Supreme Court of California Justia
Citation 54 Cal. 4th 952, 282 P.3d 173, 145 Cal. Rptr. 3d 146
People v. Tully

Filed 7/30/12



Plaintiff and Respondent,




Alameda County

Defendant and Appellant.

Super. Ct. No. H97978


An amended information charged defendant Richard Christopher Tully

with the 1986 murder of Shirley Olsson (Pen. Code, § 187) and assault with intent

to commit rape (id., § 1203.065, subd. (b)).1 The information also alleged a

special circumstance that the murder was committed in the commission of a

burglary and, as to both counts, that defendant used a dangerous and deadly

weapon, to wit: a knife. (§§ 190.2, subd. (a)(17)(vii), 12022, subd. (b).) 2

Shirley Olsson, a 59-year-old nurse at the Livermore Veterans

Administration medical center, was brutally murdered sometime in the night or

early morning hours of July 24 to 25, 1986. A coworker went to her residence and

discovered Olsson‟s nude body in her bed; she had been stabbed 23 times. A

bloody knife and Olsson‟s purse were found on the golf course that abutted her


All further unlabeled statutory references are to the Penal Code.


A 1995 amendment to the statute changed the designations of section

190.2, subdivision (a)(17)‟s subparagraphs from Roman numerals (i) to (xi) to the
letters (A) to (G); the current designation for the burglary-murder special
circumstance is section 190.2, subdivision (a)(17)(G).


house. The screen to her bathroom window was found in a neighbor‟s backyard.

The blood on the knife was the victim‟s. Several months later, a fingerprint and

palm print on the knife were matched to defendant. Defendant, who had lived two

houses down from Olsson‟s residence, admitted to police he had been at the

victim‟s house the night she was murdered and had had sex with her, but claimed

the murder was committed by another man.

A jury convicted defendant as charged and found true the special

circumstance and weapon allegations. It then returned a verdict of death, which

the trial court declined to modify. This appeal is automatic. We affirm the



A. Guilt Phase

1. Prosecution evidence

a. Shirley (Sandy) Olsson’s murder and the ensuing investigation3

In July 1986, Sandy Olsson worked as a registered nurse at the Veterans

Administration medical center in Livermore. Her specialty was ostomony —

caring for people who had colostomies — and she also worked as a charge or

supervising nurse. Typically, she worked Monday through Friday, arriving

sometime between 7:00 and 7:30 a.m. and leaving at 4:00 p.m. Olsson was 59

years old and divorced with two adult children, a daughter, Sandra Walters, and a

son, Elbert “Tripp” Walters III. For much of the year she lived alone at 1556

Hollyhock Street, except from October through March when her father, Clifford

Sandberg, came from Kansas and stayed with her. Olsson‟s residence backed up

against the Springtown Golf Course.


Ms. Olsson‟s given name was Shirley but she was called Sandy by

everyone but her father.


The portrait of Olsson that emerged from the testimony of various

witnesses was of a person of fairly set habits. When she arrived home from work,

she locked the front door with a chain lock. After changing her top, she poured

herself a glass of Coca-Cola and added a little bourbon to it. When her father

visited, he and Olsson ate dinner together and watched television. She usually

rejected his suggestions that they do something in the evenings because she was

tired from work. Instead, she went into her bedroom with her drink to read her

mail, magazines, and the newspaper. Olsson‟s daughter testified that Olsson went

to bed sometime between 9:00 and 10:00 p.m. She first went through her house

and made sure all the windows and doors were locked. Olsson was a modest

woman who slept in a pair of men‟s flannel pajamas.

Olsson‟s father testified that during his annual visits to his daughter, she

never had any male visitors. Her social life apparently consisted of occasionally

going out to dinner with work friends.

On Thursday, July 24, 1986, Olsson arrived for work at the Veterans

Administration medical center at 7:00 a.m. and left at around 4:00 p.m. She

walked to her car with another nurse, Deborah Gifford. Gifford testified that

Olsson was in a good mood because she was flying to Topeka that weekend for a

family celebration of her father‟s 85th birthday. Olsson‟s across-the-street

neighbor, Elden Freeman, saw her arrive home sometime between 4:15 and 4:45

p.m. From his living room, Freeman saw Olsson leave her den at about 8:00 p.m.

and then turn off the light in the room at about 10:00 p.m. At that point, there

were no other lights on at her house that he could see.

At about 4:00 a.m., Linda Rocke, who lived in a house on the opposite side

of the golf course from Olsson, was awakened by her dog‟s barking. She took the

dog outside to keep it from waking the rest of her family. In her backyard, Rocke


found what looked like a small bathroom screen. It had not been in her backyard


Olsson failed to appear at work the next morning, July 25. This was

unusual because Olsson was described as “very reliable” by her colleague Maxine

Gatten. When Olsson failed to appear by 7:25 a.m., Gatten called her residence

but did not get an answer. Later, she again unsuccessfully tried to reach Olsson by

phone. She discussed the matter with other nurses; they worried that Olsson might

be sick, because she had complained about chest pains. Eventually, Gatten left the

matter of Olsson‟s absence to another nurse, Barbara Green.

Green and Olsson had a close relationship. They shared an office and

frequently ate lunch together. Olsson brought her lunch to work in a paper sack

that she kept in her purse. Her lunch sometimes included fruit, like grapes. Green

was aware that Olsson was flying to Kansas the next day for her father‟s birthday.

When, at about 8:45 a.m., Gatten told Green that Olsson had not reported for

work, Green became “[v]ery concerned.” After she, too, failed to reach Olsson by

phone, Green drove to Olsson‟s residence. Green found Olsson‟s car parked in the

driveway and the newspaper in front of her house. She went to the front door,

rang the bell, knocked, and called Olsson‟s name, but did not receive a response.

She looked in through a glass panel at the front of the house; there was no

movement inside.

Green went around to the back where the house abutted the golf course.

The windows and the sliding door were locked. However, she noticed the

bathroom window was open. She could not reach it on her own, so she pulled a

wooden plant stand beneath it and climbed onto the stand. She was still unable to

see through the window. Eventually, Green enlisted the help of Olsson‟s

neighbor, Freeman.


Freeman knew Olsson well enough that she would ask him to water her

plants and watch her house when she was on vacation. He had been expecting

Olsson to bring him the key to her house so he could take care of it while she was

in Kansas. As of Friday morning, the day before she was leaving, she had not

done so. Green went to Freeman‟s house and, after explaining that she had been

trying to reach Olsson, asked to use the phone. Green called 911. When there was

no response from the 911 call, she and Freeman returned to Olsson‟s house. With

Freeman‟s help, she managed to get high enough to see through the bathroom

window. In the bathroom mirror, she saw Olsson‟s reflection. Olsson was lying

naked on her stomach across her bed; there was a puddle of blood on the floor

beneath her head. Green “knew that [she] had to get in as soon as [she] could

because [she] had to stop the bleeding.” Freeman returned to his house and got a

ladder. Using the ladder, Green entered the house through the bathroom window.

Freeman went around to the front door and waited.

Green went to her friend‟s side. She saw “slits” on Sandy Olsson‟s back,

“blood dripping down her face,” and “her left eye was bulging out of her head.”

Her bedclothes were crumpled beneath her. She touched Olsson‟s body; it was

cold. She left the bedroom to find a phone to call 911. As she left the bedroom,

she saw a framed photograph had fallen from the wall to the floor while another

photograph, still on the wall, was crooked and broken. She was unable to find the

phone and went to the front door. She saw that a chain lock had been broken; two

of the screws that attached to a plate on the door were hanging from the chain.

She opened the door and let Freeman in. She told him she could not find the

phone. Freeman told her the phone was in the shape of a Coca-Cola bottle and

where she would find it. Green called 911 and told the operator that Olsson had

been murdered. Before long, a police officer arrived. He asked Green if Olsson

was dead. Green tried unsuccessfully to get a pulse. She told the officer that


Olsson was dead. At some point, Green left the house and went to Freeman‟s


Sergeant Scott Robertson of the Livermore Police Department was put in

charge of the investigation. He arrived at the house at about 9:45 a.m. He

conferred with other officers already at the crime scene and then walked though

the house. There were some green grapes on the living room carpet. He observed

signs of a struggle in the front entryway, where he saw a framed photograph that

had apparently fallen to the floor and two photographs on the wall that were

slightly askew. Just inside the master bedroom he saw another photograph that

had fallen from the wall. He also observed signs of a forced entry into the house

in the form of the broken slide chain latch on the front door.

In Olsson‟s bedroom, he observed blood splatters on the closet door and a

smear of blood on a light switch. He examined Olsson‟s body and saw wounds he

believed were consistent with a forced entry into the house. There were bruises on

Olsson‟s forehead and lips that seemed to be consistent with the edge of a door.

There was a similar bruise on the outside of her left ankle. Beneath her body

police found a pair of flannel pajamas and blankets. There was a glass of Coca-

Cola and a glass of bourbon on the nightstand next to the bed. A bathrobe and pair

of slippers were on the floor. On a desk in the bedroom were folded clothes,

evidently put there by Olsson for her trip to Kansas. Robertson found no money in

the house but a receipt in the kitchen indicated Olsson had received change of

$3.95 from a supermarket purchase the prior evening.

Around noon, Judith Williams and Cathie Garton were finishing a round of

golf at the Springtown Golf Course. They saw a purse floating in a pond on the

course. They fished the purse out of the pond and took it into the clubhouse. The

purse contained Olsson‟s hospital identification card, driver‟s license, credit cards


and checkbook, among other items, as well as some loose grapes. It had no cash

in it.

Later that afternoon, police searched the golf course for the murder weapon,

assisted by security officers from the Lawrence Livermore Laboratory. At about

3:00 p.m., one of those officers, Renorise Conn, discovered a bloody knife beneath

a tree in knee-high brush. That evening, police retrieved the window screen that

Linda Rocke had discovered in her backyard the previous night. Police

determined that the screen belonged to Olsson‟s master bathroom window.

Pathologist Sharon Van Meter autopsied Sandy Olsson‟s body. Dr. Van

Meter counted 23 stab wounds. The wounds were consistent with the knife

recovered from the golf course, a Buck 110 knife. Apart from the stab wounds,

Van Meter found hemorrhaging of Olsson‟s neck and larynx muscles consistent

with strangulation. Van Meter also observed injuries to Olsson‟s lip and head

consistent with her head having come into contact with the edge of a door being

forced open. While Van Meter found no trauma to Olsson‟s vaginal area, she

testified that the absence of such trauma did not mean Olsson had not been forced

to submit to sexual intercourse before her death. Van Meter testified that the

cause of death was shock and hemorrhaging, as the result of multiple stab wounds,

associated with asphyxia due to fractures of the larynx. Olsson may have survived

for more than an hour after the wounds were inflicted.

The blood on the knife was consistent with Olsson‟s blood. The sheets on

her bed had bloodstains that indicated they had been used to wipe off the bloody

knife. Forensic examination of Olsson‟s body, clothes, and bedding failed to

reveal the presence of semen or spermatozoa. The criminalist who conducted the

examination testified that her findings did not rule out the possibility of sexual

intercourse if the assailant had not ejaculated.


Two identifiable prints were recovered from the knife handle. Between

July 25, 1986, and March 1, 1987, the Livermore Police Department submitted the

names of 40 or 50 possible suspects to the California Department of Justice for

fingerprint comparison purposes. Among the prints submitted were defendant‟s.

However, the fingerprint analysts were unable at that time to match the prints on

the knife or any prints taken from the crime scene to a suspect.

b. Defendant is connected to the murder

In July 1986, John Chandler lived on Hollyhock Street, two houses from

Olsson‟s residence. Chandler was the boyfriend of defendant‟s mother and had

known defendant since defendant was 15 years old. Defendant had lived with

Chandler, moving out only three weeks before Olsson was murdered. Defendant

kept a key and sometimes stayed at Chandler‟s house. He also received mail and

phone messages there. Chandler told the district attorney and a district attorney

investigator that he was with defendant when defendant purchased a Buck 110

knife in September 1985.4

On March 17, 1987, Sergeant Robertson had a conversation with Officer

Scott Trudeau, also a member of the Livermore Police Department.5 Based on

that conversation, Robertson resubmitted defendant‟s prints for analysis. A

fingerprint and a palm print on the murder weapon were matched to defendant‟s

right ring finger and right palm. On March 27, Robertson arrested defendant.


At trial, Chandler testified that he did not remember if defendant had

purchased the knife.

Trudeau had arrested defendant on March 7, 1987, on drug charges

following a traffic stop. Defendant made statements to Trudeau that Trudeau
ultimately realized connected defendant to Olsson‟s murder and he informed
Robertson of his suspicions. Defendant‟s statements to Trudeau were suppressed
prior to trial, but the trial court declined to suppress the fingerprint evidence as
fruit of the poisonous tree. The trial court‟s ruling is the subject of defendant‟s
first claim.


That same day, defendant was interrogated by Robertson and Detective

Mike Newton, also of the Livermore Police Department. Defendant

acknowledged that his mailing address was John Chandler‟s residence and

admitted to having lived there. He claimed, however, that he had never met Sandy

Olsson and had never been in her house. When Robertson told him that his

fingerprints had been found on the knife that killed Olsson, defendant denied any

involvement. He said his knife had been stolen from his car in the spring of 1986.

Defendant, who said he read about the murder in the newspapers, suggested it was

a “domestic type of killing.”

Robertson also told defendant‟s wife, Vicky Tully, that defendant‟s

fingerprints had been identified on the murder weapon. Robertson and Newton

met with Vicky Tully the following Monday, March 30, 1987. Afterwards, the

officers talked to defendant again.

At the second interview, defendant told the following story: At some point

in the early morning hours of July 25, 1986, he met up with a man he knew only as

“Doubting Thomas,” who was a member of the Hell‟s Angels. Defendant had

already consumed four or five 12-ounce beers and four or five 4-ounce

“kamikazes” at a bar in Pleasanton. Thomas told defendant he wanted to go to the

house of a woman who lived on Hollyhock Street in Livermore, from whom he

bought drugs that she obtained from the hospital. When defendant told Thomas he

rented a room from John Chandler on the same street, Thomas said “that worked

out good” and told defendant to park at Chandler‟s because it was “only a couple

of houses down” from their destination. The two men walked to the woman‟s

residence. Thomas entered first and then signaled for defendant to enter. While

Thomas and the woman talked in her bedroom, defendant waited in the living

room where he found a bottle of whiskey and “took a few pulls off” of it.


He heard Thomas and the woman start to argue. After they calmed down,

Thomas motioned for defendant to come into the bedroom and asked him if he

“wanted to have a little fun” with the woman. Defendant entered the bedroom and

found the woman naked on her bed. He had intercourse with the woman but was

too drunk to maintain an erection and did not ejaculate. He was in the bedroom

for under ten minutes and left feeling “kinda stupid.”

Defendant went back out into the living room while Thomas rejoined the

woman in the bedroom. He heard Thomas and the woman arguing again; “[i]t

sounded like they were wrassling or he was knocking her around or something.”

Defendant went to the hallway to listen in and the woman came charging naked

out of the bedroom and ran into him. Thomas came out and pulled the woman

back into the room by her throat and hair. Defendant returned to the living room.

Within a matter of minutes, it got quiet and Thomas came out of the bedroom.

Defendant went into the bedroom and saw the woman lying naked on the bed with

multiple stab wounds on her back. He said he “was freaking out” and asked

Thomas if he had killed her. Thomas said yes, but did not say why.

Observing that Thomas had been wearing leather gloves the entire time,

defendant went to his car to get his gloves. When he returned he saw Thomas in

the living room rummaging through a purse. Defendant attempted to wipe his

fingerprints off any object he had touched. He and Thomas left through the patio

door. Thomas handed defendant the knife defendant had had in his car.

Defendant became angry that Thomas had used his knife to kill the woman.

Thomas wanted to return to Chandler‟s house, but defendant told him, “we can‟t

go back over there, you know, looking like we do.” They walked toward the pond

on the golf course. Defendant tossed the knife while Thomas, after taking what he

wanted from the purse, threw it into the pond. Defendant gave some of his clothes


to Thomas while he went to get his car. When he returned for Thomas, his clothes

were gone and Thomas told him, “I stashed ‟em so they won‟t be found.”

Defendant sought to be placed in a witness protection program because he

was afraid of Doubting Thomas. He denied having stabbed the victim.

Later that day, defendant spoke to a deputy district attorney and an

investigator. Defendant again expressed interest in the witness protection

program. The district attorney declined to make any promises, rebuffed

defendant‟s request for a plea bargain, and reminded him that what he said could

and would be used against him. Defendant then essentially repeated the story he

had told the police. Defendant told the district attorney that other women had

offered themselves to him for sex before, explaining, “Sometimes it was party

situations, sometimes it was just, um, what they call a pass-around chick.”

A review of medications handled by Olsson revealed no shortages of any

controlled substance. Police identified “Doubting Thomas” as Thomas Pillard.

His fingerprints were obtained and submitted to the California Department of

Justice along with defendant‟s.

2. Defense evidence

The defense called Sergeant Scott Robertson, who identified a pair of

men‟s shoes recovered from a dumpster near the golf course as well as bedding

items taken from the victim‟s bedroom. The defense also recalled criminalist

Sharon Binkley regarding her examination of hair evidence taken from Olsson‟s

bedroom. Binkley testified that all the hairs retrieved from the crime scene were

consistent with Olsson‟s hair and inconsistent with defendant‟s hair, except for

some reddish-brown hairs on a pillowcase (which evidently belonged to Olsson‟s

daughter‟s dog) and two unidentified human hairs on a knitted blanket. The

defense‟s only other witness was Charles Fraser, the deputy district attorney who


had interviewed defendant on March 30, 1987. He testified to his experience as a

trial lawyer, particularly to the number of cross-examinations he had conducted

prior to his interview with defendant.

B. Penalty Phase

1. Prosecution evidence

The prosecution presented evidence that defendant had been involved in

two physical altercations while in jail. On January 7, 1988, defendant engaged in

a fistfight with another inmate during mealtime. Defendant received a split lower

lip that required a stitch, while the other inmate suffered no visible injuries. On

September 26, 1991, Alameda County Deputy Sheriff Michael Perkins saw

defendant and another inmate in a “wrestling hold” with each other. They had to

be forcibly separated. Defendant had some bumps and bruises on his face. The

other inmate was treated for an eye injury.

The prosecution also presented victim impact evidence in the form of

testimony from Sandy Olsson‟s adult children, Sandra Walters and Elbert “Tripp”

Walters III; her sister, Jan Dietrich; and Olsson‟s then 91-year-old father, Clifford

Sandberg. Sandra Walters, 35 years old at the time of trial, testified that her

mother was her “best friend,” and “meant everything to me.” She stayed with her

mother once a month and called her every week. Her mother‟s death had left her

feeling “lost” and “afraid.” She “didn‟t know who was going to take care of me if

my mom wasn‟t around.” Her first thought about her mother “is the horror of how

she died,” and she could not see a knife without remembering the manner of her

mother‟s death. She testified that she slept “with a night light” and a “hatchet

underneath my bed.” She knew her mother had had breast cancer “but if she

would have died by cancer, [Walters] could have at least said good bye to her.”


She remained angry because her mother had been taken from her and it had

become hard for her to be close to anyone.

Tripp Walters testified that his mother was his “anchor,” who had

“unconditional love” for him even when he “a little bit wild” as a teenager and

into his 20‟s. He described his mother as “happy” and “caring.” Her death

“turned [his] whole world upside down,” was “devastating,” and left him “very

depressed.” Since his mother‟s murder, he had married and he and his wife were

planning to have a child. He would have understood if his mother had died from

cancer but he could not understand that she was murdered.

Jan Dietrich, who lived in Washington, D.C., at the time of the trial, was

Sandy Olsson‟s younger sister. They were each other‟s only sibling, and were

close friends. They had travelled together in Europe and the United States.

Dietrich testified that Olsson had planned to retire in three years and they had

talked about Olsson‟s plans to travel. Dietrich had to tell her father about Olsson‟s

death, and flew to Topeka, Kansas, so that she and her father could fly to

California together. She and her father were at the airport at Topeka preparing to

fly to California at about the same time Olsson‟s plane would have been arriving

in Topeka for her father‟s birthday celebration. Dietrich felt no closure because of

the manner of her sister‟s death.

Clifford Sandberg testified he and his daughter had planned to buy a car

together after she retired and to use it to travel. At 91, he had experienced the

death of many people, but the manner of his daughter‟s death still caused him


2. Defense Evidence

Derek Mendoca, the inmate with whom defendant was fighting on

January 7, 1988, testified that he threw the first punch because defendant had


wiped mustard or ketchup on Mendoca‟s shirt. He and defendant were friends

before the fight and were friends afterwards.

Defendant‟s older siblings, Shirley Brown and Roger Tully, also testified.

Brown testified that defendant was born in Turkey, one of five children their

mother had by three different men. Defendant‟s father, Richard Ross Tully

(Richard Ross), was Brown‟s stepfather; their mother‟s name was Louise.

Richard Ross was in the Air Force and the family moved often. Richard Ross also

received assignments that took him away from home for long periods of time.

Once, when he was gone for six months, Louise began living with another man.

Richard Ross had a drinking problem, and he and Louise “were always

fighting.” Louise was the physical aggressor. She was very demanding of the

children, “wors[e] than a drill sergeant.” Brown was ashamed of her stepfather‟s

constant drinking because she “didn‟t know what he was going to do.” If he was

at home “he was drinking.” Richard Ross‟s drinking affected his career — he lost

rank and was forced to enter a rehabilitation clinic. Once, when Brown was

age 11, her stepfather came into her room, asked her if she wanted to learn how

boys kissed, and tried to lay her down on her bed. She told her mother about the

incident but Louise did nothing.

Defendant was a bed wetter. He was also the object of his mother‟s rage

and she would call him stupid. Brown left home as soon as she graduated from

high school, but continued to have emotional and psychological problems, for

which she was hospitalized. She had visited defendant in jail and corresponded

with him and she wanted to continue to do that.

Roger Tully, defendant‟s older brother, was adopted by Richard Ross Tully

but was not his natural son. At the time of defendant‟s trial, Roger was a burglary

detective in the Baton Rouge Police Department, where he had also served as a

homicide detective.


During defendant‟s childhood, neither Richard Ross nor Louise was often

at home, and responsibility for taking care of him fell to Roger and Shirley.

Richard Ross was drunk most of the time he was at home, if he came home at all.

Sometimes he drank to the point of hallucinating. Once, on a camping trip, he got

so drunk he thought he was in a sinking boat in the lake where they were camped.

He began screaming, “Get out, get out, get out. We‟re going down, we‟re going

down.” Roger tried to tell him they were not in the lake, but parked next to it.

Richard Ross would also be brought home by the military police with black eyes

and other injuries. Both he and Louise had affairs. Once Roger discovered his

mother naked with another man. He also found incest pornography in his parents‟


Richard Ross and Louise fought over his drinking. Often she would rouse

the children from sleep and they would be “hauled off to a friend‟s house or a

neighbor‟s house.” The fights were sometimes physical. One night Roger came

home and found broken glass everywhere. Later, he saw Richard Ross on the

kitchen floor with a skillet over his head; he had apparently been knocked cold.

Richard Ross would leave, and then Louise channeled her anger at her children.

Discipline was inconsistent and her rules were arbitrary. Louise hit her children

with her hands and a belt. Defendant was a particular target of his mother‟s anger.

Louise was “volatile” and had no close friends. Roger had had to intervene when

his mother attempted suicide; it was the last time he saw her.

Roger reacted to the family‟s dysfunction by “act[ing] out.” He

experimented with drugs and ran away from home. When Roger was age 17, he

became involved in a church. His mother threw him out of the house and he went

to live with a family he had met through the church. For the first time, he

experienced “what a normal life is.” He tried to share his religious experience

with defendant, but Louise would not allow defendant to go to church with Roger.


Roger said about defendant‟s actions, “The only thing between me being up

here and him being there, was the fact that I had a religious conversion when I was

18 . . . . He‟s got to take his responsibility for his [actions], but as far as how it all

came out . . . it‟s the most normal, natural result. I don‟t blame him.”

Defendant‟s 18-year-old niece, Ursula — Shirley Brown‟s daughter —

testified that she had begun to correspond with defendant while he was in jail on

the present charges and she had come to feel comfortable confiding in him. She

hoped to continue their relationship. Defendant‟s son Richard Anthony Tully,

known as Tony, testified that he often spoke to his father on the phone and

received letters from him. He wanted his father to live.


A. Suppression Motions

1. Motion to suppress asserting unlawful detention on March 7, 1987

Sandy Olsson was murdered on July 24 or 25, 1986; by March 1987, the

police investigation had failed to yield a suspect. On March 7, 1987, however,

defendant was detained for driving on a suspended license. This led to his arrest

on drug charges and ultimately to his arrest for Olsson‟s murder. Prior to trial,

defendant brought two motions to suppress the fingerprint evidence that linked

him to the murder weapon and also statements he made to police during

interrogations on March 27 and March 30, 1987. The first suppression motion

asserted this evidence was the poisonous fruit of his illegal detention on March 7,

1987. (See Wong Sun v. United States (1963) 371 U.S. 471, 484.)

a. Evidence adduced at hearing

On March 7, 1987, Officer Scott Trudeau of the Livermore Police

Department was conducting surveillance of the residence of Kenneth Perry, a

known narcotics offender. Trudeau was alone in his unmarked patrol car. Two


other officers, Timothy Painter and Jeff Shweib, were nearby. At about 8:00 p.m.,

Trudeau saw a Fiat Brava drive past him with two occupants. He recognized the

passenger as Ed Snyder. He also recognized the driver — defendant — because

he had stopped him two or three months earlier, but did not recall his name. The

Fiat passed Trudeau twice before parking near Perry‟s residence. Trudeau

described the occupants to Painter. Painter identified the driver as defendant.

Painter had taken a vandalism report a week earlier allegedly involving defendant.

Painter told Trudeau defendant was driving on a suspended driver‟s license and

that there was an arrest warrant out for Snyder.

Defendant got out of the car and went into the building where Perry lived,

emerged 20 to 25 minutes later, and drove away. Trudeau followed and stopped

him. Trudeau stopped defendant because of the license violation and Snyder‟s

arrest warrant. He approached defendant and asked him for his driver‟s license

and his registration. Defendant gave Trudeau his license but could not find his

registration. While Trudeau was talking to defendant about his license and

registration, Painter and Shweib were at the passenger side of the car talking to

Snyder. Painter took Snyder to his own car where Shweib remained with him.

Trudeau returned to his vehicle to write out the citation. He completed most of the

citation in his car, but defendant still had to sign it and there were some boxes on

the citation which required further discussion with defendant.

While Trudeau was in his patrol car, Painter approached defendant, who

was now standing outside his car. Because of the vandalism incident, Painter

knew defendant was a narcotics user who was normally armed and liked to use a

knife. Painter had been told by the victims that they and defendant had been

involved in a drug deal “gone sour” and defendant had retaliated against them by

damaging their car with a knife. At that point, however, the vandalism incident

was closed. Defendant had not even been listed as a suspect because there was no


definite evidence of his involvement. Even if he had admitted vandalizing the car,

Painter would not have arrested him because it was a misdemeanor that had not

been committed in his presence. He could only have written up a report and asked

for a complaint. Painter‟s purpose in talking to defendant was to obtain

information that either confirmed or discredited what he had been told about

defendant‟s involvement in the vandalism.

Painter told defendant “what had been said about him being a narcotics user

and being armed” with a knife. He asked defendant if he could search him.

Defendant said, “Sure, I don‟t have anything on me.” Painter searched defendant

by using a flashlight. He held the flashlight and peered in defendant‟s clothing

and around him but did not want to “squeeze things too much” because he was

afraid of being stuck by a needle.6 Painter found a bindle in the coin pocket of

defendant‟s left pants pocket. The bindle contained white power that Painter

believed was methamphetamine. He turned it over to Trudeau.

As Trudeau returned to defendant‟s car to complete the citation, he heard

Painter ask defendant for consent to search and defendant reply “[s]omething to

the effect, you know, go ahead and knock yourself out, something like that.”

Trudeau heard Painter say he was concerned that defendant carried weapons but

could not recall “[w]ord for word” what Painter said when he asked defendant if

he could search him. After Painter gave Trudeau the bindle, Trudeau asked

defendant for permission to search his car. Defendant said, “[S]ure, go ahead.”

Trudeau found three hypodermic syringes and a bent, burnt spoon. Defendant was


At the suppression hearing, Painter testified that he told defendant he

wanted to search him for “weapons and narcotics.” He was confronted with his
testimony at the preliminary hearing, at which he testified that he searched
defendant because he thought he might have a weapon, but made no explicit
mention of drugs. In response, Painter testified, “I believe it‟s more to that,” but
conceded he did not specifically recall asking defendant whether he could also
search him for drugs as well as a weapon.


then arrested for possession of methamphetamine, possession of hypodermic

syringes and driving on a suspended license. He was transported to the police

station where a booking search revealed seven or eight bindles of

methamphetamine secreted in his underwear.

Trudeau read defendant his Miranda rights (Miranda v. Arizona (1966) 384

U.S. 436), which defendant waived. However, when Trudeau told defendant he

“was going to ask [defendant] questions pertaining to the items that were found on

him, [defendant] told [Trudeau] he didn‟t want to talk to [him].” Trudeau stopped

questioning defendant. Defendant then “initiated [a] conversation about how he

did not want to go to jail on that particular evening.” Trudeau told him there were

“ways for that not to occur,” specifically that they could reach an agreement for

defendant to “work off his offense,” by becoming an informant. Defendant was

interested and Trudeau went out to call a narcotics detective, Detective Jensen.

While he and defendant were waiting for Jensen to arrive, they talked. Trudeau

learned that defendant had been in the Marine Corps, was injecting himself with

methamphetamine four or five times a day, and supported his habit by breaking

into cars and houses and selling items he took from them. He also told Trudeau

that he was being treated for stomach problems at a Veterans Administration

hospital. Trudeau told defendant that what he had revealed about his drug habit

and the way he supported it would not be used against him, and it did not appear in

the police report. After Jensen arrived, Trudeau left the room. Jensen came out

and said he and defendant had reached a deal. Defendant was released that night.

At this point, Trudeau knew very little about the Olsson investigation,

although he had read an FBI profile of it. It “never entered [his] mind” that

defendant might be a suspect in that crime. Trudeau was off work for a few days

after the interview with defendant. When he returned he discovered he still had

defendant‟s driver‟s license attached to his clipboard. He sought out Detective


Jensen, who told him the deal with defendant was off because defendant had failed

to keep his end of the bargain. Jensen said he was going to file the drug case.

Trudeau said he would return defendant‟s license to him. He drove to the

residence listed on defendant‟s driver‟s license — 1572 Hollyhock — and realized

it was only two houses from where Sandy Olsson had lived. He remembered

defendant had told him he was being treated at a Veterans Administration hospital

and that Olsson was a nurse at the Veterans Administration medical center. He

also remembered that the FBI profile suggested that the suspect lived in the area of

the crime scene and was probably a drug user. Trudeau went to the address but

found no one home. He returned to the police station and talked to Sergeant

Robertson about defendant. As he was leaving, he ran into another officer, John

Leal. Leal told Trudeau that defendant was a suspect in an assault with a deadly

weapon case. Trudeau conveyed this new information to Robertson. He

suggested Robertson run defendant‟s fingerprints against the prints found on the

murder weapon.

Sergeant Robertson and his men had canvassed between 150 and 200

houses around the crime scene. Defendant‟s name had not come up from this

canvass. Between July 1986 and March 1987, Robertson had looked at around 30

potential suspects. He had sent fingerprint cards of potential suspects to the

California Department of Justice in Sacramento to compare to the prints found on

the murder weapon but there had been no matches. Defendant‟s fingerprints had

been among those sent to Sacramento.7

As of March 17, 1987, when Trudeau approached him, Robertson had a

new supervisor, Sergeant Jack Stewart, who had been assigned to the case in

January 1987. He told Robertson he wanted to recanvass the entire neighborhood


The record is unclear why defendant‟s fingerprints were among those

submitted to the Department of Justice.


to determine who owned each house, and who had been living in the houses,

whether as renters or visitors, at the time of the murder. A plot map of the houses

surrounding the murder scene indicated that 1572 Hollyhock, where defendant had

lived, had been double-checked during the first canvass to verify that someone at

the residence had been interviewed. Both Robertson and Stewart testified that the

new canvass would have resulted in a triple check of that address. Stewart also

testified that he planned to run a computerized address check to identify all

residents at houses around the scene of the crime. He was also going to see if it

was possible to run a computer check through the Department of Motor Vehicles

to determine whose driver‟s licenses listed those houses as their residence.

Based on the information about defendant provided to Robertson by Officer

Trudeau on March 17, 1987, Robertson took defendant‟s fingerprint card, from a

1973 juvenile offense, and hand-delivered it to the Department of Justice in

Sacramento. Angelo Rienti, a latent fingerprint analyst, told Robertson that

defendant‟s fingerprint matched the print on the murder weapon.8 Defendant‟s

palm print, taken after his arrest, was later matched to a partial palm print on the

murder weapon.

Defendant was arrested on March 27, 1987, at the home of his wife‟s

parents. Police went there with arrest warrants on drug charges. Sergeant Stewart

and Detective Tart went to the front door of the residence while Sergeant

Robertson and Detective Newton were deployed to the rear. Diane Holbert, Vicky

Tully‟s mother, answered the front door. She told police defendant was not there,

but let the police into her house to talk to her. Once inside, Stewart asked Holbert


Stewart testified that the earlier comparison of defendant‟s prints to the

print on the knife had not yielded a match because the analyst performing the
earlier comparison had looked only at the right middle finger for each print card;
the match that was eventually made was to defendant‟s right ring finger.


if she knew where Vicky was. Holbert said no. However, as they were talking

Stewart saw a woman in the hallway who he thought was Vicky Tully leaving one

room and about to enter another. He asked her if she was Vicky Tully. She said

yes and asked why he wanted to know. Stewart told her he was looking for

defendant. Vicky looked at the door she was walking toward and told police

defendant was asleep inside the room. She said she would get him because he did

not have clothes on.

As she opened the door, Stewart went swiftly down the hall and told her the

police would get him. At that point, the door was opened about a foot. Stewart

saw a man lying on his stomach with his head on a pillow. Stewart entered the

room, yelled at him to wake him and asked him if he was Richard Tully. Stewart

identified himself as a police officer. Defendant woke slowly and identified

himself as Richard Tully. Stewart told him the police had warrants for his arrest.

Defendant was arrested, handcuffed and taken to jail wearing only a pair of blue


b. Trial court ruling

Defendant‟s initial motion, filed on February 2, 1992, asserted that all

evidence arising from defendant‟s initial detention on March 7, 1987, and from his

subsequent arrest on March 27, 1987, should be suppressed as a product of an

illegal search and seizure. Following the hearing on the motion, defendant was

allowed to file a supplementary motion specifying the grounds for suppression.

