California court cases

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Filing dates for court opinions are specified in the item's footnote, as are State and County court case file numbers.

by Harley Hudson

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Daniel Horowitz was a TV News commentator that appeared frequently on news shows on CNN, MSNBC and FOX when his wife was brutally murdered in their Northern California home. The well known defense attorney found her body when he came home from a murder trial under way that day.

Scott Dyleski adopted gothic styles, wore black lipstick and nail polish and read books about violent killings before he pummeled Pamela Vitale to death in her home a few doors away from where he lived.

Daniel Horowitz and Pamela Vitale

COURT GIVES FINAL APPROVAL TO TRIAL AND SENTENCE OF TEEN WHO KILLED TV COMMENTATOR’S WIFE

OAKLAND (May 1, 2009)-- Scott Dyleski was 16 years old when he beat a neighbor to death in her home after her husband left for work. He was caught, convicted and sentenced to life in prison with no possibility of parole, and his appeal of the trial was formally rejected by the Court of Appeals in late April, closing out the last chapter in the legal aspects of the case that drew national attention because of the prominence of the victim’s husband who was known as an expert defense attorney commentator on CNN, MSNBC and FOX TV news.

        A jury found defendant Scott Edgar Dyleski guilty of first degree murder in the bludgeoning death of Pamela Vitale while he was engaged in the commission or attempted commission of residential burglary. An autopsy concluded she was overpowered and sustained dozens of blows to the head with a heavy object and lines were made on her back with a sharp object that cut through her skin. Police said Dyleski was 5-7 inches tall and weighed about 110 pounds.

        Dyleski’s attorney challenged the conviction in an appeal that alleged the trial court should have granted their request for a change of venue and the suppression of certain incriminating evidence, and that the evidence was insufficient. Those claims were just rejected by an appellate panel in a particularly detailed account of the crime that is recounted here.

According to court documents:

          1. The Murder

        On the morning of Saturday, October 15, 2005, Daniel Horowitz left his home at 1901 Hunsaker Canyon Road in Lafayette shortly before 8:00 a.m. to attend a meeting. Horowitz was an attorney who was at that time defending Susan Polk in a criminal case that was being widely covered in the local media. Horowitz’s wife, Pamela Vitale, was still asleep when he left.

        Horowitz attempted to call Vitale periodically during the day, but she did not answer the telephone. He left his office late in the afternoon that day, ran some errands, worked out at the gym, and stopped at a grocery store on the way home. When he pulled into the driveway, Horowitz was surprised that Vitale’s car, a white Mercedes sedan, was still there. He knew she had plans to attend a ballet that evening and had assumed she would have left the house by that time. Horowitz retrieved the groceries and his computer bag from the trunk of his car and walked to the front door. The door was closed and Horowitz noticed smears on it. He opened the front door and saw Vitale lying there. It was obvious to him from her appearance and the amount of blood he could see that she was dead. He dropped his computer and groceries, and fell to the floor, screaming. He called 911 from inside the house and then returned to Vitale’s body and cried and screamed. Neighbors later recounted hearing Horowitz’s screams about 6:00 p.m.

          2. Vitale’s Injuries

        Dr. Brian Peterson, who conducted the autopsy of Vitale, opined that she died as a result of blunt force trauma to her head. The vast majority of Vitale’s external injuries were abrasions (scrape-type injuries) and lacerations (crushing or tearing-type injuries) caused by blunt force, many on the victim’s head. While it was difficult to estimate how many blows Vitale suffered because of possible overlap, Peterson was able to identify eight distinct injuries on the right side of Vitale’s head, 11 on the back of her head, and seven on the left side of her head. Vitale’s head lacerations, while in many cases separating her scalp and exposing bone, did not cause any skull fractures. Vitale’s internal injuries as a result of the blows to her head consisted of bleeding inside her scalp and over virtually every surface of the brain.

        Vitale suffered other injuries to her head and neck. There was bleeding in one of her neck muscles, consistent with impact on the skin. She sustained a bone fracture to her nose, and two of her teeth had broken loose from her upper jaw. Peterson opined that most of Vitale’s head and neck injuries were sustained as her face was forced hard against the carpet while blows were inflicted to the back of her head. She had abrasion-type injuries to her left knee that could have been caused by an abrupt fall from a standing to a kneeling position. There were also contusions, abrasions, and scratches to Vitale’s shoulders, breasts, and upper torso, fractures to her left hand that caused the bone to be exposed, and bruising on her right foot, which Peterson concluded were probably defensive injuries. The injuries to the right foot were most likely sustained while the victim was on the floor “trying to get anything between her and the force being inflicted.”

        Peterson opined that the weapon used to inflict the observed blunt force injuries was most likely a smaller, irregularly shaped, hard object such as a rock, which was applied to the victim’s body with a moderate amount of force. A longer or heavier object such as a golf club or baseball bat would most likely have caused skull fractures. Peterson opined that the perpetrator, even if wearing gloves, might have also sustained injuries such as bruising and swelling of the hand in applying the force necessary to cause Vitale’s injuries.

        Vitale suffered two further injuries not caused by blunt force trauma. Peterson observed what he described as “three intersecting superficial incisions” on the victim’s back consisting of two horizontal incisions, each approximately four inches in length, both intersected by a four and one-half inch vertical incision, forming an H-shape. The incisions were made while blood was still circulating in Vitale’s body. Vitale also suffered a deep abdominal stab wound that penetrated her stomach and small bowel. Peterson believed the stab wound was inflicted shortly after or just before Vitale died.

        Dr. Peterson opined that Vitale would have died within minutes as opposed to hours after the first blows were struck to her head.

