People v. Clark

No.
S066940
Supreme Court of California
People v. Clark
63 Cal.4th 522 (Cal. 2016) • 203 Cal. Rptr. 3d 407 •
372 P.3d 811
Decided Jun 27, 2016
No. S066940. allegations charged, as follows: that defendant

committed the murder of Lee while engaged in the
06-27-2016
commission of a burglary (§ 190.2, subd. (a)(17)
The PEOPLE, Plaintiff and Respondent, v. (G) ) and while in the attempted commission of a
William Clinton CLARK, Defendant and robbery (§ 190.2, subd. (a)(17) (A) );2 that the
Appellant. murder of Williams was the murder of a witness
for the purpose of preventing her from testifying
Peter Giannini, under appointment by the Supreme
in a criminal proceeding (§ 190.2, subd. (a)(10) )
Court, for Defendant and Appellant. Bill Lockyer,
and a murder while lying in wait (§ 190.2, subd.
Edmund G. Brown, Jr., and Kamala D. Harris,
(a) (15) ); and a multiple-murder special-
Attorneys General, Mary Jo Graves and Dane R.
535 circumstance allegation ( *535 § 190.2, subd. (a)
Gillette, Chief Assistant Attorneys General, Gary
(3) ).3 The jury hung on a penalty verdict, but a
W. Schons, Assistant Attorney General, Holly D.
Wilkens and Daniel Rogers, Deputy Attorneys new jury returned a verdict of death at the penalty
General, for Plaintiff and Respondent. phase retrial. The trial court denied defendant's
motions for a new trial (§ 1181) and modification
of the penalty (§ 190.4, subd. (e)), and it sentenced
CUÉLLAR, J.
him to death. This appeal is automatic. (Cal.
426 *426 Const. art. VI, § 11 ; § 1239, subd. (b).)
Peter Giannini, under appointment by the Supreme 1 All further undesignated statutory
Court, for Defendant and Appellant. references are to the Penal Code.
Bill Lockyer, Edmund G. Brown, Jr., and Kamala

D. Harris, Attorneys General, Mary Jo Graves and 2 We will refer to the event comprising the
Dane R. Gillette, Chief Assistant Attorneys burglary, attempted robbery, and murder at
General, Gary W. Schons, Assistant Attorney the CompUSA store as the CompUSA
General, Holly D. Wilkens and Daniel Rogers, felony murder.
Deputy Attorneys General, for Plaintiff and
Respondent.
3 The jury also found defendant guilty of
534
828 CUÉLLAR, J.*828 *534 second degree burglary (§ 459), three
counts of attempted second degree robbery
An Orange County jury found defendant William
(§§ 664 & 211), and conspiracy to commit
Clinton Clark guilty of the first degree murders of murder (§ 182, subd. (a)(1)). The jury
427 Kathy Lee (count 1) *427 and Ardell Williams found true the enhancement allegation that
(count 7). (Pen.Code §§ 187, 189.)1 The jury a principal was personally armed with a
found true the five special-circumstance firearm (§ 12022, subd. (d)). Defendant
1
People v. Clark 63 Cal.4th 522 (Cal. 2016)
admitted as true the enhancement received a sentence of life imprisonment

allegation that he had served five prior without the possibility of parole.
prison terms (§ 667.5, subd. (b)).
Defendant denied involvement in either murder.

We vacate the burglary-murder and robbery- As to the first murder, the defense sought to
murder special-circumstance findings, but challenge the credibility of the prosecution
otherwise affirm the judgment. witnesses, including Williams. Defendant also
presented as an alibi evidence that he was present
Introduction
at a recording studio in Glendale during the time
The jury convicted defendant and sentenced him of the CompUSA murder. As to the second
to death for two murders. He was the shooter in murder, the defense acknowledged defendant's
neither of them. The first murder was that of close personal relationship with Yancey, but it
Kathy Lee, who was shot by Nokkuwa Ervin on 428 contended there was no *428 evidence he
the evening of October 18, 1991, during an conspired with Yancey to have Williams
attempted robbery of a CompUSA store in a 536 murdered.*536 I. Facts
Fountain Valley shopping center.4 The second
murder was that of defendant's former associate
A. Guilt Phase
Ardell Williams, who was shot in Gardena during 1. The Prosecution's Case
the early morning of March 13, 1994, by either a. The CompUSA Murder
Antoinette Yancey, who was defendant's girlfriend
at the time, or by someone acting at Yancey's i. Surveillance of the Store
direction.5 The prosecution's theory of defendant's The prosecution introduced Williams's Orange
accomplice liability for Lee's murder was that 829 County grand jury testimony to establish *829
defendant organized, and was present at, the defendant's preparations for the attempted robbery
CompUSA murder. The prosecution's theory of at the CompUSA store.6
defendant's accomplice liability for Williams's 6 Defendant's challenge to the admission of
murder was that defendant conspired with Yancey Williams's grand jury testimony is
to have Williams killed because Williams had addressed on pages 53 to 57, post.
testified to a grand jury about defendant's
involvement in the CompUSA murder, and she
was going to testify against defendant at his trial. At the end of August or in the early part of
4 Prosecutors separately charged and tried September 1991, Ardell Williams accompanied
Ervin for the CompUSA shooting. He
defendant while he surveilled a CompUSA
received a sentence of life imprisonment computer store in the Fountain Valley Mall near
without the possibility of parole. its 10 p.m. closing time.7 From the vantage point
of a Del Taco restaurant parking lot—which faced
the CompUSA store about 500 feet away—
5 Defendant and Yancey were originally
defendant, his brother, Eric Clark,8 and his cousin,
charged as codefendants for Williams's
Damian Wilson, scrutinized the closing operations
murder, but their trials were severed.
of the computer store and noted the amount of
Yancey was found guilty of first degree
time it took the employees to leave. During
murder but her jury found the personal use
Williams's conversations with defendant that
of a firearm allegation to be not true. She
night, defendant implied several times that he was
planning some sort of crime involving the
2
CompUSA store. After defendant and his woman, Kathy Lee, had come to pick up her son,
companions finished watching the CompUSA who was an employee at the store. The autopsy
store, they drove to a street near the mall where showed that she died as a result of a single
defendant checked on a U–Haul truck that he had gunshot wound to the head, fired while the gun
parked there. directly touched the skin behind her left ear.
7 Williams had previously served as Police recovered a blue-steel .38–caliber revolver
defendant's accomplice in stealing from with a two-inch barrel, from the left inside pocket
another computer store. Williams had of Ervin's jacket. The cylinder of the revolver
worked as a cashier at the store, and she
contained one expended .38 caliber cartridge
allowed defendant to take computer
casing and some human tissue. Ballistic testing
equipment through her checkout line
matched the bullet that killed Lee to the revolver
without paying. The trial court admitted
429 found on Ervin. At trial, two *429 CompUSA
evidence of defendant's involvement in this
employees identified Ervin as the man who held
earlier crime for the limited purpose of
showing the relationship between
them at gunpoint.
defendant and Williams; see pages 59 to
iii. Matthew Weaver's Testimony
64, post.
Matthew Weaver was present in the CompUSA
parking lot that night and placed defendant at the
8 We will generally refer to Eric Clark as scene of the crime. Weaver testified under a grant
Eric to avoid confusion with defendant. of transactional immunity. Weaver knew Eric and
Wilson, who were fellow members of the
Moorpark College basketball team. They had
ii. The Night of the Crime offered to pay Weaver $100 to help them move
At approximately 10 p.m. on October 18, 1991, computers to a warehouse from a store they said
after the CompUSA store had closed for the belonged to defendant. On the night of the crime,
evening, a man later identified as Ervin Eric drove Weaver to the mall parking lot where
approached the three remaining employees in the they waited for the CompUSA store to close.
store with a gun and eventually handcuffed them While they were waiting, Wilson introduced
in the men's restroom. At about 10:30 p.m., Weaver to his brother “Bill,” who had driven up in
Fountain Valley Police Officer Raymond Rakitis a BMW. Weaver identified defendant in court as
was on car patrol near the CompUSA store when the man to whom he had been introduced.
he heard a gunshot. From 15 to 20 yards away, he Defendant eventually told Weaver that the group
saw a silver BMW back out of the parking lot and could start moving the computers, and he drove
537 Ervin run from an open loading door in the *537 Weaver over to the store in the BMW.9 As they
back of the CompUSA store toward the BMW.
approached the store, Weaver saw a woman lying
When Ervin reached the BMW, he tried to enter
830 on the ground next to *830 a car. Suddenly Weaver
the car through the driver's window and then tried
saw an African–American man, later identified as
to open the passenger side door. But the BMW did
Ervin, run up and unsuccessfully attempt to dive
not wait for him, and it drove off, leaving him in
through the driver's side window of the BMW.
the parking lot. Officer Rakitis exited his police
Weaver ducked down toward the dashboard and
car and subdued Ervin. Officer Rakitis then
noticed that two police cars with flashing lights
noticed a dead woman lying on her back with
were approaching the BMW. Defendant made a U-
blood pooling under her head near the CompUSA
turn and drove off, leaving Ervin in the parking
loading doors. The police later determined that the
lot. After driving some distance away from the
3
mall, defendant stopped at the side of the road and provided Moore with credit cards (also in
told Weaver and the other passenger to get out. Carey's name), which Moore used to buy
538 *538 iv. Investigation of the U–Haul Truck expensive items for defendant at
department and electronics stores.
9 Weaver sat in the front passenger seat, and
another man was in the rear passenger seat.

The third man in the BMW was not 13 The clerk could not positively identify the
identified at trial. African–American male at trial. In an
earlier photo line-up with investigators, the
clerk had identified photos of two different
On October 22, 1991, four days after the individuals who “could have been” the
CompUSA murder, police investigators found a man, one of whom was Ervin, the gunman
U–Haul truck that had been parked near the store at the CompUSA robbery murder.
for several days. They determined that Jeanette
Moore had rented the truck on October 3, 1991,
using a fraudulent driver's license with her picture Moore moved to Yuma, Arizona in 1992 or 1993
but with the name “Dena Carey.”10 Moore testified and did not see defendant again. But while living
under a grant of transactional immunity. She in Arizona in 1993, she received a three-way
testified that, in June or July of 1991, defendant 430 phone call from Gary *430 Jackson (an ex-
obtained the fraudulent driver's license for her.11 boyfriend through whom she had met defendant)
and a woman identifying herself as “Nina,” who
Defendant and Moore had gone to the DMV
claimed to be defendant's wife.14 Nina told Moore
where defendant knew the clerk who processed
the license. Moore subsequently rented the U– to expect some money via Western Union. In the
Haul truck at defendant's request using the winter of 1993, Moore received $100.
license.12 Eric drove Moore to the U–Haul lot and 14 The prosecution's theory was that “Nina”
drove the truck away after Moore filled out the was Yancey, defendant's accomplice in the
forms and obtained the key. Defendant rewarded Williams murder. As recounted below, after
Moore with $100 the next day. A U–Haul clerk the murder of Williams, police searched
testified that, on October 9, 1991, which was six Yancey's apartment and, among other
days after Moore rented the truck, an African– things, recovered a receipt for a Western
Union money order for $100 sent to Yuma,
American male came to the U–Haul lot in
Arizona in December 1993.
Glendale and extended the contract.13
10 Carey was an innocent victim of identity
theft, who was not involved in any of In June 1994, while Moore was in custody at the
defendant's activities. Orange County Jail pursuant to a commitment
under section 1332 to ensure her availability as a
witness at defendant's preliminary hearing, she
11 For the license, Moore used an address that
539 received an anonymous letter *539 urging her not
defendant instructed her to use. The
to testify. The letter included a photocopy of a
address was defendant's home address at
newspaper article describing a witness who was
the time.
released from jail after refusing to testify at a
trial.15
12 Moore also testified about other fraudulent
15 The prosecutor's theory was that this letter
acts in which defendant helped her engage was from defendant who sought to
using the fraudulent license. Defendant dissuade Moore from testifying against
4
him. See pages 69 to 74, post. bathroom. But the mother of one of the employees
came into the store looking for her son and
surprised one of the burglars, who shot her. Eric
v. Sale of Defendant's BMW After the told Williams not to mention what he said to
CompUSA Murder 540 anyone.16 *540 Seven to ten days after this
Defendant bought a BMW model 735i on July 31, conversation, defendant called Williams, telling
1991. On October 24, 1991, six days after the 431 her that he was going to find her a lawyer in *431
CompUSA murder, he arranged to sell it through Las Vegas to take care of the bad check charges
the dealer from whom he had bought it. The dealer pending against her. Williams asked defendant
suggested that defendant would get more money about his BMW, and defendant stated that he had
selling it retail rather than on auction wholesale, sold it “because you never know who could have
but defendant told him that he just needed to get seen the two of us sitting eating nachos that one
rid of it and wanted to sell it wholesale. night,” and “he didn't want anybody to suspect
anything.”
b. The Murder of Williams 16 We later discuss in greater detail Eric's
i. Arrest of Defendant and Williams conversation with Williams about the plan
in Las Vegas and Her Cooperation for the robbery. (See pages 112 to 117,
with the Authorities post. )
In September 1991, sometime after Ardell

831 Williams had accompanied defendant during *831
After her conversation with Eric, Williams
his surveillance of the CompUSA store, she
decided to tell the authorities about the CompUSA
traveled with him to Las Vegas. On the evening of
murder because her own sister had been the victim
September 22, the police arrested Williams and
of an unsolved murder many years before. On
defendant for passing stolen traveler's checks at
December 31, 1991, she contacted FBI Special
the Mirage Hotel. Defendant posted bail and was
Agent Todd Holliday, whom she had met
released the next day, but Williams remained in
following the bad check incident in Las Vegas.
jail. While in custody, Williams helped the local
Williams told Holliday about the surveillance of
police and the FBI in their investigation of the
CompUSA and about her later conversations with
Mirage Hotel incident and other related bad check
defendant. Agent Holliday contacted the Fountain
cases.
Valley police and the Orange County District
Williams subsequently testified to the Orange Attorney's investigators to tell them that Williams
County grand jury that she had a conversation claimed to have information about the CompUSA
with Eric approximately two weeks after her arrest murder. Williams agreed to talk on the phone with
in Las Vegas, when she had returned to Los Frank Grasso, an inspector with the Orange
Angeles. Eric asked her whether she had been County District Attorney's Office, on April 1,
talking to anyone about “this Las Vegas thing” 1992. In two interviews, which were tape-recorded
because someone was “pointing the finger” at and played to the jury, Williams implicated
defendant, saying that he was “the top dog in this defendant in the CompUSA murder.
case.” Williams denied talking to the authorities.
She asked Eric, “[W]hatever happened to the
ii. Tape Recordings of Defendant's
computer store?” Eric answered that “it went Phone Calls
down bad.” He recounted that his group of In August 1992, Inspector Grasso provided
burglars went into the store and handcuffed a Williams's sister, Elizabeth Fontenot, with a tape
cashier and a night manager to a hand rail in the recorder so that Fontenot could record phone calls
5
she received from defendant. The tape of 18 In his testimony at trial, Garrett
defendant's conversations with Fontenot was acknowledged that he had made this
played in court to the jurors. During these statement to the acquaintance, but he also
stated that he had lied because he was
conversations, defendant expressed concern that
trying out a story on the acquaintance to
Williams might talk to authorities and try to link
see how she reacted before taking it to the
him to a murder in Orange County. Defendant told
authorities.
Fontenot that the authorities knew things that only
Williams knew. He said he was “shocked” that
Williams “rolled over so quickly.” He told
Before trial, prison authorities seized from
Fontenot that if Williams were to testify against
defendant's cell an apparently undelivered letter to
him, it would be “serious” and would “wipe [him]
Garrett threatening him for talking to the police.19
out.” He stated that the best answer that Williams
19 For further background on this letter, see
could tell the authorities about him was “I don't
know.” He explained, “[Y]ou're her big sister, she pages 69 to 74, post.
don't know nothing about me. Whatever she's told

them, that's it. You follow me? ... She can ‘I don't
know’ ‘em to death.” “Anything that she might of iv. How Defendant Received the
[sic] already said, she could come to court and get Grand Jury Transcripts
complete amnesia.” The prosecution's theory was that the transcripts
that defendant had shown to Garrett concerning
iii. Defendant's Admissions to a
Williams were transcripts of her grand jury
Fellow Inmate testimony. The prosecution had provided these
While defendant awaited trial for the CompUSA transcripts through discovery to defendant's
murder, he was incarcerated in the Orange County attorney, who gave them to defendant. Criminal
Jail. There, he met fellow inmate Alonzo Garrett. defense attorney John D. Barnett testified as an
Unbeknownst to defendant, Garrett was expert witness that a competent defense attorney
acquainted with Williams because one of Garrett's would have given a defendant information about
friends was married to Williams's sister. At one Williams's interviews with the police and her
832 point, *832 defendant showed Garrett what grand jury testimony—information that would had
541 appeared to be a trial transcript and referred *541 been produced in discovery by the prosecution.
to Williams.17 Garrett stated in a phone call to an Barnett testified that Williams's police interviews
acquaintance, which was recorded and played to and grand jury testimony would be, absent certain
the jury, that defendant had said, “ ‘Hey, this is the exceptions, inadmissible at trial if she was
woman right here that could put me away.’ ”18 unavailable as a witness because she had not been
Concerned that Williams was involved in a subject to cross-examination at those proceedings.
dangerous situation because she was “snitching,”
Garrett phoned Williams, who admitted that she
v. The Flower Delivery at the Home
432 was the *432 key witness in defendant's case, but of Williams
assured him that there was nothing to worry about. On February 10, 1994, an African–American
17 The prosecution's theory was that this was
woman who said her name was “Carolyn” and
claimed to be from a local flower delivery shop,
the transcript of Williams's grand jury
testimony.
delivered flowers bearing a card signed “Secret
Admirer” to Williams at the Gardena home where
she lived with her mother, Angelita Williams, and
her sister, Nena Williams. Nena thought the
6
delivery girl was suspiciously trying to loiter minute drive from her home. Williams had a
around the house after making the delivery, gunshot wound behind her left ear. She was
including spending a long time in the restroom. In clothed with no evidence of sexual assault, and
court, Nena identified the woman who had called had $114 in cash on her person. A .25–caliber
herself “Carolyn” as Yancey. During defendant's bullet casing and two job application forms were
preliminary hearing, the parties stipulated that found near her body—one on the trunk of the car,
Angelita also identified Yancey as “Carolyn.” and the other one on the ground. The application
form on the ground was partially completed. A
On March 9, 1994, Williams phoned Inspector
photograph of patterns in dust on the trunk of the
Grasso and told him about “Carolyn” and the
car suggested that an arm had been resting on the
unusual flower delivery. Grasso assembled a series
trunk lid near where the partially completed form
542 of *542 photos of women associated with
had been.
defendant, including Yancey, and showed them to
Williams, Nena, and Angelita. All three identified Yancey visited defendant at the Orange County
Yancey as the person who delivered the flowers. Jail the same morning. Her visit began at 8:45
The parties stipulated at trial that one of Yancey's a.m. and ended at 9:35 a.m. According to
fingerprints was found on the box in which the Inspector Grasso, it would take 37 minutes to
flowers were delivered. drive from Continental Receiving to the Orange
County jail, driving on average at the speed limit
vi. Phone Calls to the Home of of 55 miles per hour.21
Williams and a Purported Job
21 The prosecutor's theory was that Yancey
Interview
went to visit defendant after the murder of
After the flower delivery, someone calling herself Williams and that, even if Williams was
“Janet Jackson” telephoned Williams. This person killed only shortly before 8:00 a.m., which
had previously spoken by phone several times to was the time her body was discovered,
Angelita. “Janet Jackson” asked Williams to come Yancey would still have had time to
for a job interview at a company named commit the murder and get to the jail to
Continental Receiving on Sunday, March 13, 1994 meet defendant at 8:45 a.m.
at 6:30 a.m.20
20 The president of Continental Receiving
viii. Investigation of Williams's
testified that his company had never
employed anyone named “Janet Jackson”
Murder
and that it did not operate on Sunday Five days after Williams's murder, police
mornings. To his knowledge, Yancey had conducted a voice lineup, where they played tapes
never been employed by the company. of four voices to Angelita and Nena. Both of them
543 *543 identified Yancey's voice as that of the
woman who had called herself “ Janet Jackson” in
vii. The Morning of the Murder and her telephone calls.
the Crime Scene
On March 17, 1994, the police searched Yancey's
Williams went to the purported job interview apartment. They found: (1) a California driver
sometime after 6:00 a.m. on the morning of March license with Yancey's picture on it and the name
833 13, 1994. At 8:00 a.m., a neighborhood *833 “Keia Thomas”; (2) a resume with Thomas's
resident discovered Williams's body near name; (3) a Western Union receipt for $100 sent to
433 Williams's car in the *433 driveway of Continental “Jeanette Alexander” from “Nina Howard” on
Receiving in Gardena, which was about a two-
7
December 27, 1993;22 (4) an income tax return admitted to the officer that she had put extra
and receipts in defendant's name; (5) a phone bill merchandise into her friends' bags when they
receipt in Eric's name; and (6) numerous love made purchases.
letters from defendant to Yancey where defendant
expressed explicit sexual fantasies. The trial court
b. Alibi Evidence
provided edited versions of the letters to the jury.23 As an alibi, defendant presented evidence of his
whereabouts during the CompUSA murder on the
22 Moore used the name “Jeanette Alexander”
night of October 18, 1991 through the testimony
while she lived in Yuma, Arizona in 1993.
544 *544 of Geoffrey Gilstrap, a musician in a band
called Full Swing that defendant was managing at
23 The trial court admonished the jury that the
the time. Defendant had booked time for the band
at a Glendale recording studio and, on the evening
letters—discussed in detail on pages 76 to
834 *834 of a Friday at the end of October (either
78—were admitted for the limited purpose
of “tending to show the nature of the Friday, Oct. 18, or Friday, Oct. 25), Gilstrap was
relationship between Mr. Clark and Ms. at the studio at about 8:30 p.m. for a scheduled
Yancey.” recording session. Defendant was there, but no
recording took place because the recording
engineer did not show up, owing to a pay dispute
Yancey's phone records for the period of January concerning the previous session. Gilstrap left the
through March of 1994 listed numerous calls to studio after about 15 to 20 minutes, which was
the home of Williams; to the office of defendant's between 8:30 and 9:00 p.m. The manager of the
attorney, Jack Earley; to the office of defense recording studio also testified and brought the
investigator, Alan Clow; and to a pay phone in studio's schedule book, which showed that
Orange County Jail accessible to defendant. defendant had reserved time there for October 12,
13, and 18, 1991. She did not remember seeing
2. Defense Case defendant in the studio on October 18, the night of
a. Williams's Credibility the CompUSA murder.
To challenge Williams's credibility, the defense B. Penalty Phase Retrial
called Satanand Sharma, a neuropsychologist who
had seen Williams on four occasions through 1. Prosecution Evidence
court-ordered counseling. In his notes from one of Defendant's first penalty trial resulted in a hung
the sessions, Dr. Sharma wrote: “She [Williams] jury.24 At the penalty phase retrial, the prosecution
feels that Bill [defendant] was involved in that re-presented the guilt phase evidence from both
case [the computer store attempted robbery and the CompUSA murder and the murder of
murder] because she was pushed [sic —parked] in Williams. The prosecutor did not present any other
front of a computer store and had conversations evidence in aggravation.
with Bill regarding the bust at the store.” Dr.
24 The jury was split with seven favoring
Sharma's recollection was that Williams said she
death and five favoring life without parole.
was present at the attempted robbery.
A loss prevention officer at the Disney Store in

434 Torrance where Williams had *434 worked 2. Defense Evidence
described how she was fired in February 1994.
For his case in mitigation at the penalty phase
The Disney Store fired Williams after the officer
retrial, defendant mounted a lingering doubt
investigated her for employee theft. Williams
defense for both murders. As in the guilt phase, he
8
again attacked the credibility of the main 25 The defense contended that “Ricky's”
prosecution witnesses and presented alibi evidence appearance was closer than defendant's to
for his whereabouts on the night of the CompUSA the person that Officer Rakitis had
described in the BMW on the night of the
felony murder. Defendant also presented evidence
CompUSA robbery murder.
in mitigation based on his family background, his
good character, and his ability to be a positive
influence on other inmates. Finally, he presented
evidence that he had brain damage and
b. Family Background
psychological impairments because of head Many of defendant's family—including
injuries he suffered during childhood and young defendant's father, mother, aunt, first wife, and
adulthood. two cousins—along with several family friends,
testified about defendant's life. Defendant's mother
a. Credibility of Moore and father married at a young age and had a
The defense presented the testimony of Gary tumultuous 10–year marriage, during which
Jackson, Moore's former boyfriend. Moore, as defendant and his brother Jonathan were born.
described above, had linked defendant to the Defendant's father remarried and had two more
CompUSA murder by testifying that defendant children: defendant's half brothers Eric and Jason.
had obtained a fraudulent driver license for her
Defendant was described as having a high IQ but
and then asked her to use it to rent the U–Haul
failing to perform academically the way he should
truck that the police later found parked near the
835 have; he had a C average in *835 high school.
crime scene.
With a combination of high Scholastic Aptitude
Jackson portrayed Moore in a negative light, Test scores and his basketball ability he was
describing her as a fellow drug user and thief admitted to UCLA. But he did not complete a
whom he had dated for about six months between degree there, nor did he become a starting player
545 1990 *545 and 1991. In May 1991, Jackson and on the basketball team. He eventually went to
Moore found a wallet that contained department Fresno, where his father was living, and attended
store credit card receipts in the name of Dena Fresno State University, where he continued
Carey. Moore devised a plan to obtain a driver playing basketball. He left Fresno, returned to Los
license with Carey's name so that she could use Angeles, and moved into an apartment building
the department store receipt numbers to buy owned by his mother. He was married for five
merchandise on those accounts. But she needed to years, and had two children. During this time,
have an address for the driver license, and Jackson defendant and his brother Jonathan started a
refused to let her use that of his father. In May business venture to design and license animated
435 1991, Moore met defendant *435 through Jackson. characters for the 1984 Olympic games in Los
Moore asked defendant if she could use his Angeles. Defendant lost approximately $750,000
address for her welfare checks because she did not of investment money provided by his mother and
have a stable address. aunt on this unsuccessful business.
Jackson further testified that a man called “Ricky,” Many of defendant's family members described
not defendant, asked Moore to rent the U–Haul him as lively and positive in attitude as a young
truck that was found parked near the CompUSA man but, as his first wife testified, he became
robbery scene. Jackson described Ricky as one of 546 depressed *546 and distant after the business
his “dope dealers” who was a five foot, 10 inch failure. She eventually filed for divorce. In 1985,
tall light-complected African–American man with soon after the divorce, defendant's young son from
a Jheri curl.25 Ricky drove a grey BMW. his first marriage died. The deaths of defendant's
9
grandmother and brother-in-law followed in close which caused some kind of severe malfunction of
succession. Defendant's first wife testified that his frontal lobes.” What the PET scan showed was
defendant was deeply affected by all these deaths consistent with the fact that, when defendant was
in the family. By 1987 or 1988, defendant married six years old, he had been struck on the head with
his second wife, with whom he had a son and a champagne bottle. Wu further stated that people
daughter. with damage to their frontal lobes, “in many
cases,” exhibit personality changes in which they
Family members described several serious
“seem to lack the ability to be able to fully
accidents that defendant suffered in his life. When
understand or appreciate the significance of their
he was six or seven, he was accidentally hit in the
actions” and have “impaired social judgments.”
head with a champagne bottle by his young cousin
at a wedding, and, as a result, suffered Psychiatrist George Woods testified to his clinical
convulsions. While playing football at Fresno assessment that defendant suffered from a mild
State, he tripped on a lawn sprinkler and broke his case of bipolar affective disorder. Woods
jaw and leg. Just before his first marriage, he was 547 explained *547 that people suffering from this
in a car accident and remained in a body cast for mood disorder experience periods of elevated
six months. mood, are very easily distracted, and lack good
insight into their actions. The diagnosis of this
c. Inmate Testimony mood disorder was consistent with the frontal lobe
Three inmates testified about defendant's positive damage shown in defendant's PET scans.
influence on them while they were incarcerated in
II. Pretrial Issues
the Orange County Jail. Two of these inmates also
436 testified that it was common for inmates to *436 A. Order Denying Defendant Telephone Access
write sexually explicit letters to women outside of from Jail
jail.26
On March 23, 1994, at the initial arraignment of
26 This was offered to rebut the prosecution
defendant and his then-codefendant Yancey for the
theory that defendant's letters to Yancey, murder of Williams, the trial court granted, over
which included explicit sexual content,
836 defense objection, the *836 prosecutor's request for
indicated a particularly intense personal
an order restricting defendant from making any
relationship, see pages 76 to 78, post.
telephone calls from jail, including any calls to
defense counsel. About a year later, defense
counsel successfully moved the court to modify
d. Asserted Brain Damage the restriction to allow defendant to call his
Through the testimony of Dr. Joseph Wu, the defense counsel or defense investigator at
director of the University of California, Irvine specified hours. Defendant contends the March 23,
Brain Imaging Center, defendant presented 1994 restriction prevented him from
evidence that he had brain damage and communicating with his counsel, investigator, and
psychological impairments. Based on a positron potential witnesses in the case, which violated his
emission tomography (PET) scan of defendant's federal constitutional rights and his rights under
brain done on June 11, 1996, Wu stated that state law. As discussed below, we conclude: (1)
defendant had abnormalities in his frontal lobes the court did not err in granting the prosecutor's
that were consistent with a closed head injury. Wu request for the initial March 23, 1994 restriction
gave his opinion that the abnormalities shown in on defendant's telephone calls; (2) defendant
the PET scan indicated that defendant had forfeited his claim concerning the continuing
“suffered some kind of serious blow to the head application of the restriction order when defense
10
counsel expressly declined to argue against it in Earley so that Earley could testify at the
the April 15, 1994 hearing and asked to take his penalty retrial.
motion challenging the order “off calendar”; and

