Supreme Court of California Justia
Docket No. S042346
People v. Jones

Filed 8/26/13



Plaintiff and Respondent,




San Diego County

Defendant and Appellant.

Super. Ct. No. CR 136371

A jury in San Diego County Superior Court convicted defendant Bryan

Maurice Jones in 1994 of the first degree murders of JoAnn Sweets and Sophia

Glover (Pen. Code, §§ 187, 189; all further statutory references are to this code

unless otherwise indicated), attempting to murder Maria R. and Karen M.

(§§ 664/187), and committing forcible rape, sodomy and oral copulation against

Karen M. (§§ 261, subd. (a)(2), 286, subd. (c), 288a, subd. (c)). The jury further

sustained an allegation that defendant used a deadly weapon when attempting to

murder Maria R. (§ 12022, subd. (b).) Finally, the jury sustained three special

circumstance allegations rendering defendant eligible for the death penalty: that

he murdered both Sweets and Glover during the commission or attempted

commission of the crime of sodomy (§ 190.2, subd. (a)(17)), and that he

committed multiple murders (§ 190.2, subd. (a)(3)). Although defendant was also

charged with murdering two additional victims, one with special circumstances,

the jury failed to return a verdict on those counts, and they were not retried. On


April 6, 1994, following a penalty trial, the jury set the punishment at death under

the 1978 death penalty law. (§ 190.1 et seq.) This appeal is automatic. (§ 1239,

subd. (b).) We affirm the judgment in all respects.


A. Facts

In 1985 and 1986, defendant lived with his mother, Ann Jones, in an

apartment on 51st Street in San Diego. Ann Jones worked 24 hours a day, five

days a week, as an in-home nurse tending to the needs of an elderly woman named

Tillie Wilsie, who lived on Mississippi Street, also in San Diego. Defendant

would often spend weekends at the Wilsie home, including time when his mother

was not present. He had a key to the Wilsie home.

At the time of the crimes, defendant was six feet five inches tall, weighed

approximately 300 pounds, and was familiar with the martial art of karate. He

occasionally borrowed his sister‘s car, a 1980 Datsun ―280Z‖ with faded blue two-

tone paint.

1. Maria R.

Maria R. testified that on August 15, 1985, she was homeless and living on

the street. She used heroin two or three times a week but was not high that day.

She struck up a conversation with defendant, and he offered her $20 for sex. She

did not usually engage in prostitution but would occasionally do so. She agreed,

and they took the bus to defendant‘s apartment on 51st Street. Maria R. had sex

with defendant in the apartment, he paid her, and she took a shower. When she

emerged from the shower, defendant had a rope in his hand. He forcibly placed

the rope around her neck, jumped on her back and started choking her with his

hands and the rope. She blacked out; when she awoke, defendant attacked her

again, and she again blacked out. When she awoke a second time, defendant told


her she would have to orally copulate him if she wanted him to let her go. She

complied because she ―wanted [her] life‖ and had no choice. Defendant released

her after first taking back his $20.

Although Maria R. had had problems with the police before, she reported

the crime to them. She accompanied police to the apartment building where she

had been assaulted and hid while they brought defendant outside. Defendant was

taken into custody but after his release a few days later, she returned to the

apartment with some people from a church, who apparently tried to dissuade

defendant from attacking her again.

The jury found defendant guilty of attempting to murder Maria R. using a

deadly weapon, i.e., a rope. (§§ 664/187, 12022, subd. (b).)

2. Tara Simpson

Two weeks later, on August 29, 1985, police and firefighters responded to a

report of a fire in a dumpster in the alley behind defendant‘s apartment on 51st

Street. The fire had been set intentionally using an accelerant. After dousing the

fire, responders found in the dumpster the body of Tara Simpson, an 18-year old

African-American prostitute, burned almost beyond recognition. Although the

severity of the burning made forensic examination difficult, an autopsy revealed a

traumatic injury to her nose that was not caused by the fire, an incised injury like a

knife wound in her abdomen, and evidence of asphyxia (small petechial

hemorrhages on the surface of the heart), but no trauma to her throat or airway.

Swabs revealed the presence of acid phosphatase in her mouth, vagina and rectum,

suggesting seminal fluid. There being no aspirated soot in her lungs, she had died

before being burned, probably of alcohol and cocaine poisoning. Although

defendant was charged with murdering Simpson, the jury hung eight to four in

favor of guilt.


3. Trina Carpenter

Five and one-half months later, on February 11, 1986, firefighters

responded to another dumpster fire in the same alley, about one block away from

where they found Simpson‘s body. It also was started with an accelerant. After

dousing the fire, they found inside the dumpster the body of Trina Carpenter, a 22-

year old African-American prostitute. Her body bore evidence of bruising and

other injuries around her neck, and tests showed she had cocaine and/or cocaine

metabolites in her body when she died. An autopsy concluded she died from

asphyxia caused by strangulation.

Carpenter‘s body had been placed in a duffel bag before being put in the

dumpster and set alight. The bag contained two cotton balls, one in her hand and

one inside the duffel bag. The cotton balls bore evidence of spermatozoa and

epithelial cells. In addition, vaginal swabs indicated the presence of spermatozoa

as well as a high concentration of acid phosphatase, indicating the presence of

seminal fluid. Swabs from Carpenter‘s mouth and rectum were negative for

evidence of sexual activity. Genetic testing of the cotton balls found sperm

contributed by more than one man to be present, but the predominant contributor

was someone of defendant‘s genotype. A population frequency analysis shows

this genotype appears in approximately 15 percent of the African-American


On the evening Carpenter was killed, a witness heard a ―very loud thunk‖

emanating from the alley where Carpenter‘s body was eventually found. The

witness looked out her window and saw an older car with blue oxidized paint near

the dumpster where Carpenter‘s body was later found. When firefighters arrived,

the car was gone. Although defendant was charged with Carpenter‘s murder, the

jury hung 11 to one in favor of guilt.


4. JoAnn Sweets

Two and one-half months later, on May 9, 1986, police found the body of

JoAnn Sweets. She was in a dumpster behind defendant‘s apartment, just one

block from where police had found Carpenter‘s body and steps from where Maria

R. was assaulted. She was unclothed except for a bra and blouse. Sweets, a 34-

year old African-American woman, had been killed by manual strangulation and

had severe injuries to her face and neck. She also had a broken neck, clavicle and

rib. Cocaine was detected in her body. Her body was wrapped in a bed sheet and

a mattress pad and then placed in two plastic garbage bags sealed with tape.

Everything in the dumpster was covered by an afghan blanket.

Defendant‘s sister, L.A., told police she was almost 100 percent sure her

mother had crocheted the blanket, although she backtracked somewhat at trial.

Carpet fibers found on Sweets‘s blouse, the mattress pad and the afghan blanket

matched the carpet in defendant‘s apartment on 51st Street. Using a process called

vacuum metal deposition, police also discovered defendant‘s fingerprints and one

of his palm prints on the plastic garbage bags. They also found his fingerprint on

the dumpster.

Oral and vaginal swabs of Sweets‘s body tested negative for spermatozoa.

Some sperm was detected on rectal swabs, but not enough to test. The bed sheet

in which Sweets was wrapped was stained with semen, and a genetic test

determined that more than one man had produced the stains. Defendant‘s

genotype was represented in the stains, and epithelial cells found on the unstained

portion of the sheet were also consistent with defendant‘s genotype.

The jury convicted defendant of the first degree murder of Sweets and

sustained a special circumstance allegation that he killed her while engaged in the

commission or the attempted commission of a forcible sodomy. (§§ 187, 189,

190.2, subd. (a)(17).)


5. Sophia Glover

On August 15, 1986, about three months after police found JoAnn Sweets‘s

body, police discovered the lifeless body of Sophia Glover rolled in a blanket and

placed on the grassy area between the sidewalk and the street, about a block from

the Wilsie home on Mississippi Street. Glover, a 37-year-old African-American

woman, was living on the streets at the time she was killed and may have been a

prostitute. Her body bore severe trauma to the head, neck and chest, and she had

cocaine in her system when she died. An autopsy determined she died of asphyxia

due to manual strangulation. One of Wilsie‘s neighbors found Glover‘s clothes

neatly folded and stacked in a nearby alley.

A small amount of spermatozoa was found on a vaginal swab taken from

Glover‘s body, and both spermatozoa and acid phosphatase, indicative of seminal

fluid, were found on an anal swab. The amount of genetic material on the vaginal

swab was deemed insufficient for testing, but the spermatozoa on the anal swab

was consistent with defendant‘s genotype and subject to the same population

statistics, i.e., 15 percent of the African-American population has that genotype.

The jury convicted defendant of the first degree murder of Glover and

sustained a special circumstance allegation that he did so while engaged in the

commission or attempted commission of a forcible sodomy. (§§ 187, 189, 190.2,

subd. (a)(17).)

6. Bertha R.

Evidence of defendant‘s crimes against Bertha R. was admitted as tending

to prove his identity, motive, and intent in the charged crimes. Bertha, an African-

American woman, testified that on October 16, 1986, about two months after

Glover was killed, she was in a telephone booth on El Cajon Boulevard looking up

the address of a check-cashing store so she could cash a check. Bertha was

employed as a cook and was not a prostitute, although El Cajon Boulevard was a


street where many prostitutes worked. Defendant pulled up in a blue Datsun

280Z, engaged her in conversation, told her he knew the location of the check-

cashing place, and offered her a ride. Bertha thought he seemed nice so she

agreed, and he drove her to the store. The computers were down at the check-

cashing store, however, so defendant suggested she hang out with him and she

agreed. He drove her to a home she later identified as the Wilsie home on

Mississippi Street. Once inside, they smoked a marijuana cigarette.

As they sat on the sofa watching television, he asked her if he would ―be

too forward if he asked me to kiss [him].‖ She declined the kiss. They continued

to watch television but he suddenly grabbed her neck very tightly from behind.

He had a knife in the other hand and told her that if she did not do what he said, he

would kill her. He then forced her to disrobe and attempted to sodomize her.

When he was unsuccessful at achieving penetration, he raped her. As she got

dressed, he went through her purse and took $65 in cash. After she was dressed,

he said, ―I have got to find someplace to put you.‖ He took her back to his car and

they drove to Fiesta Island. Once there, he told her he knew where she lived and

he would kill her family if she reported the crime. He then forced her to orally

copulate him in the car. From there they drove around the San Diego area, but

when she told him she was about to vomit he let her out of the car and she


Defendant was tried separately for these crimes, convicted of several

felonies and sentenced in 1987 to 22 years in prison.

7. Karen M.

On October 20, 1986, just four days after assaulting Bertha R., Karen M.,

an admitted drug addict and prostitute, was on the street near 29th Street and

Imperial Avenue when defendant pulled up in a blue/gray Datsun 280Z. He


solicited her for an act of prostitution and she agreed. Although her preference

was to have a ―car date,‖ defendant said he had a house and took her to the Wilsie

house on Mississippi Street. Once there, she remarked that she had a bottle of

Jack Daniel‘s whiskey and offered him some, so he went into the kitchen to get a

glass while she disrobed. When she asked about her payment, he placed her in a

choke hold from behind, completely lifting her off the floor by her neck. He told

her to do as he said or he would kill her. She was beginning to black out, so she


After defendant released her from the choke hold, he forced her to drink a

large glass of whiskey, which made her sick. She told him she would do whatever

he wanted and pleaded with him not to hurt her. She then orally copulated him; he

attempted to sodomize her but was unsuccessful. Defendant attempted several

more sex acts and continued to force the victim to drink whiskey. She eventually

passed out and was discovered by Marjorie Wilsie, who had come to the house to

clean up following her mother-in-law‘s death two weeks earlier. The police

responded to the scene and although Karen M. protested that she was guilty of

nothing more than prostitution, she was arrested for burglary and sent to a

detoxification center. She told police she had been raped, but they did not then

believe her.

With regard to the crimes involving Karen M., the jury convicted defendant

of attempted murder and three forcible sex crimes: rape, sodomy and oral

copulation. (§§ 664/187, 261, subd. (a)(2), 286, subd. (c), 288a, subd. (c).) The

jury also sustained a multiple-murder special-circumstance allegation. (§ 190.2,

subd. (a)(3).)


B. Pretrial Issues

1. Dismissal of Prospective Juror Based Solely on His Written

Responses on the Jury Questionnaire

Defendant contends his penalty judgment must be reversed because the trial

court improperly excused Prospective Juror A.M. for cause based on his views on

capital punishment, solely as expressed in his written responses on the jury

questionnaire. As we explain, although we reject respondent‘s contention that

defendant forfeited this claim, the record nevertheless suggests that defense

counsel acquiesced in the juror‘s excusal. In any event, the record shows the court

could properly exclude the identified juror for cause without undertaking a further

in-person exploration of the juror‘s views concerning capital punishment.

The record reveals the trial court was interested in streamlining the jury

selection process and informed the parties that if, after reading the jury

questionnaires, the court strongly believed a particular juror was biased and thus

unsuitable to sit on the jury, it intended to excuse the juror without any oral voir

dire. The prosecutor objected to this proposal and asked the court to follow

―statutory procedure‖ in which the two sides alternate challenging jurors for cause,

but the court overruled the objection, explaining its proposed procedure would

save time. Defendant joined the prosecutor‘s objection.

After the trial court questioned the suitability of one juror and excused him

when neither party objected, the prosecutor suggested that counsel for both sides

could simply list the jurors they believed could be excluded for cause based on the

jurors‘ questionnaire answers. Counsel could see if both sides listed some of the

same jurors, and then the court could suggest others. The court agreed. Defense

counsel then listed several prospective jurors they felt were excludable for cause

and the parties discussed those jurors. Some were retained (at least temporarily,

pending further inquiry) and some were excused for cause. The prosecutor then


identified jurors he believed were excludable for cause. The first on the

prosecution‘s list was Prospective Juror A.M., about whose exclusion defendant

now complains. The prosecutor explained why, based on A.M.‘s questionnaire

answers, he believed ―the juror‘s views would ‗prevent or substantially impair the

performance of his duties as a juror in accordance with his instructions and his

oath.‘ ‖ (Wainwright v. Witt (1985) 469 U.S. 412, 424.) The prosecutor noted that

based on his answers, A.M. ―quite candidly comes out and tells us he can‘t kill

anyone.‖ The trial court suggested it tended to agree and asked defense counsel to

comment on the merits of the prosecutor‘s assertion. Defense counsel replied:

―With regard to—well, he indicates that he—we will submit it on this one, your

honor.‖ (Italics added.) The court then excused Prospective Juror A.M. for cause.

We reject respondent‘s contention that defendant forfeited the claim, for

when this pretrial proceeding occurred in 1994, an objection was not necessary to

preserve this type of error for appeal. (People v. Velasquez (1980) 26 Cal.3d 425,

443 [discussing Witherspoon1 error]; see People v. Bivert (2011) 52 Cal.4th 96,

112 [recognizing the Velasquez rule].) We recently reexamined the Velasquez ―no

forfeiture‖ rule and unanimously overruled it for cases tried in the future. (People

v. McKinnon (2011) 52 Cal.4th 610, 637-643; id., at p. 699 (conc. & dis. opn. of

Werdegar, J.) [expressly agreeing with the majority on this point].)

Although we find no forfeiture on this record, we also find no error. Under

Wainwright v. Witt, supra, 469 U.S. 412, ― ‗[a] prospective juror who would

invariably vote either for or against the death penalty because of one or more


Witherspoon v. Illinois (1968) 391 U.S. 510 was the precursor to

Wainwright v. Witt, supra, 469 U.S. 412, which explains the federal standard for
removing prospective jurors in a capital case due to their views on capital


circumstances likely to be present in the case being tried, without regard to the

strength of aggravating and mitigating circumstances, is . . . subject to challenge

for cause . . . .‘ ‖ (People v. Ledesma (2006) 39 Cal.4th 641, 671.) ―[N]ot all who

oppose the death penalty are subject to removal for cause in capital cases; those

who firmly believe that the death penalty is unjust may nevertheless serve as

jurors in capital cases so long as they state clearly that they are willing to

temporarily set aside their own beliefs in deference to the rule of law.‖ (Lockhart

v. McCree (1986) 476 U.S. 162, 176.)

― ‗[A] prospective juror in a capital case may be discharged for cause based

solely on his or her answers to the written questionnaire if it is clear from the

answers that he or she is unwilling to temporarily set aside his or her own beliefs

and follow the law.‘ ‖ (People v. Wilson (2008) 44 Cal.4th 758, 787, quoting

People v. Avila (2006) 38 Cal.4th 491, 531.) The juror‘s written answers need not,

however, dispel ―all possible or theoretical doubt‖ regarding the juror‘s fitness to

serve (People v. McKinnon, supra, 52 Cal.4th at p. 647), and on appeal we

evaluate the question of a juror‘s fitness to serve de novo (id., p. 648).

Prospective Juror A.M.‘s jury questionnaire shows that although he was

generally pro-prosecution, he held strong, religion-based views against capital

punishment. Answering question 76, he wrote: ―I have a real problem with the

death penalty. Life comes [from] God. I don‘t feel I could be [a] party to killing

another person regardless of the justification.‖ Answering question 91, he wrote:

―God gives life [and] only God should take life.‖ Asked in question 93(c) whether

his opposition to the death penalty would ―substantially impair‖ his ability to vote

for the death penalty, he gave this terse response: ―There are no appropriate

circumstances to kill.‖

Because those who oppose capital punishment may still serve on a capital

jury, the key questions were questions 103 and 104, which concerned the guilt and


penalty phases, respectively. Question 103 asked in pertinent part: ―[S]hould you

be selected to sit as a juror on this case, do you feel you are able and willing to

completely put aside any thought or concern relating to penalty issues while you

deliberate the question of guilt on these charges?‖ (Italics added.) Prospective

Juror A.M. did not check the box for either ―Yes‖ or ―No,‖ and instead wrote:

―Possibly.‖ Question 104 asked: ―Having heard the Court‘s orientation and

procedures for a death penalty trial, can you follow the instructions of the Court

given to you in this case?‖ (Italics added.) Prospective Juror A.M. wrote: ―[N]ot

in the penalty part.‖ By these answers, A.M. made clear that he could not, and

would not, consider the death penalty as a possible punishment in this case.

Because his views would thus ― ‗prevent or substantially impair the performance

of his duties as a juror in accordance with his instructions and his oath‘ ‖

(Wainwright v. Witt, supra, 469 U.S. at p. 424), the trial court properly excluded

him without orally questioning him.

2. Wheeler/Batson

During jury selection, after the prosecution used peremptory challenges to

excuse two African-American prospective jurors, Y.J. and C.G., defendant moved

to quash the venire, citing People v. Wheeler (1978) 22 Cal.3d 258. The trial court

found defendant had made a prima facie showing of group bias, whereupon the

prosecutor stated his reasons for his challenges. The court proclaimed it was

―completely satisfied‖ with those reasons and denied the motion. Defendant

renewed his Wheeler motion when the prosecutor challenged and excused another

prospective juror, N.S.2 As to N.S., the trial court found no prima facie showing


Defendant also cited the excusal of a fourth prospective juror, an African-

American man, in this second motion but does not renew the claim on appeal.


had been made. Defendant renews these claims on appeal, arguing these three

jurors were excused based on their race.

Under both People v. Wheeler, supra, 22 Cal.3d 258, and its federal

constitutional counterpart, Batson v. Kentucky (1986) 476 U.S. 79, a party who

believes his opponent is using peremptory challenges animated by a prohibited

discriminatory purpose must first make a prima facie showing of such group bias.

(People v. Lenix (2008) 44 Cal.4th 602, 612; Johnson v. California (2005) 545

U.S. 162, 168.) ―In order to make a prima facie showing, ‗a litigant must raise the

issue in a timely fashion, make as complete a record as feasible, [and] establish

that the persons excluded are members of a cognizable class.‘ ‖ (People v. Gray

(2005) 37 Cal.4th 168, 186.) The objecting party must then produce evidence

― ‗sufficient to permit the trial judge to draw an inference that discrimination has

occurred.‘ ‖ (Ibid., quoting Johnson v. California, supra, at p. 170.) This prima

facie assessment is sometimes called ―the first stage of a Batson inquiry.‖ (People

v. Mills (2010) 48 Cal.4th 158, 174.)

If the defendant succeeds in establishing a prima facie case, the burden

shifts to the prosecutor to justify the challenges. (People v. Lenix, supra, 44

Cal.4th at p. 612.) The court then evaluates the prosecutor‘s responses to

determine whether purposeful discrimination has been proven. At this so-called

third stage of the Batson inquiry, the trial court often bases its decision on whether

it finds the prosecutor‘s race-neutral explanations for exercising a peremptory

challenge are credible. ― ‗Credibility can be measured by, among other factors,

the prosecutor‘s demeanor; by how reasonable, or how improbable, the

explanations are; and by whether the proffered rationale has some basis in

accepted trial strategy.‘ ‖ (Lenix, at p. 613, quoting Miller-El v. Cockrell (2003)
537 U.S. 322, 339.)


―Review of a trial court‘s denial of a Wheeler/Batson motion is deferential,

examining only whether substantial evidence supports its conclusions.‖ (People v.

Lenix, supra, 44 Cal.4th at p. 613.) We have explained that ― ‗the trial court must

evaluate not only whether the prosecutor‘s demeanor belies a discriminatory

intent, but also whether the juror‘s demeanor can credibly be said to have

exhibited the basis for the strike attributed to the juror by the prosecutor,‘ ‖ that

― ‗these determinations of credibility and demeanor lie ― ‗peculiarly within a trial

judge‘s province,‘ ‖ ‘ ‖ and that, thus, ― ‗ ―in the absence of exceptional

circumstances, we would defer to [the trial court].‖ ‘ ‖ (Id., at p. 614, quoting

Snyder v. Louisiana (2008) 552 U.S. 472, 477.)

Here no dispute exists that defendant made a prima facie case with regard

to Jurors Y.J. and C.G. He objected and made his record. Respondent concedes

both women were African-Americans and thus were members of a cognizable

class. We then turn to the trial court‘s evaluation of the prosecutor‘s reasons for

excusing the women. ―The proper focus of a Batson/Wheeler inquiry . . . is on the

subjective genuineness of the race-neutral reasons given for the peremptory

challenge, not on the objective reasonableness of those reasons.‖ (People v.

Reynoso (2003) 31 Cal.4th 903, 924.) ― ‗[E]ven a ―trivial‖ reason, if genuine and

neutral, will suffice.‘ [Citation.] A prospective juror may be excused based upon

facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic

reasons.‖ (People v. Lenix, supra, 44 Cal.4th at p. 613.)