These included: (1) any consent by defendant to a search of his person in the

course of the March 7 vehicle stop was invalid as the product of an unlawful

interrogation because he was not given a Miranda warning; (2) even if valid, the

search of defendant‟s person exceeded the scope of his consent; (3) statements he

made after his arrest on March 7 on drug charges regarding his drug use and


criminal activity were involuntary; and (4) entry into the bedroom where he was

arrested violated section 844‟s knock-notice requirement. The prosecution argued

the stop was lawful but, even if it was illegal, the fingerprint comparison evidence

connecting defendant to Olsson‟s murder was not tainted by such illegality. The

prosecution also argued that the fingerprint comparison evidence would have

inevitably been discovered in light of the new investigative measures that Sergeant

Stewart intended to undertake.

The trial court concluded that the search of defendant‟s person did not

exceed the scope of his consent. It found further, however, that the statements he

made following his March 7 arrest about his drug use, his criminal activity to

support his drug use — breaking into homes and cars — and that he was being

treated at a Veterans Administration hospital were involuntary and must be

suppressed because he had been told these statements would not be used against


Nonetheless, the court declined to suppress the fingerprint comparison

evidence because it “was not tainted by the illegally obtained statements and is

admissible.” Specifically, “[a]t the time the involuntary statements were obtained,

the officer had no reason to suspect or believe the conversation would turn up

evidence of any crime other than the narcotics offenses. In the court‟s view, this

was a case of investigatory serendipity.” The court also found “the police would

inevitably have again compared defendant‟s prints with those found on the knife

found at the murder scene.” On this point, the court found “credible” the

prosecution‟s evidence that in the “normal course of the continuing murder

investigation, [defendant] would have emerged as a prime suspect quite apart from

the statements he gave to Officer Trudeau.”


c. Discussion

“In reviewing a suppression ruling, „we defer to the superior court‟s

express and implied factual findings if they are supported by substantial evidence,

[but] we exercise our independent judgment in determining the legality of a search

on the facts so found.‟ ” (People v. Lomax (2010) 49 Cal.4th 530, 563.)

Thus, while we ultimately exercise our independent judgment to determine

the constitutional propriety of a search or seizure, we do so within the context of

historical facts determined by the trial court. “As the finder of fact . . . the

superior court is vested with the power to judge the credibility of the witnesses,

resolve any conflicts in the testimony, weigh the evidence and draw factual

inferences in deciding whether a search is constitutionally unreasonable.” (People

v. Woods (1999) 21 Cal.4th 668, 673.) We review its factual findings “ „ “under

the deferential substantial-evidence standard.” ‟ ” (People v. Ayala (2000) 23

Cal.4th 225, 255.) Accordingly, “[w]e view the evidence in a light most favorable

to the order denying the motion to suppress” (People v. Manderscheid (2002) 99

Cal.App.4th 355, 357), and “[a]ny conflicts in the evidence are resolved in favor

of the superior court‟s ruling.” (People v. Limon (1993) 17 Cal.App.4th 524, 529.)

Moreover, the reviewing court “must accept the trial court‟s resolution of disputed

facts and its assessment of credibility.” (People v. Valenzuela (1994) 28

Cal.App.4th 817, 823.)

Because the Attorney General asserts that many of defendant‟s arguments

on appeal are forfeited by his failure to have advanced them in the trial court, we

must also briefly examine the question of when an argument not made to the trial

court is, nonetheless, cognizable on appeal.

Constitutional claims raised for the first time on appeal are not subject to

forfeiture only when “the new arguments do not invoke facts or legal standards

different from those the trial court itself was asked to apply, but merely assert that


the trial court‟s act or omission, insofar as wrong for the reasons actually

presented to the court, had the additional legal consequence of violating the

Constitution.” (People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17, italics omitted;

see People v. Yeoman (2003) 31 Cal.4th 93, 117.) However, “[a] party cannot

argue the court erred in failing to conduct an analysis it was not asked to conduct.”

(People v. Partida (2005) 37 Cal.4th 428, 435.)

Defendant contends he was unlawfully detained because the duration of the

traffic stop was excessive in relation to its purpose. Additionally, he claims that

Officer Painter‟s questions about defendant‟s involvement in the vandalism

incident were unjustified by the purpose of the stop and lacked a separate

“reasonable suspicion” of criminal activity. He concludes that because the

detention was excessive and the questioning unjustified, his consent was

involuntary. Additionally, he asserts his consent to search his person was

involuntary because he was not given Miranda advisements before consent was


Only the Miranda claim was argued below; the others are forfeited. The

questions raised by these arguments — whether the duration of the stop was

excessive and whether Painter‟s questions were proper — involve analyses the

trial court was not asked to conduct and potentially required factual bases

additional to those adduced at the hearing.9 The claims are also without merit.


Here, as elsewhere, defendant also argues forfeiture should not apply

because his claim involves the deprivation of fundamental rights, citing People v.
(1997) 15 Cal.4th 269. In Vera, we observed that a defendant “is not
precluded from raising for the first time on appeal a claim asserting the
deprivation of certain fundamental, constitutional rights.” (Id. at p. 276.) But
none of the narrow class of such rights — a plea of once in jeopardy and the right
to jury trial (id. at pp. 276-277) — is implicated here. Moreover, that dictum in
Vera was not intended to provide defendants with an “end run” around the
forfeiture rule, thus eviscerating it. We therefore reject defendant‟s reliance on
Vera here and at every other point at which he invokes it to avoid forfeiture.


“ „As a general matter, the decision to stop an automobile is reasonable

where the police have probable cause to believe that a traffic violation has

occurred. (Whren v. United States (1996) 517 U.S. 806, 810 [135 L.Ed.2d 89, 116

S.Ct. 1769].) If there is a legitimate reason for the stop, the subjective motivation

of the officer is irrelevant.” (People v. Lomax, supra, 49 Cal.4th at p. 564, fn.

omitted; see People v. Torres (2010) 188 Cal.App.4th 775, 785-786.) “[T]he law

contemplates that the officer may temporarily detain the offender at the scene for

the period of time necessary to discharge the duties that he incurs by virtue of the

traffic stop.” (People v. McGaughran (1979) 25 Cal.3d 577, 584 (McGaughran);

see People v. Brown (1998) 62 Cal.App.4th 493, 496-497.) Those duties may

“necessarily include the time required by the officer to write out the citation and

obtain the offender‟s promise to appear . . . . [U]pon demand of a police officer

every motorist must present for „examination‟ both his driver‟s license [citation]

and the registration card of the vehicle [citation]. . . . And although not

specifically compelled by law, certain other steps customarily taken as matters of

good police practice are not less intimately related to the citation process: for

example, the officer will usually discuss the violation with the motorist and listen

to any explanation the latter may wish to offer; and if the vehicles of either are

exposed to danger, the officer may require the driver to proceed to a safer location

before the investigation continues. [Citations.] [¶] Each of the foregoing steps, of

course, requires a certain amount of time to accomplish.” (McGaughran, supra, at

p. 584, fn. omitted.)

Defendant argues that “once [the citation] process was completed, there

was no cause to detain him for questioning, and any consent to search, which was

obtained from [defendant] during the illegal questioning was tainted.” This claim

assumes that the citation process was completed when Officer Painter questioned

defendant about the vandalism incident and asked to search him. Not so.


After Trudeau asked defendant for his license and registration, and

discussed them with him — while Painter and Shweib were removing Snyder from

defendant‟s car — Trudeau testified he went back to his car to write the citation,

but still had to obtain defendant‟s signature and discuss with defendant some

boxes on the citation form. While Trudeau was in his car working on the citation,

Painter approached defendant, spoke to him about the vandalism incident and

asked for his consent to search. Thus, defendant was not detained after the

completion of the citation process to allow Painter to question him. As the factual

predicate of his argument falls, the argument itself — that the detention was

excessive in relation to the time required by Trudeau to complete the citation

process — also collapses.

Moreover, Painter was permitted to ask defendant about matters unrelated

to the traffic stop so long as the questioning did not prolong the stop beyond the

time required to cite defendant. (See McGaughran, supra, 25 Cal.3d at p. 584

[“[i]f a warrant check can be completed” within the period of time necessary for

the completion of the citation process, “no reason appears to hold it improper:

because it would not add to the delay already lawfully experienced by the offender

as a result of his violation, it would not represent any further intrusion on his

rights”], fn. foll. quote; see People v. Bell (1996) 43 Cal.App.4th 754, 767

[“investigative activities beyond the original purpose of a traffic stop are

permissible as long as they do not prolong the stop beyond the time it would

otherwise take”].)

In People v. Brown, supra, 62 Cal.App.4th 493, the defendant was lawfully

detained for riding a bicycle without a light or reflectors. While running a warrant

check, the detaining officer asked the defendant about his probation status and,

evidently, the contents of his fanny pack. A consent search of the pack yielded

methamphetamine. On appeal, the defendant argued that it was improper for the


officer to have questioned him about matters unrelated to the vehicle stop. The

reviewing court rejected the claim: “Questioning during the routine traffic stop on

a subject unrelated to the purpose of the stop is not itself a Fourth Amendment

violation. Mere questioning is neither a search nor a seizure.” (Id. at p. 499; see

United States v. Shabazz (5th Cir. 1993) 993 F.2d 431, 435-437 [where car

stopped for speeding, police could question defendant about his travels and ask

consent to search his car as long as they were waiting for results of computer

check on his driver‟s license].)

In People v. Bell, supra, 43 Cal.App.4th 754, where a similar claim was

raised, the court observed: “Defendant argues that . . . police cannot ask questions

unrelated to the purpose of the traffic stop, regardless of whether those questions

prolong the stop. The warrant check in McGaughran, [supra, 25 Cal.3d 577]

however, was unrelated to the purpose of the traffic stop; nevertheless, the court

held that a warrant check would be permissible as long as it did not prolong the

stop.” (Id. at p. 767.) Nor must questioning on an unrelated matter, which does

not unduly prolong the traffic stop, be justified by reasonable suspicion of

wrongdoing. (People v. Gallardo (2005) 130 Cal.App.4th 234, 238 [where,

during traffic stop, police asked defendant whether he had anything illegal in his

car, obtained his consent to search and found drugs, an articulable suspicion of

wrongdoing preceding search request was not required “as long as the detention

[was] not unreasonably prolonged as a result of the request to search”].)

Accordingly, we reject defendant‟s claims that the traffic stop detention

was unduly prolonged, that Painter‟s questions about the vandalism incident were

improper because they were unrelated to the traffic stop, or that a separate

reasonable suspicion of wrongdoing was required before Painter could inquire or

seek consent to search, or that defendant‟s consent was obtained in the course of

an illegal detention.


Defendant claims that his consent to search his person was improper

because Painter did not give him his Miranda rights before questioning him about

the vandalism incident. In Berkemer v. McCarty (1983) 468 U.S. 420 (Berkemer),

the Supreme Court held that a routine traffic stop, although a detention, is not

tantamount to a formal arrest, and, therefore, questions asked during such

detentions do not constitute a custodial interrogation requiring Miranda warnings.

(Id. at pp. 435-440.) The court characterized routine traffic stops as similar to

Terry stops (Terry v. Ohio (1968) 392 U.S. 1), which permit police to briefly

question individuals about whom the police entertain a reasonable suspicion of

criminal activity that falls short of probable cause. “[T]his means that the officer

may ask the detainee a moderate number of questions to determine his identity and

to try to obtain information confirming or dispelling the officer‟s suspicions. But

the detainee is not obliged to respond. And, unless the detainee‟s answers provide

the officer with probable cause to arrest him, he must then be released. The

comparatively nonthreatening character of detentions of this sort explains the

absence of any suggestion in our opinions that Terry stops are subject to the

dictates of Miranda. The similarly noncoercive aspect of ordinary traffic stops

prompts us to hold that persons temporarily detained pursuant to such stops are not

„in custody‟ for the purposes of Miranda.” (Berkemer, at pp. 439-440, fns.


Here, defendant was lawfully detained for a traffic violation during which

Officer Painter asked him questions about the vandalism incident either to confirm

or dispel his information that defendant had been involved. While defendant was

not free to leave until the citation process was completed, he was under no

obligation to answer Painter‟s questions. Unless his answers had provided Painter

with probable cause to arrest him for vandalism — which, in any case, Painter

testified he could not have done — he would have been free to leave once the


citation was completed. Accordingly, pursuant to Berkemer, Painter was not

required to give defendant Miranda warnings before questioning him and his

failure to do so did not invalidate defendant‟s consent to search. We reject

defendant‟s assertions to the contrary.10

Next, defendant argues that the search of his person exceeded the scope of

his consent because he consented only to a search for weapons, not drugs. He

claims “Painter exceeded the scope of any consent when he forced his fingers

in[to] the coin pocket of [defendant‟s] jeans in hopes of finding narcotics, under

the pretext of searching for a knife, which could not possibly fit in that pocket.”

“The standard for measuring the scope of a suspect‟s consent under the Fourth

Amendment is that of „objective‟ reasonableness — what would the typical

reasonable person have understood by the exchange between the officer and the

suspect?” (Florida v. Jimeno (1990) 500 U.S. 248, 251.) “Whether the search

remained within the boundaries of the consent is a question of fact to be

determined from the totality of the circumstances. [Citation.] Unless clearly

erroneous, we uphold the trial court‟s determination.” (People v. Crenshaw

(1992) 9 Cal.App.4th 1403, 1408; see United States v. Sierra-Hernandez (9th Cir.

1978) 581 F.2d 760, 764.)

Defendant‟s argument focuses on a perceived discrepancy about what

Officer Painter said he told defendant. At the suppression hearing, Painter

testified that he told defendant he wanted to search him for weapons and narcotics,


We also reject defendant‟s related claim that his statement was involuntary

because he was not told he could refuse to consent. The argument is forfeited
because it was not raised below. It is also without merit. The circumstances
surrounding Painter‟s request for consent to search are such that the search was
not rendered involuntary because he did not tell defendant he had a right to refuse
to consent. (See United States v. Drayton (2002) 536 U.S. 194, 207 [in assessing
validity of consent “the totality of the circumstances must control, without giving
extra weight to the absence of this type of warning”].)


while at the preliminary hearing Painter testified he searched defendant because he

thought he might have a weapon, but made no mention of narcotics. Defendant

also cites testimony by Officer Trudeau who, when asked whether he heard

Painter say something to defendant about weapons but not drugs, replied, “He said

weapons, correct.”

Defendant‟s focus is too narrow. The question is what a reasonable person

would have understood from his or her exchange with the officer about the scope

of the search. To answer that question, we look at the totality of the

circumstances. Here, Painter testified that he told defendant about his information

that defendant used drugs and carried a knife. When he asked defendant if he

could search him, defendant said, “Sure, I don‟t have anything on me.” When

Painter was confronted by his seemingly inconsistent testimony about whether he

had asked to search for both a weapon and drugs, he responded, “I recall

mentioning the weapon and I recall mentioning the narcotics use. But I —

apparently made reference in the transcript of searching for weapons. But I don‟t

recall exactly narrowing my scope of my search at that point.” As for Trudeau, his

response was, at best, ambiguous and, in any event he also testified that he did not

remember what Painter said to defendant “[w]ord for word,” in asking his consent

to search.

Thus, Painter knew defendant was an armed drug user, and communicated

his awareness to defendant before he asked to search him. It is therefore

reasonable to conclude — as evidently the trial court did — that defendant

understood Painter was asking to search for both drugs and weapons. It appears,

moreover, that the trial court found Painter to be a credible witness. We do not

second-guess the trial court‟s credibility findings nor, on the record before us, can

we conclude its implied determination that defendant understood the search to be

for both drugs and weapons was clearly erroneous. For this reason, we reject


defendant‟s further claim that the consent search of his car, his arrest, and the

search of his person at the police station were tainted by the illegality of the initial


Defendant asserts that his statements to Trudeau that were suppressed by

the trial court because they were induced by Trudeau‟s promise not to use them

against defendant — a promise broken when he repeated them to Sergeant

Robertson — should also have been suppressed because they were taken in

violation of Miranda. From this premise, he argues that all further evidence

connecting him to Olsson‟s murder should have been suppressed as the fruit of the

Miranda violation. Not so. Trudeau advised defendant of his Miranda rights.

Defendant invoked those rights by declining to speak about the events surrounding

his arrest. At that point, Trudeau ceased his questioning. Defendant reinitiated the

conversation when he told Trudeau he did not want to go to jail that night, after

which Trudeau suggested defendant might “work off” his offense by becoming an

informant. Defendant indicated his interest, and a narcotics detective was

summoned. While he and Trudeau waited for the detective, defendant made the

statements at issue here. Thus, it was defendant who reinitiated the conversation

of his own volition after Trudeau had acceded to his initial invocation of his right

to remain silent. There was no Miranda violation. (Edwards v. Arizona (1981)
451 U.S. 477, 484-485; People v. Mickey (1991) 54 Cal.3d 612, 648-649.)

As noted, although the trial court suppressed defendant‟s statements to

Trudeau on the ground they were induced by Trudeau‟s promise not to use them

against defendant, it went on to find that the fingerprint evidence need not be

suppressed either because it was the result of “investigative serendipity,” or would

inevitably have been discovered. Defendant contends the latter rulings were error.

The Attorney General contends it was the trial court‟s initial finding that

defendant‟s statements were involuntary that is the error here. The Attorney


General argues that there is no substantial evidence those statements were induced

by Trudeau‟s promise not to use them because defendant spoke voluntarily before

Trudeau made that promise. We agree.11

“In general, a confession is considered voluntary „if the accused‟s decision

to speak is entirely “self-motivated” [citation], i.e., if he freely and voluntarily

chooses to speak without “any form of compulsion or promise of rewards . . . .”

[Citation.]‟ [Citation.] However, where a person in authority makes an express or

clearly implied promise of leniency or advantage for the accused which is a

motivating cause of the decision to confess, the confession is involuntary and

inadmissible as a matter of law.” (People v. Boyde (1988) 46 Cal.3d 212, 238.)

“A confession is „obtained‟ by a promise within the proscription of both the

federal and state due process guaranties if and only if inducement and statement

are linked, as it were, by „proximate‟ causation. . . . The requisite causal

connection between promise and confession must be more than „but for‟:

causation-in-fact is insufficient.” (People v. Benson (1990) 52 Cal.3d 754, 778.)

“This rule raises two separate questions: was a promise of leniency either

expressly made or implied, and if so, did that promise motivate the subject to

speak?” (People v. Vasila (1995) 38 Cal.App.4th 865, 873.) To answer these

questions “ „an examination must be made of “all the surrounding circumstances

— both the characteristics of the accused and the details of the interrogation.” ‟ ”

(People v. McWhorter (2009) 47 Cal.4th 318, 347.)


“ „[T]he People may, on an appeal by the defendant and pursuant to the

provisions of section 1252, obtain review of allegedly erroneous rulings by the
trial court in order to secure an affirmance of the judgment of conviction.‟
[Citation.]” (People v. Mendoza (2011) 52 Cal.4th 1056, 1076-1077, quoting
People v. Braeseke (1979) 25 Cal.3d 691, 701, italics omitted; § 1252 [“On an
appeal by a defendant, the appellate court shall, in addition to the issues raised by
the defendant, consider and pass upon all rulings of the trial court adverse to the
State which it may be requested to pass upon by the Attorney General”].)


Officer Trudeau testified that defendant made the statements in question

while he and Trudeau were conversing as they awaited the arrival of the narcotics

detective with whom defendant was going to work out an agreement that would

allow him to be released that night in exchange for becoming a police drug

informant. When asked specifically whether “this information about the use of

methamphetamine and how [defendant] supported his habit” was made “in

response to something . . . you said to him,” Trudeau testified, “No, it was not.”

Rather, Trudeau testified these statements were made “after [defendant] had

agreed to work his case off.” Moreover, it was only after defendant made these

unsolicited statements that Trudeau told him those statements would not be used

against him in the drug case.

Trudeau‟s uncontroverted testimony establishes that defendant‟s statements

about his drug use and burglaries were made after defendant had already agreed to

“work off” his arrest, were not solicited by Trudeau, and were not part of any

inducement for defendant to become an informant. Furthermore, Trudeau‟s

testimony shows that the promise he made to defendant not to use those statements

— the very promise that the trial court ruled rendered those statements involuntary

— was not given until after the statements had been made. There is simply no

evidence in the record, much less substantial evidence, to support the trial court‟s

ruling that Trudeau‟s promise induced the statements. Rather, the statements were

gratuitous and untethered to any promise made by Trudeau.

Accordingly, we conclude that the trial court erred when it suppressed

defendant‟s statements as involuntary. Those statements should have been

admitted and it was unnecessary for the trial court to justify admission of the

fingerprint evidence as having been purged of the taint of the involuntary

statement or as admissible under the inevitable discovery doctrine. Likewise, it is

unnecessary for us to address the propriety of those justifications.


Inasmuch as we conclude that the fingerprint comparison evidence was not

the fruit of any illegal police conduct, we necessarily reject defendant‟s further

claim that his eventual arrest for the Olsson murder and statements he made to

police on March 27 and March 30, 1987, were likewise tainted.

2. Motion to suppress defendant’s statements on March 27 and

March 30, 1987

a. Evidence adduced at hearing

Shortly before trial began, defendant moved to suppress the statements he

gave to police on March 27 and March 30, 1987. During the March 27

interrogation defendant admitted to having lived at John Chandler‟s residence two

houses from Olsson‟s residence. He otherwise denied knowing Olsson or having

any involvement in her murder. During the March 30 interrogation, however, he

claimed he had been taken to Olsson‟s house by a man he knew as “Doubting

Thomas” to purchase drugs from her. Defendant admitted he had had sexual

intercourse with Olsson but blamed “Doubting Thomas” for her murder.

Defense counsel argued the statements were obtained in violation of

defendant‟s Miranda rights and were also involuntary.

Sergeant Robertson testified that defendant was taken into custody on

March 27, 1987, at about noon. When arrested, he was wearing only a pair of blue

jeans, but no shirt or shoes. Robertson could not recall if defendant was given

clothing at the police station. At the same time defendant was arrested, his wife,

Vicky Tully, was instructed to come to the police station because she was being

investigated for writing checks on insufficient funds. The check investigation had

originally been assigned to Robertson but was reassigned to Detective Jacobs, to

whom Vicky Tully spoke. She admitted the charges, but she was not arrested

because it was the policy of the Livermore Police Department to refer such cases

to the district attorney for a misdemeanor complaint.


The police interrogation of defendant on March 27 began about 6:00 p.m.

The interrogation was conducted initially by Sergeant Robertson and Detective

Newton. Toward the end of the session, however, Officer Trudeau came in and

Detective Newton left. At first, the police used a concealed microphone but,

because the quality of the recording was poor, they replaced it with a microphone

that they put on the table at which they and defendant were sitting. The

interrogation ended at 12:05 a.m.

At the outset of the interrogation, defendant was advised of, and waived,

his rights. During the interrogation, defendant was supplied with candy bars,

pizza, and soft drinks and allowed cigarette and bathroom breaks. At one point, he

was put into an ankle shackle because the officers were in and out of the room.

Toward the end of the interview, Robertson asked defendant if he would take a

polygraph test. Defendant asked, “Do I have a choice?” Robertson replied with a

series of rhetorical questions about whether defendant was being coerced, e.g.,

“Do I have a rubber hose?” “Hot lamp?” “Water dripping on your face?” “[A] gun

to your head?” Defendant replied in the negative. Robertson continued, “There‟s

your choices.”

“A. Well this charge you placed on me and the accusations, to say the least

are serious, I think it would be —

“Q. In the State of California there is nothing more serious than murder.

“A. Okay.

“Q. Period.

“A. Then I think it would behoove me to consult a lawyer.

“Q. Okay. Before submitting to a polygraph examination?

“A. Um, yeah. Before submitting to any questions I wouldn‟t want to



After some further discussion about polygraph machines and their

fallibility, defendant said, “I think it best that if, if I wanted to face, I think it‟d be

best if I consult a lawyer.” He and Robertson discussed whether defendant knew

how the machines worked. Defendant said, “I don‟t know [so] that‟s why I‟d like

to talk to somebody who does.” There was a short break in the interrogation.

When it resumed, Robertson said, “When we last left this tape, we were talking

about polygraph and you mentioned talking to a lawyer. Do you want a lawyer

now? [¶] A. No. I‟m all right. [¶] Q. You‟re sure? [¶] A. Yeah.”

At the conclusion of the interrogation, Vicky Tully and defendant spoke for

about five minutes. Afterwards, defendant was transported to the county jail.

On Sunday, March 29, Vicky Tully called the police station and asked to

speak to Robertson or Newton about information she had regarding the case.

Neither officer was on duty that day, so Roberson did not talk to her until Monday,

March 30. Vicky Tully came to the police station and told Robertson defendant

had been present at the murder but that “Doubting Thomas” had killed Sandy

Olsson. She and Robertson talked about the witness protection program because

she was afraid of Doubting Thomas. Robertson told her if the information she had

given him was true, and if she qualified, arrangements could be made for her to go

into the program but that the final decision rested with the district attorney.

Robertson and Newton then went to the jail to talk to defendant. Vicky

Tully followed in her own car. The taped portion of the March 30 interview began

at 8:08 p.m. Before the taping began, the officers told defendant about the

information his wife had given them. Defendant did not respond. Robertson

thought that defendant “was thinking,” because he might be frightened of

Doubting Thomas. He told defendant that he and his family might possibly

qualify for the witness protection program. Less than a minute passed between the

time Robertson initially confronted him with what Vicky had said and when he


told him about the witness protection program.12 Defendant asked about the

program and there was some further discussion about it, after which he wanted to

speak to his wife. She entered the room and she and defendant spoke privately.

After she left, the taped portion of the interview began. Defendant was again

advised of and waived his rights. After acknowledging and waiving his rights,

defendant asked, “Can you add in the part about the Witness Protection

program[?]” Newton replied, “Ok, prior to this tape being come on [sic] . . .

we‟ve discussed with [defendant] and with [defendant‟s] wife Vicky that some

testimony that might be given or furnished by [defendant] might involve . . . the

Witness Protection Program, be it the Federal and [sic] the State level. . . . I‟ve

assured [defendant] that in the event that the testimony and what information that

he has meets that criteria then we would work on the Witness Protection Program

and get he and his wife involved in that program. This testimony may be

involving . . . the Hells Angels. Is that correct Richard? [¶] [A]: Yes it is.”

Defendant also testified at the suppression hearing. According to

defendant, his family‟s participation in the witness protection program was the

“key part” in his decision to talk to police. He also testified that the police told

him unless he cooperated his wife would go to jail on “the check charges” and his

children would be placed in foster homes. Detective Newton, who was also called

by the defense, denied any such threats were made.


Defendant asserts that he remained silent for 30 minutes after Robertson

told him about his wife‟s statement. The only citation he provides in support of
this assertion is to a page in the reporter‟s transcript that records some discussion
between the court and counsel prior to the hearing It contains nothing about the
length of defendant‟s silence. By contrast, Sergeant Robertson specifically
testified that defendant‟s silence was “momentary.”


b. Trial court ruling

Defense counsel argued that defendant‟s March 27 interrogation was taken

in violation of Miranda because his statement “Then I think it would behoove me

to consult a lawyer” was an invocation of his right to counsel. Counsel argued

defendant‟s March 30 interrogation violated Miranda because his lack of response

when initially confronted by police with the information given them by his wife

was an invocation of his right to remain silent. Defense counsel also argued that

the statement was involuntary because it was induced by the promise of placing

defendant and his family in the witness protection program.

The trial court denied the motion in its entirety. The court found that

defendant did not “unambiguously invoke his right to counsel” during the March

27 interrogation, nor did his failure to immediately respond to the officers at the

beginning of the March 30 interrogation constitute an invocation of his right to

remain silent. The court also concluded, based on “the totality of the

circumstances,” that discussions of the witness protection program did not render

defendant‟s statement on March 30 involuntary.

c. Discussion

Defendant contends that his March 27 statement was obtained in violation

of Miranda because the police continued to question him after he had invoked his

right to counsel. “In Edwards v. Arizona, 451 U.S. 477 (1981), we held that law

enforcement officers must immediately cease questioning a suspect who has

clearly asserted his right to have counsel present during custodial interrogation.”

(Davis v. United States (1994) 512 U.S. 452, 454 (Davis).) In Davis, the Court

had held that such invocation must be unambiguous. “As we have observed, „a

statement either is such an assertion of the right to counsel or it is not.‟ [Citation.]

. . . [A] suspect . . . must articulate his desire to have counsel present sufficiently

clearly that a reasonable police officer in the circumstances would understand the


statement to be a request for an attorney. If the statement fails to meet the

requisite level of clarity, Edwards does not require that the officers stop

questioning the suspect.” (Davis, at p. 459.) Moreover, the court “decline[d] to

adopt a rule requiring officers to ask clarifying questions.” (Id. at p. 461.)

“Consistent with Davis, a reviewing court . . . must ask whether, in light of the

circumstances, a reasonable officer would have understood a defendant‟s reference

to an attorney to be an unequivocal and unambiguous request for counsel, without

regard to the defendant‟s subjective ability or capacity to articulate his or her

desire for counsel, and with no further requirement imposed upon the officers to

ask clarifying questions of the defendant. [Citation.] In reviewing the issue,

moreover, the reviewing court must „accept the trial court‟s resolution of disputed

facts and inferences, and its evaluations of credibility, if supported by substantial

evidence. [The reviewing court] independently determine[s] from the undisputed

facts and the facts properly found by the trial court whether the challenged

statement was illegally obtained.‟ [Citation.]” (People v. Gonzalez (2005) 34

Cal.4th 1111, 1125.)

Applying these standards to the facts before us, we uphold the trial court‟s

ruling. The context in which defendant referred to an attorney was not a request

for counsel for purposes of the interrogation then occurring, but an indication that,

if required to submit to a polygraph test, he would first want to consult with a

lawyer. This interpretation of his initial remark is reinforced by further statements

he made in the context of the fallibility of polygraph machines and his lack of

understanding of how they operated, i.e., “I think it best that if, if I wanted to face

[it], I think it‟d be best if I consult a lawyer,” and “I don‟t know [so] that‟s why I‟d

like to talk to somebody who does.” Finally, any ambiguity regarding his meaning

was dispelled when, after a short break, Sergeant Robertson, referring to his earlier

mention of lawyer while discussing the polygraph test, asked him pointblank, “Do


you want a lawyer now?” to which defendant replied, “No. I‟m all right.”

Robertson pressed him, asking, “You‟re sure?” Defendant replied, “Yeah.” Thus,

defendant did not unambiguously invoke his right to counsel during the March 27

interrogation and the police were not required to cease their questioning.

We also conclude that defendant‟s momentary silence when confronted by

police with his wife‟s statements to them at the beginning of the March 30

interrogation was not an invocation of his right to remain silent. “As Miranda

itself recognized, police officers must cease questioning a suspect who exercises

the right to cut off the interrogation. . . . „Whether the suspect has indeed invoked

that right, however, is a question of fact to be decided in the light of all the

circumstances . . . .‟ [Citation.]” (People v. Musselwhite (1998) 17 Cal.4th 1216,

1238.) The standard of review is the same as set forth above with respect to

whether a defendant has invoked his or her right to counsel. (See People v.

Crittenden (1994) 9 Cal.4th 83, 128-129.)

Sergeant Robertson testified, “We informed [defendant] that Vicky had

come to see us and had told us what he had told her regarding the homicide scene

[and] Doubting Thomas.” Thus, defendant was not accused of the murder himself

nor asked any questions about it. Indeed, the information the police told him had

been provided by his wife exonerated him of the murder. When defendant failed

to immediately respond, Robertson, thinking he might be apprehensive about

Doubting Thomas, explained that he and his family might qualify for the witness

protection program. Defendant asked about the program and then to speak to his

wife. It appears that the entire exchange was relatively brief. Defendant‟s

ultimate response — asking about witness protection and to speak to his wife —

indicates not that he was invoking his right to remain silent but that he was

nonplussed to learn his wife had talked to the police. He seems simply to have

been absorbing the information when he failed to immediately respond to


Robertson‟s statement. Therefore, defendant‟s momentary silence was not an

invocation of the privilege against self-incrimination.

Defendant maintains that both his March 27 and March 30 statements were

involuntary. The Attorney General contends that defendant did not specifically

argue involuntariness with respect to the March 27 statement and has thereby

forfeited the claim on appeal. Defendant responds by citing evidence adduced

during the hearing that he claims shows that the statement was involuntary. Even

if there was evidence that could have supported such an argument, the argument

was not made. The only argument trial counsel made to the court regarding the

March 27 interrogation was that the statement was taken in violation of

defendant‟s invocation of counsel. Thus, with respect to the March 27

interrogation, trial counsel never mustered evidence in support of an

involuntariness claim and the trial court was never asked to undertake a

voluntariness analysis. Accordingly, the argument is forfeited.13


In any event, the argument fails on its merits. “[A] statement is involuntary

if it is the product of coercion or, more generally, „overreaching‟; involuntariness
requires coercive activity on the part of the state or its agents; and such activity
must be, as it were, the „proximate cause‟ of the statement in question, and not
merely a cause in fact.” (People v. Mickey, supra, 54 Cal.3d at p. 647.) As
evidence of coercion defendant cites the following: (1) he was interrogated
wearing only a pair of pants; (2) he was deceived regarding the purpose for which
he was arrested — on a drug charge, rather than for the Olsson murder; (3) he was
implicitly threatened that, unless he talked, his wife would be arrested on check
charges; (4) Officer Trudeau, with whom he had a prior relationship, was brought
in to keep defendant talking; and (5) the police used his wife as their agent when
they allowed her to speak to defendant after they finished their interrogation of
him. In his reply brief, he also cites the fact that he was shackled. Because these
facts themselves and the inferences to be drawn from them were disputed below,
we view them in the light most favorable to the trial court‟s ruling. (People v.
Manderscheid, supra,
99 Cal.App.4th at p. 357; People v. Limon, supra,
17 Cal.App.4th at p. 529.) Applying that standard, we find there was no definitive
evidence that defendant was interviewed wearing only a pair of pants or whether
clothes were supplied to him at the jail. Also, defendant was arrested on two


Defendant renews his claim that his March 30 statement was involuntary

because it was induced by the promise he and his family could enter the witness

protection program. As a corollary, he claims the police manipulated Vicky Tully

into getting him to incriminate himself. He also asserts the police acted

deceptively when they suggested defendant and his family might qualify for the

witness protection program because, at the time they made the suggestion, they

already believed defendant was guilty of the Olsson murder. Defendant also

maintains police threatened to prosecute his wife on the check charges and put his

children into foster care.