(3) even if his claim is not forfeited, defendant has
28 Earley (in his opposition to a later,
failed to show that his defense was prejudiced by
ultimately unsuccessful, motion by the
the phone call restriction.
People to recuse him) described the
1. Background prosecutor's position at this time as

follows: “Deputy District Attorney
Attorney Jack Earley began representing
Randolph Pawloski told defense counsel ...
defendant in September 1992 for the charges that counsel had a ‘conflict of interest’
arising from the CompUSA murder.27 Earley was (without telling him what the conflict was),
437 defendant's attorney *437 when Williams was announced that he would not give defense
murdered on March 13, 1994. Four days later, on counsel any discovery because he did not
March 17, the police searched Yancey's apartment. wish to see any more witnesses dead, and
Among other evidence connecting Yancey and intimated that defense counsel was
defendant was Yancey's personal phonebook, responsible for Ardell Williams' death.
which contained the name and phone numbers of [Defendant] was subsequently denied
phone access—even to defense counsel—
Earley and his investigator, Alan Clow. Phone
on the grounds that he had used the phones
records showed several telephone calls from
to plan the homicide of Ardell Williams.”
548 Yancey's apartment *548 to Earley's office in the
period before Williams's murder, as well as several
phone calls from Yancey's apartment to Clow's
On March 23, 1994, at the initial arraignment
office both before and after Williams's murder. On
hearing for defendant and his then-codefendant
March 23, 1994, 10 days after Williams was
Yancey, the prosecutor stated that new information
murdered, the prosecutor charged defendant and
had developed, and that Earley and his
Yancey with her murder. The prosecutor initially
investigator might be potential witnesses in the
refused to give discovery information to Earley
case.29 The prosecutor asked that Earley come to
because the prosecutor was fearful for the safety
the prosecutor's office to discuss the situation. The
of the other witnesses in the case.28
prosecutor also requested “a blanket order” to
27 Earley represented defendant continuously deny defendant any telephone access (including to
from September 1992 through defendant's Earley) for at least 48 hours until the prosecutor
guilt phase trial and his first penalty phase had a chance to discuss the situation with Earley
trial (which ended in a mistrial), until July and devise a course of action. The prosecutor,
1996, when the prosecutor elected to retry however, agreed to allow Yancey telephone
the penalty phase. Earley then declared a
contact with her attorney if a deputy sheriff dialed
conflict and, at defendant's penalty retrial,
the number. The trial court granted the
defendant was represented by Robison
prosecutor's request for the order over defense
Harley, who had been second counsel at the
counsel's objection and continued the arraignment
guilt phase and first penalty phase. Earley
to two days later, Friday, March 25, 1994, when
was called as a witness by the prosecution
at the penalty retrial, which is where some
the court would review the restrictions on phone
of the background information recounted 837 calls.*837 At the March 25 hearing, Earley raised
here was put on the record. Defendant had the issue of the telephone restrictions, which
waived the attorney-client privilege for Earley thought would expire at this point. The
prosecutor stated his position that the court's order
should remain in effect. The parties agreed to a
11
hearing on the issue, with the restrictions Small, petitioner's claim does not involve a
remaining in the meantime. The hearing was held challenge to a security measure promulgated by
on April 15. prison authorities. Rather, it involves a restriction
29 Presumably, the prosecutor was referring to
imposed by the trial court at the urging of the
prosecutor due to concerns that defendant would
the discovery of Yancey's personal
phonebook containing the name and phone
use telephone access to threaten or order the
numbers of Earley and Clow and the phone execution of witnesses in the case. In the absence
records indicating three-way phone of authority applying former section 2600 to a
communications between defendant, court-ordered limitation on the telephone access of
Earley, and Yancey prior to the murder of a pretrial detainee, we decline to apply it here.
Williams.
30 The version of section 2600 operative at
the time of the restrictions on defendant's

phone calls stated that prisoners may “be
At the April 15 hearing, Earley stated, “[T]he
deprived of such rights, and only such
people at this point are alleging that my client rights, as is necessary in order to provide
made various phone calls from the jail to make for the reasonable security of the
some arrangements. I'm not asking that we change institution” and “the reasonable protection
the order at this point today.” Earley said he could of the public.” (Stats.1975, ch. 1175, § 3, p.
work out an agreeable order with the prosecutor 2897.) Section 2600 was amended in 1994
438 concerning defendant's telephone *438 access and (effective Sept. 13, 1994) to permit
stated, “I don't mind taking it off calendar to deal regulations that are “reasonably related to
with it at the preliminary hearing, if need be.” legitimate penological interests.” By this
549 Yancey's *549 defense counsel, however, argued amendment, the Legislature adopted the
that the trial court should modify its order to allow federal test for the validity of prison
regulations established in Turner v. Safley
Yancey to telephone people other than her
(1987) 482 U.S. 78, 89, 107 S.Ct. 2254, 96
attorney. After hearing argument from Yancey's
L.Ed.2d 64. (Thompson v. Department of
counsel and the prosecution, the court ruled that it
Corrections (2001) 25 Cal.4th 117, 130,
was retaining the existing restrictions on Yancey's
105 Cal.Rptr.2d 46, 18 P.3d 1198.)
telephone access as stated in the March 23, 1994
order.
Earley did not again ask the court to modify the Yet defendant may challenge the telephonic
restrictions on defendant's telephone access until restriction based on his right to access to counsel
about a year later, on March 10, 1995, when he under the state and federal Constitutions.
made a motion, unopposed by the prosecutor, to Restrictions on the ability of a prisoner, including
allow defendant to have contact with defense a pretrial detainee, to use the telephone to consult
counsel at specified times if the number was with counsel implicate the right to assistance of
dialed by a deputy sheriff. counsel in the prisoner's defense. (See In re
Grimes (1989) 208 Cal.App.3d 1175, 1182, 256
2. Analysis Cal.Rptr. 690.) Nevertheless, “[n]ot every
Citing Small v. Superior Court (2000) 79 restriction on counsel's time or opportunity ... to
Cal.App.4th 1000, 1010, 94 Cal.Rptr.2d 550, consult with his client or otherwise to prepare for
petitioner contends that former section 2600, the trial violates a defendant's Sixth Amendment right
statute defining the civil rights of prisoners, is the to counsel.” (Morris v. Slappy (1983) 461 U.S. 1,
starting point for matters involving security 550 11, 103 S.Ct. 1610, 75 L.Ed.2d 610.)*550 We
measures affecting prisoner rights.30 But, unlike recently rejected a claim with similar facts. A
12
defendant who was a pretrial detainee in jail faced Finally, even if defendant's claim were not
restrictions on telephone contact with her attorney forfeited for that period, he has failed to show that
based on her misuse of that privilege to attempt to his defense was negatively affected by this period
solicit the murder of a witness. (People v. of telephonic restriction such that we could
Rodriguez (2014) 58 Cal.4th 587, 621, 168 conclude he had been denied his right to the
Cal.Rptr.3d 380, 319 P.3d 151.) As we noted, effective assistance of counsel. Defendant
“[j]ail authorities and the court did limit acknowledges that he was not denied personal
defendant's telephone privileges, but properly so visits from trial counsel. As reflected in the record,
given her criminal behavior in jail that abused defendant's trial counsel actively litigated the case
those privileges.” (Ibid. ) during this period at the preliminary hearing and
through various pretrial motions and hearings.
Given the grave and highly unusual circumstances
Defendant generally contends that his “input” was
under which the prosecutor made the initial
crucial to the defense's investigations of his alibi
request to restrict defendant's phone access, we
and other aspects of the case, including his life
find no error in the trial court's ordering a
history in preparation for a possible penalty phase.
complete restriction of defendant's telephone
But he fails to show that he was unable to provide
838
439 access. *439 Initial evidence *838 indicated that
this input during personal visits from trial counsel,
defendant had used the jail telephones to arrange
and fails to indicate any area of the defense's
the murder of a prosecution witness, and the
investigation of the case that was inadequate
prosecutor subsequently discovered evidence that
because of his lack of telephone communication
defendant's attorney or his investigator had been in
with his attorney during the period in question.
communication with the individual suspected of
551 *551 B. Continuance of the Preliminary Hearing
carrying out that murder.31 Under these
circumstances, a blanket restriction of defendant's Defendant contends that his right to a speedy
phone access was justified for at least the limited preliminary hearing was violated because the trial
period between the March 23, 1994 order and the court continued the date of the preliminary hearing
April 15, 1994 hearing at which the court took up over defendant's objections. As discussed below,
its continuing status. At that hearing, the court the court did not violate defendant's statutory
asked defense counsel to address the issue of rights concerning his preliminary hearing. Even if
whether the restriction should be modified after it had, defendant fails to show any prejudice.
the limited period, and defense counsel asked that
the court take the issue off calendar in favor of
1. Background
defense counsel's working out an agreement with Defendant entered a not guilty plea to the
the prosecutor. Defendant therefore forfeited the amended complaint on April 15, 1994, and
issue of the restriction on defendant's telephone requested that his preliminary hearing be set for
access from the period of April 15, 1994, until April 28. On April 28, on the motion of
March 10, 1995, when defense counsel again codefendant Yancey, and over the objection of
raised the issue and sought modification of the defendant, the trial court ordered the continuance
order. of both Yancey's and defendant's preliminary
hearings to June 30, 1994 for good cause under
31 At the penalty retrial, the prosecution
section 1050.1. On June 29, 1994, the prosecutor
introduced charts showing three-way
filed the second amended complaint, to which
phone calls from Yancey's apartment to the
defendant also pleaded not guilty. Yancey's
phone in the Orange County jail used by
counsel also requested another continuance based
defendant and to Earley's law offices.
on the need to review additional discovery
material that the prosecutor had disclosed in
13
connection with the second amended complaint. complaint if the preliminary examination is set or
Again, over defendant's objection, the court found continued more than 60 days from the date of the
good cause for the continuance and continued the arraignment [or] plea ..., unless the defendant
matter for both codefendants to July 13. On July personally waives his or her right to a preliminary
440 13, both defense counsel *440 agreed to a examination within the 60 days.” (§ 859b, subd.
continuance to July 18, when the preliminary (b).) Defendant contends that section 859b was
hearing commenced. violated because he entered a not guilty plea on
April 15, 1994, and the preliminary hearing started
2. Analysis 94 days later, on July 18, 1994. But he fails to
Defendant now contends that the trial court's address whether his not guilty plea to the second
granting of the first continuance on April 28, 1994 amended complaint on June 29, 1994 reset the 60–
violated his statutory right under section 859b. day period under section 859b. If so, defendant's
Section 859b provides that a criminal defendant July 18, 1994 preliminary hearing, which
has a right to a preliminary hearing within 10 commenced 19 days later, was timely under the
court days of the arraignment or plea, unless the 60–day rule. Nonetheless, we need not resolve this
parties waive this right or the court finds good apparently still-undecided issue of California law.
cause to continue the preliminary hearing under (See Ramos v. Superior Court (2007) 146
section 1050. (Landrum v. Superior Court (1981) Cal.App.4th 719, 724, fn. 3, 53 Cal.Rptr.3d 189
30 Cal.3d 1, 5, 177 Cal.Rptr. 325, 634 P.2d 352.) (Ramos ) [deferring the question of whether an
839 Under section 1050, a “trial court *839 has broad arraignment on an amended felony complaint
discretion to determine whether good cause starts a new 60–day period under section 859b ].)
exists,” and we review its decision on the motion This new argument is forfeited both because
for abuse of discretion. (people v. jenkins (2000) defendant failed to raise it in the opening brief
22 cal.4th 900, 1037, 95 cal.rptr.2d 377, 997 P.2d (People v. Tully (2012) 54 Cal.4th 952, 1075, 145
1044.) Section 1050.1 provides that, “[i]n any case Cal.Rptr.3d 146, 282 P.3d 173 ) and because he
in which two or more defendants are jointly failed to object below. Moreover, even if he had
charged in the same complaint” and the magistrate preserved the claim, defendant shows no prejudice
finds good cause to continue the preliminary from the delay. (People v. Pompa–Ortiz (1980) 27
hearing regarding one defendant, the continuance Cal.3d 519, 529–530, 165 Cal.Rptr. 851, 612 P.2d
constitutes “good cause to continue the remaining 941.)
defendants' cases so as to maintain joinder.” (§
Defendant contends, citing Ramos, supra, 146
1050.1 ; Tapia v. Superior Court (1991) 53 Cal.3d
Cal.App.4th at page 737, 53 Cal.Rptr.3d 189, that
282, 299, 279 Cal.Rptr. 592, 807 P.2d 434.) At the
violation of the 60–day rule does not require a
April 28 hearing, the court found good cause to
showing of prejudice. To the extent the Ramos
continue the preliminary hearing for Yancey
court correctly concluded a defendant need not
because her counsel requested additional time to
show prejudice, that case involved circumstances
552 review the large amount of *552 discovery recently
where the defendant objected to the delay and
disclosed by the prosecutor. This, in turn,
sought a pretrial writ to dismiss the information.
established good cause to continue defendant's
Here, defendant did not object; moreover, he
preliminary hearing for the purpose of maintaining
441 raises the *441 issue for the first time on appeal.
joinder. We therefore conclude that the court did
As we stated in People v. Pompa–Ortiz, supra, 27
not abuse its discretion.
Cal.3d at page 529, 165 Cal.Rptr. 851, 612 P.2d
In his reply brief, defendant raises an additional 941, “[t]he presence of a jurisdictional defect
argument. He notes that section 859b also which would entitle a defendant to a writ of
provides that the “magistrate shall dismiss the
14
prohibition prior to trial does not necessarily defendant's trial was proper under statutory law
deprive a trial court of the legal power to try the and did not violate defendant's vicinage rights
case if prohibition is not sought.” We further under the federal and state Constitutions.
stated that non-jurisdictional irregularities in
Venue and vicinage are distinct. Venue concerns
preliminary examination procedures do not require
the location where the trial is held; vicinage refers
reversal unless the defendant establishes that he or
to an area from which the jury pool is drawn.
she was deprived of a fair trial or otherwise
(Price v. Superior Court (2001) 25 Cal.4th 1046,
suffered prejudice as a result. (Ibid. ) A denial of a
1054, 108 Cal.Rptr.2d 409, 25 P.3d 618.)
defendant's right to trial within a prescribed
Defendant's contentions implicate both venue and
statutory time period falls within this class of
vicinage because he contends that the venue of his
irregularities that are not jurisdictional in the
trial, Orange County, was statutorily improper and
fundamental sense and which, therefore, require a
that the racial composition of the jury pool of
showing of prejudice. (Ibid. ) The same analysis
Orange County violated his vicinage rights
applies to a violation of the 60–day rule in section
because there were fewer jurors of defendant's
553 859b.*553 In the alternative, defendant contends
race (African–American) in Orange County than
that, because his trial was severed from that of
in Los Angeles County (where defendant contends
codefendant Yancey after the preliminary hearing,
venue was proper).
and because the strategy and tactics in preparing
for a joint trial are different than that of preparing Under section 790, the proper venue for a murder
for a single trial, he ended up with less time to trial lies in the county where the fatal injury was
prepare for trial as a single defendant. Defendant inflicted, where the victim died, or where the
bases this contention on the assumption that the victim's body was discovered. But under section
severance with Yancey would have occurred 781, venue is also proper in the county where “the
earlier if the preliminary hearing had occurred defendant made preparations for the crime.”
earlier. Even assuming for the sake of argument (People v. Price (1991) 1 Cal.4th 324, 385, 3
840 *840 that this is so, defendant points to no specific Cal.Rptr.2d 106, 821 P.2d 610.) “The long-
issue at his trial that he would have presented standing former rule was that venue presented a
differently and thus fails to make a showing of question of fact and was thus for the jury to
prejudice. decide.” (4 Witkin & Epstein, Cal.Criminal Law
(4th ed. 2012) Jurisdiction and Venue, § 65, p. 179
C. Asserted Violations of Venue and Vicinage
[citing cases].) Ten years after the completion of
Rights
defendant's trial, we rejected that rule in favor of
Defendant contends that his venue and vicinage 442 the new rule that venue is a question of *442 law to
rights under the United States Constitution, the be determined by the trial court. (People v. Posey
California Constitution, and California statutes (2004) 32 Cal.4th 193, 215, 8 Cal.Rptr.3d 551, 82
were violated because he was tried in Orange 554 P.3d 755 (Posey ).) Following *554 People v.
County for the Williams murder, which took place Simon (2001) 25 Cal.4th 1082, 1086–1087, 108
in Los Angeles County. Defendant raised a Cal.Rptr.2d 385, 25 P.3d 598 (Simon ), Posey , at
vicinage claim as one of several claims in an page 200, set forth a prospective rule that a
unsuccessful motion to dismiss the indictment defendant must raise a claim of improper venue to
under section 995. He raised the vicinage claim the court prior to the commencement of trial.
again during pretrial motions, and the trial court Since defendant's case was not final at the time of
rejected it. As we conclude below, the venue of the new rules set forth in Simon and Posey, these
new rules do not apply to him.
15
Defendant could have proceeded under the defendant conspired with Yancey to have Williams
authority at that time and submitted the issue of murdered. Venue in Orange County was therefore
venue to the jury. Instead he elected to challenge proper for the Williams murder under section 781
venue in front of the trial court before the because it was the county in which defendant
commencement of trial (a procedure that would made preparations for the crime.
become the exclusive method for deciding the
Defendant's vicinage claim also falters. His rights
issue after Posey. ) The burden of proof for proper
under the United States and California
venue remains unchanged—it rests with the
Constitutions, we conclude, were not violated. The
prosecutor and must be proved by a
555 *555 vicinage clause of the Sixth Amendment32
preponderance of the evidence. (4 Witkin &
has not been incorporated by the Fourteenth
Epstein, Cal.Criminal Law, supra, Jurisdiction and
Amendment to apply in a state criminal trial.
Venue, §§ 66–67, pp. 181–182 [citing cases].)
(price v. superior court, supra, 25 cal.4th at pp.
Either direct or circumstantial evidence may
1063–1069, 108 Cal.Rptr.2d 409, 25 P.3d 618.)
suffice. (4 Witkin & Epstein, § 67, p. 181.)
For vicinage rights under the state Constitution,
Whether we review the sufficiency of the evidence
“the vicinage right implied in article I, section 16
in light of the court's decision or in light of the
of the California Constitution ... constitutes simply
possible decision of a hypothetical jury to whom
443 the right *443 of an accused to a trial by an
defendant could have submitted the issue, the
impartial jury drawn from a place bearing some
result is therefore the same. The evidence
reasonable relationship to the crime in question.”
presented by the prosecutor was sufficient to
(Posey, supra, 32 Cal.4th at p. 222, 8 Cal.Rptr.3d
prove, by a preponderance of the evidence, that
551, 82 P.3d 755, citation omitted.) Defendant
Orange County was an appropriate place for the
contends that, at the time of defendant's trial,
trial under section 781. (Posey, supra, 32 Cal.4th
African–Americans comprised 21.5 percent of
at pp. 220–221, 8 Cal.Rptr.3d 551, 82 P.3d 755.)
potential jurors in Compton, the superior court
The evidence establishes numerous visits and judicial district of Los Angeles for Gardena, where
phone calls between defendant and Yancey while the Williams murder was committed, but
defendant—in the months before Williams's comprised only 1.77 percent of the potential jurors
murder—was incarcerated in the Orange County of Orange County, where the trial occurred. The
Jail. A reasonable conclusion from this evidence is prosecutor below stipulated to the truth of
that it was during this period that the two planned defendant's statistical breakdown of the racial
for Yancey to lure Williams to her death. composition of the jury pools in Compton and
Defendant objects that the evidence of Yancey's Orange County. But the prosecutor pointed out
visits and phone calls was not sufficient to support that defendant failed to produce any authority that
841 the *841 conclusion that defendant and Yancey the vicinage right under the state Constitution
conspired to kill Williams because this evidence is gives rise to a defendant's right to have a trial
circumstantial—not direct—evidence of moved to a county that has a greater percentage of
defendant's guilt. Defendant protests that there jurors with the same race as that of the defendant.
was no direct proof of what was discussed during On appeal, defendant likewise fails to produce any
those visits or phone calls. But the evidence authority for this position. To the contrary:
supporting venue can be either direct or because venue was proper in Orange County
circumstantial. In combination with the totality of under section 781, as the place where preparations
incriminating evidence in the case, the visits and for the crime were committed, the place of trial
phone calls were compelling circumstantial did bear “some reasonable relationship to the
evidence that it was within Orange County that crime in question” and therefore satisfied the
16
implied vicinage requirement of the California darker than that shown in the photograph; and that
Constitution. (Posey, at p. 222, 8 Cal.Rptr.3d 551, he should pay no attention to whether the photos
82 P.3d 755.) were in color or black and white or to any other
32 “In all criminal prosecutions, the accused
difference in the type or style of the
photographs.33 The first photographic group
shall enjoy the right to a speedy and public
trial, by an impartial jury of the state and included a photograph of defendant's brother Eric
district wherein the crime shall have been and photographs of five other men. The second
committed, which district shall have photographic group contained a photograph of
previously been ascertained by law ....” defendant and photographs of five other men. The
(U.S. Const. 6th Amend., italics added.) third photographic group contained a photograph
444 of Ervin (the shooter *444 in the CompUSA
murder) and photographs of five other men.
D. Asserted Unduly Suggestive Identification of
33 All the photographs shown to Weaver were
Defendant by Weaver
in color. As discussed below, defendant
Weaver identified defendant to police contends that variations in the background
investigators as being present at the CompUSA color of the photographs were unduly
murder through a pretrial photographic array. suggestive.
Defendant unsuccessfully made a pretrial motion

to exclude admission of the identification on the
ground that the photographic array was unduly Eric is a dark-complexioned African–American
suggestive. Defendant contends the trial court man, as were the five other men in his
erred and that Weaver's in-court identification was photographic array card. Defendant, however, is a
tainted due to the photographic array. As we light-complexioned African–American man, and
conclude below, the court did not err in denying the five other men in his photographic group were
defendant's pretrial motion. And because the apparently White, Hispanic, or of mixed race.34
pretrial photographic array was not unduly Ervin is a dark-complexioned African–American
suggestive, Weaver's in-court identification of man, as were the five other men in his
defendant was not tainted. photographic group. Weaver identified Eric from
the first photographic array card and defendant
1. Background from the second, but he did not identify anyone
According to Weaver's testimony, he met from the third.
defendant in the CompUSA parking lot on the 34 Evidence at the penalty phase established
night of the CompUSA murder. Inspector Grasso that defendant and Eric were half brothers,
556 testified *556 that, at a hearing on defendant's with the same father but different mothers.
pretrial motion to suppress that about eight months The trial court observed that it did not find
after the CompUSA murder, he showed Weaver much family resemblance between the two
three photographic array cards. Each photographic brothers.
array card contained six photographs. Grasso gave
Weaver a lengthy admonition that instructed him,
among other things, that he did not have to At trial, during his direct examination by the
identify anyone (because it was just as important prosecutor, Weaver made an in-court identification
842 to free innocent persons from *842 suspicion as it of defendant. In recounting his interviews with the
was to identify those who were guilty); that police during the investigation and his pretrial
photographs do not always depict the true identification of defendant through the
complexion of a person, which might be lighter or
17
photographic array, he was again shown the because defendant was the only African–
pretrial photographic array card, from which he American man in it. But, as the prosecution argued
also identified defendant. below, the races of the five other men in the
photographic array card were never established.
2. Analysis Like defendant, the five other men were similarly
In determining whether a defendant's right to due complexioned, had dark hair, and had mustaches.
process is violated by the admission of As the trial court remarked, defendant's “racial
identification evidence, we consider “(1) whether characteristics are not outstandingly apparent.”
the identification procedure was unduly suggestive Indeed, defendant's substantial mustache, almost a
and unnecessary, and, if so, (2) whether the handlebar, was his most distinctive feature. In
identification itself was nevertheless reliable under 445
843 preparing the photographic *843 array, *445 the
the totality of the circumstances.” (People v. police were faced with matching at least three
Kennedy (2005) 36 Cal.4th 595, 608, 31 relevant features of defendant's appearance—his
Cal.Rptr.3d 160, 115 P.3d 472.) A claim that an complexion, his prominent mustache, and his
557 identification procedure was *557 unduly apparent racial or ethnic identity. The police here
suggestive raises a mixed question of law and fact did an admirable job of matching complexion and
to which we apply a standard of independent mustaches. But apparent racial or ethnic identity is
review, although we review the determination of something that is harder to quantify and agree on,
historical facts regarding the procedure under a so opinions in this area can vary.
deferential standard. (Id. at p. 609, 31 Cal.Rptr.3d
The additional factor here is that Weaver knew
160, 115 P.3d 472.)
that his teammate Eric Clark, defendant's brother,
Defendant contends that the background color of was African–American. Given this, Weaver may
the photographs of defendant and his brother was have (correctly) assumed that defendant, as Eric's
darker than the background color of the other brother, was also African–American. and been
photographs. Examining the array cards, we note primed to look for a photograph of an African–
that the background colors of the photographs of American on the card, or, conversely, to reject out
defendant and his brother are a slightly darker of hand a photograph of someone of another race.
shade of gray. But this difference did not render
But we need not decide the issue here because,
the photographic lineup unduly suggestive,
even if we assume for the sake of argument that
particularly in light of the express admonition
the photographic array was unduly suggestive in
given to Weaver that he should pay no attention to
regard to apparent racial or ethnic identity, we
whether the photos were in color, in black and
conclude that the pretrial identification was
white, or to any other difference in the type or
“nevertheless reliable under the totality of the
style of the photographs. We have previously
558 circumstances.” *558 (People v. Cunningham
rejected claims that photographic arrays were
(2001) 25 Cal.4th 926, 989, 108 Cal.Rptr.2d 291,
unduly suggestive based on minor variations in
25 P.3d 519.) In making this determination we
background color or discoloration of the
take into account “such factors as the opportunity
photograph. (People v. Johnson (1992) 3 Cal.4th
of the witness to view the suspect at the time of
1183, 1217, 14 Cal.Rptr.2d 702, 842 P.2d 1 ;
the offense, the witness's degree of attention at the
People v. Gonzalez (2006) 38 Cal.4th 932, 943, 44
time of the offense, the accuracy of his or her prior
Cal.Rptr.3d 237, 135 P.3d 649.)
description of the suspect, the level of certainty
Defense counsel asserted below, and defendant demonstrated at the time of the identification, and
renews on appeal, the argument that defendant's the lapse of time between the offense and the
photographic array card was unduly suggestive identification.” (Ibid. ) Weaver certainly had a
18
meaningful opportunity to closely observe Garrett refused to even be sworn as a witness at

defendant during their extended contact on the 446 the preliminary hearing. Before *446 Garrett was
night of the CompUSA murder, including both a brought to the courtroom, his counsel stated that
face-to-face meeting in the parking lot and being he believed that Garrett had a Fifth Amendment
in the passenger seat while defendant drove right to remain silent if asked any questions about
towards and later made a quick getaway from the the murder of Williams. Garrett's counsel also
computer store. That Weaver was a passenger in acknowledged that he did not “know if we'll ever
defendant's car as defendant engaged in a high- get there because ... [Garrett] doesn't even want to
speed escape from police cars with their signals be in the courtroom.” Garrett had asked counsel
flashing also supports the inference that Weaver 559 “to *559 inform the court that he's not going to say
was focused on defendant during such a a word.” Garrett's counsel contended that Garrett
memorable event. could invoke his Fifth Amendment privilege on
the grounds that his phone call to Williams could
E. Asserted Unconstitutional Coercion of Alonzo
be interpreted as an attempt to dissuade a witness.
Garrett
The prosecutor's position was that the burden was
Prosecution witness Alonzo Garrett refused to take on the witness for taking the Fifth Amendment
the oath at defendant's preliminary hearing and 844 and that the prosecution should *844 at least be
was held in contempt of court. But he later allowed to ask the witness questions before he
testified at defendant's trial. Defendant contends could assert the privilege.
that Garrett's trial testimony was coerced and
Garrett was then brought before the trial court and
unreliable because Garrett had been held in
refused to speak. After twice instructing Garrett,
contempt for refusing to take the oath at the
in the face of his continued silence, to take the
preliminary hearing. But as we explain below,
oath, the court informed him that he could be
defendant fails to show that Garrett's trial
found in contempt of court under section 166,
testimony was made unreliable by coercion.
subdivision (a)(6), which provides that an
1. Background unlawful refusal of any person to be sworn as a
witness constitutes a misdemeanor. When Garrett
At the preliminary hearing, the prosecution called
continued to refuse to take the oath, the court
Garrett as a witness. As Garrett had previously
found that he had unlawfully refused to be sworn
told the authorities and later testified at
as a witness and found him in contempt. The court
defendant's trial (recounted, ante 203 Cal.Rptr.3d
committed him to custody “until such time as he
at pages 431 to 432, 372 P.3d at pages 831 to 832),
can purge himself of contempt by taking the oath
Garrett was a fellow prisoner with defendant at the
as a witness.” Garrett never agreed to return to
Orange County jail and knew Ardell Williams.
court as a witness at the preliminary hearing. He
Defendant had shown Garrett transcripts of
pleaded guilty to the contempt charges and was
Williams's grand jury testimony and stated, “
sentenced to one additional year to be served
‘Hey, this is the woman right here that could put
consecutively to the 25–year sentence he was
me away.’ ” Concerned that Williams was
already serving.
involved in a dangerous situation because she was
“snitching,” Garrett later phoned Williams, who But almost two years later, when the prosecution
admitted that she was the key witness in called Garrett to testify at defendant's trial, he
defendant's case but assured him that there was agreed to testify. As part of his testimony, Garrett
nothing to worry about. acknowledged that he had refused to testify at the
preliminary hearing. But he stated that he was
testifying at defendant's trial for a number of
19
reasons: (1) the prosecutor persisted in bringing now agreeing to testify was that he did not want to
Garrett to court to testify; (2) Garrett did not want be held in contempt again and accrue additional
to accrue any additional prison time by being held prison time. Under these circumstances, though,
in contempt of court again for refusing to testify; Garrett was no more “coerced” than is any witness
and (3) he had “finally gotten over” the anger he at trial who is subject to compulsory process and
had before the preliminary hearing, when he called to testify. Furthermore, an analysis of the
refused to testify. immediate circumstances surrounding Garrett's
testimony at defendant's trial shows that Garrett
2. Analysis was not coerced when he testified there. Whether
Defendant contends that Garrett's Fifth or not he had properly invoked his privilege
Amendment right against self-incrimination was against self-incrimination at the preliminary
violated at the preliminary hearing when the trial hearing by refusing even to be sworn, he took the
court found him in contempt of court for refusing oath at defendant's trial and would have been able
to testify. Respondent counters that Garrett failed to invoke his privilege against self-incrimination
to properly invoke his privilege against self- when being questioned if he chose to do so. He
incrimination at the preliminary hearing and that, did not. Defendant points to the fact that Garrett's
even if Garrett had made a proper invocation, his attorney was not present when he testified at
claim would have failed because Garrett's defendant's trial as indicating that he would have
testimony would not have been incriminating to not believed that he could successfully assert his
him. But we need not evaluate the substantive Fifth Amendment privilege. But before he testified
legal issues surrounding Garrett's constitutional 845 in front of the jury, the trial court *845 held a
rights. Even if his Fifth Amendment rights were colloquy with Garrett in which he stated that he
violated at the preliminary hearing, such an error was agreeing to proceed with his testimony even
alone does not provide a basis for excluding his though his attorney was not present and that his
trial testimony. Defendant has no standing to raise decision to do so was uncoerced and voluntary.
a claim involving an alleged violation of Garrett's Defendant also points to Garrett's statement to the
Fifth Amendment privilege. (People v. Jenkins, court and the parties, outside the presence of the
supra, 22 Cal.4th at p. 965, 95 Cal.Rptr.2d 377, jury, that Garrett had heard rumors that if he did
560 997 P.2d 1044.) *560 The issue in this appeal is not testify he would “find [himself] somewhere in
whether the circumstances of Garrett's testimony Pelican Bay,” the state's supermaximum security
impacted defendant's constitutional rights. prison. But outside the presence of the jury, the
prosecutor told him, “I want you to know before
Defendant can raise a claim that the admission of
the jury is brought in, that, as a representative of
Garrett's allegedly coerced testimony rendered
the District Attorney's office, I am telling you that
defendant's trial fundamentally unfair. (People v.
there is not going to be a recommendation from
Jenkins, supra, 22 Cal.4th at p. 966, 95
the District Attorney's office to send you to
447 Cal.Rptr.2d 377, 997 P.2d 1044.) But he can *447
Pelican Bay.” Defendant therefore fails to show
succeed only if he demonstrates “fundamental
that Garrett was threatened with retaliation that
unfairness at trial,” usually by establishing that the
would have rendered his testimony unreliable.
evidence was made unreliable by coercion. (Ibid. )
Defendant fails to do so. Considering Garrett's testimony in light of the
wider circumstances also indicates that coercion
What defendant contends is that Garrett's
did not render his testimony unreliable. First, any
testimony was coerced because Garrett had been
pressure that was exerted on Garrett was for him
previously held in contempt for refusing to testify
to testify, not for him to testify in a particular
and he stated that one of the reasons that he was
20
manner. Defendant fails to show that there was at page 432, 372 P.3d at page 832, the prosecutor
any pressure on Garrett to testify in a way that presented evidence of the delivery of flowers to
561 helped the prosecutor and hurt the *561 defense. Williams's home on February 10, 1994 and a
Along these lines, defendant fails to show that subsequent series of phone calls where a woman
Garrett had something to gain personally by identifying herself as “Janet Jackson” arranged a
testifying against defendant. Indeed, defendant “job interview” for Williams, resulting in her
acknowledges that, in Garrett's testimony, he murder. Defendant contends insufficient evidence
“demonstrated that he cared only about avoiding was presented to support a prima facie case of the
additional jail time and his own ‘snitch’ status.” existence of the conspiracy under Evidence Code
Defendant concludes that this shows that “Garrett section 1223 to allow the admission of Yancey's
therefore clearly did not have appellant's interests statements under the coconspirator exception to
in mind when he testified, nor should he have.” the hearsay rule.
But by the same reasoning, Garrett did not have a
Respondent contends that no objection was made
motivation to skew his testimony against
at trial, thus forfeiting this claim on appeal.
defendant either. Second, the fact that Garrett gave
Defendant responds that, at the preliminary
the same account of his jailhouse discussion with
hearing, defense counsel raised an objection under
defendant before the allegedly coercive events at
Evidence Code section 1223, which was rejected,
the preliminary hearing further undercuts the
to the admission of Yancey's statements. We agree
claim that the events at the preliminary hearing
with respondent that the claim is forfeited for
rendered his trial testimony unreliable.35 Finally,
failure to raise it below. Defendant fails to provide
448 the jury heard Garrett's *448 own account that he
any authority that an objection at a preliminary
was now testifying at defendant's trial, at least in
hearing is sufficient to preserve the issue at trial
part, because he had previously been held in
and on appeal. Defendant is also unconvincing in
contempt. The jury could therefore evaluate his
his argument that raising the hearsay issue again at
testimony in light of that fact. In conclusion,
562 trial *562 would have been futile. The absence of
because defendant has not met his burden of
an objection deprived the prosecutor and the court
showing that Garrett's testimony was unreliable as
846 the opportunity to identify which statements *846
a result of coercion, defendant fails to show that
were actually hearsay and which were not, and, for
the admission of the testimony rendered his trial
the hearsay ones, to assess the exceptions under
fundamentally unfair.
which they might be admissible. For example,
35 As described above, shortly after Garrett's many, if not most, of the statements Yancey made
conversation with defendant about in posing as “Carolyn,” the flower delivery girl,
Williams, Garrett described it in a phone and as “Janet Jackson” were lies and part of a
call to a friend. This phone call was scheme of deception to lure Williams to her death.
recorded by prison authorities and the tape Thus, these statements were not offered for the
was played to the jury at defendant's trial.
truth of the matters asserted, but for the effect they
had on Williams. “[A]n out-of-court statement can
be admitted for the nonhearsay purpose of
F. Admission of Conversations Between “Janet
showing that it imparted certain information to the
Jackson” and Members of the Williams Family
hearer, and that the hearer, believing such
Defendant contends the trial court erred in information to be true, acted in conformity with
admitting Yancey's statements under the Evidence such belief.” (People v. Montes (2014) 58 Cal.4th
Code section 1223 coconspirator exception to the 809, 863, 169 Cal.Rptr.3d 279, 320 P.3d 729.) On
hearsay rule. As recounted, ante, 203 Cal.Rptr.3d the other hand, some parts of Yancey's statements
21
to Williams, like the date and time of the job In this case, the prosecution presented sufficient
interview to which Williams was lured, arguably independent evidence from which the trial court
were meant to be used for the truth of the matter could have found a conspiracy between defendant
asserted. But because there were no hearsay and Yancey to kill Williams. Williams's grand jury
objections at trial to Yancey's statements generally, testimony, in which she described her knowledge
let alone objections to specific statements, the of defendant's involvement with the CompUSA
court was deprived of the opportunity to rule on 563 *563 murder and her subsequent cooperation with
these issues. the police, was evidence pointing to defendant's
motive to have her murdered to prevent her from
Even if we considered this claim on the merits, we
testifying at his trial.36 Garrett testified about
would conclude that Yancey's statements were
defendant's awareness that Williams was a
properly admitted under Evidence Code section
damaging witness by recounting defendant's
1223. Under Evidence Code section 1223, three
remark that “this is the woman right here that
preliminary facts must be established for evidence
could put me away.” Yancey's relationship with
of a coconspirator's declaration to be admissible:
defendant in the period leading up to the Williams
(1) that the declarant was participating in the
murder (Jan. through Mar. 1994) was established
conspiracy in question at the time of the
through evidence of her phone records indicating
declaration, (2) that the declaration furthered or
numerous calls to defendant's attorney and
449 *449 was meant to further the conspiracy's
investigator, a pay phone in the Orange County
objective, and (3) that the party against whom the
Jail accessible to Clark, and to Williams's home.
evidence is offered was—at the time of the
During a search of Yancey's apartment, police
declaration—participating in the conspiracy, or
recovered numerous letters between Yancey and
would later participate in it. (People v. Leach
defendant.
(1975) 15 Cal.3d 419, 430–431, fn. 10, 124
Cal.Rptr. 752, 541 P.2d 296 ; see also People v. 36 Defendant's contention that the grand jury
Hardy (1992) 2 Cal.4th 86, 139, 5 Cal.Rptr.2d testimony of Williams was itself
796, 825 P.2d 781.) The party offering the inadmissible is analyzed and rejected on
coconspirator statements is required to present pages 53 to 57, post.
“independent evidence to establish prima facie the

