Supreme Court of California Justia
Docket No. S024046
People v. O'Malley

Filed 2/18/16



Plaintiff and Respondent,




Santa Clara County

Defendant and Appellant.

Super. Ct. No. 131339


Defendant James Francis O‘Malley was convicted at trial of three counts of

first degree murder (Pen. Code, § 187, subd. (a)),1 one count of conspiracy to

commit murder (§ 182.1), and one count of robbery (§§ 211, 212.5, subd. (b)).

The jury acquitted defendant of a second charge of conspiracy to commit murder.

The jury also found true special circumstances alleging murder for financial gain,

multiple murder, and robbery murder. (§ 190.2, subd. (a)(1), (3), (17)(A).)

Additionally, the jury found true allegations that defendant personally used a

firearm and a deadly and dangerous weapon in the commission of the offenses.

(former §§ 12022, subd. (b), 12022.5, subd. (a).) Following a penalty trial, the

jury returned a verdict of death. The trial court denied the automatic application to


All unspecified statutory references are to the Penal Code.


modify the verdict (§ 190.4, subd. (e)) and sentenced defendant to death. This

appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.


A. Guilt Phase

1. Summary

In 1986 and 1987, defendant was a member of a Hayward-based

motorcycle club called the Freedom Riders, as well as president of its San Jose

chapter. The evidence presented at trial showed that the three murders of which

defendant was convicted all had some connection to his involvement in the club.

The first victim, Sharley Ann German, was married to Geary German, a fellow

Freedom Rider, who paid defendant to kill Sharley Ann to prevent her from

divorcing him and claiming their marital assets.2 The second victim, Herbert Parr,

was a Freedom Rider ―wannabe‖ whom defendant and Rex Sheffield, another

Freedom Rider, killed to obtain Parr‘s motorcycle. The third victim, Michael

Robertson, was a friend of defendant‘s whom defendant and Sheffield killed

because defendant suspected him of being a ―snitch.‖ Defendant either admitted

the killings or implicated himself in them in statements he made to various people,

including one of his girlfriends, Brandi Hohman.

2. Prosecution Case-in-Chief

a. The Sharley Ann German Murder

Sharley Ann German was married to Geary German, who, like defendant,

was a member of the Freedom Riders. They lived with Thomas M. (Sharley

Ann‘s teenage son), Judith Flemate (a friend of Sharley Ann‘s), and Flemate‘s


To avoid confusion, we refer to the victim and her husband by their first



husband. Defendant and Geary were good friends. In 1985, another Freedom

Rider, Rex Sheffield, fatally shot Geary‘s neighbor Frank Ramos, with whom

Geary had had a dispute. The killing occurred in the Germans‘ garage with a gun

belonging to Geary. Sharley Ann told police Sheffield was the shooter and

showed them where the gun was concealed. Sheffield was arrested and pled guilty

to involuntary manslaughter. Geary was angry that Sharley Ann had snitched on

Sheffield and their marriage began to deteriorate.

In April 1986, Sharley Ann confided to her friend Judith Flemate that she

wanted to divorce Geary because he was having an affair with a coworker named

Sandra Lithgow. Sharley Ann confronted Geary about the affair and also told

Lithgow‘s husband about it. Flemate later heard the couple quarrelling in the

garage and when they emerged, Sharley Ann had a black eye and her throat was

bruised. A few weeks later, Sharley Ann told Flemate, in Geary‘s presence, that

when she married Geary she had paid off his debts and paid for work on their

house, and she would see to it that he lost the house and their bank accounts.

Geary was very angry. Sharley Ann also told her friend Joan Whitworth that she

wanted to divorce Geary and keep the house, and mentioned that she had a life

insurance policy.

Geary was scheduled to return to jail and serve his sentence for his part in

the Ramos killing while Judith Flemate and her husband remained with Sharley

Ann, who was worried about retaliation from Ramos‘s family.3 Geary, however,

wanted them to leave, so they moved out a few days before April 25.


Geary, who was charged as an accessory, was sentenced to 10 months in

county jail for his involvement in the Ramos killing, but his sentence was stayed
until April 30, 1986. After Sharley Ann‘s murder, he received a further stay to
July 30, 1986. He was released from jail on October 14, 1986. At the time of

(footnote continued on next page)


On the morning of April 25, a Friday, Thomas M. woke up at 6:00 a.m.,

and talked to Sharley Ann before leaving for school. Geary had already gone to

work, clocking in at 6:45 a.m. Daniel Whitworth, Joan‘s husband, talked briefly

to Sharley Ann on the phone around 9:40 a.m., when he called and asked to

borrow a battery charger, and again a few minutes later when she called back and

asked to borrow a book. She seemed normal and was apparently alone. Her

mother also spoke with her briefly by phone around the same time. Thomas

returned home from school around 4:00 p.m. The front door was unlocked, which

was unusual. He went into his bedroom to change clothes, where he discovered

Sharley Ann‘s body on the floor between the dresser and the bed. He went to the

home of Reni Jensen, the next-door neighbor, for help. Jensen called 911.

Sergeants Philip Beltran and Charles Hahn and Officer Herb Brown of the

San Jose Police Department were dispatched to the German residence. All were

present when Geary appeared around 4:30 or 5:00 p.m., which was later than he

usually arrived home on Fridays. According to Officer Brown, Geary showed no

emotion upon the discovery of his wife‘s murder. It appeared to Sergeants Beltran

and Hahn that he was pretending to be anguished.

Sharley Ann‘s autopsy revealed she had been stabbed on the left side of her

neck, severing her carotid artery, and shot in the head with a .25-caliber handgun.

The medical examiner attributed her death to both wounds.

Geary received the proceeds of Sharley Ann‘s insurance policy and bought

a red Corvette with the license place ―CRIKET4.‖ ―Cricket‖ was his pet name for

(footnote continued from previous page)

defendant‘s trial, Geary had not been arrested for or charged with his wife‘s


Sandra Lithgow, whom he continued to see after Sharley Ann‘s death. Sharley

Ann‘s silver Honda went missing after her death. On July 25, 1986, it was found

abandoned just off the Dumbarton Bridge near Interstate 580.

On the day his mother was killed, Thomas M. told police he thought a

member of the Ramos family might have killed her because of the ongoing feud

between the families in the wake of Frank Ramos‘s death. Police investigated

Ramos‘s wife, Connie, but Sharley Ann‘s murder remained unsolved until

defendant was arrested in 1988 on other charges.

Following defendant‘s 1988 arrest, Theodore Grandstedt, with whom

defendant sold drugs, told police that Geary had hired defendant to kill his wife.

Grandstedt told police he saw defendant the day of the killing. Defendant was

excited and agitated and told Grandstedt he had finished doing the job, which

Grandstedt understood to mean that he had killed Sharley Ann. Grandstedt said

defendant and Geary had a dispute over payments for the killing. He told police

that defendant and Karen Dolan (one of defendant‘s girlfriends, the mother of his

children, and eventually his wife) argued about Geary owing money to defendant

for his part of the job.

In July 1987, defendant described how he killed Sharley Ann to Robert

Fulton, a one-time Freedom Rider. He said he went to her house, talked to her for

a while, then went into another room and stabbed her in the neck. After he

stabbed her, he shot her. He told Fulton that Sharley Ann ―was a tough bitch to

kill,‖ and that Geary had hired him to kill Sharley Ann because she was going to

divorce Geary and ―take everything.‖ Defendant said Geary paid him $2,500 and

gave him Sharley Ann‘s silver Honda, which Fulton had seen in the Germans‘

driveway before Sharley Ann was killed. Defendant called him when the car

broke down on the side of the Dumbarton Bridge and asked Fulton to help him fix

or move it. Fulton declined and defendant abandoned the car.


Marlene Fulton, Robert Fulton‘s wife, saw defendant driving Sharley Ann‘s

car after the murder. Defendant subsequently told her he had killed Sharley Ann.

She agreed with her husband that defendant showed up at their residence after the

car broke down on the Dumbarton Bridge.

According to Brandi Hohman, one of defendant‘s girlfriends, defendant

told her he was hired by Geary to kill Sharley Ann, which he did by shooting her

and cutting her throat. Defendant also told Hohman he sold the .25-caliber

handgun he had used to a girl he met at the home of their mutual friend, Laurel

Beiling. In December 1986, Alison Hurst, who was living with Beiling, bought a

.25-caliber semiautomatic handgun from defendant.

At trial, defendant‘s friend Richard Balthazar testified that around the

summer of 1986 he cleaned a gun for defendant, who gave him the box the gun

came in. Police obtained the box from Balthazar. Edward Peterson, an expert in

firearm identification, testified that the bullet that killed Sharley Ann German had

characteristics consistent with a bullet fired from the gun that would have been

contained in the box.

b. The Christopher Walsh Robbery

To provide context for subsequent events related to the charged offenses,

the prosecution, over defendant‘s objection, presented evidence that defendant

robbed Christopher Walsh. In December 1986, Walsh, who aspired to join the

Freedom Riders, was staying with defendant and Hohman at a motel in Mountain

View. Walsh and defendant had a falling out after Walsh kicked defendant‘s dog

and Walsh moved out of the motel room. Later, he called defendant and asked if

he could return to pick up some of his belongings. Defendant agreed. Walsh

returned to the motel and he and defendant used methamphetamine. Defendant

then pistol-whipped Walsh and forced him to write a phony bill of sale for his


motorcycle, turning it over to defendant. Defendant told Walsh that if he went to

the police, defendant would hunt him down and kill him. Walsh nonetheless

reported the robbery to the police, and a warrant was issued for defendant‘s arrest.

c. The Herbert Parr Murder

According to his girlfriend, Linda Magner, Herbert Parr was a motorcycle

club wannabe. In late 1986 or early 1987, Parr met Joseph Martinez, a member of

the Freedom Riders, and through Martinez he met defendant, who sold marijuana

to Parr. Magner sensed that the two men disliked each other, an impression

confirmed by defendant‘s girlfriend Brandi Hohman, who said that defendant

usually used the derogatory term ―lop‖ to describe Parr.

Linda Magner bought Parr a Harley Davidson motorcycle. Parr was proud

of the motorcycle and liked showing it off to his Freedom Rider acquaintances,

including defendant. On the night of August 14, 1987, Parr told Magner he was

going to Joseph Martinez‘s house and would return in a couple of hours. She

never saw him or the motorcycle again. That night, Parr showed up at a party at

his brother David‘s house. A number of Freedom Riders were at the party,

including defendant and his friend Rex Sheffield, the man who had killed Frank

Ramos. When David went to bed between 1:00 a.m. and 3:00 a.m. that morning,

Parr was still at the party.

Defendant was selling drugs at the party. He had earlier told Brandi

Hohman he knew Herbert Parr was going to be there and that he wanted Parr‘s

motorcycle. He said he was going to wait for Parr at the party and intimidate him.

When defendant and Parr encountered each other, defendant made ―mean‖

comments to Parr, who seemed afraid of defendant. Hohman heard defendant and

Rex Sheffield talking about taking Parr‘s motorcycle for a ride. Sheffield became


offended when Parr bragged about knowing a member of the Hells Angels whom

Sheffield knew was dead.

Defendant and Parr disappeared into a back room for an hour and when

they emerged they acted like buddies. Defendant decided to move the party to the

home of his friend Laurel Beiling and invited Parr to come along. Brandi Hohman

and defendant left in his car while Parr followed on his motorcycle. On the drive

to Beiling‘s, defendant told Hohman he was going to beat up Parr and take his


There was no party when defendant, Hohman, and Parr arrived at Beiling‘s

residence; everyone there was asleep. Defendant, Hohman, and Parr went into

Beiling‘s bedroom, where they used methamphetamine. Hohman was sent to the

store. When she returned, Sheffield and his wife, Gail, had arrived. Defendant,

Sheffield, and Parr went into the backyard. Defendant asked Parr if he wanted his

last cigarette before they went out. Hohman and Gail Sheffield were told to go to

the front of the house. While they waited there, Hohman heard a high pitched

voice and strange noises that sounded like gurgling, coming from the backyard.

Defendant and Sheffield entered the house without Parr and went into a bathroom.

Hohman heard running water and defendant told her he and Sheffield had been

washing up. Defendant told Hohman to take Yoshi — a friend of Beiling‘s

staying at her house — to the store in Sheffield‘s car and keep him there for a

while. When they returned, Hohman and defendant went to the motel where they

were staying.

The next day, Laurel Beiling went into her backyard and noticed that a pile

of wood beside the shed had been ―knocked around.‖ Inside the shed she found

further disarray. She was rearranging a stack of lumber when she found a bloody

board with between 17 and 27 ―knife stabs‖ in it, made by a double-edged blade.

She also discovered that a double-edged utility knife she customarily wore on her


belt was missing. Beiling tried to call defendant but reached Brandi Hohman,

whom she told about the bloody board. When Hohman told defendant about the

call, he was angry that Beiling had mentioned the subject over the phone. Later

Beiling spoke to defendant, who told her to calm down and come to his house. He

apologized for leaving her house ―in a mess‖ and said he would clean it up. He

returned her knife, telling her it was clean and she had nothing to worry about.

Later that day, defendant went to Beiling‘s home and together they cleaned up the

board and the shed. As they did, defendant told her the less she knew, the better.

A day or so later, defendant brought a U-Haul truck to the motel at which

he and Brandi Hohman were staying. With him was Freedom Rider Steven

Dyson. Accompanied by Hohman, defendant drove the truck to a house in

Fremont because, he told her, ―[t]hey had to tear down [Parr‘s] bike.‖ Defendant

said another Freedom Rider was going to buy the dismantled motorcycle from

Sheffield and defendant. Hohman did not see Parr‘s motorcycle in the back of the

truck because defendant told her to remain in the cab, but she heard and felt a

heavy object being lifted and removed from the back. Defendant and the men who

were assisting him went into the garage and closed the door. Eventually,

defendant and Hohman returned to their motel.

Sometime after Laurel Beiling‘s call, defendant told Brandi Hohman he had

killed Parr in Beiling‘s backyard. He said he stabbed Parr, then cut his throat and

―step[ped] on him trying to push the blood‖ out of his body ―because he wasn‘t

dying.‖ Defendant acted out the killing for her. Defendant gave Beiling various

versions of Parr‘s death but in the most specific and detailed account he said he

had killed Parr.

Not long after the Fremont trip, defendant, still driving the U-Haul truck,

took Hohman to the house in San Jose defendant sometimes shared with Karen

Dolan and their children. It was there, he said, that he intended to ―bury [Parr].‖


At the house, defendant directed Hohman to the garage. She saw Steven Dyson

digging a hole in back of the garage. Defendant helped with the digging. When

he and Dyson finished, Dyson backed defendant‘s car — a white Cadillac — up to

the hole and opened the trunk. He and defendant removed Parr‘s body, lowered it

into the hole, and buried it. Later, defendant asked Laurel Beiling and his friend

Michael Robertson to buy baking soda and apples to put in his trunk to remove the

smell of Parr‘s body.

After defendant‘s arrest, police recovered Parr‘s body from behind the

garage of the San Jose residence. A search of defendant‘s car revealed baking

soda and dried apples in the trunk.

At trial, the pathologist who performed the autopsy on Parr‘s body testified

he had died after receiving 18 stab wounds.

d. The Michael Robertson Murder

Defendant was arrested for the Christopher Walsh robbery on April 18,

1987. A bail bondsman posted his bail on April 20; the bail was secured by

certificates of title to cars and motorcycles belonging to members of the Freedom

Riders. Defendant was scheduled to appear in court on October 7, but failed to do

so. Bail was forfeited and an arrest warrant issued. According to Laurel Beiling,

one of the Freedom Riders who put up vehicles as security for defendant‘s bail

was ―pissed‖ by defendant‘s failure to appear. Around the same time in early

October, defendant got into an accident while riding a motorcycle belonging to

Freedom Rider Joseph Martinez. Defendant hid the motorcycle at Beiling‘s house

and told her not to let Martinez know about the accident until he could repair the

damage to the vehicle. Martinez was very angry when he learned about the



As a result of these incidents, defendant began avoiding direct contact with

his fellow Freedom Riders and communicated with them through his close friend

Michael Robertson. Robertson and defendant were together almost every day and

Robertson sometimes shared a motel room with defendant and Brandi Hohman.

At some point, however, defendant began to suspect Robertson of being a snitch.

Defendant told Hohman that Robertson, who had recently been released from jail,

must have made a deal to insinuate himself into defendant‘s life and to provide

information on him in exchange for Robertson‘s release. Defendant told Hohman

snitches ―should be killed and that snitches breed snitches and their kids should be

killed too.‖ Matters came to a head on October 24, 1987, when defendant wrote a

note to Hohman about Robertson that said ―[t]he serious mother fucker has to go.‖

That same day he told Camolyn Ramsfield, Beiling‘s daughter, that he believed

Robertson was a ―federal snitch‖ and he was going to ―take [Robertson] out.‖ She

understood that to mean defendant planned to kill Robertson.

That evening, Brandi Hohman went with defendant to a bar in Mountain

View where they met two Freedom Riders, Greg Hosac and Rex Sheffield.

Defendant had asked them to meet him there to talk about whether Michael

Robertson had been lying about the messages he was carrying back and forth

between defendant and club members. After defendant talked to Hosac he told

Hohman that Hosac had confirmed his suspicion that Robertson ―had been lying to

him and the club.‖ Shortly afterwards, Robertson appeared at the bar, to

defendant‘s and Hosac‘s evident displeasure. Robertson did not join them but

remained at the other end of the bar. Later, defendant disappeared and Hohman

went looking for him. She found him behind the bar, talking to Sheffield.

Defendant told her to leave them. According to Hohman, when defendant and

Sheffield returned to the bar, they invited Robertson to join them and ―everybody

all of a sudden was best friends again.‖ Defendant invited Robertson to drive with


him and Sheffield to Santa Cruz to buy drugs. Robertson said he preferred to

return to the motel with Hohman, but defendant shamed him into going with a

remark about ―being one of them women.‖ Defendant, Sheffield, and Robertson

departed in a car Sheffield had borrowed from Joseph Martinez; the three men

were all in the front seat, with Robertson in the middle. Hohman returned to the

motel where she, defendant, and Robertson had been staying.

Around 8:15 p.m., Ellen McDonough and her husband were driving to

dinner on Highway 17 when she saw a car on the shoulder and a man running

around it. The man‘s hair was cut in an unusual style that looked like a horse‘s

mane; the hair ran down the middle of his head with the sides shaved. This was

defendant‘s hairstyle. When she and her husband returned from dinner, she saw a

sheriff‘s car and highway patrol car beside the vehicle. She told her husband to

stop so she could report what she had seen earlier. Santa Cruz County Deputy

Sheriff Joseph Hemingway was one of the officers at the scene. He observed

blood smears on the front seat, window, and doorjamb, as well as a blood-soaked

bedsheet on the passenger side floorboard. The car was registered to Gilbert

Martinez, who was the uncle of Joseph Martinez. Defendant‘s and Sheffield‘s

fingerprints were found in the car.

Around 3:00 a.m. on October 25, Brandi Hohman was awakened by

knocking at the door of the motel room. When she opened it, defendant and Rex

Sheffield came in. They were later joined by Greg Hosac. Hosac said the police

had found the car with blood in it and said ―something about they thought that

[defendant] had done it.‖ Hosac and Sheffield were discussing alibis when

defendant interrupted and ―told them they didn‘t have to tell the police anything.‖

At some point they realized that one of the motel room keys must still be on

Michael Robertson‘s body and they quickly vacated the room. Defendant and

Hohman went to Der Ghan, another motel.