With regard to Prospective Juror Y.J., the prosecutor stated numerous

reasons why he excused her. He explained the prosecution had devised a

numerical score for each prospective juror based on their desirability, and Y.J.

rated very poorly. She had worked at the Job Corps, and because defendant had

attended there, the prosecutor thought some mitigating evidence related to that

organization might be introduced at the penalty phase. He did not ―want to take


the chance that [it] will and that [Y.J.] will have a link to this man because of her

employment and his connection to the Job Corps.‖ In addition, Y.J. was twice

divorced, and both her children were either separated or divorced. ―That shows

me some instability that I am not comfortable with.‖ Additionally, she expressed

interest in being a counselor, ―a helping person, someone to get everyone better. I

see that as . . . contrary . . . towards what I will be asking them to do; that is, to kill

this defendant.‖ She was a loner; she expressed the view that the police

sometimes ―shoot too quickly,‖ suggesting some hostility to law enforcement; she

was seeing a psychiatrist; her support for the death penalty was ―weak‖ and ―she

says she dislikes making this very crucial decision.‖

Defendant attacks each of these explanations separately as pretextual, but

he did not raise these arguments below. Moreover, even assuming a suspicion of

pretext could be raised as to one or two of these reasons, the persuasive power of

all of them, taken together, convinces us that our usual deference to the trial

court‘s assessment of the prosecutor‘s sincerity is appropriate. Here, the

prosecutor‘s expressed apprehension about the Job Corps connection between

defendant and Y.J. seems a legitimate concern unrelated to race. In addition, other

matters that can justify a peremptory challenge are a prospective juror‘s ―negative

views of the police‖ (People v. Guerra (2006) 37 Cal.4th 1067, 1102), ―a juror‘s

experience in counseling or social services‖ (People v. Clark (2011) 52 Cal.4th

856, 907 [juror was a ―licensed pastoral counselor‖]; People v. Landry (1996) 49

Cal.App.4th 785, 790-791 [work in youth services might suggest bias in a

defendant‘s favor]), and a juror‘s experience with psychology (People v. DeHoyos

(July 8, 2013, S034800) __ Cal.4th ___, ___ [p. 37] [juror‘s ―educational

background, interest, and experience in the field of psychology was a race-neutral

reason justifying his excusal‖]; Clark, supra, at p. 907 [juror had taken college

courses in psychology]). Finally, ―[a] prospective juror‘s reluctance to vote for a


penalty verdict of death is a permissible, race-neutral reason for exercising a

peremptory challenge.‖ (People v. Elliott (2012) 53 Cal.4th 535, 561.)

With regard to Prospective Juror C.G., the prosecutor stated that he had

also rated her very low because she exhibited ―liberal tendencies.‖ He based his

views on her involvement with the restoration of wetlands in the Famosa Slough,

along with her involvement with the ―San Diego Environmental Project, [and the]

Equal Employment Opportunity [Commission].‖ In addition, she did not read the

newspaper, she was dissatisfied about a police response to a burglary, her

questionnaire suggested she would apply a ―shadow of a doubt‖ standard rather

than a beyond a reasonable doubt standard, she had doubts about the

persuasiveness of circumstantial evidence, and she was seeing a therapist for

depression. Defendant criticizes some of these reasons (for example, the

prosecutor may have exaggerated her negative views about police, and her views

on reasonable doubt and circumstantial evidence were expressed before the court

educated her on the law) and argues they were pretextual. We defer, however, to

the trial court‘s assessment of the prosecutor‘s reasons as being subjectively

genuine. (People v. Reynoso, supra, 31 Cal.4th at p. 924.)

For example, we need not debate whether the policies of certain

organizations are liberal or not; the prosecutor‘s subjective distrust of jurors

affiliated with such organizations—if genuine—is sufficient to support the juror

challenge. (People v. Ward (2005) 36 Cal.4th 186, 202, citing People v. Wheeler,

supra, 22 Cal.3d at p. 275 [subjective mistrust of a juror‘s objectivity is

sufficient].) That the prosecutor was genuinely concerned about C.G.‘s views on

the People‘s burden of proof and the power of circumstantial evidence is shown by

his specific questioning of her on these topics. As with Prospective Juror Y.J., her

psychological issues (she admitted she had been very depressed and had been

seeing a therapist periodically) could legitimately raise red flags for the


prosecutor. The trial court declared itself ―very satisfied that the reasons stated are

substantial and do not relate to color whatsoever. [¶] I will indicate that I noticed

[Prospective Juror C.G.] almost looked like she was in tears when she was

explaining the tragedies she has personally gone through over the last few years

and it‘s pretty heart-breaking.‖ We defer to this conclusion that the prosecutor‘s

reasons for excusing C.G. were not based on group bias.

Defendant further argues the prosecutor excused Prospective Juror N.S.

based on her race. Unlike with the excusals of Prospective Jurors C.G. and Y.J.,

the trial court declined to find defendant had satisfied his burden of demonstrating

a prima facie case with regard to N.S.; therefore, this is a Batson first-stage issue

and we have no explanation by the prosecutor to evaluate. In addition, the record

reveals the trial court was uncertain what standard to apply in determining whether

defendant had carried his prima facie burden.3 Under such circumstances,


Earlier in the voir dire, when discussing defendant‘s Wheeler/Batson

motion in connection to Prospective Juror C.G., the following colloquy occurred:

―[THE COURT:] I am going to ask you to state your reasons, in any event.

This is not an issue that is very clear to me. I do not feel that the case law gives a
lot of help [in]this regard with respect to when that prima facie case has been

―And I am just going to be very frank. I think that the trial court does not

have enough guidance to be real firm. The first time around I have no problem
whatsoever. There absolutely was nothing on which to do it. This time I just
don‘t know. I am not clear. And I am going to ask you to, for that reason, to state
your reasons why you would . . . exercise a peremptory as to [Prospective Juror

―[THE PROSECUTOR]: If I may, I think the law is clear that there must

be a substantial showing that the challenges are being exercised for race and race

―I don‘t think that showing has been made, and I haven‘t heard the court

say that, ‗yes, I think there is a prima facie showing.‘ ‖ (Italics added.)

As the United States Supreme Court made clear in Johnson v. California,

supra, 545 U.S. 162, however, Batson requires only that the objector state facts

(footnote continued on next page)


deference to the trial court‘s ruling is inappropriate and we instead review the

record independently. (People v. Hartsch (2010) 49 Cal.4th 472, 487; People v.

Bonilla (2007) 41 Cal.4th 313, 342.)

Assessing the record independently, we find ample evidence to support the

trial court‘s ruling that defendant failed to establish a prima face case of group bias

with regard to Prospective Juror N.S. The prospective juror revealed in her

questionnaire that she had been married to a man who had been convicted of

murder. ―[A] prosecutor may reasonably surmise that a close relative‘s adversary

contact with the criminal justice system might make a prospective juror

unsympathetic to the prosecution.‖ (People v. Farnam (2002) 28 Cal.4th 107,

138.) Accordingly, our independent review of the record reveals adequate support

for the trial court‘s decision not to find a prima facie case of group bias with

regard to Prospective Juror N.S.

3. Speedy Trial

The People alleged defendant assaulted Maria R. on August 15, 1985.

Although the victim‘s complaint led to defendant‘s arrest shortly thereafter, he

was not then prosecuted, probably because the victim did not appear in the district

attorney‘s office for an interview, and she later called the police department to say

she did not intend to pursue the matter. The police nevertheless knew the facts of

the Maria R. incident, as they were mentioned in the 1987 sentencing documents

(footnote continued from previous page)

giving rise to a reasonable inference of discrimination in order to satisfy the prima
facie burden. Language in some California state cases requiring a showing of a
― ‗strong likelihood‘ ‖ of discrimination, or that a peremptory challenge was
― ‗more likely than not’ ‖ motivated by group bias, incorrectly articulated the
applicable standard. (See People v. Gray, supra, 37 Cal.4th at pp. 186-187.)


for the Bertha R. case. Although the statute of limitations for any potential sex

crimes committed against Maria R. expired after six years, or around mid-August

1991, defendant was eventually charged with attempting to murder Maria R. in a

complaint filed on January 7, 1993. An information charging that attempted

murder, along with the murders of Simpson, Carpenter, Sweets and Glover, and

the sexual assault and attempt to murder Karen M., was filed on January 14, 1993,

and then amended twice in January 1994.

Defendant moved to dismiss all charges on state and federal due process

and speedy trial grounds. The trial court denied the motion, finding the delay had

not prejudiced defendant. Although the court noted that defendant could raise the

issue again following trial, when the extent of any possible prejudice would be

more apparent, the court reiterated its ruling when defendant raised the issue again

in a motion for a new trial. Now on appeal, defendant renews his state and federal

due process and speedy trial claims, but raises only the delay in charging him with

attempting to murder Maria R. (That was the oldest of the crimes charged, with a

delay of nearly seven years.)

We recently set forth the law applicable to this claim: ―A defendant‘s state

and federal constitutional speedy trial rights (U.S. Const., 6th Amend.; Cal.

Const., art. I, § 15, cl. 1) do not attach before the defendant is arrested or a

charging document has been filed. (People v. Nelson (2008) 43 Cal.4th 1242,

1250.) Nonetheless, a defendant is not without recourse if a delay in filing charges

is prejudicial and unjustified. The statute of limitations is usually considered the

primary guarantee against overly stale criminal charges (People v. Archerd (1970)

3 Cal.3d 615, 639), but the right of due process provides additional protection,

safeguarding a criminal defendant‘s interest in fair adjudication by preventing

unjustified delays that weaken the defense through the dimming of memories, the

death or disappearance of witnesses, and the loss or destruction of material


physical evidence (Nelson, at p. 1250).

―A defendant seeking relief for undue delay in filing charges must first

demonstrate resulting prejudice, such as by showing the loss of a material witness

or other missing evidence, or fading memory caused by the lapse of time. (People

v. Archerd, supra, 3 Cal.3d at pp. 639-640.) Prejudice to a defendant from

precharging delay is not presumed. (People v. Nelson, supra, 43 Cal.4th at

p. 1250; People v. Catlin (2001) 26 Cal.4th 81, 107.) In addition, although ‗under

California law, negligent, as well as purposeful, delay in bringing charges may,

when accompanied by a showing of prejudice, violate due process. . . . If the

delay was merely negligent, a greater showing of prejudice would be required to

establish a due process violation.‘ (Nelson, at pp. 1255-1256.) If the defendant

establishes prejudice, the prosecution may offer justification for the delay; the

court considering a motion to dismiss then balances the harm to the defendant

against the justification for the delay. (Nelson, at p. 1250.) But if the defendant

fails to meet his or her burden of showing prejudice, there is no need to determine

whether the delay was justified. (Serna v. Superior Court (1985) 40 Cal.3d 239,

249; Scherling v. Superior Court (1978) 22 Cal.3d 493, 506.)‖ (People v. Abel

(2012) 53 Cal.4th 891, 908-909, fn. omitted.) Although defendant frames his

claim as one under both the federal and state Constitutions, ―[b]ecause the law

under the California Constitution is at least as favorable to defendant as federal

law, we apply California law to defendant‘s claim.‖ (Abel, at p. 909, fn. 1.)

―We review for abuse of discretion a trial court‘s ruling on a motion to

dismiss for prejudicial prearrest delay [citation], and defer to any underlying

factual findings if substantial evidence supports them [citation].‖ (People v.

Cowan (2010) 50 Cal.4th 401, 431.) In evaluating the correctness of a trial court‘s

denial of a defendant‘s speedy trial motion, we consider all evidence that was

before the court at the time the trial court ruled on the motion. (Ibid.) Thus,


evidence presented at trial may be used to support or reject defendant‘s posttrial

assertion of his speedy trial rights.

We begin with the question of prejudice because it is dispositive.

Defendant‘s case for prejudice hinges on his claim the delay in charging interfered

with his ability to present exculpatory evidence of Maria R.‘s alleged apology for

falsely accusing him. (Post, pt. I.C.4.) Arguing in favor of the speedy trial motion

before trial, defense counsel asserted defendant‘s ability to contest the Maria R.

charges had been hampered because her memory had faded over the years:

―When questioned at the preliminary hearing, [Maria R.] acknowledged having

gone back to the defendant‘s house after this incident with some preacher, but

denied even remembering who the individual was or how she got there or really

what was discussed at that time. [¶] These kinds of things, when they were left to

be investigated until two, three, four years later and as much as five years later,

certainly the lapse of time affects the ability of the defense to present any kind of

response to the charges.‖

The trial court found no prejudice. While admitting the delay may have

caused some memories to fade, the court noted that in a large case with many

witnesses, some delay, and thus the possibility that some memories may fade, is

inevitable. But considering defendant‘s showing, the court noted, ―Most of what

has been offered to the court is purely speculative.‖ ―[W]hat‘s being proffered to

the court is this person might have been able to help the defendant, but you can‘t

put your finger on it. [¶] And I recognize that‘s the dilemma the defense faces, but

the law looks at that and says not good enough, and so I can‘t find that it‘s good

enough.‖ The court also observed that because some of the witnesses were drug

users, some memory loss on their part could be expected even if the case had been

brought promptly. Finally, the court suggested it did not view the defense‘s

assertions of lost evidence favorably because many of defense counsel‘s other


claims of lost evidence—unrelated to the crimes against Maria R.—proved to be


We find no abuse of discretion. (People v. Cowan, supra, 50 Cal.4th at

p. 431.) Although defendant contends he lost two ―important‖ witnesses

(presumably the two people who came to his mother‘s home and delivered Maria

R.‘s alleged apology for falsely accusing him) and that the memories of two more

witnesses (Maria R. and defendant‘s mother) had faded as a result of the delay, we

agree with the trial court‘s assessment that this evidence of prejudice is

speculative. Maria R. was a habitual drug user, and the trial court reasonably

concluded her memory would not have been the best in any case. Although

defendant‘s pretrial motion briefly mentioned his mother, Ann Jones, and claimed

her lack of memory of the alleged apology incident was due to the delay, defense

counsel‘s voluminous declaration in support of the pretrial motion makes scant

mention of either Maria R.‘s or Ann Jones‘s faded memory. Regarding counsel‘s

asserted inability to find the couple who allegedly came to Jones‘s door, neither

defendant‘s pretrial motion nor counsel‘s supporting declaration mentions this

point. A defense investigator‘s extensive declaration, submitted in support of the

pretrial motion, briefly mentions the alleged apology incident but it does not say

he attempted to locate either of the two persons who came to the Jones home, let

alone that he was unsuccessful.

Regarding defendant‘s posttrial speedy trial motion, we conclude the trial


For example, defense counsel claimed under penalty of perjury that the

following evidence could not be found due to the passage of time: defendant‘s
school records, defendant‘s sister‘s car (a distinctive blue Datsun 280Z) and
garbage company records indicating when the dumpster in which one of the
victims was found was last emptied. The prosecution showed these claims were


testimony supports the trial court‘s conclusion that any potential prejudice flowing

from the delay was speculative. Although Ann Jones testified at trial and

suggested she could not say with assurance the woman who came to the door (and

allegedly apologized) was Maria R., the trial court reasonably discounted this

evidence because Maria R.‘s testimony describing the crime against her ―was

strikingly similar to Karen [M.‘s] and Bertha [R.‘s]. She had no motive to lie, and

her immediate report to the police about the rope was very significant because the

rope was found in the apartment. [¶] So it was . . . an extremely strong case.‖

The court found similarly speculative defendant‘s claim that his asserted inability

to locate the two people who allegedly visited Ann Jones‘s home was traceable to

the passage of time. Although defense counsel argued he had acted reasonably

and diligently in looking for the man described as a preacher,5 the trial court found

―that it would be completely speculative as to whether that minister could have

been located, even had this case proceeded within a few months of the crime


―Under the abuse of discretion standard, ‗a trial court‘s ruling will not be

disturbed, and reversal of the judgment is not required, unless the trial court

exercised its discretion in an arbitrary, capricious, or patently absurd manner that

resulted in a manifest miscarriage of justice.‘ ‖ (People v. Hovarter (2008) 44

Cal.4th 983, 1004.) We cannot say on this record that the trial court acted in such


Counsel Varela explained: ―We have tried every church thing. I mean, I

went walking up and down, up and down El Cajon [Boulevard]. I went to a Praise
the Lord Fellowship on 51st; tried to contact a bunch of them. I walked to
anything that looked like it was there. Nobody remembered anything about
anything at that time. [¶] And then I tried looking and seeing if I could find
anybody that had Spanish-speaking evangelical services that did outreach
programs, and, you know, I was running into walls everywhere. There was just—
nobody remembered. Nobody knows.‖


a manner in denying defendant‘s pretrial and posttrial speedy trial motions.

Because we conclude the trial court acted within its broad discretion in finding

defendant was not prejudiced by the delay in charging him with attempting to

murder Maria R., we need not address defendant‘s further argument challenging

the prosecutor‘s multiple justifications for the delay or the trial court‘s acceptance

of those reasons.

4. Severance

Defendant was charged jointly with murdering four women (Tara Simpson,

Trina Carpenter, JoAnn Sweets, Sophia Glover) and attempting to murder

Maria R. and Karen M. He moved before trial to sever the murder counts from the

attempted murder counts, citing section 954 and his right to due process under

both the state and federal Constitutions. After discussing the various factors for

and against joinder, the trial court denied the severance motion, explaining:

―Overall, in looking at this, first I have to say that the charges are initially properly

joined under [section] 954 because they are offenses of the same class and they are

connected together by common elements of substantial importance, and I believe

that severance is not warranted because I do not believe that this appears to be an

unjustified negative impact by a joinder against the defendant. The probative

value is extremely high, and the negative impact is not unfair, in my estimation, in

looking at this overall.‖

Section 954 governs the issue of joinder of counts and it provides in

pertinent part: ―An accusatory pleading may charge two or more different

offenses connected together in their commission, . . . or two or more different

offenses of the same class of crimes or offenses, under separate counts, . . .

provided, that the court in which a case is triable, in the interests of justice and for

good cause shown, may in its discretion order that the different offenses or counts


set forth in the accusatory pleading be tried separately or divided into two or more

groups and each of said groups tried separately.‖ (Italics added.) As defendant

concedes, murder and attempted murder are of the same class of crimes within the

meaning of section 954. (People v. Jenkins (2000) 22 Cal.4th 900, 947.) The

statutory requirements for joinder thus being satisfied, defendant ― ‗can predicate

error in denying the motion only on a clear showing of potential prejudice.

[Citation.] We review the trial court‘s ruling on the severance motion for abuse of

discretion.‘ [Citations.]‖ (People v. Vines (2011) 51 Cal.4th 830, 855.)

― ‗Refusal to sever may be an abuse of discretion where: (1) evidence on

the crimes to be jointly tried would not be cross-admissible in separate trials;

(2) certain of the charges are unusually likely to inflame the jury against the

defendant; (3) a ―weak‖ case has been joined with a ―strong‖ case, or with another

―weak‖ case, so that the ―spillover‖ effect of aggregate evidence on several

charges might well alter the outcome of some or all of the charges; and (4) any one

of the charges carries the death penalty or joinder of them turns the matter into a

capital case.‘ [Citations.]‖ (People v. Bradford (1997) 15 Cal.4th 1229, 1315.)

Defendant presents three reasons he claims show the joinder of claims

prejudiced him. First, he argues evidence supporting the four murder counts

would not have been cross-admissible in a separate trial of the two attempted

murder counts. But ― ‗cross-admissibility is not the sine qua non of joint trials.‘ ‖

(People v. Geier (2007) 41 Cal.4th 555, 575.) Section 954.1 makes this clear,

directing that, ―[i]n cases in which two or more different offenses of the same

class of crimes or offenses have been charged together in the same accusatory

pleading . . . , evidence concerning one offense or offenses need not be admissible

as to the other offense or offenses before the jointly charged offenses may be tried

together before the same trier of fact.‖


In any event, the trial court considered the cross-admissibility issue, noting

―the overwhelming marked distinctiveness of the m.o. [modus operandi] in all the

cases.‖ We agree. Evidence that a person has committed other crimes is not

rendered inadmissible by Evidence Code section 1101, subdivision (a) if relevant

to prove such facts as ―motive, opportunity, intent, preparation, plan, knowledge,

identity, absence of mistake or accident‖ (id., subd. (b)), and we understand the

trial court‘s reference to proving an offender‘s ―m.o.‖ (i.e., modus operandi) to

mean proof of intent, plan or identity. (See People v. Maury (2003) 30 Cal.4th

342, 393 [―the similarities of the offenses . . . were sufficient to establish a

common modus operandi, raising a strong inference [of identity]‖]; People v.

Kraft (2000) 23 Cal.4th 978, 1062 [commonality and distinctiveness of certain

features of the various crimes suggested the killer‘s modus operandi, and were

relevant to prove his identity]).

Evidence of other crimes can be admitted to prove the offender acted

according to a certain plan, or acted with a particular motive, if a degree of

similarity exists between the past and present crimes so as to permit a reasonable

inference that the offender must have entertained the same intent in both instances.

But to use evidence of prior crimes to prove the identity of the offender in the

present crime requires the highest degree of similarity between the past and

present crimes. ―For identity to be established, the uncharged misconduct and the

charged offense must share common features that are sufficiently distinctive so as

to support the inference that the same person committed both acts. [Citation.]

‗The pattern and characteristics of the crimes must be so unusual and distinctive as

to be like a signature.‘ ‖ (People v. Ewoldt (1994) 7 Cal.4th 380, 403.)


We cannot say the trial court abused its discretion by finding a common

modus operandi sufficient to deny severance. In this case, in the space of a few

months,6 someone began attacking lone women, often prostitutes, along or near El

Cajon Boulevard in San Diego, a street known to be populated by women

engaging in prostitution. With one exception,7 the victims were all African-

American. Defendant attacked Maria R. at his 51st Street apartment and attacked

Karen M. at the Mississippi Street home where his mother worked. The bodies of

all four murder victims were found in close proximity to one of those two

residences. All victims were sexually molested. Three of the murder victims were

found in dumpsters; the body of the fourth victim (Glover) was rolled in a blanket

and discarded on the area between the sidewalk and the street, like garbage. Maria

R. and Karen M. were attacked after consenting to have sex for money; as the four

murder victims were all prostitutes, it is likely they were lured to their deaths by a

perpetrator using the same ruse. All victims were either choked or strangled; none

was shot. Under these circumstances, that the crimes would have been cross-

admissible in separate trials to establish a common and distinctive modus operandi

is likely. ―To be admissible to demonstrate a distinctive modus operandi, the

evidence must disclose common marks or identifiers, that, considered singly or in

combination, support a strong inference that the defendant committed the crimes.‖

(People v. Maury, supra, 30 Cal.4th at p. 392.)


The first attack was against Maria R. on August 15, 1985. The ensuing

crimes occurred on August 29, 1985 (Tara Simpson), February 11, 1986 (Trina
Carpenter), May 9, 1986 (JoAnn Sweets), August 15, 1986 (Sophia Glover),
October 16, 1986 (Bertha R.), and October 20, 1986 (Karen M.).


Maria R. has a Hispanic surname.


Defendant next contends joinder permitted the prosecution to bolster the

allegedly weaker murder counts (JoAnn Sweets, Sophia Glover) with the stronger

attempted murder counts, both by inflaming the jury and by allowing it to

aggregate evidence of identity. The trial court explicitly considered this point but

rejected it after carefully considering the argument. We find no abuse of

discretion. At the threshold, we question the premise, that is, that the evidence

was so weak as to some counts and so strong as to others that the stronger counts

would fill in the gaps in the evidence for the weaker counts. Although both Maria

R. and Karen M. identified defendant as their assailant, the evidence of those

counts was not necessarily exceptionally strong, as both victims were subject to

impeachment on the grounds they were prostitutes and drug addicts. Maria R.,

moreover, had dropped the initial prosecution. Further, the evidence of

defendant‘s involvement in the Sweets murder, although circumstantial, was quite

strong. Police discovered seminal fluid at the scene consistent with his genotype,

his fingerprints were on the garbage bag containing the victim‘s body, and carpet

fibers on the victim matched those in his apartment. Only as to Glover was the

evidence somewhat weak, but as the trial court reasoned, clear evidence of a

consistent modus operandi justified joinder.

Nor is there merit to defendant‘s claim that joinder allowed the jury to

aggregate the evidence. That the jury was able to consider each case on its

individual merits is shown by its failure to reach a unanimous verdict on the

counts involving Simpson and Carpenter. Where the jury returns a guilty verdict

of a lesser crime, or, as here, fails to convict at all on some charges, we are

confident the jury was capable of, and did, differentiate among defendant‘s crimes.

(People v. Ruiz (1988) 44 Cal.3d 589, 607.)

Finally, citing Williams v. Superior Court (1984) 36 Cal.3d 441 in support,

defendant argues the trial court ―failed to acknowledge its duty of heightened


scrutiny as compelled by the presence of the capital charges.‖ We indeed stated in

Williams that ―the court must analyze the severance issue with a higher degree of

scrutiny and care than is normally applied in a noncapital case.‖ (Id., at p. 454.)