existence of ... [a] conspiracy.” (People v. Leach,
supra, 15 Cal.3d at p. 430, 124 Cal.Rptr. 752, 541 Moreover, considerable evidence established that
P.2d 296.) As we have stated in the context of Yancey was the woman who delivered the flowers
establishing criminal liability for a conspiracy, to the Williams's household and who represented
“[e]vidence is sufficient to prove a conspiracy to herself as “Janet Jackson” in the phone
commit a crime ‘if it supports an inference that the conversations with Williams's mother. In a voice
parties positively or tacitly came to a mutual lineup, Williams's mother and sister identified
understanding to commit a crime. [Citation.] The Yancey's voice as that of “Janet Jackson.” They
847 *847 also identified Yancey in a photo lineup as
existence of a conspiracy may be inferred from the
conduct, relationship, interests, and activities of the person who delivered the flowers. One of
the alleged conspirators before and during the Yancey's fingerprints was found on the box in
alleged conspiracy.’ ” (People v. Rodrigues (1994) which the flowers were delivered.
8 Cal.4th 1060, 1135, 36 Cal.Rptr.2d 235, 885 Defendant also raises questions about the evidence
P.2d 1.) showing that Yancey was the flower delivery girl
and the “Janet Jackson” of the phone calls. He
contends that “this evidence is meaningless in the
22
absence of what was said during the Janet Jackson significantly less likely to be testimonial than
calls or flower delivery” because “the prima facie statements given to law enforcement officers.” (Id.
finding of the conspiracy must be made in the at p. 2182.)37
absence of those statements.” In making this
37 Furthermore, Crawford states, in dicta that
argument, defendant presupposes that the only
the high court has yet to apply in a case,
basis for admitting any of Yancey's statements was
that historically, statements in furtherance
through Evidence Code section 1223, the of a conspiracy present an example of
coconspirator hearsay exception. But defendant “statements that by their nature were not
fails to appreciate the point, discussed above, that testimonial,” and which therefore do not
many, if not most, of Yancey's statements were implicate the confrontation clause.
also admissible as nonhearsay. Thus, the trial court (Crawford, supra, 541 U.S. at p. 56, 124
admitted the statements independent of the S.Ct. 1354.)
450 requirements of the coconspirator hearsay *450
exception. As independent evidence, these
statements supported the inference that Yancey III. Jury Selection Issues
was involved in a conspiracy with defendant to
A. Asserted Witt Error
kill Williams.
Defendant contends that various prospective and
Finally, defendant contends that the admission of
serving jurors were erroneously included or
the statements under the coconspirator exception
excluded by trial court rulings on prosecution and
to the hearsay rule violated his right to
defense motions to exclude prospective jurors for
confrontation under the Sixth Amendment to the
cause based on their views of the death penalty
United States Constitution as it has subsequently
under Wainwright v. Witt (1985) 469 U.S. 412, 105
been defined in Crawford v. Washington (2004)
S.Ct. 844, 83 L.Ed.2d 841 (Witt ). We reject all of
541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177
defendant's Witt claims.
(Crawford ). Defendant failed to raise a
confrontation clause objection at trial. But because The federal constitutional standard for excusing a
defendant's trial occurred before the decision in prospective juror for cause based on his or her
Crawford, he has not forfeited his Crawford views of capital punishment is whether “the juror's
challenge. (People v. Rangel (2016) 62 Cal.4th views would ‘prevent or substantially impair the
1192, 1215–1216, 200 Cal.Rptr.3d 265, 367 P.3d performance of his duties as a juror in accordance
649.) Defendant's claim nonetheless fails on the with his instructions and his oath.’ ” (Witt, supra,
564 merits because he *564 fails to show how Yancey's 469 U.S. at p. 424, 105 S.Ct. 844, fn. omitted.)
statements to Williams and her family were Applying Witt, we have stated that a prospective
“testimonial” under Crawford. The high court has juror “is properly excluded if he or she is unable to
left open the possibility that statements to conscientiously consider all of the sentencing
individuals who are not law enforcement officers alternatives, including the death penalty where
may, in certain circumstances, qualify as appropriate.” (People v. Rodrigues, supra, 8
testimonial. (Ohio v. Clark (2015) 576 U.S. ––––, Cal.4th at p. 1146, 36 Cal.Rptr.2d 235, 885 P.2d
135 S.Ct. 2173, 2181, 192 L.Ed.2d 306.) It has 1.) “On appeal, we will uphold the trial court's
also noted, however, that “statements made to ruling if it is fairly supported by the record,” and
someone who is not principally charged with we accept “as binding the trial court's
uncovering and prosecuting criminal behavior are determination as to the prospective juror's true
state of mind when the prospective juror has made
statements that are conflicting or ambiguous.”
(People v. Mayfield (1997) 14 Cal.4th 668, 727, 60
23
Cal.Rptr.2d 1, 928 P.2d 485.) “The same analysis therefore forfeited these claims. Contrary to
applies to claims involving erroneous juror defendant's assertions otherwise, a trial court has
848 exclusion or inclusion.” ( *848 People v. Hoyos no sua sponte duty to excuse jurors for their views
(2007) 41 Cal.4th 872, 905, 63 Cal.Rptr.3d 1, 162 on the death penalty. (People v. Taylor (2009) 47
P.3d 528.) Cal.4th 850, 884, 102 Cal.Rptr.3d 852, 220 P.3d
872.) As noted ante, to preserve a claim of error,
1. Erroneous Inclusion Claims the defendant must challenge the juror for cause,
Defendant contends the trial court erred in exercise a peremptory challenge, exhaust the
denying his challenges for cause against 12 available peremptory challenges, and express
451 prospective jurors. Respondent *451 contends dissatisfaction with the jury ultimately selected.
565 defendant has forfeited *565 these claims. “[A] (Ibid. ) Defendant, satisfying none of these
defendant challenging on appeal the denial of a requirements, has forfeited these claims.
challenge for cause must fulfill a trio of procedural
requirements: (1) the defense must exercise a 2. Erroneous Exclusion Claims
peremptory challenge to remove the juror in Defendant contends that the trial court erroneously
question; (2) the defense must exhaust all granted, over his objection, three of the
available peremptory challenges; and (3) the prosecutor's challenges for cause based on the
defense must express dissatisfaction with the jury prospective jurors' death penalty views. These
as finally constituted.” (People v. Weaver (2001) three prospective jurors, however, were at
26 Cal.4th 876, 910–911, 111 Cal.Rptr.2d 2, 29 defendant's first trial, where no death verdict was
P.3d 103.) Defendant acknowledges that he failed returned. As explained above, defendant cannot
to meet these requirements, to which there are no show any prejudice from a Witt error at his first
exceptions. He has therefore forfeited his claims. trial because no death verdict was returned at that
trial and any Witt error would not be reversible on
Even if these claims were not forfeited, defendant
566 the guilty verdict.*566 B. Batson/Wheeler
fails to show any possible prejudice. The 12
Challenge
prospective jurors defendant challenges are from
defendant's first trial in which the jury returned a Defense counsel brought a motion under Batson v.
guilt phase verdict but failed to return a penalty Kentucky (1986) 476 U.S. 79, 84–89, 106 S.Ct.
phase verdict. Witt error does not require reversal 1712, 90 L.Ed.2d 69 and People v. Wheeler (1978)
of a guilty verdict. (People v. Tate (2010) 49 22 Cal.3d 258, 276–277, 148 Cal.Rptr. 890, 583
Cal.4th 635, 666, 112 Cal.Rptr.3d 156, 234 P.3d P.2d 748 based on the prosecutor's use of a
428.) Therefore, even if a Witt violation occurred peremptory challenge against a Native American
for any of these jurors, defendant is not entitled to prospective juror. The trial court denied the
a reversal of his guilt phase conviction. motion, finding that defense counsel failed to
make a prima facie showing that the prosecutor
Defendant advances further Witt claims regarding
had exercised a peremptory challenge in a
five of the jurors who sat at his penalty retrial,
discriminatory manner. As discussed below, we
where the jury returned a sentence of death. But
conclude the trial court did not err in its ruling.
defendant acknowledges that he failed to meet the
procedural requirements for an erroneous 1. Background
inclusion claim. In fact, defendant acknowledges
The prosecutor exercised a peremptory challenge
that “[s]everal of these jurors were not challenged
against Prospective Juror P.M., to which defense
for cause by appellant's counsel.” And defendant
counsel objected on Batson/Wheeler grounds. The
does not identify where in the record trial counsel
452 trial court then *452 held a hearing outside the
challenged any of these jurors. Defendant
presence of the prospective jurors. Defense
24
counsel explained that he had brought the motion 2410. But, as we have held, “[r]egardless of the
because of the small number of minority standard employed by the trial court, and even
prospective jurors in the pool and stated: “I don't assuming without deciding that the trial court's
see anything in his questionnaire that would make decision is not entitled to deference, we have
him any different than any other member that's on reviewed the record and, like the United States
849 the jury. This is as vanilla *849 as you can get, this Supreme Court in Johnson ... [we] are able to
juror.” When defense counsel was asked to make apply the high court's standard and resolve the
his prima facie showing of discrimination, he legal question whether the record supports an
stated that P.M. had been one of the two minority inference that the prosecutor excused a juror on
prospective jurors in the jury box. Defense counsel the basis of race.” (People v. Cornwell (2005) 37
explained that there had been three minority Cal.4th 50, 73, 33 Cal.Rptr.3d 1, 117 P.3d 622,
prospective jurors: Prospective Juror C.T., whom citation omitted.)
the parties dismissed by stipulation; juror number
Defendant contends that the trial court erred in
9, a Hispanic woman, who was currently in the
denying the motion because the court at one point
jury box; and P.M., whom the prosecutor had
referred to “no prima facie showing of pattern.”
dismissed. P.M. self-identified as “American
Defendant points to the United States Supreme
Indian” in his jury questionnaire. The prosecutor
Court's statement that even “ ‘ “a single
responded that defense counsel had not made a
invidiously discriminatory governmental act” is
prima facie case, and the prosecution would not
not “immunized by the absence of such
indicate its reasons for the peremptory challenge
discrimination in the making of other comparable
unless the court made such a finding. The court
decisions.” ’ ” (Johnson v. California, supra, 545
denied the motion, finding that the defense had not
U.S. at p. 169, fn. 5, 125 S.Ct. 2410.) But the
made a prima facie showing of discrimination.
court merely referred to defendant's failure to
2. Analysis make a prima facie showing of discrimination on
the grounds that defendant himself raised in
We follow a familiar three-step analysis in
explaining his basis for the motion, which was
considering a Batson/Wheeler motion: (1) a
based on pattern—namely the fact that P.M. was
defendant must make a prima facie case by
one of two minority jurors in the jury box at the
demonstrating that the totality of the relevant facts
time that the prosecutor excused him. The court
establishes an inference of discriminatory purpose;
did not state that only evidence of a pattern of
(2) if the defendant makes a prima facie case, the
improper challenges could establish a prima facie
prosecutor bears the burden of adequately
showing of a violation. As we have stated, “To be
explaining the exclusion with permissible race-
sure, the ultimate issue to be addressed on a
neutral justifications; and (3) if the prosecutor
453 Wheeler–Batson *453 motion ‘is not whether there
offers a race-neutral explanation, the trial court
is a pattern of systematic exclusion; rather, the
must decide whether the defendant has proved
issue is whether a particular prospective juror has
purposeful racial discrimination. (Johnson v.
been challenged because of group bias.’ [Citation.]
California (2005) 545 U.S. 162, 168, 125 S.Ct.
But in drawing an inference of discrimination
2410, 162 L.Ed.2d 129, fn. omitted.)
from the fact one party has excused ‘most or all’
Defendant argues that we should presume the trial members of a cognizable group [citation], a court
court applied the “strong likelihood” standard for finding a prima facie case is necessarily relying on
the first stage, which was controlling California an apparent pattern in the party's challenges.
567 law *567 before the United State Supreme Court's Although circumstances may be imagined in
articulation of the standard in Johnson v. which a prima facie case could be shown on the
California, supra, 545 U.S. at page 168, 125 S.Ct.
25
basis of a single excusal, in the ordinary case, court, there is no fit subject for comparison.
including this one, to make a prima facie case after Comparative juror analysis would be formless and
the excusal of only one or two members of a group unbounded.” (People v. Bell, supra, 40 Cal.4th at
is very difficult.” (People v. Bell (2007) 40 Cal.4th p. 601, 54 Cal.Rptr.3d 453, 151 P.3d 292.)
582, 598, fn. 3, 54 Cal.Rptr.3d 453, 151 P.3d 292.)
IV. Guilt Phase Issues
We agree with the trial court: defendant failed to
A. Exclusion of Defendant from the Immunity
make a prima facie case based on the excusal of
Proceedings of Prosecution Witnesses
this one Native American prospective juror.
Defense counsel below pointed to no Under the Fifth Amendment to the federal
circumstances beside an asserted pattern of Constitution, “a defendant is guaranteed the right
exclusion of minority prospective jurors in support to be present at any stage of the criminal
of his Batson/Wheeler motion. But one challenge proceeding ... critical to its outcome if his
850 is *850 not a pattern. The excusal of one minority presence would contribute to the fairness of the
juror was the result of a stipulation by the parties. procedure.” (Kentucky v. Stincer (1987) 482 U.S.
There was one minority juror remaining in the jury 730, 745, 107 S.Ct. 2658, 96 L.Ed.2d 631.)
box when the prosecutor challenged P.M. The fact Defendant contends that his federal constitutional
that defense counsel said he saw no reason for the right was violated because he was excluded from
prosecutor to challenge P.M. does not raise an the section 1324 immunity hearings for
inference that the prosecutor's reason for doing so prosecution witnesses Matthew Weaver and
568 was improper group bias.*568 On appeal, 454 Jeanette *454 Moore.38 Defendant forfeited this
defendant seeks, for the first time, to make a case claim by failing to object or seek relief from the
based on comparative juror analysis, contending trial court. Defendant also contends that the
that, based on statements made during voir dire, appellate record is inadequate because transcripts
R.R., a Caucasian prospective juror not challenged of the immunity hearings are not included in the
by the prosecutor, was more likely to vote for a record. Defendant fails to meet his burden of
sentence of life without the possibility of parole showing that this deficiency is prejudicial to his
than P.M. We decline to engage defendant's ability to prosecute his appeal.
attempt to raise comparative juror analysis for the
38 Defendant also claims error on state law
first time on appeal in this stage one
grounds, because he never waived the
Batson/Wheeler claim. Our obligation to consider
statutory requirement that capital
comparative juror analysis for the first time on
defendants be present at all phases of their
appeal only applies to stage three Batson/Wheeler trial pursuant to sections 977 and 1043.
claims, not stage one claims. (People v. Lenix These statutes concern the requirement of a
(2008) 44 Cal.4th 602, 622, fn. 15, 80 Cal.Rptr.3d defendant's attendance at the phases of his
98, 187 P.3d 946.) Defense counsel did not engage or her own trial. Defendant, however,
in comparative juror analysis below by pointing to presents no authority or persuasive
any specifics about any other prospective jurors. argument to support the conclusion that a
Defense counsel merely made the generic claim separate proceeding to grant immunity to a
that P.M. was no different than the other jurors. As witness under section 1324 —a proceeding
we have stated in declining to consider to which defendant was not a party—falls
comparative juror analysis in a first-stage under sections 977 and 1043.
Batson/Wheeler claim, “[w]here, as here, no

reasons for the prosecutor's challenges were
accepted or posited by either the trial court or this
26
Weaver and Moore were important witnesses for the hearings or the lack of a transcript of the
the prosecution in tying defendant to the hearings. On this record, defendant has forfeited
CompUSA murder. Both witnesses were also his claim that his rights were violated and we
569 potentially *569 liable for prosecution for aiding therefore do not address the merits of the claim.
and abetting the crime. Weaver was at the scene of
Defendant also contends that the appellate record
the CompUSA murder in order to help move the
is inadequate because transcripts of the immunity
computers. Moore fraudulently obtained a driver's
hearings are not included in the record in violation
license in someone else's name, which she used to
of his constitutional rights and section 190.9 and
rent the U–Haul truck that defendant intended to
its implementing rule of court, currently rule 8.610
use to haul away the computers. Thus, the
of the California Rules of Court. In fact, Weaver's
prosecutor sought immunity for Weaver and
immunity hearing on Tuesday, April 2, 1996, was
Moore under section 1324, which was granted by
reported and is included in the record. Moore's
another judge in a separate proceeding that
immunity hearing, however, does not appear to be
occurred on the mornings that Moore and Weaver
455 in the record.*455 Defendant fails to point to any
testified at defendant's trial.
particular provision of the rules to support his
Defendant contends that he was “excluded” from contention that the transcripts of the immunity
the Moore and Weaver immunity hearings. But proceeding should have been included. But even if
defendant failed to raise any objection to his or his they should have been, defendant fails to show
attorney's absence from the hearings. The prejudice. “ ‘ “A criminal defendant is ... entitled
prosecutor informed defendant and the trial court to a record on appeal that is adequate to permit
about the immunity proceedings for Moore and 570 meaningful review.... The record on appeal is *570
Weaver that were to take place in front of another inadequate, however, only if the complained-of
judge. Defendant did not seek any ruling from the deficiency is prejudicial to the defendant's ability
851 court on these immunity proceedings. *851 Rather, to prosecute his appeal. [Citation.] It is the
the court, out of a stated concern for the record, defendant's burden to show prejudice of this sort.”
independently inquired: “Have adequate ’ ” (People v. Huggins (2006) 38 Cal.4th 175, 204,
provisions been made for the reporting, and is 41 Cal.Rptr.3d 593, 131 P.3d 995.) Defendant
there any requirement that for that proceeding, in contends that defense counsel was prejudiced by
view of the status of the trial, that [defendant] and the lack of a transcript because counsel could not
his counsel be present at any proceeding involving effectively cross-examine Moore and Weaver
a during-the-trial grant of immunity?” The about the precise nature of the immunity they were
prosecutor replied, “Not to my knowledge, there is granted and any other benefits they received.
none. I mean, it's not between [defendant]— Defendant contends that, on appeal, he cannot
[defendant] is not a party to that.” The court now show that their testimony before the jury was
stated, “I will rely on your opinion. I just wanted false.
to throw it out.” Defendant states that “ultimately
Defense counsel had the opportunity to cross-
appellant and counsel were not present at the
examine Moore and Weaver on the precise nature
immunity hearing for either Jeanette Moore or
of the immunity these witnesses were granted.
Matt Weaver,” but nothing in the record
Indeed, the topic of their immunity was
establishes the defense asserted a right to be
thoroughly explored when each one testified at
present or even asked to attend. Similarly, at no
trial. At the beginning of each witness's testimony,
point during the trial did the defense assert that
the prosecutor extensively questioned each one
these witnesses could not be effectively cross-
about the immunity that had been granted.
examined in light of the defense's absence from
Defense counsel cross-examined Moore on the
27
topic, but did not raise the issue with Weaver. allegation. Defendant argued, however, that only
Because defendant fails to specify what aspect of the fact that Williams testified to the grand jury
these witnesses' grant of immunity was not already and gave statements to the police should have
explored at trial—and would have been been admissible, not the content of her statements.
illuminated by the transcripts of Moore's hearing The court inquired whether there was another way
—he has failed to show how the assumed of placing before the jury the information that she
deficiency in the record is prejudicial to his had been a witness adverse to defendant, other
appeal. than admitting the statements verbatim. The court
presented as a possibility, “thinking out loud,” that
B. Admission of Williams's Statements for a
someone who had been present at the grand jury
Nonhearsay Purpose
proceeding could testify that Williams was called
Defendant contends the trial court improperly as witness against defendant and gave statements
admitted Williams's grand jury testimony and that were detrimental to him. The prosecutor
police interview statements for the nonhearsay replied that “the heart of the People's case ... is
purposes of establishing defendant's motive to kill how the information was given by the prosecution
her and establishing that she was a witness against to the defense team during that period of time, and
defendant, as alleged in the murder of a witness what [defendant] then did with that knowledge,”
special-circumstance allegation under section and that this information “fuel [ed] the motive for
190.2, subdivision (a)(10). The court did not err in [defendant's] wanting Ardell Williams murdered
admitting this material for these nonhearsay in retaliation for giving the information, and to
purposes or in denying defendant's objection to prevent her testimony” at trial. The prosecutor
this material under Evidence Code section 352. stated that merely calling a witness to testify that
Williams testified at the grand jury and implicated
1. Background defendant would deny the prosecution “the ability
The prosecutor initially sought to admit Williams's to show the specifics and the detail which [the
grand jury testimony and police interview prosecution] can prove [defendant] knew.” The
statements under Evidence Code section 1350, a prosecutor pointed out that defendant “knew all of
hearsay exception for instances in which a the details of her information” and to deny the
defendant causes the unavailability of a witness. prosecution the ability to present those details
852 The prosecutor also *852 raised the possibility of “would take away the legitimate force and effect”
admitting the material for the nonhearsay purpose of what the prosecution believed was the motive in
of showing motive.39 The trial court conducted a the case.
571 *571 hearing and called witnesses to assess 39 Specifically, these materials were the
whether Williams's statements were made under transcripts of Williams's September 1992
circumstances that indicated trustworthiness, as grand jury testimony, and the tape-
required by Evidence Code section 1350, recordings of conversations she had with
subdivision (a) (4). Ultimately, the court ruled that Inspector Grasso on April 1 and May 30,
Williams's statements did not meet the 1992. The prosecutor made an offer of
trustworthiness requirement of Evidence Code proof to the trial court that information
section 1350 and denied the admission of the from these sources had been given to
456 statements under that section.*456 But the trial defendant's defense team, and through
court also ruled that the statements were them to defendant, and fueled defendant's
motive to have Williams killed to prevent
admissible for the nonhearsay purposes of
her testimony.
showing motive and establishing the corpus delicti
of the witness-killing special-circumstance
28
In ruling that the entirety of the statements could admitted that defendant had previously been
be admitted, the trial court accepted the arrested for and charged with spousal rape. (Ibid. )
prosecutor's argument that the details of We rejected defendant's claim that the evidence of
Williams's statements against defendant were spousal rape should have been excluded under
relevant to establishing his motive to kill her and Evidence Code section 352 because the probative
rejected defendant's argument that the statements value was substantially outweighed by the risk of
were unduly prejudicial under Evidence Code undue prejudice. (Id. at p. 1028, 254 Cal.Rptr.
section 352. 586, 766 P.2d 1.) We concluded that the evidence
was highly relevant on the issue of motive, which
Defendant subsequently agreed to have the
was an important issue in the case, and that the
Williams statements admitted for their truth so he
risk of undue prejudice was not excessive because
could impeach Williams as a hearsay declarant.
no evidence regarding the circumstances of the
After a lengthy colloquy with the trial court,
alleged spousal rape was admitted—only the fact
defendant expressly waived any objections to
that he had been charged, tried, and acquitted of
Williams's statements' being offered for their truth.
the crime was admitted. (Ibid. )
572 *572 2. Analysis
From this, defendant mistakenly contends that
Defendant reiterates on appeal an argument he
Edelbacher is authority for the proposition that
advanced below. He claims that only the fact that
only the fact of a previous legal proceeding can be
Williams testified before the grand jury and gave
admitted for the purpose of showing motive, and
statements to the police should have been
any additional details must be excluded under
admissible, not the content of her testimony
Evidence Code section 352. In Edelbacher,
statements. He notes Williams's testimony was
however, we merely concluded that the lack of the
lengthy, taking up more than 100 pages of
details from the spousal rape trial undermined the
transcripts. Moreover, he contends the testimony
defendant's argument that he was prejudiced. We
and statements contained incriminating details that
did not reach the inverse conclusion that the
the jury could not help but use for their truth.
presentation of the details would have been unduly
The trial court enjoys broad discretion in prejudicial under Evidence Code section 352. In
determining the relevance of evidence and in Edelbacher the prosecution only presented the fact
assessing whether concerns of undue prejudice, of the spousal rape charge and trial and never
confusion, or consumption of time substantially sought to admit the wife's testimony, so the
outweigh the probative value of particular probative value of her testimony was never
evidence. (People v. Rodrigues, supra, 8 Cal.4th at weighed against the risk of undue prejudice. Here,
p. 1124, 36 Cal.Rptr.2d 235, 885 P.2d 1.) “The 573 *573 however, the prosecutor argued that the
exercise of discretion is not grounds for reversal details of Williams's statements were crucial to
unless ‘ “the court exercised its discretion in an establishing his case for defendant's motive to
arbitrary, capricious or patently absurd manner murder her. We see no abuse of discretion in the
853 that resulted in a manifest miscarriage of *853 trial court's ruling that—given the circumstance of
justice.” ’ ” (People v. Ochoa (2001) 26 Cal.4th this case—the details of Williams's testimony and
398, 437–438, 110 Cal.Rptr.2d 324, 28 P.3d 78.) police statements were particularly probative for
establishing defendant's motive for murder and
Citing People v. Edelbacher (1989) 47 Cal.3d 983,
that the probative value of this evidence was not
1027–1028, 254 Cal.Rptr. 586, 766 P.2d 1,
outweighed by the risk of undue prejudice. The
457 defendant contends the trial *457 court abused its
extent to which Williams could incriminate
discretion. In Edelbacher, defendant was charged
defendant was an issue that was highly probative
with murdering his wife, and evidence was
29
for the jury in assessing the prosecution's theory that Williams told him about a conversation that
that defendant took the extraordinary step of Williams had with Eric (defendant's brother). In
organizing her murder from inside the jail. this conversation, Williams said Eric told her that
he and defendant had planned a robbery at
Defendant renews on appeal defense counsel's
574 CompUSA. Eric *574 further explained that two
argument that some evidence is too difficult for a
robbers were involved, that they had the people
jury to consider for a nonhearsay use, even when
tied up, and that something had gone wrong and “a
the jury is provided with a limiting instruction.
lady was killed.”
Defendant obliquely references Bruton v. United
States (1968) 391 U.S. 123, 127–128, 135–137, 88 Defendant has forfeited this claim because he
S.Ct. 1620, 20 L.Ed.2d 476, which holds that a failed to object below. (People v. Harrison (2005)
nontestifying codefendant's confession implicating 35 Cal.4th 208, 239, 25 Cal.Rptr.3d 224, 106 P.3d
a defendant cannot be admitted at a joint trial, 895.) As recounted in the previous claim,
even if the jury is instructed to disregard that defendant did raise in limine objections to other
confession in determining the guilt or innocence hearsay statements of Williams, namely those in
of the defendant. Defendant's case does not fall her grand jury testimony and in her tape-recorded
under Bruton, and we are unpersuaded that the conversations with Inspector Grasso.40 But
trial court here abused its discretion in abiding by defendant did not make a hearsay objection to this
the usual presumption that a jury will follow Williams statement reported by Holliday.
limiting instructions. (See, e.g., Greer v. Miller
40 See footnote 39, ante.
(1987) 483 U.S. 756, 766, fn. 8, 107 S.Ct. 3102,
97 L.Ed.2d 618.)
Finally, defendant points to the prosecutor's The second layer of hearsay in Agent Holliday's
comments during closing argument and complains testimony is Eric's statement, as recounted by
that “[r]ather than argue non-hearsay purposes for Williams. Once again, defendant failed to raise a
which [the prosecutor] had purportedly introduced specific challenge to the double-hearsay nature of
them, the prosecutor repeatedly directed the jurors Holiday's testimony. Defense counsel did discuss
to believe the truth of [the] statements.” As Eric's statement as Williams reported it to
recounted above, however, after the trial court Inspector Grasso in the context of a hearing under
ruled that Williams's statements were admissible Evidence Code 1101, subdivision (b). The trial
for nonhearsay purposes, defendant expressly court stated that Eric's statement was arguably
waived any objections to having these statements “admissible under the double layer as a statement
admitted for their truth because defendant wanted against his own penal interest.” (See Evid.Code §
458 to impeach Williams as a hearsay *458 declarant. 1230.) Because defense counsel failed to object to
Thus, the prosecutor's use of Williams's statements the court's tentative basis for considering the
for their truth was not improper during closing statement admissible and failed to raise any
argument or at any point in the trial. subsequent hearsay objection pertaining to
Holliday's testimony about Williams's report of
C. Admission of Williams's Hearsay Statements Eric's statement, defendant has forfeited this claim
Through the Testimony of an FBI Agent on appeal.
Defendant contends the trial court improperly D. Failure to Produce Holliday's Notes or Strike
admitted double hearsay testimony in violation of his Testimony
both state law and his rights under the federal
854 Constitution's Confrontation *854 Clause. At the
guilt phase, FBI Special Agent Holliday testified
30
Defendant contends the trial court should have 1. Background

struck Agent Holliday's testimony under Evidence
Citing Evidence Code section 1101, subdivision
Code section 771 41 because he declined to turn
(b), the prosecution made a pretrial motion
over to the defense notes that he consulted during arguing for admission of evidence that, between
his testimony unless defense counsel received August 29 and October 9, 1989, defendant entered
permission from the FBI to obtain the notes. five computer stores in Los Angeles County and
Defendant forfeited the claim below because he 855 stole computers.42 *855 The trial court denied the
failed to move the trial court to strike the
motion to introduce the proffered evidence of
testimony under Evidence Code section 771.
these 1989 computer store thefts. The motion
Indeed, defense counsel did not seek any ruling
made no mention of the 1990 theft at Soft
from the court on the matter, and the failure to do
Warehouse in Torrance, California, where
so deprived the court of the opportunity to remedy
Williams, working as a cashier, had allowed
the asserted problem by compelling disclosure or
defendant to take several laptop computers
striking the testimony. Finally, defendant fails to
without paying.
provide authority that the court had a sua sponte
42 Evidence Code section 1101, subdivision
duty to strike the testimony under these
459
575 circumstances.*575 *459 (a) provides: “Except as provided in this
section and in Sections 1102, 1103, 1108,
41 Evidence Code section 771, subdivision (a)
and 1109, evidence of a person's character
provides: “Subject to subdivision (c), if a or a trait of his or her character (whether in
witness, either while testifying or prior the form of an opinion, evidence of
thereto, uses a writing to refresh his reputation, or evidence of specific
memory with respect to any matter about instances of his or her conduct) is
which he testifies, such writing must be inadmissible when offered to prove his or
produced at the hearing at the request of an her conduct on a specified occasion.”
adverse party and, unless the writing is so
produced, the testimony of the witness Evidence Code section 1101,
concerning such matter shall be stricken.” subdivision (b) adds the

following provision: “Nothing in
this section prohibits the
admission of evidence that a
E. Prosecutorial Misconduct Based on Eliciting
person committed a crime, civil
Testimony About Defendant's Collaboration in a
wrong, or other act when relevant
Prior Crime with Williams
to prove some fact (such as
Defendant contends the prosecutor engaged in motive, opportunity, intent,
misconduct because he elicited testimony about preparation, plan, knowledge,
defendant's collaboration with Williams in a 1990 identity, absence of mistake or