At Der Ghan, defendant shaved his head so he was completely bald. He

told Brandi Hohman he had shot Michael Robertson in the head while Rex

Sheffield was driving because Robertson had said something that offended one or

both of them, and that after removing Robertson‘s body from the car he slit

Robertson‘s throat. When the car ran out of gas, he and Sheffield abandoned it

and walked to a restaurant, where they called a friend who came for them. Later

that day, Greg Hosac and his wife came to the motel and defendant acted out for

them ―shooting [Robertson] in the head and cutting [his] throat.‖ Defendant hid a

bag containing his and Sheffield‘s bloody clothes and his knife behind a ceiling

tile in the room.

The next day, defendant was arrested for failure to appear in the

Christopher Walsh case. Brandi Hohman called her mother to pick her up. She

took the bag from the ceiling and hid it in her mother‘s attic, where police

eventually recovered it.

e. Defendant’s Flight and Arrest

Following his arrest on October 26, defendant again made bail. A

Massachusetts native, defendant fled to the East Coast with his girlfriend Karen

Dolan, their three children, and his other girlfriend Brandi Hohman. Hohman was

arrested at an airport in Boston as she was attempting to return to California.

Dolan and her children stayed in Massachusetts with Dolan‘s sister, who

prevented defendant from communicating with Dolan. Angered by this, he told

Laurel Beiling in a phone call he was going to kill Dolan‘s sister and her four

children. Beiling, fearing for the children‘s lives, informed the Santa Cruz County

District Attorney‘s Office of defendant‘s location. On January 28, 1988,

defendant was arrested in a New York City hotel.


3. Defense Guilt Phase Case

As to the murder of Sharley Ann German, the defense offered evidence that

defendant was in Massachusetts when she was murdered and insinuated that she

was killed by Connie Ramos, the widow of Frank Ramos. The defense maintained

that Rex Sheffield killed Parr and Robertson,4 and presented evidence attacking

the credibility of prosecution witnesses Brandi Hohman and Laurel Beiling.

Another theme of the defense was that defendant was a braggart who took credit

for crimes he had not committed.

Defendant testified he was in Massachusetts and New Jersey when Sharley

Ann was killed on April 25, 1986, and he did not return to California until two

days before her funeral. He claimed he learned of her death in a phone call from

Karen Dolan. Dolan corroborated his alibi. While in Massachusetts, defendant

saw some old friends, three of whom testified they remembered seeing him in late

April. Defendant testified that when he returned to California, a friend named

Glenn Johnson picked him up at the San Francisco airport and drove him home.

Johnson testified that he picked defendant up three or four weeks before Johnson‘s

birthday, which falls on May 27.

The defense also presented evidence that Connie Ramos was investigated

for Sharley Ann‘s murder because of the feud between the two families following

Frank Ramos‘s death. Police investigated inconsistencies in Ramos‘s account of

her whereabouts the day Sharley Ann was killed. Police also received an

anonymous tip that a woman matching Ramos‘s description was observed entering

Sharley Ann‘s house the day of the murder, that sounds of a quarrel were heard,


Rex Sheffield was originally charged with the Parr and Robertson murders

along with defendant but their cases were severed. At the time of defendant‘s
trial, Sheffield had not been tried.


and the woman emerged carrying a rust-colored towel.5 A search warrant was

executed on Ramos‘s car and residence and police recovered a rust-colored towel

from the car. Police also removed knives from the residence.

Defendant denied telling Brandi Hohman that he had killed Sharley Ann.

He claimed she was lying to avoid being charged as an accessory to the Parr and

Robertson murders and because he had ended his relationship with her and

returned to Karen Dolan. He admitted talking to Theodore Grandstedt about the

murder but denied telling Grandstedt he had committed it. He testified, however,

that he had told both Hohman and Grandstedt about crimes he had not actually

committed to impress them. Defendant also denied having told Robert Fulton or

his wife, Marlene, that he had killed Sharley Ann. He claimed they were part of a

conspiracy against him by the Freedom Riders that developed after the Parr

murder. Finally, defendant testified that he came into possession of Sharley Ann‘s

car after her death because Geary loaned it to him.

Defendant acknowledged that he and Brandi Hohman had gone to a party at

David Parr‘s house attended by murder victim Herbert Parr, but he denied having

any animosity toward Herbert Parr and claimed there was friction between Parr

and Rex Sheffield, who was also at the party. Like Hohman, he testified that he

invited Parr to Laurel Beiling‘s house to continue the party and that at some point

Sheffield and his wife arrived. He asserted that Sheffield was upset with Parr and

wanted to beat him up because Parr claimed to know people he did not know.

Defendant said he defended Parr. He testified that he, Parr, and Sheffield went to

the backyard, where Parr began talking about a tattoo he claimed to have gotten in

Vietnam. Sheffield then ―snapped‖ and began stabbing Parr. Defendant started to


At least one officer investigating Sharley Ann‘s murder believed that Geary

had arranged for someone to make the anonymous call implicating Connie Ramos.


leave but then returned and saw Parr was dead. He admitted helping to remove

Parr‘s body from Beiling‘s residence, burying it, and renting a U-Haul truck for

Parr‘s motorcycle, which he dismantled.

Danny Payne, who had been in county jail with Sheffield, testified that

Sheffield told him about two murders he had committed, one of them involving a

person Sheffield shot and buried in a backyard.

Defendant testified that after the Parr murder, which occurred on August

14, 1987, he began to distance himself from the Freedom Riders. In September

1987, he met Michael Robertson, who had just been released from prison.

Robertson became his best friend and acted as his go-between with the Freedom

Riders, carrying messages back and forth. He and Robertson met with Rex

Sheffield — who at this point was not a Freedom Rider — and resolved their

differences. Defendant, however, remained wary of the Freedom Riders. On

October 24, he returned a page from Greg Hosac, president of the Freedom Riders,

who told defendant he had Karen Dolan and her (and defendant‘s) children and

wanted to talk to defendant. Defendant agreed to meet Hosac at J.W.‘s bar in

Mountain View.

Defendant went alone, but later both Michael Robertson and Rex Sheffield

separately showed up at the bar. Defendant resolved his differences with Greg

Hosac and then spoke to Sheffield. Defendant told Sheffield he had not told

Robertson anything about Parr‘s killing and burial. Sheffield said Robertson was

―no good.‖ Nonetheless, the three men — defendant, Sheffield and Robertson —

left the bar in Sheffield‘s car to drive to Santa Cruz to buy drugs. On the way, the

car stopped. Sheffield got out and looked under the hood. He returned to the car,

took a gun from beneath the driver‘s seat, and shot Robertson in the face.

Defendant was shocked and ―scared,‖ but he assisted Sheffield in moving the car

out of the road and disposing of Robertson‘s body.


Defendant denied telling Brandi Hohman to conceal his knife and clothes,

and he denied telling her that Robertson had died more easily than Sharley Ann.

The defense presented two witnesses who testified Hohman was promiscuous, a

drug user, and a liar. Another defense witness portrayed Laurel Beiling as

mentally unstable and untruthful, while still another testified Beiling told her

defendant killed Parr but later recanted.

4. Rebuttal

Using phone records, the prosecution presented evidence that in the week

up to and including April 10, 1986 (15 days before Sharley Ann German was

murdered), a number of collect telephone calls were made from the East Coast to

defendant‘s home in San Jose, and that on April 10, a collect call was made from a

public telephone at the San Francisco airport to defendant‘s home (indicating that

defendant may have returned from the East Coast on that date, and was trying to

obtain transportation back to his home), but that no long distance calls from the

East Coast were charged to defendant‘s telephone after April 10. Karen O‘Neal,

who had been married to defendant‘s friend John Mercuri, testified that defendant

threatened to kill her and members of her family if she laid claim to any marital

assets during the divorce proceedings. As a result, she signed away everything to

Mercuri. Paul Doty worked as a night clerk at a Massachusetts motel where

defendant and Karen Dolan were staying. The police arrived at the motel and took

Dolan and their children, defendant not being present. Defendant called Doty and

threatened to ―blow [his] brains out‖ because he evidently believed Doty had

informed the police of defendant‘s whereabouts. John Acord, a police officer

from defendant‘s home town of Wrentham, testified to a 1979 incident during

which defendant attempted to slash him with a knife, leading to defendant‘s arrest

and conviction for assault with a deadly weapon.


B. Penalty Phase

1. Prosecution Case

At the penalty phase, the prosecution primarily relied on evidence it had

presented at the guilt phase: the circumstances of the charged crimes (see § 190.3,

factor (a)) and other episodes involving defendant‘s use of force or threat of force,

including his threats to kill Karen O‘Neal and members of her family, his attack

on Christopher Walsh, and his threat to kill Paul Doty (id., factor (b)). The

prosecution presented a certified copy of defendant‘s 1979 felony conviction for

assault with a deadly weapon on Officer Acord.

2. Defense Case

Defendant presented evidence of his religious conversion, his positive

influence on other inmates while in custody, his harsh upbringing, and his

addiction to drugs and alcohol, as well as expert testimony that he suffered from a

form of fetal alcohol syndrome.

Reverend Lawrence Walsh, a jail chaplain, testified that defendant had

become a ―born again Christian,‖ with an understanding of his faith equivalent to a

first-year Bible college student. Defendant, he said, had taken Bibles to other

inmates and had been and would continue to be a positive influence on others.

Father Jim Mifsud, a Catholic priest, described defendant as ―probably the best

prisoner‖ he had ever seen.

Seven law enforcement officers testified about defendant‘s behavior while

in custody in this case. They said that he had behaved well, respected staff and

other inmates, and had not created any problems for staff. They predicted that he

would continue to benefit the inmate population. A fellow inmate testified that

defendant had a calming influence on the witness and other inmates. The program

manager for education programs at the jail testified that defendant had earned his

GED and high school diploma while in custody. James W. L. Park, a prison


consultant, testified that a person sentenced to life without possibility of parole

would be assigned to a level 4 or maximum security prison, which he described.

He believed defendant would be a useful member of prison society.

Vincent Schiraldi (a social worker with expertise in criminal justice), Gail

Stewart (defendant‘s elder half sister), and Ellen Muzzy (the first wife of

defendant‘s father) testified about defendant‘s family and upbringing. They

portrayed defendant‘s father as a violent man who physically abused his first wife,

defendant, and defendant‘s mother. As a result of his abuse, defendant‘s mother

became an alcoholic. Defendant‘s father pushed defendant into playing hockey,

lying about defendant‘s age so he could play in a semiprofessional hockey league.

When defendant was 14, he began to drink, with his father‘s permission, and to

come and go unsupervised. At 15, he dropped out of school and began to abuse

drugs. When he was 18, he moved out of the family home and left for California.

Dr. Eugene Schoenfeld, a psychiatrist, testified that, based on his

examination of defendant, he had found ―evidence of a type of fetal alcohol

syndrome‖ attributable to defendant‘s mother‘s drinking while pregnant with

defendant. In Dr. Schoenfeld‘s view, fetal alcohol syndrome might lead a person

to become antisocial.

3. Prosecution Rebuttal

The prosecution called witnesses from Massachusetts who had known

defendant and his family. They testified that defendant‘s father was a kind-

hearted person and that they never saw evidence of, nor did defendant ever

complain about, his father‘s violence.



A. Severance Motion

Defendant contends the trial court‘s denial of his motion to sever the three

murder counts constituted an abuse of discretion under state law and also violated

his federal constitutional right to due process.6 The claims lack merit.

1. Background

Defendant and Rex Sheffield were initially charged in the same information

with the Herbert Parr and Michael Robertson murders, while defendant alone was

charged with the murder of Sharley Ann German. Defendant and Sheffield each

moved to sever their cases, and defendant sought separate trials on each of the

three murder counts. At the hearing on the motion, defense counsel argued the

three murders were unconnected by time, by motive, or by the method of killing,

and that trying them together would prejudice defendant because the jury would be

influenced to his detriment by the number of murder counts.


As to this and other federal constitutional claims, defendant does not

specify which federal constitutional provisions he relies on, nor does he say
whether he raised the federal claims below. Nonetheless, as to each of his federal
constitutional claims, ―it appears that (1) the appellate claim is the kind that
required no trial court action to preserve it, or (2) the new arguments do not invoke
facts or legal standards different from those the trial court was asked to apply, but
merely assert that the trial court‘s act or omission, in addition to being wrong for
reasons actually presented to that court, had the legal consequence of violating the
United States and California Constitutions. To that extent, defendant‘s new
constitutional arguments are not forfeited on appeal. [Citations.] In the latter
case, no separate constitutional discussion is required or provided where rejection
of a claim that the trial court erred on the issue presented to that court necessarily
leads to rejection of any constitutional theory or ‗gloss‘ raised for the first time
here.‖ (People v. Contreras (2013) 58 Cal.4th 123, 139, fn. 17.) We apply this
principle throughout this opinion in considering federal constitutional claims that
were not advanced below.


The trial court severed defendant‘s case from Sheffield‘s but denied

defendant‘s request to sever the murder counts. It reasoned that all of the counts

were ―of the same class,‖ that they were ―related factually to some extent,‖ and

that ―in some respects the circumstances of each case [were] similar and some of

the evidence of one count [was] cross-admissible and interwoven with the others.‖

The court stated: ―The only real possibility of prejudice . . . would be from the

jury adding up counts against a defendant and letting the evidence of one murder

eliminate the possible reasonable doubt as to another . . . . [¶] But because of the

jury instructions to the contrary and the fact that this Court will pre-instruct the

jury as to adding up [sic] each count separately without regard to the verdicts on

the other counts, prejudice will be so diminished as to guarantee . . . defendant a

fair and separate trial on all counts charged against him.‖

Although the trial court did not preinstruct the jury regarding its obligation

to decide each count separately, its closing charge included this instruction: ―Each

count charges a distinct crime. You must decide each count separately. The

defendant may be found guilty or not guilty of any or all of the crimes charged.

Your finding as to each count must be stated in a separate verdict.‖

2. Discussion

― ‗ ―[B]ecause consolidation or joinder of charged offenses ordinarily

promotes efficiency, that is the course of action preferred by the law.‖ ‘ ‖ (People

v. Capistrano (2014) 59 Cal.4th 830, 848.) This preference is embodied in Penal

Code section 954, which states 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.‖

Here, the three murders and the related charges (conspiracy to commit murder and

robbery) are of the same class, because they are all ― ‗assaultive crimes against the

person.‘ ‖ (Capistrano, supra, at p. 848.) Thus, they were properly joined unless

the defense made such a ― ‗clear showing of potential prejudice‘ ‖ that the trial

court‘s denial of defendant‘s severance motion amounted to an abuse of discretion.

(People v. Vines (2011) 51 Cal.4th 830, 855.)

In determining whether a trial court‘s refusal to sever charges amounts to

an abuse of discretion, we consider four factors: (1) whether evidence of the

crimes to be jointly tried is cross-admissible; (2) whether some charges are

unusually likely to inflame the jury against the defendant; (3) whether a weak case

has been joined with a stronger case so that the spillover effect of aggregate

evidence might alter the outcome of some or all of the charges; and (4) whether

any charge carries the death penalty or the joinder of charges converts the matter

into a capital case. (People v. Geier (2007) 41 Cal.4th 555, 575.)

Defendant argues joinder was improper because the evidence of the three

murders was not cross-admissible. Cross-admissibility is not, however, a

precondition to joinder of charges. ―[S]ection 954.1 expressly provides that

‗where two or more accusatory pleadings charging offenses of the same class of

crimes or offenses have been consolidated, evidence concerning the one offense or

offenses need not be admissible as to the other offense or offenses before the same

trier of fact.‘ (Italics added.) Thus, ‗cross-admissibility is not the sine qua non of

joint trials.‘ ‖ (People v. Geier, supra, 41 Cal.4th at p. 575.) While the presence

of such evidence ― ‗is normally sufficient to dispel any suggestion of prejudice and

to justify a trial court‘s refusal to sever properly joined charges‘ ‖ (People v.


Merriman (2014) 60 Cal.4th 1, 38), the absence of cross-admissible evidence does

not bar joinder.

There was, in any event, significant cross-admissible evidence here. For

example, Brandi Hohman testified that defendant compared the murder of Sharley

Ann German with the Michael Robertson murder and told her Robertson had died

more easily. This evidence would have been admissible at separate trials of

defendant for each of these murders. Hohman also testified defendant told her that

after killing Robertson he removed the boots Robertson was wearing, which

defendant had loaned to him, because defendant had worn them when he killed

Herbert Parr. This evidence would have been admissible at separate trials of the

murders of Robertson and Parr. The three murders also involved a deeply

interwoven cast of characters and web of circumstances: Defendant, the victims

and the prosecution‘s witnesses were all in some manner connected to the

Freedom Riders and the subculture it represented. The events surrounding the

crimes and the crimes themselves took place within the territory in which the club

was active and within a time span that essentially paralleled defendant‘s

involvement with the club.

Moreover, defendant has not shown that he was prejudiced by joinder of

the charged offenses. None of the charges was more inflammatory than the others.

Defendant argues Sharley Ann was more sympathetic than the other two victims,

asserting that, unlike Parr and Robertson, she had no criminal record and was not

―entrenched in the ‗biker‘ lifestyle and familiar with the violence that

accompanied that lifestyle.‖ But there was no evidence that either Parr or

Robertson was a hardcore biker. Parr emerges from the trial testimony as

someone ridiculed by the Freedom Riders for his desperate desire to be taken

seriously as a biker and Robertson, whatever his criminal past, as slavishly

devoted to a man who deceived and killed him. Sharley Ann, who was married to


a Freedom Rider and participated in the club‘s activities, was certainly as

―entrenched in the ‗biker‘ lifestyle‖ as Parr and Robertson. Moreover, given her

husband‘s involvement in the Frank Ramos murder, she was ―familiar with the

violence that accompanied that lifestyle.‖ Accordingly, she was not necessarily a

more sympathetic victim than Parr or Robertson.

Nor do we agree with defendant that the evidence that he murdered Sharley

Ann was significantly weaker than the evidence of the other two murders.

Defendant repeatedly told witnesses he had killed Sharley Ann, describing facts

about the crime that the killer would know. Even if the Parr and Robertson cases

were relatively stronger in that there was more evidence of defendant‘s guilt

besides his admissions, the evidence that he murdered Sharley Ann was not so

weak that the jury would be unable to follow the instruction to consider the

evidence as to each count separately. And given that the evidence of each murder

charge was strong, we reject defendant‘s claim that joinder was improper because

this was a capital case. (People v. Ochoa (2001) 26 Cal.4th 398, 423 [―Even

where the People present capital charges, joinder is proper so long as evidence of

each charge is so strong that consolidation is unlikely to affect the verdict.‖].)

In short, the trial court, after evaluating the relevant factors, found no

reason to depart from the statutory preference in favor of joinder of the murder

charges. Because, for the reasons described above, defendant failed to make a

clear showing of potential prejudice, the court did not abuse its discretion under

state law when it denied defendant‘s motion to sever the charges.

