Supreme Court of California Justia
Docket No. S112442A
People v. Smith, Jr.

Filed 4/27/15 Reposted to correct superior court docket number; no change to opinion text.



Plaintiff and Respondent,



Shasta County


Super. Ct. No. 98F2652

Defendant and Appellant.

A jury convicted defendant Paul Gordon Smith, Jr., of the first degree

murder of Lora Sinner, with the special circumstance of torture.1 The jury also

found defendant guilty of false imprisonment by violence and conspiracy to

commit murder. It determined that he used a deadly weapon and inflicted great

bodily injury.2 The jury decided death was the appropriate penalty, and the court

imposed that sentence. This appeal is automatic.

We affirm as to guilt, but reverse the penalty judgment. Defendant‟s

violent attempt to escape from jail just before his trial began created difficult


Penal Code sections 187, 190.2, subdivision (a)(18). Further statutory

references are to the Penal Code, unless otherwise indicated.

Sections 182, 187, 236, 1203.075, and 12022, subdivision (b)(1).

Defendant was originally charged along with codefendants Lori Smith and

Eric Rubio. Smith and Rubio entered pleas before trial and were witnesses for the
prosecution. Another participant in the crimes, Amy S., was prosecuted as a
juvenile, and also testified below.


problems for the court at various phases of the proceedings. We conclude that

during the penalty phase, the court improperly excluded expert testimony about

prison security measures for those sentenced to life without possibility of parole.

The evidence was admissible to rebut the prosecution‟s evidence and argument

suggesting that defendant would pose a danger in custody. Because we cannot say,

beyond a reasonable doubt, that the penalty determination would have been the

same had the jury heard from defendant‟s expert, we must reverse the penalty



A. Guilt Phase

1. Prosecution

In December 1997, defendant was 21 years old and living with his father in

Redding. During that month he met his younger half sister, Lori Smith, for the

first time. Lori had been living in Washington State. Defendant‟s older brother,

Timothy Smith, also arrived from Washington with his fiancée, Lora Sinner.3

Defendant married Jessica Smith in January 1998. Shortly thereafter, he

began a relationship with Amy S., a 14-year-old runaway. Defendant‟s friend Eric

Rubio became romantically involved with defendant‟s sister Lori. Sinner ended

her engagement with Timothy and began to associate with defendant, Amy, Eric,

and Lori. Toward the end of February this group, led by defendant, began an

extended camping trip on private land in Shasta County.

Of the five, Sinner was the only person without a partner. She flirted with

defendant, which angered Amy. Defendant returned Sinner‟s attention in order to

maintain access to her car, which they used to drive into town from camp. About a


For the sake of clarity, hereafter we refer to Lori Smith as “Lori,” and to

Lora Sinner as “Sinner.”


week before Sinner‟s murder, Lori and Amy discussed beating her up, and

defendant told Eric he wanted to “off this bitch,” referring to Sinner. Lori testified

that during a conversation with everyone except Sinner, defendant said Sinner

should be killed. Eric remembered the conversation, but not who made the


On the afternoon of the murder, Lori and Amy again spoke about beating

Sinner. According to Lori, defendant encouraged them because he wanted Amy

and Sinner to fight over him. Eric testified that defendant told him “the girls”

wanted to fight Sinner, and he didn‟t know what to do about it. Eric said

defendant displayed no signs of intoxication that afternoon. Toward the end of the

day, Amy punched Sinner in the face. Sinner punched back, and Lori joined the

fight. Defendant and Eric were in a tent about 15 feet away.

Amy testified that Lori knocked Sinner‟s head against a tree several times.

Amy struck her in the head five or six times with a large can of chili, which she

tossed aside after it was dented. Lori slammed Sinner‟s head into a large rock.

Meanwhile, Amy retrieved two pieces of an automotive dent puller. One piece

was a metal bar about an inch and a half thick and a foot long. The other was a

weighted metal piece shaped like a barbell. As Sinner sat on the ground, Amy and

Lori repeatedly hit her with these implements. Sinner was crying and asking them

to stop. Amy admitted taunting Sinner during the assault.

Lori‟s account differed somewhat. She did not remember hitting Sinner‟s

head on a tree or a rock, nor did she remember any taunting. She testified that

after punching Sinner with her fists, she retrieved the dent puller bar from the tent.

Defendant and Eric were watching the assault. Lori hit Sinner with the bar as hard

as she could two or three times. She also hit her with the chili can after Amy

dropped it.


Eric testified that he and defendant were in the tent when the fight started.

They could hear but not see the beating. Defendant showed no interest, saying,

“just let them fight.” Amy had taken one piece of the dent puller from the tent, and

Lori the other. Eventually, defendant intervened.

Amy confirmed that defendant stopped the fight. He told them to take

Sinner down to the creek and clean her up. Lori maintained it was her idea to take

Sinner to the creek. There, she and Amy scooped water onto Sinner‟s head to

wash the blood from her hair. Eric and defendant also came to the creek.

According to Lori, defendant took her aside, held out an ax, and said, “Just finish

her off.” Lori refused. Defendant had no apparent difficulty walking or talking;

Lori did not know if he had taken any drugs that day. They all returned to the tent.

Lori did not see what defendant did with the ax. The couples sat in the tent; Sinner

sat on a mat outside the door.

Defendant produced a bottle of whiskey, which the couples shared.

Defendant then gave the bottle to Sinner, telling her it would help with the pain.

Sinner took a small drink. Defendant became angry, and asked Eric to help tie her

up. After initially refusing, Eric put a noose around Sinner‟s neck. Defendant tied

her hands and feet. Sinner was crying. Defendant, still angry, told her she was

going to kill herself. He said she was in enough pain already and might as well

join her mother, who had died recently. Declaring that Sinner‟s death was going to

look like a suicide, defendant untied her hands, handed her a razor blade, and told

her to cut her wrists. Sinner cried and refused at first, then cut her wrist once.

Saying the cut wasn‟t deep enough, defendant took the blade, slashed her wrist,

and handed the blade back to her. Sinner tried to inflict another wound.

Defendant, unsatisfied, took the blade back and cut her wrist repeatedly.

Defendant told Sinner to hold her wrists over a fire pit. Lori testified that

defendant struck Sinner‟s hands several times with the bar when she moved them.


He also kicked her in the forehead and poured whiskey over the bleeding cuts,

causing Sinner to scream. He forced her to drink more liquor. Then he wrapped a

plastic garbage bag around her head, cinching it tightly. Sinner continued crying

and pleaded for help. Defendant struck her on the neck and back several times

with the bar, then asked if anyone else wanted to hit her, looking at Lori. Lori was

scared but wanted to prove she wasn‟t afraid to hurt someone. She hit Sinner with

the bar twice in the head and neck, and said she was “hard to kill.” Defendant

snatched the bar, told Lori she wasn‟t doing it right, and hit Sinner several more

times. When a blow produced a snapping sound, he stopped.

Eric and defendant buried Sinner. Lori testified that Eric was frightened

and shaking. When the men returned, defendant said “she knew too much,” and he

feared she would say something. Lori understood him to mean that Sinner would

tell the police he had been stealing purses from cars. Defendant warned the others

that anyone who revealed what had happened would be the next to die. They

agreed to say they had put Sinner on a Greyhound bus. The next morning, they

burned her clothing and belongings at the burial site.

Amy‟s testimony about the events following the fight was roughly

consistent with Lori‟s, though she was hazy on many details, particularly

defendant‟s statements. She said defendant did not appear to be drunk or under the

influence of drugs. She remembered Lori saying, “This bitch won‟t die” as she

struck Sinner with the bar. Amy did not mention defendant having an ax, or

asking Lori to “finish her off.” Amy could hear Sinner breathing against the

plastic wrapped around her head just before defendant and Eric carried her away to

bury her.

Eric‟s account was similar. He said he did not join the others at the creek,

but stayed on the bank with a flashlight, watching. He did not see defendant with

an ax. Defendant said Sinner wouldn‟t survive because her skull was cracked and


the back of her head was “mushy.” Eric admitted helping bind Sinner. He related

that defendant cut Sinner‟s wrist, poured alcohol on the wounds, and kicked her in

the head when she did not obey his directions. According to Eric, Sinner was still

breathing after the final blow. Defendant then cinched the bags around her head

and held them for 30 to 60 seconds, saying she would die more quickly that way.

Eric initially refused to help dispose of the body. Defendant told him he

had better, “or I would end up just like her.” Frightened, Eric helped defendant

bury Sinner. They stripped the body first because, defendant said, it would

decompose faster. Afterward, defendant instructed the others to say Sinner had

gone back to Washington. He told them “we would all end up like her if we said

anything.” In the morning, they burned Sinner‟s clothes on top of the grave.

Defendant said this would keep animals from digging her up.

The murder came to light some weeks later when Lori confessed to

acquaintances that she and defendant had “beat and tortured” Sinner to death.

While in jail, defendant participated in two videotaped interviews with detectives

and two audiotaped interviews with a newspaper reporter. The tapes were played

for the jury. In the first interview, defendant was given Miranda warnings and

said he understood them. (Miranda v. Arizona (1966) 384 U.S. 436.) He denied

committing the murder but said he would take the blame because he was the only

one of the group who could tolerate prison. Eventually, he began providing

details. He said Sinner could have died from either a head wound or asphyxiation,

but “would have died regardless.” He described her injuries, then recounted the

following events after she was washed in the creek:

“Went back up to the top of the hill, resumed, she was tied up, laid down,

by the fire pit, laughed at. Comments were made towards her, she was kicked, her

hand was broken, she was hit in the back with a metal pipe, bar. She was hit in the

back of the head, repeatedly in the back of the neck and the back of the head, I


remember the blood splattering. And she just didn‟t move no more. She wasn‟t

making no noise. Just kind of like laid there, then . . . a piece of plastic was put

around her face and then another piece of plastic, but she was already dead.”

Defendant admitted getting Eric to help him bury the body. He conceded he could

have stopped the attack, and had no reason why he did not.

Defendant continued giving details, without identifying his role. He said

Sinner “was . . . given options, suicide. . . . She was given a razor blade and told to

cut her own wrists. . . . She uh couldn‟t cut her own wrists she was kind of too

drunk . . . wrists were cut for her, deeper. A lot of blood. But that wasn‟t

enough. . . . She was hit again with the pipe or the bar. . . . Either in the back of

the head or the back of the neck, twenty, thirty, forty, fifty times, I don‟t

know. . . . [S]he couldn‟t break her neck. Couldn‟t kill her.” Defendant said

Sinner had cried out in pain, but “it only brought more hits and more and more and

more she kept trying, after every hit it got quieter and quieter. Then you heard a

crunch. Something breaking, her neck breaking. . . . There was no more noise.

She didn‟t move. Just laid there. And then there was a plastic bag or something

on her head. We just held it there the whole time. She wasn‟t breathing . . . and

then after a few seconds, it was only a few seconds, long enough to choke her,

asphyxiate anybody.”

Defendant said he had been “protecting her, but I couldn‟t protect her

when it really counted.” He admitted that Sinner had “suffered immense pain,”

and that “she was tortured.” He said the others would not have said anything to the

authorities because “they were too scared of me.” He denied fearing that Sinner

might have reported his crimes, explaining “she liked me way too much” to do


The next interview took place the following day. Defendant remembered

his Miranda rights, repeating them himself for the detectives. They told him that


Amy and Lori had given them a complete account of what had happened, and

asked defendant to explain his role. Defendant said the others were trying to

protect him, commenting, “The only reason they didn‟t say something sooner is

because they thought I‟d kill them.” Defendant continued to take the blame,

because “a brother never rats on his sister.” Told that Lori had given a written

statement, defendant asked if she reported anything Sinner said about trusting him.