“It is well settled that a confession is involuntary and therefore inadmissible

if it was elicited by any promise of benefit or leniency whether express or

implied.” (People v. Jimenez (1978) 21 Cal.3d 595, 611.) “In terms of assessing

inducements assertedly offered to a suspect, „ “[w]hen the benefit pointed out by

the police . . . is merely that which flows naturally from a truthful and honest

course of conduct,” the subsequent statement will not be considered involuntarily

narcotics charges. Moreover, at the time he was arrested on those outstanding
warrants, probable cause also existed to arrest him for the Olsson murder. Thus,
his arrest was not a ruse nor was he deceived as to why the police were
questioning him. There was no evidence defendant was threatened that, unless he
talked to the police, his wife would be arrested. While defendant testified this
threat was used with respect to the March 30 interrogation, Detective Newton
specifically denied that charge. We accept the trial court‟s implicit credibility
finding on this point. There was no evidence of a prior relationship between
Trudeau and defendant other than that Trudeau had arrested defendant on March
7, nor does the evidence support defendant‟s claim that his wife was acting as an
agent for the police. While at one point police placed an ankle shackle on
defendant because they were in and out of the interview room, there was no
evidence he was continuously shackled. There was also evidence that, during the
interrogation, defendant was supplied with candy bars, pizza, and soft drinks and
allowed cigarette and bathroom breaks. Viewed under the totality of the
circumstances standard, we conclude that defendant‟s March 27 statement was not
the product of coercion and therefore was not involuntary.


made. [Citation.]‟ ” (People v. Howard (1988) 44 Cal.3d 375, 398.) “The

prosecution has the burden of establishing by a preponderance of the evidence that

a defendant‟s confession was voluntarily made. [Citations.] In determining

whether a confession was voluntary „ “[t]he question is whether defendant‟s

choice to confess was not „essentially free‟ because his [or her] will was

overborne.” ‟ [Citation.] Whether the confession was voluntary depends upon the

totality of the circumstances. [Citations.] „ “On appeal, the trial court‟s findings

as to the circumstances surrounding the confession are upheld if supported by

substantial evidence, but the trial court‟s finding as to the voluntariness of the

confession is subject to independent review.” ‟ [Citation.]” (People v. Carrington

(2009) 47 Cal.4th 145, 169.) “ „[W]hen a reviewing court considers a claim that a

confession has been improperly coerced, if the evidence conflicts, the version

most favorable to the People must be relied upon if supported by the record.

[Citations.]‟ ” (People v. McWhorter, supra, 47 Cal.4th at p. 357.)

Defendant bases his involuntariness claim on interpretations of the

evidence and questions of the credibility of witnesses that the trial court implicitly

rejected. Because substantial evidence supports those factual determinations, we

rely on them and, therefore, independently reject defendant‟s claim that his March

30 statement was the result of either threats or promises.

Defendant claims that the police promised him they would place him and

his family into a witness protection program if he spoke to them. The record

dispels the assertion. Robertson testified that he told both Tullys the same thing:

if they were being truthful, they might qualify for witness protection, but the final

decision would be made by the district attorney. Deputy District Attorney Fraser,

who interviewed defendant after the police, confirmed that he could make no

promises to defendant. Fraser repeated this statement at the end of the interview,

reminded defendant that everything he had disclosed could and would be used


against him, and admonished him that Fraser would compare defendant‟s

statement against the physical evidence. Even defendant‟s own testimony fell

short of asserting that explicit promises were made to him by the police about

witness protection. He testified that the police “explained” the program and

“talk[ed]” to him about it but, when asked whether he had pressed Detective

Newton about any promises, he acknowledged he did not do so.

To the extent there was conflict in the evidence about whether the police

promised defendant protection, the trial court resolved it in favor of the

prosecution. The record provides substantial evidence in support of its finding and

we are bound by it. Thus, the evidence shows only that defendant was told if his

statement was truthful and he otherwise qualified, he and his family could be

placed into a witness protection program if the district attorney approved.

Therefore, the police did no more than permissibly point out a possible benefit that

might accrue from his “ „ “truthful and honest course of conduct. ” ‟ ” (People v.

Howard, supra, 44 Cal.3d at p. 398.) Accordingly, his statement was not induced

by a promise to place him and his family into witness protection.

We also reject his claim that the police manipulated his wife into

persuading him to make a statement. The trial court found credible the police

officers‟ testimony that they did not engineer Vicky Tully‟s initial discussion with

defendant at the end of the interrogation on March 27, where he evidently told her

the “Doubting Thomas” story. Moreover, it is undisputed that Vicky Tully

contacted the police on her own and asked to speak to Robertson or Newton about

what defendant had told her. Finally, the trial court evidently rejected defendant‟s

testimony that the police threatened to prosecute his wife on the check charges and

place his children into foster care if he did not speak to them. Again, we are

bound by the trial court‟s resolution of conflicts in the evidence and its credibility

determinations. Finally, and for the same reason, we reject defendant‟s assertion


that the police had already concluded he was the murderer before they spoke to

him on March 30 and, therefore, their offer of protection was a deception to induce

him to speak to them. When defense counsel asked Sergeant Robertson whether

he had believed defendant‟s account of the murder, Robertson testified that he had

not known what to believe and wanted to “gather more information . . . [to]

continue the investigation.”

On this record, we conclude that defendant‟s March 30 statement was not


B. Excusal of prospective jurors for cause

1. Overview

Defendant contends the trial court erred in removing for cause five

prospective jurors who expressed reservations about the death penalty, thereby

violating his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to

the United States Constitution and article I, section 16 of the California


“A prospective juror in a capital case may be removed for cause if his or

her views on capital punishment „would “prevent or substantially impair the

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

oath.” ‟ (Wainwright v. Witt (1985) 469 U.S. 412, 424 [83 L.Ed.2d 841, 105 S.Ct.

844].) Because prospective jurors „may not know how they will react when faced

with imposing the death sentence, or may be unable to articulate, or may wish to


In People v. Velasquez (1980) 26 Cal.3d 425, we held that an appellate

challenge to a Witherspoon/Witt excusal (Wainwright v. Witt, supra, 469 U.S. 412;
Witherspoon v. Illinois (1969) 381 U.S. 510) is not forfeited by a failure to object
at trial. (Witherspoon, at p. 443.) In People v. McKinnon (2011) 52 Cal.4th 610,
we overruled Velasquez‟s no-forfeiture rule. (McKinnon, at p. 643.)
“Nevertheless . . . because at the time of this trial we had not expressly held that an
objection is necessary to preserve Witherspoon/Witt excusal error on appeal, we do
not apply this rule here.” (Ibid.)


hide their true feelings‟ (id. at p. 425), „deference must be paid to the trial judge

who sees and hears the juror‟ and must determine whether the „prospective juror

would be unable to faithfully and impartially apply the law‟ (id. at p. 426). We

have adopted this standard for determining whether excusing for cause a

prospective juror in a capital case based on the prospective juror‟s views on capital

punishment violates the defendant‟s right to an impartial jury under article I,

section 16 of the California Constitution. [Citations.] [¶] „On appeal, we will

uphold the trial court‟s ruling if it is fairly supported by the record, accepting as

binding the trial court‟s determination as to the prospective juror‟s true state of

mind when the prospective juror has made statements that are conflicting or

ambiguous. [Citations.]‟ [Citation.] „In many cases, a prospective juror‟s

responses to questions on voir dire will be halting, equivocal, or even conflicting.

Given the juror‟s probable unfamiliarity with the complexity of the law, coupled

with the stress and anxiety of being a prospective juror in a capital case, such

equivocation should be expected. Under such circumstances, we defer to the trial

court‟s evaluation of a prospective juror‟s state of mind, and such evaluation is

binding on appellate courts. [Citations.]‟ [Citation.]” (People v. Thomas (2011)

51 Cal.4th 449, 462-463.)

“ „ “There is no requirement that a prospective juror‟s bias against the death

penalty be proven with unmistakable clarity. [Citations.] Rather, it is sufficient

that the trial judge is left with the definite impression that a prospective juror

would be unable to faithfully and impartially apply the law in the case before the

juror.” [Citation.] “Assessing the qualifications of jurors challenged for cause is a

matter falling within the broad discretion of the trial court. ” ‟ [Citation.]”

(People v. Abilez (2007) 41 Cal.4th 472, 497-498.)

Initially, defendant argues that the trial court improperly “excluded jurors

who could not promise they would vote for death based solely on the [trial court‟s


description of the] bare facts of the capital offense.” Defendant failed to object to

the trial court‟s description of the offense and, therefore, his claim is forfeited.

Moreover, in his opening brief defendant fails to identify which jurors were

improperly dismissed based on the trial court‟s summary of the offense. In his

reply brief, defendant argues, “it was the trial court‟s jury selection protocols,

admonitions, and questions that led to the systematic exclusion of the five jurors,

and others, as raised in the Opening Brief.”15 As we demonstrate, however, the

trial court‟s excusal of those five prospective jurors was entirely correct and,

therefore, no error can be attributed to the trial court‟s description of the offense.

In the same vein, defendant argues the prospective jurors excused by the trial court

were improperly excused because of their attitudes toward the particular facts of

this case, rather than their abstract inability to impose a death sentence. Again,

however, our conclusion that the five prospective jurors were properly excused

subsumes and rejects this complaint.16


Defendant faults the trial court for failing to follow what he characterizes as

death-qualification “protocols” purportedly set forth in People v. Heard (2003) 31
Cal.4th 946, 966, fn. 9.) Defendant‟s failure to object to the manner in which the
trial court conducted voir dire forfeits any claim on appeal that it erred. In Heard,
we concluded that the trial court erred in excusing a prospective juror for cause
following an inadequate voir dire examination by the court. (Id. at pp. 963-966.)
In the footnote defendant cites we directed trial courts to treatises and handbooks
that might help them avoid the errors made by the trial court in Heard. By
pointing out these resources, we did not intend to limit the trial court‟s discretion,
much less impose rigid rules that trial courts were thenceforth required to follow.
Moreover, defendant‟s trial was conducted 11 years before Heard was decided and
before any of the treatises and handbooks therein referenced had been published.

Defendant contends at length that our decisions permitting case-specific

questions during the death-qualification process, starting with People v. Fields
(1984) 35 Cal.3d 329, are based on an erroneous interpretation of Wainwright v.
Witt, supra,
469 U.S. 412, and should be reconsidered. We are not persuaded by
his argument and decline his invitation to revisit our decision.


2. Specific challenges17

a. Prospective Juror M.D.

On his juror questionnaire, Prospective Juror M.D. wrote about his general

feelings regarding the death penalty, “I do not feel that it works very well as a

deterrent to crime, but in some cases it is necessary and perhaps the best solution.”

He wrote he was “[m]oderately in favor” of the death penalty and held no

religious, moral or philosophical views that would affect his ability to vote for the

death penalty. As to whether he would vote for a death penalty law were it to

appear on the ballot, he wrote, “I just don‟t want to make that choice until I have


The court asked M.D. whether he could listen to the penalty phase evidence

and consider both death and life without possibility of parole after having found

beyond a reasonable doubt that “the defendant, either alone or with somebody

else, had burglarized the house of the woman by the name of Shirley Olsson. That

she had been intentionally killed by way of multiple stab wounds, perhaps as many

as 25 of those. You may also have found that she was assaulted with an intent to

commit rape.” M.D. replied, “ I think I could.” Under questioning by defense

counsel, however, M.D. acknowledged he entertained some “ambivalence” about

the death penalty. Defense counsel continued: “[The prosecutor] is going to ask

you, in effect, to sentence this man to death. If you get to the appropriate stage of

the proceeding, he‟s going to ask you to decide by signing a verdict or raising your

hand or being polled.” He reminded M.D. he would taking the first step of putting

defendant “in the gas chamber” and asked whether M.D.‟s ambivalence “would be

so great as to impact upon that decision?” M.D. replied: “Honestly, I would have


Pursuant to Hovey v. Superior Court (1980) 28 Cal.3d 1, prospective jurors

were individually questioned outside the presence of other prospective jurors, first
by the trial court and then by the parties, after which the court entertained
challenges for cause.


to say that that‟s a possibility. Because I‟ve always had to deal with the death

penalty in a theoretical context. I never had to apply it.” He added, “I would tend

against the death penalty, but that doesn‟t mean I would definitely vote against the

death penalty.” However, he then said that, given the special circumstances in this

case — what defense counsel called “a burglary” that “went awry” — “I would be

very hard pressed to decide on the death penalty.”

M.D. told the prosecutor that on a scale of 1 to 10, he was a three and a half

in favor of the death penalty. He repeated that where the special circumstance was

felony-murder involving burglary, he would not be open to imposing the death

penalty. The prosecutor asked him again whether the “[d]eath penalty is out of the

door” and he would “always go for life without possibility of parole in this type of

case.” M.D. replied: “Based only on the information I‟ve gotten today, yes. I

don‟t know what other information might sway my mind, but based on what

you‟ve told me today and what I‟ve heard up to this point, I would have to say I

would be inclined not to.” The prosecutor asked a third time whether, in this case,

“I could stand up here and ask you for the death penalty and I‟ve got a shot?”

M.D. replied, “I would have to say no, based on what I know now . . . but that‟s

the only way I could answer the question because I don‟t know all the evidence.”

He added, “something may come up which would sway me. I don‟t know what it

would be, I don‟t know where it would come up, but based on what I know now,

I‟d have to say no, that I can‟t.” The prosecutor said: “If we‟re talking about a

case of a person breaking into a home, and in the course of a burglary gone awry,

as defense counsel says, a single person is killed. [¶] Given this type of fact

situation, the death penalty is not a viable penalty here for you?” M.D. replied:

“No, so long as the other option is available, life without possibility of parole.”

The prosecutor challenged M.D. for cause. Defense counsel asked no

further questions and submitted the matter. The trial court excused the juror.


The trial court did not abuse its discretion in excusing M.D. on the ground

that his voir dire answers demonstrated that his “views would prevent or

substantially impair the performance of his duties as a juror.” M.D.‟s responses

indicated he would not consider the death penalty in a case like this where the

special circumstance alleged was burglary murder. (See People v. Pinholster

(1992) 1 Cal.4th 865, 917 [prospective juror properly excused where he

“concluded that he would never vote for the death penalty in a burglary-murder

case unless the killing were in fact premeditated”].)

We are not swayed by defendant‟s claim that M.D.‟s responses indicated he

might have been able to consider both penalties based on further evidence that

might emerge at trial. He was told the case involved a brutal murder by the

multiple stabbing and possible sexual assault of a victim in the course of — as

defense counsel described it — a burglary gone awry. This was an accurate

overview of the case. We are not persuaded acquainting him with further details

would have changed his mind and made him more inclined to consider death.

Moreover, while he said he might be swayed by additional information, he added,

“I don‟t know what it would be,” indicating there was no further circumstance he

could think of that would allow him to consider the death penalty in this case.18

Additionally, defense counsel had every opportunity to attempt to rehabilitate

M.D. but made no effort to do so and submitted without argument on the


Defendant contends that the trial court‟s error in granting the cause

challenge as to M.D. is underscored by its denial of his challenge for cause to
Prospective Juror D.dR. Defendant claims M.D. and D.dR. were “virtually
identical on the strength of their views” on the death penalty, though on different
sides of the question. D.dR. admitted he had strong views on the death penalty
and he would worry that those views might affect his judgment. However, he also
consistently maintained that he would strive to keep an open mind and to follow
the law. Unlike M.D. he never ruled out one or the other penalty in a felony-
murder case. Accordingly, we reject the analogy defendant attempts to draw
between the two.


prosecutor‟s challenge for cause. Finally, to the extent M.D.‟s answers were

equivocal, we defer to the trial court‟s evaluation of his state of mind. (People v.

Thomas, supra, 51 Cal.4th at pp. 462-463.)

b. Prospective Juror E.H.

Prospective Juror E.H. indicated on her questionnaire that the death penalty

“in some cases is necessary,” described her view toward it as neutral and wrote

she would have to “research” before she could decide how to vote were the death

penalty law on the ballot. (Subsequently, she told defense counsel she would vote

for a death penalty law.)

She told the court she could consider both penalties. But when defense

counsel asked her whether the death penalty would be appropriate where a “man

broke into a house to commit a burglary . . . and killed a lady who lived there,

stabbed her to death 25 times,” E.H. replied, “Based on that outline, I wouldn‟t

think so.” Even after he introduced the possibility of the perpetrator‟s intent to

commit rape, E.H. indicated it was not the kind of crime where she would consider

the death penalty, as opposed to “a mass murder.” She maintained her position

when again questioned by the court.

The prosecutor challenged E.H. for cause. The defense submitted without

argument and she was excused.

E.H.‟s responses clearly show she would not consider the death penalty in a

burglary-murder case because in her view it was not the kind of serious crime —

as opposed, for example, to a mass murder — where the penalty was appropriate.

Accordingly, she was properly excused.

c. Prospective Juror M.K.

Prospective Juror M.K. wrote on her questionnaire that she “believe[d] in

the death penalty.” She explained that her views about the death penalty had


changed after the Robert Alton Harris case because she “became aware of the

death penalty and the need for a death penalty.” She described herself as

moderately in favor of it. She wrote she would vote in favor of a death penalty

ballot measure because of overcrowded prisons and the costs of supporting them.

Under questioning from the court, M.K. indicated she would be open to

both penalties. However, when the prosecutor asked her how she felt when she

first heard from the trial judge “that this case might involve the death penalty,” she

replied, “I felt like I‟d rather not have to make that decision.” The prosecutor

suggested there was a difference between abstract support of the death penalty and

actually imposing it on a “real person,” and asked whether she had “thought about

the idea of being asked to impose the death penalty?” She responded: “I thought I

would get to know this person for six weeks and it probably won‟t be an easy

thing to do.” When the prosecutor asked her whether she could “vote death for

that person over there,” she said, “I don‟t know. Saying I believe in the death

penalty and then knowing the person involved are two different things as far as

I‟m concerned.” The prosecutor then asked M.K. a long hypothetical that ended:

“Let‟s assume further that you‟re the foreperson of this jury, and part of the job of

the foreperson is to sign the verdict form . . . . Can you sign your name on that

death warrant, appreciating the fact that that is the first step that will carry this

man onto a bus to be taken across the bay to San Quentin, put into eventually that

green gas chamber which we saw time and time again over all this publicity

regarding Harris, and he will at that point in time breathe in poisonous gas until

he‟s dead. [¶] Can you do that?” M.K. replied, “No.”

The prosecutor challenged her for cause. Defense counsel declined to

question her and submitted without argument. The trial court, however, asked her

twice if what she meant was that she could not impose the death penalty even if


she concluded it was warranted by the evidence. M.K. replied, “Yes, that‟s

correct,” and “Yes, I could not do that.”

“[W]e previously have held it permissible to excuse a juror who indicated

he would have a „hard time‟ voting for the death penalty or would find the

decision „very difficult.‟ [Citation.]” (People v. Roldan (2005) 35 Cal.4th 646,

697.) Here, M.K. stated unequivocally that, notwithstanding her support of the

death penalty in the abstract, she could not actually impose it. She was so clear

that defense counsel did not attempt to rehabilitate her. The court properly granted

the prosecutor‟s cause challenge.

Defendant claims the prosecutor‟s hypothetical question about whether

M.K. could sign the verdict form was improper. Trial counsel did not object to the

question and any claim of error at this point is forfeited, whether of prosecutorial

misconduct or abuse of discretion by the trial court in permitting the question.

Moreover, defense counsel had used a similar gambit when he asked M.D. if he

could sign the verdict that would be the first step toward putting defendant “in the

gas chamber.” Like defense counsel‟s use of that imagery, the prosecutor‟s

reference to M.K. signing the verdict form was a way of impressing upon her the

gravity of a juror‟s role in imposing the death penalty so as to gauge her ability to

assume that role. There was neither misconduct by the prosecutor nor an abuse of

discretion by the trial court.

d. Prospective Juror B.D.

Prospective Juror B.D. wrote on her questionnaire that she believed the

death penalty “is appropriate in certain cases — although it is heartbreaking.” She

wrote she was moderately in favor of the death penalty and would vote for a death

penalty ballot measure because “it is appropriate in some cases.”


When asked by the court whether she would be able to impose either

penalty, she replied that it would be “very difficult” to vote for the death penalty

and that she had “some anxiety” on the subject. She added, “[I]t‟s one thing to

think about these things in theory and then to actually . . . . Part of me . . . wonders

if I really could impose a death penalty.” When asked for her “best opinion” about

whether she could do so, she replied, “I don‟t think I could say an unqualified yes.

I think I could, but there‟s, you know, maybe 80 percent yes, and there‟s still

maybe 20 percent — I apologize. I‟ve been sorting this stuff out.”

B.D. told defense counsel that this case was “bad enough” for the death

penalty, “but I don‟t want to be the one to make that decision.” The prosecutor

asked her the same hypothetical question he had asked M.K. about whether she

could sign the verdict form if the jury imposed death. She replied, “I don‟t think

so.” Seeking clarification, he asked, “I‟m talking about voting for the death

penalty, this is not something you could personally do; is that correct?” B.D.

replied, “Well, I have serious doubts about my ability to do that.” In response to

further questioning, she said, “Well, the more I‟m sitting here, the more I‟m

realizing that . . . I don‟t think I could. I couldn‟t sign the paper, and if I can‟t sign

the paper, how can I, you know, vote.” The court asked whether she could impose

the death penalty even if she determined death was warranted. She replied, “I

don‟t think so.”

The prosecutor challenged her for cause. Defense counsel submitted and

declined the court‟s invitation to ask further questions. The court indicated it

would take the matter under submission. This led to further questioning by both

the prosecutor and the defense. While B.D. indicated there was some possibility

she might be able to vote for death, she also said, “I don‟t think I could do it. I

don‟t think I could make that decision.” Ultimately, the prosecutor asked, “Is the

death verdict one you couldn‟t return in this case?” B.D. replied, “No.” The court


asked, “[W]here are we in terms of procedure?” The prosecutor replied,

“Basically, the question was . . . could she return a death verdict in this case, and

her answer was „No.‟ ” The defense submitted without argument and the

challenge was granted.

Although B.D.‟s answers about whether she could impose the death penalty

were somewhat equivocal, we defer to the trial court‟s assessment of her state of

mind. Defendant again complains about the prosecutor‟s hypothetical but, again,

he failed to object, forfeiting any claim and we find no error in the question. He

also asserts that the prosecutor‟s last question, because it contained a double

negative, was ambiguous and that, by answering “no,” what B.D. meant was

“yes,” she could return the death penalty. Just moments later, however, when the

prosecutor interpreted her reply to mean she could not vote for death, neither B.D.

nor defense counsel corrected him. We conclude the trial court properly granted

the challenge for cause.

e. Prospective Juror T.L.

In response to the question about his general feeling toward the death

penalty, Prospective Juror T.L. wrote on his questionnaire that it was “[n]ot really

a big problem for me.” He wrote he was neutral toward the death penalty and not

sure how he would vote on a death penalty ballot measure.

Under questioning by the court, T.L. initially said he could consider both

penalties. When asked directly whether he could vote to impose death, he replied,

“No.” Neither the prosecutor nor defense counsel asked any questions of T.L.

The prosecutor challenged him for cause. Defense counsel submitted without

argument. The challenge was granted.

We find no abuse of discretion in the trial court‟s ruling. While T.L.‟s voir

dire was brief, he clearly indicated he could not vote to impose death in this case.


The fact that neither the prosecution nor the defense asked him questions suggests

that his position was so plain neither side believed it worthwhile to attempt to

rehabilitate him. While T.L.‟s answers were somewhat inconsistent, this is

classically a situation that calls for deference to the trial court‟s evaluation of the

prospective juror‟s mental state and demeanor. (People v. Mayfield (1997) 14

Cal.4th 668, 727.)

Defendant complains that the court failed to ask clarifying questions and

cut T.L. off, and that the record is incomplete. T.L. said he could not vote to

impose the death penalty. His position was sufficiently clear that not even defense

counsel attempted to rehabilitate him. Under these circumstances, we find no

error in the trial court‟s acceptance of his answer as definitive and its decision not

to question him further. Nor is the record incomplete because it indicates T.L.

shook his head in the negative instead of verbally replying when the court pressed

him whether he could impose the death penalty. The gesture is widely understood

to indicate the negative. Nor did the court cut off T.L. when it interrupted him and

asked if he understood its question about his ability to consider both penalties. In

response, T.L. said, “Yeah.” The court then essentially repeated its original query,

to which T.L. responded, “You mean deciding one way or the other.” The court

said, “Exactly, right.” Thus, any confusion T.L. had about the question was


Accordingly, we reject defendant‟s claim that the trial court erred when it

excused these jurors for cause. We add, however, a note of caution. Defendant‟s

complaint in this case is that the trial court‟s summary of the offense was too

truncated to allow it to assess whether the prospective jurors who expressed

qualms about the death penalty could nonetheless have been able to apply it. In

other words, he apparently would have had the trial court provide additional

details about aggravating factors. We, on the other hand, are concerned that the


trial court‟s summary of the offense here may have been too detailed. As we

observed in People v. Cash (2002) 28 Cal.4th 703, death-qualification voir dire

“must avoid two extremes.” While “it must not be so abstract that it fails to

identify those jurors whose death penalty views would prevent or substantially

impair the performance of their duties as jurors,” neither should it be “so specific

that it requires the prospective jurors to prejudge the penalty issue based on a

summary of the mitigating and aggravating evidence likely to be presented.”

(Cash, at pp. 721-722.) We advise trial courts against the kind of overly detailed

summary of the offense the court used in this case.

C. Exclusion of witnesses from court

Defendant contends that the trial court abused its discretion under former

section 1102.6 when it refused to exclude members of the victim‟s family — her

father, Clifford Sandberg, sister, Jan Dietrich, and son and daughter, Elbert

Walters III and Sandra Walters — from the guilt phase.19 The trial court

permitted Dietrich and Elbert Walters to remain in the court based on the

prosecutor‟s representation that they would not be testifying at the guilt phase. It

appears that both Sandberg and Sandra Walters also attended some sessions of the

guilt phase after they had testified and been excused.


Defendant contends the trial court‟s ruling also violated his due process

rights, and his rights to a fair trial, to confront and cross-examine witnesses and to
a reliable death penalty determination pursuant to the Sixth, Eighth and Fourteenth
Amendments to the federal Constitution. He did not raise these claim in the trial
court. While we may entertain these claims to the extent they are consistent with
the exception to the no-forfeiture rule we set forth earlier (see pp. 24-25, ante;
People v. Boyer, supra, 38 Cal.4th at p. 441, fn. 17), our rejection on the merits of
the claim actually raised in the trial court “necessarily leads to rejection of the
newly applied constitutional „gloss‟ as well. No separate constitutional discussion
is required in such cases, and we therefore provide none.” (Ibid.)


Former section 1102.6, subdivision (a), provided that either the “victim” —

defined as the crime victim or, if she or he was unavailable, up to two members of

the victim‟s family — “shall be entitled to be present and seated at the trial,”

unless the “court finds that the presence of the victim would pose a substantial risk

of influencing or affecting the content of any testimony,” in which case, “the court

shall exclude the victim from the trial entirely or in part so as to effect the

purposes of this section.” (Former § 1102.6, subd. (a), as enacted by Stats. 1986,

ch. 1273, § 2, p. 4448, and repealed by Stats. 1995, ch. 332, § 2, p. 1824.)

However, in this case, the prosecutor did not seek to permit Olsson‟s family

members to be present at trial under section 1102.6. Rather, the defense moved to

exclude them. Although the defense did not specify its authority, the motion was

presumably based on Evidence Code section 777. Under that statute, the court

“may exclude from the courtroom any witness not at the time under examination

so that such witness cannot hear the testimony of other witnesses.” The standard

of review of a trial court‟s ruling under both statutes is abuse of discretion.

(People v. Wallace (2008) 44 Cal.4th 1032, 1053 [§ 1102.6]; People v. Griffin

(2004) 33 Cal.4th 536, 574 [Evid. Code, §777].)20


Because it was a defense motion, it is understandable that the trial court

made no specific reference to section 1102.6. Nonetheless, seizing on this
omission, defendant claims the trial court failed to perform the balancing required
by section 1102.6, subdivision (a) between the victim‟s right to be in the
courtroom and the risk of influencing or affecting the content of any testimony.
The argument is entirely without merit. It is clear from the record that the basis of
the defense‟s motion was its concern that permitting the victim‟s family members
to remain in the courtroom might in some way affect their testimony. In
fashioning its ruling —excluding two members from the guilt phase and declining
to exclude any of the witnesses from the penalty phase without a further showing
of potential harm — the trial court was, in effect, performing the balancing
required by section 1102.6, whether or not the words of the statute passed its lips.


At the hearing on the defense request, the prosecution objected to the

proposed exclusion as it related to Sandy Olsson‟s sister and son because they

would not be testifying at the guilt phase. The trial court asked defense counsel if

his motion encompassed only the guilt phase. Defense counsel replied that his

motion extended to the entire trial “[a]s long as the circumstances of the crime

under [section] 190.3 are circumstances in aggravation.”

The trial court granted the motion to exclude, limited to guilt phase

witnesses. This permitted Olsson‟s sister and son to remain in the courtroom. The

court‟s ruling, however, was without prejudice to a renewed objection to particular

witnesses or testimony. When defense counsel complained it would be difficult to

anticipate such objectionable testimony, the court replied, “If you contemplate

with a particular witness, even a possibility, then we will interrupt the proceedings

and you can make your representations.” The defense did not make any such

further objections, nor evidently did the defense object when the victim‟s father

and daughter remained in the courtroom for some period after they testified at the

guilt phase.

Defendant contends the trial court abused its discretion because, contrary to

section 1102.6, it permitted four family members, rather than two, to be present at

the trial.21 He asserts, further, that the “presence of these witnesses created a

substantial risk of influencing or affecting the content of their penalty phase

testimony.” He argues the trial court‟s ruling failed to properly balance his rights

to a fair trial and due process “against the prosecutor‟s need for his penalty phase

victim impact witnesses” to attend the guilt phase. Finally, he claims that the


Defendant is wrong. The trial court‟s ruling permitted only the victim‟s

sister and son to remain in the courtroom during the guilt phase portion of the trial.
Although apparently the victim‟s father and daughter also attended some sessions
of the guilt phase, defense counsel did not bring this violation of the court‟s order
— if it was a violation — to the court‟s attention.


court unfairly placed the burden upon the defense of anticipating guilt phase

testimony during which the victim‟s family members should be excluded.22 His

arguments are entirely without merit.

The purpose of section 1102.6 is not, as defendant implies, to allow the

prosecutor to engage the jury‟s sympathy by exhibiting crime victims, but to

advance the interests of victims of crime. When it enacted the statute in 1986, the

Legislature declared that section 1102.6 embodied the “public policy of this state”

that “a victim of a criminal offense be afforded a reasonable opportunity to attend

any criminal trial for that offense,” and “not be excluded . . . merely because the

victim has been or may be subpoenaed to testify at the trial” because permitting

the victim such access is “essential to the fair and impartial administration of

justice.” (Stats. 1986, ch. 1273, § 1, reprinted at Historical and Statutory Notes,

50B West‟s Ann. Pen. Code (2004 ed.) foll. § 1102.6, p. 370.)

The statute is clear that the victim is “entitled to be present” subject only to

the finding that his or her presence would pose “a substantial risk of influencing or

affecting the content of any testimony.” (Former § 1102.6, subd. (a), italics

added.) This language — and the Legislature‟s statement of intent — suggests

that any balancing begins with a preference in favor of the victim‟s right to be

present. Our decisions support this interpretation of the statute in their emphasis

that the substantial risk referred to be real, not speculative or hypothetical.

For example, in People v. Bradford (1997) 15 Cal.4th 1229, where the

defendant claimed the trial court abused its discretion under section 1102.6 by

permitting family members of the victims to remain in the courtroom during


In effect, the trial court‟s ruling allowed defendant to renew his motion to

exclude at any point at which he thought or even suspected there might be
testimony the victim‟s family members should not be permitted to hear. We fail to
see how defendant was injured by this favorable ruling, nor does he demonstrate
any such injury.


opening statements, we said: “Defendant‟s mere assertion that the victims could

or would be influenced by the opening statements was insufficient to establish that

the victims‟ presence posed „a substantial risk of influencing or affecting the

content of any testimony.‟ ” (Bradford, at p. 1322, original italics.) In People v.

Griffin, supra, 33 Cal.4th 536, we held the trial court did not abuse its discretion

when it allowed the victim‟s mother and sister to be present during penalty phase.

“Nothing before the trial court at the time it made its ruling suggested that [the

victims‟] presence posed a substantial risk that either woman would craft or shape

her own testimony, or cause any other witness to do so, as a result of her

presence. . . . [D]efense counsel asserted only that such a risk existed, but an

assertion of this sort is insufficient to support a claim that the trial court abused its

discretion.” (Id. at p. 574.)

Here, too, defendant asserts formulaically and without specificity that the

presence of the victim‟s family members at the guilt phase posed the substantial

risk referred to in the statute but fails to point to anything in the record to support

this assertion. This is simply not enough to show an abuse of discretion by the

trial court.

D. Sufficiency of the evidence

Defendant contends the evidence is insufficient to support his guilt phase

convictions of first degree murder with burglary-murder special circumstances and

assault with intent to commit rape. The claim is without merit.

“ „In assessing a claim of insufficiency of evidence, the reviewing court‟s

task is to review the whole record in the light most favorable to the judgment to

determine whether it discloses substantial evidence — that is, evidence that is

reasonable, credible, and of solid value — such that a reasonable trier of fact could

find the defendant guilty beyond a reasonable doubt. [Citation.] . . . The standard


of review is the same in cases in which the prosecution relies mainly on

circumstantial evidence. [Citation.] “ „Although it is the duty of the jury to acquit

a defendant if it finds that circumstantial evidence is susceptible of two

interpretations, one of which suggests guilt and the other innocence [citations], it

is the jury, not the appellate court[,] which must be convinced of the defendant‟s

guilt beyond a reasonable doubt. “ „If the circumstances reasonably justify the

trier of fact‟s findings, the opinion of the reviewing court that the circumstances

might also reasonably be reconciled with a contrary finding does not warrant a

reversal of the judgment.‟ ” [Citations.]‟ ” [Citation.]‟ ” (People v. Story (2009)

45 Cal.4th 1282, 1296.) The same standard applies to special circumstance

allegations. (People v. Kelly (2007) 42 Cal.4th 763,788.)

Defendant asserts there was insufficient evidence to support the first degree

murder conviction based on a burglary-murder theory or to support the burglary-

murder special-circumstance allegation because the evidence failed to prove that

defendant entered the victim‟s home to commit either theft or rape, the target

offenses of the burglary.23 Notably, defendant does not discuss the evidence in

any detail — and certainly not in light of the applicable standard of review — but

relies on the fact that neither burglary nor rape was charged as a separate offense.

This is a red herring. We are not concerned with whether there was sufficient

evidence to prove offenses that were not charged. The question is whether the

evidence was sufficient to prove the offenses that were charged. It was.

The evidence showed defendant, armed with a knife, forcibly entered

Sandy Olsson‟s house late at night or in the early morning hours of July 24 or 25,

1986. The open bathroom window, with its screen removed and discarded,

indicated that he first attempted to enter her residence surreptitiously through this


The jury was instructed it was not required to unanimously agree on which

particular crime defendant intended to commit.


window but, for whatever reason, failed to do so. The broken chain-lock on the

front door was another sign of forced and unconsented-to entry. Defendant told

police he went to Olsson‟s house with “Doubting Thomas” because Thomas

wanted to buy drugs that Olsson obtained from the hospital where she worked.

Coincidentally, Olsson lived only two houses away from where defendant had

lived with John Chandler. Defendant‟s statement shows that he knew Olsson

worked at a hospital where she would have access to drugs. It is a reasonable

inference that he learned about her job and that she lived alone while he was living

at Chandler‟s residence. Olsson‟s purse was taken from her residence and found

discarded in the pond on the golf course. Defendant told police he had seen

Doubting Thomas rummaging through the victim‟s purse in her living room after

he stabbed her; a receipt indicated she had received $3.95 from a purchase on July

24, but no money was found in her purse or at her home. The jury could easily

have discarded defendant‟s implausible invention of Doubting Thomas‟s role in

the crime and concluded that defendant himself went to Olsson‟s residence and

broke in to steal drugs or property. (See People v. Kipp (2001) 26 Cal.4th 1100,

1128 [“We have explained that when presented with evidence that a defendant

killed another and took substantial property from the victim at the time of the

killing, a jury ordinarily may reasonably infer that the defendant killed for the

purpose of robbery”].)

There is also substantial evidence that defendant entered the victim‟s

residence with the intent to commit rape. This conclusion would have been

consistent with his late night attempt to surreptitiously enter the residence of a

woman who he knew lived alone. Defendant, furthermore, admitted he had sexual

intercourse with the victim but did not ejaculate. His admission that he did not

ejaculate is consistent with testimony from the prosecution‟s criminalist that the

absence of semen did not rule out the possibility of intercourse if there was no


ejaculation. The pathologist also testified that the absence of trauma to the

victim‟s genitals did not mean she had not been forced to submit to sexual

intercourse. Defendant was armed with a knife. The jury could reasonably have

concluded defendant forced the victim to have sex with him at knifepoint and not,

as he claimed, consensually.

Thus, there was substantial evidence to support the felony-murder theory of

first degree murder and the burglary-murder special circumstance. Our assessment

of the evidence also demonstrates there was substantial evidence to support

defendant‟s conviction of assault with intent to commit rape.24

E. Evidence that defendant was unemployed

Defendant contends the trial court abused its discretion when it admitted

testimony that he was unemployed, to show motive to steal. “Ordinarily it would

be unfair to persons in difficult financial circumstances to permit general evidence

of their poverty to be introduced for the purpose of establishing a motive for theft


In light of our conclusion, we do not discuss in detail defendant‟s further

claim that there was insufficient evidence to support a first degree murder
conviction based on a premeditation and deliberation theory. We note, however,
there was strong evidence of planning that includes the manner and timing of
defendant‟s entry into the victim‟s residence, the fact that he was armed, the care
he took to eliminate his fingerprints from the residence and also evidence of
motive — fear that Olsson recognized him as a former neighbor. The manner of
killing — defendant had time to wipe his knife on the sheets as he was stabbing
the victim — also constitutes substantial evidence of premeditation and
deliberation. (See People v. Anderson (1968) 70 Cal.2d 15, 26-27 [evidence of
planning, motive and manner of killing are nonexclusive factors that may support
a finding of premeditated and deliberate killing].) “Contrary to defendant‟s
suggestion, Anderson does not require that these factors be present in some special
combination or that they be accorded a special weight nor is the list exhaustive.
Anderson was simply intended to guide an appellate court‟s assessment whether
the evidence supports an inference that the killing occurred as the result of
preexisting reflection rather than unconsidered or rash impulse.” (People v. Pride
(1992) 3 Cal.4th 195, 247.)


or robbery. The risk of causing suspicion of indigent persons generally outweighs

the probative value of such evidence.” (People v. Cornwell (2005) 37 Cal.4th 50,

96; but see People v. Castaneda (2011) 51 Cal.4th 1292, 1325 [based on evidence

of the defendant‟s sporadic employment combined with evidence of his drug

addiction, “a rational trier of fact could conclude that defendant had a motive to

steal” and formed the intent to do so before the victim‟s death].) Such evidence

may, however, be admissible for other purposes, “such as to refute a defendant‟s

claim that he did not commit the robbery because he did not need the money.”

(People v. Wilson (1992) 3 Cal.4th 926, 939) or to “ „eliminate other possible

explanations for a defendant‟s sudden wealth after a theft offense.‟ [Citations.]”

(Cornwell, supra, 37 Cal.4th at p. 96.)

In this case, the prosecutor asked John Chandler, at whose residence

defendant had been living off and on in the six months before Sandy Olsson‟s

murder, whether “the defendant had a hard time keeping a job.” Defense counsel

objected on relevance grounds. The prosecutor responded, “Motive.” The trial

court overruled the objection. In his closing argument, the prosecutor, referring to

this testimony, said, “[Defendant‟s] using drugs. Well, where do you get money

for that if you can‟t keep a job. How do you support that? I mean we‟re not

talking about keeping a roof over your head.”

Assuming, without deciding, that the testimony should not have been

admitted, we find its admission harmless under any standard. The testimony was

brief, as was the prosecutor‟s reference to it in argument, and, as demonstrated in

the previous section, there was more than ample evidence, quite apart from this

testimony, to support a finding that defendant broke into Olsson‟s residence to

steal drugs or money.


F. Erroneous admission of “victim impact” evidence at guilt phase

Defendant contends that, through a combination of prosecutorial

misconduct and trial court error, evidence was improperly placed before the jury

during the guilt phase resulting in a verdict tainted by sympathy for the victim.

Defendant characterizes this evidence as “victim impact” evidence.

“ „A prosecutor‟s misconduct violates the Fourteenth Amendment to the

United States Constitution when it “infects the trial with such unfairness as to

make the conviction a denial of due process.” [Citations.] In other words, the

misconduct must be “of sufficient significance to result in the denial of the

defendant‟s right to a fair trial.” [Citation.] A prosecutor‟s misconduct that does

not render a trial fundamentally unfair nevertheless violates California law if it

involves “the use of deceptive or reprehensible methods to attempt to persuade

either the court or the jury.” [Citations.]‟ ” (People v. Clark (2011) 52 Cal.4th

856, 960.) “A defendant‟s conviction will not be reversed for prosecutorial

misconduct, however, unless it is reasonably probable that a result more favorable

to the defendant would have been reached without the misconduct. [Citation.]

Also, a claim of prosecutorial misconduct is not preserved for appeal if defendant

fails to object and seek an admonition if an objection and jury admonition would

have cured the injury. [Citation.]” (People v. Crew (2003) 31 Cal.4th 822, 839.)25

“ „Only relevant evidence is admissible (Evid. Code, § 350; [citations]),

and, except as otherwise provided by statute, all relevant evidence is admissible

(Evid. Code, § 351; see also Cal. Const., art. I, § 28, subd. (d) . . .).‟ [Citation.]


Defendant repeatedly cites as instances of prosecutorial misconduct actions

to which he failed to object on this ground. In his reply brief, he asserts that he
should be exempt from the forfeiture rule because of the prosecutor‟s repeated
pattern and course of misconduct. We discern no such pattern and, as we have in
the past, we reject the suggestion that the forfeiture rule is inapplicable to capital
cases. (People v. Dykes (2009) 46 Cal.4th 731, 757.)


„Relevant evidence is defined in Evidence Code section 210 as evidence “having

any tendency in reason to prove or disprove any disputed fact that is of

consequence to the determination of the action.” The test of relevance is whether

the evidence tends “logically, naturally, and by reasonable inference” to establish

material facts such as identity, intent, or motive. [Citations.]‟ [Citation.] [¶]

Defendant placed all material issues in dispute by pleading not guilty.” (People v.

Bivert (2011) 52 Cal.4th 96, 116-117.) “[T]he trial court has broad discretion to

determine the relevance of evidence.” (People v. Cash, supra, 28 Cal.4th at

p. 727.) This discretion extends to evidentiary rulings made pursuant to Evidence

Code section 352. (People v. Zambrano (2007) 41 Cal.4th 1082, 1149.) “ „Under

California law, error in admitting evidence may not be the basis for reversing a

judgment or setting aside a verdict unless “an objection to or a motion to exclude

or to strike the evidence . . . was timely made and so stated as to make clear the

specific ground of the objection or motion . . . . ” (Evid. Code, § 353, subd. (a),

italics added.) “In accordance with this statute, we have consistently held that the

„defendant‟s failure to make a timely and specific objection‟ on the ground

asserted on appeal makes that ground not cognizable.” ‟ ” (People v. Nelson

(2011) 51 Cal.4th 198, 223.)

Bearing these principles in mind, we review defendant‟s specific claims of

prosecutorial misconduct and trial court error.

1. Voir dire

Defendant contends the prosecutor committed misconduct during voir dire

when, “[w]hile questioning juror [J.W.], the prosecutor stated „. . . [i]t‟s not fair to

the family members of the woman who was murdered if people can‟t impose

either of the two penalties.‟ ” Defendant‟s contention is based on a factual error.

The prosecutor did not ask this question of Prospective Juror J.W., who ultimately


sat on the jury, but of Prospective Juror J.B. J.B. was questioned just before J.W.

and did not sit on the jury. Although defendant asserts that J.W. “heard the

comment,” he fails to provide any citation in the record that would support his

claim. Furthermore, defendant fails to show in the record that the prosecutor made

the remark to any other prospective juror. Thus, even if we assumed this fleeting

comment was misconduct, defendant could not have been prejudiced since J.B.

was not a juror in his case. Moreover, his failure to show that the comment was

repeated to any other juror belies his assertion that there was a pattern of

prosecutorial misconduct during voir dire.

2. Prosecutor’s opening statement

Defendant complains that the prosecutor committed misconduct in his

opening statement (1) when he contrasted the intended family gathering for which

the victim was preparing on the weekend before her death— her visit to Topeka

for her father‟s 85th birthday — to the family gathering that actually occurred —

her funeral; (2) by discussing her nursing career; and (3) by discussing her habits

and routines.

Defendant failed to object to any of these remarks at the time they were

made. He subsequently referred to them when he objected, not to the opening

statement, but to the actual evidence of these matters. Indeed, defense counsel

conceded that the prosecutor “has a right to refer to any evidence he expects in

good faith to be admitted during the course of the trial,” but went on to question

the relevance of evidence of Olsson‟s background and the birthday reunion.

Defendant did not move to strike the opening statement. Instead, he asked the

court to make a substantive ruling on his relevance objection. Thus, the specific

claim he advances here — misconduct during the opening statement — is

forfeited. We take up his substantive objection in the following section.


3. Admission of evidence

Defendant asserts the prosecutor committed misconduct by presenting

evidence about the family reunion, Olsson‟s nursing career, and her habits and

routines, as well as eliciting assertedly improper testimony from Olsson‟s

coworkers and her daughter.

a. Background

After the prosecutor‟s opening statement and before any testimony, there

was a lengthy hearing outside the presence of the jury during which defense

counsel demanded that the trial court rule on its objections to prospective evidence

of the victim‟s nursing career, her plans to attend her father‟s 85th birthday

celebration on the weekend she was killed, and her habits and routines. Defense

counsel argued the evidence was more prejudicial than probative. (Evid. Code,

§ 352.) Later, counsel said he was also objecting on relevance grounds.

The prosecutor responded as follows: evidence of the victim‟s professional

background was relevant because it demonstrated she was not a docile person and,

thus, her submission without resistance to defendant indicated that “he had her

under complete control at the point of a weapon,” and that, having complete

control, he committed a gratuitous murder; evidence of her plans to attend a family

reunion was relevant to the concern of her coworkers when she failed to appear at

work the day before she was to have left; and evidence of her habits and routines,

particularly after she came home from work, was relevant to whether — as

defendant‟s statement to the police had suggested — she would have entertained

late night male visitors on a work night. Defense counsel argued that what the

prosecution called habit and custom evidence was really impermissible character

evidence; that the family reunion evidence was irrelevant because there would be

no dispute that Olsson‟s coworkers were concerned by her failure to appear at


work; and that the prosecutor should not be permitted to show that “she stayed at

home at night” by “proving she was a wonderful person at work.”

The trial court told defense counsel, “I‟m going to agree with you in part

and not in totality.” “[I]n terms of what her duties at the hospital might have been,

I will overrule that objection . . . I‟ve engaged in 352, the weighing process. I see

some relevance, certainly not at the risk of undue prejudice.” Furthermore, “[i]n

terms of whether there was . . . a trip contemplated for July 26th, again, I‟m going

to overrule that objection. I can see some relevance to that, and I certainly don‟t

see the risk of undue prejudice.” “With regard to what I‟ll describe as personality

evidence I‟m going to sustain your objection. That, based on the offer of proof, as

I understand it, I think there is a limited relevance to that. . . . Now, it‟s not

inconceivable to me that, based on cross-examination or based on possible defense

presentation of evidence, that something like that could become relevant. . . . At

this point, based on the offer of proof. . . it does not appear to be relevant direct


b. Prosecutorial misconduct claims

Defendant claims the prosecutor committed misconduct by eliciting

testimony about the purpose of Olsson‟s planned trip to Topeka — to celebrate her

father‟s 85th birthday — in violation of the trial court‟s ruling limiting such

evidence to whether a trip was contemplated, but omitting any mention of its

purpose. Defendant misreads the record. The trial court did not impose any such

limitation. The court simply overruled the defense‟s objection to testimony that a

trip was planned. It said nothing further that could be construed as requiring the

prosecutor to omit any mention of the purpose of the trip. Indeed, defense counsel

did not object to the questions about the birthday celebration, suggesting that he


did not believe the questions violated the court‟s ruling. His failure to object also

forfeits the claim. (People v. Crew, supra, 31 Cal.4th at p. 839.)

Defendant next contends the prosecutor committed misconduct when

questioning Barbara Green. Specifically, he argues the prosecutor impermissibly

asked Green a series of questions about when and why she became concerned after

Olsson failed to appear for work. Two of those questions— involving Green‟s

inability to sleep the night before Olsson was killed and her pact with Olsson that

the two women would be with each other if one was dying — did not draw an

objection, thus forfeiting any claim of misconduct.26 (People v. Crew, supra, 31

Cal.4th at p. 839.) Defendant did object to other questions about Green‟s concern.

Following an unreported bench conference, the trial court ultimately sustained an

objection when the prosecutor asked Green, “What was it about this set of

circumstances that caused you to leave your work and go out to a coworker‟s

home?” It did so, however, only as to the form of the question. Thus, even if we


Defendant cites other instances of Green‟s testimony, as well as the

testimony of Olsson‟s father and sister, which he characterizes as “impermissible”
but to which he did not object at trial. He concedes he did not object to this
testimony, but says he presents it as part “of the factual background of the claim to
show context, to show prosecutorial misconduct, and to show how the prosecutor
violated the court‟s orders violating notice.” We deem his explanation to be a
concession that any argument based on this testimony is forfeited and we do not
consider or address further whether this unobjected-to testimony was improper.

Also threaded through defendant‟s claim is an assertion that the prosecutor

violated a court order requiring him to notify both the court and trial counsel in
advance when he was going to elicit testimony that the defense might find
objectionable. The court, however, simply instructed the prosecutor to notify the
court and counsel in advance when he “anticipate[d]” he might be getting into
areas the court characterized, “for lack of better description,” as “victim impact.”
Plainly the ruling left much to the prosecutor‟s judgment. Nowhere does
defendant cite an objection on defense counsel‟s part that the prosecutor had
violated the court‟s instruction, much less any ruling by the court on the issue.
The claim is therefore forfeited.


assume that the basis of defendant‟s objection at the bench conference was

prosecutorial misconduct, the trial court‟s ruling implicitly rejected that ground.

Nonetheless, defendant asserts all the testimony regarding Green‟s concern

was impermissible because it only served to show the impact of Olsson‟s murder

on her. We disagree. Green‟s concern and her subsequent decision to go to

Olsson‟s house to check on her well-being helped provide a context and to

establish a time line for the prosecution‟s case-in-chief. Moreover, Green‟s

decision to go to the home of a coworker simply because she missed work was

unusual; to have forced her to omit any mention of the cause of her concern may

have raised unnecessary questions about her credibility. (See People v. Box

(2000) 23 Cal.4th 1153, 1202 [references to the fact victim was murdered on his

third birthday “helped place the testimony of prosecution witnesses in context and

assisted the jury in assessing their credibility”].) Finally, we are unpersuaded that

these relatively brief references to Green‟s concern had a significant emotional

impact on the jury.

Defendant next claims the prosecutor committed misconduct when he

elicited from Green testimony that she had never heard Olsson use profanity.

Defense counsel objected to the question and his objection was sustained.

Defendant fails to demonstrate that the remedy was inadequate to the impropriety.

Defendant claims two other questions to Green were intended to elicit

impermissible “victim impact” evidence. The prosecutor asked Green whether

her description of the coldness in the bedroom referred only to the temperature or

also Green‟s feelings. Green replied, “It could be a combination of both.” Later,

he asked her if she ever had flashbacks to “what you found in Sandy Olsson‟s

bedroom on July 25, 1986?” Green replied, “Yes, I do, twice a month or more. I

know that it‟s been at least that frequently since the death of Sandy.” Defendant

failed to object to these questions, thus forfeiting his claim of prosecutorial


misconduct on appeal. (People v. Crew, supra, 31 Cal.4th at p. 839.) Even if he

had not, we would find no grounds for reversible misconduct based on these brief


Next, defendant claims the prosecutor engaged in misconduct during his

questioning of Clifford Sandberg, Sandy Olsson‟s father. While questioning

Sandberg about Olsson‟s habit of locking the front door after she came home from

work, he asked if Sandberg remembered “ever having someone come over to the

house and her opening the door when the chain was on the door?” Sandberg

replied there was a “special case” when a man came and pounded on the door

saying that his wife was ill and had fallen to the floor. Defense counsel objected

“to narrative.” The trial court replied: “All right. The answer up to this point can

remain. Next question.” When the prosecutor then asked whether Olsson had

gone to help the neighbor, defense counsel objected on relevance grounds and the

objection was sustained, although not before Sandberg answered, “Yes.”

Contrary to defendant‟s current claim, his initial objection to Sandberg‟s

response was not sustained and, therefore, the prosecutor did not commit

misconduct when he asked a followup question. In any event, the basis of the

objection was not prosecutorial misconduct but that the answer was a narrative.

The court sustained defendant‟s second objection on relevance grounds. He

complains that the answer was not stricken and the jury not admonished to

disregard it. Defense counsel, however, did not request either remedy and, in any

event, we are unpersuaded that Sandberg‟s single-word answer — “Yes” — was

“highly prejudicial,” as defendant now maintains.

Defendant cites as misconduct a series of questions by the prosecutor to

Olsson‟s daughter, Sandra Walters, about her relationship with her mother, the

subjects of their conversations and whether, from these conversations, Walters

knew whether her mother enjoyed much of a social life and if she knew whether


Olsson ever slept in the nude. Defendant failed to object to two of the nine

questions, resulting in forfeiture. None of his objections to the remaining

questions were for prosecutorial misconduct. Rather, they were largely technical

objections such as inadequate foundation and hearsay. Moreover, defense

counsel‟s objections were repeatedly sustained. Thus, even assuming that his

claim is not forfeited by his failure to have objected to these questions on the

ground of prosecutorial misconduct (People v. Crew, supra, 31 Cal.4th at p. 839),

he fails to demonstrate the inadequacy of the remedy he did receive when his

various objections were sustained.

Moreover, we reject his underlying claim that the evidence the prosecutor

sought to elicit from these questions “was only relevant to the impermissible

consideration of victim impact.” The questions directed to Walters were also

relevant to show — contrary to the implication of defendant‟s statement to the

police — that Olsson was a modest woman who led a quiet life.

Defendant also contends the prosecutor engaged in misconduct during

closing argument when he argued: “It is time to put a halt to the brutality and

viciousness of this defendant. And it is time to give Sandy Olsson back her good

name and reputation.” Defense counsel objected that the prosecutor was

attempting to “inflame the jury” and that his comment was “irrelevant.” The court

replied: “I indicated to the jury now that this is argument. These are the

arguments of the attorneys. The arguments are not evidence in the case.” The

prosecutor continued: “The evidence in this case establishes this man tried to take

everything in the world that Sandy Olsson had and he did take everything, except

for her good name and reputation, and he tried to take that and steal that like

everything else he took on the morning of July 25, 1986.”

The prosecutor‟s comments about the victim‟s good name and reputation

were undoubtedly allusions to defendant‟s statement to police about the murder.


In that statement, he suggested that Sandy Olsson stole drugs from the hospital

where she worked and sold them to people like “Doubting Thomas,” who,

according to defendant, was a Hell‟s Angel. Defendant also suggested that Olsson

was the kind of woman who entertained late night male visitors and engaged in

sex with strangers. Defendant‟s statement was in evidence. There was no

misconduct. (People v. Panah (2005) 35 Cal.4th 395, 463 [prosecutor has a right

to comment on the evidence in closing argument].)

Defendant also claims the prosecutor committed misconduct during his

rebuttal argument but he failed to object to the comments he asserts were

improper. The claim is therefore forfeited.

In any event, we would find no misconduct. During the defense argument,

defense counsel repeatedly maintained that defendant was telling the truth in his

statement to the police about the circumstances of the murder. He suggested that

Olsson had, in fact, taken drugs from the hospital to sell to “Doubting Thomas.”

The implication of that argument is that testimony by Olsson‟s friends and family

that she was a modest woman who lived quietly was not credible. It is in this

context that the prosecutor made the statement defendant now claims was

misconduct: “He [defense counsel] attacked the victim. He even attacked the

victim‟s family. Isn‟t it outrageous that these folks are here. Isn‟t it so outrageous

that they‟re in this courtroom with some of her friends. Terrible thing. Terrible

thing, because the only person who has to lie is the defendant over there.” In

context, the prosecutor‟s argument was permissible rebuttal on the issue of witness


c. Trial court error

In addition to charging the prosecutor with misconduct for eliciting

improper victim impact evidence, defendant faults the trial court for rulings that


allegedly abetted the misconduct. Specifically, he claims the trial court failed to

limit evidence and argument to relevant and material matters and erred by

admitting into evidence a photograph of the victim while she was alive. He also

argues he was cumulatively prejudiced by the trial court‟s errors and the

prosecutor‟s misconduct.

Defendant contends the trial court failed to issue “firm rulings” in response

to defense objections. As a result, he asserts that the prosecutor exploited the

court‟s vague rulings to elicit improper victim impact evidence.

Defendant claims the trial court failed to adequately rule on his objection to

the prosecutor‟s voir dire comment to Prospective Juror J.B. that it would be

unfair to Olsson‟s family if a juror were unable to consider both penalties. But

defendant did not make a contemporaneous objection to the comment. Instead, he

waited until both that prospective juror and the next prospective juror, J.W., had

been questioned and excused. Only then did defense counsel argue the comment

was “inappropriate.” The trial court, after hearing from both sides, observed, “I‟ve

only heard that reference on one occasion . . . . I think we could spend a fair

amount of time whether it‟s an appropriate subject . . . . I would simply ask you at

this time to note our conversation for the record. If the situation arises again, you

may react appropriately and I‟ll react as I feel appropriate.”

In short, the trial court declined to rule on the propriety of the prosecutor‟s

comment to a single prospective juror, to which defendant had failed to object at

the time it was made. The court‟s action was entirely reasonable. There was no

need for the court to make a definitive ruling unless the situation recurred, which it

did not.

Defendant contends the trial court‟s ruling was inadequate on his objection

to prospective evidence of the victim‟s nursing career, her plans to attend her

father‟s 85th birthday celebration, and her habits and routines. He cites the court‟s


remark that the prosecutor had agreed to give the court and defense counsel

advance notice if “he anticipates that any of the areas may be the subject of direct

testimony,” at which point the court would hear and rule on any objections.

Defendant asserts the court failed to clarify the “areas” over which the prosecutor

was to tread lightly. Neither defense counsel nor the prosecutor, however, found it

necessary to request clarification. This is because it was clear in context that the

“areas” to which the court was referring were those areas of anticipated testimony

by prosecution witnesses that defendant had just objected to: Olsson‟s career, the

family reunion evidence, and evidence of her habits and routines.

Defendant complains that the prosecutor “[took] advantage of [the court‟s]

inadequate ruling by asking objectionable questions and eliciting improper

testimony before drawing an objection.” Clearly not. The court‟s instruction to

the prosecutor to advise it and defense counsel of questions he anticipated might

tread into potentially objectionable areas committed those decisions to the

prosecutor‟s judgment. That the prosecutor and defense counsel might disagree on

this issue was to be expected. The prosecutor asked questions he thought were

permissible and, when the defense disagreed and objected, the trial court ruled on

the specific question, sustaining some objections and overruling others. Defendant

argues that by requiring objections to specific prosecution questions, the court

made it look as though his counsel was “bullying” witnesses. He cites nothing in

the record to support this speculation. Moreover, the trial court‟s instructions to

the jury made clear that objections were simply a normal part of a trial. We

discern no error by the trial court or misconduct by the prosecutor.

Defendant renews his claim that the prosecutor‟s reference in closing

argument to the victim‟s good name and reputation were improper and faults the

trial court for not sustaining his objection but simply admonishing the jury that

arguments are not evidence. As we have concluded that the argument was a


permissible comment on the evidence, we find no error in the trial court‟s handling

of defendant‟s objection.

Defendant contends the trial court erred by failing to sustain a defense

objection to the prosecutor‟s remark in rebuttal argument that defendant had

“smear[ed] the good name and reputation” of the victim. Defendant objected that

the remarks invited the jury to speculate on matters outside the record and referred

to a previous objection during opening arguments. Defendant had tried to prevent

the prosecutor from arguing that defendant had attempted to sully the victim‟s

good name and reputation because the trial court had sustained an objection when

the prosecutor had asked Olsson‟s supervisor, Margaret Brick, about Olsson‟s

reputation for honesty and integrity. The prosecutor replied that his argument was

based on Brick‟s testimony that an audit had revealed no missing drugs from the

hospital during the period Olsson had worked there, contrary to the implication of

defendant‟s statement that Olsson sold drugs she had stolen from the hospital.

Defense counsel also argued that the prosecutor could not base his argument on

defendant‟s statement to police because the prosecutor had introduced that

statement. The court rejected that argument. It also ruled that the prosecutor

could support his argument with Brick‟s drug audit testimony.

The court did not err in overruling defendant‟s objection that the

prosecutor‟s rebuttal argument referred to matters outside the record. Defendant‟s

statement to the police and the drug audit testimony by Brick were in evidence and

the prosecutor could comment on them.27 For these same reasons, we reject


Defendant renews the claim made by his trial counsel that the prosecutor

was prohibited from commenting on defendant‟s statement to police because the
prosecution introduced the statement. He cites no authority for this assertion.
Moreover, as already noted, defense counsel relied on that statement in his own
closing argument, suggesting that defendant had been truthful when he told police
Olsson was a drug dealer and the murder was committed by Doubting Thomas or
some other third party.


defendant‟s claim that the trial court erred when it denied his motion for a mistrial

based on the prosecutor‟s rebuttal argument.

Defendant‟s remaining claims can be summarily disposed of. He renews

his claim the trial court erred when it denied his request to exclude Olsson‟s

family members from the courtroom during the guilt phase. We have already

rejected his argument and, for the reasons previously given, do so again. (See pp.

58-62, ante.) Defendant renews his claim that the trial court‟s ruling regarding the

scope of testimony about Olsson‟s planned trip to Kansas for her father‟s birthday

was ambiguous in that it did not clearly preclude the prosecutor from presenting

evidence of the purpose of the trip as opposed to the mere fact of it. We have

already rejected this claim and, for the reasons previously given, do so again. (See

pp. 71, 77-78, ante.) Defendant contends the trial court cut defense counsel off

when he was attempting to object to the prosecutor‟s references to the victim‟s

good name and reputation. Not so. The court had already heard extensive

argument when it remarked to defense counsel, “I don‟t mean to cut you off, sir,

but what I‟d like to do at this time is . . . give you an opportunity . . . to

memorialize the issue now because you brought it to my attention, I want to make

sure we have a record about that which we do.” The court made a preliminary

ruling with respect to the kind of testimony the prosecutor could elicit from his

first witness, Maxine Gatten. The parties then resumed their argument both at this

session and in the next court session at even greater length than before the court‟s

comment. In no way does the record support defendant‟s claim that the court

prevented him from making a comprehensive argument on this issue.

Defendant contends the trial court abused its discretion when it admitted

evidence that Olsson‟s coworkers were concerned when she failed to appear for

work on July 25, 1986. We have previously rejected this argument and, for the

reasons given, do so again. (See pp. 72-73, ante.) We have also rejected his claim


that the trial court erred when it admitted testimony by Barbara Green about her

flashbacks to the crime scene and, for the reasons given, we do so again. (See p.

73, ante.) Defendant contends evidence of Olsson‟s duties at the medical center

were irrelevant and, therefore, the court abused its discretion in admitting such

testimony. We disagree.

A focal point of the prosecution‟s case was showing that Olsson‟s job was

all consuming and accounted for her quiet lifestyle, which excluded the possibility

of drug dealing and promiscuity. Thus, the nature and scope of her professional

duties was relevant, and the trial court acted well within its considerable discretion

when it admitted such evidence. Defendant contends the trial court erred when it

overruled his foundational objection to testimony by Sandberg that his daughter

slept in flannel pajamas based on his observations when he stayed with her from

October to March. (Evid. Code, § 1105 [“Any otherwise admissible evidence of

habit or custom is admissible to prove conduct on a specified occasion in

conformity with the habit or custom”].) “[T]he determination of the admissibility

of [habit or custom] evidence rests in the sound discretion of the trial court.”

(People v. Hughes (2002) 27 Cal.4th 287, 337.) Here the court reasonably

concluded that Sandberg‟s observations of his daughter‟s sleepwear and the fact

that he regularly laundered her pajamas during the six months a year he stayed

with her provided sufficient foundation for the prosecution‟s contention that she

wore pajamas on the night she was murdered and was forced to remove them by

her assailant.

Defendant contends the trial court abused its discretion when it admitted

into evidence a photograph of Sandy Olsson in her work clothes while she was

alive. Initially, the defense had offered to stipulate to identity, but the prosecution

rejected the stipulation. The prosecutor showed the photograph to several

witnesses to establish identity. Later, the defense objected to admission of the


photograph on grounds it was irrelevant and prejudicial. The trial court overruled

the objection.

As defendant acknowledges, the prosecutor used the photograph for

identification purposes while examining four different witnesses. “Our cases have

permitted similar uses of photographs of victims while alive. [Citations.] We find

no error in admitting [this] photograph[].” (People v. Martinez (2003) 31 Cal.4th

673, 692.) “The photograph, which was shown to three witnesses, was relevant to

establish the witnesses‟ ability to identify the victims as the people about whom

they were testifying. The possibility that it generated sympathy for the victims is

not enough, by itself, to compel its exclusion if it was otherwise relevant.”

(People v. DeSantis (1992) 2 Cal.4th 1198, 1230.) Moreover, given that the jury

was aware Olsson was a nurse, we reject defendant‟s claim that the photograph

was particularly prejudicial because she was depicted in her work clothes.

Defendant contends that he suffered cumulative prejudice from the impact

of the prosecutor‟s misconduct and the trial court errors discussed above. We

have rejected his claim of errors or, if error, of individual prejudice, and therefore

he could not have suffered cumulative prejudice.

G. Prosecutorial misconduct in closing argument

Defendant contends the prosecutor engaged in misconduct in his guilt phase

closing argument.

First, defendant contends the prosecutor impugned the integrity of defense

counsel in his rebuttal argument when the prosecutor asked rhetorically, “[D]id

you ever get the feeling [defense counsel] believed his client was telling the

truth?” Defense objected that the remark was “improper” and requested an

admonition. The court obliged, instructing: “The jury is advised to disregard this


comment.” Subsequently, the defense sought a mistrial, claiming that court‟s

admonition was inadequate. The motion was denied.

We presume the jury fully understood and applied the court‟s instruction.

(People v. Richardson (2009) 46 Cal.4th 339, 356, fn. 13.)

Defendant contends the prosecutor engaged in misconduct when the

prosecutor referred to him as “a despicable excuse for a man,” a “despicable

individual,” “garbage,” and “a sucker.” Defendant failed to object to the last three

remarks, thus forfeiting his claim of misconduct on appeal. (People v. Panah,

supra, 35 Cal.4th at p. 462.)

In any event, we find no misconduct. We have observed that a prosecutor

is not “required to discuss his [or her] view of the case in clinical or detached

detail.” (People v. Panah, supra, 35 Cal.4th at p. 463.) “[T]he use of derogatory

epithets to describe a defendant is not necessarily misconduct.” (People v. Friend

(2009) 47 Cal.4th 1, 32 [defendant described as “ „living like a mole or the rat that

he is‟ ”].) “A prosecutor is allowed to make vigorous arguments and may even

use such epithets as are warranted by the evidence, as long as these arguments are

not inflammatory and principally aimed at arousing the passion or prejudice of the

jury.” (People v. Pensinger (1991) 52 Cal.3d 1210, 1251.) We have repeatedly

rejected claims of prosecutorial misconduct involving the use of such epithets in

guilt phase arguments. (See, e.g., People v. Young (2005) 34 Cal.4th 1149, 1195

[no misconduct where prosecutor characterized crimes as “ „serial killing,‟ ” and

“ „terrorizing and killing‟ ” people (italics omitted); People v. Jones (1998) 17

Cal.4th 279, 308-309 [no ineffective assistance of counsel for failure to object to

prosecutor‟s characterization of defendant‟s crime as a “terrorist attack” and

comparison of defendant to “[t]errorists”]; People v. Pensinger, supra, 52 Cal.3d

1210, 1250-1251 [no misconduct where prosecutor referred to defendant as a

“ „perverted maniac‟ ”].) Here, as in those cases, we conclude that these epithets,


which were but fleeting characterizations in the course of the prosecutor‟s very

lengthy summations, did not constitute misconduct.

Defendant contends the prosecutor committed Griffin error (Griffin v.

California (1965) 380 U.S. 609), when he argued that the jury should assess the

credibility of defendant‟s statement to police using the same standards as applied

to trial testimony. In Griffin, “the high court held the prosecution may not

comment on a defendant‟s failure to testify.” (People v. Bennett (2009) 45 Cal.4th

577, 596.) That did not happen here. As the trial court aptly observed when it

denied defendant‟s mistrial motion on this ground, “There was no reference to the

defendant‟s failure to testify.” The Attorney General contends that the

prosecutor‟s comments “simply urged the jurors to evaluate the credibility of

[defendant‟s] out-of-court statements — which had been received into evidence

under the hearsay exception for the admission of a party — under the same

standards and criteria used to evaluate in-court testimony.” We agree.

A hearsay declarant is subject to the same credibility standards as if “the

declarant had been a witness at the hearing.” (Evid. Code, § 1202.) Here, the

prosecution argued that its evidence proved that defendant alone had murdered

Sandy Olsson. This was inconsistent with defendant‟s statement to police that a

third party committed the crime. Thus, the jury was confronted with a question of

the defendant‟s credibility. The prosecutor did not err by arguing they should

apply the same standards to that statement as they would to the testimony of a

witness. That argument was plainly limited to defendant‟s statement to the police

and did not implicate directly or indirectly defendant‟s decision not to testify at


Defendant next contends that the prosecutor misstated the evidence and

referred to facts not in evidence during his argument. Specifically, he cites the

prosecutor‟s comment that Olsson felt safe in her neighborhood because “you


know this is a good neighborhood, I mean there are no bars on the windows.”

Defendant contends there was no evidence of the neighborhood‟s safety or

whether Olsson felt secure in her home. “[P]rosecutors have wide latitude to draw

reasonable inferences from the evidence presented at trial. . . .” (People v.

Zambrano, supra, 41 Cal.4th at pp. 1153-1154.) The evidence showed that the

victim lived in a quiet neighborhood of single-family dwellings that partly abutted

a golf course. It showed further that she employed no special safety precautions in

her own home beyond a chain lock on the front door that was easily broken.

There was also Sandberg‟s testimony that when a neighbor had come knocking at

Olsson‟s door one night, she simply opened it. The prosecutor‟s characterization

of the neighborhood and the victim‟s sense of security was not impermissible.

Defendant contends the prosecutor misstated the law when he argued that

the jury did not have to unanimously agree on the applicable theory of first degree

murder — burglary murder or premeditated murder — by using an analogy to

burglary: “Just like in the burglary where you can be divided as to why he

entered, whether it was to steal, whether it was to rob, whether it was to do both.

As long as you all agree that he had that intent or one of those intents, he‟s guilty

of burglary. [¶] In this particular case, as long as you agree he either had all these

things when he killed, or that it occurred during the course of a burglary.”

Defendant complains the argument was improper because defendant was never

charged with either burglary or robbery; that the prosecutor conflated the intent

requirement for premeditated burglary and burglary murder; and “he did not tell

them what „all these things‟ were that could lead them to a finding of

premeditated, as opposed to felony, murder.”

The prosecutor was correct that the jury need not agree on the same theory

of first degree murder to convict defendant of that charge. (People v. Nakahara

(2003) 30 Cal.4th 705, 712.) He was also correct when, by way of analogy, he


pointed out that, similarly, there was no unanimity requirement for burglary.

(People v. Russo (2001) 25 Cal.4th 1124, 1132-1133.) It is plain from the context

that he was not speaking of burglary or robbery as separate crimes but, rather,

alluding to burglary because the offense was before the jury for purposes of

felony murder and burglary-murder special circumstances.28

The Attorney General argues that, when the prosecutor referred to “all these

things” he was alluding to a chart on which the elements of willful, deliberate and

premeditated murder had been itemized in contradistinction to burglary murder.

The record lends some support to the Attorney General‟s assertion in that it is

clear the prosecutor was using charts to illustrate legal concepts. Chart or no,

however, we agree that, in context, the prosecutor‟s reference to “all these things”

was to the elements of premeditated murder which he had explained at some

length to the jury before addressing burglary murder. Thus, we conclude the

phrase could not have led the jury to believe that the elements of premeditated

murder and burglary murder were the same.

Finally, defendant argues that the cumulative effect of the prosecutor‟s

misconduct requires reversal. As we have found no misconduct in the

prosecutor‟s summation, we necessarily find no prejudice, cumulative or

individual. (People v. Stitely (2007) 35 Cal.4th 514, 560.)

H. Jury unanimity

Defendant contends that, in light of Apprendi v. New Jersey (2000) 530

U.S. 466, his constitutional rights were violated because the jury was not

instructed that it must unanimously agree on a theory of first degree murder, that


We think the prosecutor‟s reference to “rob” may have a slip of the tongue

and that what he meant to say was “rape,” which, as the jury was correctly
instructed, was the other predicate crime for burglary murder. In light of those
instructions, we reject the notion that the reference could have confused or misled
the jury.


is, whether it was premeditated murder or burglary murder. Furthermore, he

asserts Apprendi also required the jury to unanimously agree on which of the two

possible target offenses — theft or rape — supported the burglary-murder theory

of first degree murder. We have previously rejected these arguments and do so


“[A]though the two forms of murder have different elements, only a single

statutory offense of murder exists. Felony murder and premeditated murder are

not distinct crimes, and need not be separately pleaded. [Citations.] As for

defendant‟s claim that a unanimity instruction should have been given, our cases

have repeatedly rejected this contention, holding that the jurors need not

unanimously agree on a theory of first degree murder as either felony murder or

murder with premeditation and deliberation. [Citations.] [¶] We are not

persuaded otherwise by Apprendi v. New Jersey (2000) 530 U.S. 466. There, the

United States Supreme Court found a constitutional requirement that any fact that

increases the maximum penalty for a crime, other than a prior conviction, must be

formally charged, submitted to the fact finder, treated as a criminal element, and

proved beyond a reasonable doubt. [Citation.] We see nothing in Apprendi that

would require a unanimous jury verdict as to the particular theory justifying a

finding of first degree murder. (See also Ring v. Arizona (2002) 536 U.S. 584, 610

[122 S.Ct. 2428, 2443-2444, 153 L.Ed.2d 556] [requiring jury finding beyond

reasonable doubt as to facts essential to punishment].)” (People v. Nakahara,

supra, 30 Cal.4th at pp. 712-713, original italics; and see People v. Taylor (2010)

48 Cal.4th 574, 626 [rejecting contention that for purposes of felony murder the

jury must unanimously agree on the target offense].)


I. Instructional error claims

1. Consciousness of guilt instruction

Defendant contends consciousness of guilt instructions given in this case

(CALJIC Nos. 2.03, 2.06, 2.52) were contradictory and misleading and lessened

the prosecution‟s burden of proof.29 These standard instructions explicitly state

that any inference regarding guilt to be drawn from the circumstances described by

them — a willfully false or misleading statement, destruction or suppression of

evidence, and flight — is permissive and insufficient alone to prove guilt.

Nonetheless, defendant claims the jury could have convicted him based on

consciousness of guilt alone even if it was not otherwise convinced of his guilt

beyond a reasonable doubt. As defendant acknowledges, we have repeatedly

rejected challenges to these instructions. (See generally People v. Zambrano,

supra, 41 Cal.4th at p. 1159; People v. Jurado (2006) 38 Cal.4th 72, 125-126.)

We decline to revisit this authority. We have also previously rejected the claim he

makes here that such instructions are improper pinpoint instructions. (People v.

Holloway (2004) 33 Cal.4th 96, 142.) We do so again.

2. Circumstantial evidence instructions

Defendant next contends that the circumstantial evidence instructions given

in this case impermissibly lightened the prosecution‟s burden of proof (CALJIC

No. 2.01 [when one interpretation of circumstantial evidence appears reasonable


CALJIC No. 2.03 as given stated: “If you find that before this trial the

defendant made a willfully false or deliberately misleading statement concerning
the crimes for which he is now being tried, you may consider such statement as a
circumstance tending to prove a consciousness of guilt. However, such conduct is
not sufficient by itself to prove guilt and its weight and significance, if any, are
matters for your determination.” CALJIC No. 2.06 contained similar language
regarding the destruction or concealment of evidence. CALJIC No. 2.52
contained similar language regarding flight after the commission or accusation of
committing a crime.


and the other unreasonable, jury must accept the reasonable interpretation];

CALJIC No. 2.02 [same standard, for circumstantial evidence of specific intent or

mental state]; CALJIC Nos. 8.83, 8.83.1 [same standard, for special circumstance

allegation and specific intent or mental state for special circumstance allegation].)

“Defendant acknowledges that we have rejected similar arguments in prior cases.

[Citations.] We find our reasoning in those cases to be sound.” (People v.

Morgan (2007) 42 Cal.4th 593, 621.)

3. Voluntary intoxication

Defendant contends the trial court erred when it failed to give a voluntary

intoxication instruction as to the burglary-murder special circumstance. Defendant

acknowledges that the court did give the instruction with respect to count 1

(murder) and count 2 (assault with intent to commit rape). The jury was

instructed, in relevant part: “If the evidence shows that the defendant was

intoxicated at the time of the alleged crime, you should consider that fact in

determining whether defendant had such specific intent or mental state. [¶] If

from all the evidence you have a reasonable doubt whether the defendant formed

such specific intent or mental states, you must find that he did not have such

specific intent or mental states.” (CALJIC No. 4.21.) Defendant argues the

court‟s failure to give this instruction as to the special circumstance may have led

the jury to ignore whether intoxication prevented defendant from forming the

specific intent required to establish the special circumstance, e.g., the specific

intent to steal or commit rape.

“In assessing a claim of instructional error, „we must view a challenged

portion “in the context of the instructions as a whole and the trial record” to

determine “ „whether there is a reasonable likelihood that the jury has applied the

challenged instruction in a way‟ that violates the Constitution.” ‟ [Citation.]”


(People v. Jablonski (2006) 37 Cal.4th 774, 831.) The voluntary intoxication

instruction informed the jury it could consider the effect of defendant‟s

intoxication on his ability to form the required “specific intent or mental state” at

“the time of the alleged crime.” This necessarily included all conduct and events

that comprised the crimes and the special circumstance. Indeed, the jury was

further instructed that the special circumstance applied only if “[t]he murder was

committed while the defendant was engaged in the commission or attempted

commission of a burglary.”

The jury could not have evaluated the effect of defendant‟s intoxication on

his ability to form the required specific intent for purposes of burglary murder

without also deciding the issue with respect to the special circumstance. This is

also true of count 2. The jury could not have evaluated the effect of defendant‟s

intoxication with respect to whether he formed the specific intent required for

assault with intent to commit rape without also deciding that issue for the special

circumstance allegation. That is, the question of the effect of defendant‟s

intoxication on his ability to form specific intent was the same whether it was for

felony murder, assault with intent to commit rape, or the burglary murder special

circumstance. In resolving the issue for one purpose, the jury resolved it for all

purposes. Accordingly, we reject defendant‟s claim of instructional error.

We also reject defendant‟s further claim that, as given, the voluntary

intoxication instruction was inadequate because it told the jury it “should”

consider intoxication rather than it “shall or must.” The use of “should” did not

give the jury discretion whether to consider defendant‟s intoxication. The very

next sentence informed the jurors that if they entertained a reasonable doubt

regarding defendant‟s ability to form the requisite mental states because of his

intoxication they “must” conclude that he did not. There was no error.


J. Cumulative guilt phase error

Defendant contends the cumulative effect of guilt phase error requires

reversal. “However, we either have rejected his claims and/or found any assumed

error to be nonprejudicial on an individual basis. Viewed as a whole, such errors

do not warrant reversal of the judgment.” (People v. Stitely, supra, 35 Cal.4th at

p. 560.)

K. Admission of unadjudicated criminal activity in penalty phase

Pursuant to section 190.3, factor (b), the prosecution presented evidence

that defendant had been involved in two jailhouse altercations. Section 190.3,

factor (b) allows the jury to consider “[t]he presence or absence of criminal

activity by the defendant which involved the use or attempted use of force or

violence or the expressed or implied threat to use force or violence.” The court

held a Phillips hearing (People v. Phillips (1985) 41 Cal.3d 29 (Phillips) to make a

preliminary determination whether the evidence was admissible.

Defendant argues: (1) the court‟s Phillips hearing ruling was error; (2)

admission of the evidence of the altercations violated state law because defendant

was not the aggressor and did not use force or violence; (3) admission of the

evidence violated federal due process guarantees because it “allowed the jury to

punish [defendant] for prior bad acts of „violence‟ that were wholly unrelated to

any crimes proven at the guilt phase”; (4) admission of the evidence rendered

section 190.3, factor (b) unconstitutional as applied in this case because it

“allowed the introduction of conduct that had no bearing on any issue relevant to

the penalty determination”; (5) admission of evidence of “such de minimis acts in

aggravation” violates the Eighth Amendment‟s requirement of “heightened

reliability” in capital cases; (6) in his closing argument the prosecutor committed

misconduct by linking defendant to a defense penalty phase witness who had been

convicted of rape.


“Both former and present section 190.3, factor (b) . . .) provide that in

making the penalty determination, the trier of fact is to consider, if relevant,

„ “The presence or absence of criminal activity by the defendant which involved

the use or attempted use of force or violence or the expressed or implied threat to

use force or violence.” ‟ [Citation.] . . . [E]vidence admitted under this provision

must establish that the conduct was prohibited by a criminal statute and satisfied

the essential elements of the crime. [Citations.] The prosecution bears the burden

of proving the factor (b) other crimes beyond a reasonable doubt.” (People v.

Moore (2011) 51 Cal.4th 1104, 1135.) The other crimes evidence may be conduct

amounting to either a felony or a misdemeanor. (Phillips, supra, 41 Cal.3d at p.

71.) Whether the other crimes evidence is significant enough to be given weight

in the penalty determination is a question for the jury. (People v. Smith (2005) 35

Cal.4th 334, 369.)

“In Phillips, we admonished that „in many cases it may be advisable for the

trial court to conduct a preliminary hearing before the penalty phase to determine

whether there is substantial evidence to prove each element‟ of other violent

crimes the prosecution intends to introduce in aggravation under section 190.3,

factor (b). . . . „Moreover, a trial court‟s decision to admit “other crimes” evidence

at the penalty phase is reviewed for abuse of discretion, and no abuse of discretion

will be found where, in fact, the evidence in question was legally sufficient.‟

[Citation.]” (People v. Whisenhunt (2008) 44 Cal.4th 174, 225.)

At the Phillips hearing in this case, the prosecution called the two

correctional officers who witnessed the jailhouse altercations. Deputy Sheriff

Robert Pinkerton testified that, while he was supervising dinner at the Santa Rita

county jail on January 7, 1988, his attention was drawn to defendant and another

inmate, Derek Mendoca. Pinkerton testified the two men were “involved in a

fistfight, throwing punches at each other.” Pinkerton did not recall if any of the


punches landed, nor did he see who started the fight. He immediately separated

the two men. Mendoca was uninjured but defendant had a cut lip that required

treatment at a hospital.

Deputy Sheriff Michael Perkins testified about the second incident, which

occurred on September 26, 1991. About 4:00 p.m., he heard a commotion and

saw defendant and Robert McKinney “clutched in a wrestling match.” The two

men “threw a couple of punches” at each other and again “grasped each other and

started wrestling around.” Perkins did not see any punches land, nor could he

remember who threw the first punch. Defendant was treated for “bruises and

bumps” to his face and McKinney was treated for an injured eye.

The trial court denied defendant‟s motion to exclude evidence of these

incidents. The two deputy sheriffs testified for the prosecution at the penalty

phase, essentially repeating the testimony they had given at the Phillips hearing.

Derek Mendoca testified for the defense that he threw the first punch at defendant

after defendant wiped mustard or ketchup on Mendoca‟s shirt. He testified further

that he and defendant were friends before and after the fight. On cross-

examination, Mendoca testified he had been convicted of kidnapping, robbery and


On the other crimes issue, the jury was instructed that before it could

consider the two batteries as an aggravating circumstance, it must find beyond a

reasonable doubt that defendant committed them. The jury was also instructed on

the presumption of innocence, the burden of proof and the elements of

misdemeanor battery. The latter instruction informed the jury that “[t]he use of

force and violence is not unlawful when done in lawful self-defense. The burden

is on the People to prove that the use of force and violence was not in lawful self-

defense. If you have a reasonable doubt that such use was unlawful, you must not

consider that evidence for any purpose.”


The trial court did not abuse its discretion when it admitted the evidence of

the jailhouse altercations. The testimony by Deputies Pinkerton and Perkins

constituted substantial evidence sufficient to prove misdemeanor battery.

Defendant asserts the first incident did not constitute battery because Pinkerton did

not see defendant land a blow and without touching there is no battery. However,

Pinkerton testified that the “fight had started” before his attention was drawn to it.

He saw the men “throwing punches” at each other and, after they were separated,

noted that defendant was injured. Pinkerton‟s testimony established that the men

were involved in mutual combat — as opposed to Mendoca unilaterally attacking

defendant — and that the fight had already started when Pinkerton‟s attention was

drawn to it and blows had been thrown with sufficient force to injure defendant. It

was a reasonable inference from this testimony that defendant had also struck

Mendoca. Defendant cites Mendoca‟s trial testimony that he started the fight and

threw the only punch. This testimony, however, was not before the trial court

when it ruled on the Phillips motion.

As to the second incident, there was obviously touching, given Perkins‟s

testimony that defendant and McKinney were “clutched in a wrestling match.”

Defendant asserts that this “touching was consensual.” This characterization is

unsupportable in light of the record as a whole. Perkins testified that the

altercation took place at meal time and that the two men separated and threw

punches at each other before again grabbing each other. Plainly, this was a fight,

not horseplay or sport. Again, the trial court did not abuse its discretion by

admitting evidence of this altercation.

Defendant contends that admission of the altercation evidence violated his

right to due process under state law because he “was not the aggressor and did not

use force or violence.” The claim is forfeited because defendant failed to raise it

below. It is also without merit. The evidence before the trial court at the Phillips


hearing indicated that, at minimum, each altercation involved mutual combat

rather than a unilateral attack on defendant. The evidence, as we have explained,

also constituted sufficient evidence that defendant used force or violence to put the

issue before the jury. Therefore, the factual predicate of defendant‟s claim

collapses and it fails on its merits.

Defendant next contends that the other crimes evidence admitted in this

case renders section 190.3, factor (b) unconstitutional as applied because (1) it

allowed the jury to punish him for acts of violence unrelated to the crimes of

which he was convicted; and (2) his conduct was minimal. In a related claim, he

contends admission of the other crimes evidence violated the Eighth Amendment‟s

requirement of “heightened reliability” in capital cases.

The purpose of 190.3, factor (b) “is to enable the jury to make an

individualized assessment of the character and history of a defendant to determine

the nature of the punishment to be imposed.” (People v. Grant (1988) 45 Cal.3d

829, 851.) We have repeatedly held that the statute does not violate any federal

constitutional guarantees. (See, e.g., People v. Smith, supra, 35 Cal.4th at p. 368

[admission of adjudicated violent acts does not violate Eighth or Fourteenth

Amend.]; People v. Jenkins (2000) 22 Cal.4th 900, 1054 [rejecting the defendant‟s

claim that “use of evidence of unadjudicated criminal activity in aggravation

pursuant to section 190.3, factor (b), renders his death sentence unreliable and

violates the Fifth, Sixth, Eighth and Fourteenth Amendments of the federal

Constitution”].) Like his state law claim, defendant‟s “as applied” federal claim is

based entirely on his tendentious view of the jailhouse altercations as “minor” and

as to which he was not the aggressor. We have concluded the trial court did not

err in submitting the evidence to the jury. Whether defendant‟s use of force was

legally justified and the weight, if any, to be given to these incidents for purposes

of the individualized assessment of his character and history were matters for the


jury to decide in light of the instructions given to it. We find no violation of

defendant‟s federal constitutional rights under the Eighth or Fourteenth

Amendment in either the submission of the evidence to the jury or the jury‟s

consideration of it.

Defendant next argues that the prosecutor committed misconduct during

closing argument when, referring to defense witness Mendoca, he said: “How

many of you would have guessed [Mendoca] is a rapist? But he is a friend of the

defendant‟s.” Defendant failed to object to the remark, and his claim of

misconduct is forfeited. In any event, there was no misconduct. The prosecutor‟s

statement was made in the context of questioning Mendoca‟s credibility because

of his convictions for rape and his acknowledged friendship with defendant, both

facts that were in evidence.

In summary, we find no error in the admission of the section 190.3, factor

(b) evidence in this case.

L. Trial court’s admission of victim impact evidence

Defendant challenges the trial court‟s admission of victim impact evidence

on both constitutional and evidentiary grounds. His arguments are without merit.

“The introduction of victim impact evidence in capital cases does not

violate any rights guaranteed by the United States Constitution. (Payne v.

Tennessee (1991) 501 U.S. 808. In Payne, the United States Supreme Court

explained that „ “[T]he State has a legitimate interest in counteracting the

mitigating evidence which the defendant is entitled to put in, by reminding the

sentencer that just as the murderer should be considered as an individual, so too

the victim is an individual whose death represents a unique loss to society and in

particular to his family.” ‟ [Citation.] „We have followed the high court‟s lead

[citation] and have also found such victim impact evidence admissible as a


circumstance of the crime pursuant to section 190.3, factor (a) [citation].‟

[Citation.]” (People v. Mills (2010) 48 Cal.4th 158, 211.) “ „Unless it invites a

purely irrational response from the jury, the devastating effect of a capital crime

on loved ones and the community is relevant and admissible as a circumstance of

the crime under section 190.3, factor (a).‟ [Citation.] „The federal Constitution

bars victim impact evidence only if it is “so unduly prejudicial” as to render the

trial “fundamentally unfair.” ‟ [Citations.]” (People v. Bramit (2009) 46 Cal.4th

1221, 1240 (Bramit); see People v. Stitely, supra, 35 Cal.4th at p. 565.)

“ „[V]ictim impact testimony is not limited to the victims‟ relatives or to persons

present during the crime . . . .‟ [Citation.]” (Mills, supra, 48 Cal.4th at p. 213.)

Nor is victim impact evidence “limited to circumstances known or foreseeable to

the defendant at the time of the crime.” (Bramit, supra, 46 Cal.4th at p. 1240; see

People v. Pollock (2004) 32 Cal.4th 1135, 1183 [“We have approved victim

impact testimony from multiple witnesses who were not present at the murder

scene and who described circumstances and victim characteristics unknown to

defendant. [Citation.]”)

When defendant murdered Sandy Olsson in 1986, victim impact evidence

was inadmissible in capital cases. But, prior to defendant‟s 1992 trial, the United

States Supreme Court in Payne v. Tennessee, supra, 501 U.S. 808, overruled its

earlier decision in Booth v. Maryland (1987) 482 U.S. 496, and held that the

Eighth Amendment “erect[ed] no per se bar” to victim impact evidence. (Payne,

at p. 827.) Thereafter, in People v. Edwards (1991) 54 Cal.3d 787 (Edwards), we

revisited the issue of victim impact evidence in light of Payne and held, contrary

to our earlier decision in People v. Gordon (1990) 50 Cal.3d 1223, that “factor (a)

of section 190.3 allows evidence and argument on the specific harm caused by the

defendant, including the impact on the family of the victim.” (Edwards, at

p. 835.) “Payne and Edwards apply even where, as here, the murder occurred


while Booth, supra, 482 U.S. 496, was in effect. [Citation.]” (People v. Stitely,

supra, 35 Cal.4th at p. 565.)

Defendant urges us to overrule Edwards, supra, 54 Cal.3d 787; we decline.

Next, defendant contends that admission of victim impact evidence violates the

Eighth and Fourteenth Amendments. Clearly, in light of Payne it does not.

Defendant‟s suggestion that Payne has been undermined by subsequent decisions

of the United States Supreme Court is a claim that should be addressed to that

body. Defendant contends further that admission of victim impact evidence in this

case violated ex post facto principles and due process because the crime was

committed pre-Payne. Assuming defendant did not forfeit this objection by failing

to raise it below, we have previously rejected it and do so again. (People v.

Roldan, supra, 35 Cal.4th at p. 732 [“applying the rule in Payne in a case where

the crime preceded that decision does not violate ex post facto principles”].)

Defendant also contends that admission of victim impact evidence not limited to

facts or circumstances known to the defendant is unconstitutional. Assuming

defendant did not forfeit this claim by failing to raise it below, we have rejected it.

(Bramit, supra, 46 Cal.4th at p. 1240; People v. Pollock, supra, 32 Cal.4th at

p. 1183.) We do so again.

Defendant also argues the victim impact testimony in this case was unduly

prejudicial and inflammatory. Specifically, he complains about testimony from

the victim‟s family that she died before her children could give her grandchildren;

that she had been an “anchor” to her son; that, following Olsson‟s murder, her

daughter had become fearful for her personal safety and of emotional intimacy;

that her sister had feared news of his daughter‟s death might have given her father

a heart attack; her sister‟s guilt at not having been with the victim when she died;

and her father‟s belief that Shirley Olsson had been tortured.


“This court previously has rejected arguments „that victim impact evidence

must be confined to what is provided by a single witness [citation], that victim

impact witnesses must have witnessed the crime [citation], and that such evidence

is limited to matters within the defendant‟s knowledge.‟ ” (People v. McKinnon,

supra, 52 Cal.4th at p. 690.) Indeed, the “People are entitled to present a

„ “complete life histor[y] [of the murder victim] from early childhood to

death.” ‟ ” (People v. Garcia (2011) 52 Cal.4th 706, 751.) The People are also

entitled to present the full impact of the victim‟s death on his or her survivors.

(See, e.g., People v. Scott (2011) 52 Cal.4th 452, 466-467, 494-495 [victim‟s

father testified he could not stop thinking about what the victim endured before

she died; victim‟s sister, brother and brother-in-law testified to their residual fear

following the murder]; People v. Booker (2011) 51 Cal.4th 141, 193 [testimony by

victim‟s mother about her suicide attempt and hospitalizations “was relevant

victim impact evidence”]; People v. Cowan (2010) 50 Cal.4th 401, 485 [testimony

by victims‟ daughter and granddaughter about what they imagined the last

moments of victims‟ life were like “was relevant to the witnesses‟ own states of

mind and the effect that the murders had upon them personally, and therefore was

permissible victim impact testimony”; People v. Ervine (2009) 47 Cal.4th 745,

793 [victim impact testimony is not limited “to expressions of grief” but

“encompasses the spectrum of human responses, including anger and

aggressiveness [citation], fear [citation], and an inability to work [citation]”].) We

have carefully reviewed the victim impact evidence in this case. Far from being

unduly inflammatory and prejudicial, “[t]he evidence admitted here was „typical‟

of the victim impact evidence „we routinely have allowed.‟ [Citation.]” (People

v. Scott, supra, 52 Cal.4th at p. 494.)

Finally, defendant contends that the victim impact evidence should have

been excluded because of inadequate notice. “As here relevant, section 190.3


provides that in a capital case the prosecution may present evidence in aggravation

only if it has given the defendant „notice of the evidence to be introduced . . .

within a reasonable period of time as determined by the court, prior to trial.‟

[Citation.] To be timely, the notice must be given „before the cause is called to

trial or as soon thereafter as the prosecution learns the evidence exists.‟ [Citation.]

To be sufficient as to content, the notice must afford the defendant „ “a reasonable

opportunity to prepare a defense to the allegation[].” ‟ [Citation.]” (People v.

Mayfield, supra,14 Cal.4th at p. 798.)

Here, the prosecution filed its notice of intent to present victim impact

testimony before the trial began. The notice listed the names of all the family

members — the victim‟s father, sister, daughter and son — who ultimately

testified, as well the names of coworkers who did not. The trial court conducted a

pretrial hearing on the admissibility of victim impact in light of the then recent

Payne and Edwards decisions. Later, in denying defendant‟s motion to exclude

the evidence on grounds of inadequate notice below, the trial court ruled: “[T]here

is no evidence on the victim impact issue anticipated that was not already adduced

at the guilt phase or is not within the range of evidence that is to be reasonably

anticipated based on the notice given with respect to the death and loss of the

family member . . . .” The court referenced its pretrial ruling, noting: “That

matter was discussed at the commencement of the guilt phase of this trial, and the

record is clear as to how the court addressed or was prepared to address that issue

as the trial progressed.”

Defendant nonetheless claims the court erred. He asserts the prosecution‟s

notice was “inadequate because it did not contain any information as to the

substance of the proposed victim impact testimony.” Not so. Given the

prosecutor‟s notice of intent to call family members, the extensive pretrial

discussion about the scope of permissible victim impact evidence, and the actual


testimony of two of those witnesses at the guilt phase, defense counsel could not

have failed to understand that the prosecutor intended to call the victim‟s family

members to testify to their relationships with her and the effect of her death on

them. This was sufficient to afford the defense an opportunity to prepare a

defense. No further specification of what the evidence would be was required.

(See People v. Ledesma (2006) 39 Cal.4th 641, 734.)

M. Prosecutorial misconduct: victim impact evidence

1. Defendant’s claims that the prosecutor elicited inadmissible

testimony and violated court orders; the court erred by denying defendant’s
two mistrial motions

Defendant contends the prosecutor engaged in misconduct during the

examination of his victim impact witnesses by eliciting testimony the trial court

had specifically ruled inadmissible. He also asserts that the prosecutor violated

the trial court‟s order that the prosecutor ask only leading questions of his victim

impact witnesses to avoid having them stray into areas the court had ruled

inadmissible. As a result, he contends, he was compelled to repeatedly object to

the prosecutor‟s examination of his witnesses. Finally, he claims the trial court

erred when it denied his two motions for mistrial. Defendant‟s claims are without


As noted, at the time of defendant‟s 1992 trial, victim impact evidence had

only recently become admissible in capital trials as a result of the Payne and

Edwards decisions. (Payne, supra, 502 U.S. 808; Edwards, supra, 54 Cal.3d

787.) Thus, as the trial court observed, regarding the scope of permissible victim

impact evidence there “are very few guidelines in this area,” and it “is a very

difficult area for everybody.” Before the penalty phase began, the prosecutor

made a lengthy offer of proof as to every victim impact witness he intended to

call. Afterwards, both sides argued their position regarding the proper scope of


such evidence. Defense counsel argued for a narrow interpretation of the case

law: “[I]t‟s a simple statement of my sister, my daughter, my mother is gone, and

I miss her very much . . . . A quick glimpse into the victim‟s life, I think that‟s the

key phrase again.”

The prosecutor disagreed. He cited the observation in Payne that it was

unfair to allow virtually limitless evidence in mitigation but to bar the state from

then “ „either offering a glimpse of the life which the defendant chose to

extinguish or demonstrating the loss to the victim‟s family and to society which

[has] resulted from the defendant‟s homicide.‟ ” The prosecutor continued,

“[Payne] doesn‟t limit it to well, I love this person and I miss him, as counsel

would have it . . . . [¶] [T]hat is not what is envisioned by the cases, and that is not

the type of thing that would offset the type of mitigating evidence that the defense

can get in.”

Ultimately, the trial court ruled admissible evidence of the victim‟s

“profession and such details about her job, which have already been received [in

the guilt phase] . . . that she was a caring individual which seems to be implicit[] in

the information previously admitted, and that she looked forward to retirement;

[¶] Inadmissible victim impact evidence would include . . . evidence as to her

military service, leisure time pursuits and financial sacrifices which may have

been made toward retirement.”

As to the impact of her death on her family, the court ruled admissible “that

a family member enjoyed a close relationship with the victim and that she was

loved and is missed, that the reality of her death was brought home while packing

belongings and making other arrangements, that a son or daughter married and had

children after her death, the impact of the loss of a child on a parent as a general

matter, and the loss of her companionship during her anticipated retirement, but

not the specific plan or details of that travel.” Also ruled admissible was “the


impact [on her survivors] of the nature of her [violent] death here as distinguished

from” the impact had she died an “accidental death or [from] natural causes . . .

and the impact of having to tell a family member of the victim‟s death; [¶]

Inadmissible victim impact evidence . . . would include a family member‟s

difficulty with alcohol abuse, fear for personal safety or that of another family

member, guilt feelings because of failure to contact the victim . . . on the night of

her death, a sense of suspicion as to other people, or testimony about what the

victim‟s thoughts may have been immediately prior to her death.”30

In view of the possibility a witness might wander into excluded areas, the

trial court told the prosecutor, “I would be inclined to allow you some latitude

with regard to leading questions in this area subject, of course, to objection.”

Later, when defense counsel asked the court to instruct the prosecutor to ask

leading questions, the court told the prosecutor only “to utilize that form of

question whenever possible, and be as specific as possible with respect to the

questions that are articulated.” The prosecutor pointed out that the problem with

asking leading questions “where we get „yes‟ and „no‟ answers” was that a

question‟s form “has a significant impact on the evidence itself,” while “the reason

you ask open-ended questions or direct forms of questions is so that the

information comes from the witness not from me.” The court responded by again


We have subsequently held admissible certain victim impact evidence that

the trial court excluded in this case, including, for example, a survivor‟s feelings
of fear (People v. Scott, supra, 52 Cal.4th at p. 494), testimony by survivors about
how they imagined the victim‟s last moments of life (People v. Cowan, supra, 50
Cal.4th at p. 485), and testimony about a survivor‟s substance abuse following the
victim‟s murder (People v. Panah, supra, 35 Cal.4th at p. 495). Of course, we
cannot fault the trial court for not anticipating these decisions, but that we have
concluded such evidence is admissible must certainly factor into any prejudice


“requesting that you ask leading questions whenever possible, subject to objection

by the other side.”

“ „It is, of course, misconduct for a prosecutor to “intentionally elicit

inadmissible testimony.” [Citations.]‟ [Citation.] Such misconduct is

exacerbated if the prosecutor continues to elicit such evidence after defense

counsel has objected.” (People v. Smithey (1999) 20 Cal.4th 936, 960.) However,

a prosecutor cannot be faulted for a witness‟s nonresponsive answer that the

prosecutor neither solicited nor could have anticipated. (People v. Valdez (2004)

32 Cal.4th 73, 125.)

We turn to the specific instances where defendant claims the prosecutor

elicited inadmissible testimony.

a. Sandra Walters

Defendant contends the prosecutor attempted to elicit inadmissible

evidence from the victim‟s daughter, Sandra Walters, when he asked her, “Tell us

about your mother.” Defense objected on grounds the question called for a

narrative. The court sustained this objection and directed the prosecutor to ask

more specific questions. The prosecutor asked a series of questions about

Walters‟s relationship with her mother before the next defense objection, when he

asked Walters, “When you say that she made you the person you are today, what

did you mean by that?” The objection was again that the question called for a

narrative; it was sustained.

The defense next objected when the prosecutor asked about Olsson‟s

“thoughts” regarding the possibility of Walters having children. Walters replied,

“I have one guilt, that I never provided my mom with a grandchild, something she

always wanted.” The defense successfully objected as to form and asked that the

answer be stricken. Another objection was sustained when the prosecutor asked


Walters whether her mother‟s death had had any impact on Walters‟s relationship

with other people. The objection was sustained as to form. The prosecutor then

asked essentially the same question. After Walters answered that her mother‟s

death had had “a big impact on me being intimate with anybody,” the prosecutor

asked, “Why is that?” The defense objected, without stating grounds; the

objection was sustained.

The prosecutor asked a series of questions about how Walters learned of

her mother‟s death. When she answered that she was told by a detective about an

“accident” involving her mother, the prosecutor asked, “How did that make you

feel?” The defense objected, stating no grounds; the objection was sustained.

Walters‟s boyfriend drove her to her mother‟s house. When asked whether her

boyfriend told her “anything about what happened to your mother,” the defense

objected on hearsay grounds; the objection was sustained on that ground and also

on relevance. The prosecutor asked whether, on the drive to her mother‟s house,

she received any information about what had happened to her mother. She

replied, “Yes, [my boyfriend] told me he had called and talked to the detective.”

The defense objected to the form of the question and on hearsay grounds. The

objection was sustained and the answer stricken.

Following a series of questions about the impact of her mother‟s death on

her, Walters was asked, “What are the hardest times of the year for you?” The

defense objected, without stating grounds; the objection was sustained. The court

next sustained an objection to a question by the prosecutor about how her mother‟s

earlier cancer diagnosis had “[brought] home her mortality to you.”

In addition to these questions, defendant contends the prosecutor

improperly elicited testimony from Walters about the fear she continued to

experience as a result of her mother‟s death and about her plans to have children.

Defendant failed to object to these questions; his claim of misconduct is forfeited.


(People v. Valdez, supra, 32 Cal.4th at p. 122.)31 Moreover, as noted, we have

since held that testimony by a victim impact witness about the fear he or she has

continued to experience as a result of the murder is permissible. (People v. Scott,

supra, 52 Cal.4th at pp. 466-467, 494.) Similarly, Walters‟s testimony that she did

not want to have children because she was afraid they, too, might have to

experience the same loss of their mother as she had related to the lasting effects on

her of her mother‟s murder. Thus, the testimony was not impermissible

By our count, five of the defense‟s objections to Walters‟s testimony were

to the form of the prosecutor‟s questions because they called for a narrative

response. This would be misconduct only if we agreed with defendant that the

prosecutor was under orders to ask only leading questions, but he was not.

Initially, the court simply told the prosecutor it would allow him some latitude to

ask leading questions because such questions are ordinarily not permitted on direct

examination. (Evid. Code, § 767, subd. (a)(1); see People v. Williams (2008) 43

Cal.4th 584, 631 [“Evidence Code section 767 vests a trial court with broad

discretion to decide when to permit the use of leading questions on direct

examination”].) Even after the defense complained the prosecutor was not asking

leading questions, the court directed him to use leading questions “whenever

possible.” This left the prosecutor with some discretion as to the form of his

questions. Under these circumstances, we decline to find misconduct simply


Citing People v. Hill (1998) 17 Cal.4th 800, defendant contends that his

failure to object to any question he cites as misconduct should be excused. In Hill,
we concluded that the prosecutor‟s egregious misconduct, coupled with the trial
court‟s hostility toward defense objections, rendered such further objections futile.
“Under these unusual circumstances, we conclude [defense counsel] must be
excused from the legal obligation to continually object, state the grounds of his
objection, and ask the jury be admonished.” (Id. at p. 821.) Those “unusual
circumstances” are not present in this case where defense repeatedly and
successfully objected. Thus, Hill does not excuse defendant‟s failure to object to
questions he now contends were misconduct.


because the prosecutor elected to ask direct or open-ended questions. Defendant‟s

remedy in such cases was to object to the form of the question. As we have seen,

he did so vigorously and the court sustained his objections.

On four occasions the defense objected without any stating any grounds.

Ordinarily, the failure to object specifically on grounds of misconduct and to seek

an admonition forfeits the claim unless an admonition would not have cured the

harm. (People v. Valdez, supra, 32 Cal.4th at p. 125.) In each case, defendant‟s

objection was sustained. Defendant fails to demonstrate that the remedy was


Moreover, defendant‟s remaining objections were also sustained. Again,

defendant fails to demonstrate that this remedy was inadequate.

We realize, of course, that defendant‟s position is that the prosecutor had a

pattern of eliciting inadmissible evidence, but no such pattern emerges. In

context, the prosecutor was attempting to elicit then novel victim impact evidence

consistent with the trial court‟s guidelines for admissible testimony through a

combination of leading and open-ended questions, as he was permitted to do. The

defense, which understandably wanted to narrow the amount of victim impact

evidence the jury heard, objected to some questions. The trial court appropriately

ruled on those objections. There was no prosecutorial misconduct in the

prosecutor‟s examination of the victim‟s daughter.

b. Elbert “Tripp” Walters III

Defendant contends the prosecutor elicited inadmissible testimony from the

victim‟s son. The first instance he points to is Tripp Walters‟s response to a

question about going into his mother‟s house after her death. In passing, he

mentioned dolls she had collected when “she was stationed over in Japan and

Korea in the service.” The trial court specifically excluded testimony regarding


the victim‟s military service, but defendant failed to object on this ground and the

claim of misconduct is forfeited. In any event, the prosecutor neither solicited nor

could have anticipated the reference to military service, and there was no

misconduct. (People v. Valdez, supra, 32 Cal.4th at p. 125.)

Defendant objected, on relevance grounds, to two questions about the

number of times the witness and his family moved when he was a child. The

objections were sustained. While irrelevant, the questions did not broach areas of

victim impact evidence ruled inadmissible by the trial court. Thus, even assuming

the claim is not forfeited by reason of defendant‟s failure to object on the grounds

he now asserts, there was no misconduct.

Defendant claims the prosecutor asked questions of this witness deemed

objectionable by the trial court during Sandra Walters‟s testimony. Those

objections, however, were to the form of the question, not their content. We have

rejected defendant‟s claim the prosecutor committed misconduct by sometimes

asking open-ended questions. In any event, to the extent defendant‟s objections

were sustained, he suffered no prejudice.

Finally, defendant cites as misconduct the witness‟s response to a question

regarding his feelings about his mother‟s murder as opposed to how he would

have felt had she died of natural causes. The witness replied, in part, “For her to

be murdered, I cannot understand that . . . . [I]t‟s absolutely asinine.” Defendant

failed to object, forfeiting the claim. In any event, the testimony was within the

guidelines of admissible testimony set forth by the trial court, which included “the

impact of the nature of her death here as distinguished from accidental death or

natural causes . . . .”


c. Jan Dietrich

Defendant cites as evidence of prosecutorial conduct the prosecutor‟s open-

ended questions of Jan Dietrich, the victim‟s sister. Again, we decline to find

misconduct based on the form of the prosecutor‟s questions. Defendant contends

further that the prosecutor “made no attempt to control the witness,” requiring the

defense to object, and that the witness “had to be interrupted numerous times by

the defense or the trial court when she gave nonresponsive or narrative answers to

questions.” A witness‟s nonresponsive answer cannot be the basis of a claim of

prosecutorial misconduct. (People v. Valdez, supra, 32 Cal.4th at p. 125.)

Defendant contends that the prosecutor impermissibly questioned Dietrich

about her father‟s reaction to his daughter‟s death. He claims he “objected to this

line of questioning.” Not so. He objected to a single question at the end of the

prosecutor‟s examination of the witness on this point and his objection — on

relevance grounds — was sustained. His claim of misconduct is, therefore,

forfeited and to the extent his one objection was sustained, even before the witness

answered, he was not prejudiced. Moreover, we have since held that “[t]here is no

requirement that family members confine their testimony about the impact of the

victim‟s death to themselves, omitting mention of other family members.”

(People v. Panah, supra, 35 Cal.4th at p. 495.) Nor did defendant object to the

next question and answer he claims involved misconduct, about the events

surrounding the departure of Dietrich and her father from Kansas after she

informed him of the victim‟s death. The claim is therefore forfeited. In any event,

the testimony was not impermissible because it dealt with the impact of the

victim‟s death on her sister and father, who found themselves waiting at the airport

to fly to California at the same time Sandy Olsson had been expected to arrive in

Kansas for a family celebration.


Defendant refers us to series of questions the prosecutor asked at the end of

his examination of Dietrich involving the impact of her sister‟s death on her. To

one question —“Given the manner in which she died, are there any thoughts that

constantly reoccur?” — the witness responded, “The terror.” A defense objection

was sustained. To a question about how the impact on the witness was different

because the victim was murdered rather than dying from cancer or accidentally,

Dietrich replied in part, “[B]ut to worry about her last fifteen or twenty minutes, as

I do all the time, when I wasn‟t there to help her.” An objection was sustained. A

few questions later, the prosecutor asked, “Has the manner of her death impacted

you in such a fashion that when you think of your sister, you think of what was

happening to her the last fifteen minutes of her life.” The witness answered, “Yes.

And the guilt that I wasn‟t there to help her.” The defense objected that the

question called “for a „yes‟ or „no‟ answer, and I would ask anything after the

„yes‟ gets stricken.” The court granted the request. When the prosecutor then

asked whether the witness thought about what was going through the victim‟s

mind the last fifteen minutes of her life, the defense objected that “this is

specifically something the court ruled on.” The objection was sustained and the

witness‟s answer — “Yes” — was stricken. The court also sustained and struck

the witness‟s answer “Yes” to the prosecutor‟s question about whether the witness

thought about “at what point [the victim‟s] spirit actually left her body.”

Defendant contends these questions violated the court‟s specific prohibition

against questioning witnesses about the victim‟s thoughts just before her death.

The defense subsequently moved for mistrial. The prosecutor explained that he

had not been attempting to elicit from the witness the victim‟s last thoughts, but

whether the witness thought about her sister‟s last moments. Although defendant

derides this explanation, in fact we have subsequently held that testimony by

survivors about what they imagined were a victim‟s last moments of life is


“relevant to the witnesses‟ own states of mind and the effect that the murders had

upon them personally, and therefore [is] permissible victim impact testimony.”

(People v. Cowan, supra, 50 Cal.4th at p. 485.) Here, the court concluded that the

prosecutor had not deliberately disregarded its order by asking these questions.

The court also noted it had sustained the defense‟s objection, not because the

prosecutor had elicited impermissible evidence, but “because of the possibility of

overlap into areas” that were prohibited. Accordingly, the court found no

misconduct in this line of questions. Nor do we. For this reason, we also reject

defendant‟s claim that the trial court abused its discretion when it denied his

mistrial motion on this ground. (People v. Dement (2011) 53 Cal.4th 1, 39-40

[“ „[T]he trial court is vested with considerable discretion in ruling on mistrial

motions . . .‟ ”].)

Finally, defendant cites questions as to which objections were sustained on

relevancy and hearsay grounds. He fails to demonstrate the remedy was


d. Clifford Sandberg

Defendant focuses on two questions asked of the victim‟s father: when the

prosecutor asked about details of travel plans Sandberg had made with his

daughter and when he asked, “With regard to losing [Sandy] has her death been

different in its effect on you, given how she died[?]” The court sustained the

defense‟s objection to the first question before Sandberg could respond. To the

second question, Sandberg answered, “Yes, sir. Yes, sir, because I know she was

tortured to death.” The trial court sustained the defense‟s objection, struck the

answer and directed the jury to disregard it. Nonetheless, Sandberg‟s reference to

torture became the basis for the defense‟s renewed motion for a mistrial. The

defense complained that the prosecutor‟s question had violated the trial court‟s


order on the scope of victim impact evidence. The trial court denied the motion,

observing that the question posed to Sandberg was within the court‟s ruling and

“also an area that was taken up with the previous witnesses.” Furthermore, the

court noted it had immediately sustained the objection, struck the answer and

admonished the jury to disregard it.

Since the defense objection to the first question was sustained before

Sandberg could answer it, defendant was not prejudiced even if the prosecutor‟s

question strayed into an area prohibited by the court about the “specific plan or

details of her travel.” The prosecutor‟s second question involved the difference in

impact between a murder and a death by accident or natural causes, which was

permissible. He did not solicit, nor could he have anticipated, Sandberg‟s

testimony about torture, and thus committed no misconduct. (People v. Valdez,

supra, 32 Cal.4th at p. 125.)32 Moreover, the trial court did not abuse its

discretion by denying defendant‟s motion for mistrial when it found, in effect, that

sustaining the objection, striking the testimony and directing the jury to disregard

it cured any prejudice. (People v. Dement, supra, 53 Cal.4th at pp. 39-40.)

In conclusion, the record does not support defendant‟s claim that the

prosecutor engaged in a pattern of misconduct in his presentation of victim impact

evidence. Accordingly, we reject the claim.

2. Defendant’s claim of misconduct in opening statement and closing


Defendant contends that the prosecutor committed pervasive and

prejudicial misconduct during his opening statement and closing arguments.


In the trial court and on appeal, defendant insinuates that the prosecutor

may have been aware Sandberg and his other witnesses would stray into areas the
trial court had banned and did nothing to prevent them from doing so. This is
mere conjecture unsupported by the record.


a. Opening statement

“ „The purpose of the opening statement is to inform the jury of the

evidence the prosecution intends to present. . . .‟ [Citation.]” (People v. Farnam

(2002) 28 Cal.4th 107, 168.) Defendant contends the prosecutor‟s opening

statement failed to present such an overview of his evidence but, instead, dwelt on

guilt phase evidence and instructions the jury might later hear and misled the jury

as to its task.

Defendant failed to object to the two statements by the prosecution that he

claims misled the jury as to the purpose of the penalty phase — “what brings us

here today is for you to decide whether this man should die for what he did to

[Sandy] Olsson or spend the rest of his life in prison,” and “in this phase you will

hear evidence to make that determination as to what the penalty should be: death

in the gas chamber or . . . by lethal injection . . . or life without possibility of

parole.” Therefore, his claim on appeal is forfeited. (People v. Clark, supra, 52

Cal.4th at p. 960.)

Even were his claim not forfeited we would find no misconduct. We deem

these remarks to have been no more than colloquial, shorthand descriptions of the

purpose of the penalty phase. (See People v. Millwee (1998) 18 Cal.4th 96, 138

[no misconduct by prosecutor who referred to killing as an “execution” because

“the challenged term simply served as a shorthand means of describing an

intentional and premeditated murder”].) As the prosecutor made clear in his

further remarks, the jury‟s verdict was to be based on its assessment of the

evidence in aggravation and mitigation. Thus, contrary to defendant‟s claim, his

first remark did not mislead the jury about its duty to make an individualized

assessment of defendant and his second remark did not steer them toward

irrelevant considerations of the method of execution.


The chief factor in aggravation upon which the prosecution relied at the

penalty phase was the circumstances of the crime. (§ 190.3, factor (a).) Such

circumstances include guilt phase evidence relevant to “the immediate temporal

and spatial circumstances of the crime,” as well as such additional evidence, like

victim impact evidence, that “ „surrounds materially, morally, or logically‟ the

crime.” (Edwards, supra, 54 Cal.3d at p. 833.) Thus, it was not misconduct for

the prosecutor to have referred to the guilt phase evidence relevant to the

circumstances of the crime as well as the victim impact evidence he intended to

produce. Similarly, we find no misconduct in the prosecutor‟s brief reference to

the court‟s prior instruction to the jury about the purpose of the penalty phase or

his even briefer reference — cut off by objection — about further instructions the

jury could expect.

b. Closing argument re circumstances of the crime

Defendant claims that the prosecutor‟s arguments regarding the aggravating

factor of the circumstances of the crime was intended to inflame and prejudice the

jury because it was based on facts not in evidence. “The prosecutor should not, of

course, argue facts not in evidence.” (People v. Osband (1996) 13 Cal.4th 622,

698.) However, “the prosecutor has a wide-ranging right to discuss the case in

closing argument. He has the right to fully state his views as to what the evidence

shows and to urge whatever conclusions he deems proper. Opposing counsel may

not complain on appeal if the reasoning is faulty or the deductions are illogical

because these are matters for the jury to decide.” (People v. Lewis (1990) 50

Cal.3d 262, 283.) “ „When [a prosecutorial misconduct] claim focuses on

comments made by the prosecutor before the jury, a court must determine at the

threshold how the remarks would, or could, have been understood by a reasonable

juror. [Citations.] If the remarks would have been taken by the juror to state or


imply nothing harmful, they obviously cannot be deemed objectionable.‟

[Citation.]” (People v. Cox (2003) 30 Cal.4th 916, 960.)

Defendant summarizes his claim of misconduct as follows: “The

prosecutor urged the „enormity‟ of the crime was aggravated beyond the basic fact

of burglary murder and assault with intent to commit rape by arguing over and

over that [defendant] forced Ms. Olsson at knifepoint to remove her clothes, that

she made an intentional decision not to fight back because she hoped he would

only rape her, that he told her he would not hurt her if she complied with his

wishes, that she bargained with him to spare her life, that she did not resist or

struggle, that he tortured her by playing with the knife on her body, that he

„actually‟ and brutally raped her, and that she was still alive when he left her

bedroom to go through her purse. No evidence was introduced to support any of

these assertions.”

In order to assess this claim, we briefly review the relevant evidence. The

only signs of struggle in Olsson‟s house were two photographs askew on the wall

in the front entryway and a photograph that had fallen to the ground in the master

bedroom. There were grapes on the living room floor; the same kind of grapes

were later found in the victim‟s purse. Otherwise, according to Sergeant

Robertson, “[n]othing really appeared out of order” in the house. Specifically,

apart from the fallen photograph, there was no sign of a struggle in the victim‟s

bedroom. The victim‟s pajamas were found on the bed beneath her body. While

there was no evidence of semen or of forcible sexual intercourse, both the

pathologist and the criminalist testified that the absence of such evidence did not

mean the victim had not been forced to have sexual intercourse before her death.

Defendant admitted to police that he had sexual intercourse with the victim, but

said he did not ejaculate, a statement consistent with the criminalist‟s view that

there would be no semen had there been no ejaculation. The pathologist testified


that the victim may have survived as long as an hour after she was stabbed and

strangled. The victim was attacked with a knife that defendant admitted to police

belonged to him. The victim‟s purse was removed and tossed into a pond in the

golf course behind the victim‟s house. A receipt in the victim‟s kitchen indicated

she had received $3.95 in change from a purchase earlier that evening but no

money was found in her purse or in the house.

From our review of the prosecutor‟s argument regarding the circumstances

of the crime evidence, we conclude that the bulk of the complained-of remarks

were based on permissible inferences and conclusions he drew from this evidence.

Specifically, we conclude the prosecutor did not commit misconduct when he

argued, at various points, that the victim submitted to defendant because, by doing

so, she may have hoped or believed she would not be killed. This was an arguable

inference from the absence of evidence of a struggle in the victim‟s bedroom,

coupled with defendant‟s admission he had sexual intercourse with the victim and

the testimony of the pathologist and criminalist that the absence of semen or

traumatic injury did not mean the victim had not been forced to have sexual

intercourse before her death. It was a matter for the jury to decide whether the

inference was faulty or illogical and, as defendant acknowledges, the court

repeatedly reminded the jurors that argument was not evidence. Similarly, we

reject defendant‟s claim that the prosecutor committed misconduct when he

argued that, as the victim lay dying, defendant did not assist her but was going

through her purse looking for money.33 This was an arguable inference from the


In connection with this argument, defendant complains of the prosecutor‟s

remark: “Another aggravating factor is his callousness at the scene and his failure
to show any remorse at the scene of that crime. Totally callous. [In]different to
what she was going through, totally and completely.” Defendant failed to object
to this remark, thus forfeiting his claim on appeal. In any event, it was a fair
comment on the evidence that defendant acted in a callous manner, which was
relevant to the circumstances of the crime. We do not believe his brief


fact that grapes found on the living room floor were also found in the victim‟s

purse when it was ultimately recovered, defendant‟s statement that he saw

“Doubting Thomas” rummaging through her purse in the living room after she had

been stabbed, that the $3.95 in change the victim had received on the evening

before she was murdered was not found in her purse or anywhere in her house, and

that the victim may have lived as long as an hour after she was attacked.

Regarding the victim‟s state of mind and the hopes she may have entertained for

herself and her family, these comments were also drawn from victim impact

evidence about her relationships with her children and father and her

postretirement plans.

We also reject defendant‟s claim that it was misconduct for the prosecutor

to urge the jury to put itself in the victim‟s place and to use a chart to illustrate that

point. To the extent defendant failed to object to this line of argument, his claim is

forfeited. In any event, such argument is not misconduct. “We repeatedly have

held that it is proper at the penalty phase for a prosecutor to invite the jurors to put

themselves in the place of the victims and imagine their suffering. [Citations.]”

(People v. Slaughter (2002) 27 Cal.4th 1187, 1212.) Nor do we deem it

misconduct that the prosecutor argued “maybe [defendant] is an animal.”

“Argument may include opprobrious epithets warranted by the evidence.

[Citation.]” (People v. Zambrano, supra, 41 Cal.4th at p. 1172 [prosecutor

permissibly characterized the defendant as a “ „dangerous sociopath‟ ” and

“ „especially evil‟ ”].) Given the circumstances of the crime, the prosecutor‟s use

of the epithet was “within the range of permissible comment regarding egregious

conduct on defendant‟s part.” (People v. Thomas (1992) 2 Cal.4th 489, 537

characterization of callousness as an aggravating factor, which he did not repeat,
could have in any way misled the jury about the relevant factors it was required to


[prosecutor‟s characterization of defendant as “ „mass murderer rapist,‟ ”

“ „perverted murderous cancer‟ ” and “ „walking depraved cancer‟ ” permissible].)

Defendant also complains that the prosecutor committed misconduct when

he discussed the characteristics of a knife. “[W]ith a knife you point. You can run

it down the side of a face. You can play with buttons with a knife. You can put

the knife in places that are terribly intimidating and threatening . . . .” “With a

knife you can indicate you can do more than simply kill. You can maim. You can

disfigure.” Contrary to defendant‟s claim, the prosecutor did not argue that

defendant engaged in these actions with knife before killing the victim —

although, as the Attorney General correctly points out, the injuries he ultimately

inflicted on her as he stabbed her 23 times could be fairly characterized as

mayhem and disfigurement — but made these remarks in the context of his

contention that the victim submitted without resistance hoping to survive. In any

event, even if these remarks did fall just beyond the pale, they did not constitute

the kind of misconduct for which reversal is required under either federal or state


c. Closing argument re other matters

Defendant perceives misconduct in a number of other remarks made by the

prosecutor in his closing and rebuttal arguments.

The prosecutor quoted Roger Tully‟s testimony, in which he said that

defendant‟s actions were “his responsibility.” The prosecutor commented: “It‟s

his responsibility. What is it that was ticking in Roger that he sees in that

defendant, that he doesn‟t say, „spare my brother.‟ ” Defense counsel objected

that the remark “ask[ed] the jury to speculate.” The trial court reminded the jury

that statements of counsel are not evidence and “you are not to speculate about

evidence that was not presented to you.” Assuming the prosecutor‟s comment was


objectionable as calling for speculation, defendant‟s objection was, in effect,

sustained and the jury admonished not to speculate. Defendant fails to

demonstrate that the trial court‟s swift action was inadequate.

Next, defendant complains about comments by the prosecutor regarding the

prospect of defendant being sentenced to life without possibility of parole. Some

of these arguments were directed at future dangerousness. For example, after

referring to evidence of defendant‟s jailhouse altercations, the prosecutor asked,

“What does that tell you about this defendant and his future violence or his

violence in the future? . . . [W]hat happens when he gets a life sentence.” Defense

counsel objected. The trial court reminded the jury that statements of counsel

were not evidence and that it would instruct the jury on the law after argument.

The prosecutor continued in this vein, arguing, “you have to keep [defendant] on

death row where he is isolated [from] all the other prisoners, because [if] he gets

on the main line with all the other prisoners, with his life sentence, he has an

American Express Platinum card to do violence at will. Because what can they do

to him? They can‟t give him another day, he‟s got life. And some other prisoner,

some other guard, some hospital or some jail prison [sic] nurse, or social worker

does something that he doesn‟t like, and he acts out violently, hits, maims, hurts,

he can do it at will.” The defense did not renew its objection.

Assuming the claim is not forfeited by defendant‟s failure to renew his

objection, we find no misconduct. “[W]e have repeatedly declined to find error or

misconduct where argument concerning a defendant‟s future dangerousness in

custody is based on evidence of his past violent crimes admitted under one of the

specific aggravating categories of section 190.3. [Citations.]” (People v. Ray

(1996) 13 Cal.4th 313, 353.)

Here, the prosecutor‟s argument was based on evidence of other criminal

activity admitted pursuant to section 190.3, factor (b). Defendant maintains that


this evidence of his two jailhouse altercations was trivial, but the prosecutor was

entitled to advance a different view of the evidence. Nor was the argument

misconduct because the prosecutor‟s reference to “death row” was unsupported by

evidence “concerning the level of isolation afforded death row prisoners compared

to life prisoners.” It is a matter of common knowledge that inmates on death row

are separated from the general prison population; indeed, the very term “death

row” signifies as much.

Nor was the argument misconduct because the prosecutor gave as examples

of people a life prisoner might encounter “a prison nurse, or social worker.” In

context, the meaning of the argument was simply that, in the general population, a

violent inmate might have access to potentially more victims than an inmate on

death row. We do not believe the jury would have understood the example to have

been a request to the “jury to impose death so that [defendant] would not again

hurt or maim a prison nurse or social worker, where there was no evidence he had

ever done so before.” (See People v. Cox, supra, 30 Cal.4th at p. 960 [when the

claim of prosecutorial misconduct is based on remarks to the jury “ „a court must

determine at the threshold how the remarks would, or could, have been understood

by a reasonable juror.‟ ”].)

Next, defendant argues that the prosecutor‟s remarks about the kind of

existence a life prisoner might experience in prison constituted irrelevant and

impermissible comments on the conditions of confinement. We do not understand

them as such, nor would have a reasonable juror. The prosecutor‟s references to

resources and amenities to which a life inmate might have access — food, shelter,

access to medical care, phone calls, television, radio or stereo, films — was in

service of his argument that, in view of the crime, life in prison was “too good for

[defendant].” We have held that a prosecutor may “assert that the community,

acting on behalf of those injured, has the right to express its values by imposing


the severest punishment for the most aggravated crimes,” so long as those

comments were “not inflammatory,” did not “seek to invoke untethered passions,”

and did not “form the principal basis of his argument.” (People v. Zambrano,

supra, 41 Cal.4th at p. 1179.) “This case, the prosecutor was at pains to suggest,

was one of those that deserved such severe punishment. No misconduct

occurred.” (Ibid.)34

Defendant next complains that the prosecutor misstated the law. First, he

cites the prosecutor‟s argument that any sympathy the jurors might harbor had to

be directed at defendant rather than his family. The argument was not improper.

(People v. Bennett, supra, 45 Cal.4th at p. 601 [“The impact of a defendant‟s

execution on his or her family may not be considered by the jury in mitigation”];

People v. Smithey, supra, 20 Cal.4th at p. 1000 [“ „sympathy for a defendant‟s

family is not a matter that a capital jury can consider in mitigation . . . .‟ ”].)

Defendant contends the prosecutor improperly urged the jury to disregard

evidence in mitigation in the course of his argument that the circumstances of the

crime alone were sufficient to warrant the death penalty. We have carefully


Defendant complains that the prosecutor‟s passing reference to the

availability of conjugal visits for life inmates was improper because, at the time of
his trial, the availability of such visits for life prisoners was a privilege, not a right,
and it has since been rescinded. If, at the time of trial, a life prisoner might be
granted the privilege, the reference was not improper, nor does a later revocation
of the privilege render it so. Similarly, the prosecutor‟s comparison between
defendant‟s life in prison and the predicament of the homeless and the
unemployed does not render his argument misconduct; it simply reinforced his
point that, in light of the factors in aggravation, defendant did not “deserve hope
. . . [or] the simple pleasures of life. The only thing he deserves is your verdict of
death and that‟s what justice demands.” Finally, to the extent that the prosecutor‟s
brief speculation that a life prisoner could entertain the hope of a cataclysmic
event that might free him — “an earthquake and the jail falls apart” — the trial
court sustained defendant‟s objection and instructed the jury to disregard it. We
presume the jury followed the trial court‟s instruction. (People v. Martinez (2010)
47 Cal.4th 911, 957.)


reviewed the complained-of remarks and, while they are no model of clarity, we

fail to see how a reasonable juror could possibly have understood the prosecutor to

be urging him or her to disregard the evidence in mitigation. (See Donnelly v.

DeChristoforo (1973) 416 U.S. 637, 647 [“[A] court should not lightly infer that a

prosecutor intends an ambiguous remark to have its most damaging meaning or

that a jury, sitting through a lengthy exhortation, will draw that meaning from the

plethora of less damaging interpretations”]; see People v. Cox, supra, 30 Cal.4th at

p. 960.) For the same reason we reject defendant‟s claim that the prosecutor‟s

remarks about the absence of postcrime remorse “was a backhanded and highly

effective means of misleading the jury into thinking the absence of remorse was an

aggravating factor . . . .” The point of the prosecutor‟s argument was that there

was no evidence of remorse for purposes of mitigation. Indeed, he said just that:

“You haven‟t heard any evidence that this defendant has demonstrated any

remorse, so it‟s not present as a mitigating factor.” There was no misconduct.

(People v. Ochoa (2001) 26 Cal.4th 398, 449 [“The prosecutor properly argued

defendant‟s lack of remorse showed the potential mitigating factor was

inapplicable”].) We also reject defendant‟s claim that the prosecutor misled the

jury, and thus lowered the prosecution‟s burden of proof, by suggesting that

defendant‟s uncharged rape of the victim was a section 190.3, factor (b)

consideration rather than a factor (a) consideration. Indeed, the prosecutor

explained to the jury that the rape was to be considered a circumstance of the

crime and not uncharged criminal activity: “We don‟t double dip. We‟re talking

about something else, other acts beyond . . . what he did to Sandy Olsson, other

acts of violence, and then whether or not he had any felony convictions.”

Finally, defendant contends the cumulative effect of prosecutorial

misconduct requires reversal. We have found either no impropriety by the


prosecutor or minor impropriety from which defendant could not have sustained

any prejudice. Accordingly, we reject his assertion of cumulative prejudice.

N. Biblical and religious references in closing arguments

Defendant contends that the prosecutor impermissibly “relied on the Bible,

religious law and biblical authority to convince the jurors to return a death

verdict.” Defendant devotes considerable ink to what were relatively brief and

minor digressions in the prosecutor‟s lengthy argument. These remarks occupy

perhaps three pages in two arguments that exceed 120 pages in the reporter‟s

transcript. Some were in rebuttal to religiously themed arguments by the defense.

As we explain, defendant‟s claims are forfeited, but even if they were not, he fails

to demonstrate that any arguable impropriety was prejudicial.

Defendant failed to object to the prosecutor‟s references to the Bible or to

his use of a chart quoting biblical passages in support of the death penalty. 35

“Because we cannot assume that an objection and admonition would have been

futile or ineffective, [he has] forfeited [his] appellate claim[s] of misconduct.”

(People v. Letner and Tobin (2010) 50 Cal.4th 99, 201 (Letner and Tobin).) In

any event, we conclude that certain of the remarks defendant now finds

objectionable were not misconduct. In the other instances, even assuming, for the

sake of argument, that the prosecutor overstepped proper bounds, we find that


The chart, captioned “The Bible Sanctions Capital Punishment,” contained

four quotations: “Who shed the blood of man by man shall his blood shed, for in
his image did God make man,” attributed to Genesis, chapter 9, verse 6; “He that
smiteth a man so that he die, shall be surely put to death,” attributed to Exodus,
chapter 21, verse 12; “And if he strike him w[ith] an instrument of iron so that he
die, he is a murderer: the murderer shall surely be put to death,” attributed to
Numbers, chapter 35, verse 16; and “And you shall not take reparations for the
soul of a murderer who deserves to die but he shall be put to death,” attributed to
Numbers, chapter 35, verse 31.


defendant suffered no prejudice warranting reversal. (Ibid.; People v. Zambrano,

supra, 41 Cal.4th at p. 1170 (Zambrano).)

In his opening argument, while apparently displaying the chart, the

prosecutor argued that defendant had done nothing “decent” in his life to merit

compassion. By contrast, he pointed to Roger Tully‟s religious conversion:

“You‟ve heard Roger tell us about what a difference in his life his religious

conversion had. Have you heard anything like that about the defendant? Roger

said he‟s different now, there‟s been this intervention. You know Roger puts it in

the terms of, but for this woman, I wouldn‟t have been converted to God, but the

reality is it takes two to tango. [¶] Now, you can hit somebody over the head all

day long, but if they‟re not willing, if they‟re not receptive, it‟s not going to []


The prosecutor then briefly turned to the issue of religion and what role, if

any, it should play in the jury‟s determination of defendant‟s sentence. He

reminded the jury that religious belief “is not something that is to be used in

aggravation at all, what the Bible or the Koran or anything has to say.”

Nonetheless, he argued, “one thing that is universal throughout all religions is this

idea that murderers are to be punished, and that the death penalty is sanctioned and

that it is appropriate.” Addressing any juror who might have last minute religious

scruples about imposing the death penalty, the prosecutor argued that “the Bible

does, in fact, sanction capital punishment.” To illustrate his point, he quoted the

scriptural passages on his chart: “ There is one that is just so right on point: [¶]

„He who strikes him with an instrument of iron so that he die, he is a murderer,

and the murderer will surely be put to death. And you shall take no reparations for

the soul of a murderer who deserves to die, but he shall be put to death. [¶] He

who sheds the blood of man by man, shall his blood be shed. For in his image did

God make man. His blood or his life will be shed by man.‟” He concluded, “I just


want to clear the air there that religion does not stand in the way, and that‟s not

supposed to enter into your evaluation.” The prosecutor devoted the rest of his

lengthy argument to demonstrating why in this case the factors in aggravation

outweighed any factors in mitigation and justified imposition of the death penalty.

Following the prosecutor‟s opening argument, defendant‟s counsel, Mr.

Strellis, gave his closing argument. As part of his argument, Strellis putatively

quoted the New Testament: “Jesus at one point in time said, „Hate the sin, but

love the sinner.‟ ” He also argued that, contrary to the prosecutor‟s assertion that

all religious traditions condone the death penalty, “I don‟t think Buddhism does.”

In an effort to counter the prosecutor‟s use of quotations from the Old Testament,

he cited the Talmud on capital punishment, arguing that it was an infrequently

used punishment under Jewish law.

The prosecutor then gave a rebuttal argument, followed by Defense

Cocounsel Wagner‟s closing argument. Wagner also elected to briefly address the

prosecutor‟s reference to religious themes and imagery. He noted that in the Old

Testament, God did not execute Cain for taking the life of his brother, Abel, but

“banished him.” He pointed out that major religious dominations “have taken

rigorous stands against the death penalty.”

The prosecutor began his rebuttal argument by briefly responding to

Strellis‟s remarks questioning religious support for the death penalty.36 In the

course of those comments, he distinguished between biblical law and the secular

law the jurors were required to apply. “The Old Testament, when God spoke, he

made it very clear. Very clear. Murderers shall die,” but “when man gets into the

act he starts softening up the rules a little bit and that‟s okay.” The prosecutor


It is not clear from the record or the briefing whether the biblical quotation

chart was still on exhibit or at what point it may have been taken down. The
prosecutor did not refer to it during his rebuttal argument.


pointed out that secular law provided defendant with various due process

protections including counsel and the two-tiered trial procedure and that, in the

penalty phase, the law required the jurors to weigh the factors in aggravation

against those in mitigation. He explained: “And then we get to this [penalty]

phase where we start talking about aggravating and mitigating and he gets to bring

in anything that could cause you to have some sympathy that shows something

about his character. His record that causes you to say that the aggravating

circumstances don‟t substantially outweigh the mitigating and that the proper

penalty is not death. You have to do all that.”