accident, or whether a defendant
theft from a computer store, Soft Warehouse, in
in a prosecution for an unlawful
violation of the trial court's in limine ruling
sexual act or attempted unlawful
forbidding the presentation of evidence of
sexual act did not reasonably and
defendant's prior thefts from computer stores.
in good faith believe that the
Defendant has forfeited his prosecutorial
victim consented) other than his
misconduct claim by failing to raise it below and, or her disposition to commit such
even if it had not been forfeited, there was no an act.”
misconduct because the evidence was properly
admitted with a limiting instruction.
31
At trial, the prosecution called Richard Highness, make sure it was considered in compliance with
an employee of the Soft Warehouse store, who Evidence Code section 1101, subdivisions (a) and
testified, without defense objection, that on (b). Later at trial, the Soft Warehouse theft was
November 1, 1990, a man who called himself again mentioned when Grasso testified that
“Tom Jones” came into the store to buy computer Williams had described her involvement with
equipment. Highness identified defendant in court defendant in the theft. At the conclusion of the
as that man. Highness gave defendant several case, the court, at the request of the prosecution,
laptop computers (worth approximately $10,000) instructed the jury as follows:
and a customer service agreement to present to
“Evidence has been introduced for the purpose of
Williams for payment. When Highness reviewed
showing the defendant was involved with Ardell
the sales receipts at the end of the day, he noticed
Williams in crimes other than that for which he is
there was no receipt for the sale to “Tom Jones.”
on trial, specifically, the Soft Warehouse theft on
Highness questioned Williams about the incident,
November 1, 1990 in Torrance, and possession of
who denied any knowledge of it. Highness
stolen traveler's checks on September 22, 1991, in
reported the theft to the police, giving a
Las Vegas. [¶] Such evidence, if believed, was not
description of “Tom Jones” as about six feet, two
received and may not be considered by you to
inches tall, thin build, and about 38 to 40 years
prove that the defendant is a person of bad
576 old.*576 On the following day, outside the
character or that he has a disposition to commit
presence of the jury, the trial court raised some
crimes. [¶] Such evidence was received and may
issues related to Highness's testimony. As the
be considered by you only for the limited purpose
court pointed out, the 1990 Soft Warehouse theft
of determining if it tends to show the relationship
was not included in the earlier Evidence Code
between the defendant and Ardell Williams and
section 402 hearing concerning the admissibility
motive and intent. [¶] For the limited purpose for
of defendant's prior crimes, where the court had
which you may consider such evidence, you must
ruled that evidence of defendant's 1989 computer
weigh it in the same manner as you do all the
store thefts were inadmissible. Although defense
other evidence in the case. You are not permitted
counsel did not argue that the 1990 Soft
to consider such evidence for any other purpose.”
Warehouse theft was covered by the court's ruling
on the 1989 computer store thefts, he expressed 2. Analysis
his surprise that that the prosecutor presented
Under the federal Constitution, a prosecutor
460 evidence of the 1990 theft. In response, *460 the
856 commits misconduct when his or *856 her conduct
prosecutor explained that it was his understanding
“infects the trial with such unfairness as to make
that the crimes committed jointly by defendant
the conviction a denial of due process.” (People v.
and Williams were not subject to the Evidence
Morales (2001) 25 Cal.4th 34, 44, 104 Cal.Rptr.2d
Code section 402 hearing concerning the
582, 18 P.3d 11.) Under California law, a
admissibility of defendant's prior crimes. The
prosecutor commits reversible misconduct when
prosecutor also noted that the defense had not
“he or she makes use of ‘deceptive or
objected when the prosecutor mentioned the Soft
reprehensible methods' when attempting to
Warehouse theft during his opening statement, in
persuade either the trial court or the jury, and it is
the context of recounting Williams's statements to
reasonably probable that without such misconduct,
Inspector Grasso, and that the defense had
577 an *577 outcome more favorable to the defendant
withdrawn its objection to Williams's statements
would have resulted.” (People v. Riggs (2008) 44
being offered for their truth. The court stated that
Cal.4th 248, 298, 79 Cal.Rptr.3d 648, 187 P.3d
it would entertain a request for a limiting
363.) To preserve a claim of prosecutorial
instruction to the jurors about this evidence to
misconduct on appeal, “the defense must make a
32
timely objection at trial and request an In any event, the misconduct claim is without
admonition; otherwise, the point is reviewable merit. Defendant's argument that the prosecutor
only if an admonition would not have cured the committed misconduct appears to be that the
harm caused by the misconduct.” (People v. Price, prosecutor misled defendant and the trial court by
supra, 1 Cal.4th at p. 447, 3 Cal.Rptr.2d 106, 821 not including the 1990 theft in his in limine
P.2d 610.) motion because he was asked to list the prior
crimes evidence he sought to introduce. The
Defendant has forfeited his claims by failing to
prosecutor, however, did not represent that the five
object below and request an admonition. (People
computer thefts in 1989 were the only prior crimes
v. Price, supra, 1 Cal.4th at p. 447, 3 Cal.Rptr.2d
that the prosecutor would ever seek to admit at
106, 821 P.2d 610 ) Defendant, however, contends
trial, but only that the 1989 crimes were “at this
that he should be excused from this requirement
point in time” the only ones it was seeking to
based on the argument that a timely objection or
present.
request for admonition would have been futile.
(People v. Hill (1998) 17 Cal.4th 800, 820, 72 Moreover, the prosecutor's conduct here was
Cal.Rptr.2d 656, 952 P.2d 673.) Defendant proper because he did not attempt to elicit
contends that the trial court had previously ruled inadmissible evidence. As recounted, the evidence
that all prior walk-in computer thefts were was properly admitted with a proper limiting
inadmissible, that the prosecutor disregarded this instruction. The jury was instructed that this
461 ruling by calling Highness as a *461 witness, and evidence was only to be considered for the limited
that when a prosecutor chooses to disregard a 578 purposes of *578 showing the relationship between
binding ruling, any objection would be futile defendant and Williams and defendant's motive
because the court has already ruled in the and intent, and not for the purpose of showing
defense's favor. defendant's bad character or predisposition to
commit crimes. As reflected in the limiting
We reject defendant's contentions here. First, the
instruction to the jury, admission of the 1990 Soft
trial court had not ruled that all prior walk-in
Warehouse theft was supported by the same theory
computer thefts were inadmissible; it only ruled
of Evidence Code section 1101, subdivision (b)
on the computer thefts that were the subject of the
admissibility under which the trial court admitted
prosecutor's motion, which were the five computer
evidence of defendant's and Williams's Las Vegas
thefts in 1989. Second, even if the court's order
1991 traveler's checks crime—that is, the 1990
had encompassed the 1990 theft, there is no reason
Soft Warehouse theft was relevant to show
to presume that defense counsel's drawing the
defendant's closeness to Williams and defendant's
court's attention to this fact would have been
motive to have her killed.
futile. Indeed, we presume that judges lawfully
perform their duties. Had the defense reminded the F. Admission of Moore's Testimony
court it had previously excluded certain evidence
As recounted, ante 203 Cal.Rptr.3d at pages 429
the prosecution was attempting to present, it is
and 430, 372 P.3d at pages 829 and 830, Jeanette
reasonable to expect that the court would have
Moore was a prosecution witness who testified
effectuated its earlier ruling by preventing its
857 that defendant helped her *857 to obtain a
admission. Accordingly, defendant's failure to
fraudulent driver license and that defendant later
raise the issue of supposed prosecutorial
instructed her to use the license to rent a U–Haul
misconduct below is not excused, and his
van he intended for use in a robbery at CompUSA.
appellate claim is forfeited.
Defendant unsuccessfully moved to exclude
Moore's testimony both at the preliminary hearing
33
and at trial on the ground that it was coerced Grasso had misled Moore into believing that
through “outrageous police conduct.” Defendant defendant was responsible for an attempt on her
contends the trial court erred in admitting her life, and that this belief “established a compelling
testimony because Inspector Grasso misled Moore and life-threatening motive” for Moore to give
into believing that defendant was responsible for damaging testimony against defendant. Defense
an attempt on her life, which created a motive for counsel contended he could not cross-examine
Moore to present damaging testimony against Moore about the possible bias created by her
defendant. Defendant also contends that Moore's conversation with Grasso without running the risk
testimony at trial was coerced because of her that the jury would assume that defendant was
immunity agreement. As we conclude below, the behind the Chandler home invasion, despite the
court did not err in admitting Moore's testimony fact that no evidence supported such a connection.
because Grasso did not engage in police
At a hearing on the motion, Inspector Grasso
misconduct and Moore's testimony at trial was not
testified that when he had interviewed Moore in
462 coerced.*462 1. Background
Arizona on June 8, 1994, he was aware of the
Before the preliminary hearing, defendant moved home invasion in Chandler the night before: two
to exclude Moore's testimony. Defendant men went to a house where Moore had previously
contended that during an interview in Arizona, been staying, fired several rounds into the house,
Inspector Grasso misled Moore into believing that and were heard to say, “Where's the bitch?”
defendant was responsible for an attempt on her Grasso testified that he was concerned that the
life. Defendant further contended that this belief incident could have been an attempt on Moore's
acted like a death threat and created a continuing life by defendant and that Moore could have been
condition of coercion on Moore to give damaging in danger—Yancey had previously called Moore
testimony against defendant. The magistrate and sent Moore money (and was therefore aware
denied the motion. Moore testified at the of Moore's location in Arizona), and Williams had
preliminary hearing subject to lengthy cross- been killed to prevent her from testifying. Grasso
examination about the interview with Grasso. had also learned from Arizona police that one of
Moore explained that Grasso and the Chandler the women living in the house thought that her ex-
Arizona police had told her about an incident husband or boyfriend might have been responsible
occurring the night before her interview, in which for the incident. Grasso acknowledged that this
unidentified men had entered the house where was a possible explanation of the incident, but he
Moore had been staying, fired guns, and stated, did not mention this to Moore.
“Where is that bitch at?” Grasso also told Moore
The trial court denied defendant's motion to
during this interview that defendant was
exclude Moore's testimony based on outrageous
responsible for Williams's murder. Moore stated
police conduct. The court stated that it did not find
that Grasso did not expressly state that defendant
any intentional or bad faith action by Inspector
was responsible for the home invasion at Moore's
Grasso in communicating what he knew about the
former dwelling, but she assumed that defendant
Chandler home invasion to Moore. The court
579 was because the woman present at *579 the house
stated that, although the parties now agreed that
was not killed. Moore believed that the woman
there was no evidence connecting defendant to the
had not been the target and that the unidentified
incident, Grasso had not acted improperly when he
men had been looking for her instead.
related to Moore his concerns that the incident
Before trial, defense counsel again moved to 858 could have been an attempt *858 against her life
exclude Moore's testimony because of “outrageous and that she might be in danger. The court stated
police conduct,” based on the theory that Inspector that it would formulate an admonition to the jury
34
that there was no evidence connecting defendant party] was involuntary at the time it was given.”
with the Chandler home invasion if the defense (Id. at 347, 41 Cal.Rptr.2d 635, 895 P.2d 877.)
463 chose to raise the issue during its cross- *463 “The purpose of exclusion of evidence pursuant to
examination of Moore as part of a defense strategy a due process claim such as defendants' is
to establish Moore's possible bias against adequately served by focusing on the evidence to
defendant. But neither the prosecution nor the be presented at trial, and asking whether that
defense raised the incident during Moore's evidence is made unreliable by ongoing coercion,
580 testimony at trial.*580 2. Analysis rather than assuming that pressures that may have
been brought to bear at an earlier point ordinarily
We reject defendant's argument that Inspector
will taint the witness's testimony.” (Id. at pp. 347–
Grasso's discussion of the Chandler home invasion
348, 41 Cal.Rptr.2d 635, 895 P.2d 877.) “Thus, it
represented outrageous police misconduct. We
is not enough for a defendant who seeks to
have acknowledged that in some instances—such
exclude trial testimony of a third party to allege
as those involving statements obtained by torture
that coercion was applied against the third party,
or other conduct belonging only in a police state—
producing an involuntary statement before trial. In
courts analyzing claims of third-party coercion
order to state a claim of violation of his own due
have expressed the view that, to ensure the
process rights, a defendant must also allege that
integrity of the judicial system, the evidence
the pretrial coercion was such that it would
should be excluded without inquiring whether the
actually affect the reliability of the evidence to be
statements were unreliable or subject to the
presented at trial.” (Id. at p. 348, 41 Cal.Rptr.2d
ongoing effects of coercion. (People v. Jenkins,
635, 895 P.2d 877, fn. omitted.)
supra, 22 Cal.4th at p. 968, 95 Cal.Rptr.2d 377,
997 P.2d 1044.) But Moore's testimony was not Defendant fails to meet his burden of showing
“obtained by torture or by other conduct belonging ongoing coercion that would have actually
only in a police state.” (Ibid. ) In his reply brief, affected the reliability of Moore's testimony at
defendant claims, alternatively, that Moore's trial. At most, Inspector Grasso's discussion of the
testimony should have been excluded not only Chandler home invasion involved an issue of
because of outrageous police misconduct, but also Moore's possible bias against defendant. Defense
because it was coerced in violation of Moore's counsel could have explored this issue at trial, but
Fifth Amendment rights. Defendant forfeited this chose not to, despite the trial court's willingness to
claim by failing to raise it in his opening brief admonish the jury that no evidence connected
(People v. Tully, supra, 54 Cal.4th at p. 1075, 145 581 defendant to the *581 Chandler home invasion. We
Cal.Rptr.3d 146, 282 P.3d 173 ), or at trial. In any also note that by the time Moore testified at
event, this claim lacks merit. defendant's trial, she had been cross-examined by
defense counsel for then codefendant Yancey at
Although a defendant lacks standing to complain
the preliminary hearing about the Chandler home-
about a violation of a third party's Fifth
invasion incident. Counsel for Yancey informed
Amendment privilege against self-incrimination, a
Moore that the police report for the incident
defendant does have standing to assert that a
mentioned that Tanya, the woman there at the time
violation occurred of his or her own due process
464 of the *464 incident, had stated her belief that her
right to a fair trial because of an asserted violation
ex-husband was responsible for the shooting.
of a third party's Fifth Amendment right. (People
Thus, before her trial testimony, Moore was
v. Badgett (1995) 10 Cal.4th 330, 343, 41
exposed to the defense position that the home
Cal.Rptr.2d 635, 895 P.2d 877.) “[D]efendant can
invaders were seeking Tanya, another resident of
prevail on his suppression claim only if he can
the house, not Moore. This further undercuts
show that the trial testimony given by [the third
35
defendant's contention that Grasso's discussion G. Admission of Pseudonymous Letter Sent to

with Moore represented a deception that acted as Moore
859 an ongoing basis of *859 coercion when she
While Moore was in custody at the Orange
testified at defendant's trial.
County Jail before defendant's preliminary
As an additional argument to explain how Moore's hearing, she received a two-page letter addressed
testimony was coerced, defendant contends that 582 to her and *582 signed with the pseudonym,
Moore's immunity agreement was coercive. “Outlaw Jack.”43 The letter urged her not to testify
Defendant never raised this argument below and and included a photocopy of a newspaper article
therefore has forfeited it on appeal. Furthermore, describing a witness who had been released from
if we were to consider this argument on the merits, jail after refusing to testify at a trial.44 Defendant
we would reject it. Defendant points to the contends the trial court erred in admitting this
statement in People v. Medina (1974) 41 letter over defense counsel's objections that there
Cal.App.3d 438, 455, 116 Cal.Rptr. 133, that “a was no evidence linking defendant to the letter and
defendant is denied a fair trial if the prosecution's that it was therefore irrelevant. As we conclude
case depends substantially upon accomplice below, the court did not abuse its discretion in
testimony and the accomplice witness is placed, admitting the letter.
either by the prosecution or the court, under a
43 The letter was postmarked June 12, 1994.
strong compulsion to testify in a particular
Moore testified at Eric's trial on July 13,
fashion.” Defendant accurately notes that Moore
1994; Moore testified at defendant's
was an accomplice who received immunity for
preliminary hearing on July 18, 1994.
testifying truthfully. Defendant then proceeds to
Moore was in custody under a section 1332
draw the conclusion that “although the commitment to ensure her availability as a
requirement of truthful testimony does not seem witness.
coercive, it in fact is.” Defendant contends that
because Moore's immunity agreement did not
cover perjury at the present trial, the agreement 44 The lengthy letter states the following, in
required Moore to testify similarly to the relevant part: “I am aware of why the DA
“coerced” statements she initially gave to has you locked up. They can't make you
Inspector Grasso “after he put fear into her, lest testify. You have a right not too [sic ]. You
the prosecutor decide that she was no longer being know that. You can exercise your
constitutional right against self-
truthful.” Not so; as Moore acknowledged in her
incrimination.... I know you don't want to
testimony, the immunity agreement did not require
help these ruthless, unfair and evil white
her to give testimony in conformity to any of her
folks convict the innocent.”
previous statements, whether to the police, or in
her testimony at any previous trials or
proceedings. Although any plea agreement or
1. Background
grant of immunity involves a certain amount of
compulsion, it is valid so long as it only requires The prosecution sought to admit the letter to
full and truthful testimony. (People v. Badgett, Moore as relevant evidence of defendant's attempt
supra, 10 Cal.4th at p. 358, 41 Cal.Rptr.2d 635, 465 to prevent Moore from *465 testifying against him
895 P.2d 877.) Defendant therefore fails to show at trial. The prosecutor linked defendant to the
improper coercion from Moore's immunity letter to Moore through the letter's connection to
agreement. inmate Sean Birney, who was housed with
defendant in the same module in the Orange
County Jail. The calligraphy on the envelope of
36
the letter sent to Moore was distinctive and looked “Alonzo! We just wanted to let
like the distinctive calligraphy in another letter you know that the secret meetings
that Birney had written—a threatening letter you've been having with those
folks from Orange County aren't
addressed to Garrett, which was confiscated from
so secret. They have put your
defendant's cell five days before Moore received
business all in the street. Also,
860 the “Outlaw Jack” letter.45 The *860 prosecution
your friends in Gardena are
also made an offer of proof that Birney's recording your phone calls. And
fingerprints were found on both the letter turning them over to those folks.
addressed to Garrett and on the envelope of the “ We really thought you were
Outlaw Jack” letter sent to Moore. The prosecutor smarter. You know it never pays
had previously successfully moved, over defense to make a deal with the devil. But
objection, to admit the letter to Garrett based on from all the reports and calls we
the fact that the letter was seized from defendant's see you are trading, we never
cell along with another letter, in defendant's thought you would go out
handwriting, to inmate Gordon Bridges asking backwards. From a man to a
Bridges to contact Garrett. Based on the bitch. You have no integrity, you
weak coward. For every action
connection between defendant and Birney (based
there is a[sic] equal reaction.
on the letter to Garrett), the prosecutor contended
Sleep on it! ”
that the evidence linking Birney to the letter to
Moore also linked defendant to the letter to At trial, the prosecution presented evidence in
583 Moore.*583 The defense objected that the conformity with its earlier offer of proof that
circumstantial connection to defendant was too inmate Birney's fingerprints were on both the
tenuous to meet the prosecution's burden of envelope and letter sent to Moore and on the
establishing the admissibility of the letter. The threatening letter to Garrett, which was found in
trial court disagreed, ruling that the prosecutor had defendant's cell. Deputy Desens testified that, after
shown a sufficient nexus. The defense also the guards confiscated the threatening letter to
objected under Evidence Code section 352. In this Garrett from defendant's cell, defendant admitted
analysis, the court considered whether the that the letter belonged to him and asked for its
defense's possible argument that Eric, not return.46
defendant, authorized the letter would open
46 The deputy's exact testimony is as follows:
defendant's trial up to collateral issues that would
“[Defendant] asked me if I took anything
be confusing to the jury. The court overruled the
from his cell. I asked him what was
Evidence Code section 352 objection finding that
missing. He told me he was missing a
the letter was not unduly inflammatory and that its
couple of notes. At that time I said, do you
probative value outweighed its prejudicial effect mean the kites to Bridges and Rembert?
on the defense. And he said, Yeah.”
45 The letter to Garrett read as follows:
37
“Kite” is prison slang for an with the fact that defendant admitted ownership of
unauthorized letter, i.e., one not these materials. Defendant does not directly
sent through the official prison challenge on appeal the trial court's admission of
mail system. The kite to Bridges
861 the threatening note to Garrett, but he appears *861
refers to the note written in
to question the significance of Deputy Desens's
defendant's handwriting that was
testimony. Desens's testimony supports the
addressed to inmate Gordon
prosecution's theory on the Garrett letter. Desens
Bridges asking him to contact
established that defendant was trying to contact
Garrett, which was found together
with the threatening note to
Garrett, and defendant was in possession of a
Garrett written in Birney's threatening note to Garrett written by Birney,
handwriting. The kite to Rembert which linked defendant and Birney together in a
refers to a letter to another scheme to dissuade at least one witness against
inmate, Rembert, apparently defendant.
unconnected to the Garrett affair,
47 Evidence is relevant if it has “any tendency
which was also among the papers
in reason to prove or disprove any disputed
confiscated from defendant's cell
fact that is of consequence to the
at that time.
determination of the action.” (Evid.Code §
210.)
2. Analysis
Defendant contends that the letter to Moore was Based on the strength of the evidence connecting
466 not relevant unless defendant *466 authorized it— Birney to defendant's scheme to dissuade Garrett
and there was, according to defendant, no from testifying, there was sufficient evidence
evidence that he did.47 The evidence linking through Birney's fingerprints on the letter to
Moore to permit the trial court to admit the
defendant to the letter to Moore was through
evidence based on the theory that defendant had
Birney, a third party, and depended on the
also utilized Birney as part of a plan to dissuade
preliminary fact that defendant authorized Birney
Moore from testifying. We therefore conclude that
to write the letter. When the relevance of evidence
the court did not abuse its discretion in finding the
depends on the existence of a preliminary fact, the
letter to Moore to be relevant.48
trial court must determine whether the evidence
was sufficient for a trier of fact to reasonably find 48 “The decision whether the foundational
the existence of the preliminary fact by a evidence is sufficiently substantial is a

preponderance of the evidence. (Evid.Code § 403, matter within the court's discretion.”
subd. (a)(1) ; People v. Guerra (2006) 37 Cal.4th (People v. Lucas (1995) 12 Cal.4th 415,
1067, 1120, 40 Cal.Rptr.3d 118, 129 P.3d 321, 466, 48 Cal.Rptr.2d 525, 907 P.2d 373.)
overruled in part on other grounds in People v. And we will not reverse unless the trial
court exercised its discretion “ ‘ “in an
Rundle (2008) 43 Cal.4th 76, 151, 74 Cal.Rptr.3d
arbitrary, capricious, or patently absurd
454, 180 P.3d 224.) Here, substantial evidence
manner that resulted in a manifest
supported the prosecution's theory that defendant
miscarriage of justice.” ’ ” (People v.
had utilized Birney to write the threatening note to
Ochoa, supra, 26 Cal.4th at pp. 437–438,
Garrett. The theory was supported by the finding
110 Cal.Rptr.2d 324, 28 P.3d 78.)
584 of the threatening note to Garrett in *584
defendant's cell along with another letter, in
defendant's handwriting, to inmate Gordon
Bridges asking Bridges to contact Garrett, together
38
We also find no abuse of discretion in the trial Evidence Code section 352 because their
court's denial of defendant's motion to exclude the probative value was substantially outweighed by
letter to Moore under Evidence Code section 352. the risk of undue prejudice arising from the sexual
The court properly rejected defense counsel's content in the letters. Defendant also contends the
argument that the letter should be excluded letters should have been excluded under Evidence
because it could raise the question of whether Eric Code section 1101, subdivision (a) because they
might be the author of the letter, which could referred to bad acts by defendant. The court did
become a collateral issue that would confuse the not err in admitting the letters.
jury. As it turns out, far from becoming a
confusing collateral issue to the jury, neither side 1. Background
raised the issue of Eric's possible authorship of the When police searched Yancey's apartment after
letter at trial. the Williams murder, they seized numerous letters
defendant wrote to Yancey. These writings fell
In his reply brief, defendant raises for the first
into two categories: (1) 11 “relationship letters”
time the argument that the letter should have been
where the incarcerated defendant expressed his
467 excluded as unduly prejudicial *467 because it was
love for Yancey, along with explicit sexual
racially charged. As part of the author's attempts
fantasies; and (2) the “Billy file,” a file folder
to dissuade Moore from testifying, the author
containing letters about defendant's various
appeals to Moore to not allow “these ruthless,
business endeavors and an inventory of expenses,
unfair and evil white folks [to] convict the
all in defendant's handwriting. The prosecutor
innocent” (i.e., defendant). Because defendant
moved to admit both groups of writings. The
never raised this argument below in his Evidence
prosecutor contended that the relationship letters
Code section 352 objection, he has forfeited this
862 were relevant to show the intense relationship *862
argument. And defendant forfeits his additional
between defendant and Yancey and to establish the
argument, also raised for the first time on appeal,
existence of a conspiracy; the Billy file was
that the newspaper article attached to the letter
relevant to show economic planning between the
was inflammatory because it described how a
two, as well as their close relationship. Defense
jailed witness was granted immunity in a gang-
counsel objected to the admission of the
related murder of a young teacher's aide and the
relationship letters under Evidence Code section
shooting of his wife. In any event, these aspects of
352 and the Billy file under Evidence Code
585 the evidence do not make *585 the risk of undue
section 1101, subdivision (b). After several
prejudice so substantial that we could conclude the
hearings, the trial court excluded some pages of
court acted outside the bounds of reason in
the relationship letters but admitted the bulk of
declining to exclude the letter.
them, and admitted the Billy file in its entirety. At
H. Admission of Letters from Defendant to trial, the court furnished a copy of the letters to the
Yancey; Sexually Explicit Nature of the Letters; jurors to read. The court admonished the jury to
Refusal to Agree with Defense Motion to Stipulate only use the letters for the “limited purpose of
that a Close Relationship Existed Between the tending to show the nature of the relationship
Two of Them; Other Crimes Evidence in the between Mr. Clark and Ms. Yancey. Such
Letters evidence is not being received and may not be
considered by you to show that defendant is a
Defendant contends the trial court erred in person of bad character or bad morals. These
admitting, over defense objection, letters that letters are not received and may not be considered
defendant wrote to Yancey. Defendant contends by you in any way to show how he treats women
that the letters should have been excluded under
39
in general or Yancey in particular, nor may they be probative of the close relationship between
considered by you as showing any criminal Yancey and defendant, and therefore
586 predisposition.”*586 2. Analysis circumstantial evidence of the conspiracy to kill
Williams, when considered with the other
a. The Relationship Letters evidence offered at trial. Also unavailing is
“Under Evidence Code section 352, the trial court defendant's argument that admission of the letters
468 enjoys broad discretion *468 in assessing whether was unnecessary and therefore unduly prejudicial
the probative value of particular evidence is because the closeness of the relationship between
outweighed by concerns of undue prejudice, defendant and Yancey could have been proven by
confusion, or consumption of time. [Citation.]” other evidence, such as jail visitation and
(People v. Rodrigues, supra, 8 Cal.4th at p. 1124, telephone records.49 As the prosecutor correctly
36 Cal.Rptr.2d 235, 885 P.2d 1.) “A trial court's argued, he was entitled to present as forceful a
discretionary ruling under Evidence Code section case he could with the evidence that he had. The
352 will not be disturbed on appeal absent an content of the letters presented a whole dimension
abuse of discretion.” (People v. Lewis (2001) 26 of the relationship between defendant and Yancey
Cal.4th 334, 374, 110 Cal.Rptr.2d 272, 28 P.3d that went far beyond the mere fact that Yancey had
34.) frequently phoned and visited defendant in jail.
587 *587 Defendant acknowledges that “the letters
Defendant accurately summarizes the relationship
letters as containing “explicit sexual fantasy, in contain themes of both [defendant's] sexual
which [defendant] writes at length about such domination and submission,” but contends this
things as having sex in public, having sex for two was “merely part of a sexual fantasy that is
to four days without stopping, anal sex, oral sex, common to prison life.” Defendant forfeits this
watching other men with his woman or lesbians argument on appeal because he did not present it
having sex, bondage, incest, group sex, and as a basis for excluding the evidence at trial. In
videotaping sex.” Defendant contends that the 863 any event, such an argument does not *863 change
court should have excluded these letters under our conclusion that the trial court acted within the
Evidence Code section 352 because the letters bounds of reason in ruling that the probative value
“were likely to inflame the passions of the jury was not substantially outweighed by the risk of
because they contained details of sexual practice undue prejudice. (Evid.Code § 352.) That
that would appear highly deviant to the average defendant shared these most intimate fantasies
jurors.” with Yancey was highly probative of the closeness
of their relationship, which supported the
In this particular case, however, it is precisely the prosecution's case that they conspired to murder
strong sexual language of the letters that renders Williams to protect defendant.
them probative. We agree with respondent's
49 Defendant raised this argument below at
characterization that the sexual content, though
the penalty retrial, in a motion for
perhaps distasteful to some jurors, was essential
stipulation of a close relationship between
for showing how close Yancey was to defendant
defendant and Yancey, which is discussed
and how defendant utilized sexuality to on pages 142 to 143, post.
manipulate Yancey into conspiring with him to
murder Williams. In response, defendant contends
that the letters had no probative value because In a final related issue, at oral argument defendant
they do not mention Williams by name or made a claim concerning defendant's March 9,
expressly describe a plot to kill someone. 1994 letter to Yancey, which was the letter that
Defendant's argument is unavailing. The letters are 469 included the *469 statement “Babe, I will be in bed
40
with you in a few weeks.” The prosecution Defense counsel sought to exclude two sections of
pointed to this statement as supporting the the Billy file on the grounds that they recounted
inference that defendant's reference to his bad acts and consequently were in violation of
imminent release reflected his confidence in his Evidence Code section 1101's prohibition against
plan to have Williams, the chief witness against using evidence of misconduct to show that
him, murdered. At oral argument, defendant defendant had a criminal character. The first
contended that this statement could not be used as section objected to described the people that
evidence of the defendant's conspiracy to kill defendant wrote “we MUST have on our team,”
Williams because the trial court had given the and included the following list: “TRW—person
same admonishment for the letter containing this who can access credit profiles[;] [¶] Bank—
statement as it had for all the letters between names, driver's license numbers, SSN# 's,
defendant and Yancey, namely that it was for “the addresses, etc.[;] [¶] D.M.V.—I.D's etc.[;] [¶]
limited purpose of tending to show the nature of Social Security Administration—SSI cards,
the relationship between Mr. Clark and Ms. names, etc.[;] [¶] Printer—one who can duplicate
Yancey.” But what the trial court meant by “the checks, ID, etc. [;] [¶] Post office employee—
nature of the relationship between Mr. Clark and credits cards, etc.”
Ms. Yancey” encompassed both their personal
This list implied, as the trial court noted, that
relationship and their conspiratorial relationship.
defendant was seeking someone inside TRW (the
Indeed the evidence of their personal relationship
credit reporting agency) to disclose credit profiles,
was only relevant to the case insofar as it
someone at the post office who could grab credit
supported the prosecutor's theory that they had a
cards that were in the mail, someone at the bank
conspiratorial relationship. It is clear from the
who could disclose personal identity information,
record that the trial court intended that the “be in
and someone at the various other institutions listed
bed with you in a few weeks” letter should be
(including the Department of Motor Vehicles) to
presented to the jury as evidence of the
similarly disclose information, along with a printer
conspiracy. It was so argued to the court and was
to duplicate checks and identification cards.
the first of the letters to be admitted by the trial
court. The prosecutor explored the conspiratorial The second section objected to was a letter
implications of this letter during the testimony of instructing Yancey to obtain identification using a
legal expert Attorney John Barnett, who testified false name and to use it to open a bank account:
that there was no legal means by which defendant “When you get the I.D. for Keisha Jackson, open
could have anticipated being out of custody in a an account at Long Beach Bank. I'll explain to you
few weeks. (See pages 98 to 102, post. ) The 470 what the benefits are.”*470 What defendant
defense did not object to this line of questioning of contends is that the trial court erroneously
the legal expert concerning this letter, nor did the 864 admitted these two sections *864 of the Billy file,
defense object to the prosecutor's closing over defense objection, in violation of Evidence
argument, which also drew this inference. In his Code section 1101. “[Evidence Code] [s]ection
closing argument, defense counsel contested that 1101 subdivision (a) prohibits the admission of
the conspiratorial interpretation of the letter was character evidence if offered to prove conduct in
the most reasonable interpretation, but never conformity with that character trait, sometimes
argued that a conspiratorial interpretation fell described as a propensity to act in a certain way.”
outside the scope of what the letters were admitted (People v. Bryant, Smith and Wheeler (2014) 60
to show. To the extent that defense counsel raises Cal.4th 335, 405–406, 178 Cal.Rptr.3d 185, 334
this issue for the first time on appeal, it is P.3d 573, fn. omitted.) Defendant appears to argue
588 forfeited.*588 b. The Billy File that evidence of uncharged acts by, or connected
41
to, a defendant is presumptively inadmissible unrelated instances of identity fraud was not
under Evidence Code section 1101, subdivision something that was likely to inflame the
(a). But we have rejected this interpretation. prejudices of the jurors.
“section 1101 subdivision (a) ‘expressly prohibits
I. Ervin's Statement, “Lady, Don't Die”
the use of an uncharged offense if the only theory
of relevance is that the accused has a propensity Defendant moved to have a statement made by
(or disposition) to commit the crime charged and Ervin, the shooter at the CompUSA murder,
that this propensity is circumstantial proof that the admitted as nonhearsay to preclude the
accused behaved accordingly on the occasion of prosecution from admitting other evidence to
the charged offense.’ ” (People v. Bryant, Smith impeach the truth of the statement. But the trial
and Wheeler, supra, 60 Cal.4th at p. 406, 178 court agreed with the prosecutor that the statement
Cal.Rptr.3d 185, 334 P.3d 573.) was also admissible for its truth. Subsequently,
neither the defense nor the prosecution presented
The trial court did not admit evidence from the
the statement at trial. Defendant contends that the
Billy file to prove propensity because the court
court's evidentiary ruling was erroneous and
explicitly instructed the jury that it could not use
deprived him of useful evidence. As we conclude
589 *589 the evidence for that purpose. As described
below, the court's evidentiary ruling was not
above, the prosecution sought to admit the Billy
erroneous.
file as relevant to show economic planning
between defendant and Yancey, which reflected 1. Background
their close relationship and their partnership in
As recounted above, Ervin was the gunman at
defendant's various enterprises. The two objected-
CompUSA who fatally shot Kathy Lee. At the
to sections of the Billy file described above were
471 time of Ervin's arrest, a short *471 time after the
also relevant to show a common plan or scheme.
shooting, Police Officer Larry Griswold heard
Both instances involved the manipulation or
Ervin say, “ ‘Oh, my gosh, not a 187, please, lady,
fabrication of official documents to further a
don't die.’ ” Outside the presence of the jury, the
scheme. This modus operandi corroborates
prosecutor raised the issue of the admissibility of
Moore's testimony, ante 203 Cal.Rptr.3d at pages
this statement. The prosecutor objected to the
429 to 430, 372 P.3d at pages 829 to 830, that
statement as hearsay, but contended that the court
defendant obtained a fraudulent driver license for
could admit the statement under Evidence Code
her to rent the U–Haul truck that was intended for
section 1240 as a spontaneous statement. In this
use in the attempt to rob CompUSA.
case, the prosecutor further contended,
Finally, the trial court did not err in denying inconsistent statements later made by Ervin about
defendant's Evidence Code section 352 objections 590 the shooting could be admitted under *590
to these items in the Billy file. The court's limiting Evidence Code section 1202 to impeach Ervin as a
instruction directed the jury not to consider the hearsay declarant. The trial court agreed that the
letters as “showing any criminal disposition.” We statement would come in as a spontaneous
generally presume the jury follows its instructions. statement, if defendant chose to ask Griswold
Thus, the risk of undue prejudice from the proper about it.
use of this evidence (i.e., to show the economic
Defense counsel did not question Officer Griswold
planning relationship between defendant and
about Ervin's statement, and the court excused
Yancey) was low. In light of the charges against
Griswold, subject to recall. Later, during the
defendant for two capital murders, the implication
865 defense case, defendant *865 moved to admit
that defendant was also possibly involved in
Ervin's statement for a nonhearsay purpose only.
Defense counsel did not cite Evidence Code
42
section 1240 but argued that the statement was not Defendant notes that the case law, including
admissible under Evidence Code section 1250 as a People v. Ortiz (1995) 38 Cal.App.4th 377, 389,
statement of declarant's then-existing mental or 44 Cal.Rptr.2d 914, describes two different
physical state. Defendant contended that “[t]his theories under which statements of a declarant's
statement does not directly declare a mental state. present state of mind can be admitted: (1) as
It is merely circumstantial evidence of that state of hearsay under the Evidence Code section 1250
mind and is not hearsay.” At the hearing on the 591 exception for *591 the declarant's present state of
motion, defense counsel acknowledged that the 472 mind,50 and (2) as nonhearsay circumstantial *472
trial court had previously ruled that Ervin's evidence of a declarant's state of mind. (See also 1
statement was admissible under Evidence Code Witkin Cal. Evidence (5th ed. 2012) Hearsay, §
section 1240, but contended that he was now 199, p. 1057 [describing the latter theory as
offering Ervin's statement for a nonhearsay reason. “[s]tatements that do not directly declare a mental
Thus, the prosecutor would not be able to impeach or emotional state, but are merely circumstantial
it. The prosecutor responded that the essence of evidence of it,” which are “outside the hearsay
the issue was, “[W]hat is the relevancy if [Ervin's rule,” and describing the former theory's
statement is] not offered for the truth?” The court “[d]eclarations of mental condition, which directly
agreed with the prosecutor and ruled, “The assert it,” which “are hearsay, and admissible only
statement may be received. The court will permit under this hearsay exception,” i.e., Evidence Code
it to be received for all purposes, subject to your section 1250 ].)
argument. You may argue it as circumstantial
50 Evidence Code section 1250 states:
evidence only.... But I'm going to let it in, but for
other purposes, hearsay, non-hearsay. And if that
leads to impeachment, if it is relevant
impeachment, and in fact, impeachment, then we
will address that issue, also.” The defense
thereafter did not present testimony about the
statement (nor did the prosecution).
2. Analysis
Defendant contends the trial court erred by ruling
it would admit Ervin's testimony for all purposes,
including a hearsay purpose, i.e., for the truth of
the matter stated, such that Ervin's other
statements would be admissible to impeach the
statement Officer Griswold heard. Defendant
contends that this error deprived him of helpful
evidence because the defense consequently
refrained from presenting the statement. The
standard of review for the court's ruling, along
with its determination of issues concerning the
hearsay rule, is abuse of discretion. (People v.
Rowland (1992) 4 Cal.4th 238, 264, 14
Cal.Rptr.2d 377, 841 P.2d 897.)
43
(a) Subject to Section 1252, implication that Ervin had not intended to shoot
evidence of a statement of the the victim. The prosecutor, in turn, indicated his
declarant's then existing state of intention to introduce as impeachment evidence
mind, emotion, or physical
Ervin's conflicting and incriminating statements
sensation (including a statement
about the shooting.52
of intent, plan, motive, design,
mental feeling, pain, or bodily 51 At one point, defense counsel argued to the
health) is not made inadmissible court, “First of all, I don't believe his
by the hearsay rule when: [Ervin's] impeachment would be proper
impeachment, anyway, the statement, for
whatever reason.”
(1) The evidence is offered to
prove the declarant's state of
mind, emotion, or physical
52 The prosecutor described Ervin's other
sensation at that time or at any
statements as follows: “The fact of his
other time when it is itself an
testimony at trial where he denies being the
issue in the action; or
shooter, his statements to the police
department where he talks about pulling
(2) The evidence is offered to the trigger. There [are] a lot of statements
prove or explain acts or conduct of Mr. Ervin having to do with his
of the declarant. participation in this crime.”
(b) This section does not make