          3. Crime Scene Evidence

        Alex Taflya, a criminalist with the Contra Costa County Sheriff’s Department Crime Lab, arrived at 1901 Hunsaker Canyon Road at about 9:15 p.m. to process the crime scene and collect evidence.

        Taflya observed blood on the floor and the walls near Vitale’s body. An overturned plastic storage bin lid lay by the front door. There was a shoe print in blood on top of the lid. There was also a fabric print on the bin consistent with having been made by a glove. Taflya also observed blood smears on the interior portion of the door that he opined were consistent with someone who was wearing a long-sleeved garment. Vitale was found in a short-sleeved T-shirt. Blood spatter on the interior of the front door led Taflya to conclude that the door was closed during the attack. Based on the location of the great majority of blood evidence, Taflya opined that most of the victim’s injuries were sustained while she was low to the ground in the entry way. The sock on Vitale’s right foot had separated, leaving the foot exposed. Contact transfers below the front door knob were left by Vitale’s bare foot.

        On the walls and on objects in the room there were numerous finger marks in blood; some of these contained fine linear striations, indicating they were fabric patterns rather than fingerprints, consistent with the attacker wearing gloves throughout the incident. Taflya later looked at photographs of a glove which, based on its finely knit construction, could not be ruled out as the source of the fabric prints found at the scene.

        Taflya observed a “fairly heavy” flashlight near the entryway, which was covered in blood, as well as a smaller flashlight with blood contact transfers. He believed the flashlights could have been used to inflict some but not all of Vitale’s injuries. Taflya also identified various pieces of molding found at the scene that contained blood stains. Taflya opined that these pieces might have been used to strike the victim, but they could not have been used to strike more than one or two blows and were not the murder weapon.

        In the kitchen, Taflya found an opened water bottle and bowl on the counter that had blood on them. There was also blood found on a mug in the sink. In the hallway bathroom, Taflya observed a hand swipe in blood on the far wall and contact transfers on the shower curtain and hot water knob of the shower. He opined that nobody operated the shower after the blood smears were left because the smears would have been diluted or washed off.

          4. Defendant’s Background

        Defendant was two weeks short of his 17th birthday at the time of Vitale’s murder. He and his mother, Esther Fielding, had lived a short distance from Horowitz and Vitale’s residence, at 1050 Hunsaker Canyon Road, since approximately 1999. They had come to live there at the invitation of Fred and Kim Curiel, who had been living in a small trailer on the property with their three children since 1998. The Curiels began construction of a home on the property in August 2002. Until the house was completed, defendant and his mother lived in a plywood lean-to the Curiels built for them to provide shelter from the weather. Defendant, Fielding, and the Curiels moved into the completed house in April 2003.

        In August 2002, defendant’s half-sister died in a car accident. He never lived with his half-sister, but he would see her on visits to his father. After his sister’s funeral, defendant began wearing black consistently, and would go to school in costumes, using different styles of black hats and stockings, and wearing make-up and black nails and black lipstick.[1] Defendant’s grades fell to D’s and F’s. His mother described him as being very sad, and Kim Curiel testified that he was “quite sullen.”

        Defendant left high school after his sophomore year and was getting his general education development (GED) certificate during the summer of 2005, so that he could attend Diablo Valley College in the fall. During that summer, he “almost always” dressed in black and wore black nail polish. About three weeks before Vitale was murdered, defendant started taking walks in the woods, which was something he had not done before. He told Kim that he would walk out to the barn, up to the hills, or down to the mailboxes.

        The jury was shown a collection of writings and artwork produced by defendant that assertedly reflected his interest in violent subject matters and feelings of separateness. One writing was entitled “Live for the Kill.” The words “Style Gothic, hate” were written under the title. Other writings used words such as “Separation,” “lonely,” and “set apart.” His drawings included a rendering of a man holding a severed head and a knife with red coloring, a depiction of a face with the mouth apparently stitched up with X’s, and a drawing containing a razor blade, swastika, and a knife. The latter drawing contained the words, “Just like Jesus Christ, just like fun with knives, just like roses red, just like roses dead.” Another drawing depicted a male subject in a long coat with a knife, containing the words, “Guns don’t kill people. I kill people.” Another depicted dark figures lying down among flowers with the words, “Before Manson, before Bundy, there was Gein.” Some drawings and writings included symbols containing intersecting horizontal and vertical lines.

        Defendant’s mother testified that a week or two before the Vitale murder she had found a drawing defendant had made that included body parts. She was concerned enough about the drawing when she found it that she thought he should see a therapist.

        Defendant’s girlfriend, Jena Reddy, testified that she and defendant experimented with pain in their sexual relationship to the point that she believed, at the time, that they were both sadomasochists. She also testified that they had discussed torturing children and that defendant was interested in Jack the Ripper and discussed with her that Jack the Ripper had removed body organs from his victims.

          5. Credit Card Fraud

        Defendant and 16-year-old Robin C. had been close friends since the eighth grade. Toward the end of the summer in 2005, defendant and Robin[2] began discussing a plan to grow marijuana. Defendant came up with the idea of using stolen credit card information to pay for the growing equipment they needed. At some point they discussed making a specific purchase of an item from a Web site called “VaporWarez” that sold marijuana smoking devices. Robin and defendant selected a vaporizer device costing $267 that defendant ordered from the VaporWarez Web site on September 17, using credit card information he had stolen from John Halpin, a neighbor of defendant’s who lived at 1701 Hunsaker Canyon Road. About two weeks later, defendant brought the vaporizer over to Robin’s house where it remained until it was turned in to police by Robin’s father after Vitale’s murder. A VaporWarez invoice showed that the September 17 vaporizer purchase had been billed to Halpin at 1701 Hunsaker Canyon Road, but the ship-to name and address for the order were listed as Esther Fielding at 1050 Hunsaker Canyon Road. Halpin testified that he was out of state between September 16 and October 23.

