People v. Bertsch and Hronis

IN THE SUPREME COURT OF
                CALIFORNIA

                     THE PEOPLE,
                Plaintiff and Respondent,
                            v.
    JOHN ANTHONY BERTSCH and JEFFERY LEE HRONIS,
               Defendants and Appellants.

                           S093944

              Sacramento County Superior Court
                         94F07295



                        April 20, 2026

Chief Justice Guerrero authored the opinion of the Court, in
which Justices Corrigan, Liu, Kruger, Groban, Evans, and
Viramontes* concurred.




*
      Associate Justice of the Court of Appeal, Second Appellate
District, Division Eight, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
              PEOPLE v. BERTSCH and HRONIS
                             S093944


             Opinion of the Court by Guerrero, C. J.


      Defendants John Anthony Bertsch and Jeffery Lee Hronis
were tried together and convicted by separate juries of the
murder, rape, and kidnapping of Linda Canady. (Pen. Code,
§§ 187, subd. (a), 264.1; id., former § 209, subd. (b).)1 The juries
also found true kidnapping-murder, robbery-murder, and rape-
murder      special-circumstance       allegations.        (§ 190.2,
subd. (a)(17).) Bertsch’s jury convicted him of sodomy and found
true a sodomy-murder special-circumstance allegation. (§§ 286,
subd. (d), 190.2, subd. (a)(17).)
      Bertsch and Hronis were tried separately before two
penalty phase juries. Each jury returned a death verdict. The
trial court denied motions for new trials and to modify the
judgments, and it sentenced Bertsch and Hronis to death. The
court also sentenced Bertsch and Hronis to various terms of
imprisonment and stayed execution of the prison sentences.
Specifically, it sentenced Hronis to life imprisonment on the
kidnapping charge and nine years imprisonment on the rape in
concert charge, and it likewise sentenced Bertsch to life
imprisonment on the kidnapping charge, nine years
imprisonment on the rape in concert charge, and nine years
imprisonment on the sodomy in concert charge. The court also
ordered Bertsch and Hronis to each pay a restitution fine under

1
     All further statutory references are to the Penal Code
unless otherwise indicated.


                                 1
                PEOPLE v. BERTSCH and HRONIS
               Opinion of the Court by Guerrero, C. J.


Government Code former section 13967 (subsequently replaced
by Pen. Code, § 1202.4) in the amount of $10,000.
      In this automatic appeal (Cal. Const., art. VI, § 11,
subd. (a); § 1239, subd. (b)), we affirm the convictions of both
Bertsch and Hronis and affirm the judgment of death against
Bertsch. However, based on subsequent changes in the law
governing a defendant’s competency to represent himself at
trial, we reverse Hronis’s sentence, including the death
judgment. In addition, any balance of restitution fines issued
under section 1202.4 as to both Bertsch and Hronis are vacated
pursuant to section 1465.9, subdivision (d).
    I. FACTUAL AND PROCEDURAL BACKGROUND
     A. Guilt Phase
        1. Prosecution evidence
           a. Overview
      The prosecution presented evidence that in late December
1985, Bertsch and Hronis were being pursued by law
enforcement for a string of robberies in the Sacramento area.
The duo planned to evade law enforcement by leaving town.
They told friends of their plan to prowl a parking lot, find
someone they could overpower, and take her vehicle. On
December 22, 1985, they followed through on their plan. They
kidnapped Canady from a shopping center parking lot, drove
hundreds of miles south to a remote area, and raped and
sodomized Canady before crushing her to death and discarding
her body in an irrigation canal.
           b. Sacramento convenience store robberies and
              investigation
     In December 1985, several convenience stores in the
Sacramento area were robbed. On December 2, a man robbed a

                                 2
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


Food and Liquor store in Sacramento at gunpoint. The store
clerk activated a surveillance camera, which took photographs
of the perpetrator. The clerk later identified Hronis in a lineup
as the possible perpetrator.
     On December 3, the same individual robbed the Short
Step Market at gunpoint. The store owner later identified
Hronis in a lineup as the person who had robbed her store.
      On December 5, the same man robbed a Circle K store on
Kiefer Boulevard. The individual pointed a gun at the clerk and
ordered him to hand over all the money in the register. The
clerk activated the store camera, which took pictures of the
perpetrator. The clerk later picked out Hronis from a lineup as
possibly the person who had robbed his store. On December 12,
an armed robbery took place at another Circle K store in
Sacramento.
      Detective Darrell Edwards was assigned to investigate the
string of robberies. He provided the media with photographs
obtained from the December 2, 5, and 12 robberies and
information about the robberies and robbery suspects.
       On December 15, another armed robbery took place at a
Circle K store in Rancho Cordova.           The store manager
recognized the individual as the same man who had committed
recent prior robberies, as his picture was hanging in front of the
register. The manager gave police officers a description of the
robber and the car involved, which was a white sedan. The
manager later identified Hronis as the man who had robbed the
store.
     A nearby motorist was listening to a radio scanner tuned
to a Sheriff’s Department frequency. He heard information
about the armed robbery that had just occurred at Circle K and


                                  3
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


a description of the vehicle involved. The motorist noticed a
vehicle fitting this description and followed it for a time before
pulling over and calling the police. The motorist told police
officers he saw at least two occupants in the car.
      Later that afternoon, a White male robbed a 7-Eleven
store at gunpoint. A bicyclist saw a man jump over the fence
behind the store and get into a white car with another occupant.
The car drove off quickly. The bicyclist told responding officers
that the last three letters of the car’s license plate were MTH.
      On December 18, a local television station broadcasted
information about the string of robberies. The next day,
Detective Edwards visited the Plaza Motel and Apartments in
West Sacramento after receiving a tip that the robbery suspects
were staying there. The manager recognized a photograph of
the robbery suspect as one of his tenants. He had recorded the
tenant’s license plate number as 089MTH. He told Detective
Edwards that the tenant had rented the room under the name
“John H. Brooks” until December 21 and that the tenant was
sharing the room with another man with a beard and a woman.
      Detective Edwards returned to the Plaza Motel and
Apartments on December 21 and examined the room previously
rented by “John H. Brooks.” He saw a copy of the Sacramento
Bee lying open on the bed. It was turned to an article about the
robberies, which included the robbery suspect’s photograph.
      Around this time, Bertsch and Hronis confided to their
friend, Martha R., that they had robbed several convenience
stores. Bertsch told Martha R. that they would have to “ditch”
his car, a white AMC Rebel bearing the license plate 089MTH,
because someone was looking for it.         Soon after their
conversation, Bertsch and Hronis parked the Rebel in front of


                                  4
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


Martha R.’s house in the middle of the night and emptied
everything out of the car and onto her yard.
      In another conversation, Bertsch told Martha R. they were
“hot” and had to leave town quickly. Martha R. advised them to
go to Buckeye, Arizona, which was about 10 and a half hours
away. With Hronis present, Bertsch told Martha R. they had a
plan to stake out a shopping center, find somebody they could
overpower, and take that person’s car. The last time Martha R.
saw Bertsch and Hronis was a few days before Christmas.
      Jerry B., another friend of Bertsch’s and Hronis’s, recalled
a similar conversation that took place the day before Bertch and
Hronis left Sacramento. Bertsch and Hronis told Jerry B. they
needed to leave Sacramento because they had recently
committed a string of armed robberies in the area and the media
had started covering it.2 They planned to get a car out of a
parking lot and go to Arizona.
      On January 3, 1986, police officers located the vehicle
associated with the robberies, a white AMC Rebel with the
license plate 089MTH. It had been abandoned on Fairgrounds
Drive and Broadway in Sacramento.
           c. Murder of Canady
      In December 1985, Canady was living in a condominium
in Sacramento and working at a clothing store. Canady owned
a bronze-colored 1978 Pontiac Sunbird. She saw her parents
approximately three to four times per week and spoke with them
on the phone almost every day.


2
     In 1987, Hronis pleaded guilty to the robberies committed
on December 2, 3, 5, 12, and 15. The reporter’s transcript of
Hronis’s plea to these offenses was read to Hronis’s jury only.


                                  5
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


      On December 21, Canady and her parents visited
Canady’s grandfather in Manteca, and the trio later went out to
dinner in Sacramento. They returned to Canady’s condominium
around 7:30 p.m. She told her parents she planned to buy
groceries the next morning at a grocery store located in a nearby
shopping center. She needed the groceries for a dinner that she
was going to prepare for her family on Christmas Eve. Canady
also planned further preparations, including cleaning her house.
Canady’s parents left her condominium around 9:00 p.m. It was
the last time they saw their daughter alive.
      The next day at approximately 9:30 a.m., Canady’s
neighbor saw Canady take out her trash and return to her
condominium. Canady’s father called Canady at home around
noon, but she did not answer her phone.
      The following evening, on December 23, one of Canady’s
coworkers phoned Canady’s father. The employee asked about
Canady because she had not shown up or called in for her
scheduled shift. Canady’s father immediately became very
concerned because this was out of character for Canady. He
called Canady’s home phone but there was no answer again.
      Canady’s parents drove to Canady’s condominium
complex and noticed her car was not there. They also noticed
the December 23 morning paper was still on the front porch.
Inside the condominium, it appeared that Canady had started
cleaning but had not finished. Canady’s father looked inside the
refrigerator and observed Canady had not been grocery
shopping as planned. A grocery checker who was familiar with
Canady confirmed she had not seen Canady in the store on
December 22.




                                  6
                PEOPLE v. BERTSCH and HRONIS
               Opinion of the Court by Guerrero, C. J.


     Canady’s father called the Sacramento               Sheriff’s
Department to report his daughter missing.
      On December 22, 1985, at 12:14 p.m. and 12:17 p.m., one
of Canady’s credit cards was used to purchase gasoline in
Modesto. A clerk recalled that a man had come into the store
with the credit card. The clerk saw another male and a female
sitting in the front seat of the man’s car. The man signed both
credit card receipts “Bob Canady.”
     A few minutes later, Canady’s credit card was used to
purchase beer and Marlboro cigarettes at another gas station in
Modesto. According to the clerk who handled the transaction,
the man using the card was scruffy-looking and very nervous.
Later that afternoon, a different credit card of Canady’s was
used to purchase gasoline and miscellaneous items in
Bakersfield.
      At 9:12 p.m., still on December 22, one of Canady’s credit
cards was used to purchase gasoline and other items in Corona.
The station clerk remembered two men in a light beige sedan.
One of the men entered the store, told the clerk he was in a
hurry, and purchased beer and sandwiches. The other man then
entered the store and told his companion to “hurry up” before
also grabbing a second case of beer. At 11:05 p.m., Canady’s
credit card was used to purchase gasoline in Leucadia.
     On December 23, one of Canady’s credit cards was used to
purchase gasoline in Tucson, Arizona.
      At trial, a handwriting expert compared the signatures on
the receipts for several of these purchases with known
handwriting samples from Hronis. He concluded Hronis had
written the name “Jeff” on some of the receipts. He was unable
to conclude whether Bertsch had signed “Bob Canady” on other


                                 7
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


receipts because he did not have enough known handwriting
samples from Bertsch.
      Early in the morning of December 24, an employee with
the Imperial Irrigation District in Imperial County was driving
along the East Highline Canal when he noticed an object on the
east bank of the canal. Using binoculars, he saw a woman’s body
lying on the canal bank. The woman was later identified as
Canady. Her wrists had been bound behind her back with duct
tape, and she had duct tape wrapped around her ankles, eyes,
and mouth. Her bra was undone and out of place. Canady had
33 different contusions (bruises) and abrasions (scrapes or
bleeding) scattered throughout her body and a laceration over
her lip. She had bruising on top of her head, over her right eye,
right side of her chin, and finger-like markings on her neck. Her
nose was broken. She also had bruising on her ankles, shins,
and knees. Her ribs had been fractured, she had suffered
hemorrhages in her chest, and her lungs were lacerated and
collapsed. The forensic pathologist who performed Canady’s
autopsy determined the cause of death was a massive crush type
injury to her back and chest, which was consistent with having
been beaten to death.
      The pathologist also examined Canady’s body for signs of
sexual assault. He found a slight hemorrhage in the lining of
the uterus and a small amount of blood in the vaginal vault but
no tear or laceration. He opined that a sexual assault would not
produce noticeable injuries to this area if Canady were rendered
unconscious or did not physically resist.
     Several days after Bertsch and Hronis left Sacramento,
Hronis called Jerry B. and told him they had killed a girl.




                                  8
                PEOPLE v. BERTSCH and HRONIS
               Opinion of the Court by Guerrero, C. J.


Jerry B. overheard Bertsch angrily tell Hronis, “Don’t tell
nobody that.”
      On January 10, 1986, Canady’s car was found submerged
in an Arizona canal. There were beer cans and cigarette butts
inside the car. Canady was a nonsmoker; Hronis smoked
Marlboro cigarettes.
           d. DNA evidence and incriminating statements
      During the autopsy, swabs were taken from Canady’s
vagina, mouth, and anus. A high volume of spermatozoa was
found on the vaginal and anal slides. The vaginal swab results
and sperm fraction extracted from Canady’s underwear
indicated the presence of two sperm donors.
      Law enforcement eventually came to suspect that Bertsch
and Hronis were involved in Canady’s murder. In 1988, law
enforcement collected blood and saliva samples from Hronis
while he was in jail after pleading guilty to the Sacramento
convenience store robberies. Blood and saliva samples were also
taken from Bertsch while he was in jail in Georgia for an
unrelated offense.
      A Department of Justice (DOJ) criminalist conducted
serology testing and compared the Canady samples with the
Bertsch and Hronis samples. She concluded that Hronis could
be included as a possible semen donor while the results for
Bertsch were inconclusive. The DOJ criminalist then sent the
samples to the FBI for additional testing.
      While the investigation was pending, DNA forensic testing
became available. After reading a newspaper article in jail
about the admissibility of DNA evidence in court, Bertsch asked
for a private conversation with Detective Edwards and District
Attorney Steve White. When Bertsch was asked why he wanted

                                 9
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


a private meeting with them, he responded, “Because of the
article and I know they have DNA evidence against me that was
found on the victim.”
    In February 1990, Bertsch and Hronis were charged with
Canady’s murder.
      In 1989 and 1992, the FBI DNA analysis unit chief,
Lawrence Presley, supervised testing of the DOJ samples using
restriction fragment length polymorphism (RFLP) analysis.3

3
       RFLP analysis “compar[es] the DNA in a known sample
(e.g., blood from a suspect) with the DNA in a questioned sample
(e.g., blood or semen taken from a crime scene).” (People v. Soto
(1999) 21 Cal.4th 512, 514–515 (Soto).) RFLP analysis involves
(1) processing DNA from the suspect(s) and the crime scene to
produce X-ray films that indicate the lengths of the polymorphic
base pairs (e.g., the sequence of base pairs that vary from person
to person); (2) examining the X-ray films to determine whether
any sets of polymorphic fragments match; and (3) if there is a
match, determining the match’s statistical significance. (Id. at
pp. 520–521.)
       “Unless a nonmatch between any band of the suspect’s
DNA and the corresponding band of the questioned sample
conclusively eliminates the suspect as the source of that sample,
a match of one or more of the suspect’s bands with those of the
sample places the suspect within a class of persons from whom
the sample could have originated.              The fact finder’s
determination of guilt may then turn on the degree of
probability that the suspect was indeed the source of the sample.
That probability, however, will usually depend, not on the DNA
findings alone, but on a combination of those findings together
with other, non-DNA incriminating evidence. [Citation.] [¶]
The question properly addressed by the DNA analysis is
therefore this: Given that the suspect’s known sample has
satisfied the ‘match criteria,’ what is the probability that a
person chosen at random from the relevant population would
likewise have a DNA profile matching that of the evidentiary



                                  10
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


The FBI’s RFLP testing compared the known DNA profiles from
Bertsch’s and Hronis’s blood samples to the two unknown DNA
profiles identified in the semen collected on Canady’s vaginal
swab. At all four polymorphic DNA locations (loci) examined in
the RFLP testing, Bertsch and Hronis could not be excluded as
potential contributors. Using the four loci analyzed, Presley
conducted a statistical frequency analysis to arrive at a
statistical probability for a random match. For Hronis, the
probability of an unrelated individual in the Caucasian
population randomly contributing was one in eight million. For
Bertsch, the probability of an unrelated individual in the
Caucasian population randomly contributing was one in
12 million.
      Presley later reevaluated his statistical analysis. This
reevaluation, based on a change in FBI RFLP procedure as well
as a newly approved “ceiling principle” analysis, resulted in a
much greater probability that a random person unrelated to
Bertsch or Hronis could have been a contributor to the sample
being tested. As a result, the district attorney moved to dismiss
the case against Bertsch and Hronis without prejudice in order
to “seek independent testing, analysis, and assessment of




sample? That probability is usually expressed as a fraction —
i.e., the probability that one out of a stated number of persons
in the population (e.g., 1 out of 100,000) would match the DNA
profile of the evidentiary sample in question. A greater
probability, that is to say, a fraction with a smaller denominator
(e.g., 1 out of 10,000), would tend to favor the suspect by
increasing the probability that one or more other persons has a
DNA profile matching the evidentiary sample.” (Soto, supra,
21 Cal.4th at p. 523, fn. omitted.)