admissible evidence of a Admitting the statement as evidence of Ervin's
statement of memory or belief to state of mind would have opened the issue to
prove the fact remembered or being contested by the prosecution. This is true
believed. whether the trial court admitted Ervin's statement
as nonhearsay circumstantial evidence of his state
of mind, or as admissible hearsay under Evidence
First, to the extent that defense counsel sought a Code section 1250 as an expression of his present
ruling from the trial court to generally preclude the state of mind. If the trial court admitted the
prosecution from impeaching Ervin's statement, statement as hearsay, the prosecutor could have
the court did not abuse its discretion in denying 592 sought to *592 impeach Ervin as a hearsay
the motion, and the denial of such a broad declarant under Evidence Code section 1202. If
requested ruling does not require us to decide the the court admitted the statement as nonhearsay, the
question of whether Ervin's statement was prosecutor could have sought, through other
admissible as hearsay.51 Defense counsel never avenues of admission such as Evidence Code
articulated a theory of admissibility for the Ervin section 1230 (declarations against interest), to
statement such that all questions of its truth or introduce Ervin's other incriminating statements to
falsity would be irrelevant—such as, for example, contest defendant's interpretation of Ervin's
if the statement were being offered solely for its statement. Therefore, to the extent that trial
influence on a listener. Defendant now contends counsel sought a broad preemptive ruling against
that defense counsel would have offered Ervin's the introduction by the prosecutor of other
866 *866 statement as circumstantial evidence that statements by Ervin to contest the statement, the
Ervin was shocked and afraid after he shot the court properly denied the motion.
victim, which, he further contends, showed by
44
Alternatively, even if defendant's motion is statement expressed Ervin's hope and desire that
understood more narrowly as one to preclude the his victim not die because he was afraid that he
admission of Ervin's statement as hearsay, the trial would be charged with murder under section 187
473 court did not err *473 because Ervin's statement of the Penal Code. So understood, Ervin's
was admissible as hearsay under Evidence Code statement is a hearsay expression of his then-
section 1250, the state of mind exception to the existing state of mind or emotion, admissible
hearsay rule. An initial issue raised is whether this 593 under Evidence Code section 1250.*593
kind of statement—“Oh, my gosh, not a 187, Furthermore, in this case, the two theories of
please, lady, don't die”—even falls under the admissibility for statements concerning mental
hearsay rule, which defines hearsay evidence as states—hearsay and nonhearsay—are not mutually
“evidence of a statement that was made other than exclusive. (See 1 Witkin, Cal. Evidence, supra,
by a witness while testifying at the hearing and Hearsay, § 40, p. 834, and the cases cited therein.)
that is offered to prove the truth of the matter The trial court's ruling was that Ervin's statement
stated.” (Evid.Code § 1200.) Ervin's statement is was admissible for both hearsay and nonhearsay
grammatically in the form of a command or a 867 purposes. *867 Defendant was free to make the
request. We have often characterized commands argument that Ervin's statement could be used for
not as hearsay but rather as “simply verbal a nonhearsay purpose. But the trial court correctly
conduct consisting of a directive that was neither rejected defendant's arguments that the statement
inherently true nor false.” (People v. Curl (2009) was inadmissible as hearsay and was only
46 Cal.4th 339, 362, 93 Cal.Rptr.3d 537, 207 P.3d admissible as nonhearsay circumstantial evidence.
2 ; id. at p. 361, 93 Cal.Rptr.3d 537, 207 P.3d 2
Finally, defendant contends that the trial court's
[statement to someone “to ‘get rid’ of a pair of
ruling admitting the statement for all purposes
boots”]; see also People v. Jurado (2006) 38
violated defendant's Sixth Amendment right to
Cal.4th 72, 117, 41 Cal.Rptr.3d 319, 131 P.3d 400
confrontation under Crawford, supra, 541 U.S. 36,
and cases cited therein.) But on at least one
124 S.Ct. 1354, because Ervin's statement was
occasion, we have treated a grammatical
testimonial in nature. Once again, defendant failed
command as a hearsay statement and found it
to raise a confrontation clause objection at trial.
admissible under section 1250. (People v. Crew
But, once again, because defendant's trial occurred
(2003) 31 Cal.4th 822, 840, 3 Cal.Rptr.3d 733, 74
before the decision in Crawford, he has not
P.3d 820 [“If you don't hear from me in two
forfeited his Crawford challenge. (People v.
weeks, send the police.” properly admitted as
Rangel, supra, 62 Cal.4th at pp. 1215–1216, 200
hearsay under Evid.Code § 1250, subd. (a)(2) ].)
Cal.Rptr.3d 265, 367 P.3d 649.) In any event,
Ervin's statement should be treated as hearsay defendant's argument fails on the merits. Neither
because, although it is grammatically in the form the prosecution nor the defense introduced Ervin's
of a command, what Ervin was expressing was not statement at trial. Consequently, defendant was not
a command but rather a desire reflecting his state denied the right to confront any witness against
of mind. Ervin's apparent command to the dying him. (Accord, e.g., State v. Durrett
victim not to die cannot be understood literally as
474 *474
a request in which the person issuing the request
does so with the expectation that the recipient has (Ind.App.2010) 923 N.E.2d 449, 455 [where
the ability to comply with it, such as the declarant witness never presented at trial either in person or
in Curl who asked someone to get rid of a pair of through deposition, defendant's right of
boots. (People v. Curl, supra, 46 Cal.4th at p. 361, confrontation with regard to that witness is not
93 Cal.Rptr.3d 537, 207 P.3d 2.) Rather Ervin's implicated].)
45
J. Admission of Taped Phone Call from Defendant 831 P.2d 1178 ; 18 U.S.C. § 2511(1)(c).)
to Liz Fontenot Exceptions are contained in 18 United States Code
section 2511(2). One such exception provides that
As recounted, ante 203 Cal.Rptr.3d at page 431,
it shall not be unlawful for a person to intercept a
372 P.3d at page 831, Inspector Grasso supplied a
communication where “such person is a party to
tape-recorder to Liz Fontenot, the sister of Ardell
the communication or where one of the parties to
Williams, and asked her to record defendant's
the communication has given prior consent to such
conversations when he phoned. The court
interception....” (Id., § 2511(2)(d) ; Otto, at p.
admitted these tape recordings over defense
1097, 9 Cal.Rptr.2d 596, 831 P.2d 1178.) Inspector
objections at trial. Defendant contends the trial
Grasso testified at the motion hearing that
court erred in admitting the tapes because their
Fontenot agreed to his request that she record her
recording violated federal and state laws on
conversations with defendant. Defendant
wiretapping. As we conclude below, the court
acknowledges that “the circumstances of the
properly admitted the recordings.
present interception fit within an exception to the
1. Background federal wiretap laws.” Nonetheless, defendant now
contends that Grasso's vague instructions, lack of
Defendant, in response to the prosecution's
oversight, and failure to follow up with Fontenot
opposition to defendant's motion to suppress other
were “an abuse of the exception provided for by
evidence, contended that the telephone
Congress, and thus outside the scope of his
conversations between defendant and Fontenot,
868 duties.” Defendant *868 fails to present any
recorded at the request of Inspector Grasso, should
authority concerning his abuse of the exception
also be suppressed. Defendant contended that the
argument for the federal statute. As we discuss
recording violated both federal and state
below, defendant also fails to show that a certain
wiretapping statutes. After a hearing on the motion
level of direct and ongoing police supervision is
with testimony and argument by the parties, the
implied or required by the state statute, even if
trial court denied the motion on both federal and
defendant at least has a textual basis for his state
594 state law grounds.*594 2. Analysis
law argument. Defendant does not even point to
a. Federal law 475 any possible textual basis for *475 such an
Title III of the Omnibus Crime Control and Safe argument in regards to the federal statute. This
Streets Act of 1968 provides a “ ‘comprehensive challenge therefore fails.
scheme for the regulation of wiretapping and b. State Law
electronic surveillance.’ ” (People v. Otto (1992) 2
The California Invasion of Privacy Act (§ 630 et
seq.) regulates improper and unauthorized
1178, quoting Gelbard v. United States (1972) 408
electronic surveillance. Violation of the
U.S. 41, 46, 92 S.Ct. 2357, 33 L.Ed.2d 179.) The
wiretapping (§ 631 ) or eavesdropping (§ 632 )
act prohibits the interception or attempt to
provisions can result in the exclusion of
“intercept any wire, oral, or electronic
evidence.53 (§ 631, subd. (c) [“Except as proof in
communication” except as otherwise permitted by
other provisions of the statute. (Otto, at p. 1097, 9 595 an action or *595 prosecution for violation of this
Cal.Rptr.2d 596, 831 P.2d 1178 ; 18 U.S.C. § section, no evidence obtained in violation of this
2511(1)(a).) It also forbids the willful disclosure section shall be admitted in any judicial,
of the contents of communications by a person administrative, legislative, or other proceeding.”];
who knows or has reason to know that the § 632, subd. (d) [same for eavesdropping].) The
information was obtained through an unlawful exclusion of evidence in a criminal trial by these
interception. (Otto, at p. 1097, 9 Cal.Rptr.2d 596, statutory provisions may have been affected by the
46
Right to Truth–in–Evidence provision the recordings rendered the exception in section 633
California Constitution, article I, section 28, inapplicable because the tapes could have been
subdivision (f)(2). The relevant provision states altered or the conversations selectively recorded.
that “relevant evidence shall not be excluded in (Towery, at p. 1127, 220 Cal.Rptr. 475.) The Court
any criminal proceeding,” with the exception of of Appeal rejected this argument, finding that “the
certain statutory provisions not applicable here or looseness of law enforcement's direction to [the
unless two-thirds of the members of each house of informant] in making the tape recordings properly
the Legislature subsequently vote to create an goes to the weight given to those recordings and
exclusionary rule or to revive one. (Ibid. ) But we not their initial admissibility.” (Id. at p. 1129, 220
need not reach this issue concerning article I, Cal.Rptr. 475.)
section 28, subdivision (f)(2) of the California
Defendant seeks to distinguish Towery. Defendant
Constitution, because even if this provision did
points to the fact that, in Towery, the tapes were
not abrogate section 631's exclusionary
given to the police within days of being recorded.
provisions, the claim still fails on the merits.
(Towery, supra, 174 Cal.App.3d at p. 1127, 220
53 The technical differences between Cal.Rptr. 475.) In contrast, in defendant's case,
“eavesdropping” and “wiretapping” under there was a two-year gap between the taping and
sections 631 and 632 make no difference to the handing over of the tape. But we do not find
our legal analysis here.
this factual difference to be dispositive. The
statute's exception requires law enforcement
476 authorities to authorize the tape-recording *476
Section 633 creates an exception to sections 631
activities of civilians, not that they necessarily
and 632 for police officers “or any person acting
596 engage in ongoing supervision *596 of the taping.
pursuant to the direction” of a police officer
The issues raised in Towery about the asserted
“acting within the scope of his or her authority.”
“looseness” of the supervision go toward
Defendant renews on appeal his contention below
reliability issues surrounding the evidence. The
that, because Inspector Grasso did not provide
defendant in Towery contended that without
sufficient supervision to Fontenot's taping
“direct supervision” by the police of the recording
activities, Fontenot was not “acting pursuant to the
869 process, the civilian *869 could “manipulate the
direction” of a police officer within the terms of
recordings, either by erasing portions of
the statute, and therefore the taping did not fall
conversations or electing not to record certain
within that exception. The leading case on the
conversations altogether.” (Id. at p. 1127, 220
meaning of “acting pursuant to the direction” of a
Cal.Rptr. 475.)
police officer in this statute is People v. Towery
(1985) 174 Cal.App.3d 1114, 220 Cal.Rptr. 475 We agree with the Towery court's conclusion that
(Towery ). In Towery, a police officer investigating these reliability issues go toward the weight to be
a conspiracy to steal and resell oil from a number given the recordings, not their admissibility.
of petroleum refineries directed an informant to Defendant here contends that the Court of
record all telephone calls he received at his home Appeal's decision on this point is “not well
regarding the stolen oil. (Id. at p. 1127, 220 reasoned” because it ignores the plain language of
Cal.Rptr. 475.) The officer provided the informant the text that the recording be done “pursuant to the
with tapes for recording, but the informant used direction” of the police. But the interpretive
his own tape recording equipment. Thus, the question itself turns on whether the word
police were not present when the informant made “direction” in the statute simply means initial
the recordings. (Ibid. ) The defendant contended authorization by the police or whether it also
that the lack of police supervision over the entails a certain level of ongoing supervision by
47
the police. Defendant is no more persuasive than defendant argued for admission of evidence that
the defendant in Towery in advancing the Mills, the father of Williams's child, was involved
argument that courts should impose an ongoing in a custody dispute with Williams and had a
supervision requirement on the basis of reliability confrontation with her two months before her
concerns. Once again, we agree that the Court of murder. Defendant proffered the testimony of
Appeal in Towery correctly distinguishes the Kevin Hardeman, Williams's boyfriend, that two
admissibility issue from reliability concerns in or three months before her death, he was in the car
analyzing this statute. with her when Mills tried to run them off the road.
477 Later there ensued a heated exchange of *477
Finally, defendant also contends that Inspector
words between Mills and Williams. The court
Grasso was not “acting within the scope of his ...
excluded Hardeman's testimony. The court recited
authority” under the requirements of the statute
for the record the totality of the third party
because he told Fontenot that he wanted her to
culpability offer about the evidence concerning
record defendant's calls for his investigation of the
Mills and noted that much of it had already been
Las Vegas case. Defendant contends that, because
presented to the jury, namely that Mills and
Grasso was an Orange County District Attorney
Williams were involved in a custody dispute, and
investigator, the investigation of the Las Vegas
that Mills was sufficiently spiteful to have
case did not fall within his duties. Defendant's
informed Williams's employer, the Disney Store,
argument fails. Regardless of what Grasso said to
that she was stealing merchandise and trying to
Fontenot, it was established that at the time he
pass credit cards illegally, which caused her to be
directed her to make the recordings, Grasso was
fired.
investigating defendant for the CompUSA murder
in Orange County and was therefore acting within Defendant also sought to introduce affidavits,
the scope of his authority. contained in a family court file, from members of
Williams's family about the child custody dispute
K. Exclusion of Third Party Culpability Evidence
between the family and Mills. The trial court
Defendant sought to admit evidence that Tony rejected the admission of these affidavits on
Mills, the father of Williams's child, was involved hearsay grounds and because the risk of confusing
in a custody dispute with Williams and had been the jury substantially outweighed the affidavits'
involved in a confrontation with her two months probative value (Evid.Code § 352.)
before her murder. The defense contended that this
evidence suggested that Mills could have
2. Analysis
murdered Williams. The trial court granted the We review a trial court's evidentiary rulings for
prosecutor's motion under Evidence Code sections abuse of discretion. (People v.
350 and 352 to exclude this evidence. Defendant
870 *870
contends the court erred, but the court did not
abuse its discretion. Defendant also presents other, Avila (2006) 38 Cal.4th 491, 578, 43 Cal.Rptr.3d
less developed, claims based on the penalty phase 1, 133 P.3d 1076.) Defendant contends that here
exclusion of evidence for the Mills third party we should instead engage in de novo review
culpability theory. We conclude these other claims because the court used an unconstitutionally high
597 are also without merit.*597 1. Background standard to evaluate admissibility and failed to
consider the totality of the facts. Defendant fails to
The prosecutor made a motion in limine under
show that the court used the wrong standard in
Evidence Code sections 350 and 352 to exclude
evaluating admissibility and, as we discuss below,
certain evidence, including that of third party
the court did consider the totality of the evidence
culpability. During the hearing on the motion,
that defendant presented in his offer of proof.
48
Defendant also seeks to support his argument on Defendant contends that the trial court failed to
appeal based on additional evidence that was not consider all the evidence linking Mills to
offered at the time of the motion. Accordingly, we Williams's murder. But the court summarized
reject defendant's argument that the court's defendant's offer of proof, which defendant did not
admissibility decision is subject to de novo challenge. Furthermore, the additional evidence
review.54 that defendant now points to—that Mills visited
478 the Williams house the same day as Yancey *478
54 Defendant also makes the general
did, that Mills lived within walking distance of the
argument that any exclusion of third party
murder scene, and that Mills did not have an alibi
culpability evidence violates his federal
constitutional right to present a defense.
for the time of the murder—likewise do not show
We have previously rejected this claim, and anything more than motive or opportunity.
defendant gives us no cause to revisit it.
Defendant fails to show that the trial court abused
(People v. Hall (1986) 41 Cal.3d 826, 834–
its discretion in excluding the affidavits of
835, 226 Cal.Rptr. 112, 718 P.2d 99.)
Williams's family members.55 The one affidavit
discussed in detail by the parties was that of
“Only relevant evidence is admissible. (Evid.Code Wardell Williams, Williams's father, who had died
§ 350.) Evidence that raises a reasonable doubt as eight months before the trial began. His affidavit
598 to a defendant's guilt, including *598 evidence stated: “I, Wardell Williams, have been informed
tending to show that another person committed the that the Sheriff's department, which is
crime, is relevant. But evidence that another investigating [Ardell Williams's] murder,
person had a motive or opportunity to commit the considers Tony Mills to be a suspect, although he
crime, without more, is irrelevant because it does has not yet been arrested.” As the prosecutor
not raise a reasonable doubt about a defendant's pointed out in objecting to the admission of this
guilt; to be relevant, the evidence must link this affidavit, Wardell Williams was both unavailable
third person to the actual commission of the crime. as a witness, and his affidavit contained hearsay as
[Citation.] Evidence that is relevant still may be to what the sheriff's department had allegedly told
excluded if it creates a substantial danger of him about Mills. Defendant failed below to offer
prejudicing, confusing, or misleading the jury, or any basis to admit this affidavit over the hearsay
would consume an undue amount of time. (See objection of the prosecutor. On appeal, defendant
Evid.Code § 352.)” (People v. Brady (2010) 50 also fails to present any basis for admissibility.
Cal.4th 547, 558, 113 Cal.Rptr.3d 458, 236 P.3d 55 Defendant also contends that the trial court
312.) improperly considered the credibility of the

family court evidence in its decision not to
The trial court did not abuse its discretion in
admit the third party culpability evidence.
excluding the proffered evidence about Mills But, as discussed below, the court's ruling
because defendant proffered no direct or not to admit the family court evidence is
circumstantial evidence linking Mills to independently supported on hearsay
Williams's murder. As the court noted, Mills grounds.
certainly had animosity toward Williams. This was
reflected in his efforts to have Williams fired from
her job at the Disney Store and in his Finally, defendant contends that evidence of third
confrontations with her. But this showed only party culpability was also relevant in the penalty
motive. phase to show lingering doubt, and the trial court
599 *599 also erred in excluding certain evidence about
Mills. Defendant's claim in the penalty phase fails
49
for the same reasons discussed above in the guilt to support his credibility unless it is offered
871 phase.*871 L. Admission of Tape Recordings of after: [¶] ... [¶] (b) An express or implied
Weaver charge has been made that his testimony at

the hearing is recently fabricated or is
Defendant contends the trial court erred in influenced by bias or other improper
admitting the tape recordings of the interviews of motive, and the statement was made before
Weaver conducted by Inspector Grasso. As we the bias, motive for fabrication, or other
conclude below, the trial court properly admitted improper motive is alleged to have arisen.”
this evidence under Evidence Code section 356,
the rule of completeness.
2. Analysis
1. Background Evidence Code section 356 provides: “Where part
As recounted, ante, 203 Cal.Rptr.3d at pages 428 of an act, declaration, conversation, or writing is
to 429, 372 P.3d at pages 829 to 830, Weaver given in evidence by one party, the whole on the
testified he was present at the CompUSA, and he same subject may be inquired into by an adverse
testified about defendant's presence and party; ... and when a detached act, declaration,
participation in the events that night. During conversation, or writing is given in evidence, any
cross-examination, defense counsel questioned other act, declaration, conversation, or writing
Weaver about interviews he had with Inspector 600 which is necessary to make it *600 understood
Grasso, in which Weaver admitted his may also be given in evidence.” The purpose of
involvement in the CompUSA attempted robbery. Evidence Code section 356 is “to prevent the use
Based on defense counsel's cross-examination of of selected aspects of a conversation, act,
Weaver, the prosecutor sought to introduce the declaration, or writing, so as to create a misleading
tape recordings of the Weaver interviews in their impression on the subjects addressed.” (People v.
entirety. The defense opposed the admission of the Arias (1996) 13 Cal.4th 92, 156, 51 Cal.Rptr.2d
tapes on the ground that they were hearsay for 770, 913 P.2d 980.)
which no exception applied. The prosecutor
initially moved to admit the tapes under Evidence Defendant contends that defense counsel only
Code section 791 subdivision (b), but the trial used the transcripts of Weaver's interview with
court denied the motion.56 The prosecution then Inspector Grasso to refresh Weaver's recollection
moved to admit the tapes under Evidence Code during cross-examination and that no portion of
section 356. The prosecutor argued that it was the transcript was ever put into evidence. But
necessary for the jury to hear the entirety of the defendant acknowledges that he did cross-examine
interviews in order to rebut the misleading Weaver concerning the interview with Grasso and
479 impression that defense *479 counsel had created thus put the conversation itself into evidence as a
during cross-examination that Inspector Grasso subject of cross-examination. Defendant contends
had “spoon-fed” details of the crime to Weaver that, under these circumstances, Evidence Code
during these interviews. After reviewing the section 356 would only allow the complete
transcripts of Weaver's direct and cross- conversation to be admitted in the form of further
examination testimony, the court admitted the questioning of Weaver, rather than allowing the
tapes, which were later played to the jury. admission of the conversation in its recorded form
as a tape or its written form as a transcript. But
56 Evidence Code section 791 subdivision (b)
defendant fails to cite any authority to support his
states: “Evidence of a statement previously
position that, for the purposes of Evidence Code
made by a witness that is consistent with
section 356, a tape recording constitutes a
his testimony at the hearing is inadmissible
different conversation than the conversation
50
recounted by a declarant under cross- requires: a full opportunity to confront and cross-
872 examination.57 As defendant acknowledges, *872 examine” the parties to the conversation. (People
we have taken a broad approach to the v. Stevens, supra, 41 Cal.4th at p. 199, 59
admissibility of the remainder of a conversation Cal.Rptr.3d 196, 158 P.3d 763 ; see also People v.
under Evidence Code section 356 : “ ‘ “In Vines (2011) 51 Cal.4th 830, 862–863, 124
applying Evidence Code section 356 the courts do Cal.Rptr.3d 830, 251 P.3d 943 [concluding that
not draw narrow lines around the exact subject of Evidence Code section 356 is an equitable
inquiry. ‘In the event a statement admitted in exception to the confrontation requirement akin to
evidence constitutes part of a conversation or forfeiture by wrongdoing].)
correspondence, the opponent is entitled to have 57 Defendant does not challenge the accuracy
placed in evidence all that was said or written by of the recording. In rejecting the argument
or to the declarant in the course of such that the taping of a conversation by a
conversation or correspondence, provided the government agent violated a defendant's
other statements have some bearing upon, or Fourth Amendment rights, the United
connection with, the admission or declaration in States Supreme Court stated: “Stripped to
evidence....’ ” ' ” (People v. Harris (2005) 37 its essentials, petitioner's argument
Cal.4th 310, 334–335, 33 Cal.Rptr.3d 509, 118 amounts to saying that he has a
P.3d 545.) Here, whatever the form of the constitutional right to rely on possible
evidence, the “subject of inquiry” under Evidence flaws in the agent's memory, or to
challenge the agent's credibility without
Code section 356 concerned the same
being beset by corroborating evidence that
480 conversation, the one *480 Grasso had with
is not susceptible of impeachment. For no
Weaver. The trial court therefore did not err in
other argument can justify excluding an
admitting the tape recordings under Evidence
accurate version of a conversation that the
601 Code section 356.*601 Finally, defendant contends agent could testify to from memory.”
that the admission of the Weaver tape and (Lopez v. United States (1963) 373 U.S.
transcript violated the confrontation clause of the 427, 439, 83 S.Ct. 1381, 10 L.Ed.2d 462,
Sixth Amendment to the federal Constitution, as fn. omitted.) Such a characterization also
construed in Crawford, supra, 541 U.S. 36, 124 seems applicable to defendant's argument
S.Ct. 1354. Once again, defendant failed to raise a that the prosecutor should have been
confrontation clause objection at trial. But, once restricted to eliciting more of the
again, because defendant's trial occurred before conversations between Inspector Grasso
the decision in Crawford, he has not forfeited his and Weaver only through Weaver's
Crawford challenge. (People v. Rangel, supra, 62 testimony, even though recordings of the
conversations existed.
Cal.4th at pp. 1215–1216, 200 Cal.Rptr.3d 265,
367 P.3d 649.) In any event, defendant's argument
fails on the merits. Both Weaver and Inspector
M. Admission of Expert Testimony on Criminal
Grasso testified at defendant's trial and were
Defense
subject to cross-examination. “The Sixth
Amendment confrontation clause does not bar Defendant contends the trial court erred in
hearsay statements of a witness who testifies at permitting the testimony of defense attorney John
trial and is subject to cross-examination.” (People Barnett, who testified as an expert witness
v. Stevens (2007) 41 Cal.4th 182, 199, 59 regarding the general practice of the defense bar in
Cal.Rptr.3d 196, 158 P.3d 763, citing Crawford, providing discovery information to clients in
supra, 541 U.S. at p. 59, fn. 9, 124 S.Ct. 1354.)
Defendant “received what the confrontation clause
51
criminal cases. As we conclude below, the court counsel's objection and ruled that the prosecutor
did not abuse its discretion in permitting Barnett's could not ask questions about what a competent
testimony. attorney would advise a client concerning specific
trial tactics to be followed or the relative
1. Background importance or unimportance of a witness. But the
The prosecutor's theory of Williams's murder was court ruled that “[t]he other areas of expertise that
that defendant had ordered the killing because he [the prosecution expert witness would touch upon]
knew that she was cooperating with the police and on knowledge of the legal system, upon the
had testified in front of the grand jury about procedures of discovery, the parameters of
defendant's involvement in the CompUSA murder. discovery ... are appropriately the subject of expert
The prosecution further theorized that defendant testimony.” To the extent that defendant did not
had gained access to Williams's grand jury raise the kind of general relevancy challenge
testimony through the discovery of the grand jury below that he now does on appeal, he has forfeited
transcripts that the prosecutor provided to defense it. (Evid.Code § 353.) Even if defendant did not
counsel, which defense counsel shared with forfeit his claim, it fails on the merits. The trial
defendant. The prosecutor presented information court did not err in admitting the expert witness's
about the discovery process by calling Barnett as testimony as relevant under Evidence Code
an expert witness and asking him whether a section 210 —that is, as evidence “having any
competent defense lawyer would have tendency in reason to prove or disprove any
communicated to his or her client the information disputed fact that is of consequence to the
gained as a result of the discovery process. Barnett determination of the action.” An explanation of
testified that a competent defense lawyer would the discovery process and how a criminal defense
have communicated this information. attorney would have shared information with a
client gained through discovery was relevant to
2. Analysis proving the prosecutor's contention that defendant
Defendant contends that the trial court erred in was motivated to kill Williams because he learned
allowing Barnett's testimony about what a that she had been cooperating with the police and
873 competent defense lawyer would have *873 had testified before the grand jury about
602 communicated to a *602 client because such defendant's involvement in the CompUSA murder.
testimony did not tend to prove or disprove what
actually took place in conversations between Defendant contends that Barnett's testimony was
defendant and his defense counsel and was irrelevant because it only contained his opinion
therefore not relevant to any disputed fact in the about what a competent attorney would have
case. As an initial matter, we note that defense done; the testimony did not show what happened
counsel below did not raise this kind of general in the case. Defendant argues that, based on
relevancy challenge to Barnett's testimony. Rather, Barnett's testimony alone, it would only be
defense counsel objected to the prosecutor's speculation that defendant obtained information
posing questions about how a hypothetical defense concerning Williams's testimony before the grand
481 lawyer *481 representing defendant would have jury from trial counsel. But the prosecutor
made specific tactical evaluations based on the presented other evidence indicating that defendant
perceived strength of various witnesses—for had obtained the transcript of Williams's grand
example, whether a hypothetical defense lawyer jury testimony from trial counsel, namely,
would have concluded that Williams's testimony Garrett's testimony that, while he was incarcerated
against defendant would have been with defendant, defendant showed Garrett
unimpeachable. The court agreed with defense transcripts and referred to Williams as the woman
52
who could “put [defendant] away.” Barnett's defendant could have defended against much of
testimony about the discovery process and his the prosecutor's theories concerning defendant's
opinion that a competent lawyer would share guilt was for defendant to take the stand and
certain information with a client was therefore personally deny them, although in doing so he
relevant to help the jury understand Garrett's would have to relinquish his own Fifth
testimony that defendant had indeed obtained the Amendment right not to testify. Indeed, defendant
grand jury transcripts and how that could have contends that he “could not defend himself by
603 happened. *603 Barnett's testimony was not based telling the jury what did occur during his
on speculation about what actually did happen in conversation with his attorney.” To the contrary,
this case, nor did it merely invite the jury to defendant was free to waive either the attorney-
speculate regarding the events—it supported a client privilege or his own privilege not to testify
logical inference the jury could draw from all the if he so desired. He was not actually required to
evidence. waive any of his rights, however, because the
prosecution had the burden of proof, and
Defendant further contends that Barnett's
defendant was not obligated to present any
testimony violated the attorney-client privilege.
particular defense. (See People v. Bryant, Smith,
Defendant's failure to object on this specific
and Wheeler, supra, 60 Cal.4th at p. 368, 178
ground below forfeits his claim on appeal.
Cal.Rptr.3d 185, 334 P.3d 573.) [making a
(Evid.Code § 353.) In any event, defendant fails to
defendant choose between difficult options is not
present any authority that Barnett's testimony
unconstitutional].) Defendant therefore fails to
implicated defendant's attorney-client privilege.
show that his Sixth Amendment right to counsel
Evidence Code section 954 creates a privilege for
604 was violated.*604 V. Guilt Phase Jury Instruction
the nondisclosure of “a confidential
Issues
communication between client and lawyer.”
Barnett did not disclose the content of any Defendant raises claims about various jury
confidential communication between defendant instructions given at the guilt phase. To the extent
and his counsel. Rather, Barnett testified to the that defendant failed to object to any of these
procedures of discovery in a criminal case and instructions below, we assume for the sake of
how this could have been the vehicle by which argument that section 1259 preserves his claims.58
defendant learned about Williams's grand jury
58 Section 1259 states, in relevant part: “The
482 testimony. Because Barnett's testimony *482 did
appellate court may also review any
not disclose any actual communication between
instruction given, refused or modified,
defendant and his attorney, it did not implicate the even though no objection was made thereto
874 attorney-client privilege.*874 To the extent that in the lower court, if the substantial rights
defendant also claims a broader violation of his of the defendant were affected thereby.”
Sixth Amendment right to counsel, his claim also
fails. Defendant contends that the only way
defendant could have defended himself from the A. Instruction on Reasonable Doubt
asserted speculation raised by Barnett's testimony
Defendant contends that CALJIC No. 2.90, the
about what defense counsel might have shared
instruction on reasonable doubt, is
with defendant would be for defense counsel to
incomprehensible to a modern jury. We have
testify about what was actually said, which would
previously affirmed CALJIC No. 2.90 as “ ‘a
have forced defendant to relinquish the privilege
constitutionally sound description of reasonable
behind the right to counsel. But, following the
doubt,’ ” and do so again here. (People v. Turner
logic of defendant's claim, the only way that
(1994) 8 Cal.4th 137, 203, 32 Cal.Rptr.2d 762,
53
878 P.2d 521, quoting People v. Morris (1991) 53 875 persuade Fontenot to persuade *875 Williams to
Cal.3d 152, 214, 279 Cal.Rptr. 720, 807 P.2d 949.) get “amnesia;” (2) defendant's effort to have
Defendant also contends that two instructions on Birney write a threatening letter to Garrett to
circumstantial evidence, CALJIC Nos. 2.01 and dissuade him from talking to the authorities about
2.02, undermined the constitutional requirement of defendant; and (3) defendant's effort to have
proof beyond a reasonable doubt. We have Birney write a letter to Moore to dissuade her
previously rejected this argument and are not from testifying against defendant. Although
persuaded to revisit that conclusion. (People v. defense counsel objected to the first of these three
Koontz (2002) 27 Cal.4th 1041, 1084–1085, 119 instances, the Fontenot incident, he was silent on
Cal.Rptr.2d 859, 46 P.3d 335 ; People v. Kipp the other two, the Garrett and Moore incidents.
(1998) 18 Cal.4th 349, 375, 75 Cal.Rptr.2d 716, Defense counsel also agreed to the giving of
956 P.2d 1169.) CALJIC No. 2.06, on efforts to suppress evidence,
based on the Garrett and Moore incidents.60
B. Instruction with CALJIC No. 2.05 : Efforts by
Third Parties to Fabricate Evidence 60 CALJIC No. 2.06, as given at trial,
provided: “If you find that a defendant

The trial court instructed the jury with CALJIC attempted to suppress evidence against
No. 2.05, which concerns efforts by third parties [himself] in any manner, such as [by the
to procure false or fabricated evidence.59 intimidation of a witness] [by destroying
483 Defendant contends *483 that the instruction evidence] [by concealing evidence], such
should not have been given because there was no attempt may be considered by you as a
evidence that defendant authorized any third party circumstance tending to show a
efforts to fabricate evidence. As we conclude consciousness of guilt. However, such
below, there was evidence to support giving the conduct is not sufficient by itself to prove
guilt, and its weight and significance, if
instruction.
any, are matters for your consideration.”
59 CALJIC No. 2.05, as given at trial
provided: “If you find that an effort to

procure false or fabricated evidence was
2. Analysis
made by another person for the defendant's
benefit, you may not consider that effort as
Defendant challenges on appeal whether there was
tending to show the defendant's evidence presented at trial to support that he
consciousness of guilt unless you also find authorized or encouraged efforts by third parties to
that the defendant authorized such effort. If fabricate or suppress evidence. “ ‘It is an
you find defendant authorized that effort, elementary principle of law that before a jury can
such conduct is not sufficient by itself to be instructed that it may draw a particular
prove guilt, and its weight and inference, evidence must appear in the record,
significance, if any, are matters for your which, if believed by the jury, will support the
consideration.” suggested inference.’ ” (People v. Valdez (2004)
32 Cal.4th 73, 137, 8 Cal.Rptr.3d 271, 82 P.3d
296.) We conclude that such evidence appeared in
1. Background the record. A defendant's authorization of a third
During a hearing on the proposed jury party to procure false or fabricated evidence may
instructions, the prosecutor indicated there were be established by circumstantial evidence. (People
three instances in which CALJIC No. 2.05 was v. Terry (1962) 57 Cal.2d 538, 565–566, 21
605 applicable: *605 (1) defendant's effort, during his Cal.Rptr. 185, 370 P.2d 985.) As discussed, ante
tape-recorded conversation with Liz Fontenot, to 203 Cal.Rptr.3d at pages 464 to 466, 372 P.3d at
54
pages 859 to 861, the calligraphy on the envelope permits only a single inference.’ [Citation.] Thus,
of the letter sent to Moore was distinctive and a court can decide as a matter of law whether a
looked like the style of another letter that Birney witness is or is not an accomplice only when the
had written—the threatening letter to Garrett, facts regarding the witness's criminal culpability
which had been confiscated from defendant's cell are ‘clear and undisputed.’ ” ' ” (People v. Riggs,
five days before Moore received her letter. supra, 44 Cal.4th at p. 312, 79 Cal.Rptr.3d 648,
Birney's fingerprints were found on both the 187 P.3d 363.)
threatening letter addressed to Garrett and on the 62 The jury was instructed with CALJIC No.
envelope of the letter sent to Moore. After guards
3.19 as follows: “You must determine
confiscated the threatening letter addressed to whether the witnesses Ardell Williams,
Garrett from defendant's cell, defendant told Jeanette Moore and/or Matthew Weaver
prison deputies that the letter belonged to him, and were accomplices as I have defined that
he wanted it back. Because defendant admitted term. [¶] The defendant has the burden of
ownership of the letter to Garrett, the jury could proving by a preponderance of the
infer that defendant had “authorized the effort”— evidence that a witness was an accomplice
that is, he had authorized Birney's creation of the in the crimes charged against the
threatening letter. Likewise, the same evidence defendant. [¶] In determining whether the
allowed the jury to infer that defendant had also defendant has met this burden you may
consider evidence presented by the
606 *606 authorized the letter to Moore because the
prosecution as well as that presented by the
envelope that contained it was also in Birney's
defense.”
484 distinctive calligraphic style.61 *484 C. Refusal to
Instruct with CALJIC No. 3.16 on Accomplices as
a Matter of Law 63 CALJIC No. 3.16 (5th ed.1988) provides:
61 Because these two instances supported the If the crime of ______ was committed by
giving of the instruction, we need not anyone, the witness ______ was an
discuss the other instance mentioned by the accomplice as a matter of law and [his]
prosecutor involving defendant's effort to [her] testimony is subject to the rule
persuade Fontenot to convince Williams to requiring corroboration.
get “amnesia.”
The trial court correctly concluded that the