        A couple of weeks before Vitale’s murder, defendant and Robin exchanged e-mails in which Robin identified the lighting and hydroponic equipment they would need to grow marijuana in defendant’s closet, and the online sites from which to order them. Robin warned defendant to keep the amount ordered on each credit card small to avoid detection , and defendant responded that “stealthiness is the number one priority.” However, part of the plan was to use defendant’s address as the delivery address for the equipment. A few days before Vitale’s murder, defendant placed orders for the equipment as discussed.

        Karen Schneider lived next door to Horowitz and Vitale at 2001 Hunsaker Canyon Road. She did not know defendant but was on friendly terms with the Curiels. On Thursday, October 13, Schneider reviewed her bank and credit card accounts online and noticed that there were three charges she had not approved from a company named Specialty Lighting. Schneider sent an e-mail to Specialty Lighting shortly after 10:00 p.m. Eastern Standard Time on the 13th, after finding its Web site on the Internet. Specialty Lighting’s owner, Jackie Jahosky, responded to Schneider by e-mail at 10:20 a.m. Eastern Standard Time the next morning and faxed copies of the orders to her. The first order was placed on October 13 at 12:15 a.m. Eastern Standard Time. The order was for a grow light system and was to be shipped to Esther Fielding at 1050 Hunsaker Canyon Road with an associated telephone number of (925) 962-0829, which was Fielding’s telephone number. The order listed Karen Schneider as the party to be billed, with her address shown as 1901 Hunsaker Canyon Road, and an associated telephone number of (925) 283-8970. These were the address and unlisted telephone number for the Horowitz-Vitale residence.[3] The second order, for lighting equipment, was placed four minutes later using the same e-mail address and shipping and billing information as the first order. The third order, for cooling accessories, was placed eight minutes later, using the same information as the other two orders. A fourth order was placed on the 13th using Esther Fielding’s e-mail address and shipping address, but listing John Halpin as the party to be billed.[4] Halpin later discovered another order charged to his credit card without authorization on October 13 by a company named Future Gardens for a liquid earth starter kit, hydro buckets, and pumps. This order was to be shipped to Esther Fielding at 1050 Hunsaker Canyon Road and was billed to Halpin at his address using his credit card information.

        Jahosky was suspicious of the Specialty Lighting orders because of their high dollar amounts and the fact that next-day air shipment was requested for the equipment, which added considerably to their cost. She decided that she would not ship the merchandise and told Schneider that on the morning of Friday, October 14. Jahosky also sent an e-mail on October 14 to the e-mail address listed on the orders—Esther Fielding’s e-mail address—stating that the orders could not be processed. At 2:21 p.m. Eastern Standard Time, Jahosky received a call from a male caller inquiring about the problem with the orders. Jahosky was surprised by the call because in her experience persons who submitted fraudulent orders did not normally call, but would just try to place the order with another company. The caller sounded young and seemed to Jahosky to be trying to disguise his voice. Jahosky did not say anything to the caller about her suspicion the orders were fraudulent or her contact with Schneider. Rather than telling him her real reason for not filling the orders, she told the caller she could not ship to an alternate address that was not the same as the billing address for the credit card. The caller said, “Okay, that’s fine,” in a very polite fashion that Jahosky found to be “weird.”

        The caller called back at 3:54 p.m. Eastern Standard Time on the 14th. This time, he asked if the merchandise could be shipped to the billing address on the orders. In the second call, Jahosky told him the credit card company had declined the charges and he would need to contact the credit card company. He accepted that information and did not make further contact with Jahosky. According to telephone records, both calls originated from the Curiels’ telephone number.

        On October 14, defendant called Robin after school and told him that “some of it hadn’t gone through and he was going to try to find a way to make it work.”

          6. The Day of the Murder

        A forensic examination of Vitale’s computer showed that it was used beginning at 8:07 a.m. on October 15 to visit several genealogical and news Web sites that were consistent with Vitale’s interests. The computer was used very extensively in the first part of the morning. The last use was at 10:12 a.m. and there was no further activity on the computer that day up until Vitale’s body was discovered.

        On the morning of October 15, Kim Curiel woke up around 8:30 a.m., did some chores, ate breakfast, and then sat on the couch and started grading papers. While she was grading papers, defendant walked through the front door. That was the first time Kim saw defendant that morning. Another resident of the house, Michael Sikkema, was in the kitchen making breakfast. Defendant walked with an exaggerated step, smiled broadly, and said in rather loud voice, “I had the most beautiful walk this morning.”

        Kim noticed that defendant’s hands were shaking slightly. Defendant also had scratches on his nose that were actively bleeding and three or four small scratches on his cheek. He explained that he fell down on his walk as he was coming down the hill and got “whacked” by a bush. He told Kim he had been “looking for the waterfall that you guys had talked about.” When Kim told defendant there was no water in October, he replied, “Yeah, I found that out.”

        After talking to defendant, putting some ointment on his nose, and grading one more paper, Kim left the house with Fred and two of their children, and drove to the Spirit Store to look at Halloween costumes. Based on transaction receipts from the Spirit Store and travel time, Kim estimated that defendant walked though the door around 10:45 a.m. on Saturday morning. A sheriff’s detective determined that it would have taken approximately 10 minutes to walk from the Vitale-Horowitz residence to the location of an abandoned van on the 1050 Hunsaker Canyon Road property where articles of clothing linked by blood evidence to the attack on Vitale were later found.[5]

        Sikkema, who was renting rooms in the Curiels’ house with his wife and two children, went downstairs to make breakfast for his children about 10:20 a.m. on October 15. As he was making oatmeal, Sikkema noticed defendant walk in the front door at a time he estimated was close to but no later than 11:00 a.m. Sikkema saw gouge marks on defendant’s cheek and nose that looked fresh and were not there the night before. Defendant told Sikkema he walked into a bush while walking on the trail toward the barn or waterfall. Esther Fielding came home from work around noon and noticed that defendant had a scratch on his nose and his palm was red. He told her he had slipped while climbing up some rocks, grabbed for a branch, and hit his hand on a rock. Fielding had not noticed any injuries on defendant the previous night.

        Fred Curiel initially told the police that he had seen defendant just before 9:30 a.m. on the morning of October 15, and that he saw no bleeding wound on his face or other injuries to his body. He also told police that he and his family left the house to go shopping about 10:20 a.m. At trial, Fred testified that he did not have a clear recollection of seeing defendant that morning and whether there was blood on his face. He also stated that he revised his time estimates after learning from the defense investigator that the prosecutor had made representations about a different time line during his opening statement to the jury. At trial, his best estimate was that he left the house at 10:20 a.m. to get in the car, and that the rest of his family got into the car six or seven minutes later and they all left together.

        Sometime before 2:00 p.m., Kim Curiel’s brother, Marcus Miller-Hogg called the house looking for defendant’s mother. Defendant answered the telephone. Miller-Hogg had known defendant since he was 10 years old. During the conversation, defendant told Miller-Hogg that his hand and wrist were swollen and asked Miller-Hogg what he should do. Defendant told him that he was walking behind the barn to look at a waterfall and fell in the ravine.

        Jena picked defendant up at his house about 2:00 p.m. on the afternoon of the 15th, and they spent the afternoon together. Defendant called Robin that evening and told him he wanted to come over and pick up some marijuana. Robin had never furnished marijuana to defendant before. Defendant and Jena arrived at Robin’s house about 8:00 p.m. and defendant gave Robin $40 for the marijuana and in repayment of other debts. That night, Jena noticed that defendant had scratches on his face, that his right wrist and hand were swollen, and that his arm was tender. He told her he went for a walk in the morning and that a tree or bush scratched his face and his palm was swollen because he fell and slid during the walk.

        Shortly after defendant arrived at Robin’s house, defendant’s mother called Jena’s cell phone wanting to talk to defendant. Jena told defendant and he called his mother back using Robin’s phone. Fielding told defendant that there was a rumor someone in the canyon had been killed, the police were denying access to the area, and he should not try to go home. Defendant told Jena that if she took him home, he would “have to be questioned by the police” and it would be “too much of a hassle.” When defendant, Jena, and Robin were speculating about who may have been killed, defendant stated that it was most likely at Horowitz’s house because of his stature as an attorney. He also mentioned that he had seen someone on his walk that morning and wondered if it could have been the killer. At one point, he recited a rhyme about Lizzie Borden and 40 whacks. He offered that if you wanted to kill someone, the most painless way would be to shoot them but, if you wanted to cause pain, you would bludgeon the person 36 or 39 times.[6] After leaving Robin’s house, defendant and Jena went to Jena’s home where they watched a show and drank absinthe.

          7. Defendant Confronted With Credit Card Fraud

        Schneider reported what she had learned about the credit card fraud to the Lafayette police on the afternoon of October 14. She was concerned that the fraudulent charges might be related to an incident that had occurred on October 1, in which she had struck defendant’s family dog, Jazz, as she was driving down the canyon road to work.[7] Schneider thought the fraudulent charges for goods to be delivered to Fielding’s residence might be a way to make her pay for Jazz’s veterinarian bills. The discovery of the credit card fraud frightened Schneider and caused her to ask a relative to stay with her on Friday night because her husband was working out of town.

        On Saturday, Schneider drove to King City in the morning and spent the day with her husband. She and her husband had planned the visit a few weeks earlier. At 11:30 p.m., Schneider’s daughter called her in King City and told her about Vitale’s murder. Schneider came home from King City the next morning. She arranged for a road association meeting to take place on Sunday afternoon, October 16, so that she could inform the neighbors about the credit card fraud. In addition to Schneider and other residents of the canyon community, Kim and Fred Curiel and defendant’s mother attended the meeting. The neighbors discussed the murder and speculated about who killed Vitale. Near the end of the meeting, Fielding expressed anger at Schneider for not taking responsibility for injuring the dog. In response, Schneider told Fielding that “you guys are trying to kill me.” Fielding said, “What are you talking about? What do you mean?” Schneider pulled out the credit card orders that Jahosky had faxed to her and pointed out that the orders used the Horowitz address and seem to have been placed by Fielding. Fielding and Fred Curiel looked over the orders in Schneider’s presence and could not figure out how Fielding’s name could be on them. Schneider gave Fielding and Fred the papers to take with them.

        Following the road association meeting, Fred—a computer consultant by trade—demanded to look at all of the computers in the house, including defendant’s. Although the browser history on defendant’s computer had been erased, certain files remained, showing that the computer had been used to access the Specialty Lighting Web site where the fraudulent orders had been placed. After looking at defendant’s computer, the Curiels and Fielding confronted defendant in the early morning hours of Monday, October 17, about the credit card fraud. Defendant initially denied involvement and claimed that someone must have broken into the house and accessed his computer. Still suspecting that defendant was involved in the fraud, Fielding confronted him again later and defendant repeated his denial of wrongdoing. She expected that Fred would next want to search defendant’s room. Because Fielding was afraid that she and defendant would be asked to leave the residence over the fraud, she told him he would have one chance to get rid of anything relating to the credit card fraud. At trial, Fielding denied that she had made any connection between the credit card fraud and Vitale’s murder when she suggested that defendant remove evidence from his room.

        Defendant and Jena had spent Sunday at the Renaissance Faire in Gilroy. After the fair, the couple went to defendant’s residence where Jena took a nap in defendant’s room. When Jena awoke, defendant was looking through things in his room. He told her that other residents were accusing him of credit card fraud. Defendant told Jena that his mother told him to pack his things because his room might be searched by police. Defendant placed a number of items into a red-and-black backpack, including a pair of shoes without laces that he had worn to the fair, and five books.[8] Defendant gave Jena the backpack and some bags and asked her to keep them for him.

        On Monday afternoon, Kim talked to defendant about Vitale and how sad she was about Vitale’s death, to which he responded, “Well, these things will happen.” Kim testified that she was angered by “the way he said it so callously.”

          8. Defendant’s Story About DNA Evidence

        Just before noon on Tuesday, October 18, the Curiels again raised the credit card fraud issue with defendant, and defendant again denied having placed the fraudulent orders. Fred told defendant that it did not look as if anyone had broken into his computer and asked him whether he understood that his use of Vitale’s home telephone number and address could tie him to the murder. Defendant said he understood and began pacing nervously. At some point, Fred told defendant he had nothing to worry about. When defendant asked him what he meant, Fred responded that if Vitale struggled with her attacker as Horowitz had told the press, “then it’s virtually guaranteed that there will be DNA . . . under her fingernails, there will be footprints and there probably will be hair.” Defendant did not respond to that.

        Kim then asked defendant where he was on Saturday morning and defendant replied that he went out for a walk. Kim asked him whether he had seen or talked to anyone on his walk. Defendant thought for a while and then said he remembered talking to someone on his way to the barn. He said there was a woman driving a white, four-door sedan. He said she had long straight brown hair and large glasses, and she had rolled down her window and stopped the car. He told Kim he spoke with the woman and that she reached across and grabbed his arm and said, “You’ve got to believe.” Kim told defendant that the description sounded “a whole lot like Pamela Vitale,” and asked defendant whether he knew her. Defendant said he did not. He continued, “Well, she grabbed me, she grabbed my arm, so she might have my DNA under her fingernails.” Defendant showed the Curiels “fingernail marks” on his right arm and said, “She even left marks.” At first, defendant said that the woman was driving out of the canyon when he encountered her. When Kim pointed out that if he was walking toward the barn the woman would have had to reach across the passenger seat to grab his arm if she was driving downhill out of the canyon, defendant changed his story and claimed he encountered her coming home when he was heading up the hill.

        Recognizing that defendant’s description of the woman sounded exactly like Vitale, Fred told defendant that Vitale was found in her panties and a T-shirt and could not have been out that morning. After a pause, defendant said, “What if my DNA is there?” This question “stunned” Fred and he did not respond. After Kim asked defendant a few more questions, defendant again asked about the possible presence of his DNA. Fred responded, “Don’t worry. If you weren’t there, then your DNA won’t be there.” Defendant said, “But what if it is there?” and Fred responded, “Well, that would mean you were there and that would mean you are going to do time.” Defendant was “visibly nervous” and “physically shaking” during this discussion with the Curiels.

        On Tuesday afternoon, Jena drove defendant to see Robin at Robin’s high school. Defendant told Robin that he was going to admit the credit card fraud to Fred and would say that he used Robin’s computer to do the research, in order to clear Robin’s name. Defendant also told Robin that he was going to admit the fraud because he was afraid of being linked to the murder and believed admitting the fraud “would separate him from that.” When Robin asked defendant about the connection between the fraud and the murder, he “didn’t really get a coherent answer.”

        Defendant also told Robin that he was afraid of being linked to the murder by DNA evidence because the person he had seen on his walk Saturday morning (who he had originally told Robin and Jena on Saturday night might have been the killer) was in fact the woman who was murdered, and that she had grabbed his wrist. On the drive back to his house after seeing Robin, defendant told Jena that on his way home from his walk Saturday morning he encountered a man and woman in a car, and the woman reached over the man from the passenger seat, grabbed his arm, and left scratches. Defendant also spoke to his mother, and to Michael Sikkema and Sikkema’s wife that day about his encounter with the woman on his walk. He told his mother that the woman said, “I can’t believe this is happening,” before grabbing him. He told Sikkema that the story about the woman on the road was “a hallucination.” He told Sikkema’s wife, “My DNA is on Pamela Vitale.”

        Later on Tuesday, defendant admitted to the Curiels that he was responsible for the credit card fraud and that he had lied to them about it. Defendant started crying and said that he wanted to “admit this and get this fixed and go to school.”

9. Defendant’s Arrest

        Fred Curiel called Robin’s father, Thomas, on Tuesday afternoon and told him about the fraud. With Thomas’s consent, the Curiels drove to his house and confirmed that Robin had been involved in the fraud by examining his computer. Fred also expressed his concern that there might be a connection between the fraud and Vitale’s murder. Thomas confronted Robin late that afternoon and made his son tell him everything he knew. The C.s immediately retained counsel and contacted police on Wednesday. Robin was granted immunity that day in exchange for his information. Defendant was arrested on Wednesday evening.



          10. Defendant’s Backpack

        On Thursday, October 20, Fielding went to her sister’s house in Bolinas. The next day, Jena and her mother drove defendant’s backpack and other possessions to Fielding in Bolinas. After Jena and her mother left, Fielding went through defendant’s property. She saw scraps of paper with credit card account numbers and names—including those of Schneider and Halpin—as well as a date book or journal, a box of gloves, two pairs of pants, three shirts, a pair of defendant’s shoes, movies, an external hard drive, a book on mass murder and cult leaders, a knife, and empty bottles of absinthe. Fielding threw the papers, gloves, and a journal or date book of defendant’s into the fire of a wood-burning stove. [9]

        The remaining items that were not burned were eventually turned over to police. The backpack contained, among other items, a T-shirt containing possible blood evidence and a pair of Land’s End slip-on shoes. The general pattern of the Land’s End shoe was the same as the general pattern of the shoe print found on the plastic storage bin lid found at the murder scene. A criminalist for the Contra Costa County Sheriff’s Department Crime Lab opined that defendant’s shoes, or another shoe with the same pattern, made the print on the lid. The shoes were identified as defendant’s and were the same shoes defendant wore to the Renaissance Faire with Jena on the day after the murder.



          11. The Duffle Bag

        On October 20, sheriff’s officers searched Fielding’s abandoned Toyota van, which was on the property at 1050 Hunsaker Canyon Road. The van had been there for several years and was surrounded by vegetation. The interior of the van contained papers, files, and other debris, as well as dead rodents, animal feces, and dead vegetation. Portions of the interior of the van tested presumptively positive for the presence of blood.

Behind the driver’s seat, officers found a duffle bag that “stood out” because it was “newer looking” and did not have the “weather-beaten look” of the other materials in the van.

        The bag contained a lightweight, dark sweater or pullover, a blue balaclava or head mask,[10] and a black, costume-style evening glove that extended up the forearm. Each item was turned inside out and appeared to contain blood stains. The fabric pattern of the glove was similar to the fabric prints left at the scene of the murder. The duffle bag also contained an overcoat, identified as defendant’s, with the left sleeve turned inside out and safety pins affixed to the right cuff and bottom. Defendant often wore safety pins in his clothing. The black pullover shirt found in the duffle bag was similar to shirts defendant owned. The glove was similar to gloves Fielding bought and kept in a costume box for the kids in the house to play with, and that defendant sometimes wore.

        The duffle bag had an airline tag from December 2003 with defendant’s name on it. Various areas of the bag appeared to contain blood stains. The duffle bag was similar to luggage that defendant and the Curiels used when they flew to Hawaii in 2003. On the Monday after the murder, Fielding saw the duffle bag in the van and believed it was defendant’s. She spoke to defendant about it and he said something about old clothes and words to the effect that he had left the bag there.





12. Discovery of Bullet-point List and Other Papers

        In late November or early December 2005, Fred Curiel’s brother, David, moved into defendant’s room at 1050 Hunsaker Canyon Road. At the end of January 2006, as he was cleaning up the house in preparation for a party, David stuffed some of his gloves into a dresser drawer in his room. The drawer also contained a pad of scratch paper. The morning after the party, David opened the drawer looking for his pad of scratch paper. He noticed five loose pieces of paper with handwriting on them. The papers were similar in size to those on the scratch paper pad he had put into the drawer, and to other pads of recycled scratch paper of varying sizes that the Curiels kept at the house.

        Four of the papers had account names, numbers, and access codes for multiple accounts—including credit card and brokerage accounts—as well as addresses, phone numbers, and birth dates. These papers contained John Halpin’s name, birth date, credit card security code number, and user names and passwords for several of his online accounts, written in defendant’s handwriting. Halpin testified that he was not aware of any way a person could get access to all of this information about him without sitting at his computer.

        David turned the papers over to police. He told a sheriff’s detective that the papers had been “wedged between the framework and the top of a dresser.” Forensic analysis revealed that two of the five papers contained defendant’s fingerprints.

        A fifth piece of paper, in defendant’s handwriting, had a vertical, unnumbered list of five bullet points, followed by text. The five bullet points read in order as follows: “Knockout/Kidnap,” “question,” “Keep captive to confirm PINS,” “dirty work,” and “dispose of evidense [sic].” The words “cut up, bury” followed the last bullet point, enclosed in parentheses.

          13. DNA Evidence

        David Stockwell, senior criminalist at the Contra Costa County Sheriff’s Department Crime Lab, conducted a DNA analysis of the evidence recovered from the duffle bag and backpack and determined that Vitale’s blood was on the duffle bag, glove, mask, and shoes.

        Analysis of DNA found on the glove established that if there were more than two contributors, defendant could not be excluded as one of the contributors. However, if there were only two contributors, defendant could not have been one of them. Stockwell opined that it would not be unexpected to find multiple contributors if the glove was kept in a box containing various articles of dress-up clothing that were sometimes handled or worn by others, including children. The inside of the glove contained not more than two DNA contributors and defendant was excluded.

        Six areas of the mask were analyzed, with four of the sites matching Vitale. The area of the mask corresponding to the wearer’s mouth contained no blood, but did contain a single source of DNA matching defendant’s. The statistical probability of finding an individual with the same DNA profile as that on the mouth portion of the mask was one in 1.8 quadrillion African-Americans, one in 780 trillion Caucasians, and one in 1.6 quadrillion Hispanics. An area above the left eye opening contained a mixture of DNA consistent with Vitale’s and defendant’s. However, the sample collected from that site was degraded and a larger number of persons—one in 150 African-Americans, one in 59 Caucasians, and one in 79 Hispanics—have DNA profiles that would include them as potential contributors to the mixture.

        DNA found on the duffle bag contained a major component matching Vitale’s DNA profile and a minor component that could only be profiled at seven loci. The minor component’s profile was consistent with defendant’s. That profile would be found in one of 4,500 African Americans, one in 560 Caucasians, and one in 650 Hispanics.

        The shirt found in the duffle bag contained DNA matching defendant’s. The shoes contained two areas of blood evidence allowing for a full DNA profile for a single contributor, both of which matched Vitale’s DNA. A degraded area on the sole of the shoe showed three separate contributors, including Vitale and defendant. The presence of DNA from a third donor on the sole of the shoe could be explained, for example, if the wearer had been walking around at a fair.

        Stockwell analyzed a swab taken from the bottom of Vitale’s right foot, which revealed a mix of contributors, with the primary contributor being Vitale and the minor contributor being male. As to the male component, Stockwell identified a partial profile that matched defendant. As to that partial profile, Stockwell calculated that one in 81,000 African-Americans, one in 43,000 Caucasians, and one in 23,000 Hispanics would have the same profile.

        To verify that the male component of the sample came from a single male donor, Stockwell sent the sample to Gary Harmor at Serological Research Institute for Y-STR profiling.[11] Harmor used a test kit that displays 17 different markers on the Y chromosome. He found that the male component of the sample was indistinguishable from defendant’s DNA for all 17 markers. In the case of Y-STR’s, the statistical significance of such a match can only be determined by comparing the profile found to a database. The company that makes the test kit, Applied Biosystems, Inc., has an online database consisting of the Y-STR profiles of 3,561 different people chosen at random. Harmor determined that the database did not contain any profile matching the Y-STR profile shared by the evidence sample and defendant’s Y-chromosome DNA. Due to the relatively small size of the database and the nature of the Y chromosome, however, it is not possible to directly extrapolate from the absence of a match the frequency with which that profile may occur in the general population. However, Stockwell performed a further statistical analysis to derive a conservative estimate that no more than one person in 1,189 would share the same Y-STR profile as defendant’s. DNA testing of Vitale’s fingernails found no DNA present other than her own.

-------A115725-------Contra Costa Co. 5-060254-0-------filed 4-27-09------

----------------desertsloth---------May 2009------------------------------------
[1] Fielding had once owned a costume shop in Hayward. Defendant had enjoyed wearing costumes of all kinds when he was younger, some of them made by Fielding, who was a skilled seamstress.

[2] We use first names for purposes of clarity, not out of disrespect.

[3] The residents of Hunsaker Canyon Road had formed a road association. The Curiels kept a list of the names, addresses, and telephone numbers of the road association members, including the unlisted Horowitz-Vitale telephone number, taped to the wall in their house.

[4] The Halpin order was apparently placed using his credit card information.

[5] The detective also timed the drive from 1050 Hunsaker Canyon Road to the vicinity of the Spirit Store, which took 21½ minutes. Credit card receipts established that the Curiels made a purchase at the Spirit Store at 12:36 p.m.

[6] Jena testified that she could not remember whether defendant used the number 36 or 39 when he made this comment.

[7] Jazz was severely injured and eventually had to be put down. Schneider had apologized for hitting Jazz, but Fielding was angry with her for not taking full responsibility. Even though Jazz had been in defendant’s family since defendant was two years old, defendant had shown no emotion about the dog’s condition. Kim Curiel described defendant’s demeanor as being similar to his demeanor at his sister’s funeral—withdrawn, serious, silent, and sullen.

[8] The titles of the books were Silence of the Lambs, Fathers of the Dead, Hannibal, Absinthe, and Black Sunday.

[9] Fielding admitted that she initially testified at defendant’s preliminary hearing to seeing Vitale’s name, along with Schneider’s and Halpin’s, on the scraps of paper. Upon being further questioned on that at the preliminary hearing, she stated, “On second thought, I think I was wrong about that.” At trial, Fielding denied having seen Vitale’s name on any of the papers she burned.

[10] A balaclava is a knit cap that covers the head and neck. (Merriam-Webster’s Collegiate Dict. (10th ed. 2000) p. 86.) The balaclava recovered from the duffle bag in this case was designed to cover the wearer’s face except for the eyes.

[11] STR stands for “Short Tandem Repeats.” (Nat. Research Council, The Evaluation of Forensic DNA Evidence (1996) p. 23.) STR’s are a particular type of loci where the same DNA sequence is repeated a variable number of times depending on the person’s genotype. (Id. at p. 70.) Y-STR profiling focuses on DNA loci found only on the Y chromosome, which exists only in males.

                                       THE HIGH COST OF HIDING THE PUBLIC’S RECORDS

We operate a website (desertsloth.com) that passes along information and photographs about our community that the local newspaper either does not cover or follow-up. When we tried to get information about two events in Palm Desert, a major commercial fire and a fatal car-school bus crash, we hit a brick wall -- our local fire agency, the Riverside County Fire Dept.

Access to copies of the requested RCFD records, which are clearly defined by State law as disclosable to the public, required making multiple phone calls, writing several letters, hiring an attorney, filing a civil action in Superior Court and spending thousands of dollars over sixteen months. The prevailing party is typically awarded his/her attorney fees and legal costs, which, of course, is your money, if your government does not prevail.

My first few attempts to get the information were made by telephone to the RCFD’s “Public Information” section, but instead of providing it I was interrogated about what groups or organizations I belong to, whether or not I was a citizen, and my reason for requesting the information. It became obvious I was considered as somebody who needed to be investigated rather than a citizen that needed information.   The Public Information “specialist” said she did not know if the records I asked for were confidential or not, that she would have to take my number and “check” with someone, then call me back. She never returned my call.

The fire agency’s Records officer sent a letter instructing us not to call on the telephone anymore, advising us instead to make our requests in writing. So we did, but got no response.

We sent three letters to Fire Chief John Hawkins asking for the record copies, each of them citing the specific section of the California Public Records Act (CPRA) that mandates disclosure, but he ignored the requests. We also sent letters to the Records officer asking for clarification of her letter directing us how to request information, because some of the instructions were in conflict with the records law, but she did not reply either.

When it appeared there was no other way to communicate with the agency or obtain the records other than through court litigation, we looked for help from the Chairman of the County Board of Supervisors, Roy Wilson, and requested intervention. Our hope was that he would urge or order the fire chief to comply with the records law and avoid the expense of futile court litigation, particularly since the RCFD had committed so many documented infractions of the CPRA. He did not respond or reply.

Unfortunately, it appears the fire department’s penchant for secrecy is entrenched in its history, policy and practice, judging from its previous treatment of our request for disclosable public information in 2001. In that case, the RCFD declined to provide a public record relating to a million dollar house fire in Indian Wells, saying it was confidential. We filed a court action but just before the hearing the agency conceded the record was not confidential and provided it to us. They paid us more than $2,000 as part of the settlement.

Last week the county conceded again by finally providing the records we sought, and the only matter still pending is the award of legal fees and costs, which will considerably exceed the 2001 dispute.

The bad news for taxpayers is that we will make more requests in the future.

* (Details and history on this latest fire dept. litigation is available in the Opinion and Page Two sections.)

CAUSE OF BANANAZ NIGHT CLUB FIRE STILL NOT KNOWN

FIRE DEPT CLAIMS THAT STATE RECORD LAWS DO NOT APPLY TO IT
The county wrote its own public record laws that conflict with the state’s record laws, and claim county rules supersede

PALM DESERT (1/2/09) For months we asked the Riverside County Fire Department to comply with record laws and provide copies of public records relating to a major night club fire in Palm Desert in 2004 and a fatal collision in Palm Desert in 2006, but the fire chief refused to explain why they were withholding the requested records or even acknowledge our request, until we filed a court petition asking for judicial resolution.

We have finally received an explanation. The county alleges in documents signed by a Riverside County deputy counsel that the State’s record laws do not apply to it because it writes its own public records laws that supersede the California Public Records Act (CPRA).

The CPRA directs all public offices how to store and maintain their records, and make them available to the public. Among other elements of the records law, it mandates that an agency must:

§ Respond to a request for record copies within ten days;

§ Explain the reason why a record is withheld;

§ Charge a requester only for the direct cost of making the copy. (The upper limit in California is currently about 25 cents per page)

In our case the fire department did not respond to or even acknowledge our request letters, did not explain the reason they were withholding the documents, and advised us that copies of records were $15.00 per record, regardless of the number of pages. The county’s counsel claims Riverside County is not bound by the CPRA requirements, and cites county ordinance 787 as justification to exceed the copy fee limits of the CPRA by sixty-fold.

Riverside County ordinance 787 imposes the exorbitant $15 copy fee, and the deputy counsel states that the fire department can charge that amount as well as additional indirect fees because the county wrote its own record laws and is not bound by CPRA restrictions. Although unstated in the county counsel’s brief, it apparently believes it is not required to respond within ten days to a records requester, or even respond at all, and is not obligated to explain to a rejected requester why the records are not provided.

If the courts agree with the deputy county attorney, it would seem that the 33 year-old CPRA would become ineffective, allowing every county in the State to ignore the public records law.

Both sides have filed briefs and a hearing is likely to be held in February.

Updates will be posted here . . .

WE WANT A JUDGE TO DECIDE

As we have noted over the past several months, the fire chief, nor anyone else in our local fire department will acknowledge or address our concerns about their policies that violate record laws, and by doing so drain taxpayer money that does not need to be spent.*

We suspect the agency, the Riverside County Fire Department (RCFD), is unable to justify its actions, so it chooses to ignore requests for specific records or answer questions about them, hoping their non-response will make us go away.

This kind of tactic was more common a few decades ago when public agencies were unencumbered by the 33 year-old California Public Records Act (CPRA) which now prohibits an agency from declining to respond to a request for access to a public record.

Smaller agencies were initially reluctant to surrender their close-to-absolute control over records they maintained, but the larger public agencies soon learned about the new laws and complied with them. The RCFD is a huge fire department, with 1,100 paid firefighters, but it still seems to operate as if record laws do not exist.

We have decided to ask for court intervention, and will be posting more details on the action very soon, possibly within the week.

JULY 26, 2008 >>>> Documents have been served on Fire Department officials and pesonnel and we are awaiting a response.

SEPTEMBER 3, 2008 >>>> We still have no response to our request for information on the Bananaz night club fire in November of 2004, which has been requested in three letters to the Fire Chief and a petition filed in Riverside County Superior Court seeking a writ of mandate directing the department to comply with record laws. A hearing may be held soon to resolve the matter. Updates will be posted here. The court file # is INC078228.

NOVEMBER 9, 2008 >>> Final briefing documents are due in early January and a hearing is scheduled for early February.

JANUARY 2, 2009 >>> Both sides have filed briefs and preparation for a hearing in February is under way. The Fire Dept's brief said the state's record laws do not apply to it because they have written their own laws that take precedence (See item on the county's position posted today on our home page).

FEBRUARY 7, 2009 >>> A Riverside County judge yesterday ordered both sides to select a referee to hear the issues and then return to court on March 10, 2009 when the judge will review the referee's findings.

MARCH 17, 2009 >>>> No hearing was held on March 10, 2009 because the fire department conceded the copy of documents we had requested were disclosable to the public, and provided them to us. The only issue remaining is the amount of attorney fees and legal costs to be paid to the prevailing party.

* Details and history on this issue can be gleaned from an item in the “Opinion” section and three items in the “Page Two” section.