                                  11
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


scientific issues.” The court granted the motion and released
Bertsch and Hronis from custody.4
      While Hronis was out of custody, he spoke with his friend
Loren G. about why he had been arrested for murder. Hronis
claimed that another friend had stolen a woman’s purse and
given Hronis the woman’s credit card. Hronis told Loren G. he
had been arrested for murder because he had used the woman’s
credit card at least four times and the woman had been
murdered soon after. He admitted to Loren G. that his friend
might have murdered the woman.
      In 1994, Cellmark Diagnostics laboratory conducted
additional DNA testing using polymerase chain reaction (PCR)
analysis. Dr. Robin Cotton oversaw and reviewed Cellmark’s
testing, which used both DQ-Alpha and Polymarker
techniques.5 The results of both tests showed that neither



4
      The district attorney refiled charges against Bertsch and
Hronis in April 1995.
5
      “PCR is ‘a molecular biology technical procedure for
exploiting genetic differences in DNA,’ whereby small pieces of
DNA are copied or amplified. The technique is employed when
the DNA sample available is too small and/or degraded to
perform a more common type of DNA analysis known as RFLP.”
(People v. Morganti (1996) 43 Cal.App.4th 643, 662 (Morganti).)
PCR analysis may be used “to amplify a specific gene known as
the DQ alpha. The DQ alpha gene codes for proteins found on
the surface of the white blood cell and is known to have alternate
genetic forms, i.e., the gene does not look the same in all people.
Six variations (or alleles) have been identified and labeled as
1.1, 1.2, 1.3, 2, 3 and 4. Because alleles are inherited in pairs,
one from each parent, there are twenty-one possible
combinations which are referred to as genotypes.” (Ibid.)



                                  12
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


Bertsch nor Hronis could be excluded as contributors to the DNA
samples found in sperm extracted from Canady’s vaginal swab
and anal swab.
      Genetic statistics expert George Sensabaugh conducted a
random match calculation using the FBI and Cellmark test
results. For the FBI’s RFLP results, he calculated that 99.6
percent of the Caucasian population, 99.99 percent of the
African American population, and 99.92 percent of the Hispanic
population could be excluded as contributors of the semen
collected on Canady’s vaginal swab. For Cellmark’s DQ-Alpha
and Polymarker results, Sensabaugh calculated that 99.75
percent of the Caucasian population could be excluded from
possible contributors.
     In March 1998, DOJ criminalist Renee Montgomery
conducted a second round of DQ-Alpha testing on the samples.
She first retested the reference samples, concluding that
Bertsch’s genotype at the DQ-Alpha locus was a 2, 2, Hronis’s
genotype was a 1.2, 1.2, and Canady’s genotype was a 4.1, 4.1.
Montgomery then retested the anal swab sperm fraction,


       “In the forensic setting, PCR analysis of DQ alpha involves
three general steps. First, DNA is extracted from the nucleus of
cells present in an unknown bloodstain. Second, the DQ Alpha
is replicated or amplified by a process which involves combining
the DNA with a commercially available solution or ‘cocktail’ and
then subjecting the solution to a series of controlled temperature
cycles. Finally, the amplified gene is typed in order to identify
the alleles present in the amplified DNA.” (Morganti, supra,
43 Cal.App.4th at p. 662, fn. omitted.)
       A Polymarker analysis is a different kind of PCR test that
“compare[s] five different genes rather than the single gene used
in the DQ-Alpha test.” (People v. Jones (2013) 57 Cal.4th 899,
935 (Jones).)


                                  13
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


confirming the presence of more than one source of DNA in the
sample. The major donor genotype matched Bertsch’s genotype
of 2, 2. Montgomery determined the minor genotype was a 1,
but she was unable to conclude whether the subtype was a 1.2
or 1.1 based on the intensity of the dots. Montgomery
determined an individual with a 1.2 genotype, such as Hronis,
could not be excluded as a contributor of the second source of
DNA.
      DOJ criminalist Steven Myers performed further DNA
testing using Short Tandem Repeat (STR) analysis in
combination with PCR testing.6 The subject DNA included
additional DNA extracted from Canady’s underwear. Myers
compared the measurements of alleles at nine different STR loci.
The allele readings observed in the sperm fraction extracted
from Canady’s anal swab were identical to the allele readings in
Bertsch’s reference sample at all nine loci. Myers calculated
that this profile occurred randomly in the Caucasian population
at a rate of one in 2.4 trillion individuals. Additional allele


6
       “STR’s are sets of four nucleotide units of base pairs on the
DNA strand.” (People v. Cordova (2015) 62 Cal.4th 104, 128
(Cordova).) PCR testing using STR (also called PCR-STR) looks
at different STR “that are on specific identified areas of different
chromosomes.” (Id. at pp. 127–128.) “ ‘PCR-STR testing has
many advantages over RFLP testing. It can test a far smaller
sample than RFLP testing requires. It is less susceptible to
sample degradation. It is simpler and less time consuming.
Additionally, . . . “[w]ith the ability to compare numerous loci,
the discrimination power of PCR-STR testing is extremely
high.” ’ [Citation.] As the high court has summarized, since ‘the
mid-1980’s, there have been several major advances in DNA
technology, culminating in STR technology.’ ” (Id. at p. 127,
quoting District Attorney’s Office for Third Judicial Dist. v.
Osborne (2009) 557 U.S. 52, 62.)


                                  14
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


readings observed in the sperm fraction extracted from
Canady’s underwear were also identical to the allele readings in
Bertsch’s reference sample at all nine loci, resulting in the same
random match probability. The allele readings from Canady’s
underwear matched the allele readings in Hronis’s reference
sample at seven of nine loci. For the second donor profile
matching Hronis’s profile, Myers calculated this pattern of
matching would also occur randomly in the Caucasian
population at a rate of one in 2.4 trillion individuals.
        2. Defense evidence
       Hronis did not testify or offer evidence at the guilt phase
of trial.
       Bertsch’s defense focused on handwriting evidence, the
timing of another store robbery in Sacramento, the timing of the
discovery of Bertsch’s vehicle in Sacramento, and disputing the
prosecution’s DNA evidence with his own experts. Bertsch also
testified in his defense.
      A DOJ handwriting expert testified that Bertsch probably
did not write the signatures on six of the credit card receipts. A
forensic document examiner testified that Bertsch very probably
did not sign the credit card receipts.
      Two clerks who worked at a Sacramento clothing store on
December 23, 1985, testified that a man came into the store and
robbed them at gunpoint. One of the clerks participated in a
lineup and indicated that Hronis looked like the person who had
robbed the store.
      On January 3, 1986, Roseville Police Officer Michael
Jones noticed Bertsch’s abandoned AMC Rebel while on an
afternoon jog. At the time, he jogged past the same location
nearly every day. When Jones contacted law enforcement, he

                                  15
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


mentioned he had not observed the vehicle before January 3.
Jones testified he had no independent recollection of having
seen the car there prior to January 3, but that January 3 was
probably the day he first made the connection.
       Dr. Laurence Mueller and Dr. Kenneth Berger testified
regarding what they perceived to be flaws in the DNA testing
and analysis presented in this case.             Mueller provided
alternative methods of calculating random matches and opined
the chances of random matches were much higher than
Sensabaugh’s or Cotton’s calculations. He opined that there was
an inherent problem with using population databases and the
product rule to calculate probabilities for the loci included in the
STR testing. However, he did not redo any of Myers’s
calculations based on the STR testing, and he conceded that a
random match would be extremely rare. Berger also did not
offer any new calculations under the STR testing but instead
testified that the troubleshooting of the machine used in the
DOJ’s STR testing signaled that this particular type of STR
testing was still in the development stage, which undermined
the results of the tests. He also opined that the DOJ should have
conducted additional validation testing.
     Bertsch testified in the presence of both juries. He
maintained that he did not kidnap, rape, or murder Canady. He
admitted to participating in four or five convenience store
robberies with Hronis in December 1985. He said that Hronis
and Jerry B. had also committed separate robberies on their
own. Bertsch claimed that a woman owned the white AMC
Rebel, and that Hronis and Jerry B. drove it.
     Bertsch also confirmed he and Hronis moved out of the
Plaza Motel on December 19 after the local news ran a story


                                  16
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


about the robberies. Bertsch claimed he intended to cut ties
with Hronis and Jerry B. because of the law enforcement
pursuit and that he dropped off Hronis and Jerry B. at Jerry B.’s
mother’s home. Bertsch parked the Rebel next to other
abandoned cars in an open field near a motel but later moved it
to Old Fairgrounds Drive.
      Bertsch testified that he stayed in Sacramento until
March 1986, when he traveled by bus to Denver. He ultimately
settled in Atlanta. In 1987, he was convicted of manslaughter
and aggravated assault and spent three years in a Georgia state
prison. In 1990, he was extradited to California and charged
with Canady’s murder.
     B. Penalty Phase
        1. Bertsch
      The prosecution’s case in aggravation against Bertsch
included details of Bertsch’s criminal history and victim impact
testimony. Bertsch’s half sisters testified about numerous times
Bertsch sexually and physically abused them growing up.
Witness testimony from Bertsch’s 1987 trial for voluntary
manslaughter and aggravated assault was read into the record.
The testimony revealed that Bertsch had stabbed two people,
one of whom died from her wounds. Jerry B. also testified about
two other occasions on which he saw Bertsch stab people.
    Canady’s parents testified about how their daughter’s
murder devastated them and otherwise impacted their family.
      Bertsch’s evidence in mitigation included testimony from
individuals who knew Bertsch through school or church and
described his disposition favorably. Three mental health
professionals also testified. A retired corrections psychologist
opined that Bertsch would make an adequate adjustment to life


                                  17
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


in prison. A clinical neuropsychologist testified that Bertsch
had significant neuropsychological deficits in his cognitive
functioning, which made him more impulsive. A forensic
psychologist testified that Bertsch suffered from antisocial
personality disorder and substance abuse disorder, but he was
“not a completely bad person.”
        2. Hronis
      The prosecution’s case in aggravation against Hronis
included victim impact testimony from one of the robbery
victims and from Canady’s sister. Canady’s parents testified
about the devastating impact of her murder on them and their
family. In addition, the prosecution presented evidence that
Hronis had been convicted of second degree burglary in 1977.
      Hronis represented himself at the penalty phase. He did
not offer evidence in his own defense, testify, or give a closing
argument.
                        II. DISCUSSION
     A. Pretrial and Guilt Phase Issues
        1. Hronis’s competency proceedings
       Hronis asserts various claims of error relating to his
mental competence to stand trial. He contends the trial court’s
initial competency determination did not satisfy federal
constitutional requirements and, alternatively, the proceedings
were too superficial to support the court’s finding that he was
competent. He also claims the court should have appointed the
Director of the Regional Center for Developmental Facilities as
an additional competency expert. He further maintains the
court abused its discretion when it declined to reinstitute
competency proceedings based on new evidence. We conclude
Hronis’s arguments lack merit.

                                  18
                PEOPLE v. BERTSCH and HRONIS
               Opinion of the Court by Guerrero, C. J.


           a. Factual and procedural background
      After Hronis was arrested for Canady’s murder, he
claimed to have a religious revelation where God spoke to him
and told him he would be delivered, i.e., be found not guilty or
otherwise escape the charges against him. He relayed this
experience to his attorneys and the trial court on numerous
occasions. Hronis’s faith in the veracity of his religious
revelation and his refusal to cooperate with his attorneys to
prepare for a possible penalty phase defense provided the basis
for his attorneys’ expressions of doubt regarding Hronis’s
competence.
              i. Initial competency proceedings (January–
                 March 1995)
      In January 1995, Hronis’s attorneys filed an expression of
doubt as to Hronis’s mental competence. Defense counsel’s
accompanying declarations stated that Hronis had attended
classes for the educationally handicapped and his IQ level was
once tested at 69. Defense counsel noted that Hronis refused to
allow a mental health professional to evaluate him, but that two
psychologists who had either met with Hronis or learned of his
mental rigidity believed Hronis was not competent.
       The trial court suspended criminal proceedings to allow
for a formal evaluation and determination of Hronis’s mental
competence to stand trial. It appointed Dr. Shawn Johnston
and Dr. Ted Kobashigawa to examine Hronis and file reports
with the court. After each doctor administered a clinical
interview of Hronis and reviewed relevant background
documents, both determined Hronis was competent to stand
trial.




                                 19
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


      Johnston’s and Kobashigawa’s reports described Hronis’s
ability to understand the legal proceedings and to assist counsel.
As reflected in their reports, both experts considered Hronis’s
belief that God would deliver him from this case in evaluating
whether he was competent to stand trial.
      Regarding Hronis’s intellectual functioning, Johnston
found that Hronis “appear[ed] to be functioning in the
borderline to low average” range.         To this end, after
administering the Bender-Gestalt Test to Hronis, Johnston
believed the test results suggested Hronis may suffer from
psychoneurological deficits and/or learning disabilities.
However, Johnston concluded that there was no indication that
Hronis was suffering from any significant cognitive deficit.7
      Johnston characterized Hronis’s professed religious
revelation as “a clear demonstration of Mr. Hronis’s narcissism
and grandiosity” and “not . . . connected with any mental illness
whatever but, rather, is part and parcel of the Antisocial
Personality Disorder from which he obviously suffers.”
Johnston pointed to the isolated nature of Hronis’s purported
communication with God and the selective manner in which he
utilized it. Johnston noted that Hronis used the revelation to
explain his rejection of his attorneys’ advice to accept a plea
bargain offer, yet at the same time followed his attorneys’ advice
not to speak with Johnston about the circumstances of the case.
He added that Hronis’s religiosity was “remarkably common


7
      Johnston’s conclusion as to Hronis’s intellectual
functioning was echoed by Dr. Janice Nakagawa, a court
appointed psychologist, who later opined that there was “no
evidence that [Hronis] suffers from any significant cognitive or
developmental problems or delays.”


                                  20
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


among sociopaths in trouble who are attempting to distance
themselves from the potential consequences of their antisocial
behavior” and that “he understands exactly what he is doing”
but “may not always be candid with regard to his true motives
or intentions.”
      Kobashigawa’s report likewise considered Hronis’s
“significantly religious” views and his belief he would be found
innocent by divine intervention. Kobashigawa observed that,
despite these views, Hronis “seemed to acknowledge that what
may happen in the future may not be predictable or exactly what
he may want” and exhibited “significant flexibility” concerning
his religious views. Kobashigawa determined Hronis’s extreme
religiosity did not approach delusional status and concluded he
was able to understand the nature of the criminal proceedings
against him and probably able to assist counsel in the conduct
of a defense in a rational manner.
      Concerning Hronis’s intellectual ability, Kobashigawa
found Hronis’s intelligence “to be in the average range” and did
not believe that he was “of low intelligence.”
      In March 1995, following the submission of Johnston’s and
Kobashigawa’s reports, Hronis waived his right to a jury trial on
the issue of competence and agreed to submit the matter on the
experts’ reports.     Based on the reports, the trial court
determined Hronis was competent to stand trial. It found that
Hronis “understands the nature of the proceedings, and if he
wishes to do so, he can assist counsel in the defense of this case.”
The court then reinstated criminal proceedings.