But we have since qualified Williams, explaining that ―the subsequent enactment

of section 790, subdivision (b)—which, as noted, specifically provides for joinder

of capital cases such as these—makes it clear that such a heightened analysis is no

longer called for.‖8 (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1229, fn.

19.) In any event, because the Maria R. and Karen M. charges did not elevate the

Sweets and Glover murders into capital offenses, any concern over the unfairness

of joining capital and noncapital charges is minimal. (People v. Vines, supra, 51

Cal.4th at p. 855.)

C. Trial Issues

1. The Bertha R. Evidence

Prior to trial, the prosecution moved to present evidence that on October 16,

1986, defendant assaulted, and forcibly raped and sodomized Bertha R. under

circumstances similar to the charged crimes against JoAnn Sweets, Sophia Glover,

Tara Simpson, Trina Carpenter, Maria R. and Karen M. The prosecution argued


Section 790, subdivision (b) provides: ―If a defendant is charged with a

special circumstance pursuant to paragraph (3) of subdivision (a) of Section 190.2,
the jurisdiction for any charged murder, and for any crimes properly joinable with
that murder, shall be in any county that has jurisdiction pursuant to subdivision (a)
for one or more of the murders charged in a single complaint or indictment as long
as the charged murders are ‘connected together in their commission,’ as that
phrase is used in Section 954
, and subject to a hearing in the jurisdiction where the
prosecution is attempting to consolidate the charged murders. If the charged
murders are not joined or consolidated, the murder that was charged outside of the
county that has jurisdiction pursuant to subdivision (a) shall be returned to that
county.‖ (Italics added.)


in its written motion that the evidence was admissible under Evidence Code

section 1101 ―to prove the following issues in dispute: ―A. the identity of

defendant; [¶] B. the intent of the defendant as demonstrated by: [¶] 1. Motive;

[¶] 2. a common plan, scheme and modus operandi.‖ In support of its motion, the

prosecution attached a transcript of Bertha R.‘s preliminary hearing testimony.

Opposing the motion, the defense argued, ―The factual dissimilarities between

these unrelated cases are apparent.‖ Defendant highlighted four aspects of his

crimes against Bertha R. that differed from the charged offenses: she was not a

prostitute; he approached her and offered her a ride without requesting an act of

prostitution; one of the forcible sex acts occurred in his car rather than in the

apartment; and he threatened her with a knife. The trial court announced its

tentative position was to grant the prosecution‘s motion and admit the evidence,

but invited final argument from defense counsel. Counsel then reiterated many of

the points in his written opposition.

The trial court ruled Bertha R.‘s testimony was admissible to prove

defendant‘s motive, intent and identity, reasoning, ―the marks of distinction

outweigh those that would be dissimilarities. And, again, the clear mark of

distinction that stands out in this case, the Bertha [R.] case, is the force used on an

otherwise willing sexual partner. [¶] She may not have been a prostitute, but she

was willing to go with the defendant to the house on Mississippi Street four days

before the [Karen M.] case.‖ ―I think these distinctive common marks tie it into

[the Karen M. case] and tie it into the rest of the cases, and, therefore, it is

probative. It‘s highly probative and goes to the question of identity, motive,

intent, which is all at issue in this case.‖


At trial, prior to Bertha R.‘s testimony, the trial court gave the jury a

limiting instruction applicable to her testimony.9 The witness then testified. She

related how defendant engaged her while she was walking on El Cajon Boulevard,

how she agreed to ―hang out‖ with him, how he drove her in his blue Datsun 280Z

to the Wilsie home on Mississippi Street, how when she refused to kiss him he put

his arm around her neck from behind and strangled her, threatened her with a

knife, attempted to forcibly sodomize and then raped her, stole money out of her

purse, forced her to drive around with him, and forced her to orally copulate him

in his car before she escaped. Prior to the jury‘s guilt phase deliberations, the trial

court again gave the jurors a limiting instruction.


―Ladies and gentlemen, please pay attention. This is one of the instructions

that I will be giving you at the end of the trial also. It‘s called a limiting
instruction. It means that some evidence may come in and you may consider it for
certain purposes, but not for other purposes.

―Evidence may be introduced for the purpose of showing that the defendant

committed a crime other than that for which he is on trial.

―Such evidence, if believed, will not be received and may not be considered

by you to prove that the defendant is a person of bad character or that he has a
disposition to commit crimes.

―Such evidence may be received and may be considered by you only for the

limited purpose of determining if it tends to show the existence of the intent,
which is a necessary element of the crime charged, the identity of the person who
committed the crime, if any, of which the defendant is accused, or a motive for the
commission of the crime charged.

―For the limited purpose for which you may consider such evidence, you

must weigh it in the same manner as you do all other evidence in the case.

―You are not permitted to consider such evidence for any other purpose.

This would be circumstantial evidence and will be also subject to other
instructions on circumstantial evidence, as well.‖


a. Challenge to the Admission of the Evidence

Defendant renews his argument the trial court erred under Evidence Code

section 1101 by admitting Bertha R.‘s testimony. As noted (ante, at p. 26),

subdivision (a) of that section provides a general evidentiary rule of exclusion,

providing that ―evidence of a person‘s character . . . in the form of . . . evidence of

specific instances of his or her conduct . . . is inadmissible when offered to prove

his or her conduct on a specified occasion.‖ (Italics added.) The scope of that rule

is clarified in subdivision (b): ―Nothing in this section prohibits the admission of

evidence that a person committed a crime . . . when relevant to prove some fact

(such as motive, opportunity, intent, preparation, plan, knowledge, identity,

absence of mistake or accident . . .) other than his or her disposition to commit

such an act.‖ (Italics added.)10

The rules governing the admissibility of evidence under this section are

well settled. ― ‗ ―Evidence of the defendant‘s commission of a crime other than

one for which the defendant is then being tried is not admissible to show bad

character or predisposition to criminality but it may be admitted to prove some

material fact at issue, such as motive or identity. (Evid. Code, § 1101.) Because

evidence of other crimes may be highly inflammatory, its admissibility should be

scrutinized with great care. [Citation.]‖ [Citation.] In cases in which the


Shortly after defendant was tried in 1994, the Legislature added section

1108 to the Evidence Code. (Stats. 1995, ch. 439, § 2, p. 3429.) This new statute
―loosened the restrictions on the admissibility of other-crimes evidence in cases
involving sex crimes‖ (People v. Hovarter, supra, 44 Cal.4th at p. 1002, fn. 7), by
creating an explicit exception to the restrictions of Evidence Code section 1101.
Because the Legislature intended ―to expand the admissibility of disposition or
propensity evidence in sex offense cases‖ (People v. Falsetta (1999) 21 Cal.4th
903, 911), had section 1108 existed at the time of defendant‘s trial, the statute
likely would have justified the admission of evidence of defendant‘s sexual crimes
against Bertha R.


prosecution seeks to prove the defendant‘s identity as the perpetrator of the

charged offense by evidence he had committed uncharged offenses, admissibility

―depends upon proof that the charged and uncharged offenses share distinctive

common marks sufficient to raise an inference of identity.‖ ‘ [Citation.] A

somewhat lesser degree of similarity is required to show a common plan or

scheme and still less similarity is required to show intent. (People v. Ewoldt

(1994) 7 Cal.4th 380, 402-403.) On appeal, we review a trial court‘s ruling under

Evidence Code section 1101 for abuse of discretion.‖ (People v. Roldan (2005) 35

Cal.4th 646, 705.)

As noted, ante, in contrast to using evidence of other crimes to prove

―motive, opportunity, intent, preparation, [or] plan‖ (Evid. Code, § 1101, subd.

(b)), the admissibility of Bertha R.‘s testimony to prove defendant‘s identity as the

assailant of JoAnn Sweets, Sophia Glover, Maria R. and Karen M. requires a

higher degree of distinctiveness and commonality between the Bertha R. crimes

and the crimes against the other victims. ―The greatest degree of similarity is

required for evidence of uncharged misconduct to be relevant to prove identity.

For identity to be established, the uncharged misconduct and the charged offense

must share common features that are sufficiently distinctive so as to support the

inference that the same person committed both acts. [Citation.] ‗The pattern and

characteristics of the crimes must be so unusual and distinctive as to be like a

signature.‘ [Citation.]‖ (People v. Ewoldt, supra, 7 Cal.4th at p. 403.)

Accordingly, we first consider whether the evidence could be admitted to prove

defendant‘s identity, because if it was admissible for that purpose, it necessarily

would also have been admissible to prove defendant‘s intent and motive, which

require a lesser degree of distinctiveness.

The key issue in this case was identity. No witness came forward to

identify defendant as the person who killed JoAnn Sweets or Sophia Glover.


Substantial forensic evidence linked defendant to Sweets (fingerprints on the trash

bag, DNA evidence, the afghan blanket, carpet fibers), however, making that case

stronger than the one involving Glover. From Glover‘s body police had obtained

DNA evidence that was only moderately incriminating, placing the donor of that

semen sample—and defendant‘s sample—within 15 percent of the African-

American population. But a pattern emerged among the cases. Someone was

preying on African-American women in a certain area of San Diego in 1985 and

1986. All the victims were lone women, encountered, or likely encountered, on

the street. All were, or likely were, contacted on or around El Cajon Boulevard in

San Diego, an area frequented by prostitutes. All save Maria R. were African-

American and all save Bertha R. were, or likely were, prostitutes or homeless

women living on the streets. Three victims who survived the attacks — Maria R.,

Karen M., and Bertha R. — identified defendant and described how they were

taken to either his apartment on 51st Street or the Wilsie home on Mississippi

Street (to which he had access). That the surviving victims were able to identify

the apartments where they were brutalized is significant because the women who

were killed were all found in close proximity to one of these residences. All of the

women were manually strangled. All of the women were forced into brutalizing

sex acts. Several of the victims testified to, or their bodies bore evidence of, anal

sex. Drugs and alcohol were also a theme. The bodies of the women who lost

their lives were treated like trash, found discarded in a dumpster or, in Glover‘s

case, rolled in a blanket and placed curbside as if she were a piece of refuse. For

the victims who were or likely were prostitutes (Maria R., Tara Simpson, Trina

Carpenter, JoAnn Sweets, Sophia Glover, Karen M.), we may assume they went

with defendant of their own free will. We may also assume they were willing to

have sex with defendant, albeit for money. Although Bertha R. was not a

prostitute and denied she was willing to have sex, defendant encountered her


walking alone on a street known for its prostitutes and he may have believed she

was a prostitute. She admitted she went with defendant to the Wilsie home


Given these other common and distinctive facts, we must ask: Did the trial

court abuse its discretion in concluding these crimes bore such common and

distinctive marks that the person who committed one of them likely committed all

of them? Viewing the evidence in a light most favorable to the trial court‘s ruling

(People v. Carter (2005) 36 Cal.4th 1114, 1148), we conclude in the negative.

That some distinctions exist, as defendant contends, is true, but ―[t]o be highly

distinctive, the charged and uncharged crimes need not be mirror images of each

other.‖ (Ibid.)

Defendant emphasizes that unlike the other victims, Bertha R. was neither a

prostitute nor a homeless person. But that she was walking alone on El Cajon

Boulevard, known as a place where prostitutes gathered, and accepted a ride from

defendant, a total stranger, tends to blunt the importance of the fact she was not a

prostitute. As the trial court explained, ―[s]he may not have been a prostitute, but

she was willing to go with the defendant to the house on Mississippi Street.‖

Defendant also argues that—contrary to the trial court‘s expressed justification for

admitting the evidence—Bertha R. was not a willing sex partner because she told

defendant she did not want to kiss him. But defendant may have believed she was

a compliant partner, as she agreed to come to a strange house with a strange man

and smoke marijuana with him. She also otherwise fit the pattern of lone African-

American women defendant encountered along El Cajon Boulevard, took to one of

his residences, and then choked and forced to have sex in multiple and brutalizing

ways. Further, that Maria R., Karen M., and Bertha R. were not deposited in a

dumpster or treated like garbage is of no moment because they managed to escape

with their lives.


Defendant also argues no evidence showed Sweets and Glover were also

willing sex partners, but inferences from the evidence suggested both women were

prostitutes. Indeed, in arguing against the persuasiveness of the prosecution‘s

DNA evidence, defense counsel admitted all of the victims were prostitutes. In

any event, at the time the trial court ruled on the pretrial motion, defendant‘s own

moving papers described Sweets and Glover as ―known drug user[s] and

prostitute[s].‖ Nothing defense counsel said in arguing the motion before the trial

court contradicted this. We cannot fault the court for proceeding on the

understanding that Sweets and Glover had been willing sex partners.

Defendant further contends the court erred by considering the use of force

on a willing sex partner to be a distinctive feature of the crimes. He notes violence

against prostitutes is now and was in fact at the time common in San Diego. But

he did not make this argument to the court below, so we cannot fault the court for

failing to consider it. The same is true of defendant‘s further claim that the

existence of copycat killers undermines the persuasiveness of the People‘s

argument that the Bertha R. crimes were similar to the charged crimes.

For a number of other reasons, defendant seeks to distinguish the Bertha R.

crimes from those against the other victims. For example, Bertha R. alone was

threatened with a knife. But that she was also strangled tends to diminish the

importance of that fact. That defendant drove her around the city and forced to

commit a sex act in his car distinguishes her case somewhat from the others, but

by the time defendant assaulted Bertha R., he may have decided to stop discarding

his victims‘ bodies in dumpsters behind his own apartment, prompting his chilling

comment to her that ― ‗I have got to find someplace to put you.‘ ‖ Although

defendant‘s crimes against Bertha R. were not wholly identical to those against

Maria R., Karen M., JoAnn Sweets and Sophia Glover, we find the trial court did


not abuse its discretion in admitting her testimony. (People v. Rogers (2006) 39

Cal.4th 826, 862; People v. Roldan, supra, 35 Cal.4th at p. 705.)

The relative distinctiveness of the Bertha R. crimes aside, defendant

contends the trial court erred in admitting evidence of them because, although his

identity was in issue, his intent and motive in the Sweets and Glover crimes were

not. We disagree. The prosecution was required to prove not only that defendant

was the killer, but that he killed intentionally while committing the charged sex

crimes. (People v. Kipp (1998) 18 Cal.4th 349, 371-372.) Bertha R.‘s evidence

was thus relevant and its admission did not contravene defendant‘s due process


Defendant also contends the trial court erred in admitting the evidence

because identity, intent and motive were not at issue in the Maria R. or Karen M.

crimes. We disagree. Assuming without deciding defendant objected on this

specific ground, we find the court properly admitted the evidence. To be sure,

both Maria R. and Karen M. identified defendant as their assailant. But in proving

the culprit‘s identity, the People were entitled to bolster the victims‘ in-court

identifications with additional evidence. Moreover, because defendant was

charged with attempting to kill both victims, Bertha R.‘s evidence was relevant to

demonstrate his probable intent and motive; that is, that he intended to kill them.

Intent to kill is, of course, an element of the offense of attempted murder. (People

v. Osband (1996) 13 Cal.4th 622, 683.)

Defendant also contends admission of evidence of the crimes against

Bertha R. violated his federal right to due process of law. It does not appear

defendant moved to exclude the evidence on this ground below. Assuming

without deciding we may reach this constitutional issue, we reject it because

defendant fails to persuade us the admission of the Bertha R. evidence ―rendered


his trial so fundamentally unfair that it violated his due process rights.‖ (People v.

Roldan, supra, 35 Cal.4th at p. 705, fn. 23.)

b. Challenge to the Jury Instructions

Defendant next argues the trial court‘s jury instruction on the subject of

Bertha R.‘s evidence was erroneous and requires reversal. We disagree. The trial

court delivered this basic instruction to the jury: ―Evidence has been introduced in

this trial for the purpose of showing that the defendant committed crimes against

Bertha [R]. Defendant is not charged in this trial with crimes relating to Ms. [R].

[¶] Such evidence, if believed, was not received and may not be considered by you

to prove that the defendant is a person of bad character or that he has a disposition

to commit crimes. [¶] Such evidence was received and may be considered only

for the limited purpose of determining if it tends to show: [¶] The existence of the

intent, which is a necessary element of crimes charged; [¶] The identity of the

person who committed the crimes, if any, of which the defendant is accused; [¶]

A motive for the commission of the crimes charged; [¶] And for the limited

purpose for which you may consider such evidence, you must weigh it in the same

manner as you do all other evidence in the case. [¶] You are not permitted to

consider such evidence for any other purpose.‖

Defendant contends that ―[w]ithout at least proof that Sophia Glover and

JoAnn Sweets were prostitutes, there was no evidence that either was a willing

sexual partner. Thus, applying the court‘s reasoning, the jury had no basis for

determining that the Bertha [R.], Sophia Glover, and JoAnn Sweets offenses all

[bore] the same signature.‖ This argument, though framed as a challenge to the

jury instruction, merely reprises the issue of whether the evidence was admissible,

a claim we have previously rejected in connection with defendant‘s challenge to

the trial court‘s denial of his severance motion. (See pt. B.4, ante.) Once the


court ruled on that motion and admitted the evidence, the court was obliged to

instruct the jury on its proper consideration. That the court instructed the jury that

―[s]uch evidence was received and may be considered only for the limited purpose

of determining if it tends to show‖ intent, identity or motive (italics added), also

undermines defendant‘s argument, for if the jury had found the crimes too

dissimilar, we presume it would have found the evidence did not tend to prove

intent, identity or motive. Because the instruction correctly stated the applicable

law, we also reject defendant‘s argument the instruction violated his due process


Defendant next argues the jury instructions on other crimes evidence

violated his right to due process under the state and federal Constitutions because

no rational way existed for the jury to make the connection between defendant‘s

guilt of the other crimes and his guilt of the present crimes. (Ulster County Court

v. Allen (1979) 442 U.S. 140, 157.) That is, he contends the jury instructions

allowed the jurors to rely improperly on a permissive presumption to establish his

identity as the killer under circumstances in which it cannot be said ― ‗with

substantial assurance that the presumed fact is more likely than not to flow from

the proved fact on which it is made to depend.‘ ‖ (Id., at p. 166, fn. 28; see People

v. Pensinger (1991) 52 Cal.3d 1210, 1243-1244 [rejecting the same argument in

connection with the pattern instruction on the inference of a consciousness of guilt

arising from flight].) We reject the argument, because ―reason and common sense

amply justified the suggested conclusion‖ that the person who committed the

Maria R., Karen M, and Bertha R. crimes likely committed the very similar

Simpson, Carpenter, Sweets and Glover crimes. (People v. Yeoman (2003) 31

Cal.4th 93, 131 [rejecting the same argument in connection with CALJIC No. 2.06

(attempt to suppress evidence indicates a consciousness of guilt)].)


2. Admission of DNA Evidence

a. The Evidence

Dr. Edward Blake testified as an expert for the prosecution and related the

results of his testing of genetic material found at three of the crime scenes.

Regarding sperm and epithelial cells on two cotton balls found with Trina

Carpenter‘s body, the evidence suggested two different sperm donors. Dr. Blake

analyzed the sample‘s deoxyribonucleic acid (DNA) with a process known as

polymerase chain reaction, or PCR. His examination of the gene known as DQ-

Alpha indicated someone belonging to a population group consistent with

defendant‘s DNA had deposited the greater amount of sperm. According to Dr.

Blake, a population frequency analysis of the 21 different DQ-Alpha genotypes

has shown that defendant‘s genotype appears in approximately 6 percent of the

African-American population, 5 percent of the Caucasian population, and slightly

more than 2 percent of the Mexican-American population.

On rebuttal, Dr. Blake testified that he also subjected the genetic material

on the cotton balls to a different kind of PCR test called polymarker analysis. This

method compared five different genes rather than the single gene used in the DQ-

Alpha test and was thus more precise. Because the defense argued that Carpenter

was likely killed by Randy Lockwood, La-Jon Van Reed, or Prince Johnson,

individuals who were involved in the drug trade milieu of which the victim was a

part, Dr. Blake used the polymarker analysis to test samples from those three men

as well as defendant. The results of this second round of testing showed defendant

could not be eliminated as the donor of the sperm found on the cotton balls, and

that neither Lockwood, nor Reed, nor Johnson was the donor.

Although no sperm was found on oral or vaginal swabs taken from JoAnn

Sweets‘s body, and the amount of sperm on the rectal swab was too small to test

for DNA, five areas of the bed sheet in which Sweets‘s body was wrapped showed


signs of semen and were tested for genetic markers. Dr. Blake found a mixed

sample of semen (i.e., from more than one donor) on the bed sheet and his analysis

on cuttings from the sheet using the PCR DQ-Alpha technique showed the sperm

was deposited by someone belonging to a population group consistent with

defendant, as judged by the same frequency statistics as above. On rebuttal, Dr.

Blake testified the results of the polymarker DNA test showed he could not

eliminate defendant as the donor of the semen found on the bed sheets. Although

defendant had suggested Sweets‘s erstwhile boyfriend, Ike Jones, was responsible

for her death, Dr. Blake concluded that a DNA comparison of the bed sheet stain

with a genetic sample from Ike Jones showed he was not one of the donors.

Sperm and seminal fluid were found on a swab taken from Sophia Glover‘s

rectum and Dr. Blake‘s PCR DQ-Alpha analysis of that swab showed the sperm

cells were consistent with defendant‘s DNA, as judged by the same population

frequency statistics. On rebuttal, Dr. Blake testified that his polymarker analysis

suggested the sperm from the swab was ―fairly evenly balanced‖ between two

donors of sperm, and that possibly the sperm from a third donor was also present.

In light of this new evidence, Dr. Blake revised his estimate of how frequently the

particular genetic pattern appeared, saying that 15.1 percent of the African-

American population (including defendant) matched the possible genotypes found

on the swab. In other words, Dr. Blake could not eliminate defendant as the

donor, but defendant was not the only contributor to the sample drawn from

Glover‘s body.

b. PCR Analysis of the DQ-Alpha Gene

Defendant moved before trial to exclude Dr. Blake‘s intended testimony,

citing People v. Kelly (1976) 17 Cal.3d 24. Kelly was the genesis of a rule,


previously called the ―Kelly/Frye rule,‖11 that governs the admissibility of

evidence derived from new scientific techniques. ―Under Kelly, the proponent of

evidence derived from a new scientific technique must establish that (1) the

reliability of the new technique has gained general acceptance in the relevant

scientific community, (2) the expert testifying to that effect is qualified to give an

opinion on the subject, and (3) the correct scientific procedures were used.

[Citation.]‖ (People v. Doolin (2009) 45 Cal.4th 390, 445.) After considering

what it characterized as ―mounds of material‖ that both the defense and the

prosecution submitted, the trial court ruled Dr. Blake‘s intended testimony

satisfied the Kelly test.

Defendant does not specifically argue that PCR analysis of the DQ-Alpha

gene itself fails the Kelly test. Rather, he launches a more specific, four-part

challenge to the trial court‘s ruling. We note that since the time of defendant‘s

trial, ―[c]ourts have applied the Kelly three-pronged approach to various

techniques used in forensic DNA testing‖ (People v. Henderson (2003) 107

Cal.App.4th 769, 777), including PCR, the method used in this case. PCR ―takes

small pieces of DNA and copies or amplifies them[, and] is used when the DNA

sample is too small or degraded to perform the [restricted fragment length

polymorphism] method.‖ (Id., at p. 778.) ―PCR analysis of DQ alpha involves

three general steps. First, DNA is extracted from the nucleus of cells present in an

unknown bloodstain. Second, the DQ Alpha is replicated or amplified by a

process which involves combining the DNA with a commercially available


See Frye v. United States (D.C. Cir. 1923) 293 F. 1013, 1014, superseded

by statute as explained in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993)
509 U.S. 579.


solution or ‗cocktail‘ and then subjecting the solution to a series of controlled

temperature cycles. Finally, the amplified gene is typed in order to identify the

alleles[12] present in the amplified DNA.‖ (People v. Morganti (1996) 43

Cal.App.4th 643, 662, fn. omitted.) PCR testing of the DQ-Alpha gene also works

for semen stains. (People v. Reeves (2001) 91 Cal.App.4th 14, 24-25.)