With regard to Weaver, Williams, and Moore, evidence of these three witnesses' status as
defendant contends the trial court erred in accomplices was not “clear and undisputed.” An
instructing the jury with CALJIC No. 3.19, which accomplice must act “with knowledge of the
directs the jury to determine whether certain criminal purpose of the perpetrator and with an
witnesses were accomplices.62 Defendant contends intent or purpose either of committing, or of
the trial court should have instead given CALJIC encouraging or facilitating commission of, the
No. 3.16, which instructs the jury that certain offense.” (People v. Stankewitz (1990) 51 Cal.3d
witnesses are accomplices as a matter of law.63 72, 90–91, 270 Cal.Rptr. 817, 793 P.2d 23.)
Although defendant sought to cast Weaver as a
876 *876 “Section 1111 defines an accomplice as a
culpable participant in the CompUSA attempted
person ‘who is liable to prosecution for the
robbery, Weaver's statements to the police and his
identical offense charged against the defendant on
in-court testimony indicated that he was an
trial....’ ‘ “Whether a person is an accomplice
unwitting participant who believed that defendant
within the meaning of section 1111 presents a
owned the computer store and that he would
factual question for the jury ‘unless the evidence
55
receive $100 for simply moving computers. “[The crime of [as charged in
Although Williams accompanied defendant while Count ______] is lesser to that of
he made a surveillance of the CompUSA store at charged in Count ______.]
607 some point before the attempted *607 robbery,

there was no evidence specifically establishing “Thus, you are to determine
that she provided defendant with any advice or whether [a] [the] defendant[s] [is]
assistance or shared his criminal intent to commit [are] guilty or not guilty of the
a robbery. Similarly, although Moore obtained a crime[s] charged [in Count[s]] or

of any lesser crime[s]. In doing
fraudulent driver license and used it to rent the U–
so, you have discretion to choose
Haul van at defendant's request, there was no
the order in which you evaluate
evidence that she was aware of defendant's
each crime and consider the
intended use of the van or the robbery plan. Even
evidence pertaining to it. You
to the extent the evidence was sufficient for the
may find it productive to consider
jury to reasonably infer that the witnesses were and reach a tentative conclusion
accomplices, the evidence was not clear and on all charges and lesser crimes
undisputed. Thus, their criminal culpability and before reaching any final
possible status as accomplices were jury questions verdict[s]. However, the court
485 to be resolved *485 under CALJIC No. 3.19. The cannot accept a guilty verdict on
court did not err in so instructing the jury. a lesser crime unless you have
unanimously found the defendant
D. Failure to Instruct with CALJIC Nos. 17.10 and not guilty of the [charged]
17.49 [greater] crime.”
Defendant contends that, for count 7, the murder

of Williams, the trial court had a sua sponte duty
65 CALJIC No. 17.49 (5th ed.1988) provides:
to instruct the jury with CALJIC No. 17.10,64
“In this case there are ______ possible
which concerns how the jury should approach
verdicts [as to each count] [as to Counts
deliberations on lesser included offenses, and its
______, ______]. These various possible
companion instruction CALJIC No. 17.49,65
verdicts are set forth in the forms of verdict
which concerns how the jury should complete the which you will receive. Only one of the
verdict forms. As we conclude below, the court possible verdicts may be returned by you
acted within its discretion in not giving these [as to any particular count]. If you all have
instructions. agreed upon one verdict [as to a particular
64 CALJIC No. 17.10 (5th ed.1989 re-rev.) count], the corresponding form is the only
verdict form to be signed [as to that count].
provides: “If you are not satisfied beyond a
The other forms are to be left unsigned.
reasonable doubt that the defendant is
guilty of the crime charged, you may
nevertheless convict [him] [her] of any
lesser crime, if you are convinced beyond a 1. Background
reasonable doubt that the defendant is During the discussion of jury instructions, the trial
guilty of the lesser crime. court said it was considering instructing the jury
with CALJIC No. 17.10, stating that it could be
useful to the jury. Both the prosecutor and defense
counsel stated that they did not believe the
877 instruction *877 was applicable.66 Ultimately, the
court did not *608 instruct with CALJIC No. 17.10
56
608 or its companion instruction, CALJIC No. 17.49. The trial court instructed the jury
It simply instructed the jury on the lesser included with CALJIC No. 8.70 (5th
offense of second degree murder under CALJIC ed.1988) as follows: “Relating to

Count 7 only, you are instructed
Nos. 8.30, 8.70, and 8.71.67 (See Blair,
as follows: Murder is classified
66 Both the prosecutor and defense counsel into two degrees, and if you
appeared to be unaware that second degree should find the defendant guilty
murder is a lesser included offense of first of murder, you must determine
degree murder. (People v. Blair (2005) 36 and state in your verdict as to
Cal.4th 686, 745, 31 Cal.Rptr.3d 485, 115 Count 7 whether you find the
P.3d 1145 (Blair ).) Despite the failure to murder to be of the first or second
raise the issue below, defendant's claim is degree.”
reviewable under section 1259. (See fn. 58,
ante. )
The trial court instructed the jury
with CALJIC No. 8.71 (5th
ed.1988) as follows: “If you are
67 The trial court instructed the jury with
convinced beyond a reasonable
CALJIC No. 8.30 (5th ed.1989) as follows:
doubt that the crime of murder as
“Murder of the second degree is the
charged in Count 7 has been
unlawful killing of a human being with
committed by a defendant, but
malice aforethought when there is
you have a reasonable doubt
manifested an intention unlawfully to kill a
whether such murder was of the
human being but the evidence is
first or the second degree, you
insufficient to establish deliberation and
must give defendant the benefit of
premeditation.”
that doubt and return a verdict
fixing the murder as of the second
degree.”
486 *486

115 P.3d 1145.)
2. Analysis
CALJIC No. 17.10 expresses the so-called
Kurtzman instruction. (People v. Fields (1996) 13
832, citing People v. Kurtzman (1988) 46 Cal.3d
322, 334, 250 Cal.Rptr. 244, 758 P.2d 572.)
“Kurtzman established that the jury may deliberate
on the greater and lesser included offenses in
whatever order it chooses, but that it must acquit
the defendant of the greater offense before
returning a verdict on the lesser offense.” (People
v. Fields, supra, 13 Cal.4th at p. 309, 52
Cal.Rptr.2d 282, 914 P.2d 832.) Contrary to
57
defendant's argument on appeal that CALJIC Nos. Defendant contends his convictions for the
17.10 and 17.49 concern general principles of law burglary and robbery special-circumstance
that a court must give to properly guide the jury's allegations violate the federal Constitution
deliberations, we have held that a trial court 878 because, under *878 Enmund v. Florida (1982) 458
“retains discretion to dispense with instructing the U.S. 782, 797, 102 S.Ct. 3368, 73 L.Ed.2d 1140,
jury pursuant to Kurtzman until such time as a jury the federal Constitution requires an aider and
deadlock arises.” (Fields, at p. 309, 52 Cal.Rptr.2d abettor to capital murder to have the intent to kill,
282, 914 P.2d 832.) The court followed this and California's death penalty law permits the jury
procedure here. There is no indication in the to find the felony-murder special-circumstance
record that the jury deadlocked on Count 7. Thus, allegation true without finding an intent to kill.
the court did not abuse its discretion in dispensing But, as defendant acknowledges, in Tison v.
with CALJIC Nos. 17.10 and 17.49. Arizona (1987) 481 U.S. 137, 158, 107 S.Ct. 1676,
95 L.Ed.2d 127 (tison ), the united states supreme
VI. Special Circumstances Issues
court held that “maJOr partIcipatioN in the felony
The jury found true the five special-circumstance committed, combined with reckless indifference to
allegations charged against defendant. The human life, is sufficient to satisfy the Enmund
following were based on the CompUSA murder: culpability requirement.” Section 190.2,
(1) murder while engaged in the commission of a subdivision (d) provides that, for the purposes of
burglary (§ 190.2, subd. (a)(17)(G) ); and (2) those special circumstances based on the
murder while engaged in the attempted enumerated felonies in paragraph (17) of
commission of a robbery (§ 190.2, subd. (a)(17) subdivision (a), which include robbery and
(A) ). The following were based on the murder of 487 burglary, an aider and abettor must have *487 been
Williams: (3) killing of a witness (§ 190.2, subd. a “major participant” and have acted “with
609 (a)(10) ); and (4) *609 murder while lying in wait reckless indifference to human life....”68 (§ 190.2,
(§ 190.2, subd. (a)(15) ). The last was based on the subd. (d) ; 1 Witkin & Epstein, Cal.Criminal Law,
two murders: (5) the multiple-murder special- supra, Introduction to Crimes, § 110, p. 167; 3
circumstance allegation (§ 190.2, subd. (a)(3) ). Witkin & Epstein, Cal.Criminal Law, supra,
Defendant challenges these special circumstance Punishment, § 460, pp. 613–614.) “This
findings on various grounds. As discussed below, subdivision brings state law into conformity with
we find that the evidence is insufficient to support Tison v. Arizona (1987) 481 U.S. 137, 158, 107
the jury's true findings as to the two special- S.Ct. 1676, 95 L.Ed.2d 127....” (Tapia v. Superior
circumstances pertaining to the CompUSA Court, supra, 53 Cal.3d at p. 298, fn. 16, 279
murder. Consequently, we vacate these two Cal.Rptr. 592, 807 P.2d 434.) Defendant
special-circumstance findings. But we find acknowledges that the court instructed his jury
sufficient evidence to support the jury's true with CALJIC No. 8.80.1, which is in accordance
findings as to the two special-circumstance 610 with section 190.2, subdivision (d).*610 Yet
allegations pertaining to the Williams murder, and defendant contends that the United States Supreme
the true finding pertaining to the multiple-murder Court's decision in Kennedy v. Louisiana (2008)
special-circumstance allegation. 554 U.S. 407, 128 S.Ct. 2641, 171 L.Ed.2d 525
“pointedly suggests that under the Eight
A. Felony–Murder Special–Circumstance
Amendment, Tison's requirement of reckless
Allegations Unconstitutional for an Aider and
disregard for human life is no longer sufficient.”
Abettor Without Intent to Kill
We have previously rejected the argument that
Kennedy has overruled Tison, and defendant gives
us no cause to revisit the issue. (People v.
58
Contreras (2013) 58 Cal.4th 123, 165, 165 judgment, the existence of every fact the trier of
Cal.Rptr.3d 204, 314 P.3d 450 ; People v. Letner fact could reasonably deduce from the evidence,
and Tobin (2010) 50 Cal.4th 99, 197–198, 112 879
488 whether direct or circumstantial. ( *488 *879
Cal.Rptr.3d 746, 235 P.3d 62.) 69 Defendant briefly mentions the fifth special
68 Section 190.2, subdivision (d) now circumstance, the multiple-murder special
provides, in full: “Notwithstanding circumstance, and states, “Obviously, if the
subdivision (c), every person, not the People are unable to prove the elements of
actual killer, who, with reckless the [Kathy] Lee murder (the robbery-
indifference to human life and as a major murder, burglary-murder special
participant, aids, abets, counsels, circumstances outlined above), then the
commands, induces, solicits, requests, or multiple-murder special circumstance must
assists in the commission of a felony likewise fail.” But section 190.2,
enumerated in paragraph (17) of subdivision (a)(3), is applicable when “the
subdivision (a) which results in the death defendant, in this proceeding, has been
of some person or persons, and who is convicted of more than one offense of
found guilty of murder in the first degree murder in the first or second degree.” The
therefor, shall be punished by death or jury found the defendant guilty of two
imprisonment in the state prison for life counts of first degree murder. The
without the possibility of parole if a special multiple-murder special-circumstance
circumstance enumerated in paragraph (17) allegation is independent of the jury's
of subdivision (a) has been found to be true findings on the other special-circumstance
under Section 190.4.” allegations. Contra defendant's argument,
therefore, the jury could have found the
multiple-murder special-circumstance
B. Insufficient Evidence to Support the Findings allegation to be true without finding any of
on the Special Circumstance Allegations the other special-circumstance allegations

to be true.
Defendant challenges the sufficiency of the
evidence for the true findings of four of the special
circumstance allegations.69 The standard of review People v. Prince (2007) 40 Cal.4th 1179, 1251, 57
for a sufficiency of the evidence claim as to a Cal.Rptr.3d 543, 156 P.3d 1015.)
special circumstance is whether, when evidence
that is reasonable, credible, and of solid value is
1. Special Circumstances Relating to
viewed “in the light most favorable to the the CompUSA Crimes: Robbery–
prosecution, any rational trier of fact could have Murder and Burglary–Murder Special
found the essential elements of the allegation Circumstances
beyond a reasonable doubt.” (People v. Dickey As recounted, the evidence presented at trial
(2005) 35 Cal.4th 884, 903, 28 Cal.Rptr.3d 647, established that Ervin shot Lee at CompUSA.
111 P.3d 921 ; People v. Halvorsen (2007) 42 Defendant was charged with first degree murder
Cal.4th 379, 419, 64 Cal.Rptr.3d 721, 165 P.3d and with the robbery-murder and burglary-murder
512.) The standard is the same under the state and special-circumstance allegations based on his
federal due process clauses. (People v. Berryman aider and abettor liability in the CompUSA
(1993) 6 Cal.4th 1048, 1082–1083, 25 Cal.Rptr.2d 611 shooting. There was *611 no evidence presented
867, 864 P.2d 40.) We presume, in support of the from which the jury could find that defendant
intended to kill Lee. Defendant contends that the
evidence at trial was also insufficient to establish
59
that he was a major participant in the CompUSA did the defendant have in planning the criminal
crimes and that he acted with reckless indifference enterprise that led to one or more deaths? What
to human life.70 We need not decide whether role did the defendant have in supplying or using
defendant was a major participant under the lethal weapons? What awareness did the defendant
circumstances of this case because, as we have of particular dangers posed by the nature of
conclude below, the evidence was insufficient to the crime, weapons used, or past experience or
uphold a finding that defendant acted with conduct of the other participants? Was the
reckless indifference to human life. Consequently, defendant present at the scene of the killing, in a
we vacate the robbery-murder and burglary- position to facilitate or prevent the actual murder,
murder special-circumstance findings. But we and did his or her own actions or inactions play a
uphold defendant's death sentence, for the reasons particular role in the death? What did the
discussed below. defendant do after lethal force was used?” (Ibid. )
70 Defendant notes that, at the conclusion of We discussed these factors in relation to the
the prosecutor's case-in-chief, defense nonshooter aider and abettor in Banks, Lovie Troy
counsel brought a motion under section Matthews, and noted that no evidence was
1118.1 for entry of judgment of acquittal introduced establishing his role in planning the
based on the argument that the evidence robbery or in procuring weapons, and that during
was insufficient to show he had the
the robbery and murder he was absent from the
necessary intent for the robbery and
scene, sitting in a car and waiting. (Banks, supra,
burglary-murder special circumstances. He
61 Cal.4th at p. 805, 189 Cal.Rptr.3d 208, 351
contends this was sufficient to preserve his
612 P.3d 330.) We concluded that, on *612 this record,
claim on appeal. In any event, defendant's
sufficiency of the evidence claims against
Matthews was “in short, no more than a getaway
all the special circumstance findings are driver, guilty like Earl Enmund of ‘felony murder
preserved for appeal as a federal simpliciter’
constitutional due process claim under
489 *489
Jackson v. Virginia (1979) 443 U.S. 307,
322, 99 S.Ct. 2781, 61 L.Ed.2d 560. ” and ineligible for the death penalty. (Ibid., fn.
omitted.)
In contrast, in this case, substantial evidence

a. Major Participant
supports the inference that defendant was the
We have recently examined the issue of “under
mastermind who planned and organized the
what circumstances an accomplice who lacks the
attempted robbery and who was orchestrating the
intent to kill may qualify as a major participant so
events at the scene of the crime. Williams's grand
as to be statutorily eligible for the death penalty.”
jury testimony recounted that defendant conducted
(People v. Banks (2015) 61 Cal.4th 788, 794, 189
a surveillance of the CompUSA store, in which he
Cal.Rptr.3d 208, 351 P.3d 330 (Banks ).) The
studied the number of employees and their
ultimate question pertaining to being a major
activities and movements at the store's closing
participant is “whether the defendant's
time. Moore testified that defendant helped her to
participation ‘in criminal activities known to carry
obtain a false driver license and asked her to use
a grave risk of death’ [citation] was sufficiently
the license to rent the U–Haul truck that was
significant to be considered ‘major’ [Citation]' ”
parked near the store. Weaver testified that
(Id. at p. 803, 189 Cal.Rptr.3d 208, 351 P.3d 330.)
defendant was present at the scene of the crime
Among the relevant factors in determining this
880 and was *880 driving towards CompUSA when the
question, we set forth the following: “What role
arrival of the police caused defendant to flee.
60
From the fact that Ervin, the gunman at he [Eric] said, um, the mother or the parent came
CompUSA, sought to escape the scene by to see what was going on and it scared the guy
attempting to jump into defendant's automobile and, [he] um, shot her. He [Eric] said there weren't
(unsuccessful as the effort was), the jury could even supposed to be any bullets in the gun and,
reasonably have inferred that Ervin knew 613 um....”*613 Williams' second conversation with
defendant and that defendant was also engaged in Inspector Grasso on April 1,1992 was also
attempting to rob the store. recorded and played to the jury. There she gives a
similar, if less detailed, account:
The record also contains Williams's testimony
about her conversation with defendant's brother “[O]h man, he [Eric Clark] said, nobody knows
Eric, who described the plan for the robbery and but it went down bad.... What do you mean[?] [A]
how events went awry.71 Because defendant was couple of guys panicked ... they were supposed to
the leader of the robbery enterprise (as established have everything under control.... I guess someone
by the testimony of Williams and Weaver), it is a in there that, oh, someone would be waiting for
reasonable inference that Eric's description them outside or something because they said a
reflected defendant's plan for the robbery. lady that came up to them, one of them had a gun
shot her. I said, are you serious[?] [O]h yeah they
71 Defendant objected, ante 203 Cal.Rptr.3d
490 shot her *490 ... bullets in the gun. I said what[?]
at pages 458 to 459, 372 P.3d at pages 853
[H]e [Eric] said yep.”
to 854, to Agent Holliday's recounting of
Williams's description of her conversation Williams's later grand jury testimony on
with Eric as double hearsay. As discussed September 24, 1992, which was also read at
there, defendant failed to object below and
defendant's trial, described Eric's account of the
has forfeited this objection on appeal.
robbery as follows:
Similarly, trial counsel did not make any
objections to the double hearsay nature of “I [Williams] said speaking of something,
the other instances of Eric's reported whatever happened to the computer store[?] He
speech quoted below. [Eric] said it went down bad. I said what do you
mean[?] He [Eric] said oh, man, they went in there
and they tied up a cashier and a night manager in
In the first of her two April 1, 1992 conversations the bathroom. They handcuffed them to a
with Inspector Grasso—both of which were tape- handicap rail in the bathroom. As they were taking
recorded and played to the jury—Williams care of business in the front I guess one of the—
recounts Eric's account of the robbery as follows: one of the people's mothers came by to say what
“I [Williams] said ‘Eric, by the way, did you ever was taking him so long from closing the store and
do that, um, the little job at that computer store?’ she surprised him, and he turned around and shot
He [Eric] was like, ‘Oh yeah, you hear about it?’ her. And I said what? He [Eric] said yeah. I said
I'm like, ‘what, hear about what?’ He [Eric] said what happened to her. He [Eric] said I don't know,
‘It went, it went, it went down bad,’ or it went but they got out of there.”
down or something. I said ‘What, what are you While these accounts are brief and somewhat
talking about?’ He [Eric] said, uh, they did it and sketchy, they do indicate the role defendant
they had too many people. They, they did it too planned for Ervin in the robbery. Ervin was to be
early where they had to[o] many people inside, in the store as part of the first stage of the robbery.
and, um, I guess, I forget what exactly he [Eric] His role was to handcuff the remaining employees
said, but something about, um, a person inside was so they could be removed from the scene so the
taking too long as far as one of the customers and second phase of the robbery—the removal of the
61
computers—could get underway. Defendant's plan served as the getaway driver. (Enmund, supra, 458
therefore anticipated that employees would be in U.S. at pp. 786–787, fn. 2, 102 S.Ct. 3368.) But
the store, that they would be handcuffed to keep according to the Enmund majority, such evidence
them out of the way and to prevent them from was not considered by the Florida Supreme Court
alerting the police. Some means of having Ervin because the Florida Supreme Court held “that the
compel them to be handcuffed was therefore also only supportable inference with respect to
anticipated. Eric's comments indicate that the use 491 Enmund's participation was that he drove the *491
881 of a gun was anticipated for this, *881 although car.” (Ibid. ) The Enmund majority reversed
apparently the gun was to be unloaded.72 The gun Enmund's death sentence based on the Florida
recovered from Ervin, the murder weapon, had Supreme Court's holding that “driving the escape
been loaded with one bullet. car was enough to warrant conviction and the
death penalty.” (Ibid. ) Consequently, Enmund
72 The significance of defendant's apparent
provides no guidance on this issue.
steps to minimize the risks of violence for
the robbery are discussed at length below We have previously upheld a finding that a
in the analysis of the reckless indifference defendant was a major participant and showed
to human life element. reckless indifference to human life when the
defendant, although not present at the murder, was
“the founder, ringleader, and mastermind behind”
In reviewing the Banks factors concerning major
a criminal gang engaged in carjacking. (People v.
participation in defendant's case, we can conclude
Williams (2015) 61 Cal.4th 1244, 1281, 192
that defendant had a prominent, if not the most
Cal.Rptr.3d 266, 355 P.3d 444.) The defendant in
prominent, role in planning the criminal enterprise
Williams was not present at the scene of some of
that led to the death of Kathy Lee. No evidence
the murders committed by his subordinate gang
was presented about defendant's role in supplying
members, but he had given them “a carjacking
the weapon, although inferences can be drawn
tutorial and instructed them that a resisting victim
from Eric's discussion with Williams that use of a
was to be shot.” (Ibid. ) Because such an
weapon was part of his plan for the robbery. No
instruction is practically the same as instructing a
614 *614 evidence was presented about defendant's
cohort to kill, we held that this was more than
awareness of the particular dangers posed by the
sufficient to uphold a finding that the defendant
crime, beyond his concern to schedule the robbery
was a major participant who acted with reckless
after the store's closing time. No evidence was
indifference to human life. (Id. at p. 1282, 192
presented about his awareness of the past
Cal.Rptr.3d 266, 355 P.3d 444.)
experience or conduct of Ervin, the shooter.
Defendant was in the area during the robbery, But we need not decide whether, under the
orchestrating the second wave of the burglary after circumstances of this case, defendant was a major
Ervin secured the store, but defendant was not in participant for the purposes of section 190.2
the immediate area where Ervin shot Kathy Lee. subdivision (d), because, as discussed below, we
conclude that the evidence was insufficient to
There may be some question as to the amount of
support that he exhibited reckless indifference to
culpability that should be assessed for a planner of
human life.
a felony leading to a murder who is not present
during the immediate circumstances leading to the b. Reckless Indifference to Human
murder. In Enmund, there was some evidence Life
presented at trial that Enmund had been involved
in the planning of the robbery murder for which he
62
As an initial matter, we consider the 492 [citation]....” ( *492 People v. Cavitt (2004) 33
interrelationship between the two elements, being Cal.4th 187, 197, 14 Cal.Rptr.3d 281, 91 P.3d
a major participant, and having reckless 222.) The actus reus requirement for an aider and
615 indifference to *615 human life. Tison stated: abettor to first degree felony murder is aiding and
“These requirements significantly overlap both in abetting the underlying felony or attempted felony
this case and in general, for the greater the that results in the murder. (§§ 31, 189.) The mens
defendant's participation in the felony murder, the rea for an aider and abettor to first degree felony
more likely that he acted with reckless murder is the same as that for the actual shooter:
indifference to human life.” (Tison, supra, 481 “The purpose of the felony-murder rule is to deter
U.S. at p. 153, 107 S.Ct. 1676.) The high court those who commit the enumerated felonies by
also stated: “Although we state these two holding them strictly responsible for any killing
requirements separately, they often overlap. For committed by a cofelon, whether intentional,
example, we do not doubt that there are some negligent, or accidental, during the perpetration or
felonies as to which one could properly conclude attempted perpetuation of the felony.” (People v.
that any major participant necessarily exhibits Cavitt, supra, 33 Cal.4th at p. 197, 14 Cal.Rptr.3d
reckless indifference to the value of human life. 281, 91 P.3d 222.)
Moreover, even in cases where the fact the
In contrast, the actus reus for the felony-murder
defendant was a major participant in a felony did
aider and abettor special circumstance requires
882 not suffice to establish reckless *882 indifference,
more than simply being an aider and abettor of the
that fact would still often provide significant
underlying felony under section 31. The special
support for such a finding.” (Id. at p. 158, fn. 12,
circumstance requires that the defendant be a “
107 S.Ct. 1676.) In Banks, we observed that Tison
‘major participant’ ” in the underlying felony.
did not specify “those few felonies for which any
(Banks, supra, 61 Cal.4th at p. 798, 189
major participation would ‘necessarily exhibit [ ]
Cal.Rptr.3d 208, 351 P.3d 330.) Likewise, the
reckless indifference to the value of human life.’ ”
mens rea requirement for the felony-murder aider
(Banks, supra, 61 Cal.4th at p. 810, fn. 9, 189
and abettor special circumstance is different from
Cal.Rptr.3d 208, 351 P.3d 330.) We surmised a
that required for first degree felony murder. The
possible example would be “the manufacture and
special circumstance requires that the defendant
planting of a live bomb.” (Ibid. ) Yet we also
have “ ‘reckless indifference to human life.’ ”
concluded that armed robbery, by itself, did not
616 (Ibid. )*616 Because the elements are different,
qualify. (Ibid. )
what is sufficient to establish the elements for an
To determine whether a defendant is culpable on aider and abettor of first degree felony murder is
an aider and abettor theory, we have differentiated not necessarily sufficient to establish the elements
the elements required for first degree felony of the felony-murder aider and abettor special
murder from those required for the felony-murder circumstance. In Banks, we rejected the argument
special circumstance. (Banks, supra, 61 Cal.4th at that any defendant involved in a felony
p. 810, 189 Cal.Rptr.3d 208, 351 P.3d 330 ) The enumerated in the first degree felony-murder
statutory definition of first degree felony murder is statute (§ 189 ) automatically exhibited reckless
as follows: “All murder ... which is committed in indifference to human life. (Banks, supra, 61
the perpetration of, or attempt to perpetuate Cal.4th at pp. 809–810, 189 Cal.Rptr.3d 208, 351
[certain enumerated felonies including robbery P.3d 330.) We observed that, although the felonies
and burglary] ... is murder in the first degree.” (§ listed in section 189 are those that the Legislature
189.) “The mental state required is simply the views as “inherently dangerous,” this did not
specific intent to commit the underlying felony collapse the differences between an analysis
63
involving felony murder, on the one hand, and an the robbery, utterly indifferent to the fact that the
analysis of reckless indifference to human life, on desire to rob may have the unintended
the other. (Banks, at p. 810, 189 Cal.Rptr.3d 208, consequence of killing the victim as well as taking
351 P.3d 330.) As we concluded, “[w]hether a the victim's property,” and the “the person who
category of crimes is sufficiently dangerous to tortures another not caring whether the victim
warrant felony-murder treatment, and whether an lives or dies” as two examples of such murderers.
individual participant has acted with reckless (Ibid. ) Notably, both examples involve a
indifference to human life, are different inquiries.” defendant who personally killed the victim—not,
(Ibid. ) as in this case, Enmund, Tison , or Banks, a
vicariously liable defendant who was not the
Because Tison is the source of the language of
actual killer. Nevertheless, these examples provide
section 190.2, subdivision (d), we analyze Tison
617 some indication of the *617 high court's view of
for the meaning of the statutory phrases derived
“reckless indifference,” namely, that it
from it. (Banks, supra, 61 Cal.4th at p. 798, 189
encompasses a willingness to kill (or to assist
Cal.Rptr.3d 208, 351 P.3d 330.) As with “major
another in killing) to achieve a distinct aim, even
participant,” the phrase “reckless indifference to
if the defendant does not specifically desire that
human life” in section 190.2, subdivision (d) is
death as the outcome of his actions.
taken from Tison, where the phrase “reckless
disregard for human life” is alternatively used. The Model Penal Code generally defines acting
(Tison, supra, 481 U.S. at p. 157, 107 S.Ct. 1676.) recklessly as follows: “A person acts recklessly
Tison observed that both the common law and with respect to a material element of an offense
Model Penal Code recognized this reckless when he consciously disregards a substantial and
indifference to the value of human life can be unjustifiable risk that the material element exists
“every bit as shocking in the moral sense as an or will result from his conduct. The risk must be
883 ‘intent to kill.’ ” (Ibid. ) In support *883 of the of such a nature and degree that, considering the
conclusion that such perpetrators may be death nature and purpose of the actor's conduct and the
eligible under the Eighth Amendment to the circumstances known to him, its disregard
federal Constitution, the high court observed that involves a gross deviation from the standard of
historically these kinds of murders have incurred conduct that a law-abiding person would observe
equal opprobrium as intentional ones. (Ibid. [“ in the actor's situation.” (Model Pen.Code § 2.02,
‘[I]n the common law, intentional killing is not the subd. (2)(c).)73
only basis for establishing the most egregious
73 The Model Penal Code definition of
form of criminal homicide.... For example, the
recklessness has been recognized in other
Model Penal Code treats reckless killing,
areas of California criminal law. The
‘manifesting extreme indifference to the value of definition of “recklessly” in the California
human life,’ as equivalent to purposeful and arson statute, section 450, subdivision (f),
493 knowing killing.” (citing *493 Fletcher, Rethinking is closely modeled on the Model Penal
Criminal Law (1978) § 6.5, pp. 447–448 (1978)) ]; Code language and reflects the same
Model Pen.Code § 210.2, subd. (1)(b).) subjective/objective model. As the Court of
Appeal concluded, the phrase “reckless
Tison held that the necessary mens rea for death
disregard” in section 11411 reflects the
eligibility may be “implicit in knowingly engaging Model Penal Code meaning of
in criminal activities known to carry a grave risk “recklessness” because “the word has
of death.” (Tison, supra, 481 U.S. at p. 157, 107 acquired a peculiar meaning in the law of
S.Ct. 1676.) As examples, the high court cited: California—the meaning adopted by the
“the robber who shoots someone in the course of drafters of the Model Penal Code.” (In re
64
Steven S. (1994) 25 Cal.App.4th 598, 615, 74 A robbery in which the only factor
31 Cal.Rptr.2d 644.) supporting reckless indifference to human
life is the fact of the use of a gun is what
we meant by “a garden-variety armed
This definition encompasses both subjective and robbery” in Banks, supra, 61 Cal.4th at
objective elements. The subjective element is the page 802, 189 Cal.Rptr.3d 208, 351 P.3d
defendant's conscious disregard of risks known to 330. We do not otherwise propose to set up
him or her. But recklessness is not determined a judicial standard for what constitutes a
typical armed robbery.
merely by reference to a defendant's subjective
feeling that he or she is engaging in risky
activities. Rather, recklessness is also determined
In determining whether Clark exhibited “reckless
by an objective standard, namely what “a law-
indifference to human life” within the meaning of
abiding person would observe in the actor's
section 190.2, subdivision (d), we look to whether
situation.” (Model Pen.Code § 2.02, subd. (2)(c).)
the prosecution has introduced sufficient evidence
The commentary to this section of the code makes
of “reasonable, credible, and of solid value” to
this clear: “[T]he point is that the jury must
“support a finding beyond a reasonable doubt”
evaluate the actor's conduct and determine
that Clark had the requisite mental state. (Banks,
whether it should be condemned. The Code
proposes, therefore, that this difficulty be accepted
351 P.3d 330.) To aid our analysis, we consider the
frankly, and that the jury be asked to measure the
specific facts of Clark's case in light of some of
substantiality and unjustifiability of the risk by
the case-specific factors that this court and other
asking whether its disregard, given the actor's
state appellate courts have considered in
perceptions, involved a gross deviation from the
upholding a determination of reckless indifference
standard of conduct that a law-abiding person in
to human life in cases involving nonshooter aiders
the actor's situation would observe.” (Model
and abettors to commercial armed robbery felony
Pen.Code & Commentaries com. to § 2.02, p. 237,
murders. Just as we said of the factors concerning
fn. omitted.)
major participant status in Banks, “no one of these
Finally, while the fact that a robbery involves a considerations is necessary, nor is any one of them
gun is a factor beyond the bare statutory necessarily sufficient.” (Banks, supra, 61 Cal.4th
requirements for first degree robbery felony at p. 803, 189 Cal.Rptr.3d 208, 351 P.3d 330.)
murder, this mere fact, on its own and with
nothing more presented, is not sufficient to (1) Knowledge of weapons, and use
494 support a *494 finding of reckless indifference to and number of weapons
human life for the felony-murder aider and abettor The mere fact of a defendant's awareness that a
884 special circumstance.74 ( *884 Banks, supra, 61 gun will be used in the felony is not sufficient to
Cal.4th at p. 809, 189 Cal.Rptr.3d 208, 351 P.3d establish reckless indifference to human life.
618 330.) As *618 we stated: “The Supreme Court thus (Banks, supra, 61 Cal.4th at p. 809, 189
made clear felony murderers like Enmund, who Cal.Rptr.3d 208, 351 P.3d 330.) At the same time,
simply had awareness their confederates were the high court in Tison found significant the fact
armed and armed robberies carried a risk of death, that Ricky and Raymond Tison “brought an
lack the requisite reckless indifference to human arsenal of lethal weapons into the Arizona State
life.” (Ibid. ) Prison,” and Raymond “guarded the victims at
gunpoint while they considered what next to do.”
(Tison, supra, 481 U.S. at p. 151, 107 S.Ct. 1676.)
65
A defendant's use of a firearm, even if the Sentencing for Felony Murder Accomplices under
defendant does not kill the victim or the evidence the Emnund and Tison Standards (2000) 32 Ariz.
does not establish which armed robber killed the St. L.J. 843, 873 (hereafter State Death
victim, can be significant to the analysis of Sentencing). ) In Tison, the high court noted this
reckless indifference to human life. For example, failure to render aid; after the shooting, “ [n]either
the Texas Court of Criminal Appeals upheld a [of the brothers] made an effort to help the
defendant's death sentence against a challenge victims.” (Tison, supra, 481 U.S. at p. 141, 107
based on Enmund in a case in which the defendant S.Ct. 1676.) Other appellate courts have
fired at individuals while attempting to flee from considered relevant a defendant's failure to
an armed robbery, even though no evidence provide aid while present at the scene. The
showed whether it was defendant or one of his Supreme Court of Arizona, in affirming that a
cohorts who had shot the victim. (Selvage v. State defendant had acted with reckless indifference to
(Tex.App.1984) 680 S.W.2d 17, 22.) The court human life, noted that the defendant had “failed to
concluded that “[a]ppellant's action indicate a render aid knowing that one victim might not be
reasonable expectation that the death of the dead.” (State v. Dickens (Ariz.1996) 187 Ariz. 1,
619 deceased or another would result.” (Ibid. )*619 23, 926 P.2d 468.)
Here the evidence introduced by prosecutors
At the same time, physical presence is not
showed only that there was one gun at the scene of
invariably a prerequisite to demonstrating reckless
Lee's killing, that this gun was carried by Ervin
indifference to human life. Where, for example, a
and not defendant, and that this gun had only been
defendant instructs other members of a criminal
loaded with one bullet.
gang carrying out carjackings at his behest to
(2) Physical Presence at the Crime shoot any resisting victims, he need not be present
and Opportunities to Restrain the when his subordinates carry out the instruction in
Crime and/or Aid the Victim order to be found to be recklessly indifferent to the
lives of the victims. (See People v. Williams,
In Tison, the high court stressed the importance of
supra, 61 Cal.4th at pp. 1281–1282, 192
495 presence to culpability. *495 Each Tison brother
Cal.Rptr.3d 266, 355 P.3d 444.)
was physically present during the entire sequence
of events culminating in the murders. (Tison, According to prosecution witness Weaver's
supra, 481 U.S. at p. 158, 107 S.Ct. 1676.) testimony, defendant was waiting across the
Proximity to the murder and the events leading up parking lot for Ervin to secure the store when
to it may be particularly significant where, as in Ervin shot Kathy Lee. No evidence was
Tison, the murder is a culmination or a foreseeable introduced, unlike in Williams, to suggest he
result of several intermediate steps, or where the instructed Ervin to use lethal force. Nor did
participant who personally commits the murder defendant have an opportunity to observe Ervin's
exhibits behavior tending to suggest a willingness response to Lee's unanticipated appearance or to
to use lethal force. In such cases, “the defendant's intervene to prevent her killing. Weaver, who was
presence allows him to observe his cohorts so that 620 a passenger in the car that defendant *620 was
it is fair to conclude that he shared in their actions driving, testified that he (Weaver) saw Lee's body
and mental state.... [Moreover,] the defendant's in the parking lot as they drove up to the loading
presence gives him an opportunity to act as a door. Eric's conversation with Ardell Williams
restraining influence on murderous cohorts. If the implies that the participants in the robbery knew
defendant fails to act as a restraining influence, what had transpired on the night of the crime, but
then the defendant is arguably more at fault for the does not rule out the possibility that they pieced
885 resulting murders.” (McCord, *885 State Death
66
together what happened later. The jury may have was kidnapped and taken to a remote spot
inferred that Clark was aware that Lee had been before being killed.
shot when he drove from the scene without Ervin.
As Weaver and Officer Rakitis testified, Rakitis's Here, defendant planned the robbery for after
patrol car was approaching defendant's vehicle at closing time, when most of the store employees
the time that defendant drove into the scene. One were gone. Defendant anticipated some employees
might infer from this that defendant was motivated would be present, but the plan was to handcuff
to flee the scene by that point to avoid arrest, them in a bathroom, while the robbery itself was
whether or not he had seen the body of the victim. conducted outside of their presence. Thus,
Defendant's failure to help Ervin enter defendant's although the planned robbery was to be of
car and defendant's subsequent abandonment of substantial duration, involving multiple
Ervin can be interpreted either as defendant's individuals loading computers into a U–Haul van,
rejection of Ervin's actions in committing the the period of interaction between perpetrators and
shooting or as defendant's desire to flee the scene 886 victims *886 was designed to be limited. Because
as quickly as possible, without regard for Ervin's 621 the *621 robbery was planned for a public space
welfare or that of the shooting victim. But, unlike and involved the prolonged detention of
496 in the Tisons' case, defendant would have *496 employees, the crime did involve the risk of
known that help in the form of police intervention interlopers, such as Lee, happening upon the
was arriving. Defendant's absence from the scene scene. But overall, the evidence was insufficient to
of the killing and the ambiguous circumstances show that the duration of the felony under these
surrounding his hasty departure make it difficult to circumstances supported the conclusion that
infer his frame of mind concerning Lee's death. defendant exhibited reckless indifference to
human life.
(3) Duration of the Felony
Courts have looked to whether a murder came at (4) Defendant's Knowledge of
the end of a prolonged period of restraint of the Cohort's Likelihood of Killing
victims by defendant.75 The Tisons, the high court A defendant's knowledge of factors bearing on a
noted, “guarded the victims at gunpoint while [the cohort's likelihood of killing are significant to the
group of perpetrators] considered what next to analysis of reckless indifference to human life.
do.” (Tison, supra, 481 U.S. at p. 151, 107 S.Ct. Defendant's knowledge of such factors may be
1676.) Where a victim is held at gunpoint, evident before the felony or may occur during the
kidnapped, or otherwise restrained in the presence felony. Tison, for example, emphasized the fact
of perpetrators for prolonged periods, “there is a that the Tison brothers brought an arsenal of lethal
greater window of opportunity for violence” (State weapons into the prison which they then handed
Death Sentencing, supra, 32 Ariz. St. L.J. at p. over to two convicted murders, one of whom the
882 ), possibly culminating in murder. The brothers knew had killed a prison guard in the
duration of the interaction between victims and course of a previous escape attempt. (Tison, supra,
perpetrators is therefore one consideration in 481 U.S. 137, 151, 107 S.Ct. 1676.) The Supreme
assessing whether a defendant was recklessly Court of Arizona, in affirming that a defendant
indifferent to human life. had acted with reckless indifference to human life,
75 See, for example, Brumbley v. State noted that he was aware that his cohort in a series
(Fla.1984) 453 So.2d 381, which involved of robberies “had a violent and explosive temper.”
an extended robbery in which the victim (State v. Dickens, supra, 187 Ariz. 1 at p. 23, 926
P.2d 468.)
67
The facts in Tison also indicate that the Tison minimize the risk of violence can be relevant to
brothers had advance notice of the possibility that the reckless indifference to human life analysis. If
their father would shoot the family because, in the evidence supports an argument that defendant
response to one of the victim's plea not to be engaged in efforts to minimize the risk of violence
killed, the father stated that he “was thinking in the felony, defendant may raise that argument
about it.” (Tison, supra, 481 U.S. 137, 140, 107 and the appellate court shall consider it as being
S.Ct. 1676.) A defendant's willingness to engage part of all the relevant circumstances that
in an armed robbery with individuals known to considered together go towards supporting or
him to use lethal force may give rise to the failing to support the jury's finding of reckless
inference that the defendant disregarded a “grave indifference to human life. But the existence of
497 risk of death.” ( *497 Tison, supra, 481 U.S. at p. evidence that defendant made some effort to
157, 107 S.Ct. 1676.) But no evidence was minimize the risk of violence does not, in itself,
presented at trial that Ervin was known to have a necessarily foreclose a finding that defendant
propensity for violence, let alone evidence acted with reckless indifference to human life, for
indicating that defendant was aware of such a the reasons set forth below concerning the two-
propensity. Because defendant was across the part nature of the mens rea analysis for
parking lot while Ervin carried out the first phase recklessness under Tison and section 190.2,
of the robbery, defendant had no opportunity to subdivision (d).
observe anything in Ervin's actions just before the
As noted above, recklessness, as defined under the
shooting that would have indicated that Ervin was
887 Model Penal Code and applied in *887 our
likely to engage in lethal violence. This factor thus
caselaw, implicates both subjective and objective
does not increase defendant's culpability.
elements for the offense. This allows us to address
(5) Defendant's Efforts to Minimize how a defendant's apparent efforts to minimize the
the Risks of the Violence During the risks of violence in a felony affects the Tison
Felony reckless indifference to human life analysis. If the
only relevant aspect of recklessness were the
Defendant raises the issue of his apparent efforts
defendant's subjective awareness of his or her
to minimize the risks of violence at CompUSA by
disregard of risk to human life, one might argue
citing the following three factors, all of which
that a defendant's good faith belief that he or she
have some support in the record. First, the
was not undertaking actions involving a
attempted robbery was undertaken after closing
substantial and unjustifiable risk to human life
time, when most of the employees had left the
would be sufficient to negate a conclusion of
622 building. Second, there *622 were not supposed to
reckless indifference to human life under Tison.
be any bullets in the gun, according to Eric's
According to this view, evidence of any effort by
comment to Williams. Third, the gun, as recovered
defendant to minimize the risks of violence could
after the shooting, had only been loaded with one
possibly be sufficient to rebut a conclusion of
bullet.
defendant's subjective awareness of engaging in
The effect of a defendant's apparent efforts to activities risky to human life. But under the Model
minimize the risks of violence in the commission Penal Code definition, although the presence of
of a felony on the analysis of reckless indifference some degree of defendant's subjective awareness
to human life is an issue of first impression. The of taking a risk is required, it is the jury's objective
issue arises here primarily because defendant was determination that ultimately determines
the principal planner and instigator of the robbery. recklessness. Therefore, it would be possible for
We conclude that a defendant's apparent efforts to the defendant to have engaged in apparent efforts
68
to minimize the risk of violence but still be was recklessly indifferent to human life.
determined by the jury to have been reckless, Defendant's culpability for Lee's murder resides in
given all the circumstances known to defendant his role as planner and organizer, or as the one
498 surrounding the *498 crime. Therefore we who set the crime in motion, rather than in his
conclude that a defendant's good faith but actions on the ground in the immediate events
unreasonable belief that he or she was not posing a leading up to her murder. But also relevant to his
risk to human life in pursuing the felony does not culpability as planner, there is evidence supporting
suffice to foreclose a determination of reckless that defendant planned the crime with an eye to
623 indifference to human life under Tison. *623 This minimizing the possibilities for violence. Such a
analysis fits with the holding of Tison. The dissent factor does not, in itself, necessarily preclude a
in Tison described how the Tison brothers finding of reckless indifference to human life. But
“expressed feelings of surprise, helplessness, and here there appears to be nothing in the plan that
regret” over their father's shooting of the kidnap one can point to that elevated the risk to human
victim. (tison, supra, 481 U.S. at p. 166, 107 S.ct. life beyond those risks inherent in any armed
1676 (dis. opn. of brennan, J.).) In order to robbery. Given defendant's apparent efforts to
illustrate this, the dissent quoted the following minimize violence and the relative paucity of
statement by Raymond Tison: “Well, I just think other evidence to support a finding of reckless
you should know when we first came into this we indifference to human life, we conclude that
had an agreement with my dad that nobody would insufficient evidence supports the robbery-murder
get hurt because we [the brothers] wanted no one and burglary-murder special circumstance
hurt. And when this [killing of the kidnap victims] findings, and we therefore vacate them.
came about we were not expecting it. And it took
us by surprise as much as it took the family [the c. Effect of the Vacated Special
victims] by surprise because we were not Circumstance Findings on
expecting this to happen.” (Ibid. ) The fact that the Defendant's Sentence of Death
Tison brothers had taken some step reflecting their The United States Supreme Court held in Brown v.
intent that nobody would get hurt—a purported Sanders (2006) 546 U.S. 212, 220, 126 S.Ct. 884,
agreement with their father—was insufficient, by 163 L.Ed.2d 723, that an “invalidated sentencing
itself, to foreclose the majority's holding that the 888 factor” does not *888 “render [a death] sentence
brothers might have nonetheless exhibited reckless unconstitutional” if “one of the other sentencing
indifference to human life.76 factors enables the sentence to give aggravating
76 Tison did not hold that the brothers
624 weight to *624 the same facts and circumstances.”
As explained in footnote 69, ante, our vacating of
exhibited reckless indifference to human
life, but rather the court remanded the case
the robbery-murder and burglary-murder special
for determination under its newly circumstances does not affect the validity of the
announced standard. (Tison, supra, 481 multiple-murder special-circumstance finding,
U.S. at p. 158, 107 S.Ct. 1676.) which allowed the jury to consider all the facts
and circumstances of the Kathy Lee murder. The
jury could also consider the facts and
In conclusion, after considering those aspects of 499 circumstances of the Kathy *499 Lee murder under
the present felony that provide insight into both the witness-murder special-circumstance finding
the magnitude of the objective risk of lethal connected to the Williams murder, since Williams
violence and a defendant's subjective awareness of was murdered to silence her as a witness in the
that risk, we conclude that there is insufficient CompUSA felony murder, in which Kathy Lee
evidence to support the inference that defendant was murdered. Because the jury was authorized to
69
give aggravating weight to the facts and numerous phone calls to defendant's attorney, to
circumstances of the Kathy Lee murder under the defense investigator, to a pay telephone in the
these two other special-circumstance findings, our Orange County jail accessible to defendant, and to
vacating of the robbery-murder and burglary- the Williams home. Defendant showed Garrett the
murder special-circumstance findings does not transcripts of Williams's grand jury testimony,
require reversal of the death penalty. (People v. stating “this is the woman right here that could put
Debose (2014) 59 Cal.4th 177, 196, 172 me away.” In a letter dated March 9, 1994,
Cal.Rptr.3d 606, 326 P.3d 213.) 500 defendant told *500 Yancey he would “be in bed
with [her] in a few weeks,” even though his jury
2. Insufficient Evidence to Support trial date had not even been set. The jury could
the Witness Killing Special reasonably have inferred that defendant's reference
Circumstance for the Williams to his imminent release reflected his confidence in
Murder 889 his plan to have Williams, the chief *889 witness
Defendant contends there was insufficient against him, murdered. Based on this evidence, the
evidence to support the jury's true finding of the jury could reasonably conclude that defendant
witness-killing special-circumstance allegation for intended to murder Williams to prevent her from
the Williams murder (§ 190.2, subd. (a)(10) ). The testifying against him in the CompUSA case.
prosecution's theory was that defendant 77 As defendant notes, in Yancey's trial,
intentionally planned and orchestrated the murder which was bifurcated from defendant's, the
of Williams through his accomplice (and the jury, while finding her guilty of first degree
probable shooter) Yancey.77 The jury found murder, did not find her personal gun use
defendant guilty of first degree murder for the allegation true. Defendant contends this
Williams murder, and the only theory of first shows that it was equally likely that
degree murder that the prosecutor argued to the another person was involved in the
shooting. However, for the purposes of a
jury was premeditated murder. The mental state
sufficiency of the evidence analysis, “We
required to support a finding of first degree
presume ‘ “in support of the judgment the
premeditated murder is “a deliberate and
existence of every fact the trier could
premeditated intent to kill with malice
reasonably deduce from the evidence.” ’ ”
aforethought.” (People v. Hart (1999) 20 Cal.4th (People v. Prince, supra, 40 Cal.4th at p.
546, 608, 85 Cal.Rptr.2d 132, 976 P.2d 683.) 1251, 57 Cal.Rptr.3d 543, 156 P.3d 1015.)
Under section 190.2, subdivision (c), the mental That Yancey was the trigger person
state required to support a true finding for an aider remains a reasonable inference. In any
and abettor to the witness-killing special- event, the possibility that another person
625 circumstance allegation is “intent to kill.”78 *625 may have assisted Yancey in the murder
Substantial evidence supports the finding that does not absolve defendant of liability.
defendant aided and abetted the Williams murder