Defendant maintains that joinder, even if proper under state law, resulted in

violation of his federal constitutional rights. In evaluating that claim, ―we must

. . . inquire whether events after the court‘s ruling demonstrate that joinder actually

resulted in ‗gross unfairness‘ amounting to a denial of defendant‘s constitutional

right to fair trial or due process of law.‖ (People v. Merriman, supra, 60 Cal.4th at


p. 46, italics omitted.) Here, defendant fails to point to any specific event or

events that would demonstrate gross unfairness. He argues that the court failed to

preinstruct the jury about its duty to consider each charge separately. This

omission, however, does not demonstrate unfairness. As defendant concedes, the

jury was so instructed at the end of the guilt trial and before it began its

deliberations, and defense counsel reiterated the point in his closing argument to

the jury. ―We presume the jury understood and followed the instruction.‖ (People

v. Homick (2012) 55 Cal.4th 816, 873.)

Defendant also asserts the trial court‘s instruction was insufficient to

prevent the jury from using evidence of one murder to find he had a predisposition

to commit the other murders, likening this case to Bean v. Calderon (9th Cir.

1998) 163 F.3d 1073. In Bean, the trial court denied the defendant‘s motion to

sever two counts of murder, each involving a residential robbery during which the

defendant allegedly murdered a female victim. The evidence of the defendant‘s

participation in the first murder was significantly stronger than his participation in

the second murder and, even though the evidence was not cross-admissible, the

prosecutor argued the modus operandi for both was the same, thus ―repeatedly

encourag[ing] the jury to consider the two sets of charges in concert.‖ (Bean,

supra, 163 F.3d at p. 1084.) Emphasizing the weakness of the evidence of the

second murder as compared to the first, the lack of cross-admissible evidence, and

the prosecutor‘s modus operandi argument, the Ninth Circuit concluded that

joinder of the charges violated the defendant‘s due process rights. (Id. at

pp. 1085-1086.) Given those circumstances, it rejected as inadequate the

instruction directing the jury to consider the evidence of each count separately.

(Id. at p. 1084.)

Here, by contrast, there was no joinder of a weak case to a strong case and

there was cross-admissible evidence. Although the prosecutor briefly noted in his


closing argument the similarities in the manner in which Robertson and Sharley

Ann were killed, he made no serious attempt to persuade the jury that these

similarities demonstrated defendant‘s guilt of the two crimes, nor did he suggest

any similarity between those crimes and the murder of Parr. And the jury‘s

acquittal of defendant on the charge that he conspired to murder Parr provides an

additional indication of its ability to consider the evidence of each charge

separately. Thus, he ―has not met his high burden of establishing that the trial was

grossly unfair and that he was denied due process of law.‖ (People v. Soper

(2009) 45 Cal.4th 759, 783.)

B. Jury Issues

1. Wheeler/Batson Motion

Defendant contends, as he did at trial, that the prosecutor improperly

exercised two racially based peremptory challenges against African American

prospective jurors, in violation of People v. Wheeler (1978) 22 Cal.3d 258

(Wheeler) and Batson v. Kentucky (1986) 476 U.S. 79 (Batson). We disagree.

a. Background

Voir dire of the prospective jurors began on March 19, 1991. Over the

course of the voir dire, 163 prospective jurors were questioned.

Defendant‘s challenge focuses on Prospective Jurors D.C. and R.A., both

African American men. In his juror questionnaire, D.C. noted his father had been

a police officer in Louisiana from the 1960s to the 1980s. In response to question

47, which asked about favorable or unfavorable experiences with law

enforcement, he wrote ―Ticket for expired liscence [sic] tags. 1 day exp[ired].‖

Question 55(J) asked whether the prospective juror strongly or somewhat agreed,

was neutral, or strongly or somewhat disagreed with the statement: ―I think that I

would require that the prosecution prove its case not only beyond a reasonable


doubt, as the law requires, but beyond all possible doubt and to an absolute

certainty before I would convict anyone of a serious crime.‖ D.C. checked the line

for ―Somewhat agree.‖ Question 58(B) asked whether the prospective juror

strongly or somewhat agreed, was neutral, or strongly or somewhat disagreed with

the statement: ―If someone brags about doing something wrong, he should be

punished — whether or not he actually did it.‖ D.C. checked the ―Strongly

disagree‖ line. In the space provided for an additional explanation, he wrote:

―Someone could be joking around[.] [H]ow do you know if they are telling the


D.C. was voir dired on April 4. The prosecutor asked if he held any

grudges because he was ticketed for his expired license plate one day after the

registration expired. D.C. said he did not, explaining: ―It was my fault. I was one

day — I was late.‖ The prosecutor inquired whether anything about his father‘s

career in law enforcement would make him ―tend to gravitate toward one side or

the other,‖ to which he responded, ―No, there isn‘t.‖ The prosecutor also asked a

number of other questions about his ability to be an impartial juror.

As to Prospective Juror R.A., in his juror questionnaire he checked

―Strongly agree‖ on question 55(J), which asked whether the prospective juror

would require more than proof beyond a reasonable doubt to convict. With

respect to personal information, R.A. indicated in response to question 11 that,

although his son lived with him, he did not know what educational level his son

had completed or his occupation, if any. For hobbies, he wrote: ―My hobby is

amateur magic.‖ R.A. had also been a state capitol police officer in Pennsylvania

for two years.

R.A. was voir dired on April 3. In response to a question from the trial

court about whether, if defendant was convicted, he could consider both life

without the possibility of parole and death, R.A. answered, ―Yes, but I would have


to be convinced pretty well,‖ presumably before voting for death. He went on to

say, however, that he would not automatically vote for one penalty over another.

During his questioning of R.A., the prosecutor focused on R.A.‘s understanding of

the burden of proof. With respect to R.A.‘s response to question 55(J), which

indicated he strongly agreed that the prosecutor would have to prove its case

beyond all possible doubt, the prosecutor asked: ―You recognize that that would

mean that your personal standard is higher than the law requires?‖ R.A. answered,

―No. But I just wouldn‘t want to have any doubt in my mind.‖ The prosecutor

read him the reasonable doubt instruction and said, ―We‘re not talking about being

convinced beyond all possible doubt. [¶] Do you see that difference?‖ R.A.

responded, ―I see the difference, but still I just have to feel satisfied with myself

that — ‖ The prosecutor broke in, saying, ―Okay. And that‘s understandable,‖ but

asked if R.A. could follow the law. He answered, ―Well, I would be inclined to

feel that I need to feel the certainty within myself, you know.‖

The trial court resumed questioning. To illustrate the reasonable doubt

standard, it gave the example of R.A. putting his garbage out on the night before

collection and returning from work to find it gone, and suggested that in this

scenario there would be no reasonable doubt the garbage collectors had collected it

even though it was also possible the garbage can had been knocked over and the

garbage eaten by a ―pack of wild dogs.‖ The court asked, ―Does that help you out

at all?‖ R.A. replied, ―Sure.‖ The prosecutor concluded his voir dire by asking

some additional questions about R.A.‘s ability to be impartial.

On April 29, selection of the 12 jurors and four alternates began. Twelve

prospective jurors were called to the jury box and the parties were permitted to

exercise peremptory challenges. D.C. was among the first 12 prospective jurors.

The prosecutor used his first peremptory challenge to excuse D.C. Both sides

exercised additional peremptory challenges and additional prospective jurors were


seated to replace those who had been excused. The prosecutor used his fifteenth

peremptory challenge to excuse R.A. At that point, defense counsel asked for a

sidebar conference to ―put on the record that the district attorney has excused the

second and only remaining black juror from the panel.‖ He continued, ―the

defendant is denied a representative cross-section. Those were the only two black

jurors in the panel out of the four panels called from this entire area. They both

have been eliminated by peremptories.‖ The prosecutor replied: ―Your Honor, I

would be more than happy to respond as to the reasons, but I don‘t think that it

would be appropriate to do it here.‖ He asked for an in camera conference. The

trial court denied his request and directed him to proceed.

The prosecutor prefaced his remarks with the observation, ―I think that it‘s

interesting [defendant] is objecting is that the People have excluded the two black

jurors and the People are conscientiously [sic] discriminating against a particular

class. [¶] I think [defendant] has been involved in white supremacy. If anything,

he would like not to have black members on this particular jury.‖7

Regarding D.C., the prosecutor said, ―[H]e is a 33-year-old black male,

married, three kids, renting. [¶] There were answers in his questionnaire that

talked about that his father was a police officer back in the 60‘s. However, he

recalled and spoke of the prejudice. He mentioned the license tag and so on. [¶]

But primarily there was a question which asked how he felt about if somebody

bragged about something, whether they could be punished — whether or not they

actually did it. He put down in response to that, in effect, that a bragger could

simply be joking about something. [¶] [Defendant‘s] defense in this particular

case is that his confessing to all three murders is that he was only bragging, he was


No evidence of defendant‘s participation in any White supremacy group

was presented at trial.


not actually telling the truth about what it was he was confessing to. And I didn‘t

like the answer in terms of a bragger could be joking. [¶] In connection with the

demographics in connection with some other answers, 55-J, he was talking about

strongly agreeing . . . proof should be more than beyond a reasonable doubt, to an

absolute certainty.‖

The court then asked about R.A. The prosecutor said: ―[R.A.] is a 59-year-

old black male, divorced with two kids, he rents. As I indicated, the other juror is

a renter. [¶] In terms of the demographics with not owning a home, and answer

11 on the questionnaire, the question about his children, and it was something in

the answer indicating that lack of knowledge or something about certain

circumstances regarding his children. [¶] [R.A.], for what it‘s worth, had a hobby

as an amateur magician, which, in any event, I don‘t like the situation of one of the

potential jurors being involved in magic, sleight-of-hand. [¶] He also indicated in

terms of the burden of proof involved, a phrase during the voir dire where he said,

‗I‘d have to be convinced pretty well,‘ and my feeling from that was, the context

of which it was said . . . something about the way that he said it in connection with

the questioning that he believed that he may require burden of proof over and

above what the law required. [¶] As far as the death penalty was concerned —

and I had another note down here. My impression was he wanted more than proof

beyond a reasonable doubt. [¶] In terms of the death penalty he was somewhat

equivocal. As I recall, I summarized rather than giving him a rating on the death

penalty how he felt. He was not sure of his feelings, except that he was

ambivalent about that. [¶] And quite frankly, I would like people a little bit more,

in this particular case, more indicative one way or the other how they feel about it

rather than a question mark, that can‘t indicate how they feel about it.‖


At the conclusion of the prosecutor‘s presentation, the trial court ruled:

―The court finds that the People are not intentionally excluding one class of

people, and the People‘s reasons for exercising the peremptory challenges are

valid reasons.‖

b. Discussion

―Both the federal and state Constitutions prohibit any advocate‘s use of

peremptory challenges to exclude prospective jurors based on race. [Citation.]

Doing so violates both the equal protection clause of the United States

Constitution and the right to trial by a jury drawn from a representative cross-

section of the community under article I, section 16 of the California

Constitution.‖ (People v. Lenix (2008) 44 Cal.4th 602, 612.)

―A three-step procedure applies at trial when a defendant alleges

discriminatory use of peremptory challenges. First, the defendant must make a

prima facie showing that the prosecution exercised a challenge based on

impermissible criteria. Second, if the trial court finds a prima facie case, then the

prosecution must offer nondiscriminatory reasons for the challenge. Third, the

trial court must determine whether the prosecution‘s offered justification is

credible and whether, in light of all relevant circumstances, the defendant has

shown purposeful race discrimination. [Citation.] ‗The ultimate burden of

persuasion regarding [discriminatory] motivation rests with, and never shifts from,

the [defendant].‘ ‖ (People v. Manibusan (2013) 58 Cal.4th 40, 75.)

Here, the trial court did not determine whether a prima facie case had been

established. Instead, after the prosecutor gave his reasons for excusing the

prospective jurors, the court found those reasons to be credible and ruled that the

defense had not demonstrated that they were based on race. Because the court

never decided whether defendant had made a prima facie showing that the


challenges were impermissible, the Attorney General correctly acknowledges that

the question whether he did so is moot. (See People v. Scott (2015) 61 Cal.4th

363, 387, fn. 1 [―When a trial court solicits an explanation of the strike without

first declaring its views on the first stage, we infer an ‗implied prima finding‘ of

discrimination and proceed directly to review of the ultimate question of

purposeful discrimination.‖]; People v. Williams (2013) 58 Cal.4th 197, 280-281.)

Thus, the sole question before us is whether the trial court correctly ruled that the

defense did not satisfy its burden of demonstrating discriminatory motivation at

the third stage of the Batson inquiry.

The prosecutor‘s ― ‗justification need not support a challenge for cause, and

even 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.) ―The proper focus of a Batson/Wheeler inquiry, of course, is

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

challenge, not on the objective reasonableness of those reasons. . . . All that

matters is that the prosecutor‘s reason for exercising the peremptory challenge is

sincere and legitimate, legitimate in the sense of being nondiscriminatory.‖

(People v. Reynoso (2003) 31 Cal.4th 903, 924.)

― ‗We review a trial court‘s determination regarding the sufficiency of a

prosecutor‘s justification for exercising peremptory challenges ― ‗with great

restraint.‘ ‖ [Citation]. We presume that a prosecutor uses peremptory challenges

in a constitutional manner and give great deference to the trial court‘s ability to

distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial

court makes a sincere and reasoned effort to evaluate the nondiscriminatory


justifications offered, its conclusions are entitled to deference on appeal.

[Citation.]‘ ‖ (People v. Lomax (2010) 49 Cal.4th 530, 571.)

Also relevant here, in light of defendant‘s appellate arguments, are

principles pertaining to comparative juror analysis, which, on a claim of race

based peremptory challenges, compares the voir dire responses of the challenged

prospective jurors with those of similar jurors who were not members of the

challenged jurors‘ racial group, whom the prosecutor did not challenge. (Miller-El

v. Dretke (2005) 545 U.S. 231, 241 (Miller-El) [―If a prosecutor‘s proffered reason

for striking a black panelist applies just as well to an otherwise-similar nonblack

who is permitted to serve, that is evidence tending to prove purposeful

discrimination to be considered at Batson‘s third step.‖].) ―[C]omparative juror

analysis is but one form of circumstantial evidence that is relevant, but not

necessarily dispositive, on the issue of intentional discrimination.‖ (People v.

Lenix, supra, 44 Cal.4th at p. 622.) Where, as here, the comparative analysis was

not made at trial, ―the prosecutor generally has not provided, and was not asked to

provide, an explanation for nonchallenges.‖ (People v. Jones (2011) 51 Cal.4th

346, 365.) Therefore, ―an appellate court must be mindful that an exploration of

the alleged similarities at the time of trial might have shown that the jurors in

question were not really comparable.‖ (Snyder v. Louisiana (2008) 552 U.S. 472,

483.) When a defendant asks for comparative juror analysis for the first time on

appeal, we have held that ―such evidence will be considered in view of the

deference accorded the trial court‘s ultimate finding of no discriminatory intent.‖

(People v. Lenix, supra, 44 Cal.4th at p. 624.)

i. D.C.

The prosecutor explained that he excused D.C. ―primarily‖ because of his

answer to question 58(B), which pertained to bragging. The prosecutor also gave


additional reasons: He was troubled by D.C.‘s reaction to being ticketed for a

vehicle registration violation and by his answer to question 55(J), in which he

somewhat agreed with the proposition that the prosecutor should be held to a

higher standard of proof than reasonable doubt. Defendant contends the

prosecutor‘s stated reasons for discharging D.C. were pretexts for racial

discrimination.8 We address his contentions regarding each of the prosecutor‘s


As noted, D.C. checked the line ―Strongly disagree‖ for the statement in

question 58(B): ―If someone brags about doing something wrong, he should be

punished — whether or not he actually did it.‖ He added in explanation:

―Someone could be joking around[.] [H]ow do you know if they are telling the

truth.‖ The prosecutor explained he was concerned about this answer because he

anticipated one line of the defense would be that defendant bragged about criminal

activity he had not actually committed. (This indeed proved to be the case.)

Defendant contends this explanation was equally applicable to several

White jurors whom the prosecutor did not challenge. We disagree. Although 12

of the seated jurors and alternates checked the same line in response to the

statement, only two of them, like D.C., offered an additional explanation: Seated

Jurors L.R. and M.A.S. L.R. wrote: ―bragging is just talking, not committing a


In his opening brief, defendant claims the prosecutor exercised his

peremptory challenge against D.C. in part because he was a renter, but his reply
brief does not mention this claim. In any event, we agree with the Attorney
General that, read in context, the prosecutor‘s reference to D.C.‘s status as a
renter, along with his marital and parental statuses, were descriptive and not
reasons for his challenge.


crime.‖9 M.A.S. wrote: ―People say a lot of things that they often don‘t mean or

to show off for others.‖

Because defendant did not raise the issue at trial, the prosecutor was not

given the opportunity to explain his reasons for dismissing D.C. while later

retaining L.R. and M.A.S.10 Under these circumstances, we have said that ―a

reviewing court need not, indeed, must not turn a blind eye to reasons the record

discloses for not challenging other jurors even if those other jurors are similar in

some respects to excused jurors.‖ (People v. Jones, supra, 51 Cal.4th at pp. 365-

366.) In conducting this inquiry, we bear in mind that comparative juror analysis

is not simply an exercise in identifying any conceivable distinctions among

prospective jurors. ―A per se rule that a defendant cannot win a Batson claim

unless there is an exactly identical white juror would leave Batson inoperable;

potential jurors are not products of a set of cookie cutters.‖ (Miller-El, supra, 545

U.S. at p. 247, fn. 6.) Rather, because the ultimate question before us concerns the


Defendant contends all 12 of the jurors who checked the line ―Strongly

disagree‖ to question 58(B) should be considered for purposes of comparative
analysis. But the prosecutor specifically referred to D.C.‘s written explanation:
―He put down in response to that, in effect, that a bragger could simply be joking
about something . . . . And I don‘t like the answer in terms of a bragger could be
joking.‖ It was the additional explanation, not the checked response, on which the
prosecutor relied. Only L.R. and M.A.S. gave comparable responses.

Because of the structure of the jury selection process in this case, the

prosecutor would not have had occasion to directly compare D.C. with L.R. and
M.A.S. when he exercised his challenge. Jury selection began when a group of 12
prospective jurors was seated in the jury box. When each side exercised a
challenge, other prospective jurors were called in random order to take the place of
the excused juror. D.C. was among the first 12 called to the jury box. Although
the prosecutor would likely have compared D.C. to other prospective jurors sitting
in the box at the time, L.R. and M.A.S. were not called into the box until later in
the process, and the prosecutor could not have known at the time he excused D.C.
when, or whether, L.R. and M.A.S. would ever be considered for selection.


prosecutor‘s motivations in exercising the challenge in question, we must ask

whether there were any material differences among the jurors — that is,

differences, other than race, that we can reasonably infer motivated the

prosecutor‘s pattern of challenges. (Cf. id. at p. 247 [finding ―strong similarities

as well as some differences‖ between a challenged African-American juror and

White jurors, and concluding that the differences were not ―significant‖ in light of

the record as a whole].)

Here, although all three prospective jurors gave similar responses to

question 58(B), their responses to question 55(J) — also cited by the prosecutor as

a reason for striking D.C. — were notably different. That question asked whether

the prosecutor should be held to a higher standard of proof than beyond a

reasonable doubt. While L.R. answered ―Somewhat Disagree‖ and M.A.S.

answered ―Strongly Disagree,‖ D.C. answered ―Somewhat Agree.‖ As the

prosecutor made clear in explaining his challenges against both D.C. and R.A., the

jurors‘ attitudes toward the reasonable doubt standard was an important

consideration that informed his decisions about how to use his peremptories.

The questionnaire also asked a series of questions regarding the prospective

jurors‘ feelings about the death penalty. Asked about his ―general feelings

regarding the death penalty,‖ D.C. responded: ―I feel it[‘]s fair according to the

case in which it is involved.‖ In response to a question asking about feelings

about the adage ―an eye for an eye,‖ D.C. responded: ―It is not one that I live by.‖

With respect to the adage ―thou shalt not kill,‖ D.C. responded: ―It is an adage or

commandment that I live by.‖ In response to the question concerning the

circumstances, if any, in which he believed the death penalty is appropriate, D.C.

responded: ―First degree murder that was something horrible, maybe multiple

murders when someone would kill several people for no reason but just doing it.‖


By contrast, L.R. described her general feelings about the death penalty as

follows: ―In some cases, when the defendant is proved definitely guilty, I think it

should happen. I can‘t see a person sitting in jail for the rest of their lives, but

only in extreme cases where there is no other way.‖ With respect to the adage ―an

eye for an eye,‖ L.R. responded: ―I don‘t believe in it. But I do believe in

punishment for people who cannot live in society without hurting others.‖ Asked

about the adage ―thou shalt not kill,‖ L.R. answered, ―If there is no other answer,

then I think we do society [and] the person a favor.‖ In response to the question

concerning the circumstances, if any, in which she believed the death penalty is

appropriate, L.R. responded: ―If there is no chance of this person becoming a

productive member of society.‖

Finally, M.A.S. described her general feelings about the death penalty as

follows: ―Necessary for extreme cases.‖ With regard to the adage ―an eye for an

eye,‖ M.A.S. responded: ―A barbaric concept.‖ With respect to the adage ―thou

shall not kill,‖ M.A.S. responded: ―The person who did the murder should have

thought of that before committing the crime.‖ In response to the question

concerning the circumstances, if any, in which she believed the death penalty is

appropriate, M.A.S. responded: ―Kidnapping, torture and rape — such as the

Central Park case, Manson case, treason that endangers the country, murder

depending upon the case.‖

While D.C.‘s responses to this series of questions revealed little about his

attitude toward the death penalty, other than a general view that it is ―fair‖ in some

cases, both L.R. and M.A.S. expressed their belief that the death penalty ―should

happen‖ and is ―necessary‖ in certain cases. D.C.‘s responses certainly did not

indicate that he would be an unfavorable juror, and the prosecutor expressed no

concern about these responses in explaining his reason for challenging D.C. But

the other jurors‘ expressions of affirmative support for the death penalty in certain


circumstances, the nature of which was further explored and clarified during voir

dire, would have made them more attractive ―in the eyes of a prosecutor seeking a

death sentence.‖ (Miller-El, supra, 545 U.S. at p. 247.) As the prosecutor

explained with respect to his decision to challenge R.A.: ―[Q]uite frankly, I would

like people a little bit more . . . indicative one way or the other how they feel about

[the death penalty,] rather than a question mark.‖

Finally, M.A.S.‘s questionnaire indicated she had close ties to a number of

people employed in law enforcement and criminal justice administration. Her

father had served as the Fresno County District Attorney for 17 years, and her son

had attended a Florida police academy and was awaiting an offer from the United

States Drug Enforcement Administration. She had longtime friends who were

prosecutors and also listed judges among her friends. In this respect, she and D.C.

were not entirely dissimilar: D.C.‘s father had served as a police officer. But the

nature and extent of M.A.S.‘s ties to law enforcement and criminal justice

administration, which prompted defense counsel to express concern about possible

pro-government bias during voir dire, would have differentiated M.A.S. from D.C.

from the prosecutor‘s perspective as well.

With respect to the prosecutor‘s second reason for striking D.C., the

prosecutor explained: ―There were answers in his questionnaire that talked about

his father was a police officer back in the 60‘s. However, he recalled and spoke of

prejudice. He mentioned the license tag and so on.‖ Defendant claims the

prosecutor‘s statement is evidence of pretext because D.C. said ―nothing about

prejudice in his questionnaire,‖ nor did he ― ‗recall[] and [speak] of prejudice‘ in

his voir dire.‖

Defendant is correct that D.C. did not speak of prejudice in either his

questionnaire or at voir dire, but the prosecutor‘s mistaken recollection that he had

done so does not establish that the prosecutor was acting with discriminatory


purpose. The prosecutor was attempting to reconstruct the voir dire of a juror that

had taken place more than two weeks earlier, in the midst of a voir dire process

that had lasted almost a month, over the course of which 163 prospective jurors

were questioned. His brief, passing reference to prejudice was linked to D.C.‘s

written response to the question on the jury questionnaire asking about

unfavorable experiences with law enforcement, in which D.C. noted he had been

cited for an expired registration only one day after the license plate tag had

expired. The prosecutor questioned D.C. about the incident and, while D.C. said

he held no grudge against the officer who had cited him, evidently the prosecutor

disbelieved that assurance.

The prosecutor, unlike this court, not only heard D.C.‘s words, but heard

his tone of voice and observed his body language as he denied bearing a grudge

against the officer who had cited him. ― ‗On appellate review, a voir dire answer

sits on a page of transcript. In the trial court, however, advocates and trial judges

watch and listen as the answer is delivered. Myriad subtle nuances may shape it,

including attitude, attention, interest, body language, facial expression and eye

contact.‘ ‖ (People v. Jones, supra, 51 Cal.4th at p. 363.) Even if the prosecutor‘s

concern about the citation, considered in isolation, might not provide a compelling

reason for a peremptory challenge, the prosecutor‘s mistaken reference to

prejudice alone does not establish that the prosecutor‘s stated reasons were

pretexts for discrimination. (See People v. Williams (2013) 56 Cal.4th 630, 661

[no Batson violation when the prosecutor excused a prospective juror for a

factually erroneous but race-neutral reason]; People v. Williams (1997) 16 Cal.4th

153, 189 [―a genuine ‗mistake‘ is a race-neutral reason‖].)

The prosecutor‘s third reason for exercising a peremptory challenge against

D.C. was his answer to question 55(J), which asked for his views on the statement:

―I think that I would require that the prosecution prove its case not only beyond a


reasonable doubt, as the law requires, but beyond all possible doubt and to an

absolute certainty before I would convict anyone of a serious crime.‖ Although

the prosecutor recalled that D.C. was ―talking about strongly agreeing,‖ D.C. in

fact responded that he ―somewhat agree[d]‖ with the statement. Defendant

contends that because two White jurors, D.R. and F.S., responded even more

emphatically to the question, checking the ―Strongly Agree‖ line, this justification

was also pretextual. But neither D.R. nor F.S. gave a written explanation in

answer to question 58(B) about bragging, as did D.C. The prosecutor‘s challenge

to D.C. was based primarily on that written explanation, and D.C.‘s views on the

burden of proof merely provided an additional ground for concern. Moreover,

F.S., unlike D.C., gave questionnaire answers indicating strong support for the

death penalty, stating that it was not imposed often enough on first degree

murders, again rendering her a more attractive juror from the standpoint of a

prosecutor seeking the death penalty.

In our view, the differences between D.C. and the other jurors were

significant, if not overwhelming, thus undermining defendant‘s assertion that the

prosecutor‘s stated reasons for excusing D.C. were merely pretextual. Moreover,

this case did not involve a situation in which ―[r]acial identity between the

defendant and excused person,‖ or between the victim and the majority of

remaining jurors, raises heightened concerns about whether the prosecutor‘s

challenge was racially motivated. (See Powers v. Ohio (1991) 499 U.S. 400, 416

[―Racial identity between the defendant and the excused person might in some

cases be the explanation for the prosecution‘s adoption of the forbidden

stereotype, and if the alleged race bias takes this form, it may provide one of the

easier cases to establish both a prima facie case and a conclusive showing that

wrongful discrimination has occurred.‖]; cf. People v. Johnson (2003) 30 Cal.4th

1302, 1326 [the fact that ―this case involves an African–American defendant


charged with killing ‗his White girlfriend‘s child‘ ‖ is ―obviously highly relevant‖

to the determination whether a prima facie case of discrimination existed],

overruled on other grounds in Johnson v. California (2005) 545 U.S. 162;

Wheeler, supra, 22 Cal.3d at p. 281 [―the defendant need not be a member of the

excluded group in order to complain of a violation of the representative cross-

section rule; yet if he is, and especially if in addition his alleged victim is a

member of the group to which the majority of the remaining jurors belong, these

facts may also be called to the court‘s attention‖].) Nor were there any other

indications that the prosecutor‘s pattern of challenges might have been racially

motivated. In the end, because the prosecutor‘s stated reasons for challenging

D.C. were both legitimate and credible, we uphold the trial court‘s ruling that the

prosecutor was not motivated by discriminatory intent when he challenged D.C.

ii. R.A.

According to defendant, the prosecutor offered five reasons for his

challenge to R.A. Defendant concedes that three of these — R.A.‘s lack of

knowledge about his children, his insistence that he would apply an excessively

high burden of proof on the prosecution, and his ambivalence on imposing the

death penalty — were race neutral and supported by the record. He argues,

however, that the other two — R.A.‘s status as a renter and the fact he listed as his

hobby that he was an amateur magician — were pretextual and masked

discriminatory intent.

When asked about R.A., the prosecutor prefaced his remarks by noting,

―[R.A.] is a 59-year-old black male, divorced with two kids, he rents. As I

indicated, the other juror is a renter.‖ Defendant seizes upon the italicized phrase,

which evidently refers to D.C., as proof that R.A.‘s renter status was advanced as a

justification for the peremptory challenge. But the prosecutor did not cite that as a


reason for his challenge to D.C. Moreover, unlike his other reasons for

challenging R.A., the prosecutor said nothing more about his renter status as a

justification for the challenge. Although his comment that R.A. was a renter was

admittedly somewhat ambiguous, we construe it as descriptive, not as a

justification for the challenge.

Defendant argues that the prosecutor‘s reliance on R.A.‘s interest in

amateur magic as a reason to challenge him, while race neutral, ―had nothing at all

to do with this case and [is] properly viewed as a pretext for discrimination.‖ We

disagree. ― ‗ ―[H]unches[,]‖ and even ―arbitrary‖ exclusion is permissible, so long

as the reasons are not based on impermissible group bias‘ [citation]. The basis for

a challenge may range from ‗the virtually certain to the highly speculative‘

[citation] and ‗even a ―trivial‖ reason, if genuine and neutral, will suffice.‘

[Citation.]‖ (People v. Chism (2014) 58 Cal.4th 1266, 1316; see, e.g., Purkett v.

Elem (1995) 514 U.S. 765, 769 [prospective juror challenged ―because he had

long, unkempt hair, a mustache, and a beard‖].) The prosecutor‘s sleight-of-hand

comment reveals some concern with a prospective juror who practiced illusion and

deception as a pastime. While certainly ―idiosyncratic‖ and even ―arbitrary‖

(People v. Lenix, supra, 44 Cal.4th at p. 613), the prosecutor‘s mention of his

aversion to having an amateur magician on his jury does not establish that he acted

with discriminatory intent, particularly in light of his other, concededly legitimate,

reasons for exercising the challenge.

Accordingly, the trial court properly denied defendant‘s Batson/Wheeler



2. Excusal of Juror K.N.

Defendant contends the trial court improperly discharged Prospective Juror

K.N. after it concluded her difficulty in applying the death penalty would

substantially impair her ability to serve as a juror. The contention is without merit.

― ‗Under Wainwright v. Witt (1985) 469 U.S. 412, 424 . . . , we consider

whether the record fairly supports the trial court‘s determination that [a

prospective juror‘s] views on the death penalty would have prevented or

substantially impaired her performance as a juror.‘ [Citation.]‖ (People v. Bryant,

Smith and Wheeler (2014) 60 Cal.4th 335, 399.) ―A trial court may excuse a

prospective juror for cause if no reasonable possibility exists the prospective juror

could consider imposing the death penalty. [Citation.] The trial court has broad

discretion in making this determination. [Citation.] On appeal, we will uphold the

trial court‘s ruling if the record ‗fairly support[s]‘ it, ‗accepting as binding the trial

court‘s determination as to the prospective juror‘s true state of mind when the

prospective juror has made statements that are conflicting or ambiguous.

[Citations.]‘ Prospective jurors often cannot give unmistakably clear answers as to

their ability to impose the death penalty, and the trial court, aided by its

assessment of demeanor, is in the best position to assess state of mind.‖ (People v.

Manibusan, supra, 58 Cal.4th at p. 60, fn. omitted.)

Applying these principles, we find no abuse of discretion in the trial court‘s

decision to excuse Prospective Juror K.N. In her questionnaire, K.N.

demonstrated her discomfort with imposing the death penalty, writing that such a

decision and the ―the serious nature of this trial . . . [was] beyond what [she]

wanted to deal with.‖ She expressed the same reservations during initial

questioning by the court, saying she would have ―a real hard time with the second

phase of the [trial] having to make that decision.‖ She acknowledged that

intellectually she could consider both penalties, but commented: ―It‘s not


something that I feel very comfortable with and it‘s something that I would have

to live with the rest of my life.‖ She told the prosecutor, ―If I find one in my

house, I don‘t kill a spider. I catch them and take them outside. I don‘t want to

have anything to do with another person‘s death.‖ Her voice shook as she was

being examined about the penalty phase and when she left the courtroom she

slammed the door in apparent anger. Three days later, she asked the trial court to

excuse her, reporting that the prospect of serving on the jury had left her unable to

sleep the night following her voir dire. The court asked if her ―emotional state‖

would make it difficult for her to ―pay attention‖ to the trial. She replied, ―Well, if

Monday night was any indication, I probably slept about four hours, you know,

[and] I probably will be extremely exhausted.‖ After noting her physical

responses to voir dire — the shaky voice and sleeplessness — the court found that

her emotional state would substantially impair her ability to serve as a juror, and

that service on the jury ―would be detrimental to the mental and/or physical well-

being of the juror‖ and ―to a fair trial to both sides‖ because ―her emotional state

would prevent her from hearing all the evidence and giving the proceedings the

proper attention required.‖ She was excused.

K.N.‘s answers regarding her ability to vote for a death sentence expressed

significant hesitancy. Her reports of the emotional toll the mere prospect of

serving on the jury was taking on her reasonably caused the trial court to have

concerns about her ability to concentrate and to render a fair verdict. Thus, the

court acted well within its discretion in excusing her.


C. Guilt Phase Issues

1. Instructional Claims

a. Alleged Failure to Instruct on Assault as Lesser Included

Offense to Robbery

Defendant contends the trial court erred by failing to instruct the jury on

assault (§ 240) as a lesser included offense to the robbery of Herbert Parr, charged

as count four, which provided the predicate for the felony-murder special

circumstance alleged in connection with Parr‘s murder. Defendant theorizes that,

under other instructions, the jury could have concluded he was too intoxicated to

have formed the specific intent for robbery but found he had the general intent for


―We have applied two tests in determining whether an uncharged offense is

necessarily included within a charged offense: the ‗elements‘ test and the

‗accusatory pleading‘ test. Under the elements test, if the statutory elements of the

greater offense include all of the statutory elements of the lesser offense, the latter

is necessarily included in the former. Under the accusatory pleading test, if the

facts actually alleged in the accusatory pleading include all of the elements of the

lesser offense, the latter is necessarily included in the former.‖ (People v. Reed

(2006) 38 Cal.4th 1224, 1227-1228.) Here, defendant concedes that assault is not

a lesser included offense of robbery under the statutory elements test, because a

robbery can be committed by ―force or fear‖ (§ 211, italics added), and a robbery

committed by fear does not involve the use of force, which is an element of the

crime of assault. (People v. Wolcott (1983) 34 Cal.3d 92, 99-100.) But the

accusatory pleading charged defendant with robbery by ―force and fear.‖

According to defendant, this means that an element of force was necessary to the

robbery conviction, and that assault was therefore a lesser included offense of the

robbery under the accusatory pleading test.


Preliminarily, defense counsel stated at trial that, as a tactical decision, the

only lesser included offense instructions he sought with respect to the robbery

charge were regarding receiving stolen property. Accordingly, the doctrine of

invited error bars his claim. (People v. Horning (2004) 34 Cal.4th 871, 905

[― ‗[A] defendant may not invoke a trial court‘s failure to instruct on a lesser

included offense as a basis on which to reverse a conviction when, for tactical

reasons, the defendant persuades a trial court not to instruct on a lesser included

offense supported by the evidence.‘ ‖].) In any event, the claim is without merit,

as explained below.

In People v. Parson (2008) 44 Cal.4th 332, as in this case, the accusatory

pleading charged the defendant with robbery by force and fear. Like defendant

here, the defendant in Parson argued that, under the accusatory pleading test, the

robbery ―necessarily included the lesser offense of assault‖ and that the trial court

erred in not instructing on that offense. (Id. at p. 349.) Declining to address the

Attorney General‘s argument that assault is not included within the crime of

robbery, even when the pleading alleges a robbery by force and fear (see People

v. Wright (1996) 52 Cal.App.4th 203), we concluded that the trial court was not

required to instruct on assault in any event because there was no substantial

evidence that the defendant was guilty only of that offense, and not of the greater

offense of robbery. (Parson, supra, 44 Cal.4th at p. 350.)

The same reasoning applies here. The only evidence regarding defendant‘s

asserted intoxication was Brandi Hohman‘s testimony that at Laurel Beiling‘s

house defendant used methamphetamine and defendant‘s testimony that he also

consumed an unspecified amount of tequila and beer at Beiling‘s. There was no

evidence that defendant was or appeared to be intoxicated at any point before

Parr‘s murder, particularly not to the extent that he might not have formed the

intent to deprive Parr of his property. There was evidence, however, that


defendant wanted Parr‘s motorcycle, was waiting for Parr at a party, allayed Parr‘s

fear of him by acting in a friendly manner toward him after initially being hostile,

invited Parr to Beiling‘s house, armed himself with Beiling‘s knife and, with Rex

Sheffield, led Parr out to Beiling‘s backyard where he stabbed Parr to death and

disposed of the body by putting it in his car trunk after making sure that Hohman

had removed a potential witness — Yoshi — from Beiling‘s residence. There was

additional evidence that after the murder, defendant took Parr‘s motorcycle,

dismantled it, and sold it for parts. Thus, as in Parson, there was no evidence

from which the jury could have concluded that defendant was so intoxicated that

he lacked the intent to rob, and the trial court was not obligated to instruct on


b. CALJIC No. 2.11.5

Defendant contends the trial court erred by giving CALJIC No. 2.11.5, and

asserts the error violated his Fifth, Sixth and Eighth Amendment rights. We reject

the claim.

As given here, CALJIC No. 2.11.5 stated: ―There has been evidence in this

case indicating that a person or persons other than defendant was or may have

been involved in the crime for which defendant is on trial. [¶] There may be

many reasons why such person or persons is not here on trial. Therefore, do not

discuss or give any consideration as to why the other person or persons is not

being prosecuted in this trial or whether he or she has been or will be prosecuted.

Your sole duty is to decide whether the People have proved the guilt of the

defendant on trial.‖

Defendant contends this instruction was faulty because it prevented the jury

from evaluating Brandi Hohman‘s credibility and because it undercut his third

party culpability defense, particularly with respect to evidence that Connie Ramos


killed Sharley Ann German. Because defendant objected to the instruction only

on the latter ground at trial, the Attorney General asserts the initial argument is

forfeited. Defendant responds that he did object to the instruction, albeit not

specifically as it applied to Hohman, and he argues that in any event no objection

was required because the instruction affected his substantial rights. (§ 1259 [―The

appellate court may . . . review any instruction given, refused or modified, even

though no objection was made thereto in the lower court, if the substantial rights

of the defendant were affected thereby.‖].) Without deciding the forfeiture

question, we address his claim on the merits. (See People v. Champion (1995) 9

Cal.4th 879, 908, fn. 6.)

Brandi Hohman testified under a grant of immunity. Defendant claims the

instruction prevented the jury from considering that fact in assessing her

credibility. We rejected a similar claim in People v. Price (1991) 1 Cal.4th 324

(Price). There, the defendant argued that the trial court should not have given

CALJIC No. 2.11.5, contending the ―instruction erroneously told the jurors they

could not discuss or consider the fact that prosecution witnesses had been granted

immunity.‖ (Price, at p. 446.) We observed that a challenged instruction cannot

be read in isolation but must be ―considered in light of the entire charge.‖ (Ibid.)

Reading CALJIC No. 2.11.5 in that context, we concluded that ―a reasonable juror

would not have understood it as precluding the jury from considering the

immunity granted to prosecution witnesses in assessing the credibility of those

witnesses.‖ (Price, at p. 446.)

Price explained: ―The purpose of the challenged instruction is to

discourage the jury from irrelevant speculation about the prosecution‘s reasons for

not jointly prosecuting all those shown by the evidence to have participated in the

perpetration of the charged offenses, and also to discourage speculation about the

eventual fates of unjoined perpetrators. [Citation.] When the instruction is given


with the full panoply of witness credibility and accomplice instructions, as it was

in this case, a reasonable juror will understand that although the separate

prosecution or nonprosecution of coparticipants, and the reasons therefor, may not

be considered in the issue of the charged defendant‘s guilt, a plea bargain or grant

of immunity may be considered as evidence of interest or bias in assessing the

credibility of prosecution witnesses. [Citation.] Although the instruction should

have been clarified or omitted [citations], we cannot agree that giving it amounted

to error in this case.‖ (Price, supra, 1 Cal.4th at p. 446.) We have applied Price‘s

reasoning to reject similar challenges to CALJIC No. 2.11.5 in several other cases

involving the testimony of an immunized witness. (People v. Valdez (2012) 55

Cal.4th 82, 148-149; People v. Brasure (2008) 42 Cal.4th 1037, 1055-1056;

People v. Lawley (2002) 27 Cal.4th 102, 162-163; People v. Cain (1995) 10

Cal.4th 1, 34-35.)

As in those cases, defendant‘s jury was further instructed with CALJIC No.

2.20, which listed the criteria for the assessment of witness credibility, including

the existence of any ―bias, interest, or other motive‖ on the part of the witness.

The jury was also instructed it could consider evidence of a witness‘s character for

honesty. (Defendant introduced evidence that Hohman was not truthful.)

Significantly, because Hohman testified that defendant admitted killing the three

victims, the jury was also instructed that ―[e]vidence of an oral confession [or oral

admission] of the defendant should be viewed with caution.‖ (CALJIC No. 2.70

(5th ed. 1988).) Defendant notes that — unlike the cases cited above — no

instructions were given on accomplice testimony. Nevertheless, when we consider

CALJIC 2.11.5 in conjunction with the other instructions that were given, we find

that it is not reasonably likely that the jury construed the instruction as barring it

from considering that Hohman had been given immunity when it evaluated her


testimony. (See People v. Clair (1992) 2 Cal.4th 629, 663 [―reasonable

likelihood‖ standard applies when evaluating ambiguous instructions].)

Defendant‘s claim that instructing the jury pursuant to CALJIC No. 2.11.5

undercut his third party culpability defense is similarly meritless. As noted, the

purpose of the instruction is to prevent the jury from speculating as to why other

participants are not on trial with the defendant or their eventual fates. Nothing in

the instruction prohibits a jury from considering evidence that such participants,

and not the defendant, committed the charged crimes.

c. Alleged Failure to Instruct on Target Offense in Conspiracy


Defendant contends the trial court erred by failing to define the target

offense in connection with its conspiracy instructions, specifically CALJIC No.


Count two of the information charged defendant with conspiracy to murder

Herbert Parr; count four charged him with the murder of Parr. Count five charged

defendant with conspiracy to murder Michael Robertson; count six charged him

with the murder of Robertson. Pursuant to CALJIC No. 6.10, the trial court

instructed the jury that ―[a] conspiracy is an agreement entered into between two

or more persons with the specific intent to agree to commit the public offense of

murder and with the further specific intent to commit such offense followed by an

overt act committed in this state by one or more of the parties for the purpose of

accomplishing the object of the agreement. Conspiracy is a crime.‖

The trial court further instructed the jury, pursuant to CALJIC No. 6.11

(1989 rev.) (5th ed. 1988): ―A member of a conspiracy is not only guilty of the

particular crime that to his knowledge his confederates are contemplating

committing, but is also liable for the natural and probable consequences of any act

of a co-conspirator to further the object of the conspiracy, even though such an act


was not intended as a part of the original plan and even though he was not present

at the time of the commission of such act. [¶] You must determine whether the

defendant is guilty as a member of a conspiracy to commit the crime originally

contemplated, and if so, whether the crimes alleged in Counts four and six were a

natural and probable consequence of the originally contemplated criminal

objective of the conspiracy.‖

During deliberations, the jury sent the trial court a note pertaining only to

count two — the charge that defendant conspired to murder Parr — that read: ―If

the jury decided that there was a conspiracy to commit a crime other than murder

and the natural result of that other crime was murder, is the Defendant guilty of

conspiracy even though that other crime is not specified in the charges[?] (The

Information Document[.]) Reference: Count #2. The other crime would be

assault.‖ The court responded: ―No. The defendant can only be convicted of

crimes for which he has been charged in the information; or of those that are lesser

offenses for which the court has instructed you.‖ As previously noted, the jury

ultimately acquitted defendant of conspiring to murder Parr.

Defendant contends the trial court erred by failing to specify the ―crime

originally contemplated‖ referred to in CALJIC No. 6.11 and that the jury‘s later

question showed that the court‘s failure to do so allowed the jury to engage in

―unguided speculation‖ regarding the nature of that crime. He argues that the

jury‘s question shows that it was willing to engage in such speculation not only on

the conspiracy charge that was the subject of the jury‘s question, but also on the

charges that defendant murdered Parr and Robertson.

Preliminarily, the Attorney General contends that defendant forfeited the

claim by not asking the trial court to specify a target crime for the jury. As noted

below, defendant relies on People v. Prettyman (1996) 14 Cal.4th 248

(Prettyman), where we said the trial court had a sua sponte duty to instruct on


target offenses in connection with aider and abettor liability. (Id. at p. 266.) If

Prettyman applied here in the manner defendant claims, then the trial court would

have had a similar sua sponte duty to identify a predicate offense when it

instructed pursuant to CALJIC No. 6.11, and defendant could not forfeit the claim

by failing to ask the court to do so. The claim, however, fails on its merits.

In Prettyman, we held that when the prosecutor relies on the natural and

probable consequence doctrine as to a defendant charged as an aider and abettor,

the trial court must give an instruction ― ‗identify[ing] and describ[ing] the target

crimes that the defendant might have assisted or encouraged.‘ ‖ (Prettyman,

supra, 14 Cal.4th at p. 254.) Defendant argues that the same principles should

apply when, as here, a defendant is prosecuted as a conspirator rather than an aider

and abettor.

We rejected a similar argument in People v. Valdez, supra, 55 Cal.4th 82

(Valdez). In Valdez, the defendant was charged with murder but was not charged

separately with conspiracy. The trial court instructed the jury on conspiracy as a

theory of liability for murder, and it defined ―conspiracy‖ as ― ‗an agreement

between two or more persons with the specific intent to agree to commit a public

offense such as murder, and with the further specific intent to commit such

offense.‘ ‖ (Id. at p. 151.) The jury convicted the defendant of murder. On

appeal, the defendant argued the italicized phrase was ambiguous as to the object

of the conspiracy and ―impermissibly allowed the jury to convict him based on a

‗generalized belief that [he] intended to assist and/or encourage unspecified

nefarious conduct.‘ ‖ (Ibid.) Like defendant here, he relied on Prettyman.

In Valdez, we rejected the defendant‘s analogy to Prettyman, explaining:

―Even were defendant correct that Prettyman‘s holding applies to instructions on

conspiracy — a question we do not answer— that holding would not aid him. We

stressed in Prettyman that a court‘s sua sponte duty to identify and describe target


crimes ‗is quite limited.‘ [Citation.] It arises only when ‗uncharged target

offenses form a part of the prosecution‘s theory of criminal liability and

substantial evidence supports the theory.‘ [Citation.] Moreover, even when the

duty arises, the trial court ‗need not identify all potential target offenses supported

by the evidence, but only those that the prosecution wishes the jury to consider.‘

[Citation.] In this case, the only target offense under the prosecution‘s theory of

criminal liability was murder, and that was a charged offense. The prosecution

never argued any other target offense and the evidence overwhelmingly pointed

only to that target offense. On this record, the trial court‘s instruction sufficed.‖

(Valdez, supra, 55 Cal.4th at p. 152.)

Here, defendant was charged with two conspiracies to commit specific

murders, as well as with the murders that were the objects of the alleged

conspiracies. He was not charged with any other crimes that he might not have

contemplated, but might have been the natural and probable consequence of the

crimes agreed to in the conspiracies. As in Valdez, ―the only target offense under

the prosecution‘s theory of criminal liability was murder, and that was a charged

offense.‖ (Valdez, supra, 55 Cal.4th at p. 152.) Thus, Prettyman‘s requirement

that the jury be instructed on the target crime or crimes in assessing aiding and

abetting liability is inapplicable. Defendant‘s related claim that the trial court was

required to define the phrase ―originally contemplated criminal objective‖ in the

instruction is even less compelling. The jury was instructed that defendant was

charged with conspiracy to commit murder. There was no other criminal objective

to which the language in CALJIC No. 6.11 could have referred.

Lastly, defendant argues the jury‘s note shows it ―engaged in ‗unguided

speculation‘ ‖ in connection with CALJIC No. 6.11 that may have led it to convict

him of the charges that he murdered Parr and Robertson. We disagree. The note

pertained only to the charge that defendant conspired to murder Parr — a charge


on which the jury ultimately found him not guilty — and gave no indication that

the jury was attempting to apply the natural and probable consequences rule to the

two murder charges.

d. Uncharged Acts Instruction

Over defendant‘s objection, the trial court allowed the prosecution to

present evidence that defendant had assaulted Christopher Walsh and robbed him

of his motorcycle. Prior to trial, the prosecutor explained his theory of the

relevance of the evidence. ―[T]he People‘s position is that [it] is relevant . . . in

terms of [defendant‘s] subsequent conduct with Mr. Parr. When he wanted

[Parr‘s] motorcycle, he had learned from Christopher Walsh . . . that if [you] leave

a victim alive they can report it to the police, and [Parr] was subsequently killed

when [his] motorcycle was taken.‖ Walsh was called and testified to the incident.

In connection with Walsh‘s testimony, the jury was instructed with

CALJIC No. 2.50 and CALJIC No. 2.50.1. At the time of trial, CALJIC No. 2.50

(5th ed. 1988) stated: ―Evidence has been introduced for the purpose of showing

that the defendant committed [a crime] [crimes] other than that for which [he] . . .

is on trial. [¶] 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 by you only for the limited purpose of determining if it tends to

show: [¶] . . . [¶] [A motive for the commission of the crime charged;] [¶] . . .

[The crime charged is part of a larger continuing plan, scheme or conspiracy;] [¶]

[The existence of a conspiracy]. [¶] For the limited purpose for which you

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.‖ (Italics added.)


At the time of trial, CALJIC No. 2.50.1 (5th ed. 1988) stated: ―Within the

meaning of the preceding instruction, such other crime or crimes purportedly

committed by [a defendant] must be proven by a preponderance of the evidence.

You must not consider such evidence for any purpose unless you are satisfied that

[the] . . . defendant committed such other crime or crimes. [¶] The prosecution

has the burden of proving these facts by a preponderance of the evidence.‖

In his closing argument, the prosecutor told the jury that the Walsh

evidence showed that defendant had ―a common scheme or plan‖ of taking

motorcycles by force, first from Walsh and then from Parr. He also argued that,

because Walsh had reported the crimes to police, defendant had learned from that

experience he could not leave his victim — Parr — alive. He explained: ―I

submit . . . that from this particular evidence, you can draw the legitimate

conclusion that the Walsh situation, no doubt, was fresh on [defendant‘s] mind.

[¶] He knew what happened when he left a live victim with Christopher Walsh.

Christopher Walsh is alive today, and because of the fact he‘s alive today, I

submit, in [defendant‘s] mind, is one of the reasons Herbert Parr is not.‖

Focusing on the italicized phrase quoted above from CALJIC No. 2.50,

defendant contends that phrase led the jury to believe it could convict him of

conspiracy to murder Michael Robertson simply by finding he had assaulted and

robbed Christopher Walsh by a preponderance of the evidence.

Preliminarily, we agree with the Attorney General that defendant has

forfeited this claim by failing to ask the trial court to clarify the instruction of

which he now complains. (People v. Lang (1989) 49 Cal.3d 991, 1024.) As

demonstrated below, all parties clearly understood that the uncharged crimes

evidence, and therefore the instructions on that point, pertained solely to the Parr

murder, not to the charges involving Robertson. Had defendant wished, he could


have sought to make that explicit in the instructions, but he failed to seek such

clarification. Accordingly, the claim is forfeited. It is also without merit.

―The relevant inquiry [when instructional error is claimed] is whether, ‗in

the context of the instructions as a whole and the trial record, there is a reasonable

likelihood that the jury was misled to defendant‘s prejudice.‘ [Citation.] Also,

‗ ― ‗we must assume that jurors are intelligent people and capable of understanding

and correlating all jury instructions which are given.‘ ‖ ‘ ‖ (People v. Sattiewhite

(2014) 59 Cal.4th 446, 475; see People v. Thomas (2011) 52 Cal.4th 336, 356 [―A

single jury instruction may not be judged in isolation, but must be viewed in the

context of all instructions given.‖].)

The trial court defined the elements of conspiracy for the jury and described

the requirement that the prosecution prove defendant‘s guilt beyond a reasonable

doubt. It also told the jury that whether an instruction applied depended on its

factual findings and that it should disregard any inapplicable instructions. As

noted above, counsel and the court recognized that the other crimes evidence

pertained solely to the prosecutor‘s claim that it showed a common plan with

respect to the robberies of Walsh and Parr. The prosecutor explicitly argued to the

jury that this was its relevance. At no time and nowhere in the record was any

connection drawn between the Walsh incident and count five, which alleged

conspiracy to murder Robertson. Thus, there is not a reasonable likelihood that

the jury applied CALJIC No. 2.50 in the manner that defendant now claims, and

his contention must be rejected.

e. CALJIC No. 2.01

Defendant contends that CALJIC No. 2.01, the standard instruction guiding

the jury‘s consideration of circumstantial evidence, was improperly given in this

case because it did not also apply to direct evidence. We have frequently rejected


this claim. As we have explained: ―[D]irect evidence, unlike circumstantial

evidence, does not generate conflicting inferences. ‗ ―Circumstantial evidence

involves a two-step process—first, the parties present evidence and, second, the

jury decides which reasonable inference or inferences, if any, to draw from the

evidence—but direct evidence stands on its own. So as to direct evidence no need

ever arises to decide if an opposing inference suggests innocence.‖ ‘ [Citations.]‖

(People v. Lucas (2014) 60 Cal.4th 153, 298-299.)

Defendant asserts his case is different because he presented evidence that

he boasted about committing crimes he had not committed. Therefore, he claims,

his is ―the extremely rare case‖ where the direct evidence on which the

prosecution relied — his confessions that he committed the crimes — was

susceptible of a reasonable explanation that did not point to guilt. He argues that

―because there is a reasonable likelihood that the jury applied the instructions so as

to permit it to return a guilty verdict based on direct evidence even if that evidence

was reconcilable with innocence,‖ his rights under the Fifth and Sixth

Amendments to the federal Constitution were violated. We disagree.

Defendant seems to assume there was no other basis on which the jury

could have credited his ―bragging‖ evidence except by application of CALJIC No.

2.01. This is inaccurate. Whether the jury believed defendant confessed to the

crimes was, fundamentally, a credibility question. On that issue, the jury was

instructed at length about how to evaluate the credibility of the witnesses (Brandi

Hohman and others) to whom defendant allegedly made the confessions as well as

defendant‘s own testimony. In addition to the general instruction about credibility

assessment, the jury was specifically told to view evidence of defendant‘s

confessions with caution. ―We presume the jury understood and followed the

instruction.‖ (People v. Homick, supra, 55 Cal.4th at p. 873.) These instructions

applied not only to the preliminary issue of whether defendant made the


statements at all but also whether, if he made them, they were true in light of the

evidence that he was taking credit for something he had not done. Under these

instructions, the jury could have concluded either that defendant did not make the

statements at all or, if he did, he was simply bragging and had not actually

committed the crimes. Thus, under the instructions given, the jury would have

fully assessed whether, even if it believed defendant had made the statements,

there was an innocent explanation for them, i.e., that he was a braggart.

Essentially, then, the instructions given here authorized the jury to engage in the

same analysis of the evidence that defendant contends it would have engaged in

had CALJIC No. 2.01 been extended to its consideration of direct evidence.

f. Aiding and Abetting Instruction

With respect to the special circumstance allegations, the trial court gave a

modified version of CALJIC No. 8.80 (1990 rev.) (5th ed. 1988). As relevant

here, the court said: ―If you find the defendant in this case guilty of murder in the

first degree, you must then determine if one or more of the following special

circumstances are true or not true: murder for financial gain, murder during the

course of a robbery, or multiple murders. [¶] . . . [¶] If you find beyond a

reasonable doubt that the defendant in counts four or six was either the actual

killer or a co-conspirator or an aider and abettor, but you are unable to decide

which, then you must also find beyond a reasonable doubt that the defendant with

intent to kill participated as a co-conspirator with or aided and abetted an actor in

the commission of the murder in the first degree, in order to find the special

circumstance to be true.‖

Defendant notes that the instruction required the jury to determine whether

he acted with the intent to kill only if it was ―unable to decide‖ whether he was the

actual killer or an aider and abettor, but the instruction did not expressly tell the


jury what to do if it did decide he was an aider and abettor. Thus, he argues, it

permitted the jury to find the special circumstance true without finding that he

acted with intent to kill. That would be error because, at the time of the murders,

the felony-murder special circumstance applied only to those aiders and abettors

who acted with the intent to kill. (People v. Anderson (1987) 43 Cal.3d 1104,


We rejected a similar claim in People v. Letner and Tobin (2010) 50

Cal.4th 99 (Letner and Tobin). We acknowledged the ambiguity of the instruction

at issue, which like the instant one did not explicitly state the intent requirement

for an aider and abettor, but we concluded the ambiguity did not rise to the level of

a due process violation. (Id. at pp. 181-182.) ― ‗For ambiguous instructions, the

test is whether there is a reasonable likelihood that the jury misunderstood and

misapplied the instruction.‘ ‖ (Id. at p. 182.) Based on our review of the record,

we found ―no reasonable likelihood the jury misunderstood or misapplied the

instruction.‖ (Ibid.)

Here, as in Letner and Tobin, the prosecutor did not argue that the

instruction permitted the jury to find the special circumstance true on the theory

that defendant was a nonperpetrator who lacked the intent to kill; rather, he argued

that whether or not defendant was the actual killer, he lured Herbert Parr to Laurel

Beiling‘s house so that he could kill Parr and take his motorcycle. The prosecutor

did concede that it was unclear whether defendant, Rex Sheffield, or both of them

stabbed Parr, noting that one of them might have held Parr while the other stabbed

him. But the prosecutor never suggested to the jury the possibility that Sheffield

intended to kill Parr and defendant did not, but nonetheless assisted Sheffield in

carrying out the crime. Nor did defendant claim to be an accomplice who did not

share the perpetrator‘s intent to kill; rather, he testified that he had nothing to do

with the killing. The jury convicted defendant of murdering Parr but acquitted


him of conspiring with Sheffield to commit the murder, suggesting that it was

convinced that defendant was the killer but was unsure about the extent of

Sheffield‘s participation in the offense.

Strong evidence supported the prosecutor‘s argument that defendant carried

out a preconceived plan to rob and kill Parr. Defendant, who had already

assaulted Christopher Walsh and robbed him of his motorcycle, told Brandi

Hohman he wanted Parr‘s motorcycle. Defendant met Parr at a party, allayed

Parr‘s fears of him, and convinced Parr to go with him to Laurel Beiling‘s house

and then into her backyard, where defendant was armed with Beiling‘s knife.

There Parr was stabbed 18 times. Defendant later arranged to transport and

dismantle Parr‘s motorcycle, buried Parr‘s body, and told Beiling and Hohman he

had killed Parr. Thus, whether or not the jury believed that defendant was the

actual killer, on this record it could not have convicted him of murder without also

finding he harbored a specific intent to kill. As a result, there is no reasonable

likelihood that the jury based its special circumstance finding on the erroneous

view that it could do so as to an aider and abettor who lacked the intent to kill.

2. Evidentiary Issues

a. Exclusion of Evidence of Threats to Defense Investigator

The defense employed Immendorf Investigations to investigate defendant‘s

case. The investigator who worked on the case was Robert Furlan. Lonne Garey

was a secretary at the firm. Garey testified for the defense that she had received

an anonymous ―scary‖ telephone call. When the prosecutor objected, the defense

made an offer of proof, explaining that the caller said: ―[T]ell the guy in the

Honda next to the BMW, the guy with the big nose, we saw him leave late in the

Honda. Tell him he better fucking get off it. We are conveniently located in San



In two Evidence Code section 402 hearings, at which both Garey and

Furlan testified, Garey identified Furlan as the ―guy with the big nose,‖ and said

he had been working on defendant‘s case when she received the call. Furlan

testified he drove a Honda and lived in San Bruno. After he interviewed someone

named ―Frank‖ about Brandi Hohman at a biker bar in Sunol, some patrons

followed him outside and copied down his license plate number. When he talked

to Joseph Martinez, a Freedom Rider, Martinez referred to the length of his

criminal record in what Furlan believed was an attempt to show ―how tough he

was.‖ While Furlan was at Martinez‘s house, Rex Sheffield‘s wife Gail arrived

with two ―large white male adults,‖ which made Furlan anxious. Furlan

acknowledged he had no proof that Martinez or any other Freedom Riders had

made the threatening call. According to the defense, the evidence of the

threatening behavior supported its theory that the Freedom Riders were framing

defendant for the murders, because it showed that the Freedom Riders did not

want Furlan to investigate them.

The trial court excluded the testimony, concluding it was irrelevant because

―there‘s no connection at all between any threats that may have been made as to

who made those threats.‖ Defendant argues that the ruling violated his right to

present a defense and to a fair trial under the Fifth and Sixth Amendments to the

federal Constitution.

―A defendant has the general right to offer a defense through the testimony

of his or her witnesses [citation], but a state court‘s application of ordinary rules of

evidence . . . generally does not infringe upon this right [citations].‖ (People v.

Cornwell (2005) 37 Cal.4th 50, 82, disapproved on another point in People

v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) ―[T]he Constitution leaves to [state

trial court] judges . . . ‗wide latitude‘ to exclude evidence that is ‗repetitive . . . ,

only marginally relevant‘ or poses an undue risk of ‗harassment, prejudice, [or]


confusion of the issues.‘ ‖ (Crane v. Kentucky (1986) 476 U.S. 683, 689-690.)

Here, defendant was unable to connect the anonymous call or the threats to Robert

Furlan to the Freedom Riders. Even if the jury could have inferred such a

connection, the evidence would not have lent any significant support to

defendant‘s claim that the Freedom Riders were trying to frame him for the Parr

and Robertson murders. The evidence showed the Freedom Riders were engaged

in any number of criminal activities including, for example, the sale of drugs.

They would understandably have been reluctant to have defendant‘s investigator

looking into their affairs. Thus, the evidence was, if relevant at all, only

marginally so and could have led to confusion of the issues. Accordingly, ―[t]he

excluded evidence in the present case was not so vital to the defense that due

process principles required its admission.‖ (Cornwell, supra, 37 Cal.4th at p. 82.)

b. Refusal to release Brandi Hohman’s Medical Records

Defendant contends the trial court erred when it denied his request for

access to certain medical records of Brandi Hohman, which were generated in

connection with a suicide attempt in September 1987. The defense subpoenaed

the records from the Santa Clara County Mental Health Administration after

Hohman testified at the preliminary hearing that she had attempted suicide

because she was afraid defendant might kill her. Santa Clara County Counsel

moved to quash the subpoena. After an in camera review of the records, the trial

court granted the motion to quash, explaining: ―[T]hese materials are in no way

essential to vindicate the defendant‘s right to cross-examine [Hohman.] [¶]

There‘s no reasonable probability that the protected psychotherapy records could

materially or in any way assist the defense and . . . the records are of no

evidentiary value to the defense in this case.‖


Defendant requests that this court review the records, asserting that they

were vital to the issue of Hohman‘s credibility. ―Parties who challenge on appeal

trial court orders withholding information as privileged or otherwise

nondiscoverable ‗must do the best they can with the information they have, and

the appellate court will fill the gap by objectively reviewing the whole record.‘

[Citation.]‖ (Price, supra, 1 Cal.4th at p. 493.) We have reviewed the records and

conclude that the trial court did not abuse its discretion in rejecting disclosure of

them. (People v. Avila (2006) 38 Cal.4th 491, 607 [no abuse of discretion where

trial court withheld access to a witness‘s parole records].) Even if the court‘s

ruling was erroneous, there was no reasonable probability of a different outcome

given that (1) Hohman‘s fear of defendant was a tangential issue; (2) the

impeachment value of the records pales in comparison to the assault defendant

launched on her credibility through his own testimony and witnesses who

described Hohman as promiscuous, a drug addict and a liar; and (3) the other

evidence of defendant‘s guilt was strong.

c. Rebuttal Testimony of Glenn Johnson

Glenn Johnson, a defense alibi witness, testified that he had picked up

defendant from the San Francisco airport in late April or early May 1986, after

Sharley Ann German was murdered. On rebuttal, the prosecutor, who had already

cross-examined Johnson, recalled him to the stand. In response to the prosecutor‘s

questions, Johnson acknowledged he had been arrested for driving under the

influence several weeks before the date he claimed he picked up defendant from

the airport, and that he had lived at a different address than the one he had stated in

his earlier testimony. Defense counsel objected that ―this has already been gone

over on cross-examination.‖ The trial court overruled the objection. Defendant

now contends this ruling was an abuse of discretion.


Rebuttal evidence is ― ‗ ―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.‖ ‘ ‖ (People v. Harris (2005) 37 Cal.4th 310, 336.)

―The scope of rebuttal evidence is within the trial court‘s discretion, and on appeal

its ruling will not be disturbed absent ‗ ―palpable abuse.‖ ‘ ‖ (People v. Wallace

(2008) 44 Cal.4th 1032, 1088.) Here, defendant presented evidence, including

Johnson‘s testimony, that he was not in the state on the date Sharley Ann German

was killed. Evidence impeaching Johnson was permissible rebuttal because it

could not have been presented in the prosecution‘s case-in-chief, as it only became

relevant when the defense called Johnson as an alibi witness. (See People

v. Carter (1957) 48 Cal.2d 737, 753-754.) We are unaware of any case holding

that otherwise proper rebuttal evidence becomes inadmissible if the prosecutor

could also have introduced it during cross-examination of a defense witness. The

trial court did not abuse its discretion in these circumstances.

d. Limitations on Cross-examination of Thomas M.

Thomas M., Sharley Ann German‘s son, testified regarding his discovery of

his mother‘s body. He also acknowledged on direct examination that he had been

convicted of a felony burglary. On cross-examination, he testified he had been

sentenced to probation, but when defense counsel asked him if he was still on

probation, the prosecutor objected on relevance grounds. The trial court sustained

the objection.

Defendant argues that the trial court erred when it sustained the

prosecutor‘s objection because Thomas‘s continuing probation status was relevant

to his credibility. Even if we assume that he is correct (see Davis v. Alaska (1974)
415 U.S. 308), the error was harmless under any applicable standard. Thomas‘s

testimony was a minor part of the prosecution‘s case; moreover, the jury was


aware that he had been convicted of a felony and had been placed on probation. It

is inconceivable that the jury would have reached a different outcome if it had

learned that he was on probation at the time of trial.

3. Denial of Mistrial Motion

During his cross-examination of defendant, the prosecutor sought to make

the point that defendant, before testifying, knew what evidence would and would

not be introduced against him. In the latter category was the testimony of

witnesses who had made themselves unavailable by asserting the right against

self-incrimination. The prosecutor asked, ―You also had the opportunity prior to

your testimony to look at and consider which witnesses have made themselves

unavailable to testify isn‘t that so?‖ Defendant replied: ―I don‘t know what you

mean.‖ The prosecutor explained, ―Well you know which witnesses have made

themselves unavailable to be called into court; correct?‖ Defendant responded,

―No. I have no idea who was here and who‘s not here. I don‘t know what you

mean by ‗who‘s unavailable.‘ ‖ The prosecutor elaborated: ―Which witnesses

have been here to testify, which ones have made themselves unavailable; correct?‖

Defendant responded, ―I‘m not sure what you mean. You mean by pleading the

fifth?‖ The prosecutor said, ―Yeah.‖ Defendant continued, ―I‘ve seen who was

called in here and who pled the fifth and who didn‘t plead the fifth.‖ Defense

counsel then objected. The trial court sustained the objection, and instructed the

jury to disregard the reference.

Defendant moved for a mistrial, arguing the prosecutor ―elicited from the

defendant on the stand that he was aware of the fact that several witnesses came

here and took the Fifth Amendment.‖ The prosecutor replied that, in asking the

question, he ―was expecting a yes or no answer in terms of that.‖ The trial court

denied the motion for mistrial.


Defendant contends the trial court abused its discretion when it denied his

mistrial motion after the prosecutor elicited inadmissible evidence regarding

witnesses invoking their Fifth Amendment rights. While it is misconduct for a

prosecutor to elicit inadmissible testimony, ―a prosecutor cannot be faulted for a

witness‘s nonresponsive answer that the prosecutor neither solicited nor could

have anticipated.‖ (People v. Tully (2012) 54 Cal.4th 952, 1035.) Whether or not

the prosecutor‘s questions elicited defendant‘s testimony that witnesses had

asserted the self-incrimination privilege, the court sustained the defense‘s

objection to that testimony and admonished the jury to disregard it. The revelation

that unidentified witnesses had ―pled the fifth‖ was not so necessarily prejudicial

that we should set aside the normal presumption that the jury followed the court‘s

admonition. (People v. Thornton (2007) 41 Cal.4th 391, 441.) Thus, even if the

prosecutor‘s questions were improper, defendant was not prejudiced. Under these

circumstances, the court did not abuse its discretion in denying the mistrial


4. Constitutionality of Felony-murder Special Circumstance

Defendant contends the felony-murder special circumstance violates the

Eighth Amendment to the federal Constitution because it permits imposition of the

death penalty on the actual killer without a finding of intent to kill or a reckless

indifference to human life. We have previously rejected this claim. (See, e.g.,

People v. Contreras, supra, 58 Cal.4th at pp. 163-164 [the felony-murder special

circumstance is constitutional even though it does not require that an actual killer

act with intent to kill or reckless indifference to human life]; People v. Belmontes

(1988) 45 Cal.3d 744, 794 [―The United States Supreme Court has made clear that

felony murderers who personally killed may properly be subject to the death

penalty in conformance with the Eighth Amendment . . . even where no intent to


kill is shown.‖], disapproved on another point in People v. Doolin, supra, 45

Cal.4th at p. 421, fn. 22.) Defendant provides no persuasive reason to revisit the


D. Penalty Phase Issues

1. Denial of Counsel’s Request to Withdraw for Conflict of Interest

Defendant contends his rights under the Sixth, Eighth, and Fourteenth

Amendments to the federal Constitution were violated due to a conflict of interest

arising from a threat allegedly made by defendant‘s wife to harm defense

counsel‘s wife should defendant receive the death penalty. The claim is without


a. Background

On August 20, 1991, just before the penalty phase, Defense Counsel James

Campbell requested an in camera hearing to discuss a threat made by defendant‘s

wife, Karen, against Campbell‘s wife. According to Campbell, Karen told a

member of the defense team that ―if I lose my husband then [Campbell] is going to

lose his wife.‖ At two further in camera hearings, Campbell acknowledged that

Karen‘s statement appeared to be an expression of frustration rather than a serious

threat: ―[I]t‘s my belief probably that this was probably not something that is

serious or presents any real truth by Mrs. O‘Malley, but . . . I think a prudent

person would have to at least give some pause for concern over.‖ He continued,

―if it is just her in frustration . . . I would be very willing to write it off and dismiss


The trial court asked Campbell if he thought the threat came from

defendant. Campbell said: ―No. Didn‘t appear that way.‖ But he observed ―that

since this occurred I‘ve had no contact whatsoever with [defendant] and that‘s

very unusual because he calls almost on a daily basis.‖ Campbell asked to


withdraw because ―[e]ven though I think this threat and the statement was not

something that is of substance really, I think that the very fact of it being made . . .

is something that does interfere with the effectiveness of myself in terms of now

going forward in the penalty phase and literally arguing and advocating for his

life.‖ The court asked defendant what he wanted. Defendant replied, ―I would

like to have him as my attorney still.‖

The trial court denied Campbell‘s request to withdraw, explaining:

(1) ―Mr. Campbell has always been ready on this case and extremely well-

prepared‖; (2) ―Mr. Campbell has become closely associated with Mr. O‘Malley

and his family . . . . There‘s no one more qualified to argue for Mr. O‘Malley‘s

life than Mr. Campbell‖; (3) ―There‘s no evidence that the statement of

Mrs. O‘Malley was true or viable or had any substance or was uttered out of

anything but frustration, current mental state, in the light of the then existing

circumstances [and], it appears Mr. Campbell put little, if any, stock in

Mrs. O‘Malley‘s utterances‖; (4) ―There is no evidence that Mrs. O‘Malley‘s

utterances can be attributed to Mr. O‘Malley or in any way connected to him‖;

(5) ―Mr. Campbell, as an attorney, has an ethical duty to do as much for his client,

whether it‘s Mr. O‘Malley or anyone else, as possible, and has a duty to put

personal feelings and beliefs aside‖; (6) ―Mr. Campbell is under an obligation to

bring forth the facts, as he has done so [and] notify the court of what has

transpired, of his feelings in the matter, and . . . he has done so,‖ and; (7)

―Mr. O‘Malley wishes to have Mr. Campbell remain as his attorney and . . . still

has faith in Mr. Campbell and his abilities. [¶] The court further finds that

Mr. O‘Malley is making an informed, reasonable and proper choice in wanting

Mr. Campbell to remain as his counsel and still has faith in him despite any prior

disagreements, and, therefore, based on this, the court denies the motion to

withdraw as attorney of record.‖


b. Discussion

The Attorney General argues that defendant waived his right to complain

about the trial court‘s denial of his attorney‘s request to withdraw when he told the

trial court he would like his attorney to continue representing him. Defendant

responds that there was no waiver because he was not informed of the dangers and

possible consequences of proceeding with conflicted representation or of his right

to conflict-free representation. (See generally People v. Jones (1991) 53 Cal.3d

1115, 1136-1137.) We need not decide whether defendant waived the claim,

because we find no error.

― ‗ ―The right to effective assistance of counsel, secured by the Sixth

Amendment to the federal Constitution, and article I, section 15 of the California

Constitution, includes the right to representation that is free from conflicts of

interest.‖ ‘ [Citations.] While the classic example of a conflict in criminal

litigation is a lawyer‘s dual representation of codefendants, the constitutional

principle is not narrowly confined to instances of this type. [Citation.] A conflict

may also arise when an attorney‘s loyalty to, or efforts on behalf of, a client are

threatened by the attorney‘s own interests. [Citation.] [¶] Under the federal

Constitution, prejudice is presumed when counsel suffers from an actual conflict

of interest. [Citation.] This presumption arises, however, ‗only if the defendant

demonstrates that counsel ―actively represented conflicting interests‖ and that ―an

actual conflict of interest adversely affected his lawyer‘s performance.‖ ‘

[Citations.] An actual conflict of interest means ‗a conflict that affected counsel‘s

performance—as opposed to a mere theoretical division of loyalties.‘ [Citation.]

Under the federal precedents, which we have also applied to claims of conflict of

interest under the California Constitution, a defendant is required to show that

counsel performed deficiently and a reasonable probability exists that, but for


counsel‘s deficiencies, the result of the proceeding would have been different.‖

(People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 309-310.)

―To determine whether counsel‘s performance was ‗adversely affected,‘ we

have suggested that [Cuyler v.] Sullivan [(1980) 446 U.S. 335] requires an inquiry

into whether counsel ‗pulled his punches,‘ i.e., whether counsel failed to represent

defendant as vigorously as he might have, had there been no conflict. [Citation.]

In undertaking such an inquiry, we are . . . bound by the record. But where a

conflict of interest causes an attorney not to do something, the record may not

reflect such an omission. We must therefore examine the record to determine

(i) whether arguments or actions omitted would likely have been made by counsel

who did not have a conflict of interest, and (ii) whether there may have been a

tactical reason (other than the asserted conflict of interest) that might have caused

any such omission.‖ (People v. Cox (2003) 30 Cal.4th 916, 948-949, disapproved

on another point in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.)

Here, the threat came not from defendant but his wife, and defense counsel

did not take it seriously. Defendant himself evidently perceived no conflict, as he

indicated that he wished to continue with Campbell. Defendant fails to show that

counsel ―pulled his punches‖ out of concern for his wife‘s safety.

Defendant relies on defense counsel‘s statements during the in camera

hearings expressing doubt about his own ability to continue with the case, but he

identifies no instance in which the alleged conflict actually affected counsel‘s

performance. To the contrary, defense counsel called numerous witnesses during

the penalty trial to demonstrate that defendant‘s life was worth preserving.

Accordingly, we reject defendant‘s claim.


2. Denial of Defendant’s Request to Discharge His Retained Counsel

Defendant contends the trial court erred by denying his request to discharge

retained counsel. The court did not err.

a. Background

As noted in the previous part, on September 11, 1991, the trial court denied

defense counsel‘s request to be relieved based, in part, on defendant‘s desire that

counsel continue to represent him. The penalty phase trial began on the morning

of September 24. The jury was preinstructed regarding factors in aggravation and

mitigation. The prosecutor gave his opening statement. He said that at the penalty

phase he would call no witnesses, but would rely on defendant‘s prior felony

conviction and the guilt phase evidence of the circumstances of the crime and

defendant‘s other violent criminal activity. After putting into evidence a certified

copy of defendant‘s felony conviction, the prosecution rested. The defense called

its first witness (Lawrence Walton, a jail chaplain), who was examined by both

sides before the lunch recess.

When court reconvened, defense counsel informed the court that defendant

wanted to make a statement. Counsel said, ―I don‘t know if it really is a Marsden

motion, but I think it‘s a quasi Marsden motion, at least approaches that.‖11 Out

of ―an abundance of caution,‖ the trial court cleared the courtroom and invited

defendant to speak.

Defendant said he wanted to ―address . . . statements made by the Court‖ at

the September 11 hearing when it denied counsel‘s request to withdraw, and

defendant‘s ―response to a question asked . . . by the Court,‖ specifically,

defendant‘s statement that he ―wanted to keep‖ defense counsel. Defendant told


People v. Marsden (1970) 2 Cal.3d 118.


the court he did ―not have confidence in‖ counsel, but was ―more scared of getting

someone [he did] not know at all.‖ He complained that defense counsel had ―lost

all credibility with the jury, but again, I am worried about who would be appointed

in his place.‖ He brought up the denial of a pretrial request he had made for

second counsel. He asserted the court had been incorrect when it had

characterized defense counsel as well-prepared and effective because trial counsel

had ―ignored or not even read‖ reports and witness statements prepared by defense

investigators. He also alluded to ―numerous other issues and incidents‖ he would

raise at ―a later date.‖ He asserted further the ―defense team‖ had ignored his

―wishes and suggestions.‖ He complained that at times he was told ―how [things]

were going to be handled, and then the opposite was done, or nothing done at all,

which left the situation irrevocable with no . . . input from myself or others.‖

Defendant expressed ―no hard feelings‖ toward defense counsel, adding, ―My only

problem is how I was represented.‖

The trial court invited counsel to respond. Counsel acknowledged there

had been disputes between defendant and the defense team regarding ―how he

wanted to present the case.‖ He said he explained to defendant his tactical

decisions and, when defendant disagreed, he tried to put defendant‘s opposition on

the record for purposes of appellate review. He alluded to a disagreement he and

defendant were having about defendant‘s wish to call certain penalty phase

witnesses whom counsel feared would invite damaging rebuttal. He asked

defendant if he wanted to call those witnesses or to continue discussing the matter.

Defendant replied, ―At this point, we are still discussing that . . . I may agree with

you, but I don‘t know all the facts yet.‖ The court observed, ―It‘s obvious you two

have not finished discussing this yet. Is that correct Mr. O‘Malley?‖ Defendant

replied, ―Correct.‖


The court stated: ―[I]t would not appear that any disagreement that you

may have had over trial tactics has caused a breakdown in the attorney-client

relationship that would substantially, if in any way, impair the defendant‘s right to

effective assistance of counsel. [¶] It would not appear there has been a defense

that wasn‘t presented or that [defense counsel] did not sufficiently consult with

[defendant] and adequately investigate the facts and the law involved in this case

. . . . [¶] Whether or not this is a real Marsden type situation or not, is hard to say

at this point, but [defense counsel] is not going to be relieved at this point.‖

b. Discussion

Defendant contends the trial court erred by denying a request to discharge

his attorney because the court applied the wrong legal standard and the error

requires automatic reversal of the penalty phase verdict. Had defendant made

such a request, we might agree, but, as we explain below, he did not. The court

therefore did not err in denying a request that was never made, regardless of what

standard it purportedly applied.

―The right to retained counsel of choice is — subject to certain limitations

— guaranteed under the Sixth Amendment to the federal Constitution. [Citations.]

In California, this right ‗reflects not only a defendant‘s choice of a particular

attorney, but also his decision to discharge an attorney whom he hired but no

longer wishes to retain.‘ [Citations.]‖ (People v. Verdugo (2010) 50 Cal.4th 263,

310-311 (Verdugo).) In People v. Ortiz (1990) 51 Cal.3d 975 (Ortiz), we held that

with regard to discharging a retained attorney, a defendant need not demonstrate

either that counsel ―is providing inadequate representation [citations], or that he

and the attorney are embroiled in irreconcilable conflict [citation].‖ (Id. at p. 984.)

That standard, rather, is applicable when a defendant seeks substitution of

appointed counsel. (Ibid.; see People v. Marsden, supra, 2 Cal.3d 118.)


Consistent with the Sixth Amendment right to counsel, a defendant may discharge

retained counsel ―with or without cause.‖ (Ortiz, supra, at p. 983.)

―The right to discharge a retained attorney is, however, not absolute.

[Citation.] The trial court has discretion to ‗deny such a motion if discharge will

result in ―significant prejudice‖ to the defendant [citation], or if it is not timely,

i.e., if it will result in ―disruption of the orderly processes of justice‖ [citations].‘ ‖

(Verdugo, supra, 50 Cal.4th at p. 311.) In this context, while ―a defendant seeking

to discharge his retained attorney is not required to demonstrate inadequate

representation or an irreconcilable conflict, this does not mean that the trial court

cannot properly consider the absence of such circumstances in deciding whether

discharging counsel would result in disruption of the orderly processes of justice.‖

(People v. Maciel (2013) 57 Cal.4th 482, 513 (Maciel).)

The question of which standard applies to a defendant‘s request to

discharge counsel presupposes that such a request was made. In this case,

however, unlike Ortiz, Verdugo, and Maciel, defendant did not explicitly request

that counsel be discharged. Indeed, while he complained about counsel‘s

representation, he also expressed concern about ―getting someone I do not know at

all‖ and ―who would be appointed in his place.‖ These comments signify that

defendant did not have a substitute attorney in mind, whether retained or

appointed. Moreover, his comments toward the end of the hearing showed he and

counsel were still discussing defendant‘s wish to have certain witnesses testify at

the penalty phase, indicating, as the trial court found, no irreconcilable breakdown

of their relationship. The tenor of defendant‘s comments can reasonably be

construed as a clarification of his earlier statement to the court at the conflict of

interest hearing that he wanted to proceed with defense counsel. He explained that

he had agreed to keep his lawyer not because he thought counsel was doing a good

job but because he was more worried about who might replace him. Additionally,


comments by defense counsel and the court itself indicate they were uncertain of

what defendant wanted. Trial counsel characterized his complaint as, at most,

―quasi Marsden,‖ and the court cleared the courtroom out of ―an abundance of

caution,‖ presumably in the event defendant did request that counsel be

discharged. Even when the court stated it would not ―relieve counsel at this

point,‖ it prefaced that statement by remarking, ―[w]hether or not this is a real

Marsden type situation or not, is hard to say at this point . . . .‖

We have not previously considered whether a defendant with retained

counsel may be found to have asserted the right to discharge the attorney without

explicitly making such a request. Some touchstones in our decisions are, however,

helpful by analogy. The right to discharge retained counsel flows from the Sixth

Amendment right to counsel. As we observed in a different context, that right is

personal to the defendant. (People v. Badgett (1995) 10 Cal.4th 330, 343-344

[―The right to counsel is a personal right [citation], and a violation of that right

cannot ordinarily be asserted vicariously.‖].) Moreover, in the Marsden context,

we require ―at least some clear indication by defendant that he wants a substitute

attorney‖ before the trial court must conduct a hearing on such request. (People v.

Lucky (1988) 45 Cal.3d 259, 281, fn. 8; see People v. Dickey (2005) 35 Cal.4th

884, 920 [trial court did not err in declining to conduct Marsden hearing at

conclusion of guilt phase where ―[d]efendant did not clearly indicate he wanted

substitute counsel appointed for the penalty phase‖].)

Defendant contends that, even though he failed to explicitly ask the court to

discharge his attorney, the trial court ―plainly understood [defendant‘s] comment

as a request to discharge his attorney,‖ as indicated by its statement that counsel

would not be relieved. He relies on People v. Lara (2001) 86 Cal.App.4th 139

(Lara), in support of his argument.


In Lara, on the day set for trial, defense counsel told the trial court the

defendant wished to speak about conflicts between the two of them. When the

prosecutor offered to step outside, the court told her to wait, explaining, ― ‗I am

not sure it is a Marsden motion yet.‘ ‖ (Lara, supra, 86 Cal.App.4th at p. 146.)

Defense counsel replied, ― ‗I have a feeling that is probably what it is.‘ ‖ (Ibid.)

The court cleared the courtroom and invited the defendant to speak. The

defendant complained that counsel had not interviewed witnesses and had not

spoken to him in the preceding eight months. Counsel responded that they

disagreed about calling the defendant‘s accomplice to the stand. The trial court

characterized the dispute between the defendant and counsel as a ― ‗tactical

difference‘ ‖ (id. at p. 148) that did not ― ‗rise to the level in the type of breakdown

in the attorney-client relations that Marsden is looking at‘ ‖ (ibid.) and ruled that it

was ― ‗going to deny your request in the Marsden [sic]‘ ‖ (ibid.). When the

prosecutor returned, the court stated the defendant‘s Marsden motion had been

denied. (Ibid.)

On appeal, the defendant asserted the trial court had applied the wrong

standard to his request to discharge his attorney, who had been retained rather than

appointed. The Attorney General argued that the defendant never requested that

his attorney be discharged. The Court of Appeal acknowledged it was ―a close

question as to whether appellant wanted to discharge [counsel].‖ (Lara, supra, 86

Cal.App.4th at p. 157.) It concluded, however, that ―the trial court obviously

interpreted appellant‘s complaints as sufficient to raise a Marsden motion,‖ and

that its evaluation of those complaints strongly implied ―that it was willing to

grant the supposed Marsden motion and discharge [the] attorney if the court found

an irreconcilable conflict existed‖ between the defendant and counsel. (Id. at

p. 158.) Under these circumstances, the reviewing court ―rel[ied] on the [trial]

court‘s factual interpretation of the situation as involving a request by [the


defendant] to discharge his defense attorney and obtain a new attorney to represent

him.‖ (Ibid.) It held that the trial court, by applying the Marsden standard to a

request to discharge retained counsel, had erred and the error required automatic

reversal. (Lara, supra, at pp. 165-166.)

Lara is distinguishable because there, unlike the case before us, the trial

court plainly understood the defendant to be bringing a Marsden motion to replace

counsel. Here, defendant‘s equivocal statements, combined with the uncertainty

expressed by defense counsel and the court as to what he wanted, did not

constitute a clear indication he wanted to discharge counsel. Accordingly, the trial

court did not erroneously deny a request to discharge counsel because there was

no request to be ruled on.

Moreover, unlike Lara, the court here did not indicate it was prepared to

―grant the supposed Marsden motion‖ (Lara, supra, 86 Cal.App.4th at p. 158) had

it found an irreconcilable conflict existed. Its invocation of Marsden principles

must be seen in context as an attempt to respond in some manner to defendant‘s

stated concerns about his conflicts with his attorney and not a true Marsden ruling,

since the court was doubtful it had been presented ―with a real Marsden type

situation.‖ Had defendant clearly indicated he wanted to discharge his attorney,

the trial court could have then assessed whether granting the request would

prejudice him or disrupt the orderly process of justice. The court likely would

have been well within its discretion to deny such a request on the latter ground,

given that it would have come in the midst of defendant‘s penalty phase case and

without any substitute counsel at hand. Accordingly, we conclude that the trial

court did not err when it said that counsel would not be relieved.


3. Exclusion of Evidence of Manner of Execution

During the penalty phase, defendant sought to ask his correctional expert,

James Park, about his experience with executions. The prosecutor asked to

approach the bench, where defense counsel stated he intended to ask Park about

the manner of executions. The court sustained the prosecutor‘s objection.

Defendant contends the ruling was error. It was not.

The parties at the penalty phase of a capital case may introduce evidence

―relevant to aggravation, mitigation, and sentence‖ (§ 190.3), provided that such

evidence pertains to the ―character or record of the individual offender or the

circumstances of his particular offense‖ (People v. Grant (1988) 45 Cal.3d 829,

860). In Grant, we rejected the defendant‘s claim that evidence of the manner of

execution was admissible under this statute, explaining: ―Unlike mitigating

evidence of a defendant‘s background and character, which may be introduced to

elicit the sympathy or pity of the jury, accounts of the executions of others do not

aid the jury in making an individualized assessment of the crucial issue whether

the death penalty is appropriate for the particular defendant on trial.‖ (Ibid.) We

have consistently followed Grant on this point. (See People v. Fudge (1994) 7

Cal.4th 1075, 1124; People v. Whitt (1990) 51 Cal.3d 620, 644-645; People v.

Thompson (1988) 45 Cal.3d 86, 138-139; People v. Harris (1981) 28 Cal.3d 935,


Defendant asks us to reconsider these decisions, arguing that they have

been undermined by the United States Supreme Court‘s decisions in California v.

Ramos (1983) 463 U.S. 992, 1009 (the federal Constitution permits the state to

instruct juries about the Governor‘s power to commute a sentence of life without

parole), Tennard v. Dretke (2004) 542 U.S. 274, 284 (under the Eighth

Amendment, ― ‗ ―[r]elevant mitigating evidence is evidence which tends logically

to prove or disprove some fact or circumstance which a fact-finder could


reasonably deem to have mitigating value‖ ‘ ‖), and Smith v. Texas (2004) 543 U.S

37, 44 (same). That is incorrect. As we have since explained, ―[I]t is not the law

that jurors must be allowed to consider any evidence a defendant offers on the

question whether the death penalty is morally appropriate. Evidence is

inadmissible if it does not pertain to a defendant‘s individual character and record,

but pertains solely to the death penalty generally, such as how death is inflicted

. . . .‖ (People v. Smith (2005) 35 Cal.4th 334, 366; see also People v. Collins

(2010) 49 Cal.4th 175, 233.)

4. Admission of Testimony About Statements by Defendant’s Father

As part of its effort to rebut defense evidence that defendant‘s father had

been abusive, the prosecution called Joseph Collamati, a Massachusetts police

officer who had been acquainted with defendant and his father. The prosecutor

asked Collamati if defendant‘s father had told him about problems with

defendant‘s behavior. Following a defense objection, the prosecutor explained he

was offering the statement under the state of mind exception to the hearsay rule to

show the senior O‘Malley‘s state of mind. The defense countered that his state of

mind was not at issue. The trial court overruled the objection, instructing the jury

the evidence was limited to state of mind and ―not for the truth of the matter

asserted.‖ Collamati testified that defendant‘s father had told him defendant was

―running wild,‖ using drugs and alcohol, and that the senior O‘Malley had no

control over him. Collamati testified further that defendant‘s behavior upset his

father to the point that ―a couple of times‖ he was ―almost in tears.‖

As relevant here, the state of mind exception to the rule against hearsay

applies when the out-of-court statement is ―offered to prove the declarant‘s state of

mind, emotion, or physical sensation . . . when it is itself an issue in the action.‖

(Evid. Code, § 1250, subd. (a)(1).) Defendant argues that his father‘s state of


mind was not at issue here, and that the trial court therefore erred in admitting

Collamati‘s testimony. We agree.

Most of Collamati‘s testimony about the senior O‘Malley‘s statements did

not even describe the latter‘s state of mind; rather, it described defendant‘s

misbehavior. Assuming for the sake of argument that defendant‘s behavior had

some relevance to the question of whether the senior O‘Malley abused his son, the

jury could have considered it only if it was admitted for its truth, and it was

inadmissible for that purpose. As for Collamati‘s testimony that the senior

O‘Malley was upset by the misbehavior, it did describe the father‘s state of mind,

and the Attorney General argues it was therefore admissible to rebut defendant‘s

evidence that his father was abusive, apparently based on the theory that such

parental concern is inconsistent with the abuse defendant reported. We are not

persuaded. Abusive parents are often upset at the misbehavior of their children;

indeed, that distress sometimes causes the parent to engage in the abusive conduct.

Moreover, defendant described a long pattern of abuse by his father beginning

when he was a child and not simply during his teenage years when, in his father‘s

eyes, he began to go astray.

Nonetheless, the erroneous admission of Collamati‘s testimony was

harmless. Evidence that defendant engaged in out-of-control behavior as a

teenager and that his father found this behavior distressing was of little importance

when compared to the vicious murders he was found to have committed. Thus, it

is not reasonably possible that, had it been excluded, the result of the penalty

phase would have been altered.

5. Alleged Double Counting of Special Circumstances

Defendant contends CALJIC No. 8.85, in combination with remarks by the

prosecutor in his closing argument, improperly permitted the jury to double count


the financial gain and robbery special circumstances by also considering them as

circumstances of the crime. Assuming the claim is not forfeited by defendant‘s

failure to request a clarifying instruction (see People v. Holt (1997) 15 Cal.4th

619, 699), the claim is meritless. As defendant acknowledges, we have repeatedly

rejected the argument that the instruction inherently encourages such double

counting. (People v. Montes (2014) 58 Cal.4th 809, 893; People v. Burney (2009)

47 Cal.4th 203, 261; People v. Lewis (2001) 25 Cal.4th 610, 669; People v. Ayala

(2000) 24 Cal.4th 243, 288-289.)

Defendant asserts that the prosecutor‘s argument encouraged double counting

even if the trial court‘s instruction did not. He has forfeited this claim by failing to

raise it at trial. Ordinarily, a claim of prosecutorial misconduct is not cognizable on

appeal unless the defendant both objects to the misconduct and seeks an admonition

from the trial court to the jury regarding the claimed misconduct. (People v.

Gonzalez (2012) 54 Cal.4th 1234, 1275.) Defendant did neither.

In any event, ―the prosecutor did not urge the jury to double count the

circumstances of the crime and the special circumstances.‖ (People v. Montes,

supra, 58 Cal.4th at p. 893.) True, he mentioned the facts underlying the special

circumstance findings when he discussed the aggravating circumstances of the

offense (§ 190.3, factor (a)), and he also asked the jury to consider the special

circumstances themselves as circumstances in aggravation. But he did not ask the

jury to double count the facts underlying the special circumstances. To the

contrary, he reminded the jury that weighing the factors in mitigation and

aggravation was ―not just a mere mechanical counting up of factors on each side

of an imaginary scale,‖ and that it should ―assign whatever moral or sympathetic

value you deem appropriate‖ to each factor. ―In light of the prosecutor‘s remarks

and the standard instructions given about the weighing of aggravating and

mitigating circumstances given in this case, we find no reasonable likelihood the


jurors were misled or confused in the manner defendant suggests.‖ (People v.

Lewis, supra, 25 Cal.4th at p. 669.)

6. Alleged Prosecutorial Misconduct

Defendant contends the prosecutor committed six instances of misconduct

in his closing argument. The claims are both forfeited and meritless.

― ‗ ―A prosecutor who uses deceptive or reprehensible methods to persuade

the jury commits misconduct, and such actions require reversal under the federal

Constitution when they infect the trial with such ‗ ―unfairness as to make the

resulting conviction a denial of due process.‖ ‘ [Citations.] Under state law, a

prosecutor who uses such methods commits misconduct even when those actions

do not result in a fundamentally unfair trial.‖ [Citation.] ―In order to preserve a

claim of misconduct, a defendant must make a timely objection and request an

admonition; only if an admonition would not have cured the harm is the claim of

misconduct preserved for review.‖ ‘ ‖ (People v. Gonzalez, supra, 54 Cal.4th at

p. 1275.)

Defendant failed to object to any of the statements he now asserts were

misconduct, thus forfeiting each claim on appeal.12 As explained below, the

claims are also without merit.


Defendant asks us to review his claims of prosecutorial misconduct under

the rubric of ineffective of assistance of counsel, asserting there was no tactical
reason for defense counsel not to have objected to these statements by the
prosecutor. Because we find either no misconduct, or, assuming misconduct, no
prejudice, counsel‘s failure to object was not ineffective assistance, nor was
defendant prejudiced by his failure to do so. (See In re Champion (2014) 58
Cal.4th 965, 1007-1008 [stating the standard for ineffective assistance of counsel


Defendant contends the prosecutor committed misconduct by urging the

jury to double count certain evidence as both a circumstance of the crime and a

special circumstance. We rejected the claim in the previous section.

Defendant contends the prosecutor appealed to the prejudices and passions

of the jury by contrasting the murder of defendant‘s victims with the legal

protections defendant had enjoyed during his trial at which his life was at stake.

― ‗It is, of course, improper to make arguments to the jury that give it the

impression that ―emotion may reign over reason,‖ and to present ―irrelevant

information or inflammatory rhetoric that diverts the jury‘s attention from its

proper role, or invites an irrational, purely subjective response.‖ ‘ ‖ (People v.

Linton (2013) 56 Cal.4th 1146, 1210.) But the prosecutor‘s remarks did not

appeal to the jury‘s passions or prejudice. He made them while addressing a

concern that ―[i]f it‘s wrong for the defendant to kill, why should the state have a

right to take a life[.]‖ He argued, ―there‘s a big difference between [the] murders

[defendant] perpetrated and imposing the death penalty after a fair trial with the

protection of each and every one of the defendant‘s constitutional rights, as well as

after a lengthy and exhaustive consideration by you of which penalty is

appropriate.‖ These remarks were designed to assuage any doubt jurors might

have that imposing the death penalty was the equivalent of committing murder,

not to claim that defendant deserved the death penalty because, in contrast to his

victims, he enjoyed the law‘s procedural protections. Thus understood, the

comments were not misconduct.

Nor was it misconduct for the prosecutor to urge the jury that,

notwithstanding its right to consider mercy toward defendant, it should show him

no more mercy than he showed his victims. (People v. Collins, supra, 49 Cal.4th

at p. 230 [―It is not improper to urge the jury to show the defendant the same level

of mercy he showed the victim.‖].)


Defendant contends the prosecutor argued that the jury should reject

sympathy and remorse because in the guilt phase defendant denied committing the

murders, while in the penalty phase he presented mitigating evidence regarding his


A prosecutor may not cite a defendant‘s claim of innocence as evidence

that the defendant lacks remorse. (People v. Fierro (1991) 1 Cal.4th 173, 243-

244, disapproved on other grounds in People v. Thomas (2012) 54 Cal.4th 908 and

Letner and Tobin, supra, 50 Cal.4th 99.) Here, in the course of urging the jury to

reject defendant‘s mitigating evidence that he suffered from fetal alcohol

syndrome, the prosecutor argued: ―What we have to do during the guilt phase of

this trial, what we are dealing with here is blame. We‘re dealing with the concept

of blame. In the guilt phase of the trial [defendant] took the stand and testified for

13 days and whatever, and indicated, ‗I didn‘t do the Sharley Ann German

killing,‘ indicated that Rex Sheffield did the other two. Blame. [¶] Guilt phase,

blaming Rex Sheffield. Penalty phase, I submit, blame again, finger of blame on

bad father, finger of blame on drinking mother, finger of blame on fetal alcohol

syndrome. All right. There‘s no remorse there. There‘s no accepting of

responsibility for terrible crimes. Not one but three.‖

As noted, defendant‘s failure to object to the remark forfeits his claim on

appeal. Assuming for the sake of argument that the prosecutor‘s argument was

improper, it ―was brief and transitory‖ and ―did not impermissibly characterize

defendant‘s lack of remorse as an aggravating factor.‖ (People v. Fierro, supra, 1

Cal.4th at p. 244.) Any impropriety was therefore harmless.

Next, defendant contends the prosecutor committed misconduct when he

asked the jury to return a death verdict to provide ―justice for the victims.‖ In

context, the prosecutor argued: ―What I am asking you to do is follow the law,

consider the evidence, and render a just verdict. What we‘re asking for is justice,


justice for the victims, justice in this case. [¶] I submit to you that the appropriate

punishment is the death penalty and I hope that after you‘ve reviewed the evidence

and the law and applied the moral weight to all of the factors that you will find

that sympathy, mercy is not enough in this case to outweigh all of the other factors

in aggravation.‖ (Italics added.)

According to defendant, the italicized portion of the argument was

impermissible because it was equivalent to the presentation of evidence that a

defendant‘s victims believe death is the appropriate verdict, which is

impermissible. (People v. Lancaster (2007) 41 Cal.4th 50, 97.) We disagree.

―The prosecutor has wide latitude to argue that, based on the evidence presented,

the death penalty is the proper punishment commensurate with defendant‘s

crime.‖ (People v. McKenzie (2012) 54 Cal.4th 1302, 1359, disapproved on other

grounds in People v. Scott, supra, 61 Cal.4th 363.) By asking for ―justice for the

victims,‖ the prosecutor did not suggest that the victims personally believed the

jury should return a death verdict; rather, he simply said that such a verdict would

bring them justice. We see nothing improper in this comment.

Defendant contends the prosecutor improperly appealed to the jury‘s sense

of patriotism when he argued ―that a free society requires of its citizens, of its

jurors, vigilance, courage, the strength and resolve in making the hard decisions

that you‘re going to have to make.‖ Contrary to defendant‘s argument, nothing in

these remarks reminding the jurors of their weighty responsibility equated being a

good citizen with returning a verdict of death in this case. The claim is, in any

event, unavailing. (See People v. Brady (2010) 50 Cal.4th 547, 584 [prosecutor‘s

argument that ― ‗[t]his is a case where society cries out for the death penalty‘ ‖ and

the jurors were ― ‗the conscience of society‘ ‖ was not improper]; People v.

Johnson (1992) 3 Cal.4th 1183, 1246 [prosecutor‘s argument that jurors were

― ‗protectors of society from enemies within‘ ‖ was not improper].)


Finally, defendant contends the prosecutor committed misconduct by

arguing the jury could not consider any lingering doubt as to defendant‘s guilt in

determining penalty when he told the jury: ―You don‘t need to worry about

executing an innocent man.‖ Once again, placed in context, the remark belies the

meaning defendant ascribes to it. The prosecutor was addressing a concern raised

by some jurors during voir dire that they would not want to impose the death

penalty ―unless [they] knew the person was truly guilty.‖ The prosecutor then

noted, correctly, that ―Your guilty verdict showed that the evidence convinced you

beyond a reasonable doubt and to a moral certainty that the defendant . . . is guilty

of these crimes. He is not innocent at this point. You don‘t need to worry about

executing an innocent man.‖ Thus understood, there was nothing improper in the

remark, which was no more than a reasonable commentary on the state of the

evidence regarding defendant‘s guilt, and not a description of the legally

permissible mitigating factors.

7. Constitutional Challenges to California’s Death Penalty Scheme

To preserve them for future review, defendant briefly raises a number of

constitutional challenges to California‘s death penalty scheme which, he

acknowledges, we have previously and consistently rejected. We do so again,

concluding as follows:

(1) The use of defendant‘s age as a sentencing factor (§ 190.3, factor (i)) is

not impermissibly vague under the Eighth Amendment. (People v. Ray (1996) 13

Cal.4th 313, 358.)

(2) ―The homicide and death penalty statutes adequately narrow the class

of first degree murderers eligible for the death penalty. The statutory scheme is

not overbroad or arbitrary in this regard.‖ (People v. Contreras, supra, 58 Cal.4th

at p. 172.)


(3) ―Section 190.3, factor (a) (the circumstances of the capital crime) is not

so broad as to be applied in a wanton or freakish manner. [Citation.] Nor is factor

(b) of the same statute (the defendant‘s other violent criminal activity) irrational or

invalid insofar as it permits consideration of unadjudicated crimes.‖ (People v.

Contreras, supra, 58 Cal.4th at p. 172.) ―In particular, the jury need not make a

unanimous finding under section 190.3, factor (b) . . . .‖ (People v. Lewis and

Oliver (2006) 39 Cal.4th 970, 1068.) Nor were defendant‘s constitutional rights

violated by the use of the same jury that convicted him of first degree murder to

evaluate the evidence of prior unadjudicated crimes. (People v. Hawthorne (1992)

4 Cal.4th 43, 76-77, overruled on other grounds in People v. McKinnon (2011) 52

Cal.4th 610.)

(4) The trial court did not violate defendant‘s constitutional rights by

failing to instruct the jury it must unanimously agree he committed the 1979

assault — introduced as a prior felony conviction under section 190.3, factor (c)

— notwithstanding the United States Supreme Court‘s decision in Ring v. Arizona

(2002) 536 U.S. 584. (See People v. Schmeck (2005) 37 Cal.4th 240, 304,

overruled on other grounds in People v. McKinnon, supra, 52 Cal.4th 610.)

Consideration by the jury of defendant‘s prior conviction did not place him twice

in jeopardy for the same offense. (People v. Bacigalupo (1991) 1 Cal.4th 103,

134-135, judg. vacated on other grounds and cause remanded sub nom Bacigalupo

v. California (1992) 506 U.S. 802, reaffd. (1998) 6 Cal.4th 457.)

(5) ―Neither the cruel and unusual punishment clause of the Eighth

Amendment, nor the due process clause of the Fourteenth Amendment, requires

that jurors in a capital case be instructed that they must find beyond a reasonable

doubt that . . . aggravating circumstances outweigh mitigating circumstances . . . .

Indeed, trial courts ‗should not instruct the jury regarding any burden of proof or

persuasion at the penalty phase.‘ [Citation.] ‗ ―Unlike the guilt determination,


‗the sentencing function is inherently moral and normative, not factual‘ [citation]

and, hence, not susceptible to a burden-of-proof quantification.‖ ‘ [Citations.]‖

(People v. Linton, supra, 56 Cal.4th at pp. 1215-1216.)

(6) Instructions in the language of CALJIC No. 8.85 (given here) do not

―violate the Eighth and Fourteenth Amendments by failing to delete inapplicable

sentencing factors, delineate between aggravating and mitigating circumstances, or

specify a burden of proof either as to aggravation (except for other crimes

evidence) or the penalty decision.‖ (People v. Schmeck, supra, 37 Cal.4th at

p. 305.) ―Use in the sentencing factors of such adjectives as ‗extreme‘ . . . and

‗substantial‘ . . . does not create an improper barrier to consideration of mitigating

evidence.‖ (People v. Contreras, supra, 58 Cal.4th at p. 173.)

(7) ―We have also repeatedly rejected defendant‘s claim that the death

penalty statute violates international norms in general or, specifically, the

International Covenant on Civil and Political Rights. [Citations.] Because

defendant fails to explain why our precedents on this issue should no longer be

followed, we reject this claim as well.‖ (People v. Capistrano, supra, 59 Cal.4th

at p. 881.)

E. New Trial Motion

Defendant contends the trial court erred under state law in denying his

motion for new trial (Pen. Code, § 1181) and that the denial also violated the due

process clause of the Fourteenth Amendment to the federal Constitution and his

Eighth Amendment right to a reliable guilt phase proceeding. We reject the claim.

1. Background

As previously explained, the defense to the Sharley Ann German murder

was that defendant was in Massachusetts on April 25, 1986, the day she was

killed. Not only did defendant and Karen Dolan testify to this effect, he called


three friends from Massachusetts (Robert Thompson, Mark Weber, and Karen

Shaw), all of whom testified they saw defendant in Massachusetts at the end of

April 1986. Weber testified that defendant stayed overnight at his house the last

weekend of April, while Thompson testified he gave defendant a ride to Logan

Airport in Boston that weekend. Glenn Johnson testified he picked up defendant

from the San Francisco airport three or four weeks before Johnson‘s birthday,

which falls on May 27.

The prosecutor sought through cross-examination to create doubt about the

accuracy of the defense witnesses‘ memories of when they saw defendant in April,

and presented rebuttal evidence designed to undermine their testimony. After

establishing defendant‘s pattern of charging long distance calls he made while on

the East Coast to his San Jose telephone number, the prosecution presented

evidence that there were no such charges after April 10, 1986, 15 days before

Sharley Ann was murdered. Karen O‘Neal, who had been married to defendant‘s

friend John Mercuri, testified that defendant threatened to kill her and members of

her family if she laid claim to any marital assets during the divorce proceedings.

She testified she called him in California on April 14, 1986, and told him she

would sign over everything to Mercuri. Her phone records were introduced to

show the call was made on that date.

Defendant brought a posttrial motion for new trial based on newly

discovered evidence relating to the killing of Sharley Ann. (§ 1181, subd. (8).)

Included in the motion was an affidavit by one Louis Lombardi, a friend of

defendant‘s. According to the motion, Lombardi had been prepared to testify that

he and defendant were supposed to go to a San Francisco Giants baseball game on

April 29, 1986, but defendant was out of town on that date. Just before trial,

Lombardi told defense counsel he was no longer sure of the date and believed that

defendant had been with him at the game. The defense then decided against


calling him to testify. After trial, Lombardi recanted his statement that defendant

was with him at the baseball game, stating he lied because he had not wanted to


At the hearing on the new trial motion, defense counsel represented that the

defense had located a second witness, Richard Lillis, defendant‘s high school

hockey coach, who was prepared to testify he saw defendant at a restaurant in

Massachusetts on April 20, 1986, which was Lillis‘s birthday. (Lillis did not

submit a declaration in support of the motion.) Finally, defense counsel

represented that his investigator had uncovered evidence that tended to impeach

Karen O‘Neal‘s testimony that she called defendant on April 14 and agreed not to

seek any of the marital assets in her divorce with John Mercuri. Counsel stated

that on April 19, O‘Neal submitted a statement of assets and liabilities in the

divorce proceeding. He commented that it ―would seem strange if she was

threatened on [April] 14th, she wanted to settle the case, she was setting forth all

her assets in litigation posed just some days later.‖

The trial court denied the motion. The court found ―the evidence

overwhelming that at the time of the Sharley Ann German murder the defendant

was not back east. The credibility of Mr. Lombardi is extremely questionable

based on him changing his stories. The court does not find this to be newly

discovered evidence, just an affirmation of one of Mr. Lombardi‘s versions of

what his testimony may have been.‖ The court was skeptical that the other

evidence — presumably Lillis‘s proposed testimony and the purported

impeachment evidence relating to O‘Neal‘s testimony — constituted newly

discovered evidence for purposes of the statute. That aside, it concluded: ―It‘s

extremely doubtful whether or not that [evidence] would have in any way made

any difference in the eventual verdict. If they had testified, or Mr. Lombardi had

testified, in accordance with the affidavits, then, everything considered, no


different result would have taken place, especially in light of the other evidence

that was presented, especially the phone records.‖

2. Discussion

― ‗To grant a new trial on the basis of newly discovered evidence, the

evidence must make a different result probable on retrial.‘ [Citation.] ‗[T]he trial

court has broad discretion in ruling on a new trial motion . . . ,‘ and its ‗ruling will

be disturbed only for clear abuse of that discretion.‘ [Citation.] In addition, ‗[w]e

accept the trial court‘s credibility determinations and findings on questions of

historical fact if supported by substantial evidence.‘ [Citation.]‖ (Verdugo, supra,

50 Cal.4th at p. 308.)

― ‗In ruling on a motion for new trial based on newly discovered evidence,

the trial court considers the following factors: ― ‗1. That the evidence, and not

merely its materiality, be newly discovered; 2. That the evidence be not

cumulative merely; 3. That it be such as to render a different result probable on a

retrial of the cause; 4. That the party could not with reasonable diligence have

discovered and produced it at the trial; and 5. That these facts be shown by the

best evidence of which the case admits.‘ ‖ ‘ ‖ (People v. Howard (2010) 51

Cal.4th 15, 43.) Here, the trial court did not abuse its discretion when, applying

these factors, it denied defendant‘s new trial motion.

We defer to the trial court‘s finding that, based on his affidavit, Lombardi

would not have been a credible witness. Not only had he twice changed his story

of whether defendant had or had not accompanied him to a baseball game but, as

the prosecutor observed at the hearing, he also would have been subject to

impeachment by his failure to have testified about the baseball game at the

preliminary hearing.


The defense‘s description of Lillis‘s proposed testimony was based entirely

upon defense counsel‘s representation of what he would say, not on a declaration

by Lillis himself. This, surely, is not the ― ‗ ― ‗best evidence of which the case

admits.‘ ‖ ‘ ‖ (People v. Howard, supra, 51 Cal.4th at p. 43.) In any event,

Lillis‘s testimony would have been, at most, cumulative to the testimony of

Thompson, Weber, and Shaw, all of whom claimed to have seen and been with

defendant in Massachusetts at the end of April 1986. Defendant appears to be

arguing that, unlike their testimony, Lillis‘s would have been unassailable because

the date he remembered seeing defendant was his birthday. But any testimony

involving a witness‘s memory of events that occurred years earlier is susceptible

to impeachment. Lillis would have been no different on that score than

defendant‘s other alibi witnesses who, after all, testified not just that they had

casually seen him but that he had visited with them and even stayed at the home of

one of them.

Finally, we agree with the trial court that the evidence that would

purportedly have impeached Karen O‘Neal‘s testimony hardly seems so

significant that it would have made a different result probable on retrial,

particularly in light of the telephone records showing that defendant did not charge

any long distance calls to his San Jose telephone number within two weeks of

Sharley Ann‘s murder. Accordingly, we find no abuse of discretion in the trial

court‘s denial of defendant‘s new trial motion.

F. Cumulative Error

Defendant contends the cumulative effect of prejudice flowing from his

allegations of error requires reversal. As to most of his allegations, we have

concluded there was no error. In those instances in which we found or assumed

error occurred, we have concluded any error was not prejudicial. Even when


considered altogether, those actual or assumed errors did not deprive defendant of

a fair trial.


The judgment is affirmed.





See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. O‘Malley

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted


Opinion No.
Date Filed: February 18, 2016

County: Santa Clara
Judge: Hugh F. Mullin III



Cliff Gardner, under appointment by the Supreme Court, and Lazuli Whitt for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Gerald A. Engler and Ronald A. Matthias, Assistant Attorneys General, Glenn R. Pruden
and Nanette Winaker, Deputy Attorneys General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Cliff Gardner
Law Office of Cliff Gardner
1448 San Pablo Avenue
Berkeley, CA 94702
(510) 524-1093

Nanette Winaker
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5934

Opinion Information
Date:Docket Number:
Thu, 02/18/2016S024046