PCR analysis of the DQ-Alpha gene is now firmly established as a

scientific technique that satisfies the Kelly test. (People v. Doolin, supra, 45

Cal.4th at p. 448; People v. Morganti, supra, 43 Cal.App.4th at p. 669.)13 ―Once a

published appellate decision has affirmed admission of a scientific technique, the

technique‘s general acceptance is established as a matter of law. Further hearings

on general acceptance are unnecessary ‗at least until new evidence is presented

reflecting a change in the attitude of the scientific community.‘ [Citations.]‖

(Doolin, supra, at p. 447.)

Apparently accepting the scientific community‘s approval of PCR testing in

general, defendant argues that, by admitting Dr. Blake‘s testimony, the trial court


―Because there is no practical way to sequence all three billion base pairs in

a person‘s DNA, forensic scientists seek to identify individuals through variations
in their base-pair sequences at polymorphic DNA locations (loci). Each variation
in sequence is called an ‗allele.‘ ‖ (People v. Venegas (1998) 18 Cal.4th 47, 59,
fn. omitted.) ―In genetics, ‗allele‘ usually means an alternate form of gene on one
of a pair of chromosomes at a particular locus. In forensic analysis, the term is
expanded to include an alternate form of any base-pair sequence.‖ (Id., at p. 59,
fn. 10.)


Defendant suggests Morganti is distinguishable because it was ―not a

mixed sample case.‖ Subsequent to Morganti, however, published cases have held
that because PCR has attained a consensus in the scientific community as a valid
procedure, its use for mixed-source samples does not constitute a new scientific
procedure separately subject to Kelly. (See, e.g., People v. Stevey (2012) 209
Cal.App.4th 1400, 1411; People v. Smith (2003) 107 Cal.App.4th 646, 665.)


nevertheless erred in four specific ways: (1) Dr. Blake‘s use of something called

―dot intensity‖ analysis to determine the genotypes present in a mixed-donor

sperm sample was not admissible because this method was not generally accepted

in the scientific community; (2) Dr. Blake used incorrect scientific procedures to

identify possible genotypes present in the samples tested; (3) Dr. Blake‘s use of

population frequency statistics was flawed; and (4) Dr. Blake‘s conclusions from

conducting a polymarker analysis were inadmissible because he failed to follow

proper scientific procedures. As we explain, admission of Dr. Blake‘s testimony

did not result in reversible error.

c. Dot Intensity Analysis

The PCR DQ-Alpha method tests for the presence or absence of six

common identifiable alleles at the DQ-Alpha genetic marker. An individual‘s

genotype for the DQ-Alpha marker is composed of a pair of alleles. ―The six DQ-

Alpha alleles can be paired to form 21 distinct genotypes, meaning the human

population can be divided into 21 population groups. Ultimately, the DQ-Alpha

genotype of the sample is determined by the presence of blue dots on test strips

that indicate an allele of the sample DNA bonded with a specific DNA sequence

or ‗primer‘ on the test strip.‖ (People v. Doolin, supra, 45 Cal.4th at pp. 446-447.)

When a sample being tested has more than one donor, scientists compare

the intensity of the blue color of the dots on the resulting test strip to identify the

genotype of the alleles from the primary contributor of the sample. (People v.

Doolin, supra, 45 Cal.4th at pp. 446-447.) The dots of a ― ‗minor‘ contributor to

the mixed DNA sample, for example, [have] ‗significantly less‘ color intensity

than [those] of a ‗major‘ contributor.‖ (Id., at p. 447.) As Dr. Blake testified, ―if

you have an unequal mixture, . . . the sample that is there at the lowest level will

produce relatively faint typing dots relative to the sample that‘s present at a higher


level, and that‘s reflected in the typing result.‖ Moreover, the ―density of the

color‖ of the resulting dots further indicates which alleles belong together in a

mixed-donor sperm sample. Dr. Blake testified at the preliminary hearing that

comparing the dots‘ color intensities to determine the alleles of the primary and

secondary donors was a valid technique, citing an article he cowrote and another

authored by two other experts.14 He was unaware of any other articles on the

subject, although he was sure there were some.

Defendant objected to this methodology, arguing: ―None of the other

material provided, and in particular the [National Research Council] report does

not support Dr. Blake‘s conclusion that you can tell a primary from a secondary

donor, if you will, nor that you can even tell which alleles go together in a

situation where maybe you have four as opposed to which you would expect to

find two. You can‘t really tell which of those go together based on the kind of

testing, and all that is, in fact, available.‖ After considering all the evidence and

argument, the trial court concluded: ―I think that Blake‘s procedures have been

substantiated as correct scientific procedures. They are [a] little bit different, but

substantiated.‖ Although the court made no specific or separate ruling on Dr.

Blake‘s use of the dot intensity analysis, and defendant did not press the court for


See Blake, et al., Polymerase Chain Reaction (PCR) Amplification and

Human Leukocyte Antigen (HLA)-DQ Oligonucleotide Typing on Biological

Evidence Samples: Casework Experience (May 1992) 37 J. Forensic Sciences
700. Dr. Blake asserts in the article that ―the resulting dot intensity‖ from a PCR
DQ-Alpha analysis can be used to distinguish the genotypes present in a mixed

See also Comey & Budowle, Validation Studies on the Analysis of the HLA

DQ Locus Using the Polymerase Chain Reaction (Nov. 1991) J. Forensic

Sciences 1633 (reaching the same conclusion).


a specific ruling (see People v. Ramos (1997) 15 Cal.4th 1133, 1171 [party

seeking to preserve a claim for appeal must ―secure an express ruling from the

court‖]), we assume the trial court‘s reference to Dr. Blake‘s ―procedures‖ is broad

enough to encompass a ruling on the dot intensity analysis.

We have previously encountered a claim that the dot intensity analysis

associated with PCR DNA testing fails the Kelly test. We noted that ―[w]hether

‗dot-intensity analysis‘ is a novel technique requiring its own proof of general

acceptance has not been addressed in a California published opinion.‖ (People v.

Doolin, supra, 45 Cal.4th at p. 448.) We declined to address the merits of the

claim in Doolin because, inter alia, any error was harmless. (Ibid.) Here, too, we

need not address the merits of defendant‘s claim because even were we to assume

the dot intensity analysis performed by Dr. Blake constitutes a new scientific

technique and not merely an expert‘s opinion based on observable scientific data

(see People v. Stoll (1989) 49 Cal.3d 1136, 1157 [―absent some special feature

which effectively blindsides the jury, expert opinion testimony is not subject to

Kelly . . . .‖]), and if we further assume the People‘s showing concerning the dot

intensity analysis was deficient under Kelly, defendant suffered no prejudice.

Dr. Blake‘s testimony describing his DNA analysis played no role in

defendant‘s convictions for attempting to murder Maria R. and Karen M., and the

jury did not reach a verdict on the murder counts involving Trina Carpenter and

Tara Simpson. Therefore, Dr. Blake‘s evidence is significant on appeal only to the

murder counts involving Sophia Glover and JoAnn Sweets. But with regard to the

Glover counts, Dr. Blake‘s initial testimony, which was based on his use of the dot

intensity technique in connection with the PCR DQ-Alpha test and identified

defendant‘s genotype on the anal swab drawn from Glover‘s body, was superseded

by his testimony on rebuttal, in which he described the results of his later, more

precise polymarker analysis. Thus, even assuming for argument the People‘s


Kelly showing for the dot intensity technique was deficient, because of the

witness‘s own re-evaluation of the sperm sample using a later test that was both

more accurate and not reliant on the dot intensity technique, it is not reasonably

probable the verdict would have been more favorable absent the challenged

portion of Dr. Blake‘s evidence. (See People v. Doolin, supra, 45 Cal.4th at

p. 448.)

We reach the same conclusion with regard to the counts involving JoAnn

Sweets. Dr. Blake testified he tested a semen stain on a bed sheet found with

Sweets‘s body and identified a genotype with alleles 1.2, 2, consistent with that of

defendant. Dr. Blake admitted, however, that the sperm was a mixed sample, and

the stain could have been deposited by someone with the alleles 1.2, 1.2. Because

defendant presented evidence suggesting a third party named Ike Jones, whose

genotype included the 1.2, 1.2 alleles, could have been Sweets‘s killer, Dr. Blake

could not rule him out at that earlier period. On rebuttal, however, Dr. Blake

described the results of his polymarker testing and concluded that Ike Jones could

be excluded as a possible donor of the bed sheet stain, but that defendant‘s

―genotypes in each one of these genetic marker systems is compatible with the

type found in the sperm [sample].‖ As with Dr. Blake‘s testimony concerning

Sophia Glover, his rebuttal evidence reflecting the more accurate polymarker

testing rendered harmless any deficiency in the People‘s Kelly showing regarding

the dot intensity analysis in connection with the initial PCR DQ-Alpha testing.15

We thus conclude that, even assuming for argument that the People failed

to demonstrate the scientific community had generally accepted the dot intensity


To the extent defendant also challenges the testimony based on the

polymarker test as to the crimes against Sweets, even if we accepted that challenge
any error would be nonprejudicial, as discussed, post, at page 52.


technique at the time of defendant‘s trial, any error in admitting Dr. Blake‘s

testimony was harmless under any standard in light of his rebuttal testimony

describing the results of his polymarker DNA testing.

d. Kelly’s Third Prong: Relevance

Defendant next argues the trial court erred in admitting Dr. Blake‘s

testimony because ―[t]he prosecution . . . failed to carry its burden under Kelly‘s

third prong, which requires proof that Dr. Blake used proper scientific procedure

to determine that [defendant‘s] DNA and the perpetrator‘s DNA matched.‖ He

claims Dr. Blake used an incorrect scientific procedure to identify possible

genotypes present in the samples he tested because, having found two donors in

the samples swabbed from Glover, Carpenter and Sweets, it was equally possible

that instead of finding a donor matching defendant‘s genotype (by pairing two of

the four alleles identified in the sample) and a second, unknown donor (whose

genotype was identified by pairing the remaining two alleles in the sample), a

different combination of the four alleles would have revealed two donors, neither

of whose genotype matched defendant‘s. According to defendant, ―[i]f the

prosecution could not establish which genotype the perpetrator possessed at that

locus [i.e., at the DQ-Alpha locus], there was no relevant evidence to admit from

that locus‖ (citing People v. Pizarro (2003) 110 Cal.App.4th 530, 600-601), and

the DNA evidence was just as likely to exonerate as inculpate him. Under such

circumstances, he argues, the trial court should have excluded the evidence as


The gist of this argument seems to be one of relevance rather than a

complaint about Kelly‘s third prong, but whether defendant objected on either of

these grounds is not clear. Assuming for argument that he did and the issue was

preserved for our review, we reject it. ―The Kelly third-prong inquiry involves


further scrutiny of a methodology or technique that has already passed muster

under the central first prong of the Kelly test, in that general acceptance of its

validity by the relevant scientific community has been established. The issue of

the inquiry is whether the procedures utilized in the case at hand complied with

that technique. Proof of that compliance does not necessitate expert testimony

anew from a member of the relevant scientific community directed at evaluating

the technique‘s validity or acceptance in that community. It does, however,

require that the testifying expert understand the technique and its underlying

theory, and be thoroughly familiar with the procedures that were in fact used in

the case at bar to implement the technique.‖ (People v. Venegas, supra, 18

Cal.4th at p. 81, italics added.) ―Where the prosecution shows that the correct

procedures were followed, criticisms of the techniques go to the weight of the

evidence, not its admissibility.‖ (People v. Brown (2001) 91 Cal.App.4th 623,


No real question exists that Dr. Blake was an expert in the field of DNA

testing and that he fully understood the theory and procedures used to test the

sperm samples for their genetic markers. Moreover, he was well aware that more

than one man had produced the samples he tested, and his testimony regarding the

procedures he used to analyze the samples, including the dot intensity analysis,

explained why he paired certain alleles to others to conclude defendant‘s genotype

was present in the samples. We thus reject defendant‘s argument that the DNA

evidence failed Kelly‘s third prong and conclude defendant‘s criticism of Dr.

Blake‘s procedures go to the weight, not the admissibility, of that evidence.

To the extent defendant argues the DNA evidence was irrelevant because

Dr. Blake‘s test results were as likely to exonerate as inculpate him, we reject the

argument because the trial court did not abuse its broad discretion when it

implicitly concluded Dr. Blake‘s evidence had a ―tendency in reason to prove or


disprove [a] disputed fact that [was] of consequence to the determination of the

action.‖ (Evid. Code, § 210.) Defendant‘s further reliance on the reasoning in

People v. Pizarro, supra, 110 Cal.App.4th 530, is unpersuasive; Pizarro was

decided many years after the trial court‘s Kelly hearing in this case, and, in any

event, that case involved a type of DNA testing (restriction fragment length

polymorphism) different from the PCR testing used in this case.

e. Use of Population Frequency Data

Defendant next argues the trial court erred in admitting Dr. Blake‘s

testimony that he relied on population frequency statistics. Again citing People v.

Pizarro, supra, 110 Cal.App.4th 530, defendant argues the proper scientific

procedure where the perpetrator‘s race is unknown is to present the most

conservative frequency statistic without mentioning any further refinement based

on ethnic groups. Whether defendant objected on this ground and preserved the

issue for appeal is unclear, but assuming for argument that he did, we reject the

claim because this court disapproved Pizarro on this point in People v. Wilson

(2006) 38 Cal.4th 1237. ― ‗Thus, there is no cogent reason to preclude testimony

of a range of ethnic or racial genetic profile frequencies when the race of the

perpetrator is unknown, so long as the data is not presented in a manner that

assumes that the race of the perpetrator is the same as the race of the defendant.

Since the testimony in the present case made no such assumptions, it was relevant,

nonprejudicial, and properly received . . . .‘ ‖ (Wilson, at p. 1250.)

f. Polymarker Evidence

Defendant finally argues the trial court erred by admitting Dr. Blake‘s

testimony on rebuttal regarding his conclusions from conducting the PCR

polymarker analysis on the Carpenter and Sweets sperm samples because the

witness failed to follow proper scientific procedures. According to defendant,


because no sensitivity dot (known as an ―s‖ dot) appeared on the test strip for

those samples, Dr. Blake should have aborted the test because ―the manufacturer

of the polymarker kit used by Dr. Blake[] recommends against typing a DNA

sample unless the sensitivity dot is visible.‖ Because Dr. Blake did not follow

correct scientific procedures, defendant argues, his polymarker evidence on

rebuttal failed Kelly‘s third prong.

As previously noted, we agree with respondent that a challenge to the Kelly

third prong goes to the weight, not the admissibility, of the evidence. (People v.

Brown, supra, 91 Cal.App.4th at p. 647.) We thus reject at the outset any

suggestion the trial court erred by admitting the evidence.

We also reject the argument that Dr. Blake‘s rebuttal evidence failed to

satisfy Kelly‘s third prong. Although defendant argues the kit‘s manufacturer

recommends against using results when no sensitivity dot is visible on the test

strip, his characterization of such user instructions is inaccurate. Dr. Blake read

the manufacturer‘s directions into the record: ― ‗To read the developed amplitype

PM DNA probe strip, begin by examining the ―s‖ dot. It is recommended that a

DNA probe strip with no visible ―s‖ dot not be typed for any locus. . . . [¶] . . . [¶]

However, individual laboratories may choose to type all loci for which a band was

observed on the amplitype PM PCR product gel. Those dots that appear either

darker than or equivalent to the ―s‖ dot are . . . considered positive. . . . Dots that

are lighter than the ―s‖ dot should be interpreted with care.‘ ‖ Thus, the

manufacturer did not state categorically that the absence of a sensitivity dot

rendered the resulting test strip unreliable.

Dr. Blake explained why he reported his results despite the absence of an

―s‖ dot on some test strips: He ran two test strips on a reference sample of

defendant‘s DNA; one had a visible ―s‖ dot and one did not. Because the typing

in both was identical (as they should have been, because they were both taken


from defendant), he felt confident in reporting results from the test. Similarly, Dr.

Blake ran two polymarker tests on the sample from the Sweets case. One had a

faint ―s‖ dot and the other had no dot visible, but ―the typing results from both

specimens [were] identical,‖ suggesting the absence of a visible sensitivity dot was

of less importance.

In addition, defendant‘s experts did not categorically proclaim that a

missing ―s‖ dot rendered a polymarker test result invalid per se. When defense

expert Marc Taylor was asked whether ―genotype results can be interpreted on

unknown samples where no ‗s‘ dot is visualized on the test strip?‖ he replied: ―I

think under certain circumstances that there are some interpretations that can be

made. I think there are some very big dangers of misinterpretations when there

isn‘t an ‗s‘ dot.‖ And defense expert Patrick O‘Donnell, when asked about a test

strip with a missing ―s‖ dot, responded: ―I would attach . . . a very conservative

interpretation to any sample in which an ‗s‘ dot was not visible,‖ but later admitted

there were other ways of compensating for the lack of a visible ―s‖ dot.

Finally, any error with regard to the missing sensitivity dot was harmless

under any standard. First, with regard to evidence implicating defendant in Trina

Carpenter‘s killing, any error was harmless because the jury did not reach a verdict

on that charge, and the People elected not to retry it. Second, with regard to

evidence suggesting defendant killed JoAnn Sweets, the evidence against

defendant was very strong even aside from Dr. Blake‘s PCR polymarker rebuttal

testimony: Defendant‘s fingerprints were found on the plastic garbage bag in

which Sweets‘s body was wrapped, she was found with a blanket made by

defendant‘s mother, and carpet fibers on her body matched those in defendant‘s


In sum, we find the court did not prejudicially err in admitting the DNA



3. Admission of Dr. Meloy’s Testimony

Defendant moved before trial for an evidentiary hearing to discover the

nature of the testimony the prosecution intended to present from witness Dr. John

Reid Meloy. The trial court held an Evidence Code section 402 hearing at which

Dr. Meloy testified and described the basis of his expertise and the nature of his

expected testimony. At the end of the hearing, the trial court ruled Dr. Meloy

could testify as an expert on sexual homicides but could not express the opinion

that defendant himself fell into the category of a being a perpetrator of sexual

homicides. The court also emphasized its ruling was a tentative one. When

defendant later formally moved to exclude Dr. Meloy‘s testimony, the court

affirmed its earlier tentative ruling, noting the witness‘s testimony would be

limited to ―intent and motive at the time [of the crime].‖ In other words, the court

allowed the witness to testify and ―to dispel . . . what may be misperceptions by

the jury that nobody would kill for sex when you have got a prostitute there.‖

The court revisited its tentative ruling twice more, each time reaffirming its

previous ruling, noting the ruling‘s limits and affirming that it would exclude all

other parts of Dr. Meloy‘s anticipated evidence under Evidence Code section 352.

In light of the limits the court placed on Dr. Meloy‘s trial testimony, it was

brief, spanning only 16 pages in the trial transcript. He explained that he was a

forensic psychologist and, on a parttime basis, the chief of court services for the

San Diego County forensic mental health division. In the latter capacity, he was,

among other things, ―administratively responsible for the outpatient psychiatric

treatment program for individuals that have been found not guilty by reason of

insanity, have then gone to the state hospital, usually for a number of years, and

then are released by the court back to the community.‖ In addition to having

received a number of degrees, Dr. Meloy also was board certified as a forensic

psychologist and had worked in the criminal law field for many years. He had


particular experience studying the field of ―sexual homicide,‖ which he defined as

― ‗the intentional killing of another human being during which there is evidence of

sexual activity by the perpetrator.‘ ‖ He had conducted research and published

papers on that subject and had been retained as an expert in numerous criminal


Asked by the prosecutor how sexual homicide differs from more common

homicide, Dr. Meloy explained: ―Generally in most homicides there is not any

sexual arousal involved. Generally most people who kill somebody else

intentionally, it is usually somebody they know; actually, quite well. And they are

usually very frightened or very angry when they do it, and there is no sexual

component to it at all.‖ Asked whether ―a motivation or desire [or] intent . . .

drives‖ the perpetrator of a sexual homicide, Dr. Meloy replied: ―The intent in

sexual homicide, and the reason that sexual homicides exist, is that the person who

does this, his rage toward women, his violence toward women, and the woman‘s

suffering under his domination is his biggest sexual turn-on‖; that is, the

perpetrator of such a crime ―is sexually aroused by the act of violence toward the

victim, who is usually a woman, and he [will desire to reach a sexual climax]

before, during, or after the killing.‖ On cross-examination by defense counsel, Dr.

Meloy affirmed that his definition sexual homicide ―is not a legal definition of any

kind‖ and that it is not included in any diagnostic literature such as the ―DSM-



Known by the acronym ―DSM,‖ the ―Diagnostic and Statistical Manual of

Mental Disorders [is published] by the American Psychiatric Association. ‗The
DSM–IV is recognized by the courts as a standard reference work containing a
comprehensive classification and terminology of mental disorders.‘ ‖ (People v.
, supra, 48 Cal.4th at p. 205, fn. 17.)


Defendant raises a number of arguments challenging the admission of Dr.

Meloy‘s testimony.

a. Bledsoe

Defendant first contends, as he did below, that admission of Dr. Meloy‘s

testimony was contrary to the principles set forth in People v. Bledsoe (1984) 36

Cal.3d 236. Bledsoe addressed the admissibility of expert evidence describing

rape trauma syndrome. Such psychological evidence, we recognized, may explain

why some rape victims delay reporting the crime, or even recant an accusation,

and thus ―may play a particularly useful role by disabusing the jury of some

widely held misconceptions about rape and rape victims, so that it may evaluate

the evidence free of the constraints of popular myths.‖ (Id., at pp. 247-248.) In

Bledsoe, however, ―the evidence was not admitted for any such purpose‖ (id., at

p. 248), as the victim in the case reported the crime immediately and never

wavered in her story, nor did the defendant argue the victim‘s postcrime behavior

indicated she had not been raped. Under those circumstances, we concluded that

―expert testimony that a complaining witness suffers from rape trauma syndrome

is not admissible to prove that the witness was raped.‖ (Id., at p. 251.)

In denying defendant‘s motion to exclude Dr. Meloy‘s testimony in the

instant case, the trial court explained: ―[W]hen considering Bledsoe, the relevance

of [Dr. Meloy‘s] testimony is not to prove that a sexual homicide did or did not

occur here, nor to prove that the defendant committed any of these crimes. . . . [¶]

His testimony is simply to give the jury insight into the motive and intent that may

go behind a sexual homicide, and such testimony is highly relevant where lay

persons will probably find it incomprehensible why a prostitute would be

murdered for sex when the sex could be obtained voluntarily.‖ The court later

reiterated the limits of its ruling, saying: ―Dr. Meloy‘s testimony would be limited


to just that portion that would dispel any confusion on the jury‘s part concerning

the intent of somebody where there is the killing of a willing prostitute for sex. So

I think the people are entitled to dispel that confusion, and the rest of it would be

out under [Evidence Code section] 352 or lack of foundation.‖

Although the court did not admit Dr. Meloy‘s testimony as evidence

defendant committed the charged crimes, defendant nevertheless contends the rule

permitting admission of such psychological evidence is inapplicable here. He

argues the prosecution presented no evidence of a commonly held misconception

that Dr. Meloy‘s evidence might serve to contradict. But Dr. Meloy testified

extensively at the Evidence Code section 402 hearing about what his research into

the area showed, and it was reasonable for the trial court to find that jurors might

not understand why a person would kill a consensual sexual partner. Dr. Meloy‘s

description of the unusual psychological urges of those who commit sexual

homicides was thus relevant to the jury‘s proper assessment of the evidence. ―The

trial court has broad discretion in deciding whether to admit or exclude expert

testimony [citations], and its decision as to whether expert testimony meets the

standard for admissibility is subject to review for abuse of discretion.‖ (People v.