He said that after the initial beating, he knew she would not survive. Defendant

then offered to tell the detectives “a little story,” if the recorder was turned off.

Evidently believing he was not being recorded, defendant gave a lengthy

statement, including an excuse for not intervening to protect Sinner. When the

assault began, he was in the tent with Eric. After drinking and smoking marijuana,

defendant took four muscle relaxants. He heard screaming, and saw the attack.

Lori came to the tent and got the two pieces of the dent puller, which Amy and

Lori used to hit Sinner. Defendant claimed he was “mesmerized” and

incapacitated by the drugs. He did not usually use medication, because he did not

like to lose control. Sinner was calling him for help, but he was unable to move.

Amy and Lori kicked and taunted her for a long time. After about an hour

defendant was able to get up and make them take Sinner to the creek.

The back of Sinner‟s head was “mushy,” the side of her neck was blue, and

her face was bloody. She said she couldn‟t see. Her hands were swollen.

Defendant brought her back to the tent and gave her whiskey. He pulled Eric aside

and asked what they should do. Sinner would not survive, and defendant did not

want to see her suffer. Eric tied her up, but defendant released her and started

talking “into her ear.” He asked about her mother, and Sinner said she loved her

and wished she hadn‟t died. Defendant told her she was “probably going to go see

[her] mom tonight, you‟re gonna die.” He felt sorry and responsible, and offered

to “kill her for her, and end the pain quickly, as fast as I could.” He gave her more


whiskey, and obtained a razor. Sinner “didn‟t really want to die but she accepted

the fact.” After she tried to cut her wrist, defendant took the razor blade and

attempted to do it himself, but was hampered by his drug ingestion and the

flimsiness of the blade.

Frustrated, defendant “kept making her drink more whiskey,” then sat

down. Lori began beating Sinner again. Sinner was screaming by the time

defendant was able to take the bar from Lori. He hit Sinner twice, and realized her

neck was broken. Because she was still gasping for air, he wrapped the plastic

bags around her face until she stopped breathing. Defendant told the detectives,

“If I would have had a gun I would have just killed her faster, but I had no way to

kill her faster. . . . First time in my life I haven‟t had a gun when I need one, when

it really counted. She didn‟t want to die. I had to convince her. It‟s not even

right, but I still feel I was in the right for, I mean, do I kill her or let her suffer

through the whole night.”

Defendant‟s interviews with the newspaper reporter took place in jail

several days later. In the first, he said he had been under the influence of alcohol,

marijuana, and medication. He had killed Sinner “out of mercy and with her

permission.” He heard the attack as it occurred but was unable to move because of

the drugs. He planned to plead guilty if the district attorney dropped charges

against the others. In the second interview, defendant was upset about the details

that had appeared in the paper.

The forensic testimony established blood-alcohol levels of 0.78 and 0.88

percent in blood extracted from Sinner‟s heart. There were at least nine incisions

on her left wrist, all superficial. While not life threatening, they would have been

painful. Pouring alcohol over them would have exacerbated the pain. The cause

of death was blunt force head injuries, with asphyxiation a possible contributing

cause. The exceptionally high blood-alcohol level could have been an additional


fatal factor, but the level detected may have been influenced by postmortem

migration of alcohol from the stomach to the heart.

2. Defense

The defense presented numerous witnesses to impeach the truthfulness and

reliability of Lori Smith. An investigating detective recounted inconsistent

statements made by Lori and Eric Rubio. Forensic testimony challenged the

reliability of the blood-alcohol levels found in Sinner‟s blood samples. A

psychiatrist testified about the effects of the muscle relaxant and other drugs

defendant claimed to have ingested.

B. Penalty Phase

1. Prosecution

The victim‟s father, aunt, and brother testified about her life and the impact

of her death. Similar testimony was given by her minister, her supervisor at a

program where she worked assisting developmentally disabled adults, and a high

school counselor.

Prosecution witnesses related numerous acts of violence defendant

committed while housed in group homes or juvenile hall. In March 1990, at the

age of 12, defendant ran away from a work project and swung a broken glass bottle

at a supervisor. When restrained, he continued to resist. Defendant told the deputy

who took him to a mental health facility that he wanted to kill himself. Several

months later defendant was suspected of helping to force one boy to orally

copulate another resident at a group home. Later, defendant kicked that boy in the

head, and was expelled from the program.

In 1991, defendant stabbed a group home staff member with a pen and bit

him. Five adults restrained defendant while he flailed violently. He was

subsequently admitted to a mental health facility. In 1992, defendant punched a

group home resident in the jaw without warning. The victim required surgery and


his jaw was wired shut for weeks. Defendant was arrested. In 1995, he was

housed in a high-security unit at juvenile hall. He tapped on his cell door to get the

attention of a counselor, then slid a knife fashioned from a flattened Pepsi can

under the door. Shortly thereafter, he struck another resident in the mouth and

used a racial epithet.

The prosecution also presented evidence about an assault defendant

committed shortly before Sinner‟s murder. Michael Murchinson testified that in

February 1998, he was with defendant and others as they drove back from Reno.

They were running out of money. Murchinson and defendant first considered

robbing a convenience store, then decided to target a prostitute. They picked up a

woman and drove to an industrial area. After having intercourse with her,

defendant confronted her with a gun. She screamed and ran away. Defendant

fired a shot. He and Murchinson drove away with the woman‟s purse. However,

defendant discovered he had dropped his wallet. They went back to look for it and

were arrested.

The jury heard about a number of incidents in the county jail after

defendant‟s arrest for Sinner‟s murder. In April 1999, he wrote his wife about

escaping, and asked her to take photographs of the jail‟s exterior. He told her he

would not die in jail, but would “go out in a blaze of glory.” She contacted law

enforcement. The jury heard a recording of a phone call between defendant and an

agent who pretended to be his wife‟s friend. They discussed the photographs and

how to get them to defendant.

In August 1999, a six-inch steel shank and a corner section of a metal tray

were found in defendant‟s cell. He admitted these items were his and said he was

going to use them on a fellow inmate.

In February 2001, guards noticed water coming from defendant‟s cell. He

had blocked the window in the cell door. When the water supply to his cell was


cut off, defendant began yelling and kicking, and threatened a guard. Attempting

to move defendant to a more secure cell, the guards opened the cell door and

sprayed him with pepper spray, but he had wrapped a T-shirt around his head and

covered his eyes with a plastic bag. A cell extraction response team was

summoned. A videotape of the extraction showed four guards, wearing protective

gear, removing defendant from his cell after rolling in a “flash bang” grenade that

scattered hard rubber pellets. Defendant was strapped into a restraint chair and

examined by a nurse.

A 28-inch baton, made of tightly rolled newspaper secured with elastic, was

found in the cell. Hard and dense, the baton did not bend or break when struck

against a concrete table. A few days later, defendant told a guard that one of his

ears was still ringing, and that the grenade had surprised him. He had expected

them to use a beanbag shotgun, which he had planned to take away from them.

In May 2002, defendant planned an escape with fellow inmate Ben

Williams. Defendant approached Aaron Cozart, a newly incarcerated inmate, and

asked him to create a distraction by taking a hostage and forcing a cell extraction.

Meanwhile, defendant and Williams would knock out a window and use a rope

made of bedsheets to retrieve weapons and tools brought by a recently released

inmate named Tim. Tim would place some money in defendant‟s jail account

when everything was ready. The target date was May 17th or 18th. Cozart made

some phone calls and spoke to Tim, who failed to appear on the appointed dates.

Defendant said they would go ahead the following week, but Cozart changed his

mind and reported the plot. A deputy confirmed that a Timothy Yakiatis had

deposited funds in defendant‟s account on May 15th. The conspirators were

moved to different cells.

In June 2002, defendant became angry with guard Timothy Renault over a

scheduling issue. Renault overheard defendant tell another guard that if he ever


got out “there would be a fight, and he would get me.” The next night inmate

Harold Seems saw defendant walking toward the shower next to Seems‟s cell. He

heard defendant ask, “Do you have it?” A voice that Seems recognized as Ben

Williams‟s answered, “Yes.” Defendant said, “We‟re going to have to kill him.”

Williams replied, “Real fast.” Seems assumed they were planning to assault a

guard, and wrote a note of warning. Some time later, Renault appeared on his

rounds. Seems held up the note and made a warning gesture. Renault ran toward a

nearby door. Williams and defendant emerged from the shower, grabbed Renault,

and dragged him toward the shower.

Renault testified that he entered defendant‟s cell pod around 3:50 a.m. He

noticed Seems at the window of his cell door, with a scared look on his face.

Seems whispered, “Get out of here.” Renault headed for the door and radioed the

control room. As he reached for the door, he heard a shower curtain open. He

turned to see Williams crouching, and a second figure in the shower stall. The two

men attacked, forcing Renault into a corner and hitting him repeatedly. It felt like

he was being held and hit by more than one person. The first deputy to respond

heard screaming and saw defendant walking away from the shower. Williams was

striking Renault‟s face. Deputies tackled and handcuffed Williams. Renault,

covered with blood, told them that defendant and Williams had attacked him.

Nearby, deputies found a metal drain grate backed by a bar of soap wrapped

in twine and strips of bedsheet, with a handle formed of tightly rolled paper. The

grate in Williams‟s cell was missing. Renault suffered numerous injuries,

including lacerations in his scalp and mouth, a skull fracture, a blood clot on the

brain, fractures of the cheekbone and eye socket, a broken jaw, and a broken tooth.

Plates and screws were installed in his skull and jaw to stabilize the fractures.

As defendant walked away from Renault, he passed by Seems‟s cell. Seems

saw blood on defendant, and a bloody cloth hanging out of his pants. Deputies


found blood on his hands, forearms, and shoulder. Concealed in his clothing were

a two-foot-long strip of bedsheet stained with blood and a razor wrapped with

twine. A piece of torn towel was tucked into the front of his underwear. Blood

was spattered on his clothes and shoes. In defendant‟s cell, deputies found another

newspaper baton and a length of string with padded loops on each end, which

would have protected the fingers if the string was used as a garrote. A paper bag

bearing defendant‟s name was found in the shower. It contained clothing,

toiletries, and two lengths of rope made from sheets, one 12 feet long and the other

nearly 50 feet long.

2. Defense

Defendant presented extensive evidence of an abusive childhood. He was

the third of six children. They lived in a filthy home where they were neglected

and beaten. Child Protective Services (CPS) was notified, but took no action until

defendant‟s father told a psychologist that he had been sodomizing defendant and

his brother Timothy for years. Defendant was victimized from the age of two and

a half until he was five. His father pleaded guilty to several counts of sodomy and

served time in prison.

Defendant was five years old when the children were removed from the

household. While some of the children were eventually returned, defendant and

Timothy were not. Defendant was placed with 13 different caretakers from 1983

to 1990. The county‟s CPS unit was underfunded. Mental health services were

limited; social workers received no training on the effects of child sexual abuse. A

supervisor who reviewed defendant‟s file testified that his was the worst situation

the department had addressed. The damage done to defendant as a child was as

severe as any the supervisor had encountered.

Numerous witnesses chronicled defendant‟s increasingly difficult

progression through foster homes, group homes, and eventually the California


Youth Authority (CYA). In 1985, after two years with a foster parent who

considered herself only a temporary caretaker, defendant was placed with a foster

mother known for her work with boys from difficult backgrounds. He developed a

close relationship with her, but she decided to go to graduate school. In 1987 her

foster home was converted to a group home, which was run by her son Ken Sloan.

Defendant also became close to Sloan, who referred to him as “son” and

assured defendant he would always be there. However, Sloan became distant as

time passed. When the principal of defendant‟s elementary school asked Sloan

about the relationship, he described defendant as “one of the kids at the home.”

Reminded of his earlier assurances to the child, Sloan replied, “things change.”

Defendant became angry, hostile, and aggressive. He reported that Sloan hit him

with a two-by-four. Another resident testified that Sloan regularly imposed harsh

physical punishments. Defendant ran away several times. Sloan was investigated

and ultimately barred from employment in any State Department of Social Services

facility. Defendant told an investigator that Sloan was as close as he had gotten to

a father figure, and that he repeatedly asked Sloan to adopt him.

Defendant was transferred from Sloan‟s home in 1989. The new foster

mother described him as “a very angry little boy.” After two months the placement

was terminated because defendant threatened the foster mother and another child.

After one day in another foster home, defendant was moved to a new placement,

where his brother Timothy joined him. He was removed from that home after

three months because he was hitting his brother. In the next group home,

defendant threatened a staff member with a broken bottle and spoke of suicide,

leading to another transfer. In March 1990 he spent two weeks in a foster home,

but was removed when he threatened to burn the house down. His subsequent

placement was the one in which he was suspected of forcing one boy to orally

copulate another, and from which he was later expelled when he kicked the victim.


After the kicking incident, defendant‟s social worker recommended that he

be transferred to the jurisdiction of the juvenile probation department. A

misdemeanor battery charge was sustained in juvenile court. A supervising

probation officer testified that he had gotten to know defendant over the course of

several periods of custody from 1990 through 1994. He liked defendant, and had

no problems with him. He and his wife had discussed adopting him. The wife,

who was a counselor at juvenile hall, testified that it was a difficult decision. She

thought defendant would benefit from a family situation, but they decided against

adoption. They had two teenage daughters, and adoption would have required

them to leave their current employment.

In early 1991, defendant was living in a group home where he became

acquainted with the bookkeeper, who let him do homework in her office. She

liked him, found him very bright, and sometimes took him home with her on

weekends. He got along well with her children. She considered bringing him into

her home permanently. However, her fiancé objected, she became pregnant, and

ultimately decided she could not take defendant in. She explained the situation to

him in a long conversation, and told him they would stay in touch. After she left

the group home, defendant wrote letters and telephoned, begging her to let him

live with her. It took him a year to accept her decision. Ultimately she cut off

contact, feeling it was not good for him to hold on to a dream that would not be


Defendant spent the latter part of 1991 at a residential treatment center. His

therapist testified that he was disruptive and angry, distrusting any adult. She

considered him to be severely damaged emotionally. The placement ended when

defendant assaulted staff members.

Some months later, defendant was placed in another residential facility.

The program director testified that he “acted out” from the beginning. He was


prone to fits of rage, would bang his head on the wall, and was resistant to both

group and individual counseling. He trusted no one, feared adults, and had no

serious emotional attachments. One counselor, however, testified that he got along

well with defendant, and thought they were making progress until defendant

injured himself playing baseball, which “interfered with his program.” Shortly

after the injury, defendant was expelled. He and another resident had violated the

program‟s rules by leaving the facility, taking a staff member‟s rifle from the cab

of a pickup truck, and using it to shoot at squirrels and other objects in a field.

In 1994, defendant lived in a group home where, the operator testified, he

did well. However, on a home visit defendant was involved in an incident that

resulted in a CYA commitment. A juvenile justice expert testified about

defendant‟s years under CYA jurisdiction, based on a review of the agency‟s

records. From February 1995 until his discharge in November 1997, defendant

was consistently unable to maintain relationships with peers or staff. He was

rebellious and a constant management problem, receiving increasingly restrictive

placements. By the time he was paroled, he was in the highest security CYA

facility. However, he did well in school, earning his high school degree.

Defendant testified at the penalty phase. He remembered only one incident

of sodomy by his father. His father said it was punishment for being bad. He and

his brother had cried beforehand, because they knew what was going to happen.

He had little memory of his mother. Defendant gave accounts of his various foster

care placements. He remembered Ken Sloan promising to adopt him, and being

impatient for that to happen. However, Sloan changed, becoming prone to fits of

anger and imposing harsh punishments. Defendant‟s social worker did not believe

him when he reported the abuse. Eventually, defendant began running away.

At his next placement, defendant said he was unable to handle the freedom

allowed by the foster mother. He acknowledged that his behavior was


noncompliant, but did not understand why. Defendant attributed the group home

kicking incident to a therapy session where the victim was instructed to

intentionally anger defendant, which he did by bringing up the history of

defendant‟s abuse by his father. Defendant denied that the forced oral copulation

occurred. After the age of 12 or 13, he had many problems with lack of self-

control. Sometimes he would regret his actions, and sometimes he felt they were


Defendant said he was placed with his father in 1994 at his own request.

The placement was revoked when his father complained to the probation officer

about defendant‟s disobedience. The incident that led to his CYA commitment

occurred when he and his cousin were involved in a high-speed car chase. His

cousin had been driving. Defendant did not like being with gang members in the

CYA. He preferred school and being kept in isolation, where he would read.

Defendant tried unsuccessfully to find work when he was paroled in

November 1997. He did not have much of a relationship with his wife. They had

married at her insistence, to legitimize their daughter. Regarding the incident with

the prostitute, he claimed he had procured the gun for his companion, Murchinson,

and it discharged accidentally during the attempted robbery.

Defendant denied that he planned or discussed killing Lora Sinner. He only

decided to kill her after the assault, because he thought she was dying. He said

Sinner was not tortured. He admitted cutting her wrist, but not pouring alcohol on

the wounds. Though he felt he deserved to be imprisoned for his role in the

murder, he conceded that he continuously made plans to escape. However,

defendant maintained that he never meant to injure a guard. The plan for the final

escape attempt had been to tackle Renault, restrain him in a cell, and use his key to

get to an exterior window. He did not know Williams would attack Renault with

the grate, which was supposed to be used to break the window. Defendant had


grabbed Renault, but walked away when he realized what Williams was doing. He

regretted choosing the “unstable” Williams as a coconspirator.

Several mental health experts testified for the defense. Dr. Steven

Blankman was the psychologist who reported the molestation by defendant‟s

father. He assessed defendant in 1983 after his removal from the family home, and

provided therapy for about a year. Defendant was uncooperative and oppositional.

He displayed mild developmental problems with symptoms of insecurity, isolation,

and impulsivity. He had experienced extreme psychosocial stress. By the time

Blankman moved his practice, there had been little improvement. Defendant‟s

behavior in temporary foster placement was disobedient, destructive, and

aggressive. Blankman recommended continuing therapy and a permanent foster


Dr. Myla Young, a clinical neuropsychologist specializing in inmate mental

health, gave defendant a series of tests and reviewed his placement history. Young

found defendant‟s intelligence to be “high average,” but his performance on all

measures of attention and concentration was significantly impaired. These results

were consistent with his test scores in childhood. Defendant‟s performance on

memory and learning tests was also poor. It would be reasonable to conclude that

he suffered from brain damage. He exhibited a serious depressive disorder,

grossly distorted perceptions of reality, and illogical thinking. He was emotionally

dependent on others but his anger interfered with his ability to satisfy his

emotional needs. Young found that defendant suffered from psychosis and

posttraumatic stress.

Psychiatrist George Woods interviewed defendant three times for a total of

six hours, and reviewed defendant‟s records. Woods also concluded that

defendant suffered from posttraumatic stress disorder. His early childhood history

had impaired his ability to self-regulate. Without appropriate behavioral control


and psychological treatment, his aggressive behavior had continued. He was

traumatized again when his foster placements failed to provide stable family

connections. His emotional responses tended to fluctuate between numbness and

explosiveness. The symptoms of defendant‟s mental disorder were present at the

time of the murder, but Woods said this did not mean defendant was not legally

responsible for his actions.

3. Rebuttal

A social worker testified about the services defendant‟s family received in

1980. Based on her own observations at the time, she had concluded there was

only general neglect in the household. More was required to merit court


A probation officer testified about numerous attempts to provide defendant

with an appropriate setting. Defendant‟s juvenile placement officer in 1994 also

spoke to the difficulties of securing a proper placement. Ken Sloan testified,

admitting he had called defendant “son” and considered adopting him, but denying

he promised to do so. Defendant had lived with Sloan from about the age of seven

until he was twelve. His behavior deteriorated as he became older. Several CYA

employees testified about defendant‟s conduct.

The prosecution called CYA psychologist Dr. Derek Washington, who had

interviewed defendant in 1996 for an annual review. He had been surprised at

defendant‟s hardened attitudes toward authority figures and rules, which were

more typical of wards from metropolitan areas. Defendant was angry and

embittered, but thought clearly. Washington saw no symptoms of organic brain

disease, and concluded that defendant had an antisocial personality disorder.

Psychiatrist John Shale reviewed defendant‟s records and the reports of the

defense experts. He did not believe defendant suffered from depression or organic


brain disorder. In his opinion, defendant had a severely antisocial personality

rather than posttraumatic stress disorder.

4. Surrebuttal

Julie Kriegler, a psychologist who treated children with posttraumatic stress

disorder, reviewed defendant‟s records and the other experts‟ reports. She

disputed Shale‟s findings, and agreed with the diagnoses of posttraumatic stress



A. Pretrial Issues

1. Motion for Change of Venue

a. Background

In October 2001, defendant moved to change venue from Shasta County.

Defense expert Stephen Schoenthaler was a professor of criminal justice and a

consultant on venue issues. Schoenthaler reviewed local newspaper articles that

appeared after defendant‟s arrest in April 1998. He was particularly concerned

about the report of defendant‟s confession. Confessions are strongly linked with

prejudgment of both guilt and penalty. Schoenthaler also highlighted defendant‟s

admission that he was using drugs and alcohol at the time of the murder, the

newspaper‟s discussion of his criminal history, and stories portraying the victim in

a sympathetic light.

Subsequent articles had addressed a variety of topics, including the

prosecutor‟s decision to seek the death penalty, defendant‟s housing in

administrative lockdown, Amy S.‟s juvenile proceedings, and the following

details. A psychologist in the juvenile case described defendant as a “cult leader.”

Though married, he had seduced the fourteen year old shortly after her release

from a psychiatric hospital and recruited her into his “Charles Manson-like

lifestyle.” The juvenile court judge described defendant‟s manipulation and


seduction of Amy, and called him the most brutal participant in the killing. Amy‟s

statement to the police referred to Sinner‟s “torture.” Defendant threatened to kill

Amy if she did not keep quiet. Defendant lied to police when he was arrested in a

stolen car. The prosecutor in Amy‟s case said the murder had been planned for

weeks, and was motivated by fear that Sinner would tell the authorities about the

group‟s crimes. Amy was found guilty in the “torture death.” The prosecutor in

her case agreed with Sinner‟s father that the other participants should receive the

death penalty. Lori Smith pleaded guilty to the “sadistic killing.” Eric Rubio also

pleaded guilty. Defendant threatened Lori because she agreed to testify against


The court authorized a community survey. Schoenthaler conducted

telephone interviews with 131 Shasta County residents who qualified for jury

service. Forty-nine percent of the respondents had concluded defendant was

guilty. Fifty-two percent thought he deserved the death penalty if convicted.

Fifty-six percent had prejudged either guilt or penalty. Schoenthaler believed there

was “far more” than a reasonable likelihood that defendant would not receive a fair

trial in Shasta County. The court was not persuaded, but acknowledged that a fair

trial might prove to be impossible. It deferred ruling on the venue motion until

after prospective jurors were questioned.

Voir dire began in May 2002. The court asked if prospective jurors had

heard about certain aspects of the case.4 If they remembered anything, the court


The court inquired about the following subjects: Statements made by

defendant to the police or the newspaper; one of the participants being a juvenile;
charges found true in juvenile court; defendant‟s relationship with a 14 year old;
statements by public officials about his culpability or the appropriate punishment;
defendant‟s past behavior; the circumstances of the victim‟s life; any details
involving a chili can, a dent puller, razor blades, washing in a creek, or pouring

(footnote continued on next page)


asked whether they had formed any feelings or opinions about defendant‟s guilt or

the appropriate penalty. It probed whether they could set aside the impact of

media reports and decide the case based solely on the evidence presented at trial.

On June 22, 2002, defendant and Williams made the escape attempt in which

Deputy Renault was assaulted and severely wounded. The next court day was June

25, 2002. Defense counsel were particularly concerned with two aspects of the

latest publicity: Renault‟s status as a correctional officer, and defendant‟s

association with Williams, who was notorious for having set fire to a synagogue in

Sacramento and allegedly murdering a local gay couple.

The court agreed it was necessary to reopen the voir dire of the assembled

juror pool to explore the effect of media accounts of the escape attempt. However,

it refused to “ask them specifically how would you feel about this kind of evidence

or that kind of evidence.” It invited counsel to submit questions. Going forward

with the voir dire of new candidates, it asked if they had seen or heard any media

reports about defendant since filling out the questionnaire. If they knew about the

escape attempt, it asked whether they would be able to set aside the information

during deliberations. In some instances, the court inquired whether news reports

had caused any feelings about defendant‟s guilt, and whether the prospective jurors

would be able to set aside those feelings. The court barred counsel from asking

about the weight they would give to evidence of the escape attempt.

On June 26, 2002, defense counsel submitted a list of questions for the

reopened voir dire. The court said its questioning would depend on the

(footnote continued from previous page)

alcohol; the names Eric Rubio, Amy S., and Lori Smith; and admissions of guilt by
two other charged persons.


prospective jurors‟ exposure to media reports. It rejected a proposed question

asking how they would be affected by the fact that a correctional officer was the

victim, because “that would be asking them to prejudge evidence.” Defense

counsel objected to this limitation, arguing that Deputy Renault‟s status as a

correctional officer was “relevant to bias and prejudice.” Counsel compared the

circumstance to a case in which a child was a murder victim. The court recognized

that evidence of the assault would be admissible in the penalty phase, but

maintained that questions on the subject would lead to prejudgment. It requested

further briefing on how the pending motion for a change of venue was affected by

the incident.

Over the following two days, the court recalled the 73 prospective jurors

who had been questioned before the escape attempt. It advised them collectively

about media reports in general, warning that they were incomplete and often

inaccurate. It noted that if evidence of reported events is introduced at trial the

evidence, but not the reports, can be considered for the purposes allowed by law.

The court then questioned the prospective jurors individually about their media

exposure. If they were aware of the escape attempt, it sought their assurance that

they would be able to set the reports aside in determining both guilt and penalty.

The court continued to resist the defense‟s attempts to ask questions about the

impact of the victim‟s status as a correctional officer. It did ask one prospective

juror whether her father‟s employment as a jail deputy would have any effect on

her evaluation of the case.

After completing the reopened voir dire, the court resumed questioning new

prospective jurors, again asking specifically about their awareness of murder

details and generally about the recent escape attempt. After ruling on challenges

for cause, the court heard argument on the venue motion. The next day it denied

the motion in a written ruling. Defendant sought a writ of mandate from the Court


of Appeal, arguing in part that even if prospective jurors were able to set aside the

media reports of the escape attempt, there had been no voir dire exploring “the

biases that unquestionably arise when there is an assault on a correctional officer,

an escape attempt, or an attempted murder of a correctional officer.” The writ was


Defense counsel then moved unsuccessfully to disqualify the entire jury

panel or to reopen voir dire, arguing that the court‟s questioning had been


b. Analysis

Defendant argues first that the court erred by failing to grant a change of

venue at the outset based on the Schoenthaler survey. However, “[t]his court has

long held „that it is no error for the trial court to postpone the consideration of an

application for a change of venue until an attempt is made to impanel the

jury . . . .‟ ” (People v. Bolin (1998) 18 Cal.4th 297, 312, quoting People v. Staples

(1906) 149 Cal. 405, 412; see People v. Wallace (1936) 6 Cal.2d 759, 763.) Here,

the court performed a preliminary review but deferred a final ruling until after it

heard challenges for cause. We review the court‟s final ruling.5

A motion for change of venue must be granted when “there is a reasonable

likelihood that a fair and impartial trial cannot be had in the county.” (§ 1033,


Defendant relies on People v. Beames (2007) 40 Cal.4th 907. There, we

said, “we do not suggest that trial courts may deny motions to change venue solely
on the theory that jury voir dire is a better method of assessing the need to change
venue.” (Id. at p. 922.) However, here the court did not deny defendant‟s motion.
It merely followed the established practice of deferring its ruling. Moreover, the
comments in Beames on which defendant relies were dicta. In that case, Beames
did not seek a change of venue, but only a continuance. (Ibid.) We did not discuss
the long line of authority noted above, which approves the practice of postponing a
ruling on a motion to change venue until an attempt is made to impanel a jury.


subd. (a); see People v. Famalaro (2011) 52 Cal.4th 1, 21.) “The phrase

„reasonable likelihood‟ in this context „means something less than “more probable

than not,” ‟ and „something more than merely “possible. ” ‟ [Citation.]” (People

v. Proctor (1992) 4 Cal.4th 499, 523 (Proctor).) The relevant factors are settled:

the nature and gravity of the offense, the nature and extent of the media coverage,

the size of the community, and the community status of the defendant and the

victim. On appeal, the defense bears the burden of showing both error and

prejudice. It must establish a reasonable likelihood both that a fair trial could not

be had at the time of the motion, and that the defendant did not actually receive a

fair trial. We accept the trial court‟s factual findings if supported by substantial

evidence, but independently review the court‟s determination as to the likelihood

of a fair trial. (Famalaro, at p. 21.)

Here, defendant does not dispute the court‟s finding that his community

status and that of the victim did not tend to support a change of venue. He argues,

however, that the gravity of the offense, the size of the community, and the

extensive media coverage weighed heavily in favor of moving the trial.

As we have noted on other occasions, “every capital case presents a serious

charge. This factor adds weight to a motion for change of venue, but is not

dispositive. [Citations.]” (Proctor, supra, 4 Cal.4th at p. 524; see, e.g., People v.

Zambrano (2007) 41 Cal.4th 1082, 1125.) The court in this case reasonably

concluded that the gravity of the offense slightly favored granting defendant‟s

motion, but that the crime was not particularly aggravated in comparison with

other capital murders. There were certainly gruesome details, but nothing

approaching the sensational overtones of other cases in which we have upheld the

denial of venue motions. (E.g., Zambrano, at pp. 1094-1097, 1125; People v.

Fauber (1992) 2 Cal.4th 792, 818.) Nor were the circumstances of the crime apt to


be particularly prejudicial in Shasta County, as opposed to an alternate venue. (Cf.

People v. Davis (2009) 46 Cal.4th 539, 578.)

The population of Shasta County, which the court placed at about 168,000,

was another factor weighing slightly in favor of defendant‟s motion.6 In Proctor,

we said that Shasta County‟s small population, approximately 122,100 at the time,

tended to favor a venue change, but was not determinative. (Proctor, supra, 4

Cal.4th at pp. 525-526.) So too here. A change of venue is not required for every

capital case arising in a sparsely populated county. (Id. at p. 526.)

The primary factor relied on by the defense below was the nature and extent

of media coverage, both of the murder and of the escape attempt. However, as to

the murder reports, the voir dire record supports the court‟s findings that “the

prospective jurors, in general, had very little knowledge of specific facts of the

crimes charged, very few opinions that the defendant is guilty, and very good

compliance with the [court‟s] orders not to read, listen to, view, or talk about the

charges in this case or anything connected with this case.” The court noted that

media coverage had been heavy when the crime was discovered in April 1998,

subsided until September 1998 when Amy S.‟s jurisdictional hearing was held, and

heightened again from April through July of the following year, with Amy‟s

dispositional proceeding and the guilty pleas of Lori Smith and Eric Rubio.

Reports then “all but ceased in June of 2000,” with little media attention as

defendant‟s trial approached.7


Defense expert Schoenthaler derived a population of 163,000 from the

United States census in 2000.

The venue motion was filed in October 2001; jury selection began in May

2002; the escape attempt was on June 22, 2002; the venue motion was denied on
July 12, 2002; and trial began on July 16, 2002.


Defendant does not dispute the court‟s summary of the media coverage. He

argues, however, that five of the sitting jurors had been exposed to the facts of the

murder. The exposure was minor. None of these jurors had any clearly formed

memories, and several mentioned how long it had been since the news reports.

Prompted by the court for specific details, they remembered very few, and all said

they had formed no preconceptions as to defendant‟s guilt or the appropriate

punishment.8 Nothing in the voir dire suggests a reasonable likelihood that


Juror No. 1 “just barely” remembered the reports, “no details or no anything

else.” Asked about specific aspects, he recalled none and said he had no
preconceptions as to guilt or penalty.

Juror No. 2 only “vaguely remember[ed]” reading something about the case,

“because it was so long ago.” She said “the name rang a bell,” but remembered
none of the details mentioned by the court. The information she did recall
produced no opinion on guilt or punishment.

Juror No. 5 wrote on her questionnaire that she remembered hearing four

people were accused of killing a young girl; the victim was tortured; something
about her father; two other females were involved; and, with a question mark, the
victim had begged for mercy. On voir dire, she said she remembered these things
“vaguely,” noting “it was a long time ago.” Of the details mentioned by the court,
she remembered only something about the victim‟s father talking about his
daughter and their family situation, and the chili can. She said this information did
not create any feelings about defendant‟s guilt or punishment.

Juror No. 9 remembered having “heard something,” but no details,

commenting, “My memory ain‟t very good that long back.” Questioned by the
court, she recalled generally that a juvenile was involved and that defendant may
have had a relationship with her. She remembered the chili can when the court
mentioned it, and that it was somehow involved in the killing. She had formed no
impression regarding guilt or penalty.

Juror No. 10 remembered hearing about where the murder happened, how

the girl was beaten, and that “the kids were on drugs.” Prompted by the court, she
remembered “maybe” that a juvenile was involved, that the victim was about ready
to go back home, that a chili can and dent puller were used, and “maybe” that
alcohol was poured. She recognized the names of Eric Rubio, Amy S., and Lori
Smith, but would not have been able to name them herself. She had formed no

(footnote continued on next page)


defendant would not, or did not, receive a fair trial due to media reports of the

facts of the crime.9

Defendant raises different arguments as to the publicity arising from his

escape attempt. He makes no specific claim that reports of the escape prejudiced

him on the question of guilt, though he generally maintains that the publicity

denied him a fair trial. His primary argument is that he was deprived of a fair

penalty trial because of the jurors‟ recent exposure to the news of his attempted

escape from jail and the violent attack on Deputy Renault. Although defendant

notes that seven of the sitting jurors had some knowledge of these incidents, he

does not contend their voir dire responses demonstrate bias. Instead, he claims the

court‟s limited questioning and its restrictions on counsel‟s voir dire made it

impossible to determine whether these jurors were able to put aside their

impressions or opinions and render a verdict based solely on the evidence. (Irvin

v. Dowd (1961) 366 U.S. 717, 723; People v. Davis, supra, 46 Cal.4th at p. 575.)

In particular, he contends his counsel were prevented from exploring whether the

(footnote continued from previous page)

opinion about guilt or punishment, and said she would be able to base her decision
solely on the evidence presented in court.

Defendant faults the court for deeming it a “moderating factor” that the

local paper providing most of the coverage had a circulation of approximately
35,000, in a county with a population of around 168,000 and a jury pool of about
70,000. Schoenthaler testified that each newspaper is typically read by an average
of 2.2 adults. However, we are satisfied by the court‟s careful and thorough voir
dire that the jury pool was not tainted in any significant way by newspaper
accounts of the charged offenses. Schoenthaler testified that he gave no weight to
the six television broadcasts concerning the murder, because “I didn‟t think there
was a lot there, frankly.”


escape attempt and the assault on the deputy would cause the jurors invariably to

vote for death. (See People v. Cash (2002) 28 Cal.4th 703, 720-721.)

Because we reverse the penalty judgment on other grounds, we need not

consider the question of penalty phase prejudice.10 As for the effect of these

reports at the guilt phase, we are satisfied it was insignificant. Evidence of the

escape attempt was not admitted. No jurors were exposed to extensive reports of

the assault on Deputy Renault.11 Moreover, the court carefully ascertained


Nor do we consider defendant‟s claim that the court erroneously excused a

prospective juror based on death penalty views expressed in her questionnaire,
without any voir dire. (See People v. Russell (2010) 50 Cal.4th 1228, 1261;
People v. Stewart (2004) 33 Cal.4th 425, 445.)

Juror No. 1 saw a television broadcast and learned that an inmate had

tricked a sheriff‟s officer and beaten him up. He remembered the sheriff‟s office
saying it was working on improving security to prevent another such episode.
However, he did not know the extent of the injuries inflicted, or who was involved.
He said the incident would not affect him as a juror because he did not know if it
was related to the trial. Asked if it would make any difference if it were, he said

Juror No. 2 heard a radio report about two people in the jail, a sheriff‟s

officer, and an incident involving a shower. She did not remember any other
details, except for Williams‟s name. She was willing to set this information aside
for purposes of trial, and disregard it if it were not in evidence.

Juror No. 4 heard a television broadcast about a deputy who had been

beaten up, and saw defendant‟s picture. He remembered hearing about a broken
jaw, and was aware that Williams was involved. He said he could set aside this
information for purposes of trial.

Juror No. 5 saw a headline in the newspaper about a jail incident in which a

deputy was injured, and photos of defendant and Williams. She did not read the
story, mindful of the court‟s admonitions to avoid news coverage. She could set
aside the information for purposes of the trial.

Juror No. 9 had heard a report on the morning news but “shut it off real

quick.” She heard defendant‟s name and that someone was beaten up, maybe a
correctional officer, and something about picking a jury. She assured the court she
could set aside this information and not consider it, and said it had not changed her
feelings about the case.

(footnote continued on next page)


whether prospective jurors would be able to set aside whatever they had learned

about the escape attempt and base their deliberations solely on the evidence at trial.

“Although the jurors‟ assurances of impartiality are not dispositive [citations],

neither are we free to ignore them [citations]. We have in the past relied on jurors‟

assurances that they could be impartial. [Citations.] Absent a showing that the

pretrial publicity was so pervasive and damaging that we must presume prejudice

[citations], we do the same here.” (People v. Lewis (2008) 43 Cal.4th 415, 450.)

Defendant has not shown that pretrial publicity of the escape attempt was “so

pervasive and damaging” as to cast doubt on the jurors‟ assurances of impartiality.

(Ibid.; see Patton v. Yount (1984) 467 U.S. 1025, 1031.)

Accordingly, defendant has failed to demonstrate a reasonable likelihood

that the denial of a change of venue resulted in an unfair guilt trial. Although the

gravity and nature of the murder, the relatively small size of Shasta County, and

the publicity surrounding the crime are all factors tending to support a change of

(footnote continued from previous page)

Juror No. 10 saw headlines and defendant‟s picture, but closed the paper

and had not listened to the news since. She knew that a guard had been attacked at
the jail, and that Williams was involved. She was familiar with Williams. She
said the fact that defendant and Williams were connected in the attack did not
cause her any concern. She would be able to set aside what she saw in the

Juror No. 12 heard a radio report about an incident at the jail. Her mother-

in-law mentioned that defendant had hurt a guard, but the juror told her she did not
want to hear anything else. She would be able to set aside this information.

The other jurors had not heard any news of the escape attempt. Defendant‟s

claim that three sitting jurors received no admonition about the inaccuracy of
media reports during voir dire following the escape attempt is baseless. At the
record page he cites, the court told the assembled pool, “As you know, anything
reported in the media is only reported in part and often not accurately.”


venue, the record reflects a jury pool not predisposed against defendant on the

question of guilt. Memories of media coverage of the murder had faded

considerably by the time of trial. Nothing indicates that the renewed publicity

occasioned by defendant‟s escape attempt resulted in any bias that might have

affected the verdict of guilt.

2. Imposition of Restraints

On May 8, 2002, during pretrial proceedings, defense counsel objected to

the placement of a stun device on defendant‟s arm, in addition to the leg brace the

court had approved for security purposes. The brace locked the leg in an extended

position, making it impossible to run. The court observed that the device on

defendant‟s arm was visible, and that any stun device or visible restraint would

require a showing of manifest need. The prosecutor referred to defendant‟s

lengthy record of violence and recalcitrance in jail, and his plans to escape. A

sergeant with the Shasta County Marshal‟s Office testified briefly about the

security risk posed by defendant. The court continued the hearing to resume jury

selection, and ordered the interim removal of the stun device.

On May 10, the court held a lengthy hearing on the issue of restraints. The

sergeant returned to the stand. He recounted the incident in which defendant asked

his wife to take pictures of the jail‟s exterior and told her he was planning to

escape just before his trial began. The sergeant noted defendant‟s lengthy history

of misconduct in custody, which resulted in the court‟s ordering him to be held in

state prison for a period before trial. On the day he returned to county jail,

defendant had tried to fight with a deputy and was subdued with pepper spray.

Weapons had been discovered in his possession many times. In the courtroom he

had access to pens, which could be used as a weapon. The sergeant asked that

defendant be restrained with belly chains, leg irons, and handcuffs while in court.


A private investigator testified for the defense regarding his observations

and understanding of defendant‟s conduct in custody. The court ruled that, in light

of defendant‟s long history of nonconforming conduct in custody and his

demonstrated interest in escaping, he would be restrained with the leg brace and a

stun device on his leg. The court declined to impose any visible restraints.

A month later, defendant launched the escape attempt in which Deputy

Renault was assaulted. Three days after that, the court held a hearing on the use of

additional restraints. The marshal‟s office again asked for belly chains and leg

irons. The court took testimony about the escape attempt and how the stun device

worked. Defense counsel argued that the stun device was sufficient, making

shackles unnecessary. In view of defendant‟s persistent misconduct in custody,

and especially his recent escape attempt, the court approved the use of belly chains

and leg irons. It ordered that paper be placed around the defense table so the jurors

could not see beneath it.

On September 11, 2002, during the penalty phase, counsel reported that

defendant was developing painful scabs on his ankles. A medical examination

conducted the same day revealed minor lacerations over the Achilles tendon on

both ankles. They were healing without sign of infection, and calluses were

forming below them. The court reviewed the medical report the next day.

Defense counsel asked that the leg irons be removed during the lunch break. The

bailiff objected, noting that security in the court‟s holding facility was less

comprehensive than in the jail, and emphasizing defendant‟s history of

manufacturing weapons and attempting to escape. The request was denied.

Defendant concedes that the showing of manifest need for shackling was

sufficient. (See People v. Howard (2010) 51 Cal.4th 15, 28.) Nevertheless, he

claims shackling that causes pain and scarring is excessive and violates due

process. Defendant cites no authority for the proposition that, even when the need


for shackling is manifest, the restraints must be removed if they cause discomfort

or abrade the skin. In any event, the record here shows only minor injuries,

healing without complication. No due process violation can be conjured from this

scenario. Defendant claims the shackles were visible to the jury, but the record

does not support his assertion.12

Defendant argues briefly that the use of a stun device was unwarranted,

citing People v. Mar (2002) 28 Cal.4th 1201. There we held that stun belts, like

shackles, may be justified by a showing of manifest need. (Id. at pp. 1219-1220;

see People v. Duran (1976) 16 Cal.3d 282, 290-293.) Here, defense counsel

conceded the stun device was appropriate, forfeiting the claim of error under Mar.

In any event, defendant does not challenge the court‟s finding of manifest need.

He fails to show any error in connection with the court‟s authorization of restraints

in the courtroom.


The only record reference defendant provides is to an advisement given by

the court during jury selection. The prosecutor requested the admonition, after
notifying the court that defense counsel had defendant stand up when the panel of
potential jurors came in, at which point his leg and waist chains were visible.
Defense counsel said he was “deliberately not requesting” an advisement. He
thought it unnecessary until a jury was actually impaneled, but did not object to the
prosecutor‟s request.

The court told the panel that security measures in the courtroom had

nothing to do with the issues, and “so to the extent that you see certain security
measures taken, which can include the number of bailiffs in the courtroom, the
kinds of restraints that may or may not be placed on the defendant, those are issues
not for your consideration, and you may not consider them in any way in reaching
the determination that you‟re asked to make.” This general admonition, given by
the court before leg irons were employed and before the jury was selected, reflects
nothing about whether shackles were visible during trial.


B. Guilt Phase Issues

1. Admission of Detective’s “Opinion” Testimony

During the prosecution‟s case-in-chief, Detective Ronald Clemens testified

that defendant initially maintained his innocence but insisted he would take the

blame for the murder. The jury watched a videotape of the interview. Afterward,

the prosecutor noted that defendant seemed to be “breaking down and crying” at

several points, and asked Clemens what he had observed. Defense counsel

objected on grounds of irrelevance and undue prejudice. The court barred

Clemens from giving an opinion based on the videotape, but allowed him to report

his own observations during the interview. Clemens testified that when defendant

appeared to be showing emotion, he “would always cover his eyes with his hand.

And I didn‟t see any tears.” Clemens said defendant‟s eyes and face were not red

at these times.

Defendant claims the admission of this testimony violated his federal rights

to due process and a fair trial. He first contends Clemens‟s observations were

irrelevant to any issue relating to guilt. To the contrary, defendant‟s demeanor

when discussing the crimes was relevant to help the jury determine his intent at the

time of the events, his state of mind thereafter, and the credibility of his account.

Defendant also argues that the testimony amounted to improper opinion evidence.

Not so.13 Clemens offered no opinion, but merely recounted his observations of

defendant‟s actions and appearance. “[A] witness may testify about objective

behavior and describe behavior as being consistent with a state of mind.” (People

v. Chatman, supra, 38 Cal.4th at p. 397.) Nor was this brief testimony prejudicial;


Defendant‟s claims about Clemens‟s “opinion testimony” are not only

meritless, but also forfeited by the failure to object on that ground below. (People
v. Chatman
(2006) 38 Cal.4th 344, 397.)


it merely supplemented what the jury had seen on the videotape. (See People v.

Doolin (2009) 45 Cal.4th 390, 438-439.) Defendant offers a cursory argument that

the prosecutor was also improperly permitted to ask Clemens, in connection with

the interviews of Eric Rubio and Lori Smith, “Haven‟t we asked all of our

witnesses to tell the truth?” However, Clemens expressed no opinion as to

whether Eric and Lori were truthful in their statements. Defendant‟s arguments

about opinion testimony are baseless.

2. Admission of Statements by Defendant and Coperpetrators

Defendant contends his federal due process rights were violated by the

admission of various statements made by himself and his coperpetrators.

a. Defendant’s Statements

Defendant sought to have a number of his statements to Detective Clemens

redacted. The court agreed to some excisions, but defendant argues that certain

remaining statements were prejudicial evidence of his bad character. We disagree.

In the first interview with Clemens, the following exchange occurred:

“[Defendant]: I can‟t kill somebody like that. [Clemens]: Like what?

[Defendant]: It‟s unmerciful. [Clemens]: You mean someone who can‟t protect

themselves? [Defendant]: A lot of people that deserve to die, people who hurt

other people.” Defense counsel objected that the first and third of these statements

were of little probative value, and were prejudicial because they indicated

defendant could kill under other circumstances and was passing judgment on who

should and should not die. The prosecutor contended the statements were

probative with respect to defendant‟s knowledge of right from wrong, and were

part of Clemens‟s efforts to catch him in a lie. The court overruled the objection.

Later in the same interview, Clemens suggested defendant had killed Sinner

to keep her from reporting his criminal activity. Defendant said: “No I wouldn‟t

kill nobody over that. I have specific set down reasons why I would kill


somebody, and I don‟t know why I killed her.” Counsel claimed this statement

was inflammatory, prejudicial, and not probative. The prosecutor argued that it

went to defendant‟s state of mind and motive. The court admitted the statement,

finding it probative in connection with defendant‟s comment that he did not know

why he killed Sinner.

The next statement was made in defendant‟s second interview, before he

admitted his role in the killing. Counsel objected to the italicized portion of the

following comments: “I wouldn‟t never abuse her, I wouldn‟t hit her, I give her

whatever she asks for or wanted. Same as I do any of my friends. So she

obviously trusted me, now she said something that one night, you know that you

have to live with your whole life, it’s not killing somebody, I don’t have a problem

with that. That’s not what bothers me. The killing of her bothers me, killing

somebody else doesn‟t bother me. I don‟t glorify it, but I don‟t think it would

bother me as much as this thing did.” The court rejected counsel‟s claim that these

remarks were irrelevant and inflammatory, observing that defendant was

explaining his mental state, intent, or feelings about the killing.

Later in the same interview, after he admitted killing Sinner, defendant said

he knew she was going to die after he examined her wounds. He added, “If I

would have had a gun I would have just killed her faster, but I had no way to kill

her faster. . . . more than willing to do my time, it‟s a damn shame.” Clemens

said, “Yes, it is.” Defendant commented, “First time in my life I haven‟t had a gun

when I needed one, when it really counted.” Counsel argued that the latter

statement was inflammatory, because it indicated the defendant had guns on other

occasions. The court disagreed, noting, “Sounds like a statement of intent.”

Defendant contends all these statements were akin to evidence of prior bad

conduct, which is inadmissible to prove criminal disposition under Evidence Code

section 1101, subdivision (a). He acknowledges that such evidence may be


admitted under subdivision (b) of section 1101 for certain purposes, such as to

prove intent, motive, or identity. However, he claims that here his statements were

admitted simply to prove his criminal disposition, and were so prejudicial they

should have been excluded under Evidence Code section 352.

Defendant offers no authority supporting his analogy between his own

admissions and evidence of other misconduct under Evidence Code section 1101.

The prohibition on the use of “other crimes” evidence to prove character is not

implicated here. Defendant‟s statements reflected his after-the-fact feelings about

the charged killing itself. They were properly before the jury as statements of a

party under Evidence Code section 1220, and probative on the issues of motive,

intent, and consciousness of guilt. Nor were they unduly prejudicial. Any

inflammatory impact they might have had was dwarfed by the horrific nature of the

acts defendant admittedly performed. (Cf. People v. Valdez (2012) 55 Cal.4th 82,

134.) The statements were properly admitted.

b. Coperpetrators’ Statements

Defendant challenges the admission of statements regarding “torture” made

by coperpetrators Eric Rubio and Lori Smith. His briefing on this issue lacks

sufficient record citations for a thorough review of his argument. “It is the duty of

counsel to refer us to the portion of the record supporting [defendant‟s]

contentions on appeal. [Citations.] . . . „It is neither practical nor appropriate for

us to comb the record on [defendant‟s] behalf.‟ ” (Schmidlin v. City of Palo Alto

(2007) 157 Cal.App.4th 728, 738.) We consider the record to which counsel does


In his opening brief, defendant cites two pages of the transcript where the

court and counsel discuss defendant’s statements, only one of which includes a

reference to torture. These citations do not support his claim with respect to

statements by others. Defendant then cites a passage in the reporter‟s transcript


where the court resolved counsel‟s objection to a number of references to “torture”

in a transcribed statement by Lori Smith. However, defendant fails to direct us to

the clerk‟s transcript where those references appear in Lori‟s statement, nor does

he discuss their context. Defendant also cites a reporter‟s transcript page on which

the court refused to redact references to torture by Eric Rubio and, apparently,

Amy S., again without citing to the transcribed statements themselves. Finally, the

opening brief refers to pages where the court agreed to strike a torture reference by


In his reply brief, defendant cites two pages of a statement by Lori Smith,

where the court struck two questions by the detective employing the word “torture”

but not Lori‟s answer, “That was before . . . my brother started torturing her.” The

reply brief also refers to a comment by Lori that defendant “started torturing her,

pretty much.” However, no reference is made to an objection to the latter

comment, and it appears none was made. Finally, the reply brief refers to a

statement by Eric that defendant was “basically torturing” Sinner, but the court

redacted this statement.

Thus, the only relevant statement properly presented for the trial court‟s

consideration and documented in this court with record references is Lori‟s

comment, “That was before . . . my brother started torturing her.” In any event,

defendant‟s arguments lack merit. He claims the coperpetrators‟ use of the term

“torture,” or their answers to questions using that term, amounted to improper lay

opinion on the ultimate issue of whether defendant tortured Sinner, as alleged in

the torture special circumstance. This argument was raised below and rejected.

The court reasoned that while some questions about “torture” might seek to elicit

an opinion, witnesses may also use the word in a purely descriptive sense to

explain what they saw. In the latter situation, no improper opinion testimony is



The court‟s reasoning was sound. Lori‟s statement about events before “my

brother started torturing her” did not include an opinion about defendant‟s

commission of a special circumstance. It was simply part of her narrative. A

witness who uses the word “torture” in describing a sequence of events is no more

testifying “in the form of an opinion” (Evid. Code, § 800) than a witness

describing a “robbery.” (See People v. Coffman and Marlow (2004) 34 Cal.4th 1,

76-77.) It is conceivable that an investigator might solicit a witness‟s opinion on

whether a particular act amounted to “torture” for purposes of the special

circumstance. But here defendant identifies no questions or statements reflecting

any such improper lay opinion. The jury was instructed that the torture special

circumstance required a finding that defendant intended to and did “inflict extreme

cruel physical pain and suffering upon a living human being for the purpose of

revenge, extortion, persuasion or for any sadistic purpose.” Defendant fails to

show that any witness was invited to opine on whether this standard was met.

3. Display of Enlarged Photographs

On June 28, 2002, in advance of trial, the court and counsel reviewed a

series of diagrams and photographs the prosecutor proposed to project onto a

screen. The photographs were of the crime scene and the corpse. The projected

images were approximately 6 feet wide and 4 feet high. Defense counsel objected

that the prosecutor would have control over the size of the photographs when

showing them at trial. The court said, “If I authorize something it‟s only going to

be for whatever I see, and the size I say. And if there is a violation of that, then

obviously that could be grounds for a mistrial.” The court expressed concern

about the emotional impact very large pictures might have on the jury.

The photographs were reviewed in sequence, but for unexplained reasons

those designated People‟s exhibits 17 and 26 had not been loaded onto the

prosecutor‟s compact disc. The prosecutor said he would give defense counsel a


copy of the disc he would use at trial. The defense did not object to photographs

of the grave site before the corpse was fully unearthed, including two in which the

upper part of the corpse was exposed. It did object to enlarged images of the

corpse itself. The court sustained the objection, ruling that the magnified pictures

of the corpse were “unduly prejudicial in terms of their emotional impact on the


At trial, on August 1, 2002, the prosecutor used the projector while

questioning a lieutenant about the crime scene investigation. Before showing any

images, the prosecutor noted, “My recollection is that the body in the grave was

not objected to.” The court remembered that the objection was to autopsy photos.

Defense counsel had no specific recollection but said, “I think it was not objected

to.” As the prosecutor went through the photographs with the lieutenant on the

stand, he showed exhibits 17 and 26, which portrayed the corpse exposed in the

grave from different angles, with a plastic bag wrapped around the head. No

objection was made, but after displaying these pictures the prosecutor suggested

taking a break. The court replied that it was 25 minutes until the next scheduled

break. The prosecutor requested a bench conference and explained, “There are

several jurors that are in a highly emotional state at this point, and I thought maybe

a moment so that they could gather themselves.” The court demurred, saying, “I

don‟t think so.”

The prosecutor then moved for admission of the exhibits used with this

witness. The court asked if there were objections, and defense counsel objected to

“the last” exhibits. The court deferred ruling until the next break. At that time,

counsel objected to People‟s exhibits 10, 17, 26, and 27.14 Counsel did not


Exhibit 10 showed the grave partially excavated, with some upper portions

of the corpse exposed. During the pretrial review, defense counsel said he did not

(footnote continued on next page)


complain about the size of the projected photographs, or their omission from

pretrial review. He argued that using this many photographs of the corpse was

cumulative and prejudicial, and claimed it was obvious from the jury‟s reaction

that the photographs were “having an impact.” The court overruled the objection.

Cocounsel then advised the court that defendant had told him some of the

photographs shown by the prosecutor had not been shown in the pretrial review.

Counsel asked only for an order that no further photographs be displayed unless

defense counsel were given an opportunity to review them and make sure they

were previously approved by the court. The prosecutor had no objection, and the

court so directed.

The guilt phase concluded on August 28, 2002. On September 17, during

the penalty phase, the defense moved for a mistrial on that ground that it was

prosecutorial misconduct to display exhibits 17 and 26 without prior authorization.

The prosecutor pointed out that before showing the photographs, he had notified

the court and counsel of his recollection that no objection had been raised to

photographs of the body in the grave. Defense counsel responded that the

prosecutor had violated the court‟s directive regarding photographs that were not

preapproved. The court denied the motion. It found no indication that any

violation of its order was intentional, and no prosecutorial misconduct. The court

also determined that defendant had not been prejudiced. If the photographs had

been shown in advance, the court “certainly would have approved the use of at

least one. The other was simply cumulative.”

(footnote continued from previous page)

have a problem with this photograph. The other three photographs were not
included in the pretrial review.


On appeal, defendant renews his argument that the prosecutor violated the

court‟s order not to use unapproved photographs. Defendant forfeited this claim

by failing to promptly object at trial. To preserve a claim of prosecutorial

misconduct, a defendant must make a timely and specific objection and ask the

court for a curative instruction. (People v. Clark (2011) 52 Cal.4th 856, 960.)

Here, had a prompt objection been made, the photographs could have been

removed from view and the jurors admonished. Defendant insists that he did

object after all the photographs were shown, and that the court‟s overruling of the

objection showed it would have been futile to object immediately. (See Clark, at

p. 960.) However, when the court heard argument on the objection, counsel did

not specifically raise the preapproval point, merely noting belatedly that some

unspecified photographs had not been included in the pretrial review.

It was only when seeking a mistrial, as the penalty phase was underway,

that the defense pointed out that exhibits 17 and 26 had not been approved by the

court. Defendant does not claim the court erred by failing to grant a mistrial. He

does, however, object to the court‟s finding that any violation of its order was

unintentional, noting that prosecutorial misconduct need not be intentional.

(People v. Hill (1998) 17 Cal.4th 800, 822-823.) The Attorney General responds

on the merits of the mistrial ruling, arguing there was no misconduct because the

exhibits in question were never ruled inadmissible, and there was no prejudice in

any event.

Even if a claim associated with the projection of these photographs had

been preserved and properly presented here, there was no error. The prosecutor‟s

apparently inadvertent failure to secure pretrial review of these particular exhibits

did not infect the trial with such unfairness as to make defendant‟s conviction a

denial of due process. (People v. Clark, supra, 52 Cal.4th at p. 960 [federal

standard for prosecutorial misconduct].) It did not amount to a deceptive or


reprehensible method of persuasion. (Ibid. [state law standard for prosecutorial

misconduct].) Nor were defendant‟s chances of receiving a fair trial irreparably

damaged. (People v. Ayala (2000) 23 Cal.4th 225, 282 [standard for grant of

mistrial].) Furthermore, given the overwhelming evidence of defendant‟s guilt,

including his confession and the detailed testimony of three coperpetrators, any

error would have been harmless under any standard of prejudice.

4. Sufficiency of the Torture Evidence

Defendant contends the evidence was insufficient to support the jury‟s

finding of torture. “The torture-murder special circumstance requires proof that a

defendant intentionally performed acts that were calculated to cause extreme

physical pain to the victim. [Citation.] Required is „an intent to cause cruel or

extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for

any other sadistic purpose.‟ [Citation.] We review the entire record, in the light

most favorable to the prosecution, to determine whether a rational trier of fact

could have found the essential elements of the torture-murder special-circumstance

allegation beyond a reasonable doubt. [Citations.]” (People v. Mungia (2008) 44

Cal.4th 1101, 1136 (Mungia).) “A premeditated intent to inflict prolonged pain is

not required.” (People v. Elliot (2005) 37 Cal.4th 453, 479.)

The intent to torture “is a state of mind which, unless established by the

defendant‟s own statements (or by another witness‟s description of a defendant‟s

behavior in committing the offenses), must be proved by the circumstances

surrounding the commission of the offense [citations], which include the nature

and severity of the victim‟s wounds.” (People v. Crittenden (1994) 9 Cal.4th 83,


Defendant claims the evidence showed no attempt on his part to increase

the victim‟s suffering or inflict pain in addition to the pain of death. He compares

this case to Mungia, where evidence of a savage beating did not suggest an attempt


to torture the victim rather than simply to kill her. (Mungia, supra, 44 Cal.4th at p.

1137.) The comparison is inapt. Here, by his own admission, defendant told

Sinner she was going to kill herself, and forced her to cut her own wrist. He then

cut her wrist himself and poured whiskey over the wounds several times, despite

the obvious pain this caused. He also kicked Sinner and struck her with the metal

bar when she moved her hands away from the fire pit. His claim that he was only

trying to ease the way to an inevitable death is undermined by the sadism

demonstrated by his conduct. The evidence of torture was sufficient.

5. Constitutionality of the Torture Special Circumstance

Defendant claims the torture special circumstance fails to perform the

constitutionally required narrowing function meant to avoid arbitrary imposition of

the death penalty, and therefore violates the Eighth and Fourteenth Amendments.

We have rejected this argument on a number of occasions. (E.g., People v.

Whisenhunt (2008) 44 Cal.4th 174, 223; People v. Barnett (1998) 17 Cal.4th 1044,

1160-1163; People v. Raley (1992) 2 Cal.4th 870, 898-900 (Raley).) Defendant

argues that the phrase “for any sadistic purpose” in the instruction given to his jury

is vague and overbroad.15 He notes that in Raley, we quoted dictionary definitions

focusing on a sexual element in sadism. (Raley, at p. 900.) Defendant contends

there was no evidence of sexual motivation in this case, and therefore no sadism.

Insofar as defendant suggests the “sadistic purpose” element of the special

circumstance is too narrow to apply here, his claim of overbreadth is misplaced.

In any event, our discussion in Raley was not so limited.


The jury heard CALJIC No. 8.81.18, which included the following element:

“The defendant intended to inflict extreme cruel physical pain and suffering upon a
living human being for the purpose of revenge, extortion, persuasion or for any
sadistic purpose.”


Raley held there was no need to instruct the jury on the meaning of “sadistic

purpose” because the phrase is one “in common usage, having a relatively precise

meaning, that is, the infliction of pain on another person for the purpose of

experiencing pleasure.” (Raley, supra, 2 Cal.4th at p. 901.) Although sadism is

commonly associated with sexual pleasure, courts have recognized that it does not

necessarily have a sexual motivation. (People v. Aguilar (1997) 58 Cal.App.4th

1196, 1203; People v. Healy (1993) 14 Cal.App.4th 1137, 1142.) Defendant fails

to undermine our settled view on the constitutional sufficiency of the torture

special circumstance.

C. Exclusion of Evidence About Prison Conditions at the Penalty Phase

1. Background

In his opening statement at the penalty phase, defense counsel told the jury

that James Park, a former associate warden at San Quentin State Prison, would

testify about the security conditions imposed on prisoners sentenced to life without

parole. Park would explain that such prisoners are watched at all times by an

armed guard from a secure location, and that no guard enters prisoner areas unless

accompanied by another guard. Prisoners who behave dangerously are placed in

solitary confinement and locked down for all but short periods of time. Counsel

also said Park would opine that defendant would adjust to prison life.

The prosecutor filed a motion to exclude Park‟s testimony. He cited People

v. Quartermain (1997) 16 Cal.4th 600, 632, for the proposition that “evidence of

the conditions of confinement that a defendant will experience if sentenced to life

imprisonment without parole is irrelevant to the jury‟s penalty determination

because it does not relate to the defendant‟s character, culpability, or the

circumstances of the offense.”

At the hearing on the motion, defense counsel argued that Park‟s evidence

was admissible for two separate purposes. First, counsel wanted to inform the jury


about what he described as “for lack of a better term, the day in the life of a person

in prison.” The second and principal purpose for Park‟s testimony was to rebut the

prosecution‟s evidence of defendant‟s violent jail conduct and escape attempts,

which raised the issue of his future dangerousness in prison. Park would explain

that because state prison facilities were more secure than county jail, defendant

would not have the same opportunities for assault and escape. Counsel referred to

the holding of Skipper v. South Carolina (1986) 476 U.S. 1, 5 (Skipper):

“[E]vidence that the defendant would not pose a danger if spared (but

incarcerated) must be considered potentially mitigating” and thus “may not be

excluded from the sentencer‟s consideration.” Counsel also relied on People v.

Fudge (1994) 7 Cal.4th 1075, 1117 (Fudge), where this court found Skipper error

in the exclusion of expert testimony that the defendant was “a likely candidate to

lead a productive and nonviolent life in prison.”

The prosecutor responded that he was precluded from arguing defendant‟s

future dangerousness unless defendant introduced evidence on the subject. The

court disagreed. It said, “You can certainly argue future dangerousness based

upon [defendant‟s] conduct,” and advised the prosecutor to “look at the cases.”

Defense counsel observed that even if the prosecutor did not explicitly argue future

dangerousness, the jury would draw the inference itself. He noted that in People v.

Lucero (1988) 44 Cal.3d 1006 (Lucero), this court held it was reversible error to

bar a defense expert from testifying that the defendant would be unlikely to

commit future crimes, and would adjust to the structured setting of prison life. (Id.

at pp. 1026-1028.)

After reviewing the authorities submitted by counsel, the court prefaced its

ruling on the motion by quoting People v. Welch (1999) 20 Cal.4th 701, 761:

“ „[I]t is settled that argument concerning a defendant‟s future dangerousness as a

life prisoner is proper when it is based on evidence of past crimes admitted under


one or more statutory factors in aggravation.‟ ” “Keeping that in mind,” the court

ruled that evidence of “what it‟s like to be in prison” was inadmissible, including

evidence of security measures in state prison. The court reasoned that this

evidence had no relevance to the issues of defendant‟s character, culpability, or the

circumstances of the offense, or to any statutory aggravating or mitigating

circumstance. Therefore, it “sustain[ed] the People‟s objection to the presentation

of that witness.”

In his penalty phase closing argument, the prosecutor emphasized

defendant‟s persistent escape attempts and his threatening and violent behavior

toward correctional officers. He argued at length that the evidence showed

defendant had personally inflicted Deputy Renault‟s injuries. The prosecutor

mentioned the prospect of future dangerousness, asserting that “defendant has

shown himself to be violent and dangerous in every setting, and he will continue to

be so now, and into the future.” He claimed defendant‟s attacks on guards

reflected his antisocial personality disorder, and said, “He‟s going to get worse.

We‟ve seen that escalating. Escalating.”

During deliberations, the jury sent out a note: “A question has arisen as to

what can be considered as an aggravating factor. We know that anything can be

considered as a mitigating factor, as specified by item K. Are we required,

however, to only consider items A & B & C as aggravating factors? In particular,

the possibility of future escapes and/or violent crimes is a factor weighing on

several jurors‟ minds. This is not a specified aggravating factor, but can we

consider it?”

The court consulted with counsel. Defense counsel argued that the jury

should be told simply to confine its deliberations to factors (a), (b), and (c) of

section 190.3. He noted the defense had been barred from presenting Park‟s

testimony “on the issue of security and adjustment to prison.” Because defendant


had not been allowed to show that prison would be a safe place from which he

could not escape, counsel said the jury should not consider “future escape

attempts.” The prosecutor disagreed, claiming the defense “could have [had]

testimony to that fact that they can‟t get out of jail.” He argued that the relevant

consideration was not escape, but “the threat of harm to jailers from escape

attempts.” The court agreed this threat was a proper inference to be drawn from

the aggravating evidence.

Accordingly, the court told the jury that “yes,” its deliberations were limited

to factors (a), (b), and (c) of section 190.3. Answering the question about future

dangerousness, the court said: “The prediction of future dangerousness is not a

type of evidence jurors can consider in determining penalty. However, inferences

that a defendant will remain a danger to others in the future, or escape in the

future, which are drawn from evidence of defendant‟s past conduct may be

considered by a juror for whatever value the juror assigns to such inferences in

determining penalty.”

2. Analysis

Defendant contends the exclusion of Park‟s testimony violated his federal

constitutional rights to due process, a fair trial, and a reliable sentencing

determination. He claims he was entitled under Skipper and Fudge to present

testimony that he would adjust well as a life prisoner. Defendant further argues

that he was denied the right to rebut the prosecution‟s evidence of his conduct in

custody by presenting evidence of prison security measures. We agree that the

exclusion of Park‟s testimony was a violation of due process, because it deprived


defendant of the opportunity to counter aggravating evidence and argument

suggesting that he would be a dangerous life prisoner.16

As a general rule, evidence of prison conditions is not admissible at a

penalty trial. “[W]e have repeatedly held that evidence concerning conditions of

confinement for a person serving a sentence of life without possibility of parole is

not relevant to the penalty determination because it has no bearing on the

defendant‟s character, culpability, or the circumstances of the offense under either

the federal Constitution or section 190.3, factor (k). (People v. Jones (2003) 29

Cal.4th 1229, 1261, citing People v. Quartermain (1997) 16 Cal.4th 600, 632;


Defendant correctly contends he had the right to present Park‟s opinion that

he would adjust to life in prison. (Skipper, supra, 476 U.S. at p. 5; People v.
(2009) 47 Cal.4th 745, 795; Lucero, supra, 44 Cal.3d at pp. 1026-1029;
Fudge, supra, 7 Cal.4th at p. 1117.) However, counsel did not argue this ground at
the hearing on the motion to exclude Park‟s testimony. Although he briefly
mentioned in his opening statement that Park would give an opinion that defendant
“will adjust to prison life,” he made no mention of the subject at the hearing.
Counsel cited Skipper, Fudge, and Lucero, but did not say that Park should be
allowed to offer opinion testimony on defendant‟s ability to make a successful
transition to life in custody. Nor did the defense make an offer of proof to
establish the extent and basis of Park‟s testimony. (Compare Fudge, at pp. 1113-

Given our conclusion on the exclusion of Park‟s testimony about security

measures, we need not consider defendant‟s argument on the subject of adjustment
to prison life, even assuming that claim of error was preserved. (See Evid. Code,
§ 354, subd. (a) [error in exclusion of evidence is not reversible unless “[t]he
substance, purpose, and relevance of the excluded evidence was made known to
the court by the questions asked, an offer of proof, or by any other means”];
People v. Lightsey (2012) 54 Cal.4th 668, 727 [abuse of discretion in sustaining
objection could not be found when defendant made no offer of proof as to why
witness should have been permitted to answer]; People v. Ramos (1997) 15 Cal.4th
1133, 1178 [defendant bears burden of establishing foundation for mitigating
evidence]; People v. Whitt (1990) 51 Cal.3d 620, 647-649 [claim of Skipper error
was not preserved when defendant failed to establish pertinence of testimony].)


People v. Daniels (1991) 52 Cal.3d 815, 876–878; People v. Thompson (1988) 45

Cal.3d 86, 138–139.)” (People v. Martinez (2010) 47 Cal.4th 911, 963; accord,

People v. Ervine, supra, 47 Cal.4th at pp. 794-795.) Thus, the court properly

rejected the defense‟s attempt to have Park provide a generic account of the daily

routines of life prisoners.

However, the general rule does not dispose of defendant‟s claim that he was

entitled to present evidence of prison security measures to rebut the prosecution‟s

assertion that he would pose a danger in custody. Our cases holding that evidence

of prison conditions is inadmissible have not addressed this kind of rebuttal

evidence.17 The right to rebut aggravating evidence in capital cases is settled, and

of constitutional dimension. The United States Supreme Court has articulated the

governing principle in cases where the defendant‟s future dangerousness is a

factor. “[W]here the prosecution relies on a prediction of future dangerousness in

requesting the death penalty, elemental due process principles operate to require

admission of the defendant‟s relevant evidence in rebuttal.” (Simmons v. South

Carolina (1994) 512 U.S. 154, 164 (plur. opn. of Blackmun, J.) (Simmons).)

Justice Blackmun‟s opinion in Simmons was signed by only three other

justices, but Justice O‟Connor‟s concurrence, joined by two others, established a


See People v. Martinez, supra, 47 Cal.4th at page 962 (prosecutor

disclaimed reliance on future dangerousness); People v. Ervine, supra, 47 Cal.4th
at pages 795-796 (prosecutor refrained from arguing inference of future
dangerousness); People v. Jones, supra, 29 Cal.4th at pages 1260-1261
(prosecutor‟s exploration of prison incidents occurred on cross-examination of
defense expert); People v. Quartermain, supra, 16 Cal.4th at page 634
(prosecutor‟s brief argument was confined to evidence in mitigation); People v.
, supra, 52 Cal.3d at page 877 (paraplegic defendant sought to show
conditions he would face in prison); People v. Thompson, supra, 45 Cal.3d at
pages 138-139 (evidence of prison conditions offered to dispel idea that life
sentence would be “lenient”).


clear majority for the proposition that “ „[w]here the prosecution specifically relies

on a prediction of future dangerousness in asking for the death penalty, . . . the

elemental due process requirement that a defendant not be sentenced to death “on

the basis of information which he had no opportunity to deny or explain” [requires

that the defendant be afforded an opportunity to introduce evidence on this

point].‟ ” (Simmons, supra, 512 U.S. at p. 175 (conc. opn. of O‟Connor, J.),

original brackets, quoting Skipper, supra, 476 U.S. at p. 5, fn. 1; see Gardner v.

Florida (1977) 430 U.S. 349, 362. See also Kelly v. South Carolina (2002) 534

U.S. 246, 248 [Simmons rule]; O’Dell v. Netherland (1997) 521 U.S. 151, 159

[same].) We have recognized that under Skipper and Gardner, “[w]hen a

defendant is precluded from introducing evidence rebutting the prosecution‟s

argument in support of the death penalty, fundamental notions of due process are

implicated.” (People v. Frye (1998) 18 Cal.4th 894, 1017.)

Here, defendant sought to counter the potent evidence of his persistently

dangerous conduct in custody by informing the jury about security measures

imposed on life prisoners. The prosecutor succeeded in keeping that information

from the jury. As a result, the impact of the aggravating evidence was

significantly enhanced. Such an unfair advantage on the critical question of

penalty offends the fundamental principles of due process set out in Simmons and

Skipper. This conclusion does not mean that evidence of prison security measures

is relevant in every capital case. It remains the rule that “day in the life” evidence

is inadmissible. (People v. Martinez, supra, 47 Cal.4th at p. 962.) When,

however, the prosecution raises an inference of future dangerous conduct in prison

as part of its case in aggravation, the defendant is entitled to respond with evidence

that his chances to inflict harm in prison will be limited. The prosecution is of

course free to explore the extent of that limitation on cross-examination, and to

counter with evidence that life prisoners have opportunities for violence.


Our reasons for excluding evidence of prison conditions in earlier cases do

not apply to defense attempts to rebut a showing that reflects future dangerousness.

The primary rationale, and the one followed by the court below, has been that

prison conditions are irrelevant to any aspect of the defendant‟s character,

culpability, or the circumstances of the offense. (E.g., People v. Martinez, supra,

47 Cal.4th at p. 963; People v. Quartermain, supra, 16 Cal.4th at p. 632; People v.

Thompson, supra, 45 Cal.3d at p. 139.) That is why the defense may not introduce

such evidence as a factor in mitigation. The defense may, however, respond to

aggravating evidence suggesting the defendant will be dangerous in prison.

Ineligibility for parole is also unrelated to a defendant‟s character, culpability, and

criminal offense, but it is nevertheless “indisputably relevant” when the

prosecution raises the issue of the defendant‟s future dangerousness in the

community. (Simmons, supra, 512 U.S. at p. 163 (plur. opn. of Blackmun, J.); see

id. at pp. 176-177 (conc. opn. of O‟Connor, J.).) Similarly, security measures

aimed at restraining a defendant from acting on the violent impulses demonstrated

by the aggravating evidence, or preventing him from inflicting harm, are relevant

when the prosecution suggests that the defendant‟s violent conduct will continue in


We have also noted that testimony about future conditions of confinement

involves speculation as to what future officials in another branch of government

will or will not do. This observation was first made in People v. Thompson, supra,

45 Cal.3d at page 139, where the defendant sought to provide a general picture of

prison life in order to persuade the jury that a life sentence is not lenient

punishment. (Id. at p. 138; see People v. Rundle (2008) 43 Cal.4th 76, 186-187.)

We have repeated Thompson‟s criticism of “ „speculation,‟ ” however, in cases

where the defense offered more narrowly focused testimony on prison security


measures. (People v. Martinez, supra, 47 Cal.4th at p. 963; People v. Jones,

supra, 29 Cal.4th at p. 1261.)

When the defense seeks to rebut an inference of future dangerousness in

custody, Thompson‟s reasoning is inapposite. The purpose of informing the jury

about security conditions in such a case is to prevent speculation by the jury about

the defendant‟s opportunities to inflict harm in the prison setting. (Cf. Simmons,

supra, 512 U.S. at pp. 165-166 (plur. opn. of Blackmun, J.).) Expert testimony on

prison security need not involve undue speculation about specific measures that

might or might not be imposed by penal authorities in the future. Testimony

explaining security policies followed in California prisons with respect to prisoners

sentenced to life without parole, from an expert familiar with the penal system, is

sufficiently reliable to be considered in connection with inferences of future

dangerousness drawn from a defendant‟s past violent conduct in custody.

The Attorney General contends this case is controlled by People v.

Martinez, supra, 47 Cal.4th 911. There, however, the prosecutor offered no

evidence of future dangerousness. (Id. at p. 962.) Furthermore, the court did not

bar the defense expert from testifying about prison conditions. Rather, it limited

his testimony, ruling that detailed evidence of prison operations and exhibits

depicting prison facilities and safety measures was inadmissible, but allowing the

expert to give “ „general descriptions of prison life‟ as well as his opinions on

defendant‟s future dangerousness and whether prison life was the kind of

structured environment that defendant needed. . . . The court also made clear that

it would allow [the expert] to describe the level 4 [maximum security]

classification and its subdividing classifications.” (Ibid.) We rejected Martinez‟s

claim that the limitations imposed by the court were improper. (Id. at p. 963.)

Here, the court did not issue a narrow ruling like that in Martinez, which permitted

the expert to offer his opinions in some areas. The prosecutor sought to exclude


Park‟s testimony in its entirety, and the court granted the motion without


Accordingly, defendant was deprived of his due process right to rebut the

prosecutor‟s evidence and argument suggesting that he would be a dangerous life

prisoner. “[O]ne of the hallmarks of due process in our adversary system is the

defendant‟s ability to meet the State‟s case against him.” (Simmons, supra, 512

U.S. at p. 175 (conc. opn. of O‟Connor, J.).) The error is reversible unless it is

harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18,

24; People v. Frye, supra, 18 Cal.4th at p. 1017; Fudge, supra, 7 Cal.4th at p.

1117.) We conclude there is reasonable doubt as to whether the jury would have

returned a verdict of death had the defense been allowed to present Park‟s


The evidence of defendant‟s violence in jail and his persistence in making

escape attempts was dramatic and compelling. The jury‟s concern about his future

dangerousness was reflected in its note to the court asking whether his jail conduct

could be considered. Furthermore, defendant‟s showing in mitigation was

substantial. Numerous witnesses detailed his difficult life as a child, including

prolonged molestation at a very young age by his father. In his subsequent journey

through multiple placements in the social services system, defendant encountered

further physical abuse and repeated disappointment in his hopes of finding a stable

family environment. Medical experts testified about the effects of these

experiences on his development. In weighing the mitigating and aggravating

factors, some jurors may have felt that defendant had been damaged through no

fault of his own, but had become so dangerous even in penal custody that death

was the appropriate verdict. We express no view on the appropriate penalty, but

we must consider how a jury that heard the excluded evidence might have

responded differently. We cannot say there is no reasonable doubt that the


outcome of the penalty trial would have been the same had Park been allowed to


Having reached this conclusion, we need not address defendant‟s claim that

his counsel were ineffective for promising to present Park‟s testimony in the

opening statement before securing a ruling from the court on its admissibility. Nor

is it necessary to address the other penalty phase issues defendant raises.


We affirm the judgment of guilt, and reverse the judgment of death.





See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Smith

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted


Opinion No.
Date Filed: April 27, 2015

County: Shasta
Judge: James Ruggiero



Kathy Moreno, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Eric L.
Christoffersen and Angelo S. Edralin, Deputy Attorneys General, for Plaintiff and Respondent.


Counsel who argued in Supreme Court (not intended for publication with opinion):

Kathy Moreno
P.O. Box 9006
Berkeley, CA 94709
(510) 649-8602

Angelo S. Edralin
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 445-9909


Opinion Information
Date:Docket Number:
Mon, 04/27/2015S112442A