                                  21
                PEOPLE v. BERTSCH and HRONIS
               Opinion of the Court by Guerrero, C. J.


              ii. Subsequent Marsden hearings and
                  discussions regarding competence
      Over the next few years, a dispute arose between Hronis
and his attorneys regarding access to various documents. At
Marsden8 hearings in 1997 and 1999, Hronis complained that
he was denied access to various witness statements and could
not assist in his defense without them. Defense counsel
acknowledged they were using the documents as leverage to get
Hronis to assist with the penalty phase, since Hronis believed
he would be delivered and did not need to talk about any
possible penalty. Hronis complained about defense counsel’s
tying his ability to review guilt phase evidence to him speaking
with a doctor, and he claimed defense counsel had confided that
the competency proceeding was “a stall tactic.” The trial court
denied Hronis’s Marsden motions.
      In January 2000, the guilt phase of trial began. One
month later, the court held another Marsden hearing to address
Hronis’s concern that the jury would notice his dirty appearance
during trial and connect it to the evidence being presented. In
response, defense counsel worried that Hronis only appeared
concerned about looking good and was apparently not bothered
by the incriminating testimony because of his religious
revelation. Hronis replied that he was concerned about the
testimony, and his Marsden request was not related to the
revelation.
     Defense counsel asked the court to suspend proceedings
and declare a doubt of mental competency based on the record.
The court denied the Marsden motion because the relationship


8
     People v. Marsden (1970) 2 Cal.3d 118.


                                 22
                  PEOPLE v. BERTSCH and HRONIS
                 Opinion of the Court by Guerrero, C. J.


between counsel and Hronis had not fundamentally broken
down. It asked defense counsel to confirm whether he was
requesting the court to express a doubt regarding Hronis’s
competency. Defense counsel responded, “I think we have to.
Well, yes, I just don’t know that I can say anything else about
that.” The court stated it would reflect on that with counsel and
adjourned for the day.
      The following week, the court held an in camera hearing
to address defense counsel’s “oblique references on the record
that arose from the expression of doubt stated not by the Court
but by the counsel in the context of Mr. Hronis’ most recent
Marsden motion.” Counsel represented that they had attempted
to contact Dr. John Podboy, a psychologist who had spent some
time with Hronis, but they were unable to do so and therefore
could not secure any kind of psychological evaluation to
supplement the record from the prior competency hearing.
Counsel recounted that Podboy had relayed to them that
Hronis’s competence could begin to deteriorate if his religious
revelation did not come to fruition. Counsel wanted to develop
additional support, so they asked the court to delay ruling on
the ultimate question of whether to appoint doctors to assess
Hronis’s competence. The court found it did not currently have
a basis to express a doubt, and therefore did not appoint any
experts, but it gave defense counsel continuing leave to revisit
the issue.
      Later that day, Hronis made another Marsden request
based on his view that his counsel was attempting to have him
declared incompetent. Hronis again complained that his
attorneys were using competency claims as a stall tactic and a
tool against him, stating, “If I get out of line, or he don’t like the
way what I am doing, he’ll throw this at me and uses it as a tool

                                   23
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


against me.”    The court again found the issues Hronis
complained of were properly within the discretion of defense
counsel and denied the Marsden motion.
      In March 2000, after Loren G. had testified about Hronis’s
confession to using Canady’s credit cards, Hronis again
requested a Marsden hearing. He complained that his counsel
had not adequately investigated or cross-examined Loren G.,
even though Hronis had been complaining for years about access
to documents relating to investigation of church members
(including Loren G.). Defense counsel replied that they had
investigated Loren G. and listened to Hronis’s proposal, but
they had exercised their judgment and rejected it. The court
denied Hronis’s Marsden request, finding that the focus of
Loren G.’s cross-examination was well within the discretion of
counsel.
     On April 12, 2000, outside the prosecution’s presence,
Hronis’s counsel expressed a doubt regarding Hronis’s
competency to stand trial. They cited Hronis’s consistent refusal
to participate in a mental health evaluation or accept a plea
bargain offer, based on his asserted religious revelation and
message from God that he would not be convicted.
      Counsel shared that they had retained Podboy to assess
the presence of certain mitigating factors relating to penalty,
namely, whether Hronis acted under extreme duress or
substantial domination of Bertsch, whether Hronis was able to
appreciate the criminality of his conduct due to mental disease
or intoxication, and whether there were any other extenuating
circumstances related to the crime. They represented that
Podboy had interacted with Hronis beginning in April or May
1999 in a casual manner, not as a clinician, to gain Hronis’s


                                  24
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


trust. Podboy met with Hronis approximately 15 or 16 times
over a period of six or seven months. In counsel’s view, Podboy
was making progress on establishing a basis for Hronis to be
persuaded to participate in mental health testing in the event of
an adverse verdict in the guilt phase of trial. The last visit
occurred four months before, on December 20, 1999. By that
point, however, the prosecution had become aware of Podboy’s
visits, which it disclosed in open court during jury selection.
Hronis accused Podboy of attempting to produce evidence that
could be used at the guilt phase and ended the relationship.
      To support their expression of doubt regarding Hronis’s
competence, defense counsel called Podboy to testify under oath
regarding the extent of his communications with Hronis. He
briefly described his “positive” visits with Hronis between May
and December 1999. He confirmed that these visits came to an
end on December 20, when Hronis was very upset about the
recent court hearing in which the prosecution represented that
Podboy may offer evidence at the guilt phase. Although Podboy
assured Hronis that he had not spoken to his attorneys about
participating in the guilt phase, Hronis made clear that “he
wanted nothing more to do with” Podboy.
       Defense counsel then summarized a subsequent meeting
between counsel and Podboy. Podboy conveyed that “although
he has at least some preliminary impressions that would be
founded on forensic issues, . . . he would not come to court to
testify about them for a variety of reasons, not the least of which
is that he does not have available data that he feels would be
necessary to reach the level of reasonable medical or
psychological” meetings or interviews necessary to form an
opinion.    Counsel proposed to keep Podboy apprised of
developments in the case due to concerns relating to Hronis’s

                                  25
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


mental competency, noting they had sent him copies of prior
Marsden hearings and shared certain communications between
Hronis and his attorneys. Podboy opined to counsel that as time
went on, Hronis “would become more and more fixed in his
delusion, more likely to deteriorate; that his cooperation with
[them] would, as a result of his delusional thinking process,
reach the point where he very likely would decompensate and
be unable to cooperate in any way.” Defense counsel recalled
Podboy suggesting that the “revelation is going to come in such
serious conflict with the reality of the evidence and an ultimate
guilt verdict, that you are going to end up with a psychotic client
and that he will explode, psychically explode.”
       The court asked Podboy whether he believed Hronis was
competent to proceed with trial. Podboy responded that, based
on his review of Hronis’s statements during the Marsden
hearings and his conversations with counsel, he was “certainly
of the opinion that this individual is incompetent.” He explained
that Hronis’s sole focus was on what he would do after his
release from jail and that he “is delusional to the extent that he
is convinced that there is no way that he could possibly be found
guilty and held to answer on these charges.” Defense counsel
reiterated their position that Hronis’s refusal to cooperate was
not by choice but was based on his religious delusion. They
viewed Hronis as having “a peculiar kind of disability” that
interfered with his ability to cooperate with counsel but not his
ability to understand the proceedings. Counsel described
Hronis’s thinking as “delusional” and “crazy,” adding: “And I
don’t care what you want to call it; he won’t do what’s in his best
interest to save his life.”
      Hronis then made a Marsden motion so he could speak to
the court regarding his competency. He repeated his belief that

                                  26
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


God would deliver him, analogizing his case to a biblical story in
which God had intervened to prevent the execution of a man who
had committed adultery. He reiterated that counsel had tricked
him into participating in the earlier competency hearing by
misrepresenting it was just a stall tactic.
      Hronis disputed telling counsel that the revelation
prevented him from participating in the penalty phase, and he
asserted defense counsel had misrepresented his position on this
point. He contemplated the possibility of conviction, and he
stated that if he were to be convicted, then he had
misunderstood God. He added, if he were convicted, “I am not
going to deteriorate, not going to break down.” He also
acknowledged that the pressure of this case at times had caused
his emotions “to spill out,” which he deemed reasonable in light
of the stakes at play. Hronis repeated his complaint about his
attorneys’ failure to properly impeach Loren G. or present
evidence he viewed as exculpatory.
     The court denied the Marsden motion. Again, it found
that most of the tactical decisions Hronis complained of fell
within his counsel’s discretion.     It declined to make a
competency finding at the time and allowed defense counsel the
opportunity to submit additional evidence.
      On April 19, 2000, defense counsel again formally
expressed a doubt as to Hronis’s competence and stated they
would present evidence on the issue. Counsel indicated they
would provide a declaration from a licensed and qualified
psychologist opining that Hronis was currently mentally
incompetent. Informally, based on the current record, the court
stated it had no doubt as to Hronis’s competence, but it
recognized that defense counsel could submit supplemental


                                  27
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


information to show a substantial change of circumstances since
the last hearing. At a subsequent Marsden hearing the
following month, defense counsel represented they would file
additional pleadings regarding Hronis’s competence.
       On June 5, 2000, with trial proceeding apace and defense
counsel still not having submitted additional evidence regarding
Hronis’s competency, the trial court decided to articulate on the
record why it had no doubt as to Hronis’s competence. The court
first observed that because a prior competency determination
had been made, there must be a substantial change of
circumstances or new evidence casting doubt on the original
competency determination. The court also noted that it could
consider its personal observations of Hronis, and that it had
done so.
      The court acknowledged Podboy’s opinion that Hronis was
incompetent but found the basis for the opinion to be “fairly
thin.” The court also found Hronis’s statements regarding his
revelation were fundamentally the same as in the original
competency proceeding. In fact, the court noted, Hronis’s
statements “were more open in some respects” because Hronis
indicated that he may have misunderstood what he believed
God’s communication to be. Noting that the psychological
reports submitted in connection with the prior competency
proceeding had considered the same sort of statements that
Hronis had more recently made, the court gave their findings
regarding Hronis’s competency substantial weight. The court
emphasized that although Hronis was extremely religious and
professed to have had a revelation, he also articulated some very
strong and specific opinions about the way the case should be
handled, which suggested he had the ability to rationally assist
counsel.

                                  28
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


               iii. Renewed competency proceedings
      On August 23, 2000, Hronis was found guilty of first
degree special circumstance murder. On August 28, Hronis
made another Marsden request. He complained that his
attorneys wanted to put on a defense at the penalty phase, while
he would prefer to send the jury home, save the state some
money, be first in line to receive the death penalty, and “be with
Jesus” rather than “rotting” in prison waiting for an appeal. He
repeated: “If I can’t be free on the streets, I want to be free with
Jesus. That’s exactly how I feel.” He added, “I’m not out of my
mind, not speaking . . . irrationally. I’m being perfectly honest
with you, Judge. [¶] Let’s just save the state the money, send
the jury back home. Let them go back in their lives. Shut this
whole process down.” The court noted for the record that Hronis
was “soft spoken, deliberate, and composed.”
      In response, defense counsel stated that they had just filed
a formal motion expressing a doubt as to Hronis’s mental
competency (Motion 820), which was supported by declarations
from defense counsel and Podboy. Defense counsel made clear
that unless they were removed as counsel, they would present a
penalty phase defense “contrary to [Hronis’s] wishes and desires
as expressed,” which presented a “very real conflict.” They
added that Hronis’s Marsden motion sounded more like a
Faretta motion.9
    The court denied the Marsden motion, noting that counsel
had discretion to present a penalty defense against a


9
       Faretta v. California (1975) 422 U.S. 806 at pp. 832–835
(Faretta) held that a defendant has a constitutional right to
proceed without counsel when the defendant voluntarily and
intelligently elects to do so.


                                  29
                PEOPLE v. BERTSCH and HRONIS
               Opinion of the Court by Guerrero, C. J.


defendant’s wishes. It stated nothing in the hearing had raised
a doubt in the court’s mind regarding Hronis’s mental
competency, but it would carefully review Motion 820. It ended
in camera proceedings to allow Hronis to make a Faretta motion
in open court.
      In Motion 820, defense counsel alleged new competency
proceedings were required because there had been a substantial
change of circumstances and new evidence cast serious doubt on
the validity of the court’s previous competency finding. The
alleged change of circumstances or new evidence was that
Hronis, since the last competency hearing in 1995, had conveyed
certain information to counsel that could be considered
mitigating at the penalty phase and counsel believed it was
irrational for Hronis not to allow the information to be used as
mitigation.
      Attached to Motion 820 were declarations from defense
counsel and an unsworn report from Podboy, which was
addressed to defense counsel. In his report, Podboy opined that
Hronis suffered from a delusional disorder based on his asserted
special relationship with God. The report described Podboy’s
observations of Hronis on August 19 and 20, when Podboy
visited him in jail during jury deliberations. Podboy believed
Hronis’s cognitive and emotional function at that point was
deteriorating. He cited Hronis’s comparison of himself to King
David, his recent 21-day fast to communicate with God, and his
steadfast belief during jury deliberations that he would be
released from prison.
     Podboy’s report also described his personal observations of
Hronis’s mental state after the jury found him guilty. Podboy
wrote, “Hronis presented as completely psychotic, irrational,


                                 30
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


and unable to respond to even the . . . simplest form of questions
which, in many cases, were put to him repeatedly and in a
variety of forms.”       Podboy opined that this sort of
decompensation was typically seen with individuals suffering
from a paranoid type of schizophrenia. He added, “While
opinions may differ to some extent about the exact diagnosis in
regard to Mr. Hronis, which is made far more difficult by the
absence of a psychometric database, there would appear to be no
doubt whatsoever that Mr. Hronis is actively psychotic. He is
unable to interact with his attorneys in a rational and
meaningful manner about any topic whatsoever.”
      The court held an in camera hearing to allow defense
counsel to explain the basis for their continued belief that
Hronis was mentally incompetent. Defense counsel requested
the court unseal Motion 820, which, as noted, included Podboy’s
report and counsel’s declarations, and which referenced the
mitigating information Hronis had conveyed to counsel. After
confirming with Hronis that he wanted his statements to
counsel to remain confidential, the court determined the
statements came within the attorney-client privilege. The court
ordered Motion 820 to remain sealed, but it said it would apprise
the prosecution of the subject matter of the motion. The court
also said it would give the prosecution Podboy’s report, with two
redactions to remove references to Hronis’s statements.
      The court then allowed the prosecution into the courtroom.
It announced that defense counsel had filed a motion to express
a doubt regarding Hronis’s competency, which the court had
ordered sealed from the public because of potential prejudice. It
would, however, provide the prosecution with a partially
redacted version of Podboy’s report. The court also indicated its
intent to seek an advisory opinion from a court-approved

                                  31
                PEOPLE v. BERTSCH and HRONIS
               Opinion of the Court by Guerrero, C. J.


medical expert, although it was specifically not expressing a
doubt at that time.
      On September 1, 2000, the court appointed Dr. Janice
Nakagawa to render an advisory opinion on Hronis’s mental
competence. The court provided her with copies of the previous
psychological reports from Johnston, Kobashigawa, and Podboy
(with the same two redactions). Nakagawa conducted a clinical
interview with Hronis on September 7 and submitted her
advisory report the following week.
      In her report, Nakagawa stated that she had reviewed the
prior medical reports and personally observed Hronis. She
described Hronis as alert, oriented, and cooperative. She noted
that he seemed to become a little agitated when discussing
religious convictions, and it was evident Hronis exhibited a
quality of religious fervor. However, Nakagawa observed, “this
did not appear to manifest in any frankly delusional
symptomatology.” She stated his speech was “relevant, goal-
oriented, and coherent, with no evidence of any underlying
psychotic symptoms.” Nakagawa detected “some evidence of
grandiosity and narcissism, as well as a clear antisocial
dynamic,” but she determined “these appeared to be directly
related to underlying personality disorder dynamics rather than
any signs of mental illness.”
      Nakagawa recommended Hronis be declared mentally
competent. She described Hronis as possessing “very rigid,
fundamentalist religious beliefs,” but opined “this religious
fervor is not atypical of a fairly large segment of the general
population.” She added, “While he may be an individual who is
not very well integrated psychologically, he does not evidence
any frankly delusional or psychotic symptomatology. There is


                                 32
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


no evidence that he suffers from any significant cognitive or
developmental problems or delays. Additionally, despite his
rigidly fundamentalist religious perspectives, there is no
evidence to suggest that he would not be able to make reasoned
decisions regarding all matters pertaining to his case or assist
counsel in conducting a defense in a rational manner.”
      On September 13, 2000, the court formally denied defense
counsel’s motion to declare a doubt as to Hronis’s competency.
The court stated that it had reviewed the lengthy evidentiary
record regarding Hronis’s competency and it had considered its
own personal observations in making its ruling.
       First, the court noted that every medical report had
described Hronis’s religious language and statements
consistently, and the court had observed Hronis use the same
language on occasion. Regarding Podboy’s report to defense
counsel, the court stated that it found certain aspects of the
report “troubling.” For example, the court viewed the report’s
skepticism of Hronis’s fasting based on his religious beliefs as
“reflect[ing] bias or pre-orientation.” It described Podboy’s
reliance on Hronis’s fasting as “extraordinarily weak,” noting
that “[i]t’s common knowledge . . . that the bulk of the religions
in the world have fasting periods,” including new sects of
Christianity that encourage and promote fasting for extended
periods of time “as one of the tools to help gain insight and
spiritual enlightenment.” The court also noted the “thinness” of
Podboy’s opinion as expressed during the prior hearing. The
court noted the “remarkable similarity and continuity” among
the reports from Johnston, Kobashigawa, and Nakagawa, the
last of whom met with Hronis following the jury’s guilty verdict.




                                  33
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


      The court also described its personal observations of
Hronis throughout the proceedings. It found that Hronis was
“occasionally difficult” and “highly religious,” but that he
seemed to understand what was going on, even after the jury
rendered its guilty verdict. The court explained it had decided
to request an additional advisory opinion from Nakagawa
because the court’s personal observations “were so strongly,
firmly, diametrically opposed to Dr. Podboy.” The court posited
that perhaps one of the reasons that Podboy’s report was “so
extraordinarily different” from the other reports, and from the
court’s own observations, was that Podboy had interviewed
Hronis just two days after he was convicted of first degree
murder with special circumstances, which in the court’s view
would have a substantial impact on anyone.
      The court reasoned, “People who are competent . . . can
make what the Court thinks are not rational decisions. [¶] I
don’t think it’s a rational decision for a person to go Pro Per in a
penalty phase, but people can make those decisions under the
law. Decisions that the trial judge and the counsel may think
are improper decisions. [¶] Decisions which are, from our
perspective, not correct, [can] still be competent under the law.
And that’s I believe exactly what we have here.”
      Defense counsel objected to the trial court’s ruling as
improperly making findings and conducting a truncated
competency trial in violation of Hronis’s due process rights. The
court noted the objection and ended the in camera hearing.
      As discussed in more detail below (see pt. II.B.1.a., post),
the court subsequently granted Hronis’s request to represent
himself at the penalty phase and ordered his attorneys to serve
as standby counsel and attend all further proceedings. Hronis’s


                                  34
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


penalty phase trial began on September 18, 2000. As noted,
Hronis did not offer evidence in his own defense, testify, or give
a closing argument.
           b. Analysis
              i. Constitutionality of California’s statutory
                 competency scheme
      Hronis first contends that California’s standard of
competence as set forth in section 1367 is insufficiently
protective, and therefore unconstitutional, because it requires a
showing of a mental disorder or disability while the federal
Constitution requires only a present inability to assist counsel.
We disagree.
       The due process clause of the federal Constitution
prohibits the criminal trial of an incompetent defendant.
(Cooper v. Oklahoma (1996) 517 U.S. 348, 354; U.S. Const., 14th
Amend.) In Dusky v. United States (1960) 362 U.S. 402 (Dusky),
the United States Supreme Court described the test of a
defendant’s competence to stand trial as “whether he has
sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding — and whether he
has a rational as well as factual understanding of the
proceedings against him.” (Id. at p. 402.)
      California law likewise prohibits the state from trying or
convicting a criminal defendant who is mentally incompetent.
(People v. Sattiewhite (2014) 59 Cal.4th 446, 464 (Sattiewhite);
§ 1367, subd. (a).) Section 1367 provides that a defendant is
mentally incompetent “if, as a result of a mental health disorder
or developmental disability, the defendant is unable to
understand the nature of the criminal proceedings or to assist
counsel in the conduct of a defense in a rational manner.”