McDowell (2012) 54 Cal.4th 395, 426.) Applying that standard here, we find no

abuse of discretion.

Defendant raises a number of subsidiary claims. Assuming for argument he

properly preserved them below, we similarly find them nonmeritorious.

Defendant first contends that because Dr. Meloy and the trial court agreed that

sexual homicides were rare, there could be no commonly held misconception about

such killings or the murders in this case. This was a matter for the trial court to

weigh in exercising its discretion and we perceive no abuse of discretion in that

regard. Second, defendant observes the jury questionnaire included questions

concerning protection of prostitutes, and whether they can be victims of rape, and


the jurors‘ answers to these questions showed they harbored no such

misconceptions about prostitutes. But Dr. Meloy testified that some persons

appear to suffer from a mental disorder that leads them to kill willing sexual

partners in order to experience heightened sexual pleasure. The jury questionnaire

did not give the jurors this information.

Third, defendant argues Dr. Meloy‘s evidence was not targeted to refuting

the specific misconception that people do not kill willing sexual partners to

achieve increased sexual pleasure. He contends, for example, that none of the

studies on which Dr. Meloy relied involved victims who were prostitutes. The

trial court reasonably considered the issue in more general terms: the killing of

any willing sexual partners, not simply prostitutes. Fourth, defendant argues Dr.

Meloy‘s evidence was inadmissible because the defense introduced no contrary

evidence to be refuted; that is, defendant never claimed that willing sexual

partners were never killed for psychological reasons. But the court did not admit

Dr. Meloy‘s testimony because defendant had somehow opened the door to it by

his own evidence. (See, e.g., People v. Coffman and Marlow (2004) 34 Cal.4th 1,

74 [defendant‘s testimony opened the door to questioning about other crimes].)

Nor was Dr. Meloy‘s testimony tantamount to rebuttal evidence, which is subject

to certain restrictions. (See People v. Young (2005) 34 Cal.4th 1149, 1199

[rebuttal evidence ― ‗is restricted to evidence made necessary by the defendant‘s

case in the sense that he has introduced new evidence or made assertions that were

not implicit in his denial of guilt‘ ‖].) Instead, the court admitted the evidence

because it was ―[r]elated to a subject that is sufficiently beyond common

experience that the opinion of an expert would assist the trier of fact.‖ (Evid.

Code, § 801, subd. (a).) We thus reject these subsidiary claims.


b. Relevance, Evidence Code Section 352, and Due Process

Defendant next contends Dr. Meloy‘s testimony should have been excluded

because it was irrelevant and violative of both Evidence Code section 352 and his

right to state and federal due process of law. Of course, only relevant evidence is

admissible (Evid. Code, § 350), and relevance is defined as ―having any tendency

in reason to prove or disprove any disputed fact that is of consequence to the

determination of the action‖ (id., § 210). The trial court has broad discretion to

determine the relevance of evidence (People v. Gurule (2002) 28 Cal.4th 557,

614), and we will not disturb the court‘s exercise of that discretion unless it acted

in an arbitrary, capricious or patently absurd manner (People v. Rodrigues (1994)

8 Cal.4th 1060, 1124-1125).

As he did in the trial court, defendant argues Dr. Meloy‘s evidence was so

speculative that it was irrelevant. ― ‗The test of relevance is whether the evidence

tends ―logically, naturally, and by reasonable inference‖ to establish material facts

such as identity, intent, or motive.‘ [Citations.]‖ (People v. Bivert, supra, 52

Cal.4th at pp. 116-117.) Here the trial court admitted the evidence to show

motive. As the court explained, Dr. Meloy‘s ―testimony would be offered to

provide insight into the motive or intent involved in the perpetration of the sexual

homicide,‖ likening it to another case in which an expert was allowed to give

evidence on Munchausen‘s syndrome by proxy. (People v. Phillips (1981) 122

Cal.App.3d 69, 78-79.)

The record shows the trial court carefully, even meticulously, considered

the proper limits on Dr. Meloy‘s anticipated testimony. Under the circumstances,

we find no abuse of discretion. Although defendant attacks Dr. Meloy‘s evidence

because it was based on a small sample, incorporated the use of Rorschach inkblot

testing, and used surveys that included offenders who did not kill prostitutes, such

alleged discrepancies do not demonstrate Dr. Meloy‘s testimony was so


speculative as to render it inadmissible. (See People v. Horning (2004) 34 Cal.4th

871, 900-901 [inability of expert to say bullets were unquestionably fired from a

particular gun did not render evidence inadmissibly speculative].) To the extent

defendant argues Dr. Meloy‘s testimony was inadmissible because defendant‘s

intent and motive were not in dispute, we reject that claim as well. ― ‗Motive is

not a matter whose existence the People must prove or whose nonexistence the

defense must establish. [Citation.] Nonetheless, ―[p]roof of the presence of

motive is material as evidence tending to refute or support the presumption of

innocence.‖ ‘ ‖ (People v. Roldan, supra, 35 Cal.4th at p. 707.) Finally, we reject

defendant‘s argument that Dr. Meloy expressed an opinion on the ultimate fact of

defendant‘s state of mind in violation of section 29.17 The witness offered no such

opinion; he merely agreed that in a sexual homicide, the perpetrator‘s motivation,

desire or intent ―drives‖ the activity, and that ―[t]he intent in sexual homicide, and

the reason that sexual homicides exist, is that the person who does this, his rage

toward women, his violence toward women, and the woman‘s suffering under his

domination is his biggest sexual turn-on.‖ The jury was left to decide whether

defendant had committed a sexual homicide and so had acted with that intent.

Defendant also reprises his pretrial claim that the court abused its discretion

in denying his motion to exclude Dr. Meloy‘s testimony as being more prejudicial

than probative. (Evid. Code, § 352.) ―. . . Evidence Code section 352 requires the

exclusion of evidence only when its probative value is substantially outweighed


―In the guilt phase of a criminal action, any expert testifying about a

defendant‘s mental illness, mental disorder, or mental defect shall not testify as to
whether the defendant had or did not have the required mental states, which
include, but are not limited to, purpose, intent, knowledge, or malice aforethought,
for the crimes charged. The question as to whether the defendant had or did not
have the required mental states shall be decided by the trier of fact.‖ (§ 29.)


by its prejudicial effect. ‗Evidence is substantially more prejudicial than probative

[citation] [only] if, broadly stated, it poses an intolerable ―risk to the fairness of the

proceedings or the reliability of the outcome‖ [citation].‘ ‖ (People v. Tran (2011)

51 Cal.4th 1040, 1047.) The trial court was well aware of the danger Dr. Meloy‘s

evidence posed and therefore limited the scope of his testimony severely. The trial

court has broad discretion under Evidence Code section 352 to exclude evidence

(People v. Mills, supra, 48 Cal.4th at p. 195), and we cannot say it abused its

discretion in this case. Nor did defendant suffer any prejudice; although he

contends Dr. Meloy‘s testimony must have created a ―deep loathing‖ for him and

instilled ―an emotional bias‖ against him, the facts are otherwise. By failing to

come to a verdict on two of the four alleged murders, the jury showed it had

considered each count separately and thoughtfully and was not overcome by bias

against, or hatred for, defendant.

Many of these same considerations lead us to reject defendant‘s claim that

his right to due process under the state and federal Constitutions was violated by

the admission of Dr. Meloy‘s testimony, which rendered his trial fundamentally

unfair. ―The admission of relevant evidence will not offend due process unless the

evidence is so prejudicial as to render the defendant‘s trial fundamentally unfair.‖

(People v. Falsetta, supra, 21 Cal.4th at p. 913.) The trial court‘s careful pruning

of Dr. Meloy‘s anticipated evidence and the ultimate brevity of his testimony

underscore the fairness of the process, and defendant‘s ability to call witnesses to

impeach Dr. Meloy, as well as the jury‘s inability to return verdicts on two of the

four charged murders, demonstrate the trial was not fundamentally unfair.

c. Evidence Code Section 720

One of the grounds on which defendant relied for his pretrial motion to

exclude Dr. Meloy‘s testimony was that the witness was not qualified under


Evidence Code section 720 to testify as an expert regarding sexual homicide. On

appeal, defendant has reframed his argument: he contends Dr. Meloy‘s testimony

was inadmissible because no such subfield of psychology known as ―sexual

homicide‖ exists, ―or at the very least, the prosecution failed to show its

existence.‖ Although respondent argues defendant failed to preserve this precise

claim by raising it in this form below, we take defendant‘s consistent reliance on

Evidence Code section 720 to mean he contends the prosecution failed to show Dr.

Meloy ―has special knowledge, skill, experience, training, or education sufficient

to qualify him as an expert on the subject to which his testimony relates.‖ (Evid.

Code, § 720, subd. (a).) As so construed, we reject it.

A trial court‘s decision that a proposed witness qualifies as an expert under

Evidence Code section 720 is a matter within the court‘s broad discretion and will

not be disturbed on appeal unless the defendant demonstrates a manifest abuse of

that discretion. (People v. Castaneda (2011) 51 Cal.4th 1292, 1336.) When a

preliminary showing is made that the proposed witness has sufficient knowledge

to qualify as an expert under the Evidence Code, questions about the depth or

scope of his or her knowledge or experience go to the weight, not the

admissibility, of the witness‘s testimony. (People v. Eubanks (2011) 53 Cal.4th

110, 140.) Here, an extensive hearing pursuant to Evidence Code section 402 was

held before trial in which Dr. Meloy related his educational history, his study of

the subject of sexual homicide, his personal interviews and observations of

subjects, his published papers, and his conclusions regarding sexual homicide. At

trial, he candidly admitted on cross-examination that the definition he was using of

sexual homicide was not contained in the DSM. Defendant was free to call his

own witness to dispute Dr. Meloy‘s conclusions, but the trial court‘s decision to

permit Dr. Meloy to testify as an expert was well within its discretion.


d. Evidence Code Section 801

As he did before trial, defendant contends Dr. Meloy‘s testimony regarding

sexual homicides amounted to a legal conclusion in violation of Evidence Code

section 801, subdivision (a). Although that provision permits an expert to ―assist

the trier of fact‖ by testifying to any subject ―that is sufficiently beyond common

experience,‖ such testimony is limited in an important way. ―[Although] opinion

evidence which is otherwise admissible is not made inadmissible simply because it

embraces the ultimate issue to be decided by the trier of fact . . . [t]he cited rule

does not . . . authorize an ‗expert‘ to testify to legal conclusions in the guise of

expert opinion. Such legal conclusions do not constitute substantial evidence.‖

(Downer v. Bramet (1984) 152 Cal.App.3d 837, 841, cited with approval in

Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 884; see 1 Witkin,

Cal. Evidence (5th ed. 2012) Opinion Evidence, § 98, pp. 745-748.)

Contrary to defendant‘s argument, Dr. Meloy‘s testimony at trial did not

run afoul of this rule. The witness neither provided a legal conclusion nor defined

a crime for the jury. He merely described the phenomenon, noted by other

experts, called ―sexual homicide.‖ He did not offer a legal conclusion that all

sexual homicides are intentional and purposeful, nor did he say that such crimes

were tantamount to deliberate and premeditated murder. Although Dr. Meloy

agreed with the prosecutor that sexual homicides involve ―goal-oriented

behavior,‖ he did not go further to say that the goal of the perpetrators of such

homicides was always to kill. In any event, defendant did not object to this

testimony and he thus forfeited the issue.

Defendant also contends Dr. Meloy‘s testimony contravened subdivision

(b) of Evidence Code section 801. That provision states in pertinent part: ―If a

witness is testifying as an expert, his testimony in the form of an opinion is limited

to such an opinion as is: [¶] . . . [¶] (b) Based on matter . . . that is of a type that


reasonably may be relied upon by an expert in forming an opinion upon the

subject to which his testimony relates . . . .‖ We addressed that subject in People

v. Gardeley (1996) 14 Cal.4th 605, where we explained that expert testimony can

be based on a wide variety of information so long as it is reliable. ―For ‗the law

does not accord to the expert‘s opinion the same degree of credence or integrity as

it does the data underlying the opinion. Like a house built on sand, the expert‘s

opinion is no better than the facts on which it is based.‘ ‖ (Id., at p. 618.) A trial

court enjoys broad discretion when ruling on foundational matters such as

qualifying a witness under Evidence Code section 801, subdivision (b), and such

decisions will not be disturbed on appeal absent a showing of a manifest abuse of

discretion. (People v. Mickey (1991) 54 Cal.3d 612, 688.)

Although an expert witness‘s opinion may not be based on guess or

conjecture (People v. Moore (2011) 51 Cal.4th 386, 405), such was not the case

here. In the foundational hearing held before trial, Dr. Meloy carefully described

his 18 years of experience with sexual homicides, his research, his methodology,

the publications he had read, and the cases involving sexual homicide in which he

had been a consultant. Defendant criticizes this foundation of Dr. Meloy‘s

opinions as unreliable within the meaning of Evidence Code section 801,

subdivision (b), arguing that his opinions were self-contradictory and tentative,

that the methodology of using Rorschach inkblot tests had not been peer reviewed,

that other cases in the literature had not involved prostitutes as victims, that Dr.

Meloy had not personally interviewed other perpetrators of sexual homicide and

asked them about their motives, and that his definition of sexual homicide was

―unworkable and unreliable.‖ On this record, however, we cannot say the trial

court abused its broad discretion in finding Dr. Meloy was qualified as an expert

under the Evidence Code, especially as the court carefully limited the scope of Dr.

Meloy‘s testimony to describing the phenomenon of sexual homicide without


tying it specifically to defendant. Defendant was free to try to impeach Dr. Meloy

by calling his own expert witness to make these points.

e. Evidence Code Section 1101

Defendant also argues Dr. Meloy‘s testimony constituted impermissible

character evidence that the court should have excluded pursuant to Evidence Code

section 1101. As respondent observes, however, defendant never moved to

exclude the evidence under that section and has thus forfeited the claim for appeal.

Defendant responds that because the trial court made comments suggesting it was

aware that Dr. Meloy‘s anticipated testimony could potentially transgress the rule

against bad-character evidence, we should find the issue was before the court—

and therefore preserved for appeal—despite his failure to object. We decline his

invitation because the purpose of the rule requiring a timely and specific objection

is not only ― ‗to alert the trial court to the nature of the anticipated evidence and

the basis on which exclusion is sought, [but also] to afford the People an

opportunity to establish its admissibility.‘ ‖ (People v. Partida (2005) 37 Cal.4th

428, 435, italics added.) Although the trial court may have made some comments

about character evidence, defendant never placed the prosecution on notice that it

needed to justify the admissibility of Dr. Meloy‘s evidence under Evidence Code

section 1101. Accordingly, he did not preserve the claim for appeal.

Were we to address the merits of the claim despite the absence of an

objection below, we would find no error and no prejudice. Under Evidence Code

section 1101, subdivision (b), evidence of a person‘s prior bad act—evidence that

might incidentally tend to show the person‘s disposition to commit such an act—is

nevertheless admissible, if relevant, to raise an inference of (and hence prove) his

motive or intent when he committed his crimes. So even assuming for argument

that defendant is correct in his characterization of Dr. Meloy‘s testimony as


showing defendant‘s bad character, it could still be admissible to show defendant‘s

motive. In any event, Dr. Meloy never connected defendant to his psychological

theory; that is, he never testified that defendant was in fact a perpetrator of sexual

homicide. Accordingly, because Dr. Meloy did not testify to or describe

defendant‘s past bad acts, Evidence Code section 1101 is simply inapposite.

f. Kelly

Defendant next contends the trial court erred by admitting Dr. Meloy‘s

testimony without first assessing the reliability of his methodology under the Kelly

rule. (People v. Kelly, supra, 17 Cal.3d 24.) As noted, ante, at pages 41-42, Kelly

directs that the proponent of expert testimony based on a new scientific technique

or procedure demonstrate both the new technique‘s reliability and that the witness

is qualified to give an opinion on the subject. Caution with evidence involving

new scientific techniques is justified because ―[l]ay jurors tend to give

considerable weight to ‗scientific‘ evidence when presented by ‗experts‘ with

impressive credentials. We have acknowledged the existence of a ‗. . . misleading

aura of certainty which often envelops a new scientific process, obscuring its

currently experimental nature.‘ [Citations.]‖ (People v. Kelly, supra, at pp. 31-32.)

No such concerns are present in this case. Like the proposed expert

evidence regarding the psychological factors that might affect the accuracy of

eyewitness identifications at issue in People v. McDonald (1984) 37 Cal.3d 351,

or the proposed expert evidence (that the defendant‘s psychological test results did

not suggest sexual deviancy) at issue in People v. Stoll, supra, 49 Cal.3d 1136, the

evidence here was not a new scientific technique or procedure but merely expert

opinion evidence. ―It is important to distinguish in this regard between expert

testimony and scientific evidence. When a witness gives his personal opinion on

the stand—even if he qualifies as an expert—the jurors may temper their


acceptance of his testimony with a healthy skepticism born of their knowledge that

all human beings are fallible. But the opposite may be true when the evidence is

produced by a machine: like many laypersons, jurors tend to ascribe an

inordinately high degree of certainty to proof derived from an apparently

‗scientific‘ mechanism, instrument, or procedure. Yet the aura of infallibility that

often surrounds such evidence may well conceal the fact that it remains

experimental and tentative.‖ (McDonald, supra, at pp. 372-373.)

―[A]bsent some special feature which effectively blindsides the jury, expert

opinion testimony is not subject to Kelly[].‖ (People v. Stoll, supra, 49 Cal.3d at

p. 1157.) ― ‗We have never applied the Kelly[] rule to expert medical testimony,

even when the witness is a psychiatrist and the subject matter is as esoteric as the

reconstitution of a past state of mind or the prediction of future dangerousness, or

even the diagnosis of an unusual form of mental illness not listed in the diagnostic

manual of the American Psychiatric Association.‘ ‖ (Stoll, supra, at p. 1157,

quoting People v. McDonald, supra, 37 Cal.3d at p. 373, italics added.) Our

conclusion in Stoll applies fully to this case: ―The psychological testimony

proffered here raises none of the concerns addressed by Kelly[]. The methods

employed are not new to psychology or the law, and they carry no misleading aura

of scientific infallibility.‖ (Stoll, supra, at p. 1157.)

Defendant‘s attempt to distinguish Stoll and McDonald is unpersuasive. He

primarily argues that prior cases such as People v. Coogler (1969) 71 Cal.2d 153,

that permitted an expert witness‘s reliance on Rorschach test results, also involved

other factors as well, such as results from the Minnesota Multiphasic Personality

Inventory. (Id., at p. 165.) But without passing on whether an expert opinion

based solely on Rorschach tests would be inadmissible under Kelly, we note that

Dr. Meloy‘s opinions were based not only on Rorschach test results, but also on

his broad knowledge and experience with the subject matter in question. Such


knowledge came from his familiarity with research and published studies in the

area of sexual homicide, his treatment of a patient in Chicago, his employment as

an expert evaluating criminal defendants charged with sex-related homicides, his

own research, which included personally interviewing subjects, his cooperation

with an individual who worked with the Federal Bureau of Investigation in

establishing a training seminar on the subject, his participation in lectures and

workshops around the country on the subject, and his publication of nine papers

and parts of two books dedicated to the subject.

To the extent defendant challenges Dr. Meloy‘s qualifications on the

grounds that he was not an impartial witness, or that he did not personally

interview all 18 subjects in one study, we reiterate that the trial court did not abuse

its discretion in finding he qualified as an expert under the Evidence Code.

Accordingly, the matters raised go simply to the weight, not the admissibility of

Dr. Meloy‘s testimony. We further reject defendant‘s claim that Dr. Meloy‘s

testimony ―blindside[d] the jury‖ within the meaning of People v. Stoll, supra, 49

Cal.3d at page 1157. After the lengthy Evidence Code section 402 hearing, Dr.

Meloy‘s actual testimony before the jury was surprisingly short: after he

explained his background and experience, his description of sexual homicides

comprises barely five pages in the trial transcript. As a result, it likely had little

impact with the jury.

4. Exclusion of Maria R.’s Alleged Apology

Defendant contends the trial court abused its discretion, and also committed

federal constitutional error, by excluding evidence that sometime after defendant

assaulted Maria R., she returned to the apartment on 51st Street to apologize for

falsely accusing him. We reject the claim because defendant fails to demonstrate


the trial court abused its broad discretion when it determined that he failed to lay a

proper foundation for this proposed evidence.

Maria R. testified that after she was assaulted, she met some people from a

church and told them she was afraid defendant might harm her again. She then

returned to the Jones apartment with some of these people but stayed in the car

while they went to speak with defendant at the apartment. When defense counsel

asked the witness what these people told defendant, the prosecutor successfully

interposed a hearsay objection, although the court allowed defense counsel to ask

her if she knew what was said. She replied, ―No, only what they told me.‖

Later in the trial, the defense called defendant‘s mother, Ann Jones (Jones),

to the stand. While questioning Jones, defense counsel asked her whether, in

August 1985, someone came to her door. She replied that a Hispanic man and a

woman came to her door, that the man identified himself as a preacher of a church

the witness did not recognize, and that he translated for the woman, who spoke

Spanish only. When the witness began recounting what the Hispanic man and

woman said, the prosecutor objected on hearsay grounds, arguing the defense had

not laid a foundation as to the identity of the two persons who came to Jones‘s

apartment. At a sidebar conference, defense counsel argued the Hispanic woman

whom Jones saw on her doorstep was in fact Maria R., although counsel admitted

that when shown a photo of Maria R., Jones did not identify her but merely noted

that she remembered the woman as thinner. The trial court suggested that because

Maria R. testified in English but Jones said the woman spoke Spanish only and

needed the preacher to translate, perhaps there was ―an identification problem.‖

Defense counsel speculated that because nine years had elapsed between the

assault and the trial, Maria R.‘s English proficiency might have improved.

Counsel admitted that, despite some effort, the defense had not been able to locate

the man Jones described as a preacher.


The court tentatively found the doubts about the evidence went to its

weight, not its admissibility, and was of a mind to admit it, but defense counsel,

apparently for tactical reasons, asked for a hearing out of the jury‘s presence to

establish the foundation for the evidence, ―because if there is not enough, I don‘t

want to set up a situation where [the jury] really consider[s] it a straw man type of

situation. I [would] just as soon have it out.‖ The court obliged and held a

hearing out of the jury‘s presence to determine whether a foundation existed for

the proposition that Maria R. spoke to Jones and apologized for claiming that

defendant had assaulted her. Jones testified at the hearing that the Spanish-

speaking woman, as interpreted by the preacher, told her that ―[s]he‘s here to say

she‘s sorry. And I said ‗sorry about what?‘ And he said she was upset. She had

been beaten up by her husband. She didn‘t know why she did this. She didn‘t

know why she did that. And she was just confused. [¶] And I said—by that time I

think I called [defendant], you know, called him out because I think he was in the

back and he came to the door. [¶] And basically this woman was, you know,

talking very quickly and the man would translate and she would talk, and she was

just—and I am like ‗you‘re sorry about what? What happened? What happened?‘

And then I asked my son and he said, ‗well, I gave her some food, you know. I

tried to help her out.‘ ‖ Jones said she had never seen the Hispanic woman before

and denied the police had ever shown her pictures of her.

On the foundational question of the mystery woman‘s identity, Jones

testified that she had attended the first day of trial and observed Maria R. testify.

Asked whether she recognized her at that time, Jones replied: ―No. I thought she

looked kind of heavy, to me. About the same height, but then I am tall. So she

didn‘t seem very tall to me, but she looked kind of chunky or—but then it was at

night. I don‘t—you know, it was kind of hard to say.‖ (Italics added.) Later, she

was asked: ―Did you recognize her from having been one of the people at your


door other than the difference in weight?‖ She replied: ―The only thing I can say

is I thought maybe that was her.‖ (Italics added.) On cross-examination by the

prosecutor, Jones could not identify the month, day or even year when the alleged

encounter occurred. On redirect, defense counsel asked her whether there was

―anything else about the woman you saw testify that caused you to believe it was

[Maria R.]?‖ She replied: ―When she walked in, when I turned my head and I

saw her, and I thought, gee, she‘s gained a lot of weight. I still don‘t know why I

said that, but I just—you know, I just felt like I knew her. From where I don’t

know.‖ (Italics added.) Following this testimony, the trial court sustained the

prosecutor‘s hearsay objection for lack of foundation.

―Evidence of a statement made by a witness is not made inadmissible by

the hearsay rule if the statement is inconsistent with his testimony at the hearing

. . . .‖ (Evid. Code, § 1235.) Had there been evidence from which a reasonable

jury could have concluded the Hispanic woman who came to Ann Jones‘s home

was Maria R., then the alleged apology could be considered a statement that was

inconsistent with her accusations of assault and thus admissible under Evidence

Code section 1235. But a trial court‘s decision to admit or exclude a hearsay

statement under this hearsay exception will not be disturbed on appeal absent a

showing of abuse of discretion. (People v. Cowan, supra, 50 Cal.4th at p. 462.)

When the admissibility of evidence turns on the existence of a preliminary fact

(see Evid. Code, § 403), the trial court may, as here, hold a hearing outside the

jury‘s presence to determine whether that preliminary fact exists. ―The court

should exclude the proffered evidence only if the ‗showing of preliminary facts is

too weak to support a favorable determination by the jury.‘ [Citations.] The

decision whether the foundational evidence is sufficiently substantial is a matter

within the court‘s discretion.‖ (People v. Lucas (1995) 12 Cal.4th 415, 466.)


Because Jones could not say the Hispanic woman was in fact Maria R.,

there is no reason to think the speaker‘s statements were a prior statement of

Maria R., inconsistent or otherwise. Defendant contends he presented sufficient

evidence from which a reasonable jury could have found Maria R. was the

Hispanic woman who accompanied the preacher to Jones‘s home, observing that

― ‗the judge‘s function on questions of this sort is merely to determine whether

there is evidence sufficient to permit a jury to decide the question. The ―question

of admissibility . . . merges imperceptibly into the weight of the evidence, if

admitted.‖ ‘ ‖ (Quoting Legis. Com. com., 29B pt. 1 West‘s Ann. Evid. Code

(1995 ed.) foll. § 403, p. 361, quoted with approval in People v. Lucas, supra, 12

Cal.4th at p. 467.) The flaw in this argument is that defendant never presented

sufficient evidence to allow the jury to find that the woman who came to Jones‘s

home was in fact Maria R. The victim testified that she went to the home with

some ―church people‖ she met, that ―some church lady‖ went to the house, but that

she (Maria) stayed in the car. Jones did not contradict this testimony, admitting

that she did not recognize Maria R. when she testified at trial, and that she knew

her from somewhere but could not say where. Jones testified that ―maybe‖ the

woman was Maria R. Defense counsel acknowledged that Jones did not identify

Maria R. when shown her photograph, and that the preacher could not be located

for corroboration. Under the circumstances, the trial court did not abuse its broad

discretion by excluding the evidence because defendant failed to present evidence

that, if believed by the jury, would have shown it was Maria R. who came to speak

to defendant at Jones‘s home.

Defendant further argues the evidence of the alleged apology for a false

accusation was admissible because the unidentified ―church people‖ were acting

as a Maria R.‘s agents. This claim fails because no evidence establishes such

agency. Maria R. testified she told the ―church people‖ that she was afraid


defendant would hurt her again, so one may infer they went to warn defendant not

to do so. Maria R. never said she asked them to apologize for a false accusation.

Indeed, she disclaimed any knowledge of what these people told Jones and

defendant until they returned and related to her what they said.

There being no abuse of discretion in excluding the evidence under

Evidence Code section 1235, we also reject defendant‘s additional claim that the

trial court‘s ruling deprived him of his federal constitutional right to present a

defense. (See, e.g., Crane v. Kentucky (1986) 476 U.S. 683.) As we have

explained, the routine application of provisions of the state Evidence Code law

does not implicate a criminal defendant‘s constitutional rights. (People v. Mills,

supra, 48 Cal.4th at p. 194.) Instead, because the trial court merely excluded some

evidence that could have impeached a complaining witness and did not preclude

defendant from presenting a defense, any error would be one of state evidentiary

law only. (People v. McNeal (2009) 46 Cal.4th 1183, 1203.)

5. Admission of Expert Fingerprint Evidence

Defendant next argues the trial court erred by permitting an expert to testify

that she used a vacuum metal deposition device in Ottawa, Canada, assisted by the

Royal Canadian Mounted Police, to discover and preserve fingerprints on the

plastic garbage bags in which JoAnn Sweets‘s body was found. After a hearing,

the trial court overruled defendant‘s objection for lack of foundation and admitted

the evidence. As we explain, the trial court did not abuse its discretion.

Dianne Donnelly testified that at the time of defendant‘s trial, she worked

for the San Diego Police Department as a latent fingerprint examiner. She was

asked in 1992 to determine if there were any identifiable fingerprints on the plastic

trash bags in which police found JoAnn Sweets‘s body. Although Sweets‘s body

was found in 1986, the plastic bags had not yet been processed for prints.


Donnelly testified she carefully transported the bags to Ottawa, Canada, because it

was determined that the best way to process old fingerprints on plastic bags was

by the vacuum metal deposition method and the United States did not have the

machinery necessary to conduct the procedure. ―The Royal Canadian Police

generously assisted us in allowing me to come up and learn about this method and

to try to obtain prints from these bags.‖ When Donnelly began describing the

process, defense counsel objected on the ground that the witness was testifying

―outside of her expertise.‖ After discussing the matter at sidebar, the trial court

provisionally overruled the defense objections, provided the prosecutor would lay

a proper foundation ―as to what training she had . . . in this machinery.‖18 It was

acknowledged the evidence would be subject to a continuing objection by the


Donnelly admitted she was not familiar with the vacuum metal deposition

process ―since we don‘t have a chamber here in San Diego or in the U.S.,‖ but that

she learned the process from two Canadians when she arrived there. Once in

Canada, she familiarized herself with the process, doing ―several trial runs‖ so that

she could ―observe it and learn the process.‖ She had done a lot of background

reading about the process before going to Canada and later wrote and presented a


The trial court told the parties: ―I think that [Donnelly] should talk about

the kinds of literature that she read about it, go a little more deeply into exactly
what it was that she read, what she observed, the whole process, how the thing was
preserved when she went up [to Canada].‖ Later, it opined: ―Here‘s what I
require. The foundation—the objection is foundation, and it seems to me that the
foundation is lacking and the thoroughness with which she is describing her
knowledge of the machinery and how it works exactly and exactly how the bags
were treated while they were in her custody and what was done with them. [¶] So
those are the two areas I ask you to cover is all. I think that that will do it. And
other issues might require other witnesses.‖


paper to the California division of the International Association for Identification

on her experiences using the Canadian device.

Donnelly then testified to the condition of the plastic bags and the

precautions she took to preserve them from contamination or alteration. She said

the process was first developed in the United Kingdom in 1976, but technicians in

other countries, such as Canada, also use it. As to why her office chose that

method, she explained that ―[v]acuum metal deposition‘s strength[] is in the

detection of older prints, which in this case is what we had. We knew that the

print had to be at least six years old. From the time of the occurrence of the death

to the time that I came in custody of these bags there was a six year difference, and

this—the strength of vacuum metal is also on these polyethylene type bags. [¶] It

can‘t be used—this type of process on every type of evidence. This is its strength:

plastic bags and on older prints. That‘s why we chose it.‖

The process, which she personally observed, involved placing the bag in a

chamber and subjecting it to vaporized zinc and gold. Those metals are absorbed

by the fats and lipids in any existing prints on the bag and settle into the valleys

between the ridges of the print. The process does not add fingerprints not already

present on the tested material, nor remove or alter prints already deposited.19

Fingerprints made visible by the process are then photographed to preserve them

and are compared to fingerprints on file. Donnelly matched the fingerprints found

on the bag to those of defendant on file with the San Diego police.


As the trial court commented: ―Nobody would even think in their wildest

imagination that if you put something into a machine that it‘s going to put prints
on it. So you probably don‘t have to know what the intricacies are of what
happens inside the machine. The questions are whether it goes in and comes out
with something showing.‖


On cross-examination, Donnelly testified that she did not attempt to process

the bags before going to Canada and was not aware that anyone else had either.

Had someone done so, the bags would have been contaminated and the vacuum

metal deposition process would not have worked. Had the bags not been so old,

she would have processed them in a cyanoacrelate fuming chamber using

superglue fumes, stained them with a florescent dye and then used a laser to

examine the florescence. Asked whether she was ―aware of how the process

actually worked,‖ she replied, ―[n]ot all the functions of the machine, no. I was

just aware of how the latent print reaction would work, that general process. As

far as how all the machinery works, I really don‘t care. As long as it develops the

latent prints on my evidence, that‘s what I care about.‖ Asked whether she made

―any kind of investigation regarding whether the machine was working properly,‖

she said she did ―only what [the Canadian authorities] did. I mean, the system is

very idiot proof, if I can use that term. It will stop a procedure or it won‘t let you

continue if there is something wrong.‖

In further describing the process, Donnelly said the reason they had to do so

many applications—14 in all—was because the bag was so large, and the zinc and

gold evaporation dishes would only work on a small area. She revealed that the

fingerprints she found were all on the outside of the bag.

As noted, ante, part I.C.3.c., a trial court has broad discretion to find a

proposed witness qualifies as an expert under Evidence Code section 720 and that

decision will not be disturbed on appeal absent a showing of manifest abuse of that

discretion. (People v. Castaneda, supra, 51 Cal.4th at p. 1336.) Defendant cites

People v. Williams (2002) 28 Cal.4th 408, 412, and Davenport v. Department of

Motor Vehicles (1992) 6 Cal.App.4th 133, 140, to argue the prosecution failed to

establish a foundation for Donnelly‘s testimony by showing that ―(1) the testing

device was in proper working order, (2) the test was properly administered, and


(3) the operator was competent and qualified.‖ (Williams, at p. 412.) Respondent

counterargues that those cases ―and the three-step test are inapposite because they

specifically involve blood-alcohol testing devices (Davenport) and preliminary

alcohol screening (PAS) testing devices requiring compliance with Title 17 of the

California Code of Regulations (Williams).‖ Respondent further argues that no

authority exists applying this three-step analysis to fingerprint analysis.

We need not resolve the point because the record demonstrates the trial

court did not abuse its broad discretion. Although Donnelly arguably did not

demonstrate she was a renowned expert in the workings of the vacuum metal

deposition device, she expressed sufficient expertise—reading ―books from

different authors‖ about the process, being trained by Canadian law enforcement

officials, undertaking several trial runs—to adequately support the trial court‘s

conclusion that she demonstrated ―special knowledge, skill, experience, training,

or education sufficient to qualify [her] as an expert on the subject to which [her]

testimony relates.‖ (Evid. Code, § 720.)

There being sufficient evidence to conclude the trial court did not abuse its

broad discretion in finding Donnelly‘s testimony was not outside of her expertise

within the meaning of Evidence Code section 720, questions about the depth or

scope of her knowledge or experience go to the weight, not the admissibility, of

her testimony. (People v. Eubanks, supra, 53 Cal.4th at p. 140.)

8. Alleged Insufficient Evidence

Defendant contends the evidence underlying his murder convictions and the

sodomy-murder special-circumstance allegations was insufficient, requiring we

reverse those convictions and findings and vacate the imposition of the death

penalty. ―The law is clear and well settled. ‗On appeal we review the whole

record in the light most favorable to the judgment to determine whether it


discloses substantial evidence—that is, evidence that is reasonable, credible, and

of solid value—from which a reasonable trier of fact could find the defendant

guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578;

see also Jackson v. Virginia (1979) 443 U.S. 307, 317-320.)‘ ‖ (People v. Abilez

(2007) 41 Cal.4th 472, 504.)

As defendant emphasizes, little or no direct evidence connects him to some

of the crimes; the prosecution instead relied on circumstantial evidence. But

― ‗[t]he standard of review is the same in cases in which the People rely mainly on

circumstantial evidence. (People v. Bean (1988) 46 Cal.3d 919, 932.) ―Although

it is the duty of the jury to acquit a defendant if it finds that circumstantial

evidence is susceptible of two interpretations, one of which suggests guilt and the

other innocence [citations], it is the jury, not the appellate court which must be

convinced of the defendant‘s guilt beyond a reasonable doubt. ‗ ―If the

circumstances reasonably justify the trier of fact‘s findings, the opinion of the

reviewing court that the circumstances might also reasonably be reconciled with a

contrary finding does not warrant a reversal of the judgment.‖ ‘ [Citations.]‖

[Citation.] ― ‗Circumstantial evidence may be sufficient to connect a defendant

with the crime and to prove his guilt beyond a reasonable doubt.‘ ‖ ‘ [Citation.]‖

(People v. Abilez, supra, 41 Cal.4th at p. 504.)

a. JoAnn Sweets

Ample evidence supports defendant‘s conviction for murdering JoAnn

Sweets. Her partially nude body was found in a dumpster on May 9, 1986, placing

the crime within the timeframe in which someone was preying on African-

American women—often prostitutes, but also other poor denizens of the street,

such as homeless women and drug addicts—in and around El Cajon Boulevard in


San Diego.20 The dumpster was just behind defendant‘s apartment on 51st street

in San Diego. Like the other victims, Sweets had been beaten and manually

strangled. Her body was partially wrapped in a bed sheet and covered with a

colorful, homemade afghan blanket, placed in plastic garbage bags that were taped

shut with masking tape, and deposited in a dumpster. Defendant‘s sister, L.A.,

admitted she ―might have‖ told police she was ―100 percent sure‖ her mother had

crocheted the afghan, although she backtracked somewhat at trial. Using the

vacuum metal deposition technique, police found defendant‘s fingerprints on the

plastic garbage bags. Further forensic investigation found fibers on the victim‘s

blouse that matched the carpet in defendant‘s apartment. Semen stains on the bed

sheet were consistent with defendant‘s genetic profile, although a DNA analysis

could not positively identify defendant as the donor to the exclusion of all others.

Defendant suggests problems with this evidence: L.A.‘s hesitant and

equivocal testimony about the afghan, alleged unreliability of the testing of the

plastic bags for fingerprints, the possibility the carpet fibers were fairly common

and not unique to defendant‘s apartment, failure to show the semen stains could

have been only from defendant. The whole of the evidence nevertheless

comprises solid and substantial circumstantial evidence which, when combined

with the other evidence of similar crimes that occurred within the relevant

timeframe, including three in which the victims survived and identified defendant

as their assailant (Maria R., Bertha R., Karen M.), could have persuaded a

reasonable jury beyond a reasonable doubt that defendant was guilty of murdering

JoAnn Sweets on either a premeditation or a felony-murder theory. Significantly,

although defendant presented evidence suggesting Ike Jones, Sweets‘s one-time


The timeframe is relevant. See ante, page 27, footnote 6.


boyfriend, may have been the killer, genetic testing eliminated him as a donor of

the semen stain.

Defendant further argues the evidence was insufficient to sustain the special

circumstance that he killed Sweets while committing the crime of forcible

sodomy. A rectal swab taken from Sweets‘s body revealed the presence of sperm,

but not enough on which to conduct a DNA test. From this evidence, the manner

of Sweets‘s violent murder, the location of her body, and the evidence of

defendant‘s intent and modus operandi as shown by his similar crimes, the jury

reasonably could have found defendant forcibly sodomized Sweets before killing


b. Sophia Glover

We also reject defendant‘s claim that insufficient evidence supported his

conviction for the crimes against Sophia Glover. Although the evidence of

defendant‘s guilt of murdering Glover was less than the evidence of Sweets‘s

murder (there being no fingerprints, blanket, or carpet fibers linking the body to

defendant), Glover fit the profile of defendant‘s victims: she was an African-

American woman, she was likely a prostitute, she was killed during the 14-month

period defendant was known to be preying on such women, she had been beaten

about the head, she died of manual strangulation, and her body was discarded like

garbage in close proximity to a home defendant was known to use. An analysis of

an anal swab found sperm consistent with defendant‘s genotype, which appeared

in approximately 15 percent of the African-American population.

Defendant challenges the force of this evidence, emphasizing the presence

of another man‘s sperm in the swab sample. He also notes that although police

found three hairs on the blanket in which Glover‘s body was wrapped, experts

could not match them to him. Despite these circumstances, a reasonable jury


considering all the evidence, including the evidence of other similar crimes that

occurred within the relevant timeframe in three of which the victims survived and

identified defendant (Maria R., Bertha R., Karen M.), could have found beyond a

reasonable doubt that defendant was guilty of murdering Sophia Glover.

Defendant also argues insufficient evidence supported the special

circumstance allegation that he killed Glover while engaged in the commission or

attempted commission of a felony, i.e., forcible sodomy. Critically, a rectal swab

from the victim revealed the presence of sperm consistent with defendant‘s

genotype. Glover‘s clothes were found neatly folded in an alley near to where her

body was found, which was consistent with defendant‘s attacks on Maria R.,

Bertha R., and Karen M. He apparently convinced women to engage in

consensual sex but turned suddenly violent, beating and strangling them and then

forcing them to engage in additional sex acts. The jury could reasonably infer he

committed a forcible sodomy from the presence of sperm, the DNA evidence

linking him to the victim, the manner of Glover‘s violent murder, the location of

her body (she was found near the Wilsie home on Mississippi Street where

defendant‘s mother worked), and the evidence of defendant‘s intent and modus

operandi in committing similar crimes against several other victims within the

same timeframe and general location. Because sufficient evidence supports the

felony-murder special circumstance, the jury necessarily found defendant guilty of

first degree murder on a felony-murder theory, so we need not address his further

claim there was insufficient evidence of premeditation and deliberation.

c. Karen M.

Defendant contends insufficient evidence supports his conviction for the

crimes involving Karen M. The victim testified that on October 20, 1986,

defendant drove up to her on the street in a blue/gray Datsun 280Z and solicited an


act of prostitution. She agreed, and he took her to the Wilsie home on Mississippi

Street. Once there, he began choking her and said he would kill her if she did not

comply with his demands. She had with her a bottle of liquor, and he forced her to

drink it before sexually assaulting her. She passed out due to the alcohol and was

found later by Mrs. Wilsie‘s daughter-in-law, Marjorie Wilsie, who called police.

Karen M. testified she told police she had been raped but they did not believe her.

Karen M. admitted she was a prostitute and had several convictions for

prostitution. She was hoping to obtain favorable treatment in another case by

testifying against defendant but was unsuccessful in doing so.

Noting her criminal history, her intoxication, and inconsistencies in her

story, defendant contends Karen M. was ―inherently unreliable‖ and her testimony

―lacked credibility.‖ But it is not for us to say on appeal whether she was worthy

of the jury‘s belief. Nothing to which she testified was physically impossible or

even implausible. ―If the verdict is supported by substantial evidence, we must

accord due deference to the trier of fact and not substitute our evaluation of a

witness‘s credibility for that of the fact finder.‖ (People v. Koontz (2002) 27

Cal.4th 1041, 1078.) ―Resolution of conflicts and inconsistencies in the testimony

is the exclusive province of the trier of fact. [Citation.] Moreover, unless the

testimony is physically impossible or inherently improbable, testimony of a single

witness is sufficient to support a conviction.‖ (People v. Young, supra, 34 Cal.4th

at p. 1181.) As is standard, the jury was instructed: ―You should give the

testimony of a single witness whatever weight you think it deserves. However,

testimony by one witness, which you believe, concerning any fact is sufficient for

the proof of that fact.‖ (See CALJIC No. 2.27.) We assume that because the

jurors convicted defendant of the charges involving Karen M., they found her a

credible witness. Accordingly, sufficient evidence supports the jury‘s verdict on

those counts.


d. Motion for Acquittal (Section 1118.1)

Following the close of the prosecution‘s case-in-chief at the guilt phase,

defendant moved for acquittal on count two, the murder charge involving Tara

Simpson, claiming the prosecution had failed to present sufficient evidence of

guilt. As counsel argued: ―[T]here is nothing which connects [defendant] to that

murder at all but for where he lives; just the opportunity portion that I am sure

the—they will argue. [¶] There was some acid phosphatase that [was] recovered,

but there is nothing to indicate at all that those are—were either identified or

anything of that nature.‖ The trial court denied the motion, saying: ―With respect

to Tara Simpson, there is no question in the court‘s mind that this will pass muster

under 1118.1.‖ Defendant now argues the trial court erred by denying the motion

because no solid and reliable evidence tied him to the crime.

Section 1118.1 provides in pertinent part: ―In a case tried before a jury, the

court on motion of the defendant or on its own motion, at the close of the evidence

on either side and before the case is submitted to the jury for decision, shall order

the entry of a judgment of acquittal of one or more of the offenses charged in the

accusatory pleading if the evidence then before the court is insufficient to sustain a

conviction of such offense or offenses on appeal.‖ As we explained in People v.

Coffman and Marlow, supra, 34 Cal.4th 1, 89: ―The test applied by the trial court

in ruling on a motion for acquittal is the same test applied by the appellate court in

reviewing a conviction for sufficiency of the evidence, namely, to determine

whether from the evidence then in the record, including reasonable inferences to

be drawn therefrom, there is substantial evidence of the existence of every element

of the offense charged.‖

At the threshold, it is unclear how the trial court‘s denial of defendant‘s

motion of acquittal of Simpson‘s murder prejudiced defendant because the jury

failed to convict him of that charge. Defendant suggests he was prejudiced


because the trial court specifically allowed the jury to consider Simpson‘s murder

as an aggravating circumstance under section 190.3, factor (b), which authorizes a

capital jury to weigh ―[t]he presence or absence of criminal activity by the

defendant which involved the use or attempted use of force or violence or the

express or implied threat to use force or violence.‖ But the court also instructed

the jury it must find defendant committed that act beyond a reasonable doubt (see

People v. Avena (1996) 13 Cal.4th 394, 429-430), eliminating any unfairness, for

we assume no jurors considered the facts of Simpson‘s murder unless they found

those facts true beyond a reasonable doubt.

Assuming without deciding that the trial court‘s denial of defendant‘s

section 1118.1 motion could be prejudicial, we find the court did not err.

Simpson‘s murder occurred during a timeframe in which African-American

prostitutes or homeless women using El Cajon Boulevard in San Diego as a base

were being sexually assaulted, beaten and strangled, often causing their death.

None was shot with a gun. The victims were usually drug users. Simpson‘s body,

like those of Glover, Sweets and Carpenter, was found discarded like garbage in

close proximity to one of two residences defendant was known to use. DNA

evidence linked defendant to some, but not all, of the victims. Three surviving

victims largely fitting the pattern (Maria R., Bertha R., and Karen M.) identified

defendant as their assailant. Accordingly, at the time the defense made its motion

for acquittal, the evidence and the reasonable inferences the jury could have drawn

from it comprised substantial evidence that defendant killed Simpson. (People v.

Coffman and Marlow, supra, 34 Cal.4th at p. 89.)

Defendant also argues the trial court should have entered a judgment of

acquittal on count three, which charged him with murdering Trina Carpenter.