with an intent to kill. Williams's mother and sister
78 Section 190.2, subdivision (c) provides in
identified Yancey as the “Carolyn” who delivered
full: “Every person, not the actual killer,
flowers to the Williams household, and they also
who, with the intent to kill, aids, abets,
identified Yancey's voice as that of the “Janet
counsels, commands, induces, solicits,
Jackson,” whose fabricated story of a job requests, or assists any actor in the
interview lured Williams to the street in front of commission of murder in the first degree
the Continental Receiving Company where she shall be punished by death or
was murdered. Yancey's phone records for the imprisonment in the state prison for life
period of January through March 1994 indicated without the possibility of parole if one or
70
more of the special circumstances the circumstances reasonably justify the trier of
enumerated in subdivision (a) has been fact's findings, a reviewing court's conclusion the
found to be true under Section 190.4.” circumstances might also reasonably be reconciled
with a contrary finding does not warrant the
judgment's reversal.” (People v. Zamudio (2008)
Defendant protests that the evidence linking him
43 Cal.4th 327, 357–358, 75 Cal.Rptr.3d 289, 181
to the murder of Williams is predominantly, if not
P.3d 105.)
entirely, circumstantial. But, as we have frequently
stated, “ ‘ “[t]he standard of review is the same in We affirmed another death penalty case, People v.
cases in which the prosecutor relies mainly on Lopez (2013) 56 Cal.4th 1028, 157 Cal.Rptr.3d
circumstantial evidence.” ’ ” (People v. Tully, 570, 301 P.3d 1177 (Lopez ), which was also
supra, 54 Cal.4th at p. 1006, 145 Cal.Rptr.3d 146, predominantly based on circumstantial evidence
282 P.3d 173.) Defendant furthers points to and which has similar facts. To the extent that a
CALJIC No. 2.01 (5th ed.1988), the jury review of Lopez casts light on issues involved in
instruction on the sufficiency of circumstantial the sufficiency of evidence in cases based
evidence, which states, in relevant part, that “if the primarily on circumstantial evidence, we discuss it
circumstantial evidence [as to any particular below. The determination of the sufficiency of the
count] permits two reasonable inferences, one of evidence is case specific and does not depend on
which points to the defendant's guilt and the other intercase review.
to [his] [her] innocence, you must adopt that
In Lopez, defendant Juan Lopez was sitting in a
interpretation which points to the defendant's
jail cell when the defendant's brother Ricardo shot
innocence, and reject that interpretation that points
and killed the defendant's former girlfriend
to [his] [her] guilt.” Defendant acknowledges that
Melinda “Mindy” Carmody (Mindy). The
the evidence in this case establishes
defendant was convicted of first-degree murder
communications between defendant and Yancey,
with a true finding of the witness-killing special-
and also supports the conclusion that defendant
circumstance allegation. (Lopez, supra, 56 Cal.4th
viewed the prospect of Williams's testimony at his
at p. 1036, 157 Cal.Rptr.3d 570, 301 P.3d 1177.)
trial as damaging to him. But defendant contends
The prosecution theory was that the defendant had
that the evidence in this case also permits the
conspired with his brother Ricardo to have Mindy
reasonable inference that Yancey acted on her own
501 killed because *501 Mindy was prepared to testify
and without defendant's instruction in killing
against the defendant at defendant's trial for
Williams, because Yancey was jealous of
assaulting and kidnapping Mindy. (Id. at pp.
defendant's previous relationship with Williams.
1036–1041, 157 Cal.Rptr.3d 570, 301 P.3d 1177.)
The appellate standard of review, however,
Defendant Lopez contended that there was
provides a different role for the appellate court
insufficient evidence that he was an aider and
than that accorded to the jury. “We ‘must accept
abettor of Mindy's murder “because there was no
logical inferences that the jury might have drawn
direct evidence that he instigated the murder or
from the circumstantial evidence. [Citation]’
encouraged or advised its commission.” (Lopez,
[Citation.] ‘Although it is the jury's duty to acquit
a defendant if it finds the circumstantial evidence
301 P.3d 1177.) We observed that there was no
susceptible of two reasonable interpretations, one
requirement that the substantial evidence
of which suggests guilt and the other innocence, it
supporting the defendant's conviction had to be
626 is the jury, not *626 the appellate court that must
direct evidence and described the circumstantial
be convinced of the defendant's guilt beyond a
evidence and the reasonable inferences drawn
reasonable doubt. [Citation.]’ [Citation.] Where
71
from it that supported the conviction. (Id. at pp. for me.” (Ibid. ) We observed that the jury
1069–1070, 157 Cal.Rptr.3d 570, 301 P.3d 1177.) reasonably could have inferred that the “homegirl”
We described how the evidence showed that the in question was Mindy. (Ibid. )
defendant had a strong motive for the murder,
After the shooting, the defendant acted and made
namely, to retaliate against Mindy for testifying
statements that the jury could reasonably have
against him at the preliminary hearing on his
inferred his consciousness of guilty: he did not
890 assault and *890 kidnapping case, and to prevent
profess shock or grief when he was told about the
her from testifying at his trial. (Id. at p. 1070, 157
shooting; he lied when he was asked about when
Cal.Rptr.3d 570, 301 P.3d 1177.) As we stated,
he learned about Mindy's death; and he lied about
citing People v. Estep (1996) 42 Cal.App.4th 733,
not having spoken to either his brother or Uribe in
738, 49 Cal.Rptr.2d 859, the “ presence of motive
the days before the shooting. (Lopez, supra, 56
is a circumstance that may establish guilt.” (Lopez,
Cal.4th at pp. 1070–1071, 157 Cal.Rptr.3d 570,
at p. 1070, 157 Cal.Rptr.3d 570, 301 P.3d 1177.)
301 P.3d 1177.)
We also concluded that “there was also strong
Many of the same kinds of circumstantial
evidence of defendant's active involvement in the
evidence are present in the instant case. Defendant
murder even though he was in custody.” (Lopez,
had a strong motive for the murder of Williams,
namely, to prevent her damaging testimony
301 P.3d 1177 ) We stated that the evidence
against him for his role in the CompUSA murder.
supported the inference that defendant
This was shown by defendant's statement to
orchestrated Mindy's presence at the alley where
502 Garrett, that “this is the woman right here *502
she was murdered by insisting that Mindy's friend
that could put me away.” Defendant's concern that
627 “Happy” be initiated into *627 the girl's gang in
Williams would testify against him was also
the alley rather than in the park where the girls had
shown by defendant's suggestion to Williams's
originally planned to jump her into the gang. (Ibid.
sister that she should tell Williams that she could
) The documentary evidence demonstrated that
come to court and “get complete amnesia.”
one and two days before the shooting and on the
day of the shooting calls were made from and In Lopez, the fact that defendant orchestrated
where defendant was being held in custody to his Mindy's presence at the alley where she was
family's residence where his brother Ricardo lived. murdered was strong circumstantial evidence of
(Ibid. ) his role in the conspiracy. Similarly, in the instant
case there was strong circumstantial evidence that
We observed that the defendant's sister had told
defendant orchestrated the elaborate “Janet
police that, in the days before the killing, she had
Jackson” plan to lure Williams to a desolate
arranged a three way call between the defendant,
location where she could be killed. In the instant
his brother Ricardo, and Uribe, another gang
case there is ample evidence of the phone calls
member, who ultimately supplied the murder
between defendant and Yancey, during which they
weapon that Ricardo used. (Lopez, supra, 56
could have conspired to kill Williams. What the
Cal.4th at p. 1070, 157 Cal.Rptr.3d 570, 301 P.3d
instant case lacks is a confession or a direct
1177 ) We concluded that the jury could
admission of defendant's concerning that
reasonably have inferred that the subject matter of
conspiracy. Lopez has something closer to an
this call was Mindy's murder. (Ibid. ) Gang
628 admission in *628 the defendant's question about
member Alma Cruz testified that, the day before
“killing a homegirl” and the defendant's statement
the shooting, the defendant asked her whether she
that he already had someone doing it for him.
could kill a “homegirl,” which he then followed
However, even this statement is not a direct
by the statement, “I already have someone doing it
72
admission. In the instant case, defendant's special-circumstance allegation requires proof of ‘

comment to Yancey about anticipating being in “ ‘an intentional murder, committed under
bed with her in a few weeks plays a similar role of circumstances which include (1) a concealment of
providing a statement by which the jury could purpose, (2) a substantial period of watching and
infer defendant's knowledge of and involvement in waiting for an opportune time to act, and (3)
the conspiracy to kill Williams. immediately thereafter, a surprise attack on an
unsuspecting victim from a position of advantage.’
The postmurder consciousness of guilt evidence in
” ' [Citation.]” (People v. Bonilla (2007) 41
Lopez is more extensive than in the instant case,
but the postmurder evidence in Lopez mostly
84.) As discussed above, there was sufficient
draws its strength from the premurder evidence.
evidence to find that defendant aided and abetted
The instant case has some post-murder evidence
the killing; the claim here is that the killing does
that implies guilt, namely the fact that Yancey
503 not *503 satisfy the elements of a lying-in-wait
visited defendant at the jail immediately after the
murder.
891 *891 Williams murder. All in all, while Lopez is
arguably a stronger circumstantial evidence case, The evidence supports the first element,
the instant case is not so radically different from it concealment of purpose. Yancey posed as “Janet
that we would not conclude that sufficient Jackson,” fabricated a story about a job interview,
evidence supports defendant's conviction for the 629 and lured *629 Williams to the street in front of the
first degree murder of Williams and the jury's true Continental Receiving Company where Williams
finding for the witness-killing special- was murdered. “ ‘The element of concealment [of
circumstance allegation. purpose] is satisfied by a showing “ ‘that a
defendant's true intent and purpose were
As a final argument against the jury's true finding
concealed by his actions or conduct. It is not
of the witness-killing special-circumstance
required that he be literally concealed from view
allegation, defendant contends that this special
before he attacks the victim.’ ” ' ” (People v. Moon
circumstance allegation should have been
(2005) 37 Cal.4th 1, 22, 32 Cal.Rptr.3d 894, 117
dismissed because Williams was not an
P.3d 591.) A reasonable juror could find that
eyewitness to the CompUSA murder. We have
Yancey's posing as “Janet Jackson” and
previously rejected this argument, noting that
fabricating the job interview story concealed the
“nothing in the language of the applicable special
true purpose of luring Williams to Continental
circumstance or in our decisions applying this
Receiving in order to murder her.
special circumstance supports the conclusion that
the special circumstance is confined to the killing The evidence also supports the second element, a
of an ‘eyewitness,’ as opposed to any other substantial period of watchful waiting. Williams's
witness who might testify in a criminal body was found near her parked car. The
proceeding.” (People v. Jones (1996) 13 Cal.4th investigating officer testified that there were two
535, 550, 54 Cal.Rptr.2d 42, 917 P.2d 1165.) job application forms: one on the trunk of the car,
and the other one on the ground. The one on the
3. Insufficient Evidence to Support ground was partially completed. Patterns in the
Lying–in–Wait Special–Circumstance dust on the trunk of the car, shown in a crime
Finding for the Williams Murder scene photograph, suggest that an arm had been
Defendant contends there was insufficient resting on the hood near where the partially
evidence to support the true finding on the lying- completed form had been. The jury therefore
in-wait special-circumstance allegation for the could have reasonably inferred from this evidence
murder of Ardell Williams. “The lying-in-wait that some substantial period of time elapsed while
73
Williams filled out the job application on the trunk Defendant contends that the judge overseeing
of her car.79 “[T]he lying in wait special defense funding requests erred in denying his
circumstance requires no fixed, quantitative applications for funds to obtain a polygraph expert
minimum time, but the lying in wait must continue to administer a polygraph examination of
for long enough to premeditate and deliberate, defendant, to be used as mitigating evidence of
conceal one's purpose, and wait and watch for an lingering doubt at the penalty phase. Denying the
opportune moment to attack.” (People v. Bonilla, application was not error because the results of a
supra, 41 Cal.4th at p. 333, 60 Cal.Rptr.3d 209, 504 polygraph examination would *504 have been
892 160 P.3d 84.) Here, the facts *892 support that the inadmissible at trial under Evidence Code section
time period was long enough to satisfy this 351.1
element.
1. Background
79 Defendant points out that the date on the
Defense counsel submitted three requests under
application form was March 8, 1994, but
section 987.9 seeking $1,275 for consultation with
that the murder occurred on March 13,
Dr. Edward Gelb, a forensic psychophysiologist.80
1994. Defendant contends that this
suggests Williams started filling out the In denying the final request on August 8, 1997, the
application prior to attending the interview. judge stated that defendant had failed to make a
Defendant does not point to any evidence sufficient offer of proof that polygraph testing had
in the record that Williams could have been granted general acceptance in the scientific
obtained the application form before going community because the witnesses cited in his
to the fabricated job interview. In any motion were actively involved in promoting the
event, that possibility does not mean that a acceptance of polygraph testing, and their
reasonable trier of fact could not have statements were not offered in the traditional offer
inferred from the physical evidence that of proof format. Defense counsel had cited no
Williams was filling out some part of the
authority admitting a defendant's polygraph
application on the trunk of her car when
evidence in either the guilt or penalty phase of a
she was shot.
murder prosecution. The judge further stated that
“generally, where there is a serious question as to
whether certain evidence would be admissible or
Finally, the evidence supports the third element: a
not, the court is not required to approve payment
surprise attack from a position of advantage.
for the evidence on behalf of an indigent
According to the testimony of the medical
defendant until such time that the trial court has
examiner, Williams died as a result of close
determined that the evidence would be
gunshot wound on the left side of the back of her
admissible.” The judge noted that no such
head. Thus, the jury could reasonably infer that
determination had been made in this case and
while Williams was engaged in filling out the
denied the request for funds.
application form, Yancey positioned herself
behind Williams and out of her field of view to 80 Under section 987.9, subdivision (a),
deliver the fatal shot. defense counsel can make confidential
motions seeking funding for an expert from
In sum, substantial evidence supports the jury's a trial court judge other than the one
true finding of the lying-in-wait special- conducting defendant's trial.
630 circumstance allegation.*630 VII. Penalty Phase
Issues
A. Denial of Funds for a Polygraph Test 2. Analysis
74
“ ‘[T]he right to counsel guaranteed by both the noncapital and capital cases, and we are not
federal and state Constitutions includes ... the right persuaded to revisit the issue. (Richardson, at pp.
to effective counsel [citations] and thus also 1032–1033, 77 Cal.Rptr.3d 163, 183 P.3d 1146.)
includes the right to reasonably necessary defense 81 Evidence Code section 351.1, subdivision
services.’ [Citations.] [Citation.] Section 987.9
(a) provides in relevant part:
codifies this right in capital cases.” (Blair, supra, “Notwithstanding any other provision of
36 Cal.4th at pp. 732–733, 31 Cal.Rptr.3d 485, law, the results of a polygraph examination,
115 P.3d 1145.) But “the right to ancillary services the opinion of a polygraph examiner, or
arises only when a defendant demonstrates such any reference to an offer to take, failure to
funds are ‘reasonably necessary’ for his or her take, or taking of a polygraph examination,
defense by reference to the general lines of inquiry shall not be admitted into evidence in any
that he or she wishes to pursue.” (Id. at p. 733, 31 criminal proceeding ... unless all parties
Cal.Rptr.3d 485, 115 P.3d 1145.) “ ‘Section 987.9 stipulate to the admission of such results.”
commits to the sound discretion of the trial court

the determination of the reasonableness of an
631 application for *631 funds for ancillary B. Motion to Exclude the Letters Between
services'....” (People v. Box (2000) 23 Cal.4th Defendant and Yancey and Require Stipulation of
1153, 1184, 99 Cal.Rptr.2d 69, 5 P.3d 130.) “An Close Personal Relationship Between Them
appellate court reviews a trial court's ruling on an As discussed on 203 Cal.Rptr.3d at pages 466 to
application for authorization to incur expenses to 470, 372 P.3d at pages 861 to 864, ante, at the
prepare or present a defense for abuse of guilt phase, over defense objection, the
discretion.” (People v. Alvarez (1996) 14 Cal.4th prosecution introduced letters that defendant wrote
155, 234, 58 Cal.Rptr.2d 385, 926 P.2d 365.) to Yancey to demonstrate the close personal
The trial court did not abuse its discretion in relationship between the two and to support the
denying the application for funds for the prosecution's theory that defendant had conspired
polygraph expert to administer a polygraph test on with Yancey to kill Williams. At the penalty
defendant. As we have stated, “there is no point in retrial, defendant filed a motion in limine to
spending money to obtain inadmissible evidence.” exclude the letters and to have the prosecution
(People v. Daniels (1991) 52 Cal.3d 815, 877, 277 enter into a stipulation that defendant and Yancey
Cal.Rptr. 122, 802 P.2d 906.) The court correctly had a close and intimate relationship. The
observed that defendant failed to establish a prosecutor rejected the defense offer to stipulate
likelihood that a polygraph test by defendant because the offer did not amount to a stipulation to
would be admissible. Indeed, Evidence Code an element of the offense. The trial court allowed
section 351.1 “generally bans the admission of the admission of the letters, observing that the
polygraph test results in criminal proceedings” stipulation “is just not going to do what the People
893 *893 in the absence of a stipulation by the
think they have to prove.”
505 parties.81 ( *505 People v. Richardson (2008) 43 Because this was a penalty retrial, the prosecution
Cal.4th 959, 1032, 77 Cal.Rptr.3d 163, 183 P.3d was entitled to present the facts of the
1146.) Defendant additionally contends that circumstances of the crime, for which the letters
Evidence Code section 351.1 violates the federal were a crucial part of the prosecutor's case. “At
Constitution, particularly in a capital case. But we 632 least where the defense proposal *632 does not
have previously rejected such an argument about constitute an offer to admit completely an element
the unconstitutionality of this provision in both of a charged crime [citation], the ‘ “general rule is
that the prosecution in a criminal case cannot be
75
compelled to accept a stipulation if the effect murder. At the penalty retrial, the prosecutor
would be to deprive the state's case of its called Soft Warehouse salesperson Richard
persuasiveness and forcefulness.” ’ ” (people v. Highness, whose testimony about the theft was
sakarias (2000) 22 cal.4th 596, 629, 94 cal.rptr.2d substantially the same as that he gave at the guilt
17, 995 P.2d 152.) The trial court therefore did not phase. The court gave the jury the following
err in admitting the letters at the penalty retrial. limiting instruction on the Soft Warehouse
evidence: “The evidence concerning the alleged
C. Admission of Evidence of Soft Warehouse
theft from the Soft Warehouse, if believed, is
Burglary
being offered by the people for a limited purpose
As discussed at 203 Cal.Rptr.3d at pages 458 to to show a criminal relationship, if any, between
461, 372 P.3d at pages 854 to 857, ante, at the 633 [defendant] and Ardell Williams.”*633 2. Analysis
guilt phase, the prosecutor presented evidence
Defendant contends the Soft Warehouse theft
that, in November 1990, Williams aided defendant
evidence was inadmissible under (1) section
in stealing laptops from a Soft Warehouse
190.3, (2) Evidence Code section 1101,
computer store. Williams, then a cashier at the
subdivision (a), and (3) Evidence Code section
store, allowed defendant to pass through her
352. We reject all of defendant's contentions and
checkout counter without paying for the laptops.
conclude that the trial court did not err in
Against defense objection, the prosecution
admitting this evidence.
presented this evidence at the penalty retrial. The
trial court did not err in admitting this evidence. a. Section 190.3
1. Background Defendant contends that section 190.3 creates a

blanket prohibition against the admission of
At the penalty phase retrial, defendant filed a
evidence at the penalty phase of criminal activity
motion in limine to exclude any reference to the
not involving violence, and he cites the second
1990 Soft Warehouse theft perpetrated by
paragraph of section 190.3.82 But no such blanket
defendant and Williams as irrelevant to the penalty
determination as evidence in aggravation under prohibition exists. The paragraph defendant cites
section 190.3, factor (b) (criminal activity pertains to the admission of aggravating and
involving force or violence) or factor (c) (prior mitigating evidence at the penalty phase. It does
felony convictions), and as unduly prejudicial not apply to evidence from the guilt phase that is
under Evidence Code section 352. At the hearing, presented at the penalty phase for some other
the prosecutor explained that the evidence of the reason. (See People v. Cordova (2015) 62 Cal.4th
Soft Warehouse burglary was not being offered 104, 140–141, 194 Cal.Rptr.3d 40, 358 P.3d 518 ;
under section 190.3, factors (b) or (c). Rather, the People v. Riel (2000) 22 Cal.4th 1153, 1207–1208,
prosecutor intended to introduce it under section 96 Cal.Rptr.2d 1, 998 P.2d 969.) Here, the
190.3, factor (a) as evidence of the circumstances evidence of the Soft Warehouse theft, which the
506 of Williams's murder. The prosecutor *506 argued prosecution presented at the guilt phase, was not
that the evidence showed the relationship between presented as evidence in aggravation, per se.
defendant and Williams. Thus, the evidence Rather, the court admitted evidence of the Soft
tended to establish defendant's motive to murder Warehouse theft as tending to prove defendant's
Williams to prevent her testifying, which rebutted guilt, which at the penalty retrial was relevant to
defendant's proposed penalty phase argument of rebut the potentially mitigating factor of lingering
894 lingering doubt about the Williams murder.*894 doubt. And the court gave a limiting instruction on
The trial court admitted the evidence as relevant to the purpose for which the jury would consider the
defendant's motive to commit the Williams evidence—the relationship between defendant and
76
Williams. That evidence was relevant to between defendant and Williams that the
corroborate Williams's testimony about the prosecution proposed to introduce, which were the
CompUSA murder and was related to defendant's Las Vegas traveler's check-passing incident, a theft
motive to murder her. at Capri Jewelers, and the Soft Warehouse theft.
82 “However, no evidence shall be admitted
895 The prosecution characterized the defense's *895
position as requesting that only two out of these
regarding other criminal activity by the
defendant which did not involve the use or
three crimes should be used to show the criminal
attempted use of force or violence or which association. The prosecution agreed to not present
did not involve the express or implied evidence on the Capri Jewelers theft. After this
threat to use force or violence.” (§ 190.3, agreement, defense counsel did not raise the issue
2d par.) of the cumulative nature of the Soft Warehouse
theft as evidence of the criminal association
between defendant and Williams. Thus, to the
b. Evidence Code section 1101, subdivision (a) extent that defendant's written motion raised an
Evidence Code section 352 issue on the
Defendant contends the evidence of the Soft
cumulative nature of this evidence, defendant has
Warehouse theft was inadmissible at the penalty
forfeited the claim on appeal.
retrial because of Evidence Code section 1101,
subdivision (a). He essentially repeats his guilt D. Burglary–Murder and Robbery–Murder Special
phase claim, ante 203 Cal.Rptr.3d at pages 458 to Circumstances Arose from Same Course of
461, 372 P.3d at pages 854 to 857, about this Conduct
evidence. At the penalty retrial, defendant failed to
Defendant contends that section 654 prohibited the
object on this basis and thus forfeited his claim on
jury from considering both the robbery-murder
appeal. In any event, the admission of the
and burglary-murder special-circumstance
evidence did not violate this provision because it
allegations because both special circumstances
was admitted for a limited relevant purpose other
related to the same course of conduct at the
than to prove defendant's propensity for engaging
CompUSA store. Section 654 provides that the
in criminal activity, as the court explicitly
same act or omission shall not be punished under
634
507 instructed the jury.*507 *634
more than one provision of law. We have
c. Evidence Code section 352 previously rejected arguments similar to
defendant's and held that section 654 does not bar
Defendant contends evidence of the Soft
a jury in a capital case from considering both
Warehouse theft should have been excluded under
robbery-murder and burglary-murder special
Evidence Code section 352 as substantially more
circumstances, even where the multiple special
prejudicial than probative at the penalty retrial.
circumstances were part of the same course of
Respondent contends that defendant forfeits this
conduct, because each special circumstance “
claim because, although defendant's written
‘involved violation of [a] distinct interest that
motion mentioned an Evidence Code section 352
society seeks to protect, and a defendant who
claim, defendant never sought a ruling, and the
commits both offenses in the course of a murder
trial court never ruled on it. Defendant's claim in
may be deemed more culpable than a defendant
the written motion was that evidence of the Soft
who commits only one.’ ” (People v. Sanders
Warehouse theft should have been excluded as
(1990) 51 Cal.3d 471, 529, 273 Cal.Rptr. 537, 797
cumulative because defendant's criminal
P.2d 561, quoting People v. Bean (1988) 46 Cal.3d
association with Williams was established by
919, 954–955, 251 Cal.Rptr. 467, 760 P.2d 996.)
other facts. In addressing the motion, the parties
635 *635 E. Exclusion of Evidence that Defendant
discussed the instances of criminal association
77
Would Always be Incarcerated in a High Security course of lengthy testimony about prison gangs
Facility if Sentenced to Life Without the and prison conditions, defense counsel asked for
Possibility of Parole and was granted permission to question this
witness about the security levels at the state
Defendant contends the trial court improperly
prisons, of which level 1 was the least restrictive
sustained the prosecutor's objections to questions
and level 4 was maximum security. Enriquez was
posed to defendant's expert witness on prison
then questioned by the prosecutor and defense
conditions about whether defendant would always
counsel about the various recreational privileges
be housed in a high security facility if sentenced to
that were available to a prisoner at the various
life in prison without the possibility of parole.
896 security levels and how a *896 prisoner could
Defendant contends that the exclusion of this
work his way to a lower level through good
testimony prevented defendant from rebutting the
behavior.
prosecutor's argument of defendant's future
dangerousness in prison if sentenced to life in On Monday, October 20, 1997, before expert
prison without the possibility of parole. As we witness Morein testified, the prosecutor made a
conclude below, defendant never sought to admit motion in limine objecting to any questions “asked
the excluded evidence on the basis of the issue of 636 about *636 the nature of the confinement that
future dangerousness, so defendant has forfeited [defendant] may receive,” including his security
this claim on appeal. The court properly excluded classification. In support of his motion, the
508 the *508 evidence on the basis that certain prosecutor cited People v. Thompson (1988) 45
testimony of defendant's future conditions of Cal.3d 86, 139, 246 Cal.Rptr. 245, 753 P.2d 37,
confinement was speculative and irrelevant. which holds that “evidence as to how the death
penalty is carried out should not be admitted.
1. Background [Citation.] Describing future conditions of
The prosecutor raised the issue of the testimony of confinement for a person serving life without
defense expert witness Norman Morein in a possibility of parole involves speculation as to
hearing on Thursday, October 16, 1997. That what future officials in another branch of
morning, the prosecutor received Morein's report government will or will not do.” Defense counsel
which included references to letters that defendant replied that the proposed testimony by Morein
had written from jail. The prosecutor stated that he included the prison security ratings, of which
was not prepared to cross-examine this witness some evidence had already been presented to the
without some time to review the letters. Defense jury, the differences between the security levels,
counsel confirmed that the report had just been the adaptability of inmates at certain ages, and the
given to the prosecutor but stated that he was not work programs that exist in prison institutions.
going to ask Morein about defendant's letters. The prosecutor acknowledged that defendant's
Instead, defense counsel would focus on “generic potential adjustment and adaptability to prison
stuff.” Defense counsel stated that Morein was was admissible. The trial court ruled that
“familiar with the institutions and that LWOP [life “[a]daptability of prison may be acceptable, but
without the possibility of parole] people go to the conditions that an LWOP prisoner will be
levels 3 and levels 4” and that Morein was going serving under is not. You may be able to get
to talk about the difference between a level 3 and a everything you want in from Mr. Morein. [¶] In
level 4. The prosecutor requested that, because of Thompson and in other cases the court talks about
the late nature of the discovery of the report, the irrelevance of telling how a death penalty is
Morein not testify until Monday, to which defense carried out and also what conditions life without
counsel agreed. Defense counsel then called as a possibility will be serving on sentences. That is
witness inmate Marcos Enriquez. During the
78
speculative and not mitigating. It has nothing to do In his closing argument, the prosecutor stated,
with the defendant's character adjusting inside an “What do we do with [defendant]? ... This second
institution. One is relevant and the other is not.” murder he was across the street ... in these big
thick concrete walls with bars. And you have
Morein testified that he was a sentencing
heard testimony about how he is going to adapt to
consultant who had worked for 25 years as a
prison, about how he is a calming influence.... He
probation officer and a correctional attorney in the
has demonstrated that he has the ability—not only
state prison system. He testified, over the
the ability, it happened, to orchestrate, to create, to
prosecutor's objection, about the four security
enter into an agreement to murder someone when
levels in state prison and the differences in
he is in custody. And the person who got murdered
physical security at the various levels. The trial
was out of custody. And what is the punishment of
509 court *509 sustained the prosecutor's relevance
life without possibility of parole, how is the
objection to the question, “Is there ... any other
California Department of Corrections going to
difference between the levels that we have talked
stop that [which] the Orange County Jail could
about level 1, level 2, level 3, level 4 besides the
897 not?”*897 2. Analysis
physical security and the degree of supervision?”
Morein testified, over the prosecutor's objections, As recounted above, through the testimony of both
about how a prisoner received a recommendation Enriquez and Morein, defendant presented a
for his security level, the various types of work substantial amount of evidence concerning prison
programs within the state prison system, and the security classifications and prison conditions. The
adaptability of prisoners to the institution based on trial court, however, sustained objections to three
their ages. The court allowed Morein, over questions in this area: one question inquiring
prosecution objection, to testify that life without about further differences in the conditions at the
the possibility of parole (LWOP) prisoners various security classifications, and two questions
initially were assigned to level 4 institutions but inquiring about the possibility of a LWOP
would be able to go to a level 3 institution if they prisoner's working his way to a lower security
did well enough for a long period of time. But the level (level 1 or 2) through good behavior.
court sustained the prosecutor's objection to the Defendant contends the court erred in excluding
follow-up questions: “Can an LWOP prisoner ever these portions of Morein's testimony because this
get down to a level 2 or level 1 institution;” and prevented the defense from refuting the
“Based upon your background, training and prosecutor's argument of defendant's future
experience in the California Department of dangerousness in prison based on defendant's
Corrections system, have you ever known of an ability, while incarcerated, to order the murder of
LWOP prisoner making his way down to level 2 someone outside of prison.
or level 1 institutions?”
“As a general rule, evidence of prison conditions
During cross-examination, the prosecutor asked is not admissible at a penalty trial. ‘[W]e have
Morein, “Is there anything that is in existence now repeatedly held that evidence concerning
with the department of corrections that can conditions of confinement for a person serving a
prevent an inmate from entering into an agreement sentence of life without possibility of parole is not
637 with a person on the outside to *637 kill a person relevant to the penalty determination because it
on the outside?” Defense counsel objected on the has no bearing on the defendant's character,
basis that the question exceeded the scope of the culpability, or the circumstances of the offense
witness's expertise, called for speculation and a under either the federal Constitution or section
conclusion, and lacked a factual foundation. The 510 190.3, factor (k).’ ” ( *510 People v. Smith (2015)
trial court sustained the objection. 61 Cal.4th 18, 57, 186 Cal.Rptr.3d 550, 347 P.3d
79
530.) “When, however, the prosecution raises an Cal.4th 1133, 1177–1178, 64 Cal.Rptr.2d 892, 938
inference of future dangerous conduct in prison as P.2d 950.) Furthermore, when the prosecutor
part of its case in aggravation, the defendant is sought to raise the issue of whether any existing
entitled to respond with evidence that his chances security arrangement could completely prevent
to inflict harm in prison will be limited.” (Id. at p. defendant from communicating with the outside
58, 186 Cal.Rptr.3d 550, 347 P.3d 530.) world in his cross-examination of Morein, defense
counsel successfully objected to the prosecutor's
Defendant correctly points out that, both at his
question as outside the scope of Morein's
first penalty phase trial and at his penalty retrial,
expertise. Therefore, because defense counsel both
the prosecutor raised in closing argument the issue
failed to present an offer of proof for the relevance
638 of *638 defendant's future dangerousness to people
of Morein's testimony to the issue of
outside of prison, based on defendant's ordering of
communications to the outside world, and because
the killing of Williams while he was incarcerated
defense counsel affirmatively sought to exclude
in the county jail. As we have recently explained
this subject during cross-examination, defendant
in People v. Smith, supra, 61 Cal.4th at page 58,
has failed to preserve this argument on appeal.
186 Cal.Rptr.3d 550, 347 P.3d 530, defendant was
therefore entitled to respond with evidence VIII. Penalty Phase Jury Instruction Issues
rebutting this argument for future dangerousness.
A. Rejection of Special Jury Instructions
But defendant never made clear to the court how
the objected-to questions on prison conditions 1. Modification of CALJIC No. 8.85
were relevant to the argument that defendant
Defendant contends the trial court erred in
would not pose a danger to people outside of
898 rejecting the defense's proposed *898 modified
prison. The potential relevance of the objected-to
version of CALJIC No. 8.85 on the factors in
questions, as defendant now argues on appeal, is
aggravation and mitigation. But defense counsel
that, because defendant was unlikely to be
withdrew his original request for a modified
assigned to a less-severe security level, he was
instruction and requested instead a single
likely to remain in a more-severe security level.
additional sentence for the instruction—“The
Defendant's remaining in a more-severe security
absence of a statutory mitigating factor does not
level would prevent his ability to communicate
constitute an aggravating factor,”—which the
with people outside of prison. But defendant
639 court included when it instructed the jury *639
presented no offer of proof for the relationship
with CALJIC No. 8.85. By withdrawing his
between prison security levels and a prisoner's
modified version of CALJIC No. 8.85, defendant
ability to communicate with people outside of
has forfeited the issue on appeal. In any event, as
prison. On appeal, defendant points to the
we have repeatedly concluded, the standard
excluded question—“[I]s there any other
511 version *511 of CALJIC No. 8.85 is adequate and
difference between the levels ...?”—as a line of
not unconstitutional. (People v. Bryant, Smith, and
inquiry that would “predictably produce evidence”
Wheeler, supra, 60 Cal.4th at p. 456, 178
about security levels and communications with the
Cal.Rptr.3d 185, 334 P.3d 573 ; People v. Moon,
outside world. But while such a question could
supra, 37 Cal.4th at pp. 41–42, 32 Cal.Rptr.3d
possibly have led to such an inquiry, the import of
894, 117 P.3d 591.)
the question was not clear at the time. Defendant
bears the burden of establishing the foundation for 2. Modification of CALJIC No. 8.87
mitigating evidence. (People v. Smith, supra, 61
Cal.4th at p. 56, fn. 16, 186 Cal.Rptr.3d 550, 347 As described, ante 203 Cal.Rptr.3d at pages 464 to
P.3d 530, citing People v. Ramos (1997) 15 466, 372 P.3d at pages 859 to 860, a threatening
letter addressed to Garrett, who ultimately gave
80
incriminating testimony against defendant at the jury the issue of whether the defendant's acts
guilt phase, was confiscated from defendant's cell 640 involved *640 the use, attempted use, or threat of
and offered in evidence against defendant at the force or violence.” (People v. Nakahara (2003) 30
guilt phase. The prosecution also presented the Cal.4th 705, 720, 134 Cal.Rptr.2d 223, 68 P.3d
letter and Garrett's testimony at the penalty retrial. 1190.) “The question whether the acts occurred is
The prosecution offered the threatening letter certainly a factual matter for the jury, but the
under section 190.3 factor (b) as an unadjudicated characterization of those acts as involving an
criminal activity “which involved the use or express or implied use of force or violence, or the
attempted use of force or violence or the express threat thereof, would be a legal matter properly
or implied threat to use force or violence.” The decided by the court.” (Ibid., italics in original.)
trial court instructed the jury, based on CALJIC 83 The relevant part of defendant's proposed
No. 8.87, as follows:
instruction reads as follows: “You may not
“Evidence has been introduced for the purpose of consider as aggravation any evidence of
unadjudicated acts allegedly committed by
showing that the defendant has committed the
Mr. Clark unless you first determine
following criminal activity: An attempt to prevent
beyond a reasonable doubt that (1) the [sic
or dissuade a witness, Alonzo Garrett, from
] Mr. Clark committed the acts; (2) the acts
attending or giving testimony, which involved a
involved the use of or attempted use of
threat or use of force or violence. Before a juror
force or violence or the expressed [sic ] or
may consider any criminal activity as an implied threat to use force or violence; (3)
aggravating circumstance in this case, a juror must the acts were criminal.”
be satisfied beyond a reasonable doubt that the
defendant did in fact commit the criminal activity.
A juror may not consider any evidence of any 3. Proposed Special “Aggravating and
other criminal activity as an aggravating Mitigating Factors” Instruction
circumstance. [¶] It is not necessary for all jurors
Defendant proposed an instruction clarifying
to agree. If any juror is convinced beyond a
which factors could be considered aggravating and
reasonable doubt that such criminal activity
mitigating, and which could only be considered
occurred, that juror may consider that activity as a
mitigating. The trial court refused the instructions,
factor in aggravation. If a juror is not so
512 ruling *512 that CALJIC No. 8.88 was sufficient to
convinced, that juror must not consider that
convey the necessary information. As we have
evidence for any purpose.”
899 repeatedly *899 held, there is no requirement that a
Defendant contends the trial court erred in court instruct a jury as to which of the factors
rejecting his modification of CALJIC No. 8.87, enumerated in section 190.3 are aggravating and
which would have instructed the jury to determine which are mitigating. (People v. Hillhouse (2002)
whether the acts involved the use or attempted use 27 Cal.4th 469, 509, 117 Cal.Rptr.2d 45, 40 P.3d
of force or violence or the express or implied 754 ; People v. Espinoza (1992) 3 Cal.4th 806,
threats to use force or violence.83 Defendant 827, 12 Cal.Rptr.2d 682, 838 P.2d 204.)
contends that the instruction as given to the jury
defined the alleged criminal activity—the letter
4. Proposed Special Scope of
written to Garrett as an attempt to intimidate a Mitigation: No Mitigation Necessary
witness—as one that necessarily involved a threat to Reject Death Instruction
of force or violence. But we have rejected this Defense counsel proposed an instruction on
argument previously, concluding that “CALJIC mitigation, stating, in relevant part, “You may
No. 8.87 is not invalid for failing to submit to the decide, even in the absence of mitigating
81
evidence, that the aggravating evidence is not 84 CALJIC No. 2.11.5 (1989 rev.) (5th
comparatively substantial enough to warrant ed.1988) states: “There has been evidence
death.” The trial court rejected the instruction, in this case indicating that a person other
than a defendant was or may have been
stating that it was adequately covered by CALJIC
involved in the crime for which that
No. 8.88. Defendant contends that CALJIC No.
defendant is on trial. [¶] There may be
8.88 does not inform the jury that it may reject
many reasons why that person is not here
death even in the absence of mitigating evidence.
on trial. Therefore, do not discuss or give
We have previously rejected this argument,
any consideration as to why the other
holding that CALJIC No. 8.88 adequately guides person is not being prosecuted in this trial
selection of the appropriate punishment, including or whether [he] [she] has been or will be
the jury's discretion to reject a death sentence in prosecuted. Your [sole] duty is to decide
the absence of mitigating evidence. (People v. Ray whether the People have proved the guilt of
(1996) 13 Cal.4th 313, 356, 52 Cal.Rptr.2d 296, the defendant[s] on trial.”
914 P.2d 846.)
5. Proposed Special Instruction 8, The trial court initially raised the issue of whether
Scope and Proof of Mitigation: it should give CALJIC No. 2.11.5. It pointed to the
Sympathy Alone is Sufficient to obvious problem that the instruction refers to the
Reject Death Instruction jury's duty to decide whether the prosecution has
Defense counsel requested the following proved the guilt of the defendant, which only
instruction on sympathy, which stated, in relevant applies at the guilt phase and is inapplicable at the
part, “If the mitigating evidence gives rise to penalty phase. The court also questioned whether,
compassion or sympathy for the defendant, the even if the sentence about the jury's deciding guilt
jury may, based upon such sympathy or were omitted, the instruction would benefit the
compassion alone, reject death as a penalty.” The defense, explaining that the language in the
trial court rejected the instruction as argumentative instruction telling the jury not to speculate as to
641 and duplicative of factor (k) in *641 CALJIC No. why another person was not being prosecuted
8.85. The court did not err. We have previously 513 could prevent the jury *513 from considering the
held that “CALJIC No. 8.88 adequately informed credibility and motives of prosecution witnesses
the jurors that they could consider sympathy, Weaver and Moore in connection with their grants
mercy, and compassion in deciding whether death of immunity from prosecution by the prosecutor.
was the appropriate penalty.” (People v. Smith Defense counsel then stated, “I was going to say
(2005) 35 Cal.4th 334, 371, 25 Cal.Rptr.3d 554, ‘withdrawn,’ but it is not on our list. It is the
107 P.3d 229.) court's instruction.” The court answered, “I will
just toss it then.”
B. Failure to Instruct with CALJIC No. 2.11.5 on
Unjoined Perpetrators Because defense counsel considered the trial
court's observation that the instruction would not
Defendant contends the trial court erred by in fact be beneficial to defendant given the
refusing to instruct the jury with CALJIC No. circumstances of the testimony at the penalty
2.11.5 on the absence at trial of other participants phase and trial counsel stated that he would have
in the crimes.84 But as the record indicates, requested withdrawing the instruction if it had
defendant, in effect, withdrew the instruction. been on the defense list, we consider defense
Thus, the defendant forfeited this claim on appeal. counsel's actions to be tantamount to withdrawing
900 the instruction. *900 Defendant therefore forfeits
the claim that the trial court erred in not giving the
82
instruction. Defendant additionally contends that as to such traits would not be likely to
the court had a sua sponte duty to give this commit the crime[s] of which the
instruction at the penalty retrial. But defendant defendant is charged. [¶] If the defendant's
character as to certain traits has not been
fails to cite any authority, nor are we aware of any,
discussed among those who know [him],
642 that *642 a court has a sua sponte duty to instruct
you may infer from the absence of this
with CALJIC No. 2.11.5 at the penalty phase of a
discussion that [his] character in those
trial.85 Therefore, defendant also fails to show any
respects is good.”
error by the court on this basis.
85 There is likewise no authority indicating
that a trial court has a sua sponte duty to

instruct with CALJIC No. 2.11.5 at the D. Intracase Proportionality Review
guilt phase. We need not and do not reach
this issue.
Defendant contends that his death sentence is
unconstitutional because it is grossly
disproportionate to the offense committed and
C. Refusal to Instruct with CALJIC No. 2.40 on disproportionate based on the treatment of the
Traits of Character of Defendant other participants in the CompUSA murder.
Defendant notes that Ervin, who was the shooter,
Defendant contends the trial court erred in and Eric, defendant's brother, who also
refusing to instruct the jury at the penalty retrial participated in the attempted robbery, were
according to CALJIC No. 2.40, Traits of Character separately convicted and sentenced to life in
of Defendant.86 The court properly refused the prison without the possibility of parole.
instruction because it is, by its terms, a guilt phase “[I]ntracase proportionality review examines ‘ “
instruction, and the jury was adequately instructed ‘whether [a] defendant's death sentence is
on consideration of defendant's character by 514 proportionate *514 to his individual culpability,
CALJIC No. 8.85, factor (k), which states in irrespective of the punishment imposed on others.’
pertinent part, “[y]ou shall consider, take into ” ' ” (People v. Maury (2003) 30 Cal.4th 342, 441,
account and be guided by ... any sympathetic or 133 Cal.Rptr.2d 561, 68 P.3d 1.) Defendant
other aspect of the defendant's character or record organized and participated in the CompUSA
that the defendant offers as a basis for a sentence attempted robbery that resulted in Kathy Lee's
less than death, whether or not related to the murder. Later, while incarcerated and awaiting
offenses for which he has been on trial.” (Accord, trial for this first offense, defendant arranged for
People v. Benavides (2005) 35 Cal.4th 69, 112, 24 the murder of Williams to prevent her from
Cal.Rptr.3d 507, 105 P.3d 1099 [quoting].) 643 testifying *643 against him. Although defendant
86 Defendant offered the following, slightly was not the actual killer in either murder, in light
edited, version of CALJIC No. 2.40 (5th of these facts, we cannot conclude his death
ed. 1988): “Evidence has been received for sentence is disproportionate to his individual
the purpose of showing the good character culpability.
of the defendant for those traits ordinarily
IX. Cumulative Errors
involved in the commission of a crime,
such as that charged in this case. [¶] Good Defendant contends the cumulative effect of the
character for the traits involved in the asserted guilt and penalty phase errors requires
commission of the crime[s] charged may
reversal of his conviction and death penalty even
be sufficient by itself to raise a reasonable
if none of the errors is prejudicial individually. We
doubt as to the guilt of a defendant. It may
be reasoned that a person of good character
83
conclude that any errors or assumed errors were Jersey (2000) 530 U.S. 466, 120 S.Ct. 2348, 147
nonprejudicial, whether reviewed separately or 644 L.Ed.2d 435 ) have not altered our *644
cumulatively. conclusions in this regard. (People v. Salcido
(2008) 44 Cal.4th 93, 167, 79 Cal.Rptr.3d 54, 186
X. General Constitutional Challenges to the Death
P.3d 437 ; People v. Hoyos, supra, 41 Cal.4th at p.
Penalty
926, 63 Cal.Rptr.3d 1, 162 P.3d 528.)
Defendant raises various challenges to California's
The absence of intercase proportionality review
death penalty law. We reaffirm our decisions that
does not violate the Eighth and Fourteenth
have rejected similar claims and decline to
Amendments to the United States Constitution.
reconsider them, as follows.
(People v. Thompson, supra, 45 Cal.3d at p. 142,
California law adequately narrows the class of 246 Cal.Rptr. 245, 753 P.2d 37.)
persons eligible for the death penalty. (People v.
The jury may properly consider evidence of
Ramos (2004) 34 Cal.4th 494, 532–533, 21
unadjudicated criminal activity involving force or
901 Cal.Rptr.3d 575, 101 P.3d 478.)*901 Section 190.3,
violence under factor (b) of section 190.3 and
subdivision (a), which calls for consideration of
515 need not make a unanimous *515 finding on factor
“the circumstances of the crime,” is not
(b) evidence. (People v. Brown (2004) 33 Cal.4th
unconstitutionally vague. (People v. Ramos (2004)
382, 402, 15 Cal.Rptr.3d 624, 93 P.3d 244.)
34 Cal.4th 494, 533, 21 Cal.Rptr.3d 575, 101 P.3d
478.) The use of certain adjectives, such as “extreme”
and “substantial,” in the list of mitigating factors
The jury need not make written findings, achieve
does not render the statute unconstitutional.
unanimity as to specific aggravating
(People v. Brown, supra, 33 Cal.4th at p. 402, 15
circumstances, find beyond a reasonable doubt
Cal.Rptr.3d 624, 93 P.3d 244.)
that an aggravating circumstance is proved (except
for § 190.3, factors (b) and (c)), find beyond a The trial court is not required to instruct that
reasonable doubt that aggravating circumstances certain statutory factors can only be considered in
outweigh mitigating circumstances, or find mitigation or to identify which factors are
beyond a reasonable doubt that death is the aggravating and which are mitigating. (People v.
appropriate penalty. (People v. Morrison, supra, Brown, supra, 33 Cal.4th at p. 402, 15 Cal.Rptr.3d
34 Cal.4th at pp. 730–731, 21 Cal.Rptr.3d 682, 624, 93 P.3d 244.)
101 P.3d 568 ; People v. Williams (2010) 49
California's death penalty law does not violate the
equal protection clause of the United States
1000.) Moreover, the jury need not be instructed
Constitution because it provides different
as to any burden of proof in selecting the penalty
procedural rights to capital defendants than those
to be imposed. (People v. Burgener (2003) 29
provided to non-capital defendants. (Blair, supra,
Cal.4th 833, 885, 129 Cal.Rptr.2d 747, 62 P.3d 1.)
36 Cal.4th at p. 754, 31 Cal.Rptr.3d 485, 115 P.3d
The United States Supreme Court's decisions
1145.)
interpreting the Sixth Amendment's jury trial
guarantee (Cunningham v. California (2007) 549 “International law does not prohibit a sentence of
U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 ; United death rendered in accordance with state and
States v. Booker (2005) 543 U.S. 220, 125 S.Ct. federal constitutional and statutory requirements.”
738, 160 L.Ed.2d 621 ; Blakely v. Washington (People v. Friend (2009) 47 Cal.4th 1, 90, 97
(2004) 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d Cal.Rptr.3d 1, 211 P.3d 520.)
403 ; Ring v. Arizona (2002) 536 U.S. 584, 122
S.Ct. 2428, 153 L.Ed.2d 556 ; Apprendi v. New
84
Factors (a), (b), and (i) of section 190.3 are not because it does not affect the validity of the
unconstitutionally vague. (People v. Williams judgment.” (People v. Davis (2009) 46 Cal.4th
(1997) 16 Cal.4th 153, 267, 66 Cal.Rptr.2d 123, 539, 628–629, 94 Cal.Rptr.3d 322, 208 P.3d 78.)
940 P.2d 710.)
The delay inherent in the death penalty appeals
The trial court is not required to delete process is not a basis for concluding that either the
inapplicable mitigating factors, such as factors (e), death penalty itself or the process leading to it
(f), and (g), from CALJIC No. 8.85. (People v. constitutes cruel and unusual punishment. (People
Maury, supra, 30 Cal.4th at pp. 439–440, 133 v. Brown, supra, 33 Cal.4th at p. 404, 15
Cal.Rptr.2d 561, 68 P.3d 1 ; People v. Montiel Cal.Rptr.3d 624, 93 P.3d 244.) We have also
(1993) 5 Cal.4th 877, 937, fn. 31, 21 Cal.Rptr.2d recently rejected a variant of this constitutional
705, 855 P.2d 1277.) argument as raised in Jones v. Chappell
(C.D.Cal.2014) 31 F.Supp.3d 1050, which was
The trial court was not required to define the terms
reversed by Jones v. Davis (9th Cir.2015) 806 F.3d
“death” and “life without the possibility of parole”
538. (People v. Seumanu (2015) 61 Cal.4th 1293,
for the jury. (People v. Holt (1997) 15 Cal.4th 619,
516 192 Cal.Rptr.3d 195, 355 P.3d 384.)*516 XI.
687–689, 63 Cal.Rptr.2d 782, 937 P.2d 213.)
Disposition
California's death penalty statute does not violate
For the reasons given above, we vacate the
the equal protection clause of the United States
burglary-murder and robbery-murder special-
Constitution because it fails to provide uniform
circumstance findings, and otherwise affirm the
902
645 *645 standards to prosecutors *902 across counties
judgment in its entirety.
to guide them in their decisions whether to seek
the death penalty. (People v. Vines, supra, 51 We Concur: CANTIL–SAKAUYE, C.J.,
Cal.4th at pp. 889–890, 124 Cal.Rptr.3d 830, 251 WERDEGAR, CHIN, CORRIGAN, LIU, and
P.3d 943.) The United States Supreme Court's KRUGER, JJ.
decision in Bush v. Gore (2000) 531 U.S. 98, 121
S.Ct. 525, 148 L.Ed.2d 388 has not altered our
conclusion in this regard. (Id. at p. 890, 124
As recounted, ante 203 Cal.Rptr.3d at pages 431
Cal.Rptr.3d 830, 251 P.3d 943.)
to 432 and 445 to 448, 372 P.3d at pages 831 to
“Defendant contends that lethal injection, as a 832 and 843 to 845, Garrett ultimately testified at
method of execution, is unconstitutional under the trial that defendant made incriminating statements
Eighth Amendment to the federal Constitution. A in Garrett's presence about defendant's concern
claim of alleged deficiencies in the method of a that Williams would testify against defendant.
future execution is not cognizable on appeal
85

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No.

No. S066940. allegations charged, as follows: that defendant

Bill Lockyer, Edmund G. Brown, Jr., and Kamala

admitted as true the enhancement received a sentence of life imprisonment

Defendant denied involvement in either murder.

another man was in the rear passenger seat.

In September 1991, sometime after Ardell

don't know nothing about me. Whatever she's told

A loss prevention officer at the Disney Store in

motion challenging the order “off calendar”; and

1. Background prosecutor's position at this time as

the time of the restrictions on defendant's

Defendant unsuccessfully made a pretrial motion

meaningful opportunity to closely observe Garrett refused to even be sworn as a witness at

coconspirator statements is required to present pages 53 to 57, post.

“independent evidence to establish prima facie the

we have stated in declining to consider to which defendant was not a party—falls

comparative juror analysis in a first-stage under sections 977 and 1043.

Batson/Wheeler claim, “[w]here, as here, no

Defendant contends the trial court should have 1. Background

concerning such matter shall be stricken.” subdivision (b) adds the

defendant's collaboration with Williams in a 1990 identity, absence of mistake or

defendant's contention that Grasso's discussion G. Admission of Pseudonymous Letter Sent to

handwriting, to inmate Gordon Bridges asking backwards. From a man to a

the existence of the preliminary fact by a evidence is sufficiently substantial is a

(b) This section does not make

312.) improperly considered the credibility of the

Weaver charge has been made that his testimony at

provided: “If you find that a defendant

provided: “If you find that an effort to

prosecutor involving defendant's effort to [her] testimony is subject to the rule

persuade Fontenot to convince Williams to requiring corroboration.

The trial court correctly concluded that the

he made a surveillance of the CompUSA store at charged in Count ______.]

607 some point before the attempted *607 robbery,

a robbery. Similarly, although Moore obtained a crime[s] charged [in Count[s]] or

Defendant contends that, for count 7, the murder

offense of second degree murder under CALJIC ed.1988) as follows: “Relating to

supra, 36 Cal.4th at p. 745, 31 Cal.Rptr.3d 485,

on the Special Circumstance Allegations the other special-circumstance allegations

In contrast, in this case, substantial evidence

shot when he drove from the scene without Ervin.

defendant aided and abetted the Williams murder

admission. In the instant case, defendant's special-circumstance allegation requires proof of ‘

A. Denial of Funds for a Polygraph Test 2. Analysis

commits to the sound discretion of the trial court

1. Background Defendant contends that section 190.3 creates a

that a trial court has a sua sponte duty to

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