                                  35
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


(§ 1367, subd. (a).) “ ‘ “Both federal due process and state law
require a trial judge to suspend trial proceedings and conduct a
competency hearing whenever the court is presented with
substantial evidence of incompetence, that is, evidence that
raises a reasonable or bona fide doubt concerning the
defendant’s competence to stand trial.” ’ ” (Sattiewhite, at
p. 464.)
      We have repeatedly rejected the argument that
section 1367 is insufficiently protective. In People v. Stanley
(1995) 10 Cal.4th 764 (Stanley), we held that the high court’s
competency standard and section 1367 are identical “ ‘[t]o
anyone but a hairsplitting semanticist.’ ” (Stanley, at p. 816; see
People v. Lightsey (2012) 54 Cal.4th 668, 691 [“The applicable
state statutes essentially parallel the state and federal
constitutional directives”].) More recently, we considered a
similar constitutional attack on section 1367’s definition of
mental incompetence because it refers to a mental disorder or
developmental disability. (People v. Buenrostro (2018) 6 Cal.5th
367, 387 (Buenrostro).) Construing this argument as a facial
attack on the statute, we held that “defendant has failed to
demonstrate that section 1367, subdivision (a), is facially
invalid; indeed, she has failed to identify any case (including her
own) in which section 1367’s mental disorder or developmental
disability requirement results in the violation of due process.
Contrary to her argument, the due process right not to be tried
while incompetent has long been understood in terms of the
causal relationship between the defendant’s mental condition
and his or her trial-related functional abilities.” (Id. at p. 388,
fns. omitted.) Indeed, as we noted in Buenrostro, the high court
has upheld the competency statutes of other states that contain
similar language. (Buenrostro, at p. 389, citing Drope v.


                                  36
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


Missouri (1975) 420 U.S. 162, 173.) Thus, consistent with our
reasoning in Stanley and Buenrostro, we conclude Hronis’s facial
challenge to section 1367 is unpersuasive.
      For similar reasons, we disagree that section 1367 is
unconstitutional as applied to Hronis. Hronis argues that there
exists in some individuals a “religious fervor” that is “so extreme
that an accused has irrational beliefs so pervasive they render
the individual unable to rationally cooperate with counsel in the
preparation of a defense.” He then contends that he is such a
person and his extreme religious beliefs would render him
incompetent under the federal standard. Yet, as discussed,
section 1367 is consistent with the federal standard.
(Buenrostro, supra, 6 Cal.5th at p. 389.) Hronis has not
identified any constitutional infirmity in its application here.
Indeed, although the federal standard does not explicitly require
a mental disorder or disability, some form of disorder or
disability is essentially implied. A person’s inability to consult
with counsel, as opposed to mere unwillingness, is necessarily
associated with a mental disorder or disability, whether or not
attributed to a specific medical diagnosis. (See ibid. [mental
incompetency standard “does not require a specific medical
diagnosis drawn from the current version of the Diagnostic and
Statistical Manual of Mental Disorders”].) However, “[a]n
uncooperative defendant is not tantamount to an incompetent
one.” (People v. Parker (2022) 13 Cal.5th 1, 29.) In the absence
of evidence that a defendant’s refusal to consult with counsel is
the product of some form of mental disorder or disability, a
person who does not consult with counsel based on his or her
religious beliefs is not incompetent, even under the federal
standard.      (See Buenrostro, at p. 388, fn. 10 [“cultural
differences alone do not give rise to a lack of capacity to


                                  37
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


understand the nature of the proceedings or assist counsel in
preparing a defense, as the Dusky standard requires”]; see also
People v. Lewis (2008) 43 Cal.4th 415, 526 (Lewis) [competency
hearing not required where a defendant is unwilling, but not
unable, to consult with counsel]; Parker, at p. 30 [declining to
conclude that the defendant’s behavior resulted from mental
illness as opposed to unwillingness to cooperate]; People v.
Mendoza (2016) 62 Cal.4th 856, 879 (Mendoza) [jury considering
evidence of defendant’s “religious preoccupation” could
reasonably credit “expert’s explanation that defendant was not
unable but rather was choosing to avoid discussion of the crimes,
his personal history, and any other negative material”]; id. at
p. 895 [rambling, religion-infused comments by the defendant at
sentencing did not give rise to the need for a renewed
competency hearing].)       As discussed below, the evidence
supports the trial court’s determination in this regard.
       In his reply brief, Hronis claims that “it is reasonably
possible that a different result would have been reached if the
trial court, the appointed doctors, and counsel on both sides had
understood the correct standard as subsequently clarified in
Buenrostro.” Hronis thus relies on language in Buenrostro, in
which we said that, although the “statute requires that the
defendant show that, because of a mental disorder or
developmental disability, he or she is unable to understand the
nature of the proceedings or to rationally assist in his or her own
defense” it does “not require that the defendant’s mental
disorder fit neatly within the standard diagnostic taxonomy.”
(Buenrostro, supra, 6 Cal.5th at p. 389.) But the trial court here
expressed no confusion in this regard.
      Further, Hronis’s claim is unpersuasive because it rests
on the faulty premise that Buenrostro “clarified” the standard in

                                  38
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


section 1367.    Yet, well before Buenrostro, we held that
section 1367 embodied the federal competency standard. (See,
e.g., Stanley, supra, 10 Cal.4th at p. 816.) And Hronis has not
pointed to anything in the record suggesting that our further
discussion of the standard in Buenrostro would have affected the
trial court’s competency determination. For these reasons, we
conclude that Buenrostro does not suggest a different conclusion
regarding the determination that Hronis was competent to
stand trial.
              ii. Sufficiency of the 1995 competency
                  proceedings
       Alternatively, Hronis contends the 1995 competency
proceedings were too superficial to support the trial court’s
determination that Hronis was competent to stand trial and
that these proceedings violated his constitutional right to a fair
trial. We disagree.
      “The law presumes a person is competent to stand trial.
[Citation.] ‘When the defendant puts his or her competence to
stand trial in issue, the defendant bears the burden of proving
by a preponderance of the evidence that he or she lacks
competence.’ ” (Buenrostro, supra, 6 Cal.5th at p. 387.)
       As an initial matter, by waiving his right to a jury trial
and agreeing to submit the competency determination on the
expert reports, Hronis has waived any objection to the
sufficiency of the proceedings. (People v. Weaver (2001)
26 Cal.4th 876, 904 (Weaver) [“To the extent defendant attempts
to impugn the validity of the appointed experts’ conclusions on
grounds they failed to consider the effect of defendant’s
medication on his competency, the time to raise such a challenge
has long since passed. Having submitted the competency


                                  39
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


determination on the two psychiatric reports, defendant may
not now relitigate that question with arguments he did not make
below”].)
     Hronis’s claim also fails on the merits.10 The procedure
used here, submission to the court of the issue of competence to
stand trial based on psychiatric reports, is permissible. (Weaver,
supra, 26 Cal.4th at p. 903.) A defense attorney is not precluded
“from waiving a jury, forgoing the right to present live
witnesses, and submitting the competency determination on the
psychiatric reports filed with the court.” (Id. at p. 904.)
      In People v. McPeters (1992) 2 Cal.4th 1148 (McPeters), we
rejected the claim that submitting on the issue of competence
based on expert reports deprives a defendant of any of his rights.
We reasoned: “Section 1368 entitles defendant to a ‘hearing’ on
the issue of competence and he received one. Although
defendant’s counsel, for understandable reasons, elected to
waive certain available incidents of the hearing procedure, i.e.,
the right to jury trial and the rights to present oral testimony
and to confront and cross-examine witnesses, defendant
presented evidence and received an independent judicial
determination of his competence to stand trial based on the
stipulated record. [Citation.] [¶] . . . Because defendant had a
hearing and does not show it was in any significant way
incomplete or unfair, we reject his contention.” (Id. at p. 1169;



10
      To the extent Hronis’s argument could be construed to
extend to defense counsel’s initial failure to offer evidence to
support the request for a competency hearing, any potential
claim of ineffective assistance of counsel based on this omission
may be raised in a habeas corpus proceeding, not on direct
appeal. (People v. Mai (2013) 57 Cal.4th 986, 1009.)


                                  40
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


accord, People v. Lawley (2002) 27 Cal.4th 102, 131–132
(Lawley).)
      Here, as in McPeters, the prosecutor and defense counsel
stipulated the matter would be presented to the court for
determination based on Johnston’s and Kobashigawa’s reports.
(McPeters, supra, 2 Cal.4th at p. 1168.) These expert reports
provided a valid basis for adjudicating Hronis’s competence.
Both experts opined that Hronis was competent after
administering several psychological tests, interviewing Hronis,
and questioning him at length about his religious beliefs. They
found no indications of significant cognitive defect, active
psychotic symptomatology, or significant emotional or cognitive
impairment. They also concluded Hronis’s religious fervor was
not associated with any mental disorder that impaired his
ability to understand the nature of the proceedings against him
or to assist counsel in the conduct of his defense. (See State v.
Hessler (Neb. 2011) 807 N.W.2d 504, 519 [“we will not assume
that hearing messages from God and following God’s perceived
commands, without more, demonstrate incompetence”].) After
reviewing these reports, the court found defendant competent to
stand trial and reinstated the criminal proceedings against him.
Against this backdrop, we conclude these proceedings did not
deprive Hronis of his right to a fair trial.
              iii. Applicability of section 1369
      Hronis also claims the trial court erred when it failed to
appoint a regional center director to evaluate Hronis’s
competence in 1995 or 2000 because there were sufficient
indications at the time that Hronis had a developmental
disability. We conclude this claim lacks merit.




                                  41
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


      At the time of Hronis’s competency proceedings,
section 1369 provided that if the court declares a doubt as to the
defendant’s competency and “it is suspected the defendant is
developmentally disabled, the court shall appoint the director of
the regional center for the developmentally disabled . . . or the
designee of the director, to examine the defendant. The court
may order the developmentally disabled defendant to be
confined for examination in a residential facility or state
hospital.” (Former § 1369, subd. (a).) Welfare and Institutions
Code former section 4512 defined a developmental disability as
“a disability which originates before an individual attains age
18, continues, or can be expected to continue, indefinitely, and
constitutes a substantial disability for that individual . . . .
[T]his term shall include mental retardation, cerebral palsy,
epilepsy, and autism. This term shall also include disabling
conditions found to be closely related to mental retardation or to
require treatment similar to that required for individuals with
mental retardation.” (Welf. & Inst. Code, former § 4512,
subd. (a).)
       As previously described, at the initial competency
proceeding, Hronis agreed to submit the competency
determination on the expert reports. Johnston specifically
tested Hronis for the possibility of a developmental disability
and determined that he did not suffer from one. Although
Kobashigawa did not appear to test explicitly for a
developmental disability, he estimated Hronis’s intelligence to
be average. Defense counsel did not submit a declaration or
report from an expert to refute Johnston and Kobashigawa. The
trial court was entitled to rely on Johnston’s and Kobashigawa’s
reports. (See People v. Leonard (2007) 40 Cal.4th 1370, 1390
(Leonard); People v. Townsel (2016) 63 Cal.4th 25, 39 (Townsel).)


                                  42
                  PEOPLE v. BERTSCH and HRONIS
                 Opinion of the Court by Guerrero, C. J.


      Notwithstanding Johnston’s determination that Hronis
did not have a developmental disability and Kobashigawa’s
conclusion that Hronis was of average intelligence, Hronis
contends several pieces of evidence should have independently
prompted the trial court to appoint the director of the regional
center pursuant to section 1369, either in 1995 or 2000. He cites
counsel’s declaration attesting that “on at least one occasion,
Mr. Hronis tested at an intelligence quotient level of 69.”
Defense counsel’s reference to Hronis’s IQ score does not
necessarily give rise to a court’s duty to refer a defendant to a
regional director under section 1369. (See People v. Taylor
(2009) 47 Cal.4th 850, 864 (Taylor) [reference to defendant’s IQ
score of 75, without specific connection to developmental
disability, was not sufficient to trigger trial court’s duty to refer
defendant to regional director under § 1369].) Indeed, Hronis
has done little to explain his IQ score beyond his counsel’s bare
reference, and a subsequent reference to an IQ score of 72 while
Hronis was in high school.
       Hronis relies on People v. Lara (2025) 112 Cal.App.5th
1090 (Lara), but it is distinguishable. In Lara, the Court of
Appeal concluded the trial court erred in failing to appoint a
regional director under section 1369, based on a psychologist’s
report that substantiated the defendant’s “ ‘extremely low’ IQ of
65, documented [the defendant’s] confusion during police
interviews and the competency evaluation, and showed scores
below the competence cutoff” on three separate parts of a test
specifically designed to assess competency to stand trial for
intellectually disabled individuals. (Lara, at p. 1102.) The
appellate court distinguished Taylor, supra, 47 Cal.4th 850 on
its facts, emphasizing the difference between the defendant’s IQ
in Taylor (75) and the IQ of the subject defendant (65) as well as


                                   43
                PEOPLE v. BERTSCH and HRONIS
               Opinion of the Court by Guerrero, C. J.


other indicia of developmental disability that were not present
in Taylor. (Lara, at p. 1103.)
      Here, like Taylor, Hronis’s IQ score was not accompanied
by sufficient confirmatory evidence of his claimed
developmental disability like the defendant offered in Lara.
(See Lara, supra, 112 Cal.App.5th at p. 1103 [highlighting
evidence not present in Taylor, including scoring below
competency on a competency test and exhibiting confusion
during police interviews].) Hronis points to his counsel’s
statement that he had attended special education classes, but
this reference is too general to support a suspicion that Hronis
was developmentally disabled. Hronis also points to his
counsel’s statement that he was discharged from the military
based on cognitive limitations. Again, however, this fact does
not necessarily give rise to a suspicion that Hronis was
developmentally disabled.
      Further, Nakagawa expressly considered Hronis’s
discharge from military service based on cognitive limitations,
but nevertheless concluded his intellectual functioning was in
the “low average range” and he did not suffer from any
significant cognitive or developmental problems or delays.
Finally, while defense expert Podboy submitted a report
whereby he concluded that Hronis “is quite obviously an
individual suffering from either mild mental retardation or
borderline mental retardation,” he did not indicate what tests,
if any, he administered to reach this conclusion, and the trial
court specifically found Podboy’s report unreliable.
      Trial courts should, of course, take great care when
presented with evidence of IQ scores in the range for borderline
intellectual ability. On this record, however, we conclude the


                                 44
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


trial court did not violate section 1369 when it failed to appoint
a regional director to examine Hronis. Moreover, even if we
were to conclude the trial court erred under section 1369, we
would find such error harmless because the experts who
examined Hronis specifically considered the possibility of a
developmental disability, and the evidence strongly supported
the trial court’s finding that Hronis was not incompetent to
stand trial on that basis. (See Leonard, supra, 40 Cal.4th at
p. 1390 [holding that the trial court’s failure to appoint the
regional director under § 1369 was harmless because the court’s
“competency determination was based on evidence from experts
who were familiar with defendant’s developmental disability
and who considered it in evaluating his competence”].)
               iv. Trial court’s denial of request for renewed
                   competency proceedings in 2000
      Hronis also maintains that the trial court abused its
discretion when it declined to reinstitute competency
proceedings following defense counsel’s submission of
Motion 820 in August 2000. We conclude the trial court acted
within its discretion in not reinstituting these proceedings.
       “ ‘ “Once a defendant has been found competent to stand
trial, a second competency hearing is required only if the
evidence discloses a substantial change of circumstances or new
evidence is presented casting serious doubt on the validity of the
prior finding of the defendant’s competence.” ’ ” (Buenrostro,
supra, 6 Cal.5th at p. 409; People v. Rodas (2018) 6 Cal.5th 219,
231, 234 (Rodas); Leonard, supra, 40 Cal.4th at p. 1415; People
v. Jones (1991) 53 Cal.3d 1115, 1152–1153.) “[T]he duty to
suspend [proceedings] is not triggered by information that
substantially duplicates evidence already considered at an
earlier, formal inquiry into the defendant’s competence; when