Although he moved for acquittal on count two (Tara Simpson), defendant did not

include count three in his motion and thus forfeited the claim for appeal. (People


v. Smith (1998) 64 Cal.App.4th 1458, 1464.) Were we to overlook defendant‘s

omission and find the claim properly before us, and were we further to assume he

could possibly have been prejudiced (for the jury hung on count three), we would

reject his claim on the merits for the same reasons we stated with regard to the

Tara Simpson murder; that is, sufficient evidence, along with inferences drawn

from that evidence, supported the conclusion that defendant was responsible for

killing Trina Carpenter due to the pattern of behavior and similarity of crimes, the

interlocking circumstances among the various victims, the DNA evidence, and the

eyewitness testimony from the surviving victims.

D. Assorted Instructional Claims

Defendant contends the trial court committed several errors when

instructing the jury at the guilt phase. As we explain, post, none of these claims

has merit.

1. First Degree Murder

a. Omission of Malice Aforethought

When instructing the jury, the trial court declined to use either CALJIC No.

8.10, the standard pattern instruction defining first degree murder, or CALJIC No.

8.11, the standard instruction defining malice. Instead, the trial court chose to use

its own restated modification of the standard instructions, explaining that ―my

instruction, as you see, takes exactly this definition [from CALJIC No. 8.10] and it

just substitutes ‗the killing was intentional‘ as opposed to ‗the killing was done

with malice aforethought.‘ ‖ Defendant objected to the court‘s proposed

instruction because it excised the definition of malice aforethought, but the court

overruled his objection. The instruction the court eventually read to the jury failed

to require it to find, as a condition of returning a verdict of first degree

premeditated murder, that defendant acted with the intention unlawfully to take the

victim‘s life.


Defendant contends the failure to instruct specifically on malice

aforethought as set forth in the standard CALJIC instructions requires reversal.

We need not resolve this point because any instructional error was harmless. With

regard to Sophia Glover, the jury was instructed that it could convict of first

degree murder on either of two theories: premeditation and deliberation, or felony

murder. The jury was also instructed on the sodomy-murder special-circumstance

allegation and the jury sustained this allegation. This latter finding demonstrates

the jury necessarily found by a unanimous vote that defendant killed Glover while

he was ―engaged in the commission or attempted commission of . . . sodomy, or

that the murder was committed during the immediate flight after the commission

or attempted commission of . . . sodomy by the defendant,‖ and that he intended to

kill while doing so. This finding demonstrates the jury necessarily found beyond a

reasonable doubt the facts supporting first degree murder on a felony-murder

theory for Glover. Thus, even assuming for argument the malice instructions were

faulty, any error was necessarily harmless under any standard.

People v. Boyd (1985) 38 Cal.3d 762 is illustrative. In Boyd, the defendant

argued the trial court erred by instructing the jury on premeditation because the

evidence was insufficient to support that theory. We found any instructional error

did not require reversal because ―the jury [that] found defendant guilty of first

degree murder simultaneously returned a verdict finding as a special circumstance

that defendant committed that murder during the commission of an attempted

robbery. It also found defendant guilty of the crime of attempted robbery. Those

findings make it clear that whatever the jurors thought about premeditation, they

agreed upon all of the elements necessary for a verdict of first degree murder

based on a felony-murder theory.‖ (Id., at p. 770, italics added.) Here, as in Boyd,

―we can conclude that, at the very least, the jury reached its verdict of first degree

murder [as related to Sophia Glover] under one legally proper theory. Under such


circumstances, there is no miscarriage of justice under article VI, section 13 of the

state Constitution and reversal is not required.‖ (People v. Sanders (1990) 51

Cal.3d 471, 510.) For the same reasons, no federal constitutional error occurred

because any instructional error with regard to Glover would be harmless beyond a

reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)

For the crimes committed against JoAnn Sweets, a slightly different

analytical path applies but it leads to the same destination. Although it did not do

so for the murder charge involving Glover, for the Sweets murder charge the trial

court instructed the jury ―to consider only one theory of first degree murder, to

wit: deliberate and premeditated murder.‖ Because the jury was not given the

option of convicting defendant of first degree felony murder for the Sweets

murder, we cannot rely on the special circumstance findings to conclude the jury

necessarily sustained all the elements of that theory of first degree murder. But

any instructional error was rendered harmless by the jury‘s unanimous decision to

sustain the sodomy-murder special-circumstance allegation for Sweets‘s murder.

In doing so, the jury necessarily found, per the jury instructions, that defendant

―intended to kill and killed to carry out or advance the rape or sodomy or to

facilitate the escape therefrom or to avoid detection.‖ Thus, the jury found

defendant unlawfully killed her while harboring the intent to kill. That is what

CALJIC No. 8.11 would have required the jury to find in any event. (CALJIC No.

8.11 [―Malice [aforethought] is express when there is manifested an intention

unlawfully to kill a human being.‖].) Any error is thus harmless under both the

state and federal Constitutions.

b. Alleged Inapplicability of Premeditation and Felony-murder

Defendant next contends we must reverse his two murder convictions

because the language in the information was inadequate to charge him with first


degree murder under a theory of either premeditation and deliberation or felony

murder. Because the charging language was inadequate, he claims, the trial court

lacked jurisdiction to try him for murder in the first degree. He also argues his

trial for first degree murder violated his constitutional right to due process and to a

fair trial and reliable penalty determination under our state and federal

Constitutions. As we explain, the legal basis of his contention is flawed.

Count four of the information charged defendant as follows: ―On or about

May 9, 1986, BRYAN MAURICE JONES did willfully, unlawfully murder

JOANN SWEETS, a human being, in violation of PENAL CODE SECTION

187(a).‖ The language in count five (Sophia Glover) was the same except for the

date. Following the presentation of evidence, the jury was instructed on first

degree murder and told to consider only one theory—premeditation and

deliberation—for count four (JoAnn Sweets), but that it could consider both

premeditation and deliberation and felony murder (rape) for count five (Sophia

Glover). With regard to both Sweets and Glover, the court also instructed the jury

on the sodomy-murder special circumstance, i.e., whether those two killings were

committed during the commission or attempted commission of a forcible sodomy.

The jury returned first degree murder verdicts on both counts and sustained the

special circumstance as to both Sweets and Glover.

Defendant first contends the information‘s failure to include any mention of

willfulness, premeditation or deliberation means he was charged with second

degree murder only. But ―it has long been the law in this state that an accusatory

pleading charging murder need not specify degree or the manner in which the

murder was committed. . . . Neither is it necessary to specifically plead the

charged murder was wilful, deliberate, and premeditated. [Citation.] So long as

the information adequately alleges murder, the evidence adduced at the

preliminary hearing will adequately inform the defendant of the prosecution‘s


theory regarding the manner and degree of killing.‖ (People v. Thomas (1987) 43

Cal.3d 818, 829, fn. 5.)

To the extent defendant argues the information was faulty for mentioning

section 187 and not section 189, we disagree. ―[A] valid accusatory pleading need

not specify by number the statute under which the accused is being charged.

[Citations.] Section 952, which governs how an offense should be stated in an

accusatory pleading, merely provides in pertinent part that ‗[i]n charging an

offense, each count shall contain, and shall be sufficient if it contains in substance,

a statement that the accused has committed some public offense therein specified.

Such statement may be made in ordinary and concise language without any

technical averments or any allegations of matter not essential to be proved. It may

be in the words of the enactment describing the offense or declaring the matter to

be a public offense, or in any words sufficient to give the accused notice of the

offense of which he is accused.‘ ‖ (People v. Thomas, supra, 43 Cal.3d at p. 826.)

Defendant also argues the information, by referencing section 187 but not

section 189, failed to adequately charge first degree murder on a felony murder

theory. Although he concedes People v. Witt (1915) 170 Cal. 104 held that ―it is

sufficient to charge the offense of murder in the language of the statute defining

it,‖ and that such charging language ―includes both degrees of murder‖ (id., at

pp. 107-108), he argues Witt‘s rationale has been ―completely undermined‖ by this

court‘s reasoning in People v. Dillon (1983) 34 Cal.3d 441, that section 189 is the

―statutory enactment of the first degree felony-murder rule in California.‖ (Dillon,

supra, at p. 472.) But as defendant concedes, ―subsequent to Dillon, supra, 34

Cal.3d 441, we have reaffirmed the rule of People v. Witt, supra, 170 Cal. 104,

that an accusatory pleading charging a defendant with murder need not specify the

theory of murder upon which the prosecution intends to rely. Thus we implicitly

have rejected the argument that felony murder and murder with malice are


separate crimes that must be pleaded separately.‖ (People v. Hughes (2002) 27

Cal.4th 287, 369.) Although defendant further contends that Hughes ―never

explained how the reasoning of Witt can be squared with the holding of Dillon,‖

he is mistaken, for we explained that ― ‗generally the accused will receive

adequate notice of the prosecution‘s theory of the case from the testimony

presented at the preliminary hearing or at the indictment proceedings.‘ ‖ (Hughes,

supra, at pp. 369-370.) We reject his further argument that we should reexamine

our precedents because he presents no persuasive reason to do so.

2. Consideration of Other Crimes Evidence

Defendant argues the instruction addressed to the jury‘s consideration of

other charged crimes requires reversal because it was ―awkward,‖ ―hopelessly

confusing‖ and ―deeply flawed,‖ largely because of the many victims and the

interlocking nature of the evidence. We reject the argument. The instruction was

essentially consistent with CALJIC No. 2.50, and, contrary to defendant‘s

argument, it was not erroneous for failing to mention the prosecution‘s burden of

proof. Nor was the instruction flawed for failing to guide the jury on how to use

evidence of the other charged crimes to prove intent and motive. In addition to

giving the basic instruction, the court instructed the jury that ―[y]ou may also

consider other counts‘ evidence together with the count under consideration to

determine whether there existed in the mind of the perpetrator an intent which is a

necessary element of the count under consideration, or a relevant motive. You

should consider whether any intent or motive is the same, different, or absent in

some or all of the offenses considered.‖ Due to the similarity of the other charged

crimes and the Sweets and Glover crimes, the jury, considering the instructions as

a whole, would have understood how to weigh the former crimes in proving

motive and intent in the latter crimes. To the extent the instruction was


incomplete, defendant may not be now heard to complain because he did not

request clarifying language. ―A party may not complain on appeal that an

instruction correct in law and responsive to the evidence was too general or

incomplete unless the party has requested appropriate clarifying or amplifying

language.‖ (People v. Andrews (1989) 49 Cal.3d 200, 218, quoted with approval

in People v. Hart (1999) 20 Cal.4th 546, 622.)

Defendant also complains about the further instruction that ―[i]f you should

find a unique or highly distinctive method, plan, or scheme shared among other

counts and the count under consideration, such that an inference of a single

perpetrator for all offenses may be drawn, then you should consider whether it

may be logically concluded that if the defendant committed one or more of the

other crimes, he also committed the crime under consideration. Or, conversely, if

he did not commit one or more of the other crimes, then it may be logically

concluded that he did not commit the crime under consideration.‖ This instruction

was erroneous, he contends, because, as we stated in People v. Ewoldt, supra, 7

Cal.4th at page 394, ―[e]vidence of a common design or plan, therefore, is not

used to prove the defendant‘s intent or identity but rather to prove that the

defendant engaged in the conduct alleged to constitute the charged offense.‖ That

he reads Ewoldt out of context is clear, for we go on in that case to explain:

―Evidence of identity is admissible where it is conceded or assumed that the

charged offense was committed by someone, in order to prove that the defendant

was the perpetrator.‖ (Id., at p. 394, fn. 2.) There having been evidence Sweets

and Glover were sexually assaulted and murdered, the jury could consider

evidence of other crimes demonstrating the existence of a common plan or

scheme, such as defendant‘s crimes against Maria R. and Karen M., and the trial

court did not err in so instructing.


Defendant next argues the jury instructions impermissibly allowed the jury

to aggregate the evidence, finding him guilty of just one crime and then parlaying

that finding to find him guilty of the remaining crimes without consideration of

any other evidence. ―For example, the instruction meant that if the jury found that

[he] attempted the murder of Maria [R.] or Karen [M.], it could logically conclude

from this finding alone that [he] committed the first degree murders of Sophia

Glover and JoAnn Sweets.‖ We disagree, for the court specifically instructed the

jury on the need to find beyond a reasonable doubt that defendant had committed

each individual crime. The jury showed it understood this instruction by its

inability to reach a verdict on the Tara Simpson and Trina Carpenter counts.21

Finally, we reject defendant‘s contention that the jury instructions ―would

have permitted the jury to find [he] committed a murder based on evidence short

of proof beyond a reasonable doubt.‖ Because the jury was also instructed that

―[e]ach fact which is essential to complete a set of circumstances necessary to

establish the defendant‘s guilt or a special circumstance must be proved beyond a

reasonable doubt,‖ we are confident the jury applied the reasonable doubt standard

before returning a guilty verdict.

3. CALJIC. No. 2.03 (Consciousness of Guilt)

The trial court instructed the jury with CALJIC No. 2.03, the standard

instruction informing the jury it may infer a consciousness of guilt from


Defendant further argues that the ―jurors who did not vote guilty on the

Carpenter and Simpson murder counts could have used those counts to determine
identity in the Glover and Sweets [charges] without first finding that the
prosecution had proved the Carpenter and Simpson counts by a preponderance of
the evidence.‖ That any jurors did so, however, is mere speculation. To the extent
the instruction, which was otherwise correct, was vague, defendant cannot now
complain as he did not ask the court to modify the instruction. (People v.
(2004) 33 Cal.4th 96, 154.)


defendant‘s willfully false or misleading statements. Defendant contends this

instruction was duplicative, argumentative, ―unfairly partisan,‖ and permitted the

jury to draw unwarranted or even irrational inferences about his state of mind. He

also contends these alleged state-law violations transgressed several of his state

and federal constitutional rights. Assuming without deciding defendant preserved

this issue for appellate review, we conclude the claim lacks merit. We have

rejected defendant‘s exact claims many times (see, e.g., People v. Moore, supra,

51 Cal.4th at pp. 413-414), as defendant concedes. Although he urges this court to

reconsider these past decisions, arguing they are based on the mistaken analysis

first set forth in People v. Crandell (1988) 46 Cal.3d 833, we have rejected that

precise claim as well. (People v. Page (2008) 44 Cal.4th 1, 51.) We thus have no

reason to disavow Crandell‘s assessment that a reasonable juror instructed with

CALJIC No. 2.03 ―would understand ‗consciousness of guilt‘ to mean

‗consciousness of some wrongdoing‘ rather than ‗consciousness of having

committed the specific offense charged.‘ ‖ (Crandell, at p. 871.) As defendant

fails to persuade us that a reexamination of these precedents is warranted, we

reject his state law and constitutional claims of error.

4. CALJIC No. 2.51 (Motive)

Defendant argues the standard jury instruction on motive, CALJIC No.

2.51, which states that motive is not an element of the crime but is a circumstance

the jury can consider, violated his state and federal constitutional rights by

allowing the jury to determine his guilt based on proof of motive alone, by

improperly lightening the prosecution‘s burden of proof, and by shifting the

burden of proof such that defendant was required to prove his innocence. We

have many times rejected these exact claims (see, e.g., People v. Whalen (2013) 56

Cal.4th 1, 71; People v. Kelly (2007) 42 Cal.4th 763, 792), and we find no reason

to reexamine those prior decisions.


5. Reasonable Doubt

Defendant argues various instructions addressing the concept of reasonable

doubt (CALJIC Nos. 2.90, 2.01, 2.02, 8.83, 8.83.1) violated his state and federal

constitutional rights to due process, trial by jury, and a reliable penalty

determination, both by (a) allowing the jury to convict him ―using a standard [of

proof] lower than proof beyond a reasonable doubt‖ by stating the jury ―must‖

draw an incriminatory inference if it appeared reasonable, and by (b) creating an

impermissible mandatory presumption ―that required the jury to accept any

reasonable incriminatory interpretation of the circumstantial evidence.‖

We reject the argument. As we have explained: ―Examination of the full

instructions shows defendant‘s concern to be groundless. Two of the instructions

defendant complains of (CALJIC Nos. 2.01, 8.83) explicitly told the jury that

every fact necessary to circumstantial proof of an offense or a special

circumstance must be shown beyond a reasonable doubt. All the instructions

complained of explicitly told the jury that if two possible inferences, both

reasonable, could be drawn from the circumstantial evidence, the jury was

required to reject the inference pointing to guilt or the presence of a required

mental state and accept only the inference pointing to innocence or the lack of a

required mental state. The instructions told the jurors they must accept a

reasonable inference pointing to guilt only where any other inference that could be

drawn from the evidence was unreasonable. That direction is entirely consistent

with the rule of proof beyond a reasonable doubt, because an unreasonable

inference pointing to innocence is, by definition, not grounds for a reasonable

doubt. The circumstantial evidence instructions are thus correct.‖ (People v.

Brasure (2008) 42 Cal.4th 1037, 1058.)

Defendant further argues seven other jury instructions (CALJIC Nos. 1.00,

2.21.1, 2.21.2, 2.22, 2.27, 2.51, and 2.52) ―individually and collectively diluted the


constitutionally mandated reasonable doubt standard.‖ According to defendant,

―[e]ach of these instructions, in one way or another, urged the jury to decide

material issues by determining which side had presented relatively stronger

evidence,‖ thereby reducing the prosecution‘s high burden of proof beyond a

reasonable doubt. As defendant concedes, we have previously rejected these

claims in other cases, but he argues this court should reexamine our prior

precedents because they are ―fundamentally flawed,‖ in that prior cases have

relied on the plain meaning of an instruction‘s language rather than considered

how a reasonable juror would have applied the instruction. (Estelle v. McGuire

(1991) 502 U.S. 62, 72 [―in reviewing an ambiguous instruction . . . , we inquire

‗whether there is a reasonable likelihood that the jury has applied the challenged

instruction in a way‘ that violates the Constitution‖]; People v. Lewis (2009) 46

Cal.4th 1255, 1298 [same].)

Defendant‘s argument is untenable. For example, we explained in People

v. Jennings (1991) 53 Cal.3d 334, 386, that ―[t]he plain meaning of these

instructions merely informs the jury to reject unreasonable interpretations of the

evidence and to give the defendant the benefit of any reasonable doubt. No

reasonable juror would have interpreted these instructions to permit a criminal

conviction where the evidence shows defendant was ‗apparently‘ guilty, yet not

guilty beyond a reasonable doubt.‖ (Italics added.) Accordingly, we conclude,

consistent with past authority (People v. Watkins (2012) 55 Cal.4th 999, 1030),

that none of the identified pattern jury instructions violated defendant‘s

constitutional rights.

6. Unanimity

The jury was instructed on two theories of first degree murder:

premeditated murder and felony murder. Defendant argues the trial court erred by

instructing the jury that it need not conclude either theory was true by a unanimous


vote, so long as it was unanimous in concluding defendant was guilty of first

degree murder on some theory.22 Again claiming that malice murder and felony

murder are different crimes with different elements, he argues the trial court‘s

failure to require the jury unanimously to support a single theory of first degree

murder is structural error requiring reversal.

We have rejected this precise claim in previous cases (People v. McKinzie

(2012) 54 Cal.4th 1302, 1354; People v. Benavides (2005) 35 Cal.4th 69, 100-

101), and defendant presents no persuasive reason to reexamine our precedents.

We thus reject the claim.


A. Facts

1. Aggravation

The prosecution called four witnesses who presented aggravating evidence.

The first, defendant‘s sister L.A., testified that when defendant was 11 or 12 years

old, he several times forced her to have sex against her will.

Tracy Davison testified that she met defendant when they both attended the

Job Corps in San Diego. She was 15 years old and he was 17, and she eventually

became pregnant by him. She thereafter lived with him and his mother on 51st

Street for three years but never married him. Once, when he was jealous, he

placed both his hands on her neck and choked her until she passed out. She left

him and eventually married another man. She related an incident that occurred on

October 1, 1985, which was about one month after police found Tara Simpson‘s


The jury was instructed: ―A finding of guilt of first degree murder in

counts three and five may be based upon either one or both of the proposed
theories. The jury does not have to agree unanimously as to which theory has
been proved, but all twelve jurors must be convinced beyond a reasonable doubt
that defendant is guilty under one or the other, or both theories.‖


burned body, in which her then husband, David Entzminger, and defendant got

into a fight. Defendant picked Entzminger up by the neck and threw him against a

van. Davison estimated her husband was five feet seven inches tall and weighed

130 or 140 pounds. By contrast, she estimated defendant was six feet six inches

tall and weighed about 300 pounds. Her husband later obtained a restraining order

against defendant. On another occasion, defendant assaulted Davison and chipped

her tooth. She admitted she worked as a prostitute.

Sometime between September 1985 and July 1986, Davison saw defendant

with a prostitute near the 51st Street apartment. He told the woman in a ―[v]ery

hostile and aggressive‖ voice: ―Bitch, get my money.‖ She identified the

prostitute as murder victim Trina Carpenter.

Aida L. testified she worked as a prostitute in San Diego in 1986 and

admitted she had a prior felony conviction for theft. She was also addicted to

heroin at the time. On February 13, 1986, two days after police found Trina

Carpenter‘s body in a dumpster, the witness testified she was walking alone late at

night on El Cajon Boulevard when defendant attacked her. He grabbed her arm,

took her down an alley and into an underground parking lot, and forced her to

orally copulate him. He then raped her, and after he was finished he grabbed her

neck and choked her. He told her: ― ‗You better not say anything. You better not

scream. You better not tell the police or I am going to kill you.‘ ‖ She reported

the crime but police did not believe her.

Bertha R. testified to the effect of her victimization by defendant. She said

that after defendant sexually assaulted her, she starting drinking heavily and

abusing cocaine and crystal methamphetamine. Her boyfriend showed little

compassion towards her and began treating her differently. When she told him she

did not want to have sex, he cruelly replied that she deserved to be raped. She

began secluding herself in her room to drink, and she sent her son to her sister‘s


home ―so I wouldn‘t have to be bothered with him.‖ She lost her job and began

working the streets as a prostitute to make money for alcohol and drugs. Although

she had been seeing a therapist, she stopped therapy because she ―was too

ashamed of what I was doing.‖ At the time of trial, more than seven years after

defendant assaulted her, she had turned her life around and was again employed

and no longer abused alcohol and drugs, although her son was now living ―on the


2. Mitigation

Defendant presented several witnesses who testified as to his character and

background. His mother, Ann Jones, related defendant‘s upbringing near Barstow

and how he did not do well in school and spent two weeks in juvenile hall after

being caught burglarizing homes when he was 13 years old. When her husband

returned from Okinawa after a tour of duty with the Marines, family life changed.

Her husband was a changed man, suspicious of everything she did. Once, when

she refused to give him any money, he tried to kill her by choking her until

defendant intervened. Her husband also beat her daughter, L.A., and once broke

defendant‘s arm. When her husband gambled away their savings, she sold the

house and moved to San Diego. Jones was unaware of defendant‘s arrests or that

he had been convicted of crimes against Bertha R. She believed him when he told

her he had been falsely accused and did not believe defendant ever molested his

sister because he denied it.

Tracy Davison‘s older sister, Linda Tate, testified defendant was a good

father. His son, now being raised by Jones, testified that he loved his father, who

encourages him by phone and in letters to do well in school and practice sports

and music. He would feel ―horrible‖ and ―really sad‖ if his father was not around

to speak with him.


People who knew defendant in the Job Corps testified he did well in that

structured environment, posed no behavioral problems, and in fact helped to

defuse problems. He completed the welding program and was considered a good

welder with marketable skills. People who knew defendant in county jail and in

prison testified to his positive qualities and diligence in work programs.

B. Issues

1. Victim Impact Evidence

Defendant raises several arguments against the admission of Bertha R.‘s

penalty phase testimony, but none has merit. Although defendant‘s crimes against

Bertha R. were committed at a time when victim impact evidence was

inadmissible (Booth v. Maryland (1987) 482 U.S. 496), the law had changed by

the time he was tried in 1994 (Payne v. Tennessee (1991) 501 U.S. 808).

Defendant contends application of Payne to his case violates the ex post facto

clauses of both the state and federal Constitutions and is unconstitutionally vague.

We disagree. ―We have rejected claims that section 190.3, factor (a), is

unconstitutionally vague insofar as it permits introduction of victim impact

evidence as a circumstance of the crime [citations], and that use of victim impact

evidence in trials for capital crimes committed before the United States Supreme

Court‘s decision in Payne v. Tennessee, supra, 501 U.S. 808, violates federal

constitutional principles of ex post facto and due process [citation]. Defendant

does not persuade us to reconsider these decisions.‖ (People v. Jurado (2006) 38

Cal.4th 72, 132.) We have reached the same result concerning the state

constitutional claim. (People v. Hamilton (2009) 45 Cal.4th 863, 926.)

Defendant also contends the trial court erred by overruling his objection to

the admission of Bertha R.‘s testimony on grounds it was not related to the

circumstances of the capital crimes. We reject the argument, for the evidence of


prior violent acts admitted under section 190.3, factor (b), may include the effect

of noncapital crimes on the surviving victim. ―At the penalty phase, the

prosecution may introduce evidence of the emotional effect of defendant‘s prior

violent criminal acts on the victims of those acts.‖ (People v. Price (1991) 1

Cal.4th 324, 479.) ―The foreseeable effects of defendant‘s prior violent sexual

assaults upon the victims — ongoing pain, depression, and fear — were thus

admissible as circumstances of the prior crimes bearing on defendant‘s

culpability.‖ (People v. Mickle (1991) 54 Cal.3d 140, 187.) We recently cited

Mickle with approval and declined an opportunity to reconsider it. (People v.

Jones (2012) 54 Cal.4th 1, 73; see People v. Demetrulias (2006) 39 Cal.4th 1, 39.)

Defendant next contends that even if some of Bertha R.‘s evidence was

admissible as victim impact evidence, it was much too extensive to withstand

constitutional scrutiny. Even assuming he preserved this issue, it lacks merit, for

the trial court acted well within its discretion in admitting the evidence, which was

extremely brief, comprising but seven pages in the trial transcript.

Defendant next contends the prosecutor ―exceeded the boundaries of

permissible victim impact argument to the jury in commenting on victims not

directly related to JoAnn Sweets and Sophia Glover.‖ Defendant did not object to

this argument and thus forfeited the issue for appeal. (People v. Brown (2004) 33

Cal.4th 382, 398-399.) In any event, it was permissible to reference Bertha R.‘s

penalty phase testimony in closing argument. (People v. Gamache (2010) 48

Cal.4th 347, 390 [prosecutor has wide latitude in closing argument].)

2. Incest Evidence

Defendant argues the trial court erred by permitting his sister, L.A., to

testify that when he was 11 and 12 years old he forced her to have sex with him.

Analogizing to Thompson v. Oklahoma (1988) 487 U.S. 815, wherein the high


court found the Eighth Amendment prohibits imposing the death penalty on those

who committed their capital crimes when they were less than 16 years old,

defendant argues that allowing the jury to consider, as aggravating evidence,

events that occurred before he attained the age of majority similarly violates his

constitutional rights.

Although defendant moved to exclude L.A.‘s testimony, he did not raise

this specific ground for exclusion. ―Evidence Code section 353, subdivision (a)

requires that an objection to evidence be ‗timely made and so stated as to make

clear the specific ground of the objection or motion . . . .‘ As we have explained:

‗ ―Specificity is required both to enable the court to make an informed ruling on

the . . . objection and to enable the party proffering the evidence to cure the defect

in the evidence.‖ ‘ ‖ (People v. Mills, supra, 48 Cal.4th at p. 207.) Under the

circumstances, we agree with respondent that defendant forfeited this issue for


Were we to conclude defendant properly preserved this claim for our

review, we would find it meritless. As defendant recognizes, we rejected this

precise claim in People v. Raley (1992) 2 Cal.4th 870. In Raley, the defendant,

also relying on Thompson v. Oklahoma, supra, 487 U.S. 815, argued, ―the

admission of evidence of juvenile misconduct violates the Eighth Amendment of

the United States Constitution because it permits aggravation of sentence for the

capital crime for conduct not considered criminal when it occurred.‖ (Raley,

p. 909.) We rejected the argument because the analogy to Thompson was inapt:

the defendant‘s death penalty sentence ― ‗is attributable to [his] current conduct,

i.e., murder with a special circumstance finding, not his past [juvenile] criminal

activity.‘ ‖ (Ibid., quoting People v. Cox (1991) 53 Cal.3d 618, 690.) As

defendant was not a minor when he committed his crimes against JoAnn Sweets,

Sophia Glover, Maria R. and Karen M., Thompson is inapplicable.


Defendant argues Roper v. Simmons (2005) 543 U.S. 551, in which the high

court found the Eighth Amendment prohibited imposing the death penalty on

those under 18 years old at the time of their crimes, supports reconsideration of

Raley. We disagree. Although Roper increased the minimum age for the ultimate

penalty under the Eighth Amendment, it does not undermine our reasoning in

Raley that a capital offender‘s penalty is attributable to his present capital crimes,

not his past criminal activity.

3. Instruction to Disregard Guilt Phase Instructions

As is usual in capital cases, upon reaching the penalty phase the trial court

instructed the jury with CALJIC No. 8.84.1 (1989 rev.), which in part instructs the

jury it ―must determine what the facts are from the evidence received during the

entire trial unless you are instructed otherwise. You must accept and follow the

law that I shall state to you. Disregard all other instructions given to you in other

phases of this trial.‖ (Italics added.) Defendant contends the last sentence of this

instruction, and the failure to reinstruct the jury with approximately 40 different

guilt phase instructions, was constitutional error requiring reversal because it was

reasonably likely the omission of these instructions precluded the jury from

considering relevant mitigating evidence. Defendant is correct that the challenged

instruction presupposes the court will, at the penalty phase, reinstruct the jury with

the guilt phase instructions applicable to the penalty phase. ―As we have held, if

the court tells the jury to disregard the guilt phase instructions, ‗it must later

provide it with those instructions applicable to the penalty phase.‘ (People v.

Moon[ (2005)] 37 Cal.4th [1,] 37.) We reiterate that trial courts should take pains

to ensure that penalty phase juries are fully and properly instructed. (See People v.

Carter (2003) 30 Cal.4th 1166, 1222; Moon, at p. 37, fn. 7.)‖ (People v. Harris

(2008) 43 Cal.4th 1269, 1319.)


To the extent defendant argues the trial court committed reversible error,

however, he is incorrect because the trial court was not remiss in this area. It

reinstructed the jury at the penalty phase with numerous guilt phase instructions

dealing with how to consider the evidence, thereby satisfying the rule set forth in

People v. Moon, supra, 37 Cal.4th 1, and subsequent decisions. To the extent

defendant simply lists dozens of guilt phase instructions without explaining how

they were pertinent to the penalty phase deliberations, his argument fails to

persuade. For example, it is unclear how an instruction on corpus delicti was

pertinent to the penalty determination. Although the jury may have benefited from

reinstruction with some of the listed instructions, we can see no prejudice from the


Defendant also contends that because one juror was excused after the guilt

phase and an alternate inserted into the jury at the beginning of the penalty phase,

the court‘s failure to reinstruct with all prior guilt phase instructions, and to further

instruct the jury to set aside any previous discussion about defendant‘s guilt and to

deliberate the issue of guilt anew, was prejudicial error. He is mistaken. The

obligation to instruct the jury to begin deliberations anew following replacement

of a juror with an alternate does not apply when the alternate joins the jury before

the start of penalty phase deliberations. ―Neither does the United States

Constitution demand such an instruction in the present situation.‖ (People v.

Ashmus (1991) 54 Cal.3d 932, 1005.)

Defendant argues the court‘s failure to reinstruct with all the guilt

instructions prevented the jury from considering any lingering doubt it may have

had regarding his guilt for murdering and sodomizing JoAnn Sweets and Sophia

Glover. We reject the claim because the jury was specifically instructed that ―[i]f

you have any residual doubts about the circumstances attending the crimes as

found in the guilt phase, you may consider such doubts in mitigation under factor


‗a‘ of the penalty phase factors. [¶] Residual doubt is defined as that state of mind

between ‗beyond a reasonable doubt‘ and ‗beyond all possible doubt.‘ ‖ His

additional claim the failure to reinstruct precluded the jury from questioning his

guilt for killing Trina Carpenter and Tara Simpson is similarly misguided because

the jury was also instructed that ―[b]efore a juror may consider any such criminal

act as an aggravating circumstance in this case, he or she must first be satisfied

beyond a reasonable doubt that the defendant did, in fact, commit such criminal

act and that the act involved the express or implied use of force or violence or the

threat of force or violence.‖ (Italics added.) We find no error.

4. Challenges to the Death Penalty Law

Defendant raises several facial challenges to the constitutionality of this

state‘s death penalty law, all of which this court has previously rejected in

numerous decisions. As he presents no persuasive reason to reconsider our

precedents, we reject his arguments:

a. ― ‗Comparative intercase proportionality review of death sentences is not

constitutionally required. [Citations.] ―Because capital and noncapital defendants

are not similarly situated in the pertinent respects, equal protection principles do

not mandate that capital sentencing and sentence-review procedures parallel those

used in noncapital sentencing.‖ ‘ ‖ (People v. Lightsey (2012) 54 Cal.4th 668,


b. Nothing in the state or federal Constitutions ― ‗ ―require[s] that the

prosecution carry the burden of proof or persuasion at the penalty phase, . . . or

that the jury find beyond a reasonable doubt that (1) the aggravating factors have

been proved, (2) the aggravating factors outweigh the mitigating factors, or

(3) death is the appropriate sentence.‖ ‘ ‗The United States Supreme Court‘s

recent decisions interpreting the Sixth Amendment‘s jury trial guarantee


(Cunningham v. California (2007) 549 U.S. 270; United States v. Booker (2005)
543 U.S. 220; Blakely v. Washington (2004) 542 U.S. 296; Ring v. Arizona (2002)
536 U.S. 584; Apprendi v. New Jersey [(2000)] 530 U.S. 466) have not altered our

conclusions in this regard.‘ [Citation.]‖ (People v. Bivert, supra, 52 Cal.4th at pp.


c. CALJIC No. 8.88 is not impermissibly vague or ambiguous for using the

phrase ―so substantial,‖ nor did it impermissibly fail to inform the jury that it must

find death was an appropriate, not just an authorized, penalty. (People v.

McDowell, supra, 54 Cal.4th at p. 444.) Nor is CALJIC No. 8.88 unconstitutional

for failing to require the jury to return a verdict of life should it determine the

mitigating circumstances outweigh the aggravating ones. (McDowell, at p. 444.)

―Nor is the instruction defective because it fails to convey to jurors that defendant

has no burden to persuade them that death is inappropriate.‖ (People v. Taylor

(2010) 48 Cal.4th 574, 658.)

d. The death penalty law is not unconstitutional ―[d]ue to the asserted

overbreadth of section 190.3, factor (a), which permits the jury to consider the

circumstances of the crime as an aggravating factor [citation].‖ (People v. Vines,

supra, 51 Cal.4th at p. 891.)

e. ―The jury may properly consider evidence of unadjudicated criminal

activity under section 190.3, factor (b)‖ (People v. Gonzales and Soliz (2011) 52

Cal.4th 254, 334), and need not first decide the prior criminal activity was true

beyond a reasonable doubt by unanimous vote (People v. Abilez, supra, 41 Cal.4th

at p. 534). Further, permitting the jury to consider prior unadjudicated criminal

activity as aggravating evidence did not unconstitutionally allow it to impose the

death penalty on unreliable, undiscussed, or undebated evidence, especially

because the jury was instructed that no juror could consider such evidence unless


he or she found beyond a reasonable doubt that defendant had committed the

crime or crimes. (People v. Avena, supra, 13 Cal.4th at p. 429.)

f. No rule of constitutional law requires the jury instructions to delete

inapplicable sentencing factors or to state that some factors are mitigating only.

(People v. Mills, supra, 48 Cal.4th at p. 210.)

g. The jury instructions for section 190.3, factors (d) and (g) are not

unconstitutional for including the adjectives ―extreme‖ and ―substantial.‖ (People

v. Lightsey, supra, 54 Cal.4th at pp. 731-732.)

h. The jury instructions‘ failure to require specific written findings

regarding which aggravating factors were found and considered in returning a

death sentence did not violate defendant‘s constitutional rights to meaningful

appellate review and equal protection of the law. (People v. Homick (2012) 55

Cal.4th 816, 903.)

i. Assertedly denying some procedural protections to capital defendants

that would apply to noncapital defendants does not violate equal protection.

(People v. Bivert, supra, 52 Cal.4th at p. 124.)

5. International Law

Defendant contends the death penalty law in California contravenes

―international treaties and fundamental precepts of international human rights . . .

as incorporated into the Eighth Amendment.‖ In particular, he cites the

International Covenant on Civil and Political Rights, ratified by the United States

in 1992. We have rejected this precise claim (People v. Brasure, supra, 42 Cal.4th

at p. 1072) and decline to reconsider it here.

6. Cumulative Error

Having found no legal error, we reject defendant‘s claim that the

cumulative effect of all errors requires reversal.



The judgment is affirmed in its entirety.






I write separately to offer brief comments on two issues in this case. First,

consistent with the views I recently expressed in People v. Harris (Aug. 26, 2013,

S081700) __ Cal.4th __, __ (Harris) (conc. opn. of Liu, J.), People v. Mai (Aug.

26, 2013, S089478) __ Cal.4th __, __ (Mai) (conc. opn. of Liu, J.), and People v.

Williams (2013) 56 Cal.4th 630, 699 (Williams) (dis. opn. of Liu, J.), I would

analyze defendant‘s claim under Batson v. Kentucky (1986) 476 U.S. 79 and

People v. Wheeler (1978) 22 Cal.3d 258 as follows.

With respect to Prospective Juror Y.J., the trial court said it was

―completely satisfied . . . that [the prosecutor‘s] reasons [were] independent of

color,‖ with no other findings or analysis. Although today‘s opinion gives the trial

court‘s ruling the ―usual deference‖ (maj. opn., ante, at p. 15), deference to an

unexplained Batson ruling is unwarranted. (See Mai, supra, __ Cal.4th at p. __ [at

p. 2] (conc. opn. of Liu, J.); Williams, supra, 56 Cal.4th at pp. 710–713, 715 (dis.

opn. of Liu, J.).) But an independent examination of the record confirms that

defendant failed to establish purposeful discrimination with respect to the

prosecutor‘s strike of Y.J. The prosecutor said he excused Y.J. because, among

other reasons, she worked at the Job Corps defendant had attended nine years

earlier. The prosecutor explained that he anticipated the defense might introduce

information about defendant‘s history at Job Corps during the penalty phase, and

he didn‘t want to ―take the chance that . . . [Y.J.] will have a link to [defendant]


because of her employment and his connection to Job Corps.‖ There is no

indication that any of the seated or alternate jurors had a similar connection to

defendant. I conclude from the record that defendant has not shown it is more

likely than not that the prosecutor‘s reference to Y.J.‘s employment at Job Corps

was pretextual.

Prospective Juror C.G. said during voir dire that she was seeing a therapist

for depression: ―The past four years have been pretty rough. I don‘t have — I

don‘t have a husband. I don‘t have children. So I had a dog that was like a child

to me. I had the dog for six years. In the past four years I have had to get rid of

the dog of six years, I have lost a boyfriend of ten years, and I have had a stroke.

So the past four years have been kind of depressing.‖ In explaining his reasons for

excusing C.G., the prosecutor said: ―And the — a big factor is that she‘s seeing a

therapist now regarding depression. No matter what she says, this will be a

depressing case. I don‘t want the responsibility of harming this woman. I think

she‘s going to be harmed based on what she has to hear in this case and what she

has to do in this case. And I don‘t want that or someone with that background,

that current background, sitting on a case of this magnitude.‖ The trial court

declared itself ―very satisfied that the reasons stated are substantial and do not

relate to color whatsoever.‖ It then said: ―I will indicate that I noticed

[Prospective Juror C.G.] almost looked like she was in tears when she was

explaining the tragedies she has personally gone through over the last few years

and it‘s pretty heart-breaking.‖ This on-the-record finding makes it appropriate

for us to ―defer . . . to the trial court‘s assessment of the prosecutor‘s reasons as

being subjectively genuine.‖ (Maj. opn., ante, at p. 16.)

With respect to N.S., the trial court ruled that defendant had failed to make

a prima facie showing of discrimination, stating: ―[I]t was very clear to me that

. . . [N.S.] was [not] going to get past a prosecution peremptory, and it wouldn‘t


have mattered what color [she was]. . . . [N.S.], of course, had the fact that she

had married an individual who was convicted of murder, that she had that

incredible experience behind her. . . . So, I — just in this case I am confident that

there is no prima facie case.‖ We can confidently conclude that the reason the

prosecutor struck N.S. was obvious: N.S. was married to a convicted murderer.

None of the seated or alternate jurors had anything remotely similar in their

backgrounds. This is a circumstance ―where the explanation for a prosecutor‘s

strike of a particular juror is so obvious that there is little or no reason to think

anything else could have motivated the strike.‖ (Harris, supra, __ Cal.4th at p. __

[at p. 14] (conc. opn. of Liu, J.).)

Second, I believe the trial court erred in admitting expert testimony derived

from dot intensity analysis. Dr. Edward Blake testified as an expert for the

prosecution and explained his conclusions regarding the genetic material found at

three of the crime scenes. (Maj. opn., ante, at pp. 43–44.) Before trial, defendant

moved to exclude Dr. Blake‘s intended testimony on the ground that his

conclusions were derived, at least in part, from his use of dot intensity analysis, a

method defendant claimed was not generally accepted in the scientific community.

(Id. at p. 47.) The trial court held a hearing pursuant to People v. Kelly (1976) 17

Cal.3d 24 and determined from the evidence presented that that ―[Dr.] Blake‘s

procedures have been substantiated as correct scientific procedures.‖ (Maj. opn.,

ante, at p. 49.) Today‘s opinion declines to reach the merits of defendant‘s

argument, instead concluding that any error was harmless. (Id. at p. 51.) I agree

with the finding of harmlessness, but I would further conclude that the trial court,

in its crucial gatekeeping role, should not have admitted the portion of Dr. Blake‘s

testimony derived from dot intensity analysis.

The proponent of evidence derived from a new scientific technique must

establish, among other things, that ―the reliability of the new technique has gained


general acceptance in the relevant scientific community.‖ (People v. Doolin (2009)

45 Cal.4th 390, 445 (Doolin).) ―Whether a new scientific technique has gained

general acceptance is a mixed question of law and fact. [Citation.] ‗[W]e review the

trial court‘s determination with deference to any and all supportable findings of

―historical‖ fact or credibility, and then decide as a matter of law, based on those

assumptions, whether there has been general acceptance.‘ ‖ (Id. at p. 447.)

In this case, the evidence does not support a conclusion that dot intensity

analysis had gained general acceptance in the scientific community at the time of trial.

The Attorney General argues that Dr. Blake‘s testimony was supported by his own

opinion as well as two articles submitted to the trial court as exhibits. However, one

of the two articles, which was co-authored by Dr. Blake, included only a single page

of discussion (plus two images labeled ―Figs. 1 and 2‖) regarding the analysis of

mixed samples. (Blake et al., Polymerase Chain Reaction (PCR) Amplification and

Human Leukocyte Antigen (HLA)-DQα Oligonucleotide Typing on Biological

Evidence Samples: Casework Experience (1992) 37 J. Forensic Sci. 700, 706–707.)

That brief section of the article concluded that ―studies of experimental mixtures of

different DNA samples in known proportions indicate that mixtures in which the

concentration of the two components is sufficiently different can often be interpreted,

and the contributing genotypes identified.‖ (Id. at p. 706, italics added.) This

conclusion was apparently based on the authors‘ observation that when ―two purified

DNA samples of different genotypes‖ were mixed in known ratios, ―the dots

corresponding to the minor component [were] less intense than the C dot when that

component [was] approximately less than 1 part in 16.‖ (Ibid.) The authors did not

claim that dot intensity analysis had proven successful in typing mixed samples in

which the ratio of the contributing samples was not known to researchers in advance.

The second article, while somewhat more thorough, also failed to include a study in

which dot intensity analysis was successfully used to type mixed samples of unknown


proportions. (See Comey & Budowle, Validation Studies on the Analysis of the HLA

DQα Locus Using the Polymerase Chain Reaction (1991) J. Forensic Sci. 1633.)

Further, Dr. Blake‘s opinion was contradicted by a 1992 publication authored

by the National Research Council (NRC). (NRC, DNA Technology in Forensic

Science (1992).) The NRC advised that ―[m]ixed samples can be very difficult to

interpret, because the components can be present in different quantities and states of

degradation. . . . Typically, it will be impossible to distinguish the individual

genotypes of each contributor. If a suspect‘s pattern is found within the mixed

pattern, the appropriate frequency to assign such a ‗match‘ is the sum of the

frequencies of all genotypes that are contained within (i.e., that are a subset of) the

mixed pattern.‖ (Id. at p. 59.) The NRC explained that ―PCR can be qualitatively

faithful but quantitatively unfaithful, because some alleles amplify more efficiently

than others. A sample might contain a 50:50 mixture of two alleles and yield an

amplified product with a 90:10 ratio.‖ (Id. at p. 64.) Accordingly, the NRC

concluded that ―it is not possible to separate the DNA contributed by different persons

in mixed bloodstains or in sexual-assault samples that involve two or more

perpetrators. . . . Interpretations based on quantity can be particularly problematic —

e.g., if one saw two alleles of strong intensity and two of weak intensity, it would be

improper to assign the first pair to one contributor and the second pair to a second

contributor, unless it had been firmly established that the system was quantitatively

faithful under the conditions used.‖ (Id. at p. 66.) Although Dr. Blake opined that

certain of the NCR‘s findings were not applicable to PCR amplification involving

DQα, the report‘s conclusions were categorical and included no such qualification.

If our task were to determine whether the trial court‘s ruling was supported

by substantial evidence, I would conclude that Dr. Blake‘s testimony and the

accompanying articles were sufficient. However, the pertinent question is whether

dot intensity analysis ―ha[d] gained general acceptance in the relevant scientific


community.‖ (Doolin, supra, 45 Cal.4th at p. 445, italics added.) Even when the

trial court‘s ―findings of ‗historical‘ fact [and] credibility‖ are accorded deference

(id. at p. 447), the evidence presented was insufficient to establish general

scientific acceptance of the dot intensity technique.

The circumstances here provide an occasion to emphasize that trial courts

play a vital gatekeeping role when it comes to expert testimony whose underlying

conceptual or methodological basis has not been shown to be reliable. (See

Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th

747, 769–772; see also Tellabs, Inc. v. Makor Issues & Rights, Ltd. (2007) 551

U.S. 308, 327, fn. 8; Kumho Tire Co. v. Carmichael (1999) 526 U.S. 137, 141.)

Given the particularly persuasive power of DNA evidence, trial courts must be

vigilant to ensure that the proponent of such evidence has established its


In all other respects, I join the court‘s opinion.



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Jones

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted


Opinion No.
Date Filed: August 26, 2013

County: San Diego
Judge: Laura P. Hammes


Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, Joseph E. Chabot and
Nina Wilder, Deputy State Public Defenders, and Lisa Anne D‘Orazio for Defendant and Appellant.

Bill Lockyer and Kamala D. Harris, Attorneys General, Mary Jo Graves, Chief Assistant Attorney General,
Gary W. Schons, Assistant Attorney General, Holly D. Wilkens and Karl T. Terp, Deputy Attorneys
General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Joseph E. Chabot
Deputy State Public Defender
221 Main street, 10th Floor
San Francisco, CA 94105
(415) 904-5600

Karl T. Terp
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2194

Opinion Information
Date:Docket Number:
Mon, 08/26/2013S042346