Somewhat later in his rebuttal argument, the prosecutor alluded briefly to

the crucifixion of Jesus and the two thieves who were crucified on either side of

him. He said: “And we‟ve labeled them the good thief and the bad thief. Why?

They‟re both thieves. But what makes the difference is one of them repented, one

of them said, „Forgive me Lord, I believe in you.‟ The other one just, you know,

cussed at Christ, turned his nose, whatever. Christ said to the good thief, you

know, you‟ll be with me in heaven. He was saved. The good thief was saved.

The bad thief wasn‟t. [¶] Well, the moral of that story was that the good thief was

not cut down off that cross until he was dead and his soul was saved in heaven.

But Caesar law [sic] was completed. And the good thief died along with the bad


We have held “[i]t is misconduct for a prosecutor to argue that biblical

authority supports imposing the death penalty, because it suggests to the jurors

that they may follow an authority other than the legal instructions given by the

court. [Citation.]” (People v. Cook (2006) 39 Cal.4th 566, 614.) “On the other

hand, we have suggested it is not impermissible to argue, for the benefit of

religious jurors who might fear otherwise, that application of the death penalty

according to secular law does not contravene biblical doctrine [citations], or that


the Bible shows society‟s historical acceptance of capital punishment.”

(Zambrano, supra, 41 Cal.4th at p. 1169; original italics.) Because the line

between permissible argument and misconduct in this area is difficult to draw, we

have often focused on whether, assuming misconduct for purposes of argument

only, the defendant was prejudiced. (See, e.g. Letner and Tobin, supra, 50 Cal.4th

at p. 202 [Even if the prosecutor‟s argument overstepped proper bounds reversal is

not required where his comments “ „ “were part of a longer argument that properly

focused upon the factors in aggravation and mitigation” ‟ ”]; Zambrano, supra, 41

Cal.4th at p. 1170 [same]; People v. Viera (2005) 35 Cal.4th 264, 298 [same].)

With this background in mind, we turn to defendant‟s specific claims. He

asserts that the prosecutor‟s comparison of defendant with his brother, who

underwent a religious conversion, suggested to the jury that defendant was

“unworthy of mercy because he had neither repented nor converted.” We

disagree. The prosecutor‟s point was that defendant, unlike his brother, had not

availed himself of any opportunity to change his life. A rational jury could not

have understood otherwise. Accordingly, we find no misconduct.

Next, defendant maintains that the prosecutor‟s use of biblical authority,

buttressed by his chart, in his opening argument was intended to “give the jurors

the strength to impose the death penalty.” Initially, however, the prosecutor

explicitly directed his comments to the juror who might be troubled by religious

scruples that would prevent the juror from imposing the death penalty. To the

extent the prosecutor‟s argument merely admonished that a juror‟s religious

beliefs need not stand in the way of imposing death, the argument was

permissible. (People v. Letner and Tobin, supra, 50 Cal.4th at p. 201.)

Defendant contends, however, that by using a chart containing biblical

quotations supporting the death penalty, which he then orally repeated, the

prosecutor went beyond arguing that the Bible permits the death penalty by


suggesting that in this particular case the Bible mandated it. However, even if we

assume there was misconduct, defendant was not prejudiced.

These remarks occupy fewer than two pages in an argument that spans over

a hundred pages of reporter‟s transcript and went on for a day and half. Thus, they

were a minor point in an extensive argument devoted primarily to a discussion of

why the aggravating factors outweighed any in mitigation, circumstances which

we have found to render any improper religious argument nonprejudicial. (People

v. Viera, supra, 35 Cal.4th at p. 298.) The remarks also came at the beginning of

the argument which would have further diminished their impact. (Cf. People v.

Letner and Tobin, supra, 50 Cal.4th at pp. 202-203 [“the biblical reference in the

present case came at the end of the prosecutor‟s argument and therefore might

have been somewhat more prominent in the minds of the jurors than if it had fallen

somewhere in the middle of the argument”].) Thus, regardless of any impropriety

we find no basis for reversal.

The prosecutor briefly returned to the issue of religious support for the

death penalty in his rebuttal argument, in response to claims made by defendant‟s

counsel, Strellis, that called into doubt biblical support of the death penalty.

Defendant finds impropriety in these remarks as well, particularly in the

prosecutor‟s statement that in the Old Testament, “when God spoke, he made it

very clear. Very clear. Murderers shall die.” But, having made that statement,

the prosecutor immediately contrasted the law of the Old Testament with the

secular law. This law, he made clear, required the jurors to first determine the

defendant‟s guilt, then reach a penalty determination only after listening to and

balancing the evidence in aggravation and mitigation.

Even if the prosecutor overstepped by referring to the “very clear” Old

Testament rule, we are satisfied that reversal is not required. These remarks

occupy a half a page in a 20-page argument. Additionally, by immediately


explaining that secular death penalty law was different and must prevail, the

prosecutor negated any prejudicial effect his initial comments might have had.

Moreover, the prosecutor did not have the last word. That went to Cocounsel

Wagner, whose plea for defendant‟s life was the last thing the jury heard before it

was instructed. For these reasons, we conclude that, even assuming the

prosecutor‟s Old Testament remarks crossed the line, defendant suffered no

reversible harm.

We reach the same conclusion with respect to the prosecutor‟s reference to

the crucifixion scene later in his rebuttal argument. The remarks came at the

beginning of the argument and consist of two paragraphs of transcript. They were

therefore not the main focus of the prosecutor‟s argument, nor did he return to this

imagery or make any further allusions to biblical or religious support for the death

penalty as an appropriate punishment for murder. Moreover, in an analogous

circumstance, we found no misconduct and no prejudice. (People v. Lenart (2004)

32 Cal.4th 1107, 1128-1130 (Lenart).)

In Lenart, a penalty phase defense witness apparently involved in a prison

ministry repeatedly referred to the Bible and God during direct examination. On

cross-examination, the prosecutor, after eliciting from the witness that God

forgave one of the thieves crucified along with Jesus, asked, without objection:

“ „Didn‟t stop the punishment, did he? . . . [T]he crucifixion?‟ ” The witness

answered, “ „No.‟ ” On rebuttal, defense counsel questioned the witness about

Cain‟s punishment for the murder of Abel, to which the witnessed replied: “ „It

was life.‟ ” (Lenart, supra, 32 Cal.4th at p. 1128.) Regarding these exchanges, we

observed: “Here, both sides asked questions of Stewart, a witness who described

his job as teaching men about Jesus. That questioning highlighted biblical

passages in which one wrongdoer was punished for life and one was punished by

death. [¶] We emphasize that this is not a case of improper prosecutorial


argument. Even in such a case, we have considered whether the defense itself

relied on biblical text in assessing prejudice. [Citation.]” (Id. at p. 1130.)

Here, as in Lenart, the prosecutor adverted to the “good thief” story in

rebuttal to defense arguments that attempted to undercut biblical support for the

death penalty. Thus, Lenart lends support to our conclusion that the prosecutor‟s

brief allusion to the crucifixion, even assuming misconduct, was not prejudicial.

Accordingly, we find no basis for reversal in the prosecutor‟s references to

biblical and religious authority.37

O. Future dangerousness

Defendant contends that the trial court erred by permitting the prosecutor to

argue that defendant posed a threat of future danger. “[T]he prosecutor may not

present expert evidence of future dangerousness as an aggravating factor, but he

may argue from the defendant‟s past conduct, as indicated in the record, that the

defendant will be a danger in prison. [Citations.]” (People v. Zambrano, supra,

41 Cal.4th at p. 1179.) In this case, the prosecutor‟s argument was grounded in

evidence of defendant‟s jailhouse altercations. As such, it was permissible and the

trial court did not err in overruling defendant‟s objection to it. Defendant‟s

argument on appeal merely rehashes his assertion that the trial court erred in

permitting the prosecutor to present the evidence of the jailhouse altercations and

that the prosecutor‟s argument was inflammatory. We have rejected both claims.


We also reject defendant‟s claim that the prosecutor invoked the principle

of “an eye for an eye” as a justification for imposing the death penalty in this case.
The prosecutor told the jury that our system had “evolved beyond the rule of
[Hammurabi] talking about an eye for an eye,” and went on to discuss notions of
proportionality in crime and punishment. Nowhere in this brief discussion do we
perceive an invocation of scriptural authority as a basis for the death penalty.


P. Prosecutor’s use of charts

Defendant contends that the trial court erroneously permitted the prosecutor

to use six charts during his closing argument that defendant characterizes as

“inflammatory.” “The six charts were: Chart 1. „Factors for Consideration‟; Chart

2. „Battery‟; Chart 3. „Aggravating Factor, Increases Guilt/Enormity/Injurious

Consequences‟; Chart 4. „What Didn‟t You Hear About Richard Christopher

Tully‟; Chart 5. „What Have You Heard about Richard Christopher Tully‟; and

Chart 6. „The Bible Sanctions Capital Punishment.‟ ”

The Attorney General contends that defendant has forfeited his claim as to

any chart other than charts No. 3 and No. 4 because those were the only charts as

to which defendant lodged specific objections. We agree.

The prosecutor displayed the charts at the beginning of his closing

argument without having shown them to the court or defense counsel. Defense

counsel objected: “The [prosecutor] is using charts and presenting them to the

jury without showing them to us first.” Following the noon break, the court and

counsel met outside the presence of the jury to discuss the issue. Defense counsel

lodged his “objection to some of the entries” on the charts, but the only specific

objections he made were to entries on chart No. 4, captioned, “What Didn‟t You

Hear About Richard Christopher Tully.” The defense objected to various

statements on that chart, including: “That this violence is out of character for

him”; “He‟s remorseful, sorry for what he did”; “That he is not violent in a prison

setting”; “That he has done one decent thing in his life, that he found God and

repented.” Counsel argued, “[T]hese are all items that would be appropriate as

items in mitigation, and the inference is that the absence of these items are [sic],

therefore, aggravation” and also potentially constituted Griffin error.

The trial court ordered the prosecutor to strike the four statements set forth

above. It otherwise overruled the defense objections without prejudice.


Defense counsel later also objected to an entry on chart No. 3 (“. . .

Increases Guilt/Enormity/Injurious Consequences”) about whether the victim

attempted to bargain with defendant. The trial court sustained the objection and

admonished the jury that argument of counsel was not evidence.

We agree that defendant has forfeited any claim other than the specific

objections he made to charts No. 3 and No. 4.38 (People v. Riggs (2008)

44 Cal.4th 248, 324 [failure to object to chart used at trial on specific ground

advanced on appeal forfeits the claim].) Moreover, defendant fails to show with

any specificity how the prosecutor‟s use of the other charts was improper and thus,

even if his claim was not forfeited, he demonstrates neither error nor prejudice.

As to chart No. 3, defendant‟s objection was sustained and his requested

admonition was given to the jury. We presume the jury understood and followed

the court‟s admonition. (People v. Riggs, supra, 44 Cal.4th at p. 299.)

As to chart No. 4 defendant repeats the claim that listing items the jury did

not hear about defendant in mitigation amounted to an argument that they

constituted factors in aggravation. The prosecutor made no such argument to the

jury. Indeed, in that part of the argument illustrated by the chart, he stated that the

absence of a mitigating factor “doesn‟t become an aggravating factor, it‟s not

something that aggravates it.” Moreover, the trial court specifically instructed the

jury, “The absence of a statutory mitigating factor does not constitute an

aggravating factor.” We presume the jury understood and followed that

instruction. (People v. Jones (1997) 15 Cal.4th 119, 168.)


Defendant suggests that his counsel may have lodged additional objections

during the unreported bench conference involving his objection to the entry on
chart No. 3. But neither of his attorneys corrected the court when, in
memorializing that conference, it referred to a single objection. We presume,
therefore, that the court‟s recollection was accurate.


Q. Jury query re life without possibility of parole

After it began deliberations, the jury sent a note to the court that asked for

the “legal definition of life in prison without possibility of parole.” The day after

the request was received, the trial court memorialized the discussion it had had

with counsel about the query. “The court and counsel have conferred with regard

to the issue of a response to this matter, and it has been agreed the court will

respond to this inquiry as follows: For the purpose of determining the appropriate

sentence for this defendant, you should assume that either the death penalty or

confinement in state prison for life without the possibility of parole would be

carried out. You are not to consider or speculate as to any other possibility or any

circumstance that might preclude either of the two penalties from being carried

out.” The jury was summoned and this response was read to it twice.

Citing Simmons v. South Carolina (1994) 512 U.S. 154, defendant contends

that the trial court‟s response was inadequate because it did not inform the jury

that life without possibility of parole “meant that [defendant] would not be eligible

for parole if so sentenced.”

Defense counsel agreed to the trial court‟s response to the jury‟s request.

Accordingly, defendant may not now complain that the response was inadequate.

(See People v. Rodrigues (1994) 8 Cal.4th 1060, 1193 [“Inasmuch as defendant

both suggested and consented to the responses given, the claim of error has been

waived”].) Here as elsewhere defendant attempts to avoid forfeiture by asserting

the record is incomplete because the bench conference at which the response was

agreed upon was unreported and only memorialized the following day. But

defense counsel did not object when the court stated that “it has been agreed” the

court would respond as it did. On this record, defendant‟s assertion that there may

have been an unreported objection fails.


The claim is also meritless. In Simmons, where the South Carolina jury

was told simply that its choice was between a death sentence and life

imprisonment, the high court held that “prohibiting the defendant from informing

the jury that „life imprisonment‟ meant life in prison without the possibility of

parole resulted in a violation of his right to due process of law.” (People v.

Smithey, supra, 20 Cal.4th at p. 1008 (Smithey).) “[W]e have distinguished

Simmons on the ground that under California‟s statutory scheme, the jury

expressly is informed of the defendant‟s ineligibility for parole by the instruction

that it must choose between death or „confinement in the state prison for life

without the possibility of parole‟; an instruction that such a sentence „will

inexorably be carried out‟ would be incorrect.” (Id. at p. 1009.) Such an

instruction is incorrect because it ignores both the superior court‟s power to

“reduce a sentence of death on review under section 190.4, subdivision (e) . . .

[and] the Governor‟s power of commutation.” (People v. Thompson (1988) 45

Cal.3d 86, 130.)

If the court would have erred by initially instructing the jury that the

sentence would inexorably be carried out, it would likewise have erred by doing so

in response to the jury‟s query. Thus, we find no error.

Defendant argues that, unlike in Smithey, the jury in this case was not

expressing concern about the appellate process. (Smithey, supra, 20 Cal.4th at

1007 [jury asked trial court, “ „If the death penalty is overthrown — would

[defendant] get life or life without parole‟ ”].) Implicit in the jury‟s request for a

“legal definition” of life without possibility of parole was a question about

whether some future eventuality might result in defendant‟s earlier release. The

trial court‟s response, directing the jury to desist from any such speculation, was

correct. (Id. at p. 1009 [“[T]he court properly may address such confusion by


instructing the jury to assume that whatever penalty it selects will be carried

out”],original italics.)

R. Allocution

Defendant contends that the trial court denied his various federal

constitutional rights and violated section 1200 when it rejected his request for

allocution. Under that section, the trial court must ask a defendant, before

imposing sentence, whether there is “any legal cause to show why judgment

should not be pronounced against him.” (§ 1200.)39 “[W]e have repeatedly

rejected similar arguments. [Citations.] [¶] We have generally held that capital

and noncapital sentences are not similarly situated for purposes of equal

protection. [Citation.] With regard to allocution specifically, we have explained

that noncapital sentencees have no other right to express themselves about the

appropriate sentence, while capital defendants may take the stand and testify on

that issue.” (People v. Zambrano, supra, 41 Cal.4th at pp. 1182-1183.)

Moreover, in People v. Evans, supra, 44 Cal.4th 590, we held that

noncapital defendants do not have a right to allocute under section 1200. Any

statement they wish to make in mitigation “must be made under oath and be

subject to cross-examination.” (Evans, at p. 598.) Thus, in addition to the

noncomparability of the two classes of defendants, the basic premise of

defendant‟s equal protection claim — noncapital defendants have a right denied to

capital defendants — is no longer valid. In Evans, we also observed, with respect

to the defendant‟s due process claim, that permitting a noncapital defendant to


“In legal parlance, the term „allocution‟ has traditionally meant the trial

court‟s inquiry of a defendant as to whether there is any reason why judgment
should not be pronounced. [Citations.] In recent years, however, the word
„allocution‟ has often been used for a mitigating statement made by a defendant in
response to the court‟s inquiry.” (People v. Evans (2008) 44 Cal.4th 590, 592,
fn. 2, italics omitted.)


make a sworn statement subject to cross-examination “affords the defendant a

meaningful opportunity to be heard and thus does not violate any of the

defendant‟s rights under the federal Constitution.” (Id. at p. 600.) This is also true

of capital defendants who, in the penalty phase, “[are] allowed to present evidence

as well as take the stand and address the sentencer.” (People v. Robbins (1988)

45 Cal.3d 867, 889.)

We decline defendant‟s invitation to revisit our settled authority on this

point and we are not persuaded by his remaining arguments.

S. Absence of remorse

Defendant contends that the trial court erred when it allowed the prosecutor

to argue that defendant had not demonstrated remorse. Though cast as a claim of

trial court error, the argument also includes a criticism of our decisions allowing

the prosecutor to argue lack of remorse as a circumstance of the crime for

purposes of section 190.3, factor (a). Defendant argues that the prosecutor‟s

argument impermissibly converted lack of remorse into a distinct factor in

aggravation. Finally, he asserts the trial court failed to give the jury proper

instruction regarding the absence of remorse. His claims are without merit.

By way of background, the prosecutor‟s argument regarding remorse was

double pronged. First, he argued that defendant had failed to produce evidence of

remorse and thus the jury could not consider it as a mitigating factor. Second, he

argued that defendant‟s failure to show remorse at the scene of the crime could be

considered in connection with the aggravating factor of the circumstances of the

crime under section 190.3, factor (a). Both arguments were permissible.

“The presence of remorse is mitigating under the 1978 death penalty law.

[Citation.] Its absence, however, is generally not aggravating.” (People v.

Ashmus (1991) 54 Cal.3d 932, 992.) Nonetheless, “[c]onduct or statements at the


scene of the crime demonstrating lack of remorse may be consider[ed] in

aggravation as a circumstance of the capital crime under section 190.3, factor (a).

[Citation.]” (People v. Pollock, supra, 32 Cal.4th at p. 1184.) “Overt

remorselessness is a statutory sentencing factor . . . because factor (a) of section

190.3 allows the sentencer to evaluate all aggravating and mitigating aspects of

the capital crime itself. Moreover, there is nothing inherent in the issue of remorse

which makes it mitigating only. The defendant‟s overt indifference or callousness

toward his misdeed bears significantly on the moral decision whether a greater

punishment, rather than a lesser, should be imposed. [Citation.]” (People v.

Gonzalez (1990) 51 Cal.3d 1179, 1232, original italics.)

Defendant criticizes our decisions permitting consideration of absence of

remorse as within the purview of section 190.3, factor (a) because it is not a

separate statutory factor in aggravation under the 1978 death penalty law. He also

asserts that permitting the prosecutor to argue the absence of remorse interferes

with the jury‟s duty to weigh relevant factors to determine the appropriate penalty

and renders the death penalty law unconstitutional. We are not persuaded by

defendant‟s arguments and adhere to the reasoning of our decisions cited above.

Defendant argues that, because our decisions have failed to provide a definition of

“remorselessness” or “absence of remorse,” “the defense is provided no notice of

what facts may draw an argument that defendant lacked remorse.” Neither phrase

has a specialized or technical meaning so as to warrant a particular definition.

Moreover, the facts that might show either remorse or absence of remorse will

necessarily vary from case to case and any attempt at a global definition would be


We reject defendant‟s related claim that a special instruction is required

directing the jury how to assess and consider the absence of remorse. Because the

phrase has no technical or specialized meaning, an instruction as to its meaning


and what weight it should or should not be given is unnecessary. In this case,

there was no danger the jury would consider the absence of remorse to be a factor

in aggravation in and of itself because it was specifically instructed that the

absence of a statutory mitigating factor did not constitute an aggravating factor.

The prosecutor made the same point when he told the jury the absence of remorse

could be considered only in the context of factor (a), the circumstances of the

crime. We are not persuaded that the instructions as given, in light of the

prosecutor‟s argument, were insufficient to direct the jury‟s consideration of

evidence of absence of remorse as an element of section 190.3, factor (a).

Defendant asserts that the prosecutor impermissibly argued that remorse

was a “condition precedent” that must be fulfilled before the jury could “grant

sympathy or mercy to [defendant].” We have examined the passage about which

defendant complains.40 In context, the prosecutor simply and correctly stated that

no evidence of remorse had been shown and, therefore, it was not a mitigating

factor. After the defense objected to these remarks, the prosecutor added: “The

absence of remorse, after the commission of a crime, after the crime has been

completed, cannot be used as an aggravating factor.” He reiterated that “you

haven‟t heard any evidence that this defendant has demonstrated any remorse, so

it‟s not present here.” Viewing the argument as a whole, we do not believe a

reasonable juror would have subscribed to the meaning that defendant seeks to

impose upon it. (People v. Cox, supra, 30 Cal.4th at p. 960.)


“You know, what is in the law, we call it a condition precedent, something

that has to happen before another thing follows, a prerequisite, something that you
would expect to see in existence before you give sympathy, before you grant
mercy, remorse, the presence of remorse, the fact that you‟re sorry for what you
have done can be a mitigating factor, but it‟s not present here. It is not present in
this case.”


Defendant asserts further that the argument constituted an improper

comment on defendant‟s failure to testify, in violation of Griffin v. California,

supra, 380 U.S. 609. The prosecutor, however, did not refer to defendant‟s failure

to testify. (People v. Keenan (1988) 46 Cal.3d 479, 509 [rejecting claim of Griffin

error where prosecutor did not refer to defendant‟s failure to testify].) A

reasonable juror would have understood his reference to the absence of evidence

of remorse to be directed at the evidence the defense did present, not to testimony

it did not. (People v. Cox, supra, 30 Cal.4th at p. 960.)

Defendant contends the prosecutor “created” a factor in aggravation “based

on speculation as to [his] alleged lack of remorse at the time of the crime.” First,

defendant cites the prosecutor‟s statement: “Another aggravating factor is his

callousness at the scene and the failure to show any remorse at the scene of the

crime. Totally callous. [In]different to what she was going through, totally and

completely.” As we have already noted, the prosecutor‟s argument — overt lack

of remorse at the scene of the crime can be considered under section 190.3, factor

(a) — was proper. We have also concluded that the prosecutor‟s passing reference

to callousness as an aggravating factor could not have misled the jury about the

factors it was to consider. (See p. 116, fn. 33, ante.) Defendant also asserts the

prosecutor‟s argument that as the victim lay dying, defendant did not assist her but

was going through her purse looking for money was not supported by the

evidence. We have already rejected this claim and do so again. (See pp. 116-117,

ante.) In short, the prosecutor did not exceed the permissible bounds of argument

by asserting that defendant‟s conduct at the scene of the crime showed a lack of


Second, defendant argues that consideration of lack of remorse by the jury

was impermissible because he sought permission to allocute and express remorse.

He cites Johnson v. Mississippi (1988) 486 U.S. 578. In Johnson, the high court


reversed the defendant‟s death sentence because one of the three aggravating

circumstances on which the jury had relied, a New York conviction for assault

with intent to commit rape, was reversed by the New York courts after the

Mississippi Supreme Court had affirmed the death sentence. That court

subsequently denied the defendant postconviction relief. At the high court,

Mississippi contended that the defendant‟s sentence should be affirmed “because

when [the Mississippi Supreme Court] conducted its proportionality review of the

death sentence on petitioner‟s initial appeal, it did not mention petitioner‟s prior

conviction in upholding the sentence.” (Id. at p. 589.) The high court responded:

“[T]he error here extended beyond mere invalidation of an aggravating

circumstance supported by evidence that was otherwise admissible. Here the jury

was allowed to consider evidence that has been revealed to be materially

inaccurate.” (Id. at p. 590, fn. omitted.)

Johnson is inapposite. This is not a case where evidence before the jury in

its penalty determination was subsequently revealed to have been materially

inaccurate. There was no evidence of remorse because defendant elected not to

present any such evidence after his request to allocute was properly denied. The

prosecutor was entitled to comment on the record as it existed and the jury to rely

on that record.

Finally, defendant contends that the cumulative effect of the “absence of

remorse” errors requires reversal. As we have rejected all of defendant‟s claims of

error, there is no cumulative effect requiring reversal.

T. Cumulative error

Defendant contends the cumulative effect of error during the penalty phase

trial requires reversal. We have found that many of defendant‟s claims of errors

are forfeited because he failed to lodge a timely and specific objection below. To


the extent his claims were either not forfeited or we have discussed their merits

notwithstanding forfeiture, we have found either no error or no prejudice.

Accordingly, we reject his claim of cumulative error.

U. Automatic motion to modify death verdict

Defendant contends the trial court‟s ruling on his automatic motion for

modification of the death verdict suffered from multiple defects. His claim is

without merit.

“In ruling on defendant‟s application for modification of the verdict” under

section 190.4, subdivision (e), “the trial court must reweigh the evidence; consider

the aggravating and mitigating circumstances; and determine whether, in its

independent judgment, the weight of the evidence supports the jury‟s verdict.”

(People v. Brady (2010) 50 Cal.4th 547, 588.) “ „That is to say, [the judge] must

determine whether the jury‟s decision that death is appropriate under all the

circumstances is adequately supported.‟ ” (People v. Ashmus, supra, 54 Cal.3d at

p. 1006.) The trial court‟s role is not to make an independent and de novo penalty

determination. (People v. Weaver (2001) 26 Cal.4th 876, 989.) “In ruling on an

automatic motion to modify a death verdict, a trial court need not recount details

of, or identify, all evidence presented in mitigation or aggravation. [Citation.]

The trial court‟s only obligation [is] to provide a ruling that allows effective

appellate review.” (People v. Romero (2008) 44 Cal.4th 386, 427; see People v.

DePriest (2007) 42 Cal.4th 1, 56 [“The court need not describe „every detail‟ in

making its ruling.”].) On review, the trial court‟s ruling “is subject to independent

review, [but] we do not make a de novo determination of penalty.” (Brady,

50 Cal.4th at p. 588.)

The trial court‟s preliminary remarks demonstrate that it clearly understood

its role. The court quoted the statutory description of its function and cited


decisions by this court “requiring that the trial judge make an independent

determination whether [imposition] of the death penalty is appropriate in light of

the relevant evidence and the applicable law . . . . [¶] [W]hether in [the court‟s]

independent judgment the weight of the evidence supports the jury verdict.” The

court acknowledged further that “the only evidence which the court is to review is

that which was before the jury,” and, as part of the exercise of independent

judgment, “the judge is required to assess the credibility of the witnesses,

determine the probative force of the testimony and weigh the evidence.”

Based upon its “personal[]” and “careful[]” review of the penalty phase

evidence, including “its own personal notes relating to the evidence received” the

court made the following findings: (1) “the court . . . specifically agrees that the

jury‟s assessment that the circumstances in aggravation outweigh the

circumstances in mitigation is supported by the evidence”; (2) “the court agrees

with the implicit findings of the jury that the witnesses for the [P]eople were

credible and believable”; (3) “the court independently finds that the circumstances

surrounding the first degree murder of Shirley Olsson were vicious and pitiless.

The defendant brutally stabbed the victim numerous times and exhibited a high

degree of cruelty and callousness”; (4) “there is no question that the first degree

murder of Shirley Olsson was committed during the commission or attempted

commission of a burglary”; (5) “there were no circumstances which extenuated the

gravity of [defendant‟s] crimes whether or not they be a legal excuse”; (6) after

considering “the evidence from the members of the defendant‟s family who have

testified about his family history, activities and background . . . the court further

independently finds that none of the evidence offered by the defendant could in

any way be considered a moral justification or extenuation of his conduct”; (7)

“there are no factors in mitigation which will extenuate and mitigate the gravity of

the crimes committed,” specifically, “the capacity of the defendant to appreciate


the criminality of his conduct or to conform his conduct to [the] requirements of

law, was not impaired as a result of mental disease or defect or the effects of

intoxication,” “the offenses were not committed while the defendant was under the

influence of extreme mental or emotional distress,” and the defendant‟s age “is not

a mitigating factor.”

Further, the court considered and independently reviewed “any other

circumstance which could extenuate the gravity of the crime even though it is not

a legal excuse for the crime . . . any sympathetic or other aspect of defendant‟s

background[,] character or record . . . whether or not related to the offenses for

which he was on trial, and finds that there are none that extenuate the gravity of

the crimes or mitigate[] these offenses.” The court concluded that in its “personal

assessment” the “factors in aggravation outweigh those in mitigation,” and “the

evidence in aggravation is so substantial in comparison to the evidence in

mitigation that death is warranted and not life in prison without the possibility of


Defendant complains that the trial court failed to make written findings but,

to the contrary, the court complied with the statutory directive to “set forth the

reasons for his ruling . . . and direct that they be entered on the Clerk‟s minutes.”

(§ 190.4, subd. (e).) Defendant also complains that the court “failed to mention

any specific evidence . . . did not assess the credibility of the witnesses, determine

the probative force of the testimony, and weigh the evidence.” These claims are


Defendant asserts that the court‟s findings on aggravation were deficient

because its discussion of the circumstances of the crime “was so vague that it does

not provide any basis for a finding of evidence in aggravation.” The court

specified the manner of the murder — “the defendant brutally stabbed the victim

numerous times and exhibited a high degree of cruelty and callousness.” We have


no difficulty understanding the court‟s meaning or subjecting this finding to our

own review.

Similarly, we reject defendant‟s claim that the trial court‟s findings as to

mitigation were too vague to allow meaningful review. The court was not

required to set forth in detail all the evidence presented in mitigation or

aggravation. (People v. Romero, supra, 44 Cal.4th at p. 427.) We do not presume

that, because it did not refer to all evidence in mitigation, it did not review and

consider that evidence. Here, the trial court specifically referred to the testimony

of defendant‟s family members regarding his background, character and record,

evidence of intoxication, his age and any other circumstance, whether or not

related to the crime, and concluded that none of it “extenuate[d] the gravity of the

crimes or mitigate[d] these offenses.” Furthermore, as its statement shows, the

trial court applied the appropriate standard in its examination of the evidence in

mitigation, referring not simply to evidence related to the circumstances of the

crime, but to all evidence offered in mitigation. (See People v. Jennings (1988) 46

Cal.3d 963, 993-994.)

Defendant contends that the trial court failed to properly analyze as

mitigating factors his “disadvantaged” childhood, his lack of an extensive violent

criminal record, and his lack of prior felony convictions. As to the first factor, the

trial court specifically cited in its discussion of mitigation evidence the testimony

of defendant‟s family members about his background. Regarding the second

factor, defendant asserts that, because the trial court did not mention his jailhouse

altercations in its discussion of factors in aggravation, it must have discounted

them. From this premise, he reasons that the court should then have considered in

mitigation the absence of violent criminal activity by defendant. (§ 190.3, factor

(b) [sentencer to consider “[t]he presence or absence of criminal activity by the

defendant which involved the use or attempted use of force or violence or the


express or implied threat to use force or violence”].) But the evidence did not

show an absence of such conduct; rather, it demonstrated that defendant had

engaged in such conduct. The court did not err by failing to consider the absence

of such conduct as a factor in mitigation.

In any event, the court is not required to engage in “a rote recitation” of

every single factor in mitigation. (People v. Osband, supra, 13 Cal.4th at p. 727.)

“The trial court‟s mere failure to mention expressly all evidence presented in

mitigation . . . does not mean the trial court ignored or overlooked such evidence,

but simply indicates that the court did not consider such evidence to have

appreciable mitigating weight.” (People v. Samayoa (1997) 15 Cal.4th 795, 860.)

“[A]bsent an indication that [the court] „ “ignored or overlooked” ‟ [citation] the

mitigating evidence, we will not find error, and there is no such indication of such

an omission here.” (Osband, supra, 13 Cal.4th at p. 727.) The same analysis

applies to the trial court‟s failure to expressly mention the absence of felony


Next, defendant claims that the trial court‟s ultimate finding that the factors

in aggravation outweighed those in mitigation was deficient because it failed to

make an adequate record in support of this conclusion. We reject the assertion.

The trial court‟s lengthy statement demonstrated an understanding of its function

and the applicable legal standards, and was supported by references to the

evidence. It bears no resemblance at all to the summary statements we found

defective in the two cases on which defendant relies. (People v. Bonilla (1989) 48

Cal.3d 757, 800-801 [“ „I think the aggravating circumstances were there, that

they did exceed the mitigating circumstances‟ ” (italics omitted)]; People v.

Rodriguez (1986) 42 Cal.3d 730, 793 [“ „[T]he Court finds that the aggravating

circumstances outweigh the mitigating circumstances and that the weight of the

evidence supports the jury‟s verdict of death‟ ”].)


Defendant asserts that the trial court impermissibly relied on its own notes.

“In ruling on an application for modification of the verdict, the trial court may

only rely on evidence that was before the jury.” (People v. Navarette (2003) 30

Cal.4th 458, 526.) The trial court acknowledged this rule in its prefatory remarks.

The court‟s use of its notes did not violate this rules because, as the court

explained, those notes “relat[ed] to the evidence received.” Therefore, we reject

defendant‟s claim that the court‟s ruling was based on “undisclosed and unknown

information.” (See People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1065

[“Based on the record, the court consulted its private notes only for the purpose of

complying with the mandate of section 190.4, subdivision (e)”].)

Defendant contends that the trial court improperly relied on a probation

report. The court acknowledged that it had read the probation report but only for

purposes of sentencing defendant on the noncapital offenses and it specifically

stated that it “did not consider [the probation report] in its ruling on [the automatic

application].” Where a defendant is convicted of both noncapital and capital

offenses, it is “preferable” for the trial court “to defer reading the probation report

until after ruling on the automatic application for modification of verdict.”

(People v. Lewis, supra, 50 Cal.3d at p. 287.) Here, however, there is nothing in

the record to suggest the trial court did not limit consideration of that report to the

noncapital offenses.

Finally, defendant argues that the trial court failed to make an independent

determination that the death penalty was proper. His claim is belied by the trial

court‟s statement in which it stressed the independent nature of its review and its

conclusions. The fact that the court said it agreed with certain findings by the jury

— regarding witness credibility, for example — does not mean the court simply

deferred to those findings. Rather, in context, it is clear that such agreement was

the product of the court‟s independent review.