                                  45
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


faced with evidence of relatively minor changes in the
defendant’s mental state, the court may rely on a prior
competency finding rather than convening a new hearing to
cover largely the same ground.” (Rodas, at pp. 234–235.) The
court may also “appropriately take its personal observations
into account in determining whether there has been some
significant change in the defendant’s mental state. This is
particularly true when . . . the defendant has actively
participated in the trial.” (People v. Jones, at p. 1153.)
       “Whether there has been a change in circumstances
sufficient to call for a new competency hearing is necessarily a
fact-specific inquiry.” (Rodas, supra, 6 Cal.5th at p. 235.) We
review for substantial evidence the trial court’s finding of no
substantial change of circumstances and no new evidence
casting serious doubt on the initial competency determination,
and we review its decision not to reinstate competency
proceedings for an abuse of discretion. (People v. Huggins (2006)
38 Cal.4th 175, 220 (Huggins) [“We apply a deferential standard
of review to a trial court’s ruling concerning whether another
competency hearing must be held”]; People v. Marshall (1997)
15 Cal.4th 1, 33 (Marshall) [same].)
     Hronis first contends the initial competency finding
should be given little weight because it was based on the
submission of written reports rather than a full evidentiary
proceeding. He cites no authority for the proposition that a
reviewing court should disregard a trial court’s initial
determination of competency to stand trial if based on
psychiatric reports, rather than a full, trial-type, adversary
hearing. As discussed, the procedure used by the trial court here
was sufficient to support its determination that Hronis was
competent to stand trial. (See McPeters, supra, 2 Cal.4th at

                                  46
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


pp. 1168–1169.) Consistent with that conclusion, we reject
Hronis’s claim that the earlier ruling should be accorded little
weight in our review of the court’s subsequent competency
ruling.
       On the merits, we conclude substantial evidence supports
the trial court’s determination that there was no substantial
change of circumstances or new evidence casting a serious doubt
on the court’s prior finding of Hronis’s competence. As discussed
above, the initial competency determination considered Hronis’s
rigid religious belief that God would deliver him from the
criminal proceedings. Johnston and Kobashigawa discussed
and analyzed at length Hronis’s religiosity. They connected it
to Hronis’s narcissism and grandiosity rather than any mental
illness or delusion that would impact his ability to understand
the proceedings or assist counsel. In declining defense counsel’s
renewed request to declare a doubt, the trial court observed that
the ground for their request was Hronis’s rigid religiosity, which
was not a new or changed circumstance. Indeed, it was central
to the prior proceeding. The court also found that, despite
Hronis’s deeply held religious beliefs, Hronis “understands
what’s going on,” “[e]ven in the context of the Pro Per voir dire
that [the court] did subsequent to the verdict.” Thus, the court
reasonably found it was not presented with a substantial change
of circumstances or new evidence casting a serious doubt on the
validity of the original competency finding. (Huggins, supra,
38 Cal.4th at p. 220 [reaffirming that the initial determination
of competency “must be viewed as a baseline that, absent a
preliminary showing of substantially changed circumstances,
eliminate[s] the need to start the process anew”].)
      Hronis relies on Podboy’s report, but it describes the same
or similar behaviors and attitudes that the trial court previously

                                  47
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


found insufficient in the original competency proceedings. For
example, Podboy described Hronis’s steadfast belief that he
would be released from prison based on his revelation from God
and his interpretations of biblical stories. The impact of
Hronis’s religious beliefs on his understanding of the
proceedings and his ability to rationally assist counsel was
thoroughly considered in the previous competency proceedings,
and the trial court could reasonably find that Podboy’s report
contained no substantial evidence of new or changed
circumstances casting serious doubt on the prior competency
determination. (Taylor, supra, 47 Cal.4th at p. 864; Lawley,
supra, 27 Cal.4th at pp. 136–137.)
      To the extent Podboy’s report did offer new observations
or conclusions, the trial court reasonably found them
insignificant. Indeed, the trial court specifically concluded
several aspects of the report to be “extraordinarily weak,”
indicative of “bias or pre-orientation,” and “strongly, firmly,
diametrically opposed” to the court’s personal observations of
Hronis throughout trial. For example, although Podboy’s report
described Hronis as decompensating and appearing increasingly
agitated shortly after he was convicted of the offenses, the trial
court noted that “[t]hat type of verdict, of course, has got to have
a substantial impact upon any person.” The trial court’s
observation is well supported. (See People v. Davis (1995)
10 Cal.4th 463, 526–527 [trial court reasonably viewed
defendant’s anger and emotion over the guilty verdicts as
“ ‘normal’ under the circumstances,” rather than evidence of
incompetency]; see also Buenrostro, supra, 6 Cal.5th at p. 410
[concluding that defendant’s bizarre behavior which, in defense
counsel’s view, reflected a “deepening” of defendant’s inability to
understand the legal proceedings and cooperate with counsel,


                                  48
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


“may . . . have simply been a display of her unwillingness to
cooperate with counsel”]; People v. Laudermilk (1967) 67 Cal.2d
272, 285, citations omitted [holding that “more is required to
raise a doubt than mere bizarre actions . . . or bizarre
statements . . . or statements of defense counsel that defendant
is incapable of cooperating in his defense . . . or psychiatric
testimony that defendant is immature, dangerous,
psychopathic, or homicidal or such diagnosis with little
reference to defendant’s ability to assist in his own defense”],
accord, People v. Bloom (2022) 12 Cal.5th 1008, 1032.) Indeed,
contrary to Podboy’s impressions, Hronis appeared “soft spoken,
deliberate, and composed” when he explained to the court his
reasons for not wanting to put on a penalty phase defense, which
were grounded not in his religious revelation that he would be
delivered, but rather on a desire to save the state money and
send the jury home.
       Based on the court’s doubts about Podboy’s credibility and
reliability, the substantial findings of three court-appointed
experts, and the court’s own personal observations, Podboy’s
report does not constitute a substantial change of circumstances
or new evidence casting a serious doubt on the validity of the
court’s prior finding of Hronis’s competence. (People v. Lewis
and Oliver (2006) 39 Cal.4th 970, 1048 (Lewis and Oliver)
[expert testimony that one of the defendants was not competent
did not constitute substantial evidence because the expert’s
testimony was rejected by the trial court for “plausible reasons,”
including lack of credibility]; Marshall, supra, 15 Cal.4th at
p. 33 [finding no abuse of discretion when trial court determined
the statements failed to establish a substantial change of
circumstances because “[w]e cannot say as a matter of law that
here defendant’s statements in question were a ‘substantial


                                  49
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


change of circumstances’ requiring the trial court to hold a
second competency hearing”].)
      Fundamentally, defense counsel’s requests for a renewed
competency proceeding were grounded in Hronis’s refusal to
assist in the preparation of a potential penalty phase defense
based on his religious revelation. But this refusal to assist “did
not necessarily bear on his competence to do so, or reflect a
substantial change of circumstances or new evidence casting
serious doubt on the validity of the prior finding of the
defendant’s competence.” (People v. Medina (1995) 11 Cal.4th
694, 735.) We have on numerous occasions distinguished
between a defendant’s unwillingness to assist his counsel and a
defendant’s inability to assist his counsel; only the latter
implicates the competency of a defendant to stand trial. (Lewis,
supra, 43 Cal.4th at p. 526 [no competency hearing required
where “there was no substantial evidence that defendant’s lack
of cooperation stemmed from inability rather than
unwillingness”]; People v. Davis, supra, 10 Cal.4th at pp. 527–
528; Laudermilk, supra, 67 Cal.2d at p. 287.)
      We have held that the trial court has a nondiscretionary
obligation to suspend proceedings and hold a competency trial if
“at least one expert who is competent to render such an opinion,
and who has had a sufficient opportunity to conduct an
examination, testifies under oath with particularity that,
because of mental illness, the accused is incapable of
understanding the proceedings or assisting in his defense.”
(Lewis and Oliver, supra, 39 Cal.4th at p. 1047; Sattiewhite,
supra, 59 Cal.4th at p. 465.) But we have not applied that rule
to renewed competency determinations, and for good reason. A
trial court’s decision whether to reinstitute a competency
proceeding, after having previously found the defendant

                                  50
                PEOPLE v. BERTSCH and HRONIS
               Opinion of the Court by Guerrero, C. J.


competent, is fundamentally different from the initial decision
to institute competency proceedings. Mere doubt about a
defendant’s competency is insufficient, since the court has
already gone beyond the identification of doubt and determined
that defendant is not incompetent. Once a trial court has
determined a defendant is competent to stand trial, it would
make little sense to require the court to declare a doubt and
suspend proceedings whenever an expert opines that the
defendant is incompetent, irrespective of whether there is no
evidence of changed circumstances or new evidence.
       In any event, even considering this rule, it appears
Podboy’s report is insufficient. First, Podboy’s report was
addressed to defense counsel, rather than the court, and not
made under oath. Second, it is not clear whether Podboy
conducted an examination of Hronis for the purpose of
determining whether he was competent to stand trial. As noted,
defense counsel had retained Podboy to assist in developing
evidence relating to the potential penalty phase, including
whether Hronis acted under duress or did not have the mental
capacity to appreciate the criminality of his conduct. (See
Sattiewhite, supra, 59 Cal.4th at p. 467 [discounting penalty
phase evidence addressing defendant’s alleged intellectual
disability as not pertaining to the question of competence to
stand trial].) Counsel described Podboy’s interactions with
Hronis as “a nontraditional manner, not as a clinician.” After
visiting with Hronis on several occasions, Podboy relayed to
defense counsel that he did not have available data that he felt
would be necessary to reach the level of reasonable medical or
psychological meetings or interviews necessary to form an
opinion. Podboy confirmed this point when he informed the
court that the basis for his opinion was his review of Hronis’s


                                 51
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


statements during the Marsden hearings and his conversations
with counsel, not from a clinical interview with Hronis. (Weaver,
supra, 26 Cal.4th at p. 953 [psychiatrist’s testimony indicating
his belief defendant was incompetent came from his
observations of defendant’s in-court demeanor rather than
actual examination of testing of defendant and thus fell “far
short” of being substantial].) Although Podboy and defense
counsel visited Hronis during jury deliberations and just after
Hronis was convicted, there is no evidence that Podboy
conducted a clinical evaluation of Hronis at that time. (See
People v. Wycoff (2021) 12 Cal.5th 58, 86 [recognizing that “not
every psychiatrist’s opinion is substantial evidence,” but finding
credible psychologist’s opinion that was “supported by three
interviews with defendant, a thorough psychiatric history,
appropriate psychological testing, and detailed reasoning in
which he made clear the factual basis for his conclusions”].)
Indeed, Podboy noted in his report that Hronis was “completely
unwilling to engage in psychological testing of any sort.”
Accordingly, Podboy’s report was insufficient to require the
court to reinstitute competency proceedings.
      Because substantial evidence supports the trial court’s
finding that there was no substantial change of circumstances
or new evidence casting serious doubt on the validity of its prior
finding that Hronis was competent to stand trial, we conclude
the trial court acted within its discretion in declining to order a
renewed competency hearing.            (People v. Welch (1999)
20 Cal.4th 701, 742.)




                                  52
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


        2. Denial of severance motions and use of dual jury
            procedure
      Bertsch and Hronis contend the trial court erred when it
empaneled two separate juries for a joint trial rather than fully
severing their cases. We find no error.
           a. Background
      Bertsch and Hronis were jointly charged with the
kidnapping, rape, sodomy, robbery, and murder of Canady.
Before trial, Bertsch and Hronis moved to sever the trial. The
prosecution opposed severance, suggesting instead the use of
two juries in a single trial.
       Specifically, counsel for Bertsch and Hronis maintained
the courtroom was too crowded to accommodate two juries and
space constraints could result in tension, inattentiveness, and
hostility among jurors. They also contended that conflicting
defense strategy, tactics, and evidence counseled against a joint
trial. The prosecution maintained that this was a classic case
for a joint trial because it involved common events and a
common victim. The prosecution explained: “It’s the People’s
theory and the evidence shows that there are two men that
kidnapped her. There [are] two semen donors. There are two
people using the credit cards. There are two people in Arizona
where her car is dumped and there are two people charged. [¶]
And these two people are not pointing the fingers at each other
that one is more culpable. That will not be their defenses in this
case.” The prosecution also noted that separate trials would
inconvenience more than one hundred anticipated witnesses, at
least fifty of whom did not live in the area.
      The trial court denied the severance motions and ordered
a joint trial with separate juries. Although it acknowledged the


                                  53
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


logistical difficulty of managing large groups in the courtroom,
the trial court stated, “[T]his is almost a classic dual-jury
situation in the sense that the substantial bulk of the evidence
in the guilt phase . . . applies to both defendants, particularly
the DNA evidence,” which the court estimated could take
months of testimony “given the number of tests that were run
and some of the difficulties or alleged difficulties with some of
those tests.” The court also found the large number of witnesses,
including out-of-town witnesses, and difficulty scheduling
expert witnesses weighed in favor of a joint trial with dual
juries. The court indicated that it was considering modifying
the courtroom or moving proceedings to a larger courtroom to
accommodate the number of jurors.
      Before the commencement of trial, and after the parties
engaged in further discussions regarding courtroom suitability,
the court moved the proceedings to a larger courtroom. Bertsch
and Hronis lodged various objections to the courtroom layout
based on crowding and seating arrangement issues, which the
court overruled.
      During trial, defense counsel complained again about the
courtroom layout based on crowding at the counsel table. They
also moved for a mistrial based on their assertion that Bertsch’s
jurors could observe disapproving facial expressions apparently
made by two Hronis jurors. The court admonished the jurors to
disregard facial expressions and denied the motion for a mistrial
and requests to voir dire or excuse the jurors.
       As the trial continued, Bertsch indicated he intended to
testify. Hronis’s counsel expressed concern that Bertsch would
attempt to blame Hronis for Canady’s murder, and on that basis
moved to exclude Hronis’s jury when Bertsch testified. The trial


                                  54
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


court denied the request, explaining that “finger-pointing
between defendants” “does not in and of itself necessitate a
severance.”
      Bertsch subsequently testified in his defense. On cross-
examination, the prosecutor asked Bertsch whether it was true
that he was not present and had no participation in the
kidnapping, robbery, sexual assault, and murder of Canady.
Bertsch answered, “that’s true,” then blurted out — over the
prosecutor’s objection and court’s attempted intervention —
that “Jeff Hronis confided in me” “that him and Jerry [B.] killed
Linda Canady.” The court admonished the jurors to disregard
Bertsch’s statement. It denied Hronis’s request for a mistrial
based on Bertsch’s outburst.
      At the conclusion of Bertsch’s penalty phase trial, the trial
court confirmed its prior ruling that the larger courtroom had
adequately accommodated the joint trial with two juries. It
made a similar finding during Hronis’s penalty phase trial.
            b. Analysis
      Section 1098 provides that two defendants jointly charged
with any public offense must be tried together unless the trial
court orders separate trials. “Joint trials are favored because
they ‘promote [economy and efficiency’] and ‘ “serve the interests
of justice by avoiding the scandal and inequity of inconsistent
verdicts.” ’ ” (People v. Coffman and Marlow (2004) 34 Cal.4th
1, 40 (Coffman and Marlow).) “[I]mportant concerns of public
policy are served if a single jury is given a full and fair overview
of the defendants’ joint conduct and the assertions they make to
defend against ensuing charges.” (People v. Bryant, Smith and
Wheeler (2014) 60 Cal.4th 335, 379 (Bryant, Smith and
Wheeler).)


                                  55
                  PEOPLE v. BERTSCH and HRONIS
                 Opinion of the Court by Guerrero, C. J.


      “The court has discretion to order separate trials if there
is an incriminating confession, prejudicial association, likely
confusion due to evidence on multiple counts, conflicting
defenses, or the possibility that a codefendant might provide
exonerating testimony at a separate trial.” (People v. Sánchez
(2016) 63 Cal.4th 411, 464; accord, People v. Letner and Tobin
(2010) 50 Cal.4th 99, 150 (Letner and Tobin).) Severance may
also be called for when “ ‘there is a serious risk that a joint trial
would compromise a specific trial right of one of the defendants,
or prevent the jury from making a reliable judgment about guilt
or innocence.’ ” (Coffman and Marlow, supra, 34 Cal.4th at
p. 40.)
      “The use of dual juries is a permissible means to avoid the
necessity for complete severance.” (People v. Cummings (1993)
4 Cal.4th 1233, 1287 (Cummings).) “The procedure facilitates
the Legislature’s statutorily established preference for joint trial
of defendants and offers an alternative to severance when
evidence to be offered is not admissible against all defendants.”
(Cummings, at p. 1287; see Lambright v. Stewart (9th Cir. 1999)
191 F.3d 1181, 1186 (Lambright) [“the use of dual juries can
capture both the advantages of a joint trial and the protections
of separate trials”].) In People v. Harris (1989) 47 Cal.3d 1047
(Harris), “We rejected various constitutional and statutory
arguments against the dual jury system and concluded that it is
‘a permissible practice’ and ‘is not a basis for reversal on appeal
in the absence of identifiable prejudice resulting from the
manner in which it is implemented.’ ” (People v. Jackson (1996)
13 Cal.4th 1164, 1208 (Jackson), citing Harris, at p. 1075.) We
have upheld the constitutionality of the dual jury procedure in
subsequent decisions. (See, e.g., People v. Thompson (2016)
1 Cal.5th 1043, 1085 (Thompson); Cummings, at p. 1287.)


