a family with several children, including one who “didn’t match the rest of
the children. He was a
light-skinned black boy with very orange hair.”
Madeline Lucas lived in Rancho Cordova in 1993 and called a television
program within a few hours of watching it because she saw a “mixed race” boy
with “bright red hair” who resembled the photograph walking along her sidewalk.

8. Rebuttal
to “sightings” evidence

Psychologist
Scott Fraser testified artistic renderings are not reliable, and described
problems with cross-racial identifications.
A “distinctive cue” such “a red-haired child of mixed race” may dominate
one’s memory.

DISCUSSION

I

>Expert Cult Testimony

Defendant
contends Lalich’s testimony about closed groups was erroneously admitted. He contends the evidence lacked foundation,
was irrelevant, and was unduly prejudicial.
As we explain, although the testimony was of questionable >value, we find no prejudicial error in
its admission.

>A. Background

The
People moved in limine to introduce testimony about the effects of mental and
emotional abuse upon victims and how individuals can control others. The People in part analogized to cases of
posttraumatic stress syndromes (rape victims and battered partners) and the
Patti Hearst case. The People also
likened defendant’s household to the Manson Family, and proffered testimony of
female “‘family members’” to show defendant manipulated them “through isolation,
intimidation, threats.” “As the ‘unquestioned
leader’ of his ‘family,’ Defendant was able to secure compliance and
silence[.]” (See People v. Manson (1976) 61 Cal.App.3d 102, 130-131 [evidence of
unusual sexual practices “reasonably tended to show Manson’s leadership of the
Family”].)

The trial
court tentatively ruled this evidence admissible. Defendant later filed a counter-motion to
exclude testimony about “mind control on the grounds that the proffered
[evidence] is not generally accepted by the relevant scientific community, the
prosecution has failed to identify any myth which the testimony is intended to
refute and the testimony is irrelevant.”
The defense provided a declaration from a psychologist who opined that
Lalich’s theory of “‘Bounded Choice,’” as espoused in her book of the same
title, was a discredited brainwashing theory.
Lalich’s responsive declaration detailed her expertise and proposed
testimony, and claimed the defense psychologist’s own views had been
discredited.href="#_ftn9" name="_ftnref9"
title="">[9]

The trial court then
held a hearing (Evid. Code, § 402) to determine the admissibility of Lalich’s
testimony, at which Lalich testified largely in line with her later trial
testimony, which we have already summarized.
Additionally, she outlined some facts about closed groups which were not
generally understood. In particular,
contrary to most expectations, the followers of a charismatic figure need not
be “crazy, stupid people” but can be intelligent, come from intact homes, and
be well-educated, but often are at a transition point in their lives. Also contrary to generally-held expectations,
the process is not limited to a sudden awe of the leader, but is a
“step-by-step process that changes people.”
Further, members cannot easily leave, because eventually, a member
“cannot imagine life outside the group” and the leader may have made threats to
keep members from leaving. Another
misconception is that such groups live in isolated compounds, but they can
exist “in all kinds of living situations and configurations[.]”

The
trial court ruled Lalich’s testimony was admissible, because it would tend to
“disabuse jurors of commonly held misconceptions” and could explain why someone
would not report child abuse or cooperate with the police. Further, the jury was free to disregard the
evidence, which was not tied to this case.

During
closing arguments, the prosecutor argued defendant had “ultimate power and
ultimate control” within the family, which he expanded by seducing younger
women, fathering children with them, alienating them from society, and
enforcing his will through threats and abuse.
Lalich’s testimony supported the argument that “it does happen in our
world where people get so seduced by these charismatic authorities, these
people who have this charisma and are able to seduce others to come to them and
basically do their bidding” and once a person joins the group “all you think
about is this is what the program is, and this is what I do, almost becoming
like these little robots.”

The defense argued
defendant’s lifestyle was not on trial, Raj’s testimony was not credible
because she was jealous of defendant’s other women, and the victim was still
alive. The defense denigrated “the
self-proclaimed expert regarding charismatic leaders” and argued even that
testimony did not explain the “colossal difference between giving over your
paycheck to someone who you wanted to be involved with and failing to report
the murderous assault upon a child[,]” emphasizing that Lalich had no examples
of unreported child beating deaths within self-sealing groups. The defense also argued Raj’s behavior was
not robotic, and pointed to evidence showing Billingslea and Caviness had
successfully left defendant when they chose.

The
jury was instructed on the use of expert opinions generally, and in particular
was instructed “you are not required to accept them as true or correct. The meaning and importance of any opinion are
for you to decide.”

>B. Foundation
and Relevance

On
appeal, defendant first contends Lalich’s testimony lacked foundation and was
irrelevant.

We
apply the following rules: “First, the
decision of a trial court to admit expert testimony ‘will not be disturbed on
appeal unless a manifest abuse of discretion is shown.’ [Citation.]
Second, ‘the admissibility of expert opinion is a question of
degree. The jury need not be wholly
ignorant of the subject matter of the opinion in order to justify its
admission; if that were the test, little expert opinion testimony would ever be
heard. Instead, the statute declares
that even if the jury has some knowledge of the matter, expert opinion may be
admitted whenever it would “assist” the jury.
It will be excluded only when it would add nothing at all to the jury's
common fund of information, i.e., when “the subject of inquiry is one of such
common knowledge that men of ordinary education could reach a conclusion as
intelligently as the witness[.]”’” (>People v. McAlpin (1991) 53 Cal.3d 1289,
1299-1300 (McAlpin), in part quoting
Evid. Code, § 801, subd. (a).)

Defendant
does not challenge Lalich’s qualifications. Although he declines to concede
that “Lalich’s theories of coercive influence were valid,” because he does not
explicitly argue they were invalid,
he has forfeited the point. (>People
v. Anderson (2007)
152 Cal.App.4th 919, 929 (Anderson).)

Defendant
contends Lalich described brainwashing, which defendant views as occurring only
with “extreme” conduct, and that there were only “superficial similarities
between what Lalich described and the facts of the case.” Referring to Lalich’s testimony as “no more
than speculation,” defendant contends, “There was no popular misconception
about cults that Lalich’s testimony was necessary to rebut.”

The
record refutes these assertions.
Defendant concedes, as he must, that the trial evidence showed
defendant’s family dynamics mirrored Lalich’s testimony about closed groups, in
that there was evidence he claimed special powers, required members to turn
over their money, cut off contact outside the family, imposed strict rules,
assigned new names to members, and had members recruit other women at a
vulnerable point in their lives. We
interpret defendant’s argument to be that he was not brutal or “extreme” enough
to run a closed group as described by Lalich--in support of this point, he
contrasts his behaviors with prior reported tactics of the Unification
Church. But whether defendant’s family
fell within a “closed group” as described by Lalich was for the jury to
consider, in assessing the relevance of her testimony. The cases cited by defendant do not state or
imply there must be a particular level of coercion to admit such
testimony. Also, neither of the cases
cited by defendant show the Unification Church used extreme physical violence
to control its members, as the
evidence establishes that defendant did.
(See Molko, >supra, 46 Cal.3d at pp. 1102-1106; >Katz v. Superior Court (1977) 73
Cal.App.3d 952, 972-983.)

Further,
Lalich testified in limine about misconceptions or myths about closed groups,
as recounted ante. Although Lalich’s trial testimony did not
mirror her in limine testimony, the latter amply supports the trial court’s in
limine ruling, because Lalich’s testimony tended to rebut myths about closed
groups. Contrary to defendant’s
argument, this testimony had some relevance, as we describe >post.
Although not directly on point, there are cases that adequately paved
the way for the trial court’s ruling.

Most
directly relevant is People v. Riggs
(2008) 44 Cal.4th 248 (Riggs). In that case, the California Supreme Court
upheld the admission of expert testimony about Battered Women’s Syndrome, to
show “that it is common for people who have been physically and mentally abused
to act in ways that may be difficult for a layperson to understand” and show
why a person would remain in an abusive relationship. (Riggs,
supra, at pp. 293-294.) In this
case, Lalich’s testimony helped explain why women in the household would not
intervene to stop defendant from beating children generally, and beating the
victim in particular, and why they would not report the abuse or immediately
leave him.

Also
instructive is McAlpin, >supra, 53 Cal.3d 1289, where our Supreme
Court reached a similar conclusion about expert testimony showing why a parent
would not report sexual molestation of a child, namely “the fear of breaking up
the marriage or harming relations with other family members, a sense of shame
or failure as a parent, a psychological refusal to accept the fact of
molestation, or a reluctance to damage the reputation of the alleged
offender[.]” (McAlpin, supra, at p. 1299.)
In ruling the evidence admissible, the court likened the case to rape
trauma syndrome, where similar testimony “‘would play a particularly useful
role by disabusing the jury of some widely held misconceptions about rape and
rape victims, so that it may evaluate the evidence free of the constraints of
popular myths.’” (Id. at p. 1300.)

In this
case, there was testimony defendant feared outsiders taking control of the
family and punished a member who allowed the police into the house, and there
is a reasonable inference that he enforced his will upon the women in part by
his treatment of their children and in part by his prolonged demands of
adherence to his rules. Lalich’s
testimony could help the jury understand why the women did not protest
defendant’s abuse at the time, or report it later. This was relevant because it went to the
credibility of their claims.





>B. Inflammatory
Nature of the Evidence

Defendant
also contends Lalich’s testimony was more prejudicial than probative (Evid.
Code, § 352) and served only to inflame the jury. We disagree.


First,
Lalich did not purport to testify about defendant or his family, she testified
about cults generally, albeit under the “closed group” rubric.href="#_ftn10" name="_ftnref10" title="">[10] Although this arguably diminished the >relevance of her testimony, it also
diminished any potential for prejudice.

Second,
the percipient testimony about
defendant’s family and its dynamics was far more shocking than the abstract
testimony given by Lalich. Multiple
witnesses testified that as young women they joined defendant’s polygamist
household, bowing to his authority, enforced with threats that in some cases
caused fear to the present day. Lalich’s
testimony pales in comparison to the descriptions of defendant’s abuse of his
“wives” and children, such as repeatedly hitting Raj, savagely beating
Olive--breaking her jaw--and then denying her medical care, hanging the victim
by his ankles for days at a time, and viciously beating the victim to
death. (Cf. People v. Harris (1998) 60 Cal.App.4th 727, 737-738 [evidence of
prior viciously brutal attack inflammatory in comparison to charged
offenses].) As the trial court
accurately stated before the in limine hearing regarding Lalich’s testimony,
there already had been “an awful lot of testimony from a variety of
different witnesses about what the alleged dynamics were[.]” Thus, we reject the claim that Lalich’s
testimony was inflammatory.

>C. Prejudice

Finally,
to show the prejudicial effect of Lalich’s testimony, defendant states that the
only person who claimed at trial to know the victim was dead was Raj. Although perhaps technically accurate, this
observation misleads. Raj’s clear and
compelling account of the murder and its aftermath was well-corroborated. There was abundant evidence from multiple
witnesses that defendant demonized the victim because of his mixed
race--referring to the four-year-old victim as “evil,” “possessed” and a
“little white snake,” and had consistently abused him in the past, including
hanging him by his ankles until he was “near death,” beating him, denying him
food, and locking him in a freezing garage.


Specific
to the night of the murder, after Lewis saw defendant hit the victim in the
garage, defendant again commented the victim was “near dead.” Lewis then saw defendant carrying a bundle in
a blue blanket--she never saw the victim again.
Joseph testified the last time he saw the victim, the victim was in a
blanket defendant was carrying and “didn’t look awake or anything.” Burns testified defendant would threaten the
other children by telling them “he would send them away like he sent
Salaam.” Defendant gave inconsistent
statements about where the victim was, and told Preston the victim had been
sent away and would not come back.
Defendant beat Olive severely when she asked where the victim was. Renauld Jones testified defendant asked him
to convince relatives to retract any statements they had made regarding the
upcoming trial. The blue blanket
contained blood, which DNA testing indicated was from the offspring of
defendant and Olive. There was
overwhelming evidence to corroborate Raj’s account of the murder and the body’s
disposal.href="#_ftn11" name="_ftnref11"
title="">[11]

Accordingly,
even if Lalich’s testimony were more properly excluded than admitted, it is not
reasonably probable the trial result would have been different had the
testimony not been admitted. (Cal.
Const., art. VI, § 13; Evid. Code, § 353, subd. (b); People v. Watson (1956) 46 Cal.2d 818, 836.)href="#_ftn12" name="_ftnref12" title="">[12]

II

>Instruction on Eyewitness Testimony

The
defense attempted to raise a reasonable doubt about whether the victim was
still alive by presenting witnesses who, generally speaking, testified they had
seen someone resembling the victim’s aged photograph as shown on >Unsolved Mysteries. Because none of these witnesses had known the
victim in life, they were not really identifying
the victim--rather, they were making a comparison
between what they saw on television and a person they saw elsewhere.

Defendant
unsuccessfully objected to an instruction on eyewitness identification,
asserting it was designed to ensure a defendant was not wrongly identified as
the perpetrator, but in this case it would be applied to identification >of the victim after his supposed murder,
and therefore make it harder to raise a reasonable doubt whether the victim was
alive.

The
challenged instruction, a modification of CALCRIM No. 315, was given to the
jury as follows:



“In evaluating a
witness’s testimony relative to identification, you may consider the following
questions:



“Did the witness
know or have contact with Alexander Sol Olive before the event‌



“How well could
the witness see the subject‌



“What were the
circumstances affecting the witness’s ability to observe, such as lighting,
weather conditions, obstructions, distance, and duration of observation‌



“How closely was
the witness paying attention‌



“How much time
passed between the event and the time when the witness reported seeing the
subject‌



“Did the witness
ever change his or her mind about the identification‌



“How certain was
the witness when he or she made an identification‌



“Are the witness
and subject of different races‌



“Were there any
other circumstances affecting the witness’s ability to make an accurate
identification‌”href="#_ftn13" name="_ftnref13"
title="">[13]

In
argument, the prosecutor emphasized that the “sightings” witnesses, while
perhaps sincere, were wrong, and “what’s really clear is that these people were
identifying a black or a biracial child with red hair, because that was an
unusual feature.” The defense argued
many witnesses saw a boy that looked like the victim, and argued in detail why
those sightings were credible.

On
appeal, defendant contends the instruction was argumentative, and shifted the
burden of proof to the defense because it “implied that the jury had to reach a
certain level of certainty with regard to the defense evidence, before they
could consider it.”

We agree
with defendant that the original “eyewitness” instruction (CALCRIM No. 315) is
designed to be used when there is eyewitness testimony identifying a >defendant as the perpetrator. (See People
v. Wright (1988) 45 Cal.3d 1126, 1143-1144 (Wright); People v. Golde
(2008) 163 Cal.App.4th 101, 119.)
Arguably, this instruction should not have been given to clarify how the
jury was to consider a particular area of defendant’s
evidence. We do not encourage this
practice. However, we disagree that the
modified version given in this case was argumentative or altered the href="http://www.fearnotlaw.com/">burden of proof, as defendant contends.

>A. Argumentative

Defendant
relies in part on People v. Fudge
(1994) 7 Cal.4th 1075, to support his claim that