Accordingly, we conclude the trial court‟s ruling on the automatic

application for modification of verdict was conducted in the manner prescribed by

section 190.4, subdivision (e).

V. Death qualification voir dire

Citing the Fifth, Sixth, Eighth and Fourteenth Amendments to the federal

Constitution and article I of the California Constitution, defendant contends that

the death qualification of juries in California is unconstitutional. The claim is

forfeited by defendant‟s failure to raise it below. (People v. Howard (2010) 51

Cal.4th 15, 26 (Howard ).) It is also meritless.

“The death qualification process is not rendered unconstitutional by

empirical studies concluding that, because it removes jurors who would

automatically vote for death or for life, it results in juries biased against the

defense. [Citations.] [¶] Lockhart v. McCree (1986) 476 U.S. 162 . . ., which

approved the death qualification process, remains good law despite some criticism

in law review articles. [Citations.] „We may not depart from the high court ruling

as to the United States Constitution, and defendant presents no good reason to

reconsider our ruling[s] as to the California Constitution.‟ [Citation.] [¶] The

impacts of the death qualification process on the race, gender, and religion of the

jurors do not affect its constitutionality. [Citations.] Nor does the process violate

a defendant‟s constitutional rights, including the Eighth Amendment right not to

be subjected to cruel and unusual punishment, by affording the prosecutor an

opportunity to increase the chances of getting a conviction. [Citations.]

Defendant claims the voir dire process itself produces a biased jury. We have held

otherwise. [Citation.] [¶] Death qualification does not violate the Sixth

Amendment by undermining the functions of a jury as a cross-section of the

community participating in the administration of justice. [Citations.] Finally,


defendant‟s constitutional rights were not violated by the prosecutor‟s use of

peremptory challenges to exclude jurors with reservations about capital

punishment.” (Howard, supra, 51 Cal.4th at pp. 26-27; see People v. Taylor,

supra, 48 Cal.4th at pp. 602-603.) We adhere to the views expressed in these

decisions and reject defendant‟s claims.

W. Constitutional claims re death penalty scheme and statute

1. Jury unanimity

Defendant contends “the death penalty scheme” is unconstitutional because

“the jury was not required to find beyond a reasonable doubt that any aggravating

circumstance existed, that any unanimously proven aggravated circumstances

substantially outweighed the mitigating circumstances or that death was the

appropriate penalty.” Thus, he asserts, his rights under the Fifth, Sixth, Eighth and

Fourteenth Amendments to the federal Constitution and article I of the California

Constitution were violated.

“The jury need not make written findings, achieve unanimity as to specific

aggravating circumstances, find beyond a reasonable doubt that an aggravating

circumstance is proved (except for section 190, factors (b) & (c)), find beyond a

reasonable doubt that aggravating circumstances outweigh mitigating

circumstances, or find beyond a reasonable doubt that death is the appropriate

penalty. [Citations.] Moreover, the jury need not be instructed as to any burden of

proof in selecting the penalty to be imposed. [Citation.] The United States

Supreme Court‟s recent decisions interpreting the Sixth Amendment‟s jury trial

guarantee (Cunningham v. California (2007) 549 U.S. 270; United States v.

Booker (2005) 543 U.S. 220; Blakely v. Washington (2004) 542 U.S. 961; Ring v.

Arizona (2002) 536 U.S. 584; Apprendi v. New Jersey (2000) 530 U.S. 466) have

not altered our conclusions in this regard. [Citations].” (People v. Gonzalez and


Solis (2011) 52 Cal.4th 254, 333.) Defendant‟s arguments do not persuade us


2. Constitutional challenges to the death penalty statute

Defendant mounts various constitutional challenges to the death penalty

statute that we have consistently rejected. We do so again, finding:

a. “California‟s death penalty law „adequately narrows the class of

murderers subject to the death penalty‟ and does not violate the Eighth

Amendment.” (People v. Blacksher (2011) 52 Cal.4th 769, 848.)

b. “Section 190.3, factor (a), which allows the jury to consider, in choosing

the appropriate penalty, „[t]he circumstances of the crime of which the defendant

was convicted in the present proceeding and the existence of any special

circumstances found to be true pursuant to Section 190.1,‟ does not violate the

Eighth or Fourteenth Amendments to the United States Constitution merely

because those circumstances differ from case to case, or because factor (a) does

not guide the jury in weighing these circumstances. [Citations.]” (People v.

Farley (2009) 46 Cal.4th 1053, 1133.) “Section 190.3, factor (a), . . . is not

unconstitutionally vague, arbitrary or capricious. [Citations.]” (People v. Cowan,

supra, 50 Cal.4th at p. 508.)

c. “Factor (a) of section 190.3. . . does not impermissibly result in „double-

counting‟ or automatically create a bias in favor of a death verdict. [Citations.]”

(People v. Davis (2009) 46 Cal.4th 539, 627.)

c. “We also reject defendant‟s contention that the California death penalty

law violates the Eighth and Fourteenth Amendments because the jury is not

instructed as to any burden of proof in selecting the penalty to be imposed. As we

have explained, „[u]nlike the guilt determination, “the sentencing function is

inherently moral and normative, not factual” [citation] and, hence, not susceptible


to a burden-of-proof quantification.‟ [Citation.] The instructions as a whole

adequately guide the jury in carrying out their „moral and normative‟ function.”

(People v. Jenkins, supra, 22 Cal.4th at pp. 1053-1054.) The death penalty statute

is not unconstitutional because it fails “to impose a burden of proof on either

party, even if only proof by a preponderance of the evidence, or, alternatively, in

failing to instruct the jury on the absence of a burden of proof. [Citations].”

(People v. Vines (2011) 51 Cal.4th 830, 891.)

e. “Defendant contends that the California death penalty statute violates the

Eighth and Fourteenth Amendments of the United States Constitution because

certain procedural safeguards are lacking: juries are not required to make written

findings regarding circumstances in aggravation, or to achieve unanimity as to

aggravation circumstances. . . . Each of these contentions has been rejected, and

we decline to reconsider them.” (People v. Jenkins, supra, 22 Cal.4th at p. 1053.)

f. The death penalty statute is not unconstitutional “[i]n failing to require

intercase proportionality review.” (Vines, supra, 51 Cal.4th at p. 891; see People

v. Zambrano, supra, 41 Cal.4th at 1186.)

g. “The [death penalty] statutes are not invalid because they permit the jury

to consider in aggravation, under section 190.3, factor (b), evidence of a

defendant‟s unadjudicated offenses. [Citation.]” (People v. Letner and Tobin,

supra, 50 Cal.4th at p. 208.)

h. “Consideration of both section 190.3, factors (b) (criminal activity

involving force or violence), and (c) (prior felony convictions) is permissible.

[Citation.]” (People v. Hillhouse (2002) 27 Cal.4th 469, 510.)

i. “ „The use in the statutes, and in the standard jury instructions, of terms

such as “extreme,” “substantial,” “reasonably believed,” and “at the time of the

offense” in setting forth the mitigating factors does not impermissibly limit the

mitigation evidence or otherwise result in an arbitrary or capricious penalty


determination.‟ ” (People v. Letner and Tobin, supra, 50 Cal.4th at p. 208.)

Neither factor (i) nor factor (k) of section 190.3 is unconstitutionally vague. (See

People v. Slaughter, supra, 27 Cal.4th at p. 1224; People v. Mendoza (2000) 24

Cal.4th 130, 192.) The death penalty statute is not unconstitutional because it does

not identify which factors are aggravating and which are mitigating, nor was the

trial court required to so instruct. (People v. Box, supra, 23 Cal.4th at p. 1217.)

j. “ „There is no violation of the equal protection of the laws as a result of

the statutes‟ asserted failure to provide for capital defendants some procedural

guarantees afforded to noncapital defendants.‟ ” (People v. Letner and Tobin,

supra, 50 Cal.4th at p. 208.) The death penalty is not per se unconstitutional

(Gregg v. Georgia (1975) 428 U.S. 153, 187; People v. Zambrano, supra, 41

Cal.4th at p. 1187.)

k. We have also repeatedly considered and rejected attacks on the

constitutionality of CALJIC Nos. 8.85 and 8.88. (People v. Moon (2005) 37

Cal.4th 1, 41-44.) Defendant provides no persuasive reasons to revisit those


l. “Defendant argues that the death penalty in California violates the

California Constitution and the Eighth and Fourteenth Amendments to the United

States Constitution because it is imposed arbitrarily and capriciously depending on

the county in which the case is prosecuted. [¶] We have repeatedly rejected

substantially similar claims, concluding over 20 years ago that „prosecutorial

discretion to select those eligible cases in which the death penalty will actually be

sought does not . . . offend principles of equal protection, due process, or cruel

and/or unusual punishment.‟ [Citations.] [¶] Defendant, however, urges this court

to reexamine our decisions in prior cases in light of the United States Supreme

Court‟s voting rights decision in Bush v. Gore (2000) 531 U.S. 98, which, he

asserts, requires uniformity among California‟s 58 counties for prosecutorial


standards for seeking the death penalty. But as the high court explained, its

consideration of the equal protection challenge to Florida‟s voting recount process

was „limited to the present circumstances, for the problem of equal protection in

election processes generally presents many complexities.‟ (Id. at p. 109, italics

added.) That case, therefore, does not warrant our revisiting our prior holdings on

the instant issue.” (People v. Vines, supra, 51 Cal.4th at p. 889-890.)

X. International law

“Defendant‟s death sentence violates neither international law nor his rights

under the Eighth and Fourteenth Amendments to the federal Constitution, as no

authority „prohibit[s] a sentence of death rendered in accordance with state and

federal constitutional and statutory requirements. [Citation.] Unless a defendant

establishes his trial involved prejudicial violations of state or federal constitutional

law, we need not consider the question whether he also suffered violations of

international law. [Citation.]” (People v. McKinnon, supra, 52 Cal.4th at p. 698.)

“Finally, we again reject the contention that the death penalty violates

international law, is contrary to international norms, or that these norms require

the application of the death penalty to only the most extraordinary crimes.

[Citation.]” (People v. Blacksher, supra, 52 Cal.4th at p. 849.)

Y. Inadequate record

Defendant contends that missing reporter‟s transcripts render the record

inadequate for meaningful appellate review. His claim is meritless.

“All proceedings in a capital case must, under section 190.9, be conducted

on the record with a reporter present and transcriptions prepared. [Citation.]

„ “[N]o presumption of prejudice arises from the absence of materials from the

appellate record [citation], and defendant bears the burden of demonstrating that

the record is inadequate to permit meaningful appellate review [citations].” ‟


[Citations.]” (People v. Cook, supra, 39 Cal.4th at p. 586.)41 “The record on

appeal is inadequate . . . only if the complained-of deficiency is prejudicial to the

defendant‟s ability to prosecute his appeal. [Citation.] It is the defendant‟s burden

to show prejudice of this sort. [Citation.]” (People v. Alvarez (1996) 14 Cal.4th

155, 196, fn. 8.) “Moreover, irregularities in the preliminary hearing are no basis

for reversal on appeal unless defendant can demonstrate a resulting unfairness in

the subsequent trial. [Citations.]” (People v. Zambrano, supra, 41 Cal.4th at

p. 1192.)

Defendant concedes that the allegedly missing transcript for August 14,

1992, is, in fact, in the record. A second allegedly missing transcript, for January

27, 1992, listed at page 20 of defendant‟s opening brief, appears in the augmented

court reporter‟s transcript at pages 115 to 117. With respect to defendant‟s claim

that the trial court‟s personal notes are missing from the record, defendant does not

demonstrate that he ever requested these notes and, in any event, he would not

have been entitled to them. (People v. Lewis and Oliver, supra, 39 Cal.4th at p.

1065 [defendants not entitled to augment the record with trial court‟s notes: “The

notes were the court‟s own work product, and personal to the judge”].)


A defendant‟s burden to show the inadequacy of the record begins with an

accurate representation of the alleged missing records. In this case, defendant
claims that there were “ „forty-four‟ ” court hearings, proceedings or conferences
. . . not transcribed in this case,” and “on 17 other occasions there is „no reporter‟s
transcript‟ of a hearing.” He also asserts entitlement to the trial court‟s trial notes.
He concludes: “In short a total of sixty (60) proceedings are missing from the
record.” But 44 plus 17 is 61, and the court trial notes would be 62. Defendant
also double-counts a number of dates under two different categories (e.g., hearings
“not transcribed” and occasions where there is “no reporter‟s transcript”). Finally,
he claims that the Attorney General failed to address the absence of 14 unrecorded
proceedings but unhelpfully he fails to specify these 14 proceedings, much less
carry out his burden of showing that these allegedly missing records prevented
meaningful appellate review.


Defendant contends that transcripts are missing for proceedings in the

(former) municipal court for August 11 and 19 and September 20, 1987. As to

each of these dates, defendant‟s trial counsel indicated in the settled statement that

his recollection of the hearings is contained in the minute orders. The minute

orders show the subject matter of the August dates was a defense discovery

motion. The trial court granted some items outright, granted others as modified,

and denied others. Defendant has neither raised any issue regarding discovery nor

demonstrated how he was precluded from doing so because of the missing


Defendant contends the record is missing transcripts for preliminary

transcript proceedings for November 17, 18, 19, and 24, and December 1, 1987.

The settled statement for these dates indicates that the chief subject of these

proceedings was a prosecution witness named Thomas Marshall. Marshall

testified at the preliminary hearing that defendant told him in jail that he had

murdered Sandy Olsson. Marshall did not testify at defendant‟s trial. Accordingly,

any missing proceedings involving his testimony at the preliminary examination

could not have resulted in any unfairness to defendant at trial. (People v.

Zambrano, supra, 41 Cal.4th at p. 1192.) The settled statement also refers to in

camera proceedings involving the assertion by police witnesses of a privilege

against disclosing records involving Marshall‟s work as a police informant.

Again, because Marshall did not testify at trial, defendant cannot show any


The settled statement for November 24, 1987, indicates two off-the-record

discussions involving the scope of defense questioning of Sergeant Robertson,

about the other leads and suspects in the murder investigation. A review of the

clerk‟s transcript supports this summary. Defendant asserts that the missing

record “contains potentially exculpatory evidence” that someone other than he


may have committed the murder and the “lack of record” has prevented him from

fully pursuing this evidence. This assertion is completely without merit.

On the extant record, defendant‟s trial counsel acknowledged he had been

provided with the information regarding other suspects. His concern was that

there might be more. After an unreported discussion, he noted on the record that

the prosecutor had agreed to provide him with additional material on the subject of

other suspects. Thus, there is no support for defendant‟s claim that the

untranscribed proceedings involved missing and “potentially exculpatory

evidence.” To the contrary, the extant record indicates that the untranscribed

proceedings involved the prosecutor‟s agreement to turn over materials about

other suspects in addition to those already in the defense‟s possession. None of

this, in any event, fulfills defendant‟s obligation to demonstrate that the

untranscribed proceeding has prevented meaningful appellate review of any claim

he raised on appeal.

The settled statement for December 1, 1987, indicates there was an off-the-

record discussion concerning “the preservation of blood samples and other

refrigerated evidence.” This followed defendant having been held to answer and

ordered to appear for arraignment on December 15, 1987, and an ensuing

conversation about the whereabouts and transportation of blood samples.

Defendant fails to demonstrate prejudice arising from the absence of a transcript of

this apparently routine housekeeping matter.

Next, defendant cites untranscribed pretrial and in limine proceedings for

December 15, 1987; April 15, April 18, June 6, and June 7, 1988; June 17,

September 23, and November 25, 1991; and January 27, February 11, March 10,

March 20, April 17, May 6, and June 9, 1992. The settled statement reveals that

the missing transcripts for December 15, 1987, and all of the 1988 transcripts

involved routine matters, including continuance of arraignment, the filing of a


section 995 motion that was then continued for hearing, the dropping of pending

matters without prejudice because defendant was absent, and the continuance of a

motion to settle the record of the preliminary examination.42 Our review of the

settled statement and the clerk‟s transcript for all of the 1991 dates and all of the

1992 dates except June 9, 1992, reveals that on each of those occasions the court‟s

only action was to continue the case for trial setting. The settled statement and

clerk‟s transcript reflect that June 2, 1992, was the first day of trial. However,

counsel waived the reporter‟s presence, conferred with the court in chambers, and

continued the trial to June 9. On June 9, 1992, counsel again waived the reporter‟s

presence, conferred with the court in chambers, and put the matter over to June 10

for trial. On both days, counsel waived defendant‟s presence. Although trial

counsel Wagner had no specific memory of the proceedings of those days, the

settled statement reflects that “[t]he majority of court appearances following Mr.

Wagner‟s appointment related to scheduling matters . . . .” Thus, again, the record

indicates that nothing more took place on these dates other than routine scheduling

matters and defendant fails to persuade otherwise. Given the vigor with which

trial counsel conducted the defense, it is inconceivable that they would have

waived defendant‟s appearance and the reporter had they anticipated that any

substantive matter would be discussed on any of these dates.


Defendant contends that the April 18 and June 6, 1988 proceedings

involved his suppression motions and are therefore relevant to his claim on appeal
that these motions were erroneously denied. However, the reporter‟s certificate
states that his shorthand notes “reflect that on both dates, when the Court called
the case of [defendant], the defendant was not present in court and the pending
matters were dropped from the calendar.” Even if the matters dropped were
defendant‟s suppression motions, we fail to see how this routine proceeding
prevented meaningful appellate review of his claims, nor does he enlighten us.
Defendant‟s burden to demonstrate prejudice requires something more than the
fortuity that an untranscribed proceeding had some tangential relationship to a
claim he later raised on appeal.


Defendant next directs us to untranscribed trial proceedings for the

following 1992 dates: June 11, June 25, July 1, July 24, August 4, August 11,

August 12, August 13, August 20, August 27, September 3, September 9,

September 10, September 15 (three times), September 16, and November 2. The

extant record of the proceedings on these dates is sufficient to disclose their nature

and belies defendant‟s assertion that they may have contained information that

precludes meaningful appellate review of any argument he has raised or prevented

him from advancing an argument he would otherwise have made.

The extant record for June 11 shows that the court and counsel conferred

off the record for scheduling purposes and to mark certain exhibits during a

pretrial proceeding. The extant record for June 25 and July 1 indicates that on

both dates the court and counsel conferred off the record about juror

questionnaires, as the result of which the parties excused a number of prospective

jurors by stipulation. Defendant asserts there is an untranscribed conference on

July 24, but the page to which he refers us in the reporter‟s transcript is for June

16, and contains no such notation. There was an off-the-record discussion on July

23 involving the prosecutor‟s request to use certain photographs at the guilt phase

trial. This was followed on July 24 by an on-the-record discussion of each

proposed photograph that included the defendant‟s objections and the court‟s


On August 4, there was an unreported discussion of defendant‟s objection

to the prosecutor‟s question to John Chandler about defendant‟s employment

history. Before recessing for the morning, the trial court memorialized the

discussion on the record, explaining the basis of defendant‟s objection —

relevance — and that it had overruled the objection. Defendant cites an

unreported discussion on August 11, following an objection by defense counsel to

the prosecutor‟s question to Sergeant Robertson about whether Thomas Pillard,


also known as “Doubting Thomas,” had come up in the investigation prior to

March 30, 1987. Before recessing for the day, the trial court memorialized for the

record the basis of the objection — relevance — and its ruling. Defendant cites an

unreported discussion on August 12 regarding the prosecutor‟s objection to

questions of his criminalist by the defense regarding DNA testing of hairs found in

the victim‟s bedroom. The prosecutor withdrew the objection and the matter was

resolved by stipulation. The record reveals that on August 13, there was an

unreported discussion regarding exhibits and guilt phase jury instructions.

According to the settled statement, Defense Counsel Wagner “recall[ed]

conferring on guilt phase instructions and believe[d] the results of these discussion

were later put on the record.” In fact, there was a lengthy on-the-record hearing

regarding the admission of exhibits into evidence and guilt phase instructions.

Defendant points to an unreported discussion on August 20, after the jury had been

sent out for guilt phase deliberations. That discussion followed an on-the-record

discussion regarding possible jury requests for tapes and transcripts of the tapes.

Just before going off the record, the court stated, “We have certain matters to take

up,” which included a “review of the verdict forms,” “several items of evidence

we‟ve referred to as the envelope,” and “the issue how we will accommodate any

request for these tapes and transcripts. And once we arrive at that determination

we‟ll put that on the record.” These were housekeeping matters, none of which

required any further on-the-record discussion. Defendant asserts there was an

unreported discussion on August 27, but at the page he cites the court refers

merely to “a brief scheduling conference.”

Defendant directs us to an unreported discussion on September 3. A review

of the record reveals that this involved a request by the parties for a written copy

of the court‟s victim impact evidence ruling. This is confirmed by defense

counsel‟s recollection in the settled statement that the discussion “concerned the


court‟s issuance of a written ruling on victim impact evidence.” An unreported

discussion on September 9 occurred after defendant‟s brother finished testifying

and the defense requested he be excused. The prosecutor asked that he remain on

call. After the discussion, the witness was provisionally excused. This is

confirmed by defense counsel‟s recollection in the settled statement that the

discussion involved “holding or excusing witness Roger Tully.” A second

unreported discussion involved a defense objection to the prosecutor‟s question of

defendant‟s son about what he and defendant had done the last time they had seen

each other. Defense counsel objected it was beyond the scope of direct; the

objection was overruled. This is confirmed by defense counsel‟s recollection in

the settled statement.

According to the clerk‟s transcript, an unreported discussion on September

10 involved penalty phase instructions. This is confirmed by defense counsel‟s

recollection in the settled statement that the discussion involved “penalty phase

instructions” and was later “put on the record.” In fact, there is an on-the-record

discussion of penalty phase instructions. Defendant points to three unreported

discussions on September 15. The first two unreported discussions involved

defense objections to the prosecutor‟s victim impact arguments. The trial court

subsequently memorialized these discussions, the nature of the defense‟s concern,

and its rulings. The third discussion involved scheduling. This is confirmed by

the recollections of Defense Counsel Wagner in the settled statement. Defendant

cites an unreported discussion on September 16, following the receipt by the court

of a jury question about the definition of life without possibility of parole. The

next morning, September 17, the court explained the purpose of the conference

and that counsel had agreed to its proposed response.


Defendant cites an unreported discussion on November 2, but, as defense

counsel‟s recollection in the settled statement confirms, it was simply to put the

case over to December 4 for the probation report and sentencing.

In his opening brief, defendant merely makes a global and unsubstantiated

claim that missing or unreported transcripts prevented meaningful appellate

review, without bothering to specify the exact issues on which he rests this claim.

Our review of these missing transcripts belies his claim. In each case, either the

record is sufficient for review or the proceedings involved routine matters.

For the first time in his reply brief, defendant attempts to specify 11 claims

as to which the absence of transcripts prevented meaningful appellate review. It is

axiomatic that arguments made for the first time in a reply brief will not be

entertained because of the unfairness to the other party. In any event, defendant‟s

specification does nothing more than attempt to link each missing transcript to

various arguments without explaining why the missing transcript had any impact

at all on his ability to raise the issue or on our ability to review it. This is

inadequate to sustain his burden of showing prejudice.

We have before us an 18-volume reporter‟s transcript comprising over

3,900 pages as well as supplemental reporter‟s transcripts and a 51-volume clerk‟s

transcript comprising almost 15,500 pages. The opening brief in this case is in

two separate volumes, coming in at 745 pages, while the reply brief adds another

522 pages to defendant‟s briefing. The Attorney General‟s brief is 375 pages long;

total briefing comprises over 1,600 pages. “With respect to every issue raised on

appeal, we have found the record sufficient to permit review. It is in this context

that we must find that any abuse of discretion, assuming it existed, was not

prejudicial, because the record is clearly adequate for meaningful appellate

review.” (People v. Pinholster, supra, 1 Cal.4th at p. 922.) Accordingly, we

reject defendant‟s claim.



We affirm the judgment in its entirely.






I join the majority in affirming the judgment of death. I write separately,

however, to address the merits of defendant‟s claim that the prosecutor committed

misconduct at the penalty phase by using biblical quotations in his closing

statement to the jury, a subject the majority does not address because it concludes

that defendant forfeited the claim by failing to object.


During closing argument at the penalty phase of defendant‟s capital trial,

the prosecutor showed the jury a large chart entitled “The Bible Sanctions Capital

Punishment.” The chart contained these four quotations from the Bible: (1) “Who

sheds the blood of man by man shall his blood be shed, for in his image did God

make man”; (2) “He that smiteth a man so that he die, shall be surely put to

death”; (3) “And if he strike him w[ith] an instrument of iron so that he die, he is a

murderer: The murderer shall surely be put to death”; (4) “And you shall not take

reparations for the soul of a murderer who deserves to die but he shall be put to


In his initial argument to the jury,1 the prosecutor said: “[W]hen we talk

about religion, it is not something that is to be used in aggravation at all, what the

Bible or the Koran or anything has to say, but the one thing that is universal


The trial court allowed both the prosecution and the defense two penalty

phase arguments.


throughout all religions is this idea that murderers are to be punished, and that

the death penalty is sanctioned and that it is appropriate. And just so there isn‟t

anybody who lies awake at night saying . . . is it permissible under my religion to

do this sort of thing? . . . [T]hat was something we hoped you thought of

beforehand. And there is a question to that effect in various forms that asks you

about your religious beliefs: Is that going to stand in the way? [¶] Well, many

times people get to this point, and they start thinking about that . . . . [T]he Bible

does, in fact, sanction capital punishment. There is one that is just so right on

point: [¶] He who strikes him with an instrument of iron so that he die, he is a

murderer, and the murderer will surely be put to death. And you shall take no

reparations for the soul of a murderer who deserves to die, but he shall be put to

death. [¶] He who sheds the blood of man by man, shall his blood be shed. For

in his image did God make man. His blood or his life will be shed by man.‟ [¶]

Now, as I said, religion is not supposed to be the guiding factor in finding

aggravation, but I just want to clear the air there that religion does not stand in the

way, and that‟s not supposed to enter into your evaluation.” (Italics added.)

Defense counsel then argued to the jury that, contrary to the prosecutor‟s

claim that all religions permit punishment by death, Buddhism does not. Also,

defense counsel said, under ancient Jewish law such punishment was almost never

imposed — once every 30 years according to one scholar quoted in the Talmud;

once every 160 years according to another. He then quoted from the New

Testament: “Vengeance is mine, said the Lord.”

The prosecutor began his final statement to the jury with these words:

“[T]his process that we go through here [is] a lot different than it was in the Old

Testament. The Old Testament, when God spoke, he made it very clear. Very

clear. Murderers shall die. And God also made it very clear that it was man who

was going to impose that penalty. [¶] . . . Paul makes it very clear, „the ruler bears


not the sword in vein [sic: vain] for he is the minister in God, a revenger to

execute wrath upon him that do with [sic: doeth] evil.‟ [¶] . . . God made it clear,

[but] when man gets into the act he starts softening up the rules a little bit and

that‟s okay.” (Italics added.)

In a final statement, defense counsel told the jury: “God did not sentence

Cain to death for killing his brother. He banished him.” Counsel also noted that

“the major religious groups in this country . . . have taken rigorous stands against

the death penalty.”


As this court has said, in a capital case the prosecution may not rely on

biblical authority in urging the jury to return a verdict of death, as this would

“create and encourage an intolerable risk that the jury will abandon logic and

reason and instead condemn an offender for reasons having no place in our

judicial system.” (People v. Roldan (2005) 35 Cal.4th 646, 743; see also People

v. Williams (2010) 49 Cal.4th 405, 465 (Williams).) Federal courts too have said

this. (See Romine v. Head (11th Cir. 2001) 253 F.3d 1349, 1358 [prosecutor

committed reversible error by arguing “biblical law to the jury as a basis for

urging it to . . . sentence [the defendant] to death”]; Sandoval v. Calderon (9th Cir.

2000) 241 F.3d 765, 777 [“[R]eligious arguments have been condemned by

virtually every federal and state court to consider their challenge. [Citations.]”];

Bennett v. Angelone (4th Cir. 1996) 92 F.3d 1336, 1346 [“Federal and state courts

have universally condemned . . . religiously charged arguments as confusing,

unnecessary, and inflammatory.”].) As one federal appellate court has explained,

“[biblical] statements, worthy of the profoundest respect in proper contexts, have

no place in our non-ecclesiastical courts and may not be tolerated there.” (Ibid.)


Here, as discussed in part I, ante, the prosecutor showed the jury a large

chart bearing the heading “The Bible Sanctions Capital Punishment,” and

containing four biblical passages requiring death for murderers; and the prosecutor

told the jury that God “made it very clear” that “[m]urderers shall die.” The

majority does not decide whether the prosecutor‟s religion-based argument was

proper. Instead, it concludes that defendant forfeited his claim of error by failing

to object at trial, and that even if the prosecutor committed misconduct no

prejudice resulted. (Maj. opn., ante, at pp. 123-124, 127-129.) In my view, the

prosecution‟s reliance on religious authority went beyond the parameters of

permissible argument.

Pertinent here is this court‟s decision in Williams, supra, 49 Cal.4th 405. In

that capital case, the prosecutor at the penalty phase quoted several statements

from the Bible that, in the prosecutor‟s words, “ „unambiguously command[] that

murderers be put to death.‟ ” (Id. at p. 465.) Therefore, the prosecutor argued,

“even the Bible for those of you who may have some religious scruples does not

say that you should not use your own moral beliefs in making [the] determination

here.” (Ibid.) This court in Williams held that the prosecutor‟s argument was

improper, explaining: “Although . . . the prosecutor framed her religious

comments as an ostensible exhortation for jurors to refrain from deciding against

the death penalty based upon religious views” by telling jurors not to have

“religious scruples” about imposing the death penalty, “the content of her remarks

emphatically communicated that the Bible supports imposition of the death

penalty. She „urged that the Bible not only permits such action, but demands it.‟

[Citation.] Similarly framed arguments have been held improper. [Citations.]”

(Id. at p. 466.)

Like the prosecutor in Williams, supra, 49 Cal.4th 405, the prosecutor here

tried, put colloquially, to have it both ways. He correctly explained to the jury that


“religion . . . [is] not supposed to enter into your evaluation.” But he also

repeatedly reminded the jury that the Bible required that murderers be put to death.

For instance, in his initial statement to the jury, the prosecutor described as “just

so right on point” the biblical statement (one of several shown to the jury), that

“ „[h]e who strikes him with an instrument of iron so that he die [here the victim

was killed with a knife], he is a murderer, and the murderer will surely be put to

death.‟ ” Then, in his final statement to the jury, the prosecutor said: “[W]hen

God spoke, he made it very clear. Very clear. Murderers shall die.”

As in Williams, here the prosecutor‟s reliance on religious authority

“emphatically communicated that the Bible supports imposition of the death

penalty” (Williams, supra, 49 Cal.4th at p. 466), and “strayed beyond the bounds

of permissible argument based upon religion” (ibid.).


As I noted at the outset (see ante, p. 1), the majority declines to decide

whether the prosecutor committed misconduct by relying on religious authority in

his penalty phase arguments. Instead, it concludes that, by failing to object to the

prosecutor‟s argument at trial, defendant has forfeited his right to challenge it in

this appeal. As explained below, I reluctantly agree.

In concurring and dissenting opinions in three previous capital cases, I

concluded that, notwithstanding the defense attorney‟s failure to object, the

prosecutor‟s improper penalty phase reliance on religious authority for imposition

of the death penalty required reversal of the judgment of death, as defense

counsel‟s failure to object to the prosecutor‟s religion-based argument resulted in a

denial of the defendant‟s right to effective representation. (See People

v. Zambrano (2007) 41 Cal.4th 1082, 1202-1203 (conc. & dis. opn. of Kennard,

J.); People v. Slaughter (2002) 27 Cal.4th 1187, 1225-1229 (conc. & dis. opn. of


Kennard, J.); People v. Wash (1993) 6 Cal.4th 215, 279-283 (conc. & dis. opn. of

Kennard, J.).)

It may well be that here defense counsel decided not to object to the

prosecutor‟s religion-based argument favoring death for murderers so the defense

could in turn cite religious authority expressing a contrary view. But as I have

said in the past: “ „A religious argument against the death penalty is no more

acceptable at the penalty phase of a capital case than a religious argument in favor

of the death penalty. . . . It follows that defense counsel‟s decision to respond to

the prosecutor‟s religious argument by relying on opposing religious authority

cannot be considered a legitimate tactical choice that would excuse his failure to

object to the prosecutor‟s impermissible religious argument.‟ ” (People

v. Zambrano, supra, 41 Cal.4th at p. 1203 (conc. & dis. opn. of Kennard, J.),

quoting People v. Wash, supra, 6 Cal.4th at p. 283 (conc. & dis. opn. of Kennard,

J.); see also People v. Slaughter, supra, 27 Cal.4th at p. 1227 (conc. & dis. opn. of

Kennard, J.).)

That view, however, has not been embraced by this court. (People

v. Slaughter, supra, 27 Cal.4th at p. 1210; see also People v. Riel (2000) 22

Cal.4th 1153, 1212-1213; People v. Welch (1999) 20 Cal.4th 701, 764.) Also,

here defendant does not argue on this appeal that his counsel‟s failure to object to

the prosecutor‟s religion-based argument constituted ineffective representation,

perhaps because he plans to raise that argument in a petition seeking habeas

corpus relief. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267 [“A

claim of ineffective assistance . . . is more appropriately decided in a habeas


corpus proceeding.”].) For these reasons, on this appeal I agree with the majority

that defendant‟s attack on the prosecutor‟s religion-based closing statement should

be rejected on the ground of forfeiture.2



The majority also concludes that even if the prosecutor‟s use of biblical

quotations in closing argument was improper, the misconduct did not prejudice
defendant. (Maj. opn., ante, at pp. 127-129.) Because defendant forfeited his
right to raise the issue, I see no need to decide whether the prosecutor‟s
misconduct would require reversal of the judgment of death.



I join the opinion of the court and also agree with Justice Kennard, for the

reasons persuasively stated in parts I and II of her concurring opinion (conc. opn.

of Kennard, J., ante, at pp. 1-5), that the prosecutor‟s use of religious authority

was improper in this case.


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Tully

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted


Opinion No.
Date Filed: July 30, 2012

County: Alameda
Judge: William R. McGuiness



James S. Thomson, under appointment by the Supreme Court; Thomson & Stetler, Saor E. Stetler; and
Jolie Lipsig for Defendant and Appellant.

Bill Lockyer and Kamala D. Harris, Attorneys General, Mary Jo Graves, Chief Assistant Attorney General,
Gerald A. Engler, Assistant Attorney General, Ronald S. Matthias and Margo J. Yu, Deputy Attorneys
General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

James S. Thomson
819 Delaware Street
Berkeley, CA 94710
(510) 525-9123

Margo J. Yu
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5872

Opinion Information
Date:Citation:Docket Number:
Mon, 07/30/201254 Cal. 4th 952, 282 P.3d 173, 145 Cal. Rptr. 3d 146S030402

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