                                   56
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


       “Whether the court abused its discretion by denying
complete severance and impaneling separate juries is decided on
the basis of the facts known at the time of the ruling on the
severance motion.” (Cummings, supra, 4 Cal.4th at p. 1287; see
Thompson, supra, 1 Cal.5th at p. 1079.) “If the court properly
denied severance at the time, the reviewing court may reverse a
judgment only if it finds that the joint trial caused gross
unfairness that denied due process.” (People v. Sánchez, supra,
63 Cal.4th at p. 464; Bryant, Smith and Wheeler, supra,
60 Cal.4th at p. 379.) We have frequently found no abuse of
discretion and no prejudice in denying severance in a “classic
case” for a joint trial, that is, when the defendants are charged
together with the same crimes arising from the same events.
(Coffman and Marlow, supra, 34 Cal.4th at p. 40; Letner and
Tobin, supra, 50 Cal.4th at p. 150; Bryant, Smith and Wheeler,
at p. 379; Cummings, supra, 4 Cal.4th at pp. 1287–1288.)
      Initially, because the crimes charged here involved
common events and a common victim, the trial court was
presented with a “ ‘ “classic case” ’ ” for a joint trial. (Coffman
and Marlow, supra, 34 Cal.4th at p. 40.) Bertsch and Hronis
were jointly charged with the kidnapping, robbery, rape,
sodomy, and first degree murder of Canady, and they faced
kidnapping-murder, robbery-murder, sodomy-murder, and
rape-murder special-circumstance allegations. “Virtually no
reason existed for severance.” (People v. Sánchez, supra,
63 Cal.4th at p. 464.) There was no incriminating confession or
suggestion that a codefendant might provide exonerating
testimony at a separate trial. Nor was there a risk of prejudicial
association or likely confusion due to evidence that might be
offered on counts alleged against only one defendant, given that
Bertsch and Hronis committed the offenses together and were


                                  57
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


both charged with all counts. To the extent there was a
possibility of conflicting defenses at the time the trial court
denied Bertsch’s and Hronis’s severance motions — and
assuming without deciding whether antagonistic defenses can
ever require severance in the context of separately empaneled
juries (see People v. Flinner (2020) 10 Cal.5th 686, 714
(Flinner)) — we have made clear that “the possible or even
actual presentation of antagonistic defenses by codefendants
does not . . . require severance” unless “the conflict between the
defendants alone will demonstrate to the jury that they are
guilty.” (Bryant, Smith and Wheeler, supra, 60 Cal.4th at
p. 380.) In this case, there was strong independent evidence,
including DNA evidence, connecting Bertsch and Hronis to the
charges. (Ibid.) Accordingly, the court did not abuse its
discretion when it denied the motions for severance.
      Bertsch and Hronis raise a multitude of claims
challenging the use of dual juries, both in general and as
implemented in their case. We find none of their contentions
persuasive.
      Bertsch and Hronis contend the dual jury procedure
prejudiced them by inviting jury speculation. We have rejected
as “sheer speculation” the claim that the use of dual juries
“invites each jury to speculate that, during the time it is
excluded, evidence damaging to the defendant whose case that
jury is trying is being presented to the second jury.” (Harris,
supra, 47 Cal.3d at p. 1071; id. at p. 1072; People v. Powell
(2018) 6 Cal.5th 136, 146; accord, Lambright, supra, 191 F.3d at
p. 1186, fn. 5 [“The argument that each defendant’s jury will
‘necessarily speculate’ about the evidence being heard by the
other defendant’s jury is itself rank speculation”].) In Harris,
we found no evidence that the defendant’s jury speculated in its

                                  58
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


absence that the codefendant’s jury was hearing different
testimony that was highly incriminatory as to the defendant, or
that the defendant’s jury “was even aware that evidence was
being presented to the [codefendant’s] jury or that the court was
in session on some of the occasions when it was excluded.”
(Harris, at p. 1072.) In this case, although both juries were
aware of instances where evidence was heard in their absence,
this awareness itself does not suggest improper juror
speculation took place or that it informed their views of
Bertsch’s or Hronis’s guilt.         Moreover, the trial court
admonished prospective jurors to decide the case “solely as it
pertain[ed] to [their particular defendant] based on the evidence
received.” We presume the jurors understood and followed the
court’s instructions absent evidence to the contrary. (People v.
Romero and Self (2015) 62 Cal.4th 1, 28 (Romero and Self).)
       Bertsch and Hronis also claim courtroom conditions
distracted and inconvenienced their counsel. Specifically,
Bertsch claims one of his attorneys was forced to sit in a
cramped area while another was required to stand whenever the
projector was used, and the courtroom arrangement made it
difficult for counsel to observe the jurors and witnesses at the
same time. Hronis asserts the “persistent” and “uncomfortable”
crowding must have had a detrimental impact on the general
disposition of the lawyers and jurors. These inconveniences
“fall[] well short of establishing identifiable prejudice or gross
unfairness.” (People v. Powell (2018) 6 Cal.5th 136, 146
(Powell).) This conclusion finds support in the trial court’s
factual findings made at the conclusion of trial proceedings
regarding the adequacy of the courtroom arrangement,
including that defense counsel had been able to maintain visual
contact with the witnesses and the jury by turning or


                                  59
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


repositioning their chairs and the courtroom arrangements had
been more than sufficiently workable and did not infringe on
Bertsch’s or Hronis’s right to a fair trial.
      Bertsch and Hronis similarly maintain that dual jury
procedure caused delay and inconvenience, which frustrated
jurors and gave them reason to “retaliate against” Bertsch and
Hronis. Our Harris decision also rejected as “sheer speculation”
the argument that empaneling two juries in a joint trial “creates
a danger that jurors frustrated by the delay and inconveniences
caused by the procedure will blame the defendant for their
discomfiture.” (Harris, supra, 47 Cal.3d at pp. 1071–1072.)
Here, as in Harris, Bertsch and Hronis make “no effort to
substantiate [their] theory that such breaks, whether in a dual
jury trial or otherwise, affect the jury’s attitude toward the
defendant.” (Id. at p. 1072.) To the contrary, the trial court
noted “the juries . . . seem to be in a surprisingly good mood,”
even “given the total amount of bouncing around we have done
on this case.”
      Bertsch and Hronis further argue the dual jury procedure
prejudiced them because they were forced to defend against each
other’s counsel in addition to the prosecutor.        We have
previously rejected similar claims of prejudice based on
codefendant’s counsel acting as a purported “second prosecutor,”
explaining that just “because the prosecution’s case will be
stronger if defendants are tried together, or that one defense
undermines another, does not render a joint trial unfair.”
(Bryant, Smith and Wheeler, supra, 60 Cal.4th at p. 379;
Flinner, supra, 10 Cal.5th at p. 715 [same]; Letner and Tobin,
supra, 50 Cal.4th at p. 153 [same]; People v. Winbush (2017)
2 Cal.5th 402, 457 (Winbush) [“The mere fact that damaging
testimony is presented by codefendant’s counsel instead of the

                                  60
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


prosecutor does not deprive a defendant of constitutional or
statutory rights”]; Jackson, supra, 13 Cal.4th at p. 1208 [same].)
This case is no different.
       Separately, Hronis raises several policy arguments
against the dual jury procedure. As even Hronis acknowledges,
however, “[s]uch arguments are more properly addressed to the
Legislature.” (Burnett v. Superior Court (1974) 12 Cal.3d 865,
874.) Consistent with our prior case law, we decline to consider
such policy arguments on their merits or reconsider our prior
decisions reaffirming the use of separate juries for jointly tried
defendants. (Thompson, supra, 1 Cal.5th at p. 1085 [case law
upholding the use of dual juries for jointly tried defendants in
lieu of outright severance “is settled”]; see also Turrieta v. Lyft,
Inc. (2024) 16 Cal.5th 664, 711 [policy arguments “should be
evaluated and addressed by the Legislature in its policymaking
role, not by this court”].)
      Hronis also contends the trial court abused its discretion
when it kept his jury in the courtroom while Bertsch testified,
despite allegedly expecting such testimony “to be false and filled
with outbursts that would violate court orders.” Specifically, he
maintains that by allowing his jury to be present when Bertsch
blurted out over the prosecutor’s objection that “Jeff Hronis
confided in me” “that him and Jerry [B.] killed Linda Canady,”
the trial court rendered the trial fundamentally unfair and
deprived him of his due process rights.
       We find no error. Hronis has not shown that the trial court
expected Bertsch’s testimony to be false and filled with improper
outbursts. Moreover, immediately after Bertsch’s outburst, the
trial court admonished the jurors to disregard the statement.
“We presume the jury understood and followed this instruction.”


                                  61
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


(Romero and Self, supra, 62 Cal.4th at p. 28.) Indeed, as the
trial court later found in denying Hronis’s motion for mistrial
based on Bertsch’s outburst, Bertsch’s credibility was “severely
impugned,” which likely assisted the jury’s ability to follow the
court’s admonition to disregard the statement. Moreover,
outburst aside, portions of Bertsch’s testimony were clearly
relevant to Hronis’s guilt given the intertwined nature of their
involvement in Canady’s murder. Accordingly, the trial court
properly denied Hronis’s request to exclude his jury while
Bertsch testified.
      Hronis further maintains the dual jury procedure
prejudiced him by forcing his counsel to “chop up” cross-
examination of prosecution witnesses Jerry B. and Martha R. to
minimize the number of times the Bertsch jury was excused
from hearing portions of their testimony. Hronis does not
explain how these types of minor disruptions to his counsel’s
desired order and flow of the cross-examination establishes
identifiable prejudice or gross unfairness. Moreover, we find the
record devoid of any support for this argument as well. (Powell,
supra, 6 Cal.5th at p. 146; Harris, supra, 47 Cal.3d at pp. 1071–
1072.)
      Hronis additionally claims the dual jury procedure
prejudiced him when the trial court denied his request to
exclude his jury from the testimony of David Moore, Bertsch’s
expert document examiner. Moore was expected to testify that,
based on his comparison of known writings by Bertsch and the
signatures of receipts for items purchased with Canady’s credit
card, Bertsch probably did not sign any of the credit card
receipts and that one person probably signed most or perhaps
all the receipts. We conclude the trial court acted within its
discretion when it denied the motion to exclude the Hronis jury

                                  62
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


and allowed the prosecution to elicit the fact that Moore never
compared the credit card receipts with Hronis’s known writings.
The trial court properly reasoned this was a joint trial and the
handwriting evidence was relevant to Hronis as well as Bertsch.
No gross unfairness resulted from its admission. (Winbush,
supra, 2 Cal.5th at p. 457; Jackson, supra, 13 Cal.4th at
p. 1208.)
      In his final claim of error regarding dual juries, Hronis
asserts their use violated his right to a speedy trial.11 He
contends that Bertsch caused most of the trial delays, which
gave the prosecution more time to utilize new advancements in
DNA technology. Even assuming the use of such advancements
could constitute prejudice in this context, the record does not
support Hronis’s claim. To the contrary, pretrial litigation
regarding the issue of DNA partition caused most of the delay.
To the extent some small delay in bringing Hronis to trial could
be attributed to Bertsch, we find the substantial state interests
served by a joint trial outweighed Hronis’s interests under the
circumstances. (Smith v. Superior Court (2012) 54 Cal.4th 592,
604 (Smith); People v. Sutton (2010) 48 Cal.4th 533, 558
(Sutton); accord, § 1050.1 [“In any case in which two or more
defendants are jointly charged in the same complaint . . . and
the court . . . , for good cause shown, continues the . . . trial of
one or more defendants, the continuance shall . . . constitute
good cause to continue the remaining defendants’ cases so as to
maintain joinder”].)



11
      We address Hronis’s standalone claim that he was
deprived of his statutory right to a speedy trial in more detail in
part II.A.3., below.


                                  63
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


      Bertsch separately insists the dual jury procedure
prejudiced him because it allowed his jury to infer that he was
a security threat and more violent than Hronis because Bertsch
was shackled while Hronis was not, and a bailiff was seated
close to Bertsch.12 These claims are speculative. There is no
evidence to suggest the jury’s possible observation that only
Bertsch was restrained influenced its finding of guilt. Nor is
there any reasonable probability Bertsch would have received a
more favorable verdict had the courtroom seating arrangements
been different.
       Bertsch additionally contends the use of separate juries
was prejudicial because it allowed his jury to see expressions of
disapproval from two members of Hronis’s jury while Bertsch’s
counsel cross-examined a prosecution DNA expert witness.
Again, we find Bertsch’s assertion speculative. In any event, the
trial court’s contemporaneous admonition to Bertsch’s jury not
to consider such expressions, and its prior instruction to decide
the case solely based on evidence admitted against Bertsch,
provided sufficient safeguards. (See, e.g., People v. Pride (1992)
3 Cal.4th 195, 241 [“We assume the jury followed the court’s
instruction”].) Bertsch’s claim to the contrary is unsupported.
      Finally, Bertsch maintains the dual jury procedure
prejudiced him because it allowed his jury to compare his and
Hronis’s behavior at trial. Bertsch points out that he was absent
from part of the guilt phase of trial while Hronis was present
throughout. However, the trial court instructed Bertsch’s jury
that Bertsch had chosen not to attend part of the trial and that
the jury could not consider his absence on any issue it would be

12
     Bertsch did not object to the use of restraints at trial, and
he does not otherwise challenge their use on appeal.


                                  64
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


asked to decide. Bertsch also points out that he failed to follow
court instructions during his testimony while Hronis sat quietly
throughout the trial. Any inference by the jury based on this
conduct likely stemmed from the conduct itself, rather than a
comparison with Hronis. In other words, to the extent there
could have been any prejudice impacting Bertsch, it was based
on Bertsch’s actions and not the dual jury system itself. In any
event, as we have observed, the court likewise admonished the
jury not to consider Bertsch’s outburst while testifying. We
assume the jury followed the court’s instructions. (People v. Bell
(2019) 7 Cal.5th 70, 116.)
      In sum, we conclude that the trial court acted within its
discretion when it denied Bertsch’s and Hronis’s motions for
severance and conducted a joint trial with dual juries, and that
no gross unfairness resulted therefrom.
        3. Hronis’s right to a speedy trial
      Hronis maintains the nearly 16-month delay between his
agreed-upon trial date and the start of trial violated his
statutory right to a speedy trial. (§ 1382.) We conclude good
cause supported the delay; thus, no violation occurred.
           a. Background
      After the prosecution filed a felony complaint against
Bertsch and Hronis, both waived their right to a speedy trial and
sought and received numerous continuances. For example,
Hronis waived time to July 14, 1998, a date the parties agreed
to start motions in limine. During this time, the parties briefed
and litigated several discovery and evidentiary motions related
to DNA evidence.
      On July 14, 1998, Bertsch and Hronis moved for a
continuance to review additional DNA evidence the prosecution


                                  65
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


had recently provided. The trial court denied the request
because the newly discovered DNA material, which the
prosecution intended to analyze using new STR DNA testing
technology, did not impact the defense’s ability to proceed with
planned hearings relating to the admissibility of other types of
DNA testing. The in limine motions proceeded.
      Three months later, Hronis filed a motion to dismiss based
on the court’s failure to bring him to trial within the statutory
period. The trial court denied the motion. It cited the unique
and complicated nature of the case, and it found that the
ongoing in limine proceedings, based on motions brought by all
parties, constituted good cause to delay jury empaneling.
      In limine proceedings continued for several months, with
all three parties filing motions and calling witnesses. During
this time, Hronis sought and obtained numerous lengthy
continuances after one of his attorneys withdrew due to a family
health emergency. Hronis also agreed to recess proceedings for
several weeks to accommodate a trial conflict for one of Bertsch’s
attorneys.
      In September 1999, after the prosecution completed its
presentation on the in limine DNA issues, Hronis complained
that his speedy trial rights had been violated due to the
prosecution’s insistence on introducing DNA evidence at trial.
The prosecution responded that defense counsel’s objections to
the use of DNA evidence had caused the delay of trial, and that
it was prepared to select a jury if Hronis withdrew his objection
to the use of all DNA evidence. The trial court observed that it
was “entirely appropriate for the People to request that the DNA
be admitted and to have the Court make determinations
consistent with the law.” The court found good cause to continue


                                  66
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


the trial, with a planned ruling on the DNA admissibility in
October 1999. It cited the extensive evidentiary record, the
nature of anticipated pleadings by all parties, and the court’s
need to review those pleadings.
       On October 13, 1999, Hronis agreed to waive his speedy
trial rights to November 2 to accommodate his attorneys’ plan
to attend a DNA conference in late October. On November 3,
Hronis’s jury selection commenced.
            b. Analysis
      “Penal Code section 1382 — one of the principal provisions
implementing California’s statutory right to a speedy trial —
provides that when a defendant charged with a felony is not
brought to trial within 60 days of arraignment on an indictment
or information (and the defendant has not expressly or impliedly
consented to having trial set for a date beyond that period), the
criminal charges against the defendant shall be dismissed
unless there is ‘good cause’ for the delay.” (Sutton, supra,
48 Cal.4th at p. 537; see former § 1382, subd. (a)(2); Stats. 1998,
ch. 931, § 405.5.)
      “Section 1382 does not define ‘good cause’ as that term is
used in the provision, but numerous California appellate
decisions that have reviewed good-cause determinations under
this statute demonstrate that, in general, a number of factors
are relevant to a determination of good cause: (1) the nature
and strength of the justification for the delay, (2) the duration of
the delay, and (3) the prejudice to either the defendant or the
prosecution that is likely to result from the delay. [Citations.]
Past decisions further establish that in making its good-cause
determination, a trial court must consider all of the relevant
circumstances of the particular case, ‘applying principles of


                                  67
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


common sense to the totality of circumstances.’ ” (Sutton, supra,
48 Cal.4th at p. 546.)
      “Good cause within the meaning of section 1382 exists, for
example, when the delay beyond the statutory period is caused
by the conduct of the defendant or occurs for his or her benefit,
or there are unforeseen circumstances such as unexpected
illness, unanticipated unavailability of counsel, or the absence
of a witness despite due diligence to secure his or her
attendance.” (People v. Hajjaj (2010) 50 Cal.4th 1184, 1198;
People v. Lomax (2010) 49 Cal.4th 530, 554 [delay caused by
defendant constitutes good cause for delay of criminal trial].)
      “[A] trial court ‘has broad discretion to determine whether
good cause exists to grant a continuance of the trial.’ ” (Sutton,
supra, 48 Cal.4th at p. 546.) We review a trial court’s good-
cause determination for abuse of discretion. (Ibid.)
       The trial court acted within its discretion when it found
good cause supported the nearly 16-month delay of Hronis’s
trial. In limine proceedings concerning the admissibility of DNA
evidence caused much of the delay. This evidence was highly
probative of Hronis’s and Bertsch’s guilt, and as the trial court
discerned, it was “entirely appropriate” for the prosecution to
seek its admission.        Hronis’s motions objecting to the
admissibility of DNA evidence, while certainly permissible,
contributed to the delay. Moreover, the delay of trial due to
DNA evidence-related litigation cannot be said to have
prejudiced Hronis, as the proceedings ensured such evidence
met a level of general acceptance in the scientific community.
(See People v. Kelly (1976) 17 Cal.3d 24, 31–32 (Kelly).) Hronis
was also responsible for delay caused by the several
continuances he sought or agreed to between January 5, 1999,


                                  68
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


and November 2, 1999.         (See People v. Williams (2013)
58 Cal.4th 197, 240.) Finally, our analysis of Hronis’s claim does
not change even if we consider that Bertsch’s separate motions
may have caused brief delays in Hronis’s trial. We have
previously held that such delays generally do not undermine a
finding of good cause, especially considering the substantial
state interests that are served in proceeding with a joint trial.
(Smith, supra, 54 Cal.4th at p. 604; Sutton, supra, 48 Cal.4th at
p. 545; accord, § 1050.1.) In short, Hronis suffered no violation
of his speedy trial rights under section 1382.
        4. Hronis’s jury selection claims
           a. For-cause challenges not based on views of the
              death penalty
      Hronis contends the trial court abused its discretion when
it denied his challenge for cause to Juror No. 206630.
Additionally, he argues the trial court abused its discretion in
granting the prosecution’s for-cause challenges to Prospective
Jurors Kendra M. and Judith W. and denying his challenges for
cause as to Prospective Jurors Linda S. and Trieu C. We
conclude the trial court did not abuse its discretion in denying
Hronis’s for-cause challenge to Juror No. 206630. Further, as to
the four prospective jurors, we find that Hronis has not shown
he was prejudiced by the court’s grant or denial of those
challenges. The court’s rulings provide no basis for reversing
the judgment.
               i. Legal principles
      “Under both state and federal Constitutions, a criminal
defendant is guaranteed the right to be tried by an impartial
jury. (Cal. Const., art. I, § 16; U.S. Const., 6th & 14th Amends.)
To prevail on a claim that the court erroneously denied a


                                  69
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


challenge for cause, ‘defendant must demonstrate that the
court’s rulings affected his right to a fair and impartial jury.’ ”
(People v. Ramirez (2022) 13 Cal.5th 997, 1048 (Ramirez).) “ ‘A
party may challenge a prospective juror for actual bias, defined
as a state of mind that would prevent that person from acting
impartially and without prejudice to the substantial rights of
any party.’ ” (Id. at p. 1049.)
      The trial court has broad discretion to assess the
qualifications of jurors challenged for cause. (Uttecht v. Brown
(2007) 551 U.S. 1, 9.) “The trial court must determine whether
the prospective juror will be ‘unable to faithfully and impartially
apply the law in the case.’ [Citation.] A juror will often give
conflicting or confusing answers regarding his or her
impartiality or capacity to serve, and the trial court must weigh
the juror’s responses in deciding whether to remove the juror for
cause. The trial court’s resolution of these factual matters is
binding on the appellate court if supported by substantial
evidence.” (Weaver, supra, 26 Cal.4th at p. 910; see People v.
Clark (2011) 52 Cal.4th 856, 895 (Clark) [“The trial court is in
the best position to determine the potential juror’s true state of
mind because it has observed firsthand the prospective juror’s
demeanor and verbal responses”]; People v. Hillhouse (2002)
27 Cal.4th 469, 489 [“The trial court is present and able to
observe the juror itself” and “can judge the person’s sincerity
and actual state of mind far more reliably than an appellate
court reviewing only a cold transcript”].)
      “ ‘ “As a general rule, a party may not complain on appeal
of an allegedly erroneous denial of a challenge for cause because
the party need not tolerate having the prospective juror serve on
the jury; a litigant retains the power to remove the juror by
exercising a peremptory challenge. Thus, to preserve this claim

                                  70
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


for appeal we require, first, that a litigant actually exercise a
peremptory challenge and remove the prospective juror in
question. Next, the litigant must exhaust all of the peremptory
challenges allotted by statute and hold none in reserve. Finally,
counsel . . . must express to the trial court dissatisfaction with
the jury as presently constituted.” ’ ” (People v. Westerfield
(2019) 6 Cal.5th 632, 665.)
               ii. Analysis
                  aa. Juror No. 206630.
      Juror No. 206630 indicated in her questionnaire that she
was an attorney and had been hired recently by the state
Department of General Services. She was married to another
attorney and had two young children. She had previously
represented the Department of Corrections in a case while
working at a law firm. She wrote that she knew several people
who worked at the district attorney’s office but did not socialize
with them. She wrote that she had no prior knowledge of the
case and added that even if she did hear something from an
outside source in the future, she would base her decision solely
on the evidence presented. She expressed concern about having
to view photographs showing significant injuries to Canady but
affirmed that she would still be fair and consider all the
evidence.
       When asked whether there was any reason why she would
prefer not to serve as a juror in this case, Juror No. 206630
answered in the affirmative, explaining that she had just
started a new job and was on a one-year probationary period.
She added that she had a one-year-old baby, and it could distract
her if he was sick. She wrote that she was willing to serve as a
juror if these reasons were not sufficient to be excused.


                                  71
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


      Juror No. 206630 subsequently submitted a request to be
excused for undue hardship based on her new employment and
family obligations. She wrote that she had just started a new
job and that serving as a juror would seriously interfere with her
training and probationary period. She also explained that her
two young children were in daycare, but if they were sick and
her husband was unavailable due to work that she would have
sole responsibility to care for them. She added that she was
planning to have a baby in about 18 months and was concerned
that she could not take maternity leave at her new job if she was
selected as a juror and had to miss six months of work.
Following voir dire on this issue, the trial court denied the
hardship request. It acknowledged Juror No. 206630’s concerns
regarding potential adverse impact on her career if she were to
serve as a juror and then seek maternity leave soon after, but it
noted that her right to do so was legally protected.
      Juror No. 206630 also submitted an update to her jury
questionnaire, relaying that her son was in the same second
grade class and catechism class as the child of a deputy district
attorney. She wrote that she had never spoken with this deputy
district attorney and only made the connection after she saw
him at a church event over the weekend. In subsequent voir
dire, Juror No. 206630 assured the court she had no initial
leaning in favor of the prosecution in this case and that she could
be fair and impartial to Hronis. She also affirmed that she
would not feel awkward or embarrassed if she voted to find
Hronis not guilty and then saw the deputy district attorney in
the future.
      The defense challenged Juror No. 206630 for cause
“[b]ased on the relationship with [the deputy district attorney]
if for no other reason.” The court denied the challenge,

                                  72
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


explaining that there was no relationship between them. The
court also credited Juror No. 206630’s voir dire assurance that
she could keep any indirect relationship between the children
separate from this case. Juror No. 206630 was ultimately
seated as a juror on Hronis’s panel.
      We conclude that substantial evidence supports the trial
court’s denial of the challenge for cause. Although Juror
No. 206630 expressed concern regarding potentially negative
career impacts were she to serve as a juror, become pregnant,
and request maternity leave in short succession, nothing in the
record suggests the court’s denial of her hardship request
resulted in any bias against the defense. Nor did the fact that
she and her husband were attorneys indicate she could not be
fair and impartial. Her tangential acquaintance to a deputy
district attorney involved in the case did not undermine her
representations. Instead, her written and voir dire responses
consistently affirmed her ability to be fair and impartial and to
follow the court’s instructions in evaluating evidence and
making a decision. The record supports the trial court’s
conclusion that Juror No. 206630 could be a fair juror. Thus,
the court did not err by denying Hronis’s challenge for cause.
                 bb. Prospective Jurors Kendra M., Judith W.,
                    Linda S., and Trieu C.
      Hronis also claims the trial court abused its discretion in
granting the prosecution’s for-cause challenges to Prospective
Jurors Kendra M. and Judith W. and denying his challenges for
cause as to Prospective Jurors Linda S. and Trieu C. As to
Kendra M. and Judith W., even if we were to assume error, any
such error would be harmless because it did not adversely affect
the resulting trial. (See People v. Holt (1997) 15 Cal.4th 619,



                                  73
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


656 [“ ‘[T]he general rule [is] that an erroneous exclusion of a
juror for cause provides no basis for overturning a judgment’ ”].)
      Regarding Linda S. and Trieu C., Hronis’s argument
proves no more effective. Even if the trial court erred in denying
Hronis’s challenge for cause, he would still need to establish
prejudice. (People v. Boyette (2002) 29 Cal.4th 381, 419.)
Neither prospective juror sat on Hronis’s jury, so it was
unaffected. (Ibid.) Hronis attempts to demonstrate prejudice
by arguing he was forced to exhaust his peremptory challenges,
and he further argues the court denied his request for additional
peremptory challenges.13 But even if the court’s rulings forced
Hronis to exhaust his peremptory challenges, it is insufficient to
show prejudice. Hronis must still show that any error resulted
in a jury that was not impartial. “When a defendant uses
peremptory challenges to excuse prospective jurors who should
have been removed for cause, a defendant’s right to an impartial
jury is affected only when he exhausts his peremptory
challenges and an incompetent juror, meaning a juror who
should have been removed for cause, sits on the jury that decides
the case.” (People v. Black (2014) 58 Cal.4th 912, 920, italics
added (Black); see id. at p. 921 [“the fact that defendant
requested additional peremptory challenges that the court did
not grant him does not support his claim, because he has failed
to show that an incompetent juror sat on his case” (italics
omitted)].) Because Hronis has not shown that an incompetent
juror sat on his jury, he has not shown prejudice based on the
court’s denial of his for-cause challenges, even assuming the
court erred.



13
     Hronis exercised a peremptory challenge on Linda S.


                                  74
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


            b. Voir dire of prospective jurors on their death
               penalty views
      Hronis next asserts the trial court’s death-qualification
voir dire was unfairly one-sided in violation of the Eighth and
Fourteenth Amendments to the federal Constitution and
deprived him of his right to a fair and impartial jury. He
contends the court removed prospective jurors opposed to the
death penalty with little to no questioning while going to great
lengths to rehabilitate prospective jurors who were overly
enthusiastic in favor of the death penalty. We conclude the trial
court did not err.
               i. Legal principles
       “Trial courts possess broad discretion over both
‘[d]ecisions concerning the qualifications of prospective jurors to
serve’ [citation] and the manner of conducting voir dire.” (People
v. Whalen (2013) 56 Cal.4th 1, 29 (Whalen).) Although trial
courts must be evenhanded in their death-qualification
questions, which are designed to discern whether prospective
jurors’ attitudes both for and against the death penalty will
impair their ability to serve as jurors, they retain extensive
discretion regarding the number and nature of the questions
about the death penalty that are posed to each prospective juror.
(Id. at p. 30; see People v. Mills (2010) 48 Cal.4th 158, 190 [“[W]e
cannot predicate a finding of error merely on the number of
questions the court asks” death-leaning and life-leaning jurors].)
This court has counseled against requiring a trial court’s death-
qualification voir dire to be similar for each prospective juror,
“lest the court feel compelled to conduct a needlessly broad voir
dire, receiving answers to questions it does not need to ask.”
(People v. Thornton (2007) 41 Cal.4th 391, 425 (Thornton).) We
have likewise cautioned reviewing courts that, “ ‘ “ ‘[d]espite its


                                  75
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


importance, the adequacy of voir dire is not easily subject to
appellate review. The trial judge’s function at this point in the
trial is not unlike that of the jurors later on in the trial. Both
must reach conclusions as to impartiality and credibility by
relying on their own evaluations of demeanor evidence and of
responses to questions.’ ” ’ ” (Whalen, at p. 30, italics omitted.)
Accordingly, “the court’s manner of conducting voir dire will not
be disturbed on appeal unless it renders the trial fundamentally
unfair.” (Id. at p. 31.)
      Here, Hronis points to the court’s voir dire of 11
prospective jurors, five of whom expressed that they favored the
death penalty and six of whom expressed opposition to it, as
evidence that the court engaged in one-sided questioning that
resulted in a pro-death panel. A review of the questionnaire
responses and voir dire transcripts of these jurors supports the
conclusion that the court did not abuse its discretion or display
bias in questioning either death-leaning or life-leaning jurors.
               ii. Voir dire of death-leaning prospective jurors
      Hronis first highlights Prospective Juror Kenneth O. This
prospective juror was a retired sergeant of the California
Highway Patrol. He stated in his written questionnaire that he
was strongly in favor of the death penalty and viewed it as
necessary. He also indicated, however, that he could keep an
open mind about what the penalty should be and would listen to
all the evidence and the court’s instructions on the law before
reaching a decision. During voir dire, he affirmed several times
that it was possible he would have an initial leaning in favor of
the prosecution based on his decades of service on the California
Highway Patrol. He also said that, based on his experience, he




                                  76
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


would hold an officer’s testimony in higher esteem than a
civilian’s testimony.
      Hronis contends the court used a leading question when it
asked Kenneth O. if he could weigh aggravating and mitigating
factors to arrive at a verdict of life without the possibility of
parole, and he complains that after the prospective juror
responded in the affirmative, the court did not further explore
this issue. But the trial court granted the defense’s challenge
for cause based on the juror’s pro-prosecution bias and favorable
views on the death penalty. Accordingly, the court’s brief voir
dire of Kenneth O. before excusing him for cause does not
support Hronis’s claim that it went to great lengths to
rehabilitate death-leaning prospective jurors.
      Hronis also points to voir dire of Prospective Juror
Karrie W., who was not removed for cause. In her written
questionnaire, this prospective juror indicated she was strongly
in favor of the death penalty. But she also wrote that her
feelings on the death penalty were not so strong that she would
always vote for the death penalty. She likewise affirmed that
she would base a penalty determination on the evidence, and
she agreed that she would be able to listen to all the evidence
and the court’s instructions on the law and consider both death
and life without the possibility of parole before reaching a
decision on penalty.
      During voir dire, the trial court asked Karrie W. whether,
despite her personal feelings on the death penalty, she could see
herself in an “appropriate case” imposing life without the
possibility of parole. The prospective juror responded that she
could. The court also asked whether she could honestly consider
both penalty options before reaching a verdict based on the


                                  77
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


evidence of the case and the court’s instructions on the law. She
answered, “yes.”
      These questions were sufficient to allow the court to decide
whether Karrie W. could perform her duties in this capital case.
Hronis’s claim that she may have interpreted the court’s use of
the phrase “appropriate case” to mean one involving self-defense
or vehicular manslaughter is speculative and finds no support
in the record.
      Next, Hronis highlights the voir dire of Prospective Juror
Gary C., who provided somewhat ambiguous questionnaire
responses. These responses indicated he was strongly in favor
of the death penalty based on an “eye for an eye” principle. But
he also wrote that he was “all for” life imprisonment without the
possibility of parole. He responded in the affirmative when
asked whether he felt so strongly in favor of the death penalty
that he would vote to find any circumstance true, yet answered
“no” when asked whether he had such strong feelings in favor of
the death penalty that he would always vote for death, no
matter what the evidence presented. He also indicated he
believed he was open minded about what the penalty should be
in this case and would be able to listen to all the evidence and
the court’s instructions on the law and consider both penalties
before reaching a decision.
      During voir dire, the court asked Gary C. whether, given
his views in favor of the death penalty, he could consider life
without the possibility of parole as an option. He stated that he
could. The court rephrased the question, asking whether the
prospective juror’s feelings about the death penalty would
impair his ability “to give good faith, reasonable, honest
consideration to life without the possibility of parole as a


                                  78
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


sentencing option.” He responded that he understood the
question, and that his feelings about the death penalty would
not impair him. When the court asked whether he could see
himself, in an appropriate case, voting for life without the
possibility of parole, he said “yes.”
      The court’s probing of Gary C.’s death penalty views, given
his somewhat conflicting questionnaire responses, was entirely
appropriate. (Whalen, supra, 56 Cal.4th at p. 34 [“As we have
explained, ‘we ordinarily defer to the court’s determination that
a prospective juror’s answers require clarification’ ”].) Here
again, Hronis’s claim that the prospective juror may have
interpreted “appropriate case” unduly narrowly is without
record support.
      Hronis also points to the voir dire of Prospective Jurors
Linda E., Rosemary D., and Barbara B. as examples of the
court’s engaging in uneven questioning. He argues that the
court did not sufficiently question Linda E. and Rosemary D.
about their pro-death penalty views, while it posed too many
questions to Barbara B. about her opposition to it. But Linda E.
and Rosemary D. gave consistent written and oral responses
regarding their ability to put aside their personal feelings on the
death penalty and consider both penalties based on the evidence
and the court’s instructions before reaching a decision. Given
their unvarying answers regarding their ability to give fair and
honest consideration to both penalties based on the evidence and
instructions on the law, we see no error in the court’s
determination that additional questioning was unnecessary.
Moreover, Hronis’s counsel could have engaged in follow-up
questioning of Linda E. and Rosemary D., but they elected not
to do so.



                                  79
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


      In contrast, Barbara B. gave somewhat conflicting
responses regarding her ability to impose the death penalty.
Although she described her feelings on the death penalty as
neutral, she added “it would only be [appropriate] in the most
extreme and heinous situations.” During voir dire, the court
probed the prospective juror on the latter answer, asking
whether it was limited to offenses such as war crimes or
horrendous mass activity, or if she would be willing to consider
the death penalty in a less severe case. She answered, “I think
it would be problematic for me to impose death on another
human being. Um, it seems an extreme form of punishment to
me.” When the court asked the juror whether she could see
herself in an appropriate case imposing the death penalty, she
responded that although she could see where it was appropriate
in the abstract, she had difficulty envisioning herself actually
doing it. When the court inquired whether the prospective juror
could give good faith, reasonable consideration to both penalties
after hearing all the evidence and law in this case and then
select the proper sentence, she responded, “I think that would
be a decision that would — that would haunt me.” The court
asked her to clarify whether she could make a decision, even
though it bothered her, or whether she could not make it at all,
she stated, “I think the, the outstanding fear of having to live
with that would prohibit me from making that decision.”
      Given Barbara B.’s questionnaire responses and initial
voir dire answers, the court acted well within its discretion when
it probed her views regarding the death penalty through
additional questioning. A comparative review of the court’s
questioning of Linda E. and Rosemary D. does not indicate
judicial bias.



                                  80
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


              iii. Voir dire of life-leaning prospective jurors
      Hronis also points to the court’s questioning of several
other life-leaning prospective jurors as evidence that it engaged
in one-sided questioning. First, Hronis highlights the court’s
voir dire of Prospective Juror Selina B. He contends that
because she was a life-leaning juror, the court did not attempt
to rehabilitate her in the same manner that it dealt with death-
leaning jurors.
      Selina B.’s questionnaire responses raised serious doubts
about her ability to impose death at all. She wrote, for example,
that, “Killing one person will not bring back the life of another.
Therefore [i]t will be difficult for me to end a life.” She also
explained that for her to consider voting for the death penalty,
“[t]he evidence would have to be so overwhelming and evil.”
      Nonetheless, during questioning, the court sought to
understand whether Selina B. would truly be unable to impose
the death penalty. The court asked, “Is it so difficult to you to
do that that you would be unable, for example, to weigh the
factors in aggravation and mitigation and impose the death
penalty if, in fact, you thought that were the proper penalty?”
She responded, “Your honor, I have not been in a situation like
that, so it is hard for me to say what I would do at that time.”
The court stated: “I understand that, and I am asking you in
the context here really of an abstract question. When you look
in your heart and mind, do you see that it is a reasonable
possibility that if the aggravators substantially outweighed the
mitigators in this case and we get to a penalty phase that you
could go for the death penalty in that situation?” The juror
answered, “I don’t think I could.” The court later granted the
People’s challenge for cause, noting it found the juror’s oral



                                  81
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


statement that she could not impose the death penalty to be
credible, and her manner was sincere and reflective.
       The court acted within its discretion when it asked the
clarifying questions it did. (Whalen, supra, 56 Cal.4th at p. 33
[trial court did not abuse its discretion when it asked questions
testing prospective juror’s questionnaire responses that were
inconsistent or indicated confusion, to clarify her beliefs and to
assess how firmly she held these beliefs before deciding whether
she could perform juror duties]; People v. Martinez (2009)
47 Cal.4th 399, 446.) In light of Selina B.’s questionnaire
responses, the trial court’s follow-up questions were sufficient to
ascertain whether her views regarding the death penalty would
substantially impair her performance as a juror. (Thornton,
supra, 41 Cal.4th at p. 425.)
       Hronis also points to Prospective Juror Jennifer C.’s voir
dire, contending the court engaged in leading questioning by
asking the juror whether her conscience would allow her to elect
a penalty rather than inquiring if she could weigh aggravating
and mitigating circumstances. But Jennifer C.’s questionnaire
responses strongly suggested she would be unable to vote for
death. She answered in the affirmative when asked whether
she had any moral or religious beliefs that might conflict with
her duties as a juror. She explained that as a Jehovah’s Witness,
biblical standards governed her thinking and beliefs. When
asked for her general feelings on the death penalty, she wrote,
“I feel that I would not want to bear that responsibility to choose
death for an individual. I believe that if that person were to be
put to death, and then later found innocent, I would biblically
be responsible for his or her life.” Although she characterized
her position on the death penalty as neutral, she added, “I would
not want to bear the responsibility for the individual’s life if I

                                  82
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


should choose incorrectly.” She later wrote that she would not
want the case to get to the penalty phase for fear she would have
to choose, and she indicated she was unsure if she could be open
minded about what the penalty should be before trial began.
She responded in the negative when asked whether she would
be able to listen to the evidence and legal instructions and
consider both penalties before reaching a decision, explaining
that her conscience would not allow her to choose either way. In
the concluding questions section, Jennifer C. wrote that she
would prefer not to serve as a juror because she did not want to
stand in judgment for the life of another and she “would not
want to vote either way.”
       During voir dire, Jennifer C. confirmed that her
conscience would not allow her to choose a penalty. When the
court asked whether she would abstain from voting if the case
went to the penalty phase, she confirmed she would. The court
later granted the People’s challenge for cause. The court’s
succinct questioning regarding the juror’s ability to consider
both penalties was appropriate in light of the prospective juror’s
consistent written and oral statements affirming she could not
do so.
      Similarly, the court’s relatively brief questioning of
Prospective Juror JoAnn Z. was warranted given the juror’s
forceful oral responses indicating she would be unable to vote to
impose the death penalty. In her questionnaire, this prospective
juror conveyed a general degree of discomfort with the death
penalty. She wrote that her feelings about the death penalty
were “[v]ery difficult,” her feelings about life imprisonment
without the possibility of parole were “[g]ood in capital cases,”
and she was opposed to the death penalty. She added that it
would be a “very, very difficult thing to sentence someone to

                                  83
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


death.” She wrote that her religion’s official position on the
death penalty was “not favorable.” However, she also indicated
her views were not so strong they would prevent her from
finding any special circumstance true or require her to always
vote against the death penalty.
      During voir dire, the court asked JoAnn Z. about her
employment status. She responded, “Your Honor, I am firmly
opposed to the death penalty.” This non sequitur demonstrates
the depth of the prospective juror’s feeling. When the court
asked whether there was any circumstance under which she
could see herself voting for the death penalty, she stated,
“Absolutely not.” She acknowledged her written response was
inconsistent but averred that she would like to “burn” her
questionnaire. She said this change of heart was based on her
opportunity to reflect on her questionnaire responses for two
weeks. The court granted the People’s subsequent challenge for
cause. It observed that JoAnn Z.’s “demeanor and sincerity and
even volume in indicating that she wanted to destroy the
questionnaire because of her firm opposition to the imposition of
the death penalty was compelling.” The trial court’s brief
questioning of the prospective juror was sufficient in light of her
forceful and clear responses.
       Hronis offers Prospective Juror Patrick M. as “another
illustration of how quick the court was to conclude a person
against the death penalty was unsuitable.” But the court’s
relatively brief questioning of this prospective juror also was
appropriate. Patrick M. wrote in his questionnaire that as a
Catholic, he did not feel he could vote for the death penalty. He
affirmed that his religion had an official position against the
death penalty, and he felt obligated to accept that position in
this case, adding he did not believe he had the right to take

                                  84
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


anyone’s life. He confirmed that he probably felt so strongly
against the death penalty that he would refuse to find any
special circumstance true, no matter what the evidence showed,
in order to end the case before it got to the penalty phase. He
further indicated that he was “unsure” whether he would refuse
to find the defendant guilty of first degree murder in the guilt
phase for the same reason. When asked whether his feelings
against the death penalty were so strong that he would always
vote against death, no matter what evidence was presented, he
responded in the affirmative, adding he “can’t take another
person’s life.” He likewise wrote that he was not open minded
about what the penalty should be and he could not consider the
death penalty as an option. Responding to a written question
regarding whether he could serve as a juror in this case, he
wrote, “[I] stated many times — I can’t vote for the death
penalty.”
      During voir dire, Patrick M. confirmed his inability to vote
for death. He said that as a Catholic he felt obligated to accept
the church’s position against the death penalty. When the court
asked whether he could see himself, in an appropriate case,
voting for the death penalty, he responded, “No.” The court later
excused Patrick M. for cause based on his repeated declarations
that he could not impose the death penalty. His oral and written
statements regarding his ability to consider the death penalty
were resolute and unequivocal. Under these circumstances, the
court was not required to question him further. (See Whalen,
supra, 56 Cal.4th at pp. 38–39; Mills, supra, 48 Cal.4th at
p. 190.)
     Finally, Hronis points to the court’s voir dire of
Prospective Juror Clarence T. as indicative of its refusal to
accept the assurances of life-leaning prospective jurors that they

                                  85
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


could keep an open mind and give honest and fair consideration
to both penalties. But Clarence T.’s questionnaire responses
conveyed not only that he was strongly opposed to the death
penalty, but also that he harbored serious reservations about his
ability to vote for death. He wrote that he did not want to
participate in another human’s death and explained that society
does not have the right to take someone’s life. He noted that his
religion was officially opposed to the death penalty, although he
added that his religion did not dictate his position. Somewhat
inconsistently, he affirmed that he would follow the law and the
court’s instructions relating to special circumstances, but he
emphasized that he did not want to take another person’s life.
He also affirmed that he was open minded about what the
penalty should be. He wrote that he would listen to all the
evidence and the court’s instructions of the law and consider
both penalties.
      During voir dire, the court probed Clarence T. on his
written responses, observing he had indicated he was strongly
opposed to the death penalty but that he would be able to
consider both death and life without the possibility of parole as
penalty options. The prospective juror confirmed those were his
beliefs. When the court pointed to his written statement that
society does not have the right to take someone’s life because
society then becomes the murderer, he continued to agree with
this sentiment. The court asked, “Is your belief so strong in this
regard that it would substantially impair your ability to
evaluate the death penalty as a sentencing option?” The juror
responded that it would. The court continued: “Let me ask the
question one additional way to make sure I understand you.
Can you see yourself, in an appropriate case, imposing the death
penalty?” The juror answered that he could not. The court


                                  86
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


granted the prosecution’s challenge for cause. It found that
Juror Clarence T.’s “answers were clear, specific, and credible to
the [c]ourt with regard to [his] inability to impose the death
penalty.”
      Given Clarence T.’s somewhat inconsistent written
responses, the trial court properly probed this prospective juror
regarding his ability to vote for death.          Upon further
questioning, the juror unequivocally confirmed that he would be
unable to consider the death penalty. No abuse of discretion or
unfairness appears on this record.
      In sum, the questionnaire responses and voir dire
transcripts of the prospective jurors identified by Hronis reflect
that “the court questioned each prospective juror in a manner
consistent with its assessment of that person’s ‘individual
characteristics [citation] and asked questions . . . it felt
necessary to come to a decision about the ability of the
prospective juror to serve on the jury.” (Whalen, supra,
56 Cal.4th at p. 35.) With this in mind, we conclude the court
acted well within its discretion and exhibited no judicial bias in
questioning the prospective death-leaning and life-leaning
prospective jurors identified by Hronis. The court’s manner of
conducting voir dire came nowhere near rendering the trial
fundamentally unfair.
            c. Challenges for cause based on death penalty
               views
      In addition to his threshold procedural claim, Hronis
separately argues that the trial court erred in its specific rulings
on several challenges for cause based on prospective jurors’
death penalty views. He asserts this error violated his
constitutional right to an impartial jury.


                                  87
                  PEOPLE v. BERTSCH and HRONIS
                 Opinion of the Court by Guerrero, C. J.


               i. Legal principles
      “With regard to jury selection in a capital case, decisions
by this court and the United States Supreme Court have made
clear that prospective jurors’ personal opposition to the death
penalty is not a sufficient basis on which to remove them from
jury service in a capital case, ‘ “so long as they clearly state that
they are willing to temporarily set aside their own beliefs in
deference to the rule of law.” ’ ” (People v. Schultz (2020)
10 Cal.5th 623, 646 (Schultz); see People v. Jones (2012)
54 Cal.4th 1, 40–41.)
       “Still, excusal for cause is permissible when the
prospective juror’s beliefs regarding the death penalty ‘would
“prevent or substantially impair the performance of his [or her]
duties as a juror in accordance with [the court’s] instructions
and [the juror’s] oath.” ’ [Citations.] ‘While a prospective juror
may not be excused for cause based on “general objections” or
“conscientious or religious scruples” against the death penalty
[citation], excusal is proper when a prospective juror cannot
“consider and decide the facts impartially and conscientiously
apply the law as charged by the court” [citation].’ ” (People v.
Scully (2021) 11 Cal.5th 542, 579 (Scully); accord, Wainwright
v. Witt (1985) 469 U.S. 412, 423 (Witt) [“Here, as elsewhere, the
quest is for jurors who will conscientiously apply the law and
find the facts”].)
      “When a challenge is based on the prospective juror’s
views on the death penalty, the trial court must determine
whether those views would prevent or substantially impair the
performance of that person’s duties. [Citation.] The standard
of review of the court’s ruling regarding the prospective juror’s
views on the death penalty is essentially the same as the



                                   88
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


standard regarding other claims of bias. If the prospective
juror’s statements are conflicting or equivocal, the court’s
determination of the actual state of mind is binding. If the
statements are consistent, the court’s ruling will be upheld if
supported by substantial evidence.” (People v. Horning (2004)
34 Cal.4th 871, 896–897.) The party seeking removal for cause
based on a juror’s death penalty views bears the burden of
developing evidence for dismissal. (Witt, supra, 469 U.S. at
p. 423 [“As with any other trial situation where an adversary
wishes to exclude a juror because of bias, . . . it is the adversary
seeking exclusion who must demonstrate, through questioning,
that the potential juror lacks impartiality”]; People v. Armstrong
(2019) 6 Cal.5th 735, 750.)
               ii. Analysis
                  aa. Denial of defense challenges based on
                     death penalty views
      Hronis contends the trial court erroneously denied defense
challenges for cause to seven prospective jurors — Linda E.,
Gary C., B. Kristine C., Alfred C., Jennifer L., Alicia R., and
Marie W. — based on their death penalty views. He has not
shown reversible error.
      To prevail on a claim based on the erroneous denial of a
challenge for cause, the “ ‘defendant must demonstrate that the
court’s rulings affected his right to a fair and impartial jury.’ ”
(Whalen, supra, 56 Cal.4th at p. 44.) Hronis cannot prevail
because none of the prospective jurors he unsuccessfully
challenged for cause sat on his jury. Marie W. was never
selected as a potential juror, and the prosecutor exercised a
peremptory challenge against Alfred C.             Hronis used
peremptory challenges to remove Linda E., Gary C.,



                                  89
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


B. Kristine C., Jennifer L., and Alicia R., so they did not sit on
his jury either.
      The loss of a peremptory challenge in this way may be
grounds for reversal “ ‘ “if the defendant exhausts all
peremptory challenges and an incompetent juror is forced upon
him.” ’ ” (Whalen, supra, 56 Cal.4th at p. 44.) Hronis has not
made this showing.
      He points to Juror No. 206630, whose son was in the same
elementary school class as a deputy district attorney involved in
the case, