Supreme Court of California Justia
Docket No. S189373
People v. Wilson

Plaintiff and Respondent,
Defendant and Appellant.
Riverside County Superior Court
June 8, 2023
Justice Corrigan authored the opinion of the Court, in which
Chief Justice Guerrero and Justices Liu, Kruger, Groban,
Jenkins, and Evans concurred.

Opinion of the Court by Corrigan, J.
Defendant Lester Harland Wilson tortured and killed Uwe
Durbin. In the process, he kidnapped Uwe1 and his family
members and raped the girlfriend of Uwe’s brother. A jury
convicted him in 2000 of first degree murder, two counts of
forcible rape, and enhancements for personal use of a firearm.2
Finding true special circumstances for committing murder
during a kidnapping and intentional infliction of torture,3 it set
the penalty at death. On appeal, the guilt judgment was
affirmed. The sentence was reversed, however, because a juror
was improperly discharged during penalty deliberations.
(People v. Wilson (2008) 44 Cal.4th 758 (Wilson).
Following a retrial in 2010, defendant was again
sentenced to death. We affirm this judgment.
Because Uwe and his brother Mike share a surname, we
refer to them by their given names to avoid confusion.
sections 187,
subdivision (a),
subdivision (a)(2), 12022.5.
Penal Code sections 190.2, subdivision (a)(17)(B) and
(a)(18). All further statutory references are to the Penal Code
unless otherwise indicated.
Opinion of the Court by Corrigan, J.
A. Prosecution’s Aggravating Evidence
1. Underlying Offenses and Special Circumstances
Uwe Durbin was struggling financially in 1997 and lived
at the homes of various friends. He stayed for a time with
defendant and his wife, Barbara Phillips.4
Defendant suspected Uwe had stolen his television. On
the morning of June 8, 1997, defendant and Phillips went
looking for Uwe at his brother’s apartment. When Mike Durbin
opened the door, defendant put a gun to his head and pushed his
way inside. Phillips followed. Mike’s girlfriend, Lisa R., was
there, along with their infant son and Lisa’s two older children.
Defendant demanded to know where “his stuff” was and where
he could find Uwe. Mike did not know what he was talking
about and did not reply.
Still pointing the gun at Mike’s head, defendant ordered
the entire family to leave with him. Defendant and Mike got
into Mike’s car; Lisa and the children joined Phillips in her car.
As Mike pulled out of the carport, Uwe walked up. Defendant
jumped out and confronted Uwe about the television. After Uwe
denied all knowledge of it, defendant forced him into the
backseat of Mike’s car. The two cars were driven to defendant’s
Everyone assembled in the living room, where defendant
and Phillips demanded that their property be returned. When
Defendant and Phillips were tried together but with
separate juries. She was convicted of first degree murder with
kidnapping and torture special circumstances and a gun use
enhancement, and was sentenced to life imprisonment without
possibility of parole. (Wilson, supra, 44 Cal.4th at p. 770, fn. 1.
Opinion of the Court by Corrigan, J.
Uwe maintained he had taken nothing, defendant shot him in
the knee. Mike rose from the couch but stopped when defendant
pointed the gun at him. Mike asked if his family could go
upstairs, which defendant permitted. He then ordered Uwe into
a nearby bedroom. There, defendant beat him with his fists and
a pair of gloves filled with size D-cell batteries. He struck Uwe
50 to 100 times on his face and body, refusing to stop until Uwe
finally told him where to find the television.
Defendant bound Uwe’s hands and legs with duct tape
then left with Mike to reclaim the television. Retrieval efforts
were unavailing. Defendant returned to the house, gave the gun
to Phillips, then left again, leaving Phillips to guard the family.
Mike asked Phillips to let them go, but she responded angrily
that they were all going to die.
Defendant returned with three men. He rolled plastic
sheeting over the bedroom floor and all four men took turns
beating Uwe, hitting him with steel weights and choking him
with a chain. After about an hour, the men emerged laughing.
They were covered in Uwe’s blood and dripping with sweat. One
of the men said Uwe and Mike’s family all had to die. Lisa and
Mike begged to be released, promising to pay for the television
or give the men anything they wanted. When Mike offered his
life in exchange for his children’s freedom, he was brought into
the room with Uwe and bound to a chair with duct tape. Blood
and tissue covered the walls and floor. Uwe had been so severely
beaten that he was unrecognizable. He was still breathing and
occasionally moaned in pain. The men resumed the beating,
forcing Mike to watch. At one point Uwe was forced to drink
urine from a cup. Defendant brought his pit bull into the room,
and, when the dog would not attack Uwe, defendant became
angry and beat the animal with his fists. He choked Uwe with
Opinion of the Court by Corrigan, J.
the dog’s collar and burned parts of Uwe’s midsection with a
blowtorch. Someone poured bleach over the wounds. Beyond an
occasional moan, Uwe no longer reacted to the torment.
The men said they were going to let Lisa go and brought
her and the baby into the room to say goodbye. Lisa and the
children left with Nicole Thompson, a friend of the men
assaulting Uwe. While Lisa and the children were held at
Thompson’s house, defendant arrived. He took Lisa and the
baby to a nearby park but would not let the other children join
them. Telling Lisa she “needed to give him some assurance that
[she] wasn’t going to say anything,” defendant raped her. He
said her family would be released but “Uwe wasn’t going to be
leaving.” They picked up Lisa’s older children and returned to
defendant’s house. There, defendant and Phillips argued about
how to proceed. Phillips did not want to let Mike’s family leave,
but defendant protested, “ ‘Well, what are we going to do with
all these bodies?’ ” Lisa heard the sound of a blowtorch and Uwe
Defendant sent Mike away with Phillips to look for a
bicycle. By that point, the other men had left, and defendant
was alone in the house with Lisa and the children. He raped
Lisa a second time, then ordered her to help move Uwe’s body,
which was wrapped in plastic. Uwe was still alive but not fully
conscious. He proved too heavy for defendant and Lisa to drag
into the garage. As they struggled with the body, Mike and
Phillips returned. Mike helped defendant put Uwe in the
backseat of defendant’s car. Defendant and Phillips discussed
burying Uwe in the desert and using lye to dissolve the body.
Phillips ordered Lisa to clean up bloodstains in the house.
Defendant and Phillips then drove away with Uwe, telling Mike
Opinion of the Court by Corrigan, J.
and his family to leave in their own car. Mike and Lisa
ultimately called the police.
The next morning, Uwe’s body was found in a concrete
drainage ditch along the 91 freeway. There were bloodstains on
a guardrail and a length of bloody, knotted rope lay near the
road’s shoulder. Four .380-caliber bullet casings and one intact
bullet were found near the body.
A search of defendant’s house revealed numerous blood
smears and drippings, bloody gloves, a roll of plastic sheeting,
and torn pieces of duct tape. There was a hole in the drywall
surrounded by blood and hair, with a bottle of bleach nearby. A
half-empty box of .380 bullets was found inside a purse. Several
pieces of bloody cloth and bits of duct tape were found in
defendant’s car, along with seven live .380-caliber rounds in the
glove box.
An autopsy revealed that Uwe’s body was riddled with
injuries. He had sustained multiple blunt force injuries to his
face, head, and body. His ribs, skull, jaw, nose, and other facial
bones were fractured. Teeth that had been knocked out were
found loose in his mouth. A ligature mark on his neck was
consistent with strangulation by a chain. A shoe imprint on his
back was consistent with “stomping.” It was also possible he
was burned. Uwe had been shot in the head five times at close
range. A .380-caliber bullet was extracted from his knee.
2. Victim Impact
Mike and Lisa’s relationship did not survive the trauma of
the incident. Mike became angry and abusive, suffering
nightmares and replaying the events in his mind. Lisa’s life
went into a “downhill spiral” and was never the same after the
incident. Even ten years later and after two and a half years of
Opinion of the Court by Corrigan, J.
counseling, she still had nightmares and was afraid of people.
The children were also traumatized. The oldest child was
removed from the home because he had violent episodes and ran
around the house stabbing things with a knife. Mike missed
Uwe, his only brother.
Uwe’s mother, Helga Durbin-Axt, described his childhood
in West Germany. Uwe had an older sister and was especially
close to his brother Mike. The family often gathered for a meal
on Sundays. Uwe had been in the United States for a year and
a half but had decided to move back to Germany. His murder
was very difficult for the family. They flew his body home for
burial, but Helga was not allowed to look at him. Mike was very
affected by the crimes, and Helga was raising his son Matthew.
She missed Uwe terribly.
3. Prior Crimes
Katri K. met defendant soon after she came to the United
States from Finland in 1992. She was 21 years old. Once they
began dating, she lived with defendant and his mother. Katri
and defendant had violent arguments during which he
assaulted her. During one argument, he choked her into
unconsciousness. After another violent quarrel, defendant hit,
raped, and sodomized her. The next day, a friend took Katri to
the hospital, where she was interviewed by police. Katri
eventually returned to Finland.
In 1996, a couple reported that their car had been shot at
by someone in another car. Both identified defendant as the
shooter, but neither was willing to so testify.
B. Defense’s Mitigating Evidence
Defendant presented extensive evidence of his difficult
upbringing. He was conceived when his mother, Marsha, was
Opinion of the Court by Corrigan, J.
raped at age 12 or 13 by a family friend. His father eventually
married Marsha, had another child with her, and moved the
family from Indiana to Los Angeles. Defendant’s father
physically abused Marsha, who frequently ran away with the
children. Once, his father choked Marsha and said she would
not live to see 18. She eventually divorced him and married
defendant’s stepfather, Michael Woodson.
Woodson was a criminal and a drug addict. He and
Marsha made money from credit card fraud, sometimes
enlisting defendant to help them. There were guns and drugs
in the house. When defendant was 10 or 11 years old, Woodson
began beating him with his fists. He was once jailed for
domestic violence. When defendant was a teenager, Woodson
was accused of murder. He was tried three times and ultimately
acquitted. Defendant was interviewed by the police and had to
testify at Woodson’s trial.
During this period, Marsha frequently sent her children to
Indiana to be cared for by their grandparents. As a result,
defendant attended ten different schools in Los Angeles and was
placed in special education classes due to his behavioral
problems and difficulty reading. His third-grade teacher
reported that he had 21 absences, was frequently late, and did
not get along with adults or other children. Defendant also had
trouble at the school in Indiana. He was nervous and fidgety
because he was worried about his mother being abused in his
Several children, both relatives and foster children, lived
with defendant in his grandparents’ home. They were
disciplined severely for even minor transgressions. Defendant’s
grandmother whipped the children with various implements
Opinion of the Court by Corrigan, J.
and sometimes locked them in a small furnace room. One child
was forced to sit in the hallway with a urine-soaked sheet over
her head and had her hand held to the furnace flame. Another
was hit on the head with a butcher knife. A third was forced to
eat on the floor.
A substantial amount of penalty phase testimony
described the misdeeds of defendant’s biological father, Lester
Wilson, Sr. (Wilson), although it is unclear how much time
defendant spent with him. Defendant and his sister were not
allowed to visit their father but sometimes skipped school and
went to his house. During one visit, Wilson got defendant
drunk, then tried to molest defendant’s sister. Wilson sexually
abused one of defendant’s half-sisters when she was 12 and
violently raped her when she was 16. He sexually abused
another half-sister, took her along on a drive-by shooting, and
once appeared to kill a man in front of her. He later went to
prison for murdering a woman who was pregnant with his child.
Defendant’s half-sister testified that Wilson had picked her up
and taken her to a McDonald’s while the woman lay dead in the
Several family members expressed love for defendant and
stayed in contact with him while he was in prison. His
grandmother frequently sent photos of defendant’s 15-year-old
daughter, whom she was raising. The daughter often wrote and
visited defendant in jail and prison. He advised her to stay in
school, pursue a career, and not repeat his mistakes. A half-
brother, 25 years younger than defendant, described happy
moments and testified that defendant helped him with reading
and homework, drove him to football practice, and attended his
games. Defendant continued to give him advice from jail,
serving as a kind of surrogate father. Similarly, a half-sister,
Opinion of the Court by Corrigan, J.
more than 20 years defendant’s junior, frequently sought his
advice about life, parenting, and relationships.
A. Double Jeopardy
Defendant contends this penalty retrial violated state and
federal constitutional protections against double jeopardy. The
claim is contrary to settled law. Because defendant’s original
death judgment was reversed for legal error, and the reversal
was not the equivalent of an acquittal, double jeopardy
principles do not bar retrial.
1. Background
Defendant’s first jury returned a death verdict. On
automatic appeal, he argued the trial court erroneously
dismissed a juror during penalty phase deliberations. We
agreed and reversed the penalty verdict while upholding the
guilt judgment. (Wilson, supra, 44 Cal.4th at p. 842.) Briefly
stated, the facts concerning the penalty reversal are as follows.5
Juror No. 5 was the only juror in the previous trial who,
like defendant, was African-American. (Wilson, supra, 44
Cal.4th at p. 813.) He joined the unanimous jury in convicting
defendant on all counts in the guilt phase. (Ibid.) During
penalty phase deliberations, Juror No. 5 had initially leaned
toward the death penalty but later announced he had changed
his mind and favored a life sentence. (Id. at p. 814.) He became
the sole holdout for life imprisonment. (Ibid.) The next day,
Juror No. 1 sent the court a note accusing Juror No. 5 of
At defendant’s request, we have taken judicial notice of all
filings in his prior appeal (S089623) and a related habeas corpus
proceeding (S152074).
Opinion of the Court by Corrigan, J.
misconduct for considering facts not in evidence, discussing the
case with a juror before deliberations, telling other jurors they
could not understand his position because they were not Black,
and refusing to follow the court’s instruction that death is a
penalty worse than life imprisonment. (Id. at pp. 815–816.
After discussing the note with counsel, the court examined each
juror individually then made a detailed ruling. (Id. at p. 816.
First, although Juror No. 5 had said in voir dire that he
would ignore race in reaching a decision, the court recalled that
the juror’s demeanor was evasive. (Wilson, supra, 44 Cal.4th at
p. 817.) Second, the court credited Juror No. 1’s account of
hearing Juror No. 5 say, after Mike’s guilt phase testimony,
“ ‘ “How can you hold someone responsible for their actions?” ’ ”
and “ ‘ “This is what you expect when you have no authority
figure.” ’ ” (Ibid.) Third, the court found that Juror No. 5 made
a number of statements during penalty deliberations
referencing race and asserting other jurors could not
understand evidence about defendant’s background because
they were not Black. (Id. at p. 818.)6 Finally, although Juror
No. 5 may have made statements to the contrary, the court was
satisfied that the juror could follow the instruction stating death
is a worse punishment than life imprisonment without the
possibility of parole. (Ibid.) Based on its factual findings, the
court concluded Juror No. 5 had concealed his racial views in
voir dire, prejudged the penalty decision without evidentiary
Statements attributed to Juror No. 5 included, for
example: “ ‘ “Black people don’t admit being abused” ’ ”;
“ ‘ “Black kids have a different relationship with their
fathers” ’ ”; and, regarding evidence of defendant’s childhood
abuse, “ ‘ “I know . . . more went on than we were shown.” ’ ”
(Wilson, supra, 44 Cal.4th at p. 818.
Opinion of the Court by Corrigan, J.
basis, and improperly considered race and racial stereotypes in
violation of the instructions. (Id. at pp. 819–820.) It dismissed
the juror for misconduct. (Id. at p. 820.
The next day, Juror No. 5 was replaced by an alternate,
Juror No. 17. Shortly after deliberations resumed, the jury sent
a note informing the court that the new juror “ ‘is unable to give
the death penalty’ ” and “ ‘feels very strongly about this.’ ”
When questioned, Juror No. 17 explained that his views on the
death penalty had changed over the course of the trial. He now
realized his “conscience and the law conflict,” making it
impossible for him to vote for the death penalty. His view was
based not on the circumstances of this particular case but on his
strongly held religious beliefs. He explained that he had
weighed the aggravating and mitigating evidence but found
himself incapable of imposing the death penalty due to feelings
grounded in his Catholic faith. The court found him
disqualified, excused him, and replaced him with another
alternate. The next day, the jury returned a verdict fixing the
penalty at death.
We concluded the trial court erred in dismissing Juror
No. 5. The record did not establish that the juror had
intentionally concealed information, and any unintentional
concealment of his views did not render him unable to perform
his duty as a juror. (Wilson, supra, 44 Cal.4th at pp. 823–824.
“Juror No. 5’s particular view of the evidence, refracted through
the prism of his own experience as an African-American man
who had raised a son, showed neither a refusal to deliberate nor
an inability to perform his duty as a juror to a demonstrable
.” (Id. at p. 824.) Nor did the juror improperly rely on
facts not in evidence. Rather, he merely relied “on his life
experiences to interpret the evidence presented.” (Id. at p. 825.
Opinion of the Court by Corrigan, J.
Interpreting evidence based on a juror’s own life experiences, we
explained, is not misconduct in the penalty phase of a capital
trial. (Id. at pp. 830–831.) Finally, the record demonstrated
that Juror No. 5 could follow an instruction to treat death as the
most severe penalty (id. at pp. 834–836) and did not establish
that the juror had prejudged the penalty question (id. at
pp. 840–841). Although discharging Juror No. 5 did not affect
the guilt verdict, it required reversal of the penalty judgment.
(Id. at pp. 841–842.) This disposition rendered it unnecessary
for us to address defendant’s claim that the court also erred in
dismissing Juror No. 17. (Id. at p. 841, fn. 19.
After the remittitur issued, defendant filed a motion
asserting that constitutional double jeopardy principles barred
the prosecution from retrying the penalty phase. The trial court
denied the motion based on People v. Hernandez (2003) 30
Cal.4th 1 (Hernandez), which it found to be controlling.
2. Discussion
The Fifth Amendment of the United States Constitution
states that no person shall “be subject for the same offense to be
twice put in jeopardy of life or limb.” (U.S. Const., 5th Amend.
To the same effect, the California Constitution declares that
“[p]ersons may not twice be put in jeopardy for the same
offense.” (Cal. Const., art. I, § 15.) Although the California
double jeopardy clause may provide greater protection than the
Fifth Amendment in some circumstances (see, e.g., People v.
(2003) 30 Cal.4th 660, 692), the California provision is
generally interpreted consistently with its federal counterpart
absent cogent reasons for a departure. (See id. at pp. 686–687;
People v. Eroshevich (2014) 60 Cal.4th 583, 588 (Eroshevich).
We need not defer to federal decisions, however, when the
Opinion of the Court by Corrigan, J.
United States Supreme Court has not yet decided the parallel
question under the federal Constitution. (See People v. Buza
(2018) 4 Cal.5th 658, 686.
“At its core, the double jeopardy clause ‘protect[s] an
individual from being subjected to the hazards of trial and
possible conviction more than once for an alleged offense.’
(Green v. United States (1957) 355 U.S. 184, 187 [2 L.Ed.2d 199,
78 S.Ct. 221].) The policy underlying the double jeopardy
protection ‘is that the State with all its resources and power
should not be allowed to make repeated attempts to convict an
individual . . . thereby subjecting him to embarrassment,
expense and ordeal and compelling him to live in a continuing
state of anxiety and insecurity.’ (Id. at p. 187.)” (Eroshevich,
supra, 60 Cal.4th at p. 588.
Whether double jeopardy principles bar a second
prosecution depends on how the first trial ended. “An acquittal
is accorded special weight.” (United States v. DiFrancesco
(1980) 449 U.S. 117, 129 (DiFrancesco).) “The constitutional
protection against double jeopardy unequivocally prohibits a
second trial following an acquittal” (Arizona v. Washington
(1978) 434 U.S. 497, 503), because permitting a second trial,
“however mistaken the acquittal may have been, would present
an unacceptably high risk that the Government, with its vastly
superior resources, might wear down the defendant so that ‘even
though innocent he may be found guilty.’ ” (United States v.
(1978) 437 U.S. 82, 91 (Scott).
The result may be different if the first trial ends in a
conviction that is later overturned. “It has long been settled . . .
that the Double Jeopardy Clause’s general prohibition against
successive prosecutions does not prevent the government from
Opinion of the Court by Corrigan, J.
retrying a defendant who succeeds in getting his first conviction
set aside, through direct appeal or collateral attack, because of
some error in the proceedings leading to conviction.” (Lockhart
v. Nelson
(1988) 488 U.S. 33, 38 (Lockhart); see DiFrancesco,
supra, 449 U.S. at p. 131; United States v. Jorn (1971) 400 U.S.
470, 484 (Jorn).) Two policy considerations underlie this rule.
First, “society would pay too high a price ‘were every accused
granted immunity from punishment because of any defect
sufficient to constitute reversible error in the proceedings
leading to conviction.’ ” (Tibbs v. Florida (1982) 457 U.S. 31, 40.
Second, requiring retrial after a reversal on appeal “is not the
type of governmental oppression targeted by the Double
Jeopardy Clause.” (Ibid.; see Scott, supra, 437 U.S. at p. 91.
California courts have identified an additional rationale: “By
seeking reversal of a judgment of conviction on appeal, ‘ “[i]n
effect, [a defendant] assents to all the consequences legitimately
following such reversal, and consents to be tried anew.” ’ ”
(Eroshevich, supra, 60 Cal.4th at p. 591.) If the appeal of a
conviction is successful, “retrial simply ‘affords the defendant a
second opportunity to seek a favorable judgment’ and does not
violate the constitutional prohibitions against double jeopardy.”
(People v. Hatch (2000) 22 Cal.4th 260, 274 (Hatch); see
Lockhart, at p. 42.) Permitting a retrial under these
circumstances provides a defendant with the fair trial to which
he is entitled, unaffected by the prejudicial error that tainted
the original proceedings.
A settled exception to this rule permitting retrial after a
successful appeal occurs when a conviction has been reversed
due to insufficiency of the evidence. (DiFrancesco, supra, 449
U.S. at p. 131; see Burks v. United States (1978) 437 U.S. 1, 16.
“When the evidence is legally insufficient, it means that ‘ “the
Opinion of the Court by Corrigan, J.
government’s case was so lacking that it should not have even
been submitted to the jury.” ’ ” (Eroshevich, supra, 60 Cal.4th at
p. 591.) But the high court has stressed that “a reversal based
solely on evidentiary insufficiency has fundamentally different
implications, for double jeopardy purposes, than a reversal
based on . . . ordinary ‘trial errors.’ ” (Lockhart, supra, 488 U.S.
at p. 40.) “While the former is in effect a finding ‘that the
government has failed to prove its case’ against the defendant,
the latter ‘implies nothing with respect to the guilt or innocence
of the defendant,’ but is simply ‘a determination that [he] has
been convicted through a judicial process which is defective in
some fundamental respect.’ ” (Ibid.
In Hernandez, supra, 30 Cal.4th 1, we considered how
these principles apply when a conviction has been reversed due
to the improper discharge of a seated juror. Near the end of
Hernandez’s trial for child sexual abuse, a juror told the court
she was “bothered” by the prosecutor’s tone in cross-examining
a defense witness and believed the prosecutor and judge had
been “smirking or making faces” during the witness’s testimony.
(Id. at p. 4.) She said she could be fair but expressed
disappointment with “ ‘certain aspects’ of the trial.” (Ibid.
Based on these remarks and the juror’s “ ‘body language,’ ” the
trial court determined the juror could not be fair to the People
and discharged her from the panel. (Ibid.) The juror was
replaced with an alternate and Hernandez was convicted.
(Ibid.) The Court of Appeal reversed. It concluded removing the
juror was akin to granting an unnecessary mistrial, thus
implicating double jeopardy principles. (Id. at pp. 4–5; see
Curry v. Superior Court (1970) 2 Cal.3d 707, 717.
We granted review and disagreed with the Court of
Appeal’s double jeopardy holding. (Hernandez, supra, 30
Opinion of the Court by Corrigan, J.
Cal.4th at p. 6.) Our analysis began with the general rule that
“the double jeopardy guarantee imposes no limitation on the
power to retry a defendant who has succeeded in having his
conviction set aside on appeal on grounds other than
insufficiency of evidence.” (Ibid.) If sufficient evidence exists to
support a conviction, we noted, retrial does not oppress the
defendant but provides a renewed opportunity for the defendant
to obtain a fair trial free from error. (Id. at p. 7; see Lockhart,
supra, 488 U.S. at p. 42.) Moreover, as the high court had
observed in DiFrancesco, supra, 449 U.S. at page 131 and
United States v. Tateo (1964) 377 U.S. 463, 466 (Tateo), “it would
be a ‘ “high price indeed for society to pay” ’ if reversible trial
errors resulted in immunity from punishment.” (Hernandez, at
p. 8.
Policy concerns raised by Hernandez and the Court of
Appeal did not support a departure from this rule. Cases
discussing a defendant’s “ ‘valued right to have his trial
completed by a particular tribunal’ ” (Crist v. Bretz (1978) 437
U.S. 28, 36 (Crist)) simply concerned the rule that jeopardy
attaches when a jury is empaneled and sworn (see id. at p. 35).
Other cited cases considered the double jeopardy consequences
of granting an unnecessary mistrial (see Stone v. Superior Court
(1982) 31 Cal.3d 503, 516, abrogated in part by Blueford v.
(2012) 566 U.S. 599). (Hernandez, supra, 30 Cal.4th
at p. 8.) The cited cases did not stand for the broad “proposition
that [a] defendant becomes immune from further prosecution
merely because one particular juror is improperly discharged,
an alternate substituted, and an actual verdict duly entered.”
(Ibid.) An alternate juror is, after all, part of the same jury
selected by the defendant. (Id. at p. 9.) Thus, even if it is
unauthorized, substitution of a regular juror with an alternate
Opinion of the Court by Corrigan, J.
does not deprive the defendant of his chosen jury. (Ibid.) Nor
were we persuaded that the discharge of Hernandez’s juror gave
the prosecution “any concrete advantage” (ibid.), considering the
juror’s assurances that she could be fair to both sides. Finally,
we discounted the Court of Appeal’s fear that, absent a bar to
retrial, the discharge of jurors sympathetic to the defense
“ ‘could become routine.’ ” (Id. at p. 10.) The concern was “both
unrealistic and unfair,” we noted, because it presumed trial
judges would concur in such discharges and expose their
judgments to routine reversals. (Ibid.
Accordingly, we held that “error in discharging a juror
should be treated no differently from any other trial error leading
to reversal on appeal
, such as prejudicial instructional or
evidentiary error or ordinary prosecutorial misconduct.”
(Hernandez, supra, 30 Cal.4th at p. 10, italics added.) In view
of the clear and settled law “that, as a general rule, errors other
than insufficiency of evidence do not preclude retrial following
reversal of conviction” (ibid.), we concluded double jeopardy
principles did not bar retrial (id. at p. 11). A concurrence by
Justice Werdegar urged a narrow construction of this holding.
She observed that the double jeopardy consequences of the error
might have differed “had the trial court dismissed more than a
single juror, had it not replaced the discharged juror with a
sworn alternate, had the court reopened voir dire and permitted
additional peremptory challenges, or had the court’s purpose in
discharging the juror been to influence the verdict.” (Id. at p. 13
(conc. opn. of Werdegar, J.).
We have not previously addressed whether Hernandez
applies to retrial following the improper discharge of a juror
from the penalty phase of a capital trial. Forty years before
Hernandez, People v. Hamilton (1963) 60 Cal.2d 105,
Opinion of the Court by Corrigan, J.
disapproved in part in People v. Daniels (1991) 52 Cal.3d 815,
held that the erroneous dismissal of a juror during a capital
trial’s penalty phase warranted reversal. Although mindful of
the time and expense a new penalty trial would likely involve,
we remanded with specific directions that such a retrial be
conducted. (Hamilton at p. 138.) The issue of double jeopardy
was not raised or addressed, however. More recently, People v.
(2016) 1 Cal.5th 432 held that the improper removal
of a juror during guilt phase deliberations of a capital trial
warranted reversal of the entire judgment. Citing Hernandez,
this court held unanimously and unequivocally: “There is no
double jeopardy bar to retrial of the case” (id. at p. 454), under
either the federal or state constitutions (id. at p. 460).
We now make explicit what was implicit in Armstrong’s
holding: As a general rule, the erroneous discharge of a capital
juror is no different from any other trial error warranting
reversal of judgment, and double jeopardy protections impose no
obstacle to retrial. (See Hernandez, supra, 30 Cal.4th at p. 10.
Unlike a reversal for insufficiency of the evidence, the erroneous
removal of a single juror cannot be analogized to an acquittal.
Retrial of the penalty phase after such an error does not place
the defendant twice in jeopardy; rather, it provides a second
opportunity for a trial free from prejudicial error. (See Hatch,
supra, 22 Cal.4th at p. 274.
Defendant urges us to depart from Hernandez, either in
all capital cases or in his particular circumstances. The
arguments are unpersuasive.
Defendant first broadly asserts Hernandez’s holding
should not extend to penalty retrials. His suggestion that
double jeopardy protections apply with different or greater force
Opinion of the Court by Corrigan, J.
in capital cases is belied by United States Supreme Court
precedent, however. Bullington v. Missouri (1981) 451 U.S. 430,
439 confirmed that the double jeopardy clause applies to capital-
sentencing proceedings that “have the hallmarks of the trial on
guilt or innocence.” In this context, a verdict of life
imprisonment signifies that the jury has found that the
predicate for imposing a death sentence has not been
established. “A verdict of acquittal on the issue of guilt is, of
course, absolutely final. The values that underlie this principle
. . . are equally applicable when a jury has rejected the State’s
claim that the defendant deserves to die.” (Id. at p. 445.) In that
event, the jury’s rejection of the state’s case for the death penalty
is the functional equivalent of an acquittal on the state’s
separate charge that the death penalty is called for. However,
the double jeopardy bar to retrial applies only if the “first life
sentence was an ‘acquittal’ based on findings sufficient to
establish legal entitlement to the life sentence.” (Sattazahn v.
(2003) 537 U.S. 101, 108 (Sattazahn).) In
Sattazahn, the defendant was sentenced to life imprisonment in
accordance with a Pennsylvania statute requiring such a
disposition when his jury deadlocked at the penalty phase. (Id.
at pp. 103–104.) After his murder conviction was reversed on
appeal, he was retried and sentenced to death. (Id. at p. 105.
Sattazahn asserted double jeopardy precluded the imposition of
this more severe sentence in the second trial, but the high court
disagreed. It stressed that “the touchstone for double-jeopardy
protection in capital-sentencing proceedings is whether there
has been an ‘acquittal,’ ” and neither the first jury’s deadlock on
penalty nor the trial judge’s entry of a life sentence in
accordance with the Pennsylvania statute constituted an
acquittal. (Id. at p. 109.
Opinion of the Court by Corrigan, J.
Here, defendant’s first penalty trial did not result in an
acquittal or its equivalent. He was sentenced to death. When
the death penalty has been imposed, reversal of that judgment
on appeal generally does not bar retrial unless the reviewing
court determines the evidence was “legally insufficient to justify
imposition of the death penalty.” (Poland v. Arizona (1986) 476
U.S. 147, 157.) Reversal of the penalty judgment in defendant’s
first automatic appeal was not based on insufficient evidence.
Instead, we reversed because of the erroneous excusal of a juror.
(Wilson, supra, 44 Cal.4th at pp. 841–842.) That reversal was
not the equivalent of an “acquittal” for double jeopardy
purposes. (See Poland, at p. 157.) Because neither the jury nor
this court “acquitted” defendant in his first trial, double
jeopardy did not bar his retrial. (See Sattazahn, supra, 537 U.S.
at p. 109.
Ignoring these authorities or dismissing their relevance,
defendant argues various policy and practical considerations
counsel against extending Hernandez to penalty retrials. He
notes that cases limiting double jeopardy protections have
typically stressed the high cost to society if trial errors could
result in a defendant’s complete immunity from punishment.
(See, e.g., DiFrancesco, supra, 449 U.S. at p. 131; Hernandez,
supra, 30 Cal.4th at p. 8.) Barring penalty retrials would not
allow capital defendants’ conduct to go unpunished, defendant
observes, because they would still have to serve a life sentence.
But it is settled that the law considers the death penalty to be a
more severe punishment than life in prison. (See Woodson v.
North Carolina
(1976) 428 U.S. 280, 305 (Woodson); People v.
(1988) 47 Cal.3d 315, 362.) Under defendant’s broad
notion of double jeopardy, any reversible trial error in the
penalty phase would automatically render a defendant immune
Opinion of the Court by Corrigan, J.
from the death penalty. This result finds no support in either
California or federal law. Some states, like Pennsylvania,
prohibit a penalty retrial when the first jury cannot reach a
verdict. Of course, they are free to do so, but California has not
adopted such a policy.
Defendant also cites the practical impediments to penalty
retrials, but these complaints suffer from the same shortcoming.
Defendant observes that, due to delays inherent in the appellate
process, penalty retrials will typically occur several years after
the original trial. Memories may fade; witnesses may become
unavailable; evidence may be lost or destroyed. Conversely,
retrial gives the prosecution an opportunity to present “new or
better evidence” in support of its position. For example,
defendant notes, a new forensic pathologist testified in his
second penalty trial about signs that Uwe may have been
burned with a blowtorch, contrary to expert testimony in the
first trial. Finally, defendant urges that barring penalty retrials
would bring closure to victims and financial savings to the
criminal justice system. Yet these arguments apply to all
retrials after reversal of a judgment on appeal. There will
always be a period of delay, and the resulting difficulties with
witnesses and evidence are likely to impact the prosecution as
well as the defense. The defense also has the same opportunity
as the prosecution to marshal new and favorable evidence. And,
while barring retrials would more expeditiously end criminal
proceedings, these benefits have never been considered
sufficient to make society pay the “high price” of reducing or
eliminating a statutorily prescribed punishment due to trial
errors. (Tateo, supra, 377 U.S. at p. 466.
Defendant posits two additional reasons for distinguishing
Hernandez. Whereas the dismissed juror in Hernandez did not
Opinion of the Court by Corrigan, J.
obviously favor the defense and said she “was . . . ‘committed to
being fair’ ” (Hernandez, supra, 30 Cal.4th at p. 10), Juror No. 5
was the lone holdout for life imprisonment. Defendant contends
discharging him gave the prosecution a clear advantage. That
is so, and that is why the penalty verdict was reversed. But the
cases are indistinguishable on the point in question. In each,
the removal of a juror was prejudicial error, and the remedy was
the same: reversal, with a remand for a new trial.
Additionally, defendant notes that only one juror was
dismissed in Hernandez, whereas the trial court dismissed two
jurors in his prior trial. He attaches significance to this
difference because Justice Werdegar’s concurrence in
Hernandez stated the double jeopardy result might have been
different if, inter alia, “the trial court [had] dismissed more than
a single juror.” (Hernandez, supra, 30 Cal.4th at p. 13 (conc.
opn. of Werdegar, J.).) Read in context, however, it is clear this
statement was meant to contrast the removal of a single juror
with the more problematic situations in which multiple jurors
are improperly discharged or an empaneled juror is replaced
with someone from the venire rather than a sworn alternate.
(See id. at pp. 12–13.)7 Here, as in Hernandez, the court
dismissed a single juror and replaced him with a sworn
The concurrence posited that different scenarios might
produce different double jeopardy consequences. It observed:
“Retrial would of course be prohibited if defendant’s entire
chosen jury of 12 persons had been improperly discharged
against his wishes. Does the same rule apply if only a single
juror is improperly discharged?” (Hernandez, supra, 30 Cal.4th
at p. 12 (conc. opn. of Werdegar, J.).) While finding it
unnecessary to make a global pronouncement, the concurrence
went on to consider a circumstance in which the replacement
juror was not drawn from among the sworn alternates. (Ibid.
Opinion of the Court by Corrigan, J.
alternate. Almost immediately, that alternate, Juror No. 17,
was dismissed for reasons unrelated to the dismissal of Juror
No. 5. The seat was then filled with another sworn alternate.
Defendant spends considerable effort arguing that the discharge
of Juror No. 17 was error, but we did not reach that question in
defendant’s prior appeal and need not reach it now. Even if the
court had erred a second time in discharging Juror No. 17, the
remedy would have been the same. Defendant was entitled to
reversal of the judgment, an outcome he received. No authority
suggests double jeopardy bars retrial if the trial court commits
more than one reversible error. Moreover, because “an alternate
juror, even if improperly seated, is part of the same jury chosen
by the defendant” (Hernandez, at p. 9), the substitution of a new
alternate for Juror No. 17 did not deprive defendant of his
“ ‘valued right to have his trial completed by a particular
tribunal’ ” (Crist, supra, 437 U.S. at p. 36).
Finally, defendant asserts double jeopardy protections
barred retrial because “the trial court manipulated the penalty
phase jury to ensure a death verdict.” The court below impliedly
rejected this claim when it denied defendant’s plea of once in
jeopardy. Substantial evidence supports that finding. The court
in defendant’s first trial undertook a careful and thorough
inquiry of the entire panel before dismissing Juror No. 5 (see
Wilson, supra, 44 Cal.4th at pp. 816–822) and questioned Juror
No. 17 at length before determining he was unqualified to serve
for an unrelated reason (see ante, at pp. 11−12). Assuming
judicial misconduct of this nature could trigger a double
jeopardy bar to retrial (see Jorn, supra, 400 U.S. at p. 485, fn. 12
[reserving this possibility]), we defer to the trial court’s implied
factual finding that no such misconduct occurred.
Opinion of the Court by Corrigan, J.
B. Due Process
Defendant separately contends the penalty retrial violated
due process because it failed to satisfy the heightened reliability
required of capital cases. (See Woodson, supra, 428 U.S. at
p. 305.) A similar claim was raised in Sattazahn, and the high
court rejected it as “nothing more than [the] double-jeopardy
claim in different clothing.” (Sattazahn, supra, 537 U.S. at
p. 116.) The same is true here.
Defendant offers no support for his assertion that the
penalty retrial deprived him of a fair opportunity to challenge
the prosecution’s case or assert his own position that death was
an inappropriate penalty in his particular circumstances.
Defendant was aware of the prosecution’s strategy from the first
trial; he was represented by the same attorney in both cases; he
had adequate time to prepare; and he presented a robust
mitigation defense through multiple witnesses.
Rather than pointing to any deficiency in the retrial
proceeding, defendant instead renews his complaint that the
court in his first trial erred by dismissing the alternate (Juror
No. 17) called to replace Juror No. 5. But defendant “already
has been afforded a new penalty phase trial free from such
error,” and that is the judgment now before us. (People v.
(2002) 27 Cal.4th 1187, 1207.) As discussed, the
discharge of Juror No. 17 did not deprive defendant of his chosen
jury because the juror was replaced with another sworn
alternate. Attempting to shoehorn his facts into one of the
possible double jeopardy exceptions noted in Justice Werdegar’s
Hernandez concurrence, defendant claims the discharge of Juror
No. 17 “was remarkably similar to reopening voir dire.” (See
Hernandez, supra, 30 Cal.4th at p. 13 (conc. opn. of Werdegar,
Opinion of the Court by Corrigan, J.
J.).) But that assertion is belied by the facts. The court did not
reopen voir dire, nor did it grant or permit the use of any extra
peremptory challenges. It simply discharged a juror who found
it “impossible” to impose the death penalty and seated another
sworn alternate. Any error the court may have made in
discharging Juror No. 17 was remedied by our reversal of
defendant’s first death judgment.
Retrial of the penalty phase did not violate double
jeopardy, and defendant has failed to support a due process
claim. Like the United States Supreme Court, “[w]e decline to
use the Due Process Clause as a device for extending the double
jeopardy protection to cases where it otherwise would not
extend.” (Dowling v. United States (1990) 493 U.S. 342, 354; see
People v. Barragan (2004) 32 Cal.4th 236, 244.
C. Counsel’s Conflict of Interest
Defendant claims the court erred in failing to inquire
about defense counsel’s conflict of interest upon learning that
defendant had raised ineffective assistance of counsel claims in
a pending habeas corpus petition. He also faults the court for
failing to explore whether he wanted to obtain substitute
counsel. We conclude both claims lack merit on this record.
Michael Belter represented defendant in his first trial. A
county agency that secures counsel for indigent defendants
arranged for Belter to represent defendant in the retrial and
sought his appointment. The court observed it would be sensible
for Belter to handle the case again, and the prosecution agreed
it would be the most efficient way to proceed. Advised of the
impending appointment, defendant wanted to see Belter and
requested a transfer to the Riverside jail to facilitate their
meetings. When the court asked if appointing Belter and
Opinion of the Court by Corrigan, J.
cocounsel Christopher Harmon would be agreeable to
defendant, he responded, “Well, I can’t really say nothing ’til
they show up.” At the next hearing on January 9, 2009, the
parties discussed scheduling a trial readiness conference. The
court asked if defendant had been able to meet with Belter, and
defendant said, “Yes, actually, I have an objection to Mr. Belter.
But since he’s not here, I really don’t want to raise it.” The court
responded that defendant could “take that up with counsel or
wait until the next hearing.”
Belter made his first appearance for defendant six weeks
later, on February 20, 2009, at a trial readiness conference.
Belter advised the court that defendant had filed a habeas
corpus petition related to his first trial and that petition was
pending in this court. Belter wanted to meet with appellate and
habeas counsel before proceeding further. Defendant
apparently attempted to speak at that point because the court
interrupted itself to say: “You need to talk to your attorney, sir,
before you address the Court.” The record does not indicate
whether defendant spoke to Belter or cocounsel Harmon, but
Belter next responded: “Mr. Wilson — he’s conferred with me
this morning. He wants the Court to be aware that there are
pending issues with respect to the guilt phase of his case,
competency of trial counsel in that proceeding, and other issues.
And those are in the habeas petition that is still pending before
the Supreme Court.”
At the next hearing, Belter noted that, although the
penalty phase issues raised in defendant’s habeas corpus
petition had been mooted by our decision reversing the penalty
judgment, issues related to the guilt phase remained
unresolved. He was reluctant to proceed with trial before
obtaining a decision on these claims. After some discussion, the
Opinion of the Court by Corrigan, J.
parties settled on a trial date in January 2010. That date was
later continued for various reasons, including to permit
resolution of the pending habeas corpus petition. Defendant’s
petition raised 29 claims, four of which alleged ineffective
assistance of counsel during the guilt phase of trial. The petition
was denied on June 30, 2010. Jury selection in defendant’s
retrial began on October 13, 2010.
Beyond his inchoate objection before Belter appeared on
his behalf, defendant made no explicit request to discharge his
attorney or to have a new attorney appointed. He now contends
the trial court was on notice that Belter had a conflict of interest
and its failure to inquire about the conflict requires reversal. We
find no reversible error.
“A criminal defendant is guaranteed the right to the
assistance of counsel by the Sixth Amendment to the United
States Constitution and article I, section 15 of the California
Constitution. This constitutional right includes the correlative
right to representation free from any conflict of interest that
undermines counsel’s loyalty to his or her client. [Citations.] ‘It
has long been held that under both Constitutions, a defendant
is deprived of his or her constitutional right to the assistance of
counsel in certain circumstances when, despite the physical
presence of a defense attorney at trial, that attorney labored
under a conflict of interest that compromised his or her loyalty
to the defendant.’ [Citation.] ‘As a general proposition, such
conflicts “embrace all situations in which an attorney’s loyalty
to, or efforts on behalf of, a client are threatened by his
responsibilities to another client or a third person or his own
interests. [Citation.]” ’ ” (People v. Doolin (2009) 45 Cal.4th 390,
Opinion of the Court by Corrigan, J.
“Under the federal Constitution, prejudice is presumed
when counsel suffers from an actual conflict of interest. (Cuyler
v. Sullivan
(1980) 446 U.S. 335 [64 L.Ed.2d 333, 100 S.Ct.
1708].) This presumption arises, however, ‘only if the defendant
demonstrates that counsel “actively represented conflicting
interests” and that “an actual conflict of interest adversely
affected his lawyer’s performance.” ’ (Strickland v. Washington
(1984) 466 U.S. 668, 692 [80 L.Ed.2d 674, 104 S.Ct. 2052],
quoting Cuyler, at p. 348.) An actual conflict of interest means
‘a conflict that affected counsel’s performance — as opposed to a
mere theoretical division of loyalties.’ (Mickens v. Taylor (2002
535 U.S. 162, 171 [152 L.Ed.2d 291, 122 S.Ct. 1237], italics
omitted.) Under the federal precedents, which we have also
applied to claims of conflict of interest under the California
Constitution, a defendant is required to show that counsel
performed deficiently and a reasonable probability exists that,
but for counsel’s deficiencies, the result of the proceeding would
have been different.” (People v. Gonzales and Soliz (2011) 52
Cal.4th 254, 309–310.
When the trial court knows, or reasonably should know, of
the possibility that defense counsel has a conflict of interest, it
has a duty to inquire into the matter. (Wood v. Georgia (1981
450 U.S. 261, 272; People v. Bonin (1989) 47 Cal.3d 808, 836.
Defendant claims the court was put on notice about the
possibility of a conflict because he voiced “an objection” to Belter
at a pretrial hearing before Belter’s first appearance. But
defendant declined to pursue the matter further. He did not
specify what that objection was, or the basis for it. There was
no reason for the court to presume it had anything to do with a
potential conflict of interest.
Opinion of the Court by Corrigan, J.
Defendant also asserts the court should have become
aware of a potential conflict because it was told defendant had
a habeas corpus petition pending that alleged ineffective
assistance of counsel claims from his first trial. We need not
resolve whether the existence of pending ineffective assistance
claims was sufficient to put the court on notice of a potential
conflict. Even assuming the court should have inquired about a
potential conflict, defendant fails to show prejudice. “ ‘When a
defendant claims that a trial court’s inquiry into a potential
conflict was inadequate, the defendant still must demonstrate
the impact of the conflict on counsel’s performance.’ [Citations.]
‘Absent a demonstration of prejudice, we will not remand to the
trial court for further inquiry.’ ” (People v. Rices (2017) 4 Cal.5th
49, 64; see People v. Nguyen (2015) 61 Cal.4th 1015, 1071.
To demonstrate a prejudicial conflict of interest, a
defendant must show that defense counsel was burdened by an
actual conflict of interest that adversely affected counsel’s
performance. (Mickens v. Taylor, supra, 535 U.S. at p. 171;
People v. Perez (2018) 4 Cal.5th 421, 435.) “When determining
whether counsel’s performance was ‘ “adversely affected” ’ by
the purported conflict under this standard, we consider whether
‘ “counsel ‘pulled his punches,’ i.e., whether counsel failed to
represent defendant as vigorously as he might have, had there
been no conflict.” ’ [Citation.] This analysis will often turn on
choices that a lawyer could have made, but did not make. In
order to determine whether those choices resulted from the
alleged conflict of interest, we must analyze the record to
determine whether a lawyer who did not face the same conflict
would have made different choices as well as whether counsel’s
choices were the product of tactical reasons rather than the
alleged conflict of interest.” (Perez, at pp. 435–436.
Opinion of the Court by Corrigan, J.
Defendant posits only one way the alleged conflict may
have affected Belter’s representation. Noting that one habeas
claim asserted counsel was ineffective in failing to present a
defense based on cognitive deficits or other mental impairments,
defendant suggests Belter may have avoided developing such
mitigation evidence in the retrial because doing so “might be
viewed as an admission of his ineffective assistance originally.”
As noted, however, reversal of the penalty judgment had
rendered moot all claims in the habeas corpus petition alleging
ineffective assistance of counsel in the penalty phase.
Moreover, the record on appeal does not support
defendant’s speculation that Belter shaped his defense strategy
to avoid an ineffective assistance finding. Contrary to
defendant’s assertion, the record indicates that Belter did
pursue evidence supporting a neurological defense. Early in the
proceedings, Belter obtained an order for defendant to be
examined by a neuropsychologist. When testing could not be
conducted because defendant was shackled, Belter obtained a
second order requiring jail officials to use some other form of
restraint so that defendant could be tested with his hands free.
The results of that testing are not in the record, nor is there any
other evidence to support defendant’s claim that Belter failed to
present a neurological defense due to a conflict of interest. We
do not know the results of any neuropsychological examination,
or what opinions the defense expert may have formed.
Whatever those results, counsel may have reasonably decided to
focus instead on defendant’s social history as evidence in
mitigation. As we noted in defendant’s prior appeal, “It is not
the typical American family in which a child is conceived by his
father’s rape of his mother when she was a preteen, the child’s
father is convicted of rape and attempted murder and sent to
Opinion of the Court by Corrigan, J.
prison, the child’s stepfather is similarly tried for murder, and
the child’s stepfather beats the child to the point where the child
suffers convulsions.” (Wilson, supra, 44 Cal.4th at pp. 830–831.
Counsel took steps to evaluate the question of cognitive deficits
and presented extensive mitigation, including detailed evidence
of defendant’s difficult childhood presented through 14 different
witnesses, many of them family members. The record does not
support defendant’s assertion that counsel’s performance was
impaired by a conflict of interest.
In a related claim, defendant contends his unelaborated
“objection” to Belter at the January 9 hearing was tantamount
to a request for substitute counsel under People v. Marsden
(1970) 2 Cal.3d 118. He argues the court’s failure to inquire into
this request was “reversible per se.” On this record, the claim
“The legal principles governing a Marsden motion are well
settled.” (People v. Johnson (2018) 6 Cal.5th 541, 572
(Johnson).) If a defendant who asserts inadequate
representation seeks to discharge appointed counsel and obtain
a substitute attorney, the court must allow the defendant to
explain the basis for this contention and to present specific
instances of counsel’s inadequate performance. (Ibid.) For the
duty to hold a Marsden hearing to be triggered, however, there
must be “ ‘at least some clear indication by defendant,’ either
personally or through his current counsel, that defendant ‘wants
a substitute attorney.’ ” (People v. Sanchez (2011) 53 Cal.4th 80,
90; see People v. Lucky (1988) 45 Cal.3d 259, 281, fn. 8.
Equivocal statements of dissatisfaction do not suffice. (See, e.g.,
People v. O’Malley (2016) 62 Cal.4th 944, 1006.
Opinion of the Court by Corrigan, J.
Defendant gave no clear indication he wanted a substitute
attorney and never requested one. After obtaining a transfer so
that he could be housed closer to Belter, and before Belter made
his first appearance, defendant said, “I have an objection to Mr.
Belter,” but he explicitly declined to explain what his objection
was or what remedy, if any, he sought. The court responded that
defendant could “take that up with counsel or wait until the next
hearing.” Defendant did not renew his objection to Belter at the
next hearing, nor did he request substitute counsel at any time
Discussion of the pending habeas corpus petition,
however, does make this a close call. At defendant’s urging,
Belter informed the court that the petition included unresolved
ineffective assistance of counsel issues related to the guilt phase
of trial. Certainly one plausible reason for making the court
aware of the pending claims involving Belter, especially in light
of defendant’s earlier “objection,” would have been to articulate
grounds for requesting new counsel. Yet neither defendant nor
Belter ever stated that defendant wanted substitute counsel,
and we will not lightly assume that counsel violated his ethical
and professional duties by failing to convey such a request by
his client. Under the circumstances, defendant’s bare statement
that he had “an objection” does not constitute a clear indication
that he wanted to obtain new counsel. Expressions of
dissatisfaction with appointed counsel that might be inferred
here were not sufficient to trigger the court’s obligation to hold
a Marsden hearing. (See Johnson, supra, 6 Cal.5th at pp. 572–
574.) The burden is ultimately on the defendant to articulate
his request. The trial court has an obligation to make a clear
record and give a defendant the necessary latitude to request
Opinion of the Court by Corrigan, J.
the remedy being sought. At the same time, the court must take
care not to interfere with the attorney-client relationship.
Defendant contends he would have expressed a desire for
new counsel at the February 20 hearing but the trial court
prevented him from speaking. Because the court was aware
that he objected to Belter, defendant argues it was especially
problematic for the court to admonish him that he was required
to convey his comments through that very same attorney. If the
court had in fact silenced defendant, or required him to speak
only through Belter, we might agree that his rights to due
process and effective counsel were implicated. However, the
record does not bear out defendant’s claim. Contrary to
defendant’s assertion, the court did not tell him he could speak
only through his attorney. What the court said was: “You need
to talk to your attorney, sir, before you address the Court.” This
direction was consistent with the court’s advice to defendant at
an earlier hearing. In a discussion of supplies defendant wanted
at the jail, the court asked, “Was there anything else, sir?” then
added, “Talk to your attorney first, make sure you’re not going
to say anything wrong.”
Considering the precise words of the court’s admonition,
we conclude the record does not support defendant’s assertion
that the court prevented him from speaking up to object to his
attorney. She simply gave him the prudent direction to talk to
counsel “before [he] address[ed] the Court.” This statement left
open defendant’s option to address the court directly after he
had conferred with counsel. The next statement on the record
was Belter’s, however, explaining that defendant wanted the
court to be aware there were pending habeas claims in the
Supreme Court regarding “competency of trial counsel.” After
Belter complied with defendant’s request, defendant made no
Opinion of the Court by Corrigan, J.
further effort to address the court. If the record had
demonstrated that defendant was trying to make a Marsden
motion and Belter elided or misrepresented defendant’s feelings
in his statement to the court, this might be a different case. But
the factual basis for that conclusion does not appear here. The
record on appeal contains no evidence Belter misrepresented
defendant’s feelings in his statement to the court, that
defendant demonstrated any desire to speak further, or that he
was prevented from raising the issue subsequently.
Accordingly, defendant has failed to show the court committed
reversible error.
D. Challenges to Death Penalty Statute
Defendant raises many challenges to the constitutionality
of California’s death penalty statute but acknowledges that we
have previously rejected them. We decline his invitation to
depart from our settled precedents, which hold:
The class of offenders eligible for the death penalty under
section 190.2 is not impermissibly broad. (People v. Beck and
(2019) 8 Cal.5th 548, 669 (Beck and Cruz); People v. Potts
(2019) 6 Cal.5th 1012, 1060.) California’s statutory special
circumstances are not so numerous or expansive that they fail
to perform their constitutionally required narrowing function.
(People v. Navarro (2021) 12 Cal.5th 285, 345 (Navarro); People
v. Vargas
(2020) 9 Cal.5th 793, 837–838.
Section 190.3, factor (a), which permits aggravation based
on the circumstances of the crime, does not result in arbitrary
or capricious imposition of the death penalty. (Navarro, supra,
12 Cal.5th at p. 345; People v. Capers (2019) 7 Cal.5th 989, 1013
(Capers).) The jury’s consideration of unadjudicated criminal
conduct in aggravation under section 190.3, factor (b) does not
Opinion of the Court by Corrigan, J.
violate due process or constitutional prohibitions against cruel
and unusual punishment. (People v. Morales (2020) 10 Cal.5th
76, 113 (Morales); People v. Hoyt (2020) 8 Cal.5th 892, 954
The capital jury’s penalty decision is normative rather
than factual. (Beck and Cruz, supra, 8 Cal.5th at p. 670.) For
this reason, California’s death penalty scheme does not violate
the federal Constitution for failing to require written findings
(People v. Rhoades (2019) 8 Cal.5th 393, 455 (Rhoades));
unanimous findings as to the existence of aggravating factors or
unadjudicated criminal activity (Morales, supra, 10 Cal.5th at
pp. 113–114); or findings beyond a reasonable doubt as to the
existence of aggravating factors (other than section 190.3, factor
(b) or (c) evidence), that aggravating factors outweigh mitigating
factors, or that death is the appropriate penalty (People v. Fayed
(2020) 9 Cal.5th 147, 213 (Fayed); People v. Krebs (2019) 8
Cal.5th 265, 350). The high court’s decisions in Apprendi v. New
(2000) 530 U.S. 466, Ring v. Arizona (2002) 536 U.S. 584,
and Hurst v. Florida (2016) 577 U.S. 92 do not alter these
conclusions. (Navarro, supra, 12 Cal.5th at p. 346; Capers,
supra, 7 Cal.5th at pp. 1013–1014.
The federal Constitution does not require intercase
proportionality review. (Hoyt, supra, 8 Cal.5th at p. 955;
Rhoades, supra, 8 Cal.5th at pp. 455–456.) To the extent
defendant complains he was unconstitutionally denied intracase
proportionality review, California provides such review upon
request (see, e.g., People v. Landry (2016) 2 Cal.5th 52, 125;
People v. Virgil (2011) 51 Cal.4th 1210, 1287), but defendant
raised no such claim in this appeal. California’s capital
sentencing scheme does not violate international norms of
human decency or the Eighth Amendment. (People v. Suarez
Opinion of the Court by Corrigan, J.
(2020) 10 Cal.5th 116, 189 (Suarez); Navarro, supra, 12 Cal.5th
at p. 346.) Nor does the death penalty law violate equal
protection by providing different procedures for capital and
noncapital defendants. (Fayed, supra, 9 Cal.5th at p. 214;
Rhoades, at p. 456.
Finally, “considering the arguments in combination, and
viewing the death penalty law as a whole, it is not
constitutionally defective. . . . ‘California’s capital sentencing
scheme as a whole provides adequate safeguards against the
imposition of arbitrary or unreliable death judgments.’ ” (People
v. Anderson
(2018) 5 Cal.5th 372, 426; see Suarez, supra, 10
Cal.5th at p. 191.
E. Restitution Fine
At the conclusion of defendant’s first trial, the probation
department recommended a $10,000 felony restitution fine. The
court, however, imposed a lesser fine of $4,000. Defendant did
not object or offer evidence concerning his ability to pay, nor did
he dispute the propriety of the fine in his first appeal. After the
penalty retrial, the court questioned whether the amount of
restitution fines and fees needed to be revisited. It expressed an
inclination to simply adopt the previous orders fixing fines, fees,
and restitution. Defense counsel asked that the court “not order
additional restitution” without a hearing. When the subject was
addressed at the next hearing, the prosecutor represented that
defendant had been paying restitution pursuant to the original
court order, and no additional costs had been submitted by the
victims. He recommended that the court impose no further
restitution. The court remarked, “Then I don’t think I need to
revisit restitution,” and defense counsel responded, “Yes.”
Opinion of the Court by Corrigan, J.
Defendant now contends that in setting the $4,000
restitution fine, the court failed to take account of his ability to
pay. He asserts that there was an intervening change in
Government Code section 13967, permitting consideration of
ability to pay, and that he should benefit from this revision. (See
People v. Vieira (2005) 35 Cal.4th 264, 305.) However,
defendant’s argument rests on a factual error. It is clear from
the sentencing minutes and abstract of judgment that
defendant’s restitution fine was imposed under Penal Code
section 1202.4,
section 13967.
Section 1202.4 required consideration of ability to pay at all
relevant times in defendant’s case. When defendant committed
his crimes in 1997, when he was sentenced for them in 2000, and
when he was resentenced in 2010, section 1202.4 required the
court to impose a felony restitution fine between $200 and
$10,000 and directed that it consider “any relevant factors,”
including the defendant’s ability to pay, in setting the amount.
(§ 1202.4, former subd. (d).
Defendant failed to raise an issue concerning his ability to
pay at either sentencing proceeding. The claim is therefore
forfeited on appeal. (People v. Miracle (2018) 6 Cal.5th 318, 356;
People v. Williams (2015) 61 Cal.4th 1244, 1291; People v. Avila
(2009) 46 Cal.4th 680, 729.) In any event, we may assume the
trial court was aware of and fulfilled its statutory duty to
consider ability to pay when setting the restitution fine. (Evid.
Code, § 664; see Williams, at p. 1291.) Defendant identifies
nothing in the record indicating the court breached its duty to
consider ability to pay and has thus failed to establish an abuse
of discretion. (See Miracle, at p. 356; People v. Gamache (2010
48 Cal.4th 347, 409.) Indeed, because the $4,000 fine was less
than half the $10,000 recommended by the probation
Opinion of the Court by Corrigan, J.
department, it appears the court exercised its discretion in this
regard, in light of the circumstances before it.
F. Relief under Senate Bill No. 1437
Defendant filed a supplemental brief shortly before oral
argument asking this court to vacate his murder conviction
because it may have been based on a felony-murder theory that
was rejected by the Legislature in Senate Bill No. 1437 (2017–
2018 Reg. Sess.) (Senate Bill 1437). We delayed submission of
the case and received full briefing of the issue. We now conclude
defendant is not entitled to relief because any error brought
about by retroactive application of Senate Bill 1437 is harmless
beyond a reasonable doubt.
“Under the felony-murder doctrine as it existed at the time
of [defendant’s] trial, ‘when the defendant or an accomplice
kill[ed] someone during the commission, or attempted
commission, of an inherently dangerous felony,’ the defendant
could be found guilty of the crime of murder, without any
showing of ‘an intent to kill, or even implied malice, but merely
an intent to commit the underlying felony.’ (People v. Gonzalez
(2012) 54 Cal.4th 643, 654 [142 Cal. Rptr. 3d 893, 278 P.3d
1242].) Murders occurring during certain violent or serious
felonies were of the first degree, while all others were of the
second degree. (Pen. Code, § 189, subds. (a), (b); Gonzalez, at
p. 654.)” (People v. Strong (2022) 13 Cal.5th 698, 704 (Strong).
The law changed effective January 1, 2019, however, when the
Legislature enacted Senate Bill 1437. With the goal of “more
equitably sentenc[ing] offenders in accordance with their
involvement in homicides” (Stats. 2018, ch. 1015, § l, subd. (b)),
Senate Bill 1437 significantly changed the scope of murder
liability for defendants who did not actually kill or intend to kill
Opinion of the Court by Corrigan, J.
anyone, including those prosecuted on a felony-murder theory
(see Stats. 2018, ch. 1015, § 1, subd. (c)).8 As relevant here, the
amended murder statute now limits felony-murder liability to:
(1) “actual killer[s]” (§ 189, subd. (e)(1)); (2) those who, “with the
intent to kill,” aided or abetted “the actual killer in the
commission of murder in the first degree” (id., subd. (e)(2)); and
(3) “major participant[s] in the underlying felony” who “acted
with reckless indifference to human life” (id., subd. (e)(3)).
Senate Bill 1437 also created a procedural mechanism for
those convicted of murder under prior law to seek retroactive
relief. (See § 1172.6; see also Strong, supra, 13 Cal.5th at
pp. 708–709; People v. Lewis (2021) 11 Cal.5th 952, 959–960.
Under section 1172.6,9 the process begins with the filing of a
petition declaring that “[t]he petitioner could not presently be
convicted of murder or attempted murder because of changes to
Section 188 or 189” made by Senate Bill 1437. (§ 1172.6,
subd. (a)(3).) The trial court then reviews the petition to
determine whether a prima facie showing has been made that
the petitioner is entitled to relief. (Id., subd. (c).) “If the petition
and record in the case establish conclusively that the defendant
is ineligible for relief, the trial court may dismiss the petition.
(See § 1172.6, subd. (c); Lewis, at pp. 970–972.)” (Strong, at
p. 708.) Otherwise, the court must issue an order to show cause
The bill also altered murder liability under the natural
and probable consequences doctrine. (See People v. Gentile
(2020) 10 Cal.5th 830, 839 (Gentile).) Those changes are not at
issue here.
The relevant statute was originally codified in
section 1170.95 but was later renumbered without substantive
change. (Stats. 2022, ch. 58, § 10; see Strong, supra, 13 Cal.5th
at p. 708, fn. 2.
Opinion of the Court by Corrigan, J.
(§ 1172.6, subd. (c)) and hold an evidentiary hearing at which
the prosecution bears the burden “to prove, beyond a reasonable
doubt, that the petitioner is guilty of murder or attempted
murder” under the law as amended by Senate Bill 1437 (id.,
subd. (d)(3)). In addition to evidence admitted in the petitioner’s
prior trial, both “[t]he prosecutor and the petitioner may also
offer new or additional evidence to meet their respective
burdens.” (Ibid.) “If the prosecution fails to sustain its burden
of proof, the prior conviction, and any allegations and
enhancements attached to the conviction, shall be vacated and
the petitioner shall be resentenced on the remaining charges.”
Because Senate Bill 1437 created this “specific mechanism
for retroactive application of its ameliorative provisions”
(Gentile, supra, 10 Cal.5th at p. 853), we reasoned in Gentile
that the section 1172.6 petition procedure was the sole avenue
through which those convicted under prior law could obtain
relief. We held that changes to the murder statutes enacted by
Senate Bill 1437 did not apply to nonfinal convictions on direct
appeal. (Gentile, at p. 859.) The Legislature abrogated this
holding the following year, however, by expressly authorizing
challenges on appeal. A newly added subdivision states: “A
person convicted of murder, attempted murder, or
manslaughter whose conviction is not final may challenge on
direct appeal the validity of that conviction based on the changes
made to Sections 188 and 189 by Senate Bill 1437.” (§ 1172.6,
subd. (g); see Stats. 2021, ch. 551, § 1.
Defendant was convicted of first degree murder in
February 2000. Consistent with the law at that time, the jury
instructions defined murder as the unlawful killing of a human
being committed either with malice aforethought or during the
Opinion of the Court by Corrigan, J.
commission or attempted commission of a felony, in this case
kidnapping. Based on this instruction, defendant contends his
jury may have relied on a now-invalid theory of felony murder
in voting to convict him. He argues his murder conviction must
be reversed and the case remanded for a new trial of both guilt
and, if applicable, penalty phases.
Defendant contends the recent amendments to
section 1172.6 give him a right to obtain relief on direct appeal
rather than through the statute’s petition process. (See
§ 1172.6, subd. (g).) Assuming his reading of the statute is
correct, the issue is complicated here by the case’s procedural
posture. Section 1172.6, subdivision (g) permits a defendant
“whose conviction is not final” to “challenge on direct appeal the
validity of that conviction” based on changes to the murder
statutes. (Italics added.) Nearly 15 years ago, we unanimously
affirmed the judgment that defendant was guilty of Uwe’s
murder. (See Wilson, supra, 44 Cal.4th at pp. 769, 841–842.
“Under our precedent and the high court’s, a judgment becomes
final ‘ “where the judgment of conviction was rendered, the
availability of appeal exhausted, and the time for petition for
certiorari ha[s] elapsed.” ’ ” (People v. Padilla (2022) 13 Cal.5th
152, 162; see People v. Buycks (2018) 5 Cal.5th 857, 876, fn. 5.
Accordingly, defendant’s murder conviction would appear to
have become final no later than 2009, when the time expired for
seeking certiorari in the United States Supreme Court. (See
People v. Vaughn (1973) 9 Cal.3d 321, 326, fn. 3.
We addressed the finality of a murder conviction under
somewhat similar circumstances in People v. Jackson (1967) 67
Cal.2d 96. After this court affirmed Jackson’s death judgment
on appeal, he obtained a reversal of the penalty judgment in a
habeas corpus proceeding. The penalty phase was retried and
Opinion of the Court by Corrigan, J.
Jackson again received the death penalty. (Id. at pp. 97–98.
On appeal from that second judgment, Jackson, like defendant
here, sought the benefit of an ameliorative change in the law.10
We concluded the new rule, concerning admissibility of a
defendant’s extrajudicial statements, could not be applied
retroactively to Jackson’s guilt judgment because that judgment
had long before become final. (Jackson, at p. 98.) We explained
that when a penalty phase judgment alone is reversed, “the
original judgment on the issue of guilt remains final during the
retrial of the penalty issue and during all appellate proceedings
reviewing the trial court’s decision on that issue.” (Id. at p. 99;
accord People v. Kemp (1974) 10 Cal.3d 611, 614.
Only a defendant whose conviction for murder, attempted
murder, or manslaughter “is not final may challenge on direct
appeal the validity of that conviction based on” changes to the
murder statutes enacted by Senate Bill 1437. (§ 1172.6,
subd. (g), italics added.) Although Jackson concerned a death
verdict reversed on habeas rather than on direct appeal, its
reasoning would suggest that our 2008 affirmance of the guilt
judgment rendered defendant’s murder conviction final.
Defendant challenges this conclusion, however. He argues the
propriety of his death sentence, now under review, depends
upon the validity of his first degree murder conviction. The
Attorney General does not dispute defendant’s view and
assumes for purposes of this appeal that defendant may
challenge his conviction under section 1172.6, subdivision (g) in
this appeal from his sentence. In light of the Attorney General’s
position, we too will assume that the claim is properly presented
Jackson was decided about a year and a half after In re
Estrada (1965) 63 Cal.2d 740.
Opinion of the Court by Corrigan, J.
under section 1172.6, subdivision (g). Nevertheless, we
conclude defendant is not entitled to reversal because any
retroactive error is harmless beyond a reasonable doubt. (See
Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).
When a court instructs on two theories of an offense, only
one of which is legally valid, the problem is known as
“alternative-theory error.” (People v. Aledamat (2018) 8 Cal.5th
1, 9 (Aledamat); see In re Lopez (2023) 14 Cal.5th 562, 567
(Lopez).) Defendant’s jury was instructed it could find him
guilty of first degree murder based on either a premeditation
and deliberation or a felony-murder analysis. Of course, the jury
could have concluded, consistent with premeditation and
deliberation requirements, that defendant himself shot Uwe
intending to kill him. However, it is at least possible they were
not sure whether defendant or Phillips fired the fatal shots. In
that case, the felony-murder theory would have come into play.
The Attorney General concedes that, after Senate Bill 1437’s
changes to section 189, felony murder can no longer be relied
upon in this case, because it is possible that the jury based its
verdict on felony murder as it was previously defined, rather
than on premeditation and deliberation. If it had done so, it
could conceivably have concluded that defendant intended to
kidnap Uwe but not that he intended to kill him. Thus, the
parties agree that Senate Bill 1437 created the possibility of
alternative-theory error in this case retroactively. (See People
v. Glukhoy
(2022) 77 Cal.App.5th 576, 592 (Glukhoy).
The Courts of Appeal have handled claims under
section 1172.6, subdivision (g) by finding retroactive error and
reviewing for harmlessness. (See, e.g., Glukhoy, supra, 77
Cal.App.5th at pp. 592–599; People v. Hola (2022) 77
Cal.App.5th 362, 376–377 & fn. 14.) Unlike trial court
Opinion of the Court by Corrigan, J.
proceedings on section 1172.6 resentencing petitions, parties on
appeal are generally prevented from presenting new evidence to
support their positions. While a defendant can elect to forgo the
presentation of new evidence by pursuing a section 1172.6,
subdivision (g) claim on appeal, the prosecution has no such
choice. The filing of such a claim on appeal deprives the People
of the statutorily conferred ability to submit additional evidence
of the defendant’s liability on a still-valid theory. (See § 1172.6,
subd. (d); see also Gentile, supra, 10 Cal.5th at pp. 855–856.
Any unfairness to the prosecution, however, is mitigated by the
different remedies available in the two proceedings. When an
error asserted on appeal in a subdivision (g) claim is not
harmless, the defendant is entitled only to retrial of the murder
charge, not resentencing. (See Hola, at pp. 376–377.
In view of the uncertainties in how section 1172.6,
subdivision (g) should operate, the Attorney General suggests
that we either issue a limited remand for the trial court to
consider defendant’s claim or reject the claim without prejudice
to defendant renewing it in a resentencing petition filed in the
trial court. Defendant, however, protests that newly added
subdivision (g) gives him a right to have the claim resolved on
appeal. He contends he is entitled to reversal of the guilt and
penalty judgments based on Senate Bill 1437’s changes to the
law and that the error cannot be deemed harmless. Considering
defendant’s arguments, we assume without deciding that his
claim of retroactive error may be raised on appeal and is subject
Opinion of the Court by Corrigan, J.
to a harmless error analysis.11 We conclude the error here was
Aledamat discussed the standard of prejudice applicable
to alternative-theory error. (Aledamat, supra, 8 Cal.5th at p. 9.
It held that “no higher standard of review applies to alternative-
theory error than applies to other misdescriptions of the
elements [of an offense]. The same beyond a reasonable doubt
standard applies to all . . . .” (Ibid.) Under this standard, a
conviction must be reversed unless a reviewing court, “after
examining the entire cause, including the evidence, and
considering all relevant circumstances, . . . determines the error
was harmless beyond a reasonable doubt.” (Id. at p. 13; see
Chapman, supra, 386 U.S. at p. 24.
We recently elaborated on the reasonable doubt test, as
applied to alternative-theory error, in Lopez. We explained that
“a reviewing court may hold the error harmless where it would
be impossible, based on the evidence, for a jury to make the
findings reflected in its verdict without also making the findings
that would support a valid theory of liability. (Aledamat, supra,
Defendant repeatedly refers to the Chapman harmless
error standard in his briefing. In his supplemental reply brief,
defendant also argues that, absent the now-invalid felony
murder instruction, he would have offered additional evidence
and cross-examined differently. Insofar as he seeks to make an
argument that the error is reversible per se, we decline to reach
it. We need not, and typically do not, address arguments raised
for the first time in a reply brief. This consideration is
particularly weighty here, given that defendant did not file his
supplemental reply brief until well after oral argument.
We would note, however, that a harmless error analysis
on direct appeal is distinct from the superior court’s inquiry
under section 1172.6, if a petition is filed there.
Opinion of the Court by Corrigan, J.
8 Cal.5th at p. 15.)” (Lopez, supra, 14 Cal.5th at p. 568.
Furthermore, “while ‘overwhelming’ evidence may demonstrate
harmlessness, a court’s analysis of whether the evidence is
‘overwhelming’ in this context is not as subjective or free-
ranging as that term might imply.” (Ibid.) Instead, the
reviewing court has an obligation “to rigorously review the
evidence to determine whether any rational juror who found the
defendant guilty based on an invalid theory, and made the
factual findings reflected in the jury’s verdict, would necessarily
have found the defendant guilty based on a valid theory as well.”
(Ibid.) Applying this standard, we conclude no reasonable jury
that made the findings reflected in the verdicts from defendant’s
initial trial could have failed to find the facts necessary to
support liability under a valid theory of murder. (See id. at
p. 583; Aledamat, supra, 8 Cal.5th at p. 8.
As amended by Senate Bill 1437, a defendant is guilty of
first degree felony murder if he is the “actual killer” (§ 189,
subd. (e)(1)); if, “with the intent to kill,” he aids or abets “the
actual killer in the commission of murder in the first degree”
(id., subd. (e)(2)); or, if he was a “major participant in the
underlying felony” and “acted with reckless indifference to
human life” (id., subd. (e)(3)). For purposes of our review here,
we focus on the third prong only. In addition to finding him
guilty of first degree murder, defendant’s jury sustained special
circumstance allegations for murder in the commission of a
kidnapping and torture-murder. It further found that
defendant personally used a firearm in committing the murder.
The question is whether it would have been impossible for a jury
to make these findings without also finding that defendant was
a major participant in the underlying felony of kidnapping and
acted with reckless indifference to human life.
Opinion of the Court by Corrigan, J.
Here, the jury found that Uwe’s murder was committed
while defendant “was engaged in the commission of the crime of
kidnapping.” The jury was instructed that the kidnapping must
not be “merely incidental to the commission of the murder.” The
jury also found that, in committing the murder, defendant
personally used a handgun. Defendant argues this finding on
the firearm enhancement does not compel a conclusion that the
jury found him to be the actual killer because the “elements of
felony murder included the kidnapping, for which there was
clear evidence that [he] used a firearm.” Regardless of whether
the jury found defendant to be “the actual killer” under
section 189, subdivision (e)(1), trial evidence supporting these
findings demonstrated that defendant forced Uwe into a car at
gunpoint and drove him to his house. (Wilson, supra, 44 Cal.4th
at p. 770.) Defendant left him there tied up while he recruited
three associates, saying he planned to kill Uwe. (Id. at p. 771.
He later wrapped Uwe in plastic sheeting and placed him in his
car along with a case of chemical drain cleaner, “which
defendant said he planned to pour on Uwe’s body in order to
dissolve it.” (Id. at p. 773.) Then he and Phillips drove off with
Uwe. (Ibid.) In light of the jury’s verdicts and this evidence
supporting them, it would have been impossible for the jury to
have found that defendant engaged in kidnapping and used a
firearm without also finding that defendant was a major
participant in the kidnapping.
The verdicts are also relevant to the second prong of
section 189, subdivision (e)(3), which requires that the person
“acted with reckless indifference to human life.” Defendant’s
jury sustained an allegation that Uwe’s murder “was intentional
Opinion of the Court by Corrigan, J.
and did involve the infliction of torture.”13 The jury was
instructed that it could not sustain the torture special
circumstance unless, in addition to finding the murder
intentional, it found that defendant both “intended to” and “did
in fact inflict extreme cruel physical pain and suffering upon a
living human being.” (CALJIC No. 8.81.18.)14 The jury’s finding
The Attorney General concedes that this finding does not
render defendant categorically ineligible for relief. The torture
special circumstance required a finding that “[t]he murder was
intentional” (§ 190.2, subd. (a)(18)), but defendant’s jury was not
instructed that it had to find defendant personally harbored an
intent to kill. Because defendant and Phillips were tried
together, although to separate juries (see Wilson, supra, 44
Cal.4th at p. 770, fn. 1), it would have been possible for the jury
to find the torture special circumstance true without agreeing
that defendant, as opposed to Phillips, intended to kill Uwe.
There was a minor discrepancy in the written version of
CALJIC No. 8.81.18 and the version read to the jury. The trial
court properly told the jury, in its oral instruction, that the
special circumstance required a finding that “[t]he defendant
intended to inflict extreme cruel physical pain and
suffering. . . .” (Italics added.) In the written instruction,
however, the word “the” was crossed out, and the required
finding was described as: “[A] defendant intended to inflict
extreme cruel physical pain and suffering. . . .” (Italics added.
We concluded this error in the written instruction was harmless
beyond a reasonable doubt for four reasons. (Wilson, supra, 44
Cal.4th at p. 804.) “First, the court orally instructed the jury
with the correct instruction. . . . Second, there is no indication
the jury was aware of the slight difference between the written
and oral versions of the instructions, as it asked no questions
about this point. Third, the evidence was overwhelming that
defendant beat, tortured and killed Uwe Durbin. . . . Finally,
considering the other elements of the torture instruction, which
the jury necessarily found true — that the murder was
intentional and defendant did in fact inflict cruel physical pain
and suffering — it would have been impossible on these facts for
Opinion of the Court by Corrigan, J.
was supported by uncontroverted evidence establishing that,
after kidnapping Uwe at gunpoint, defendant shot him in the
kneecap, brutally beat and tortured him for hours, then drove
him to a remote location where he was killed. Any rational juror
who found that defendant personally used a firearm in
committing a kidnapping or homicide, and inflicted “extreme
cruel physical pain and suffering” (CALJIC No. 8.81.18) upon
the murder victim, would necessarily have found that defendant
acted with reckless indifference to human life.
We conclude it would have been impossible for the jury to
make the findings reflected in its verdicts without concluding,
at the very least, that defendant was a major participant in the
felony kidnapping who acted with reckless indifference to
human life. (See Aledamat, supra, 8 Cal.5th at p. 15.) As a
result, we need not address the application of “actual killer” or
aiding and abetting theories of liability. Assuming defendant’s
section 1172.6, subdivision (g) claim is properly before us in this
appeal from a penalty retrial, any retroactive error from Senate
Bill 1437’s ameliorative changes is harmless beyond a
reasonable doubt.
the jury to have found defendant did not intend to torture the
victim.” (Ibid.
Opinion of the Court by Corrigan, J.
The judgment is affirmed.
We Concur:


See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Wilson

Procedural Posture
(see XX below
Original Appeal
Original Proceeding XX
Review Granted
Review Granted (unpublished)
Rehearing Granted
Opinion No.
Date Filed: June 8, 2023

County: Riverside
Judge: Elisabeth Sichel

Patrick Morgan Ford, under appointment by the Supreme Court, for
Defendant and Appellant.
Kamala D. Harris, Xavier Becerra and Rob Bonta, Attorneys General,
Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys
General, Julie L. Garland and James William Bilderback II, Assistant
Attorneys General, Holly Wilkens, Ronald A. Jakob, Alana Cohen
Butler and Meredith S. White, Deputy Attorneys General, for Plaintiff
and Respondent.

Counsel who argued in Supreme Court (not intended for
publication with opinion):

Patrick Morgan Ford
Attorney at Law
1901 First Avenue, Suite 400
San Diego, CA 92101
(619) 236-0679
Meredith S. White
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 738-9069
Opinion Information
Date:Docket Number:
Thu, 06/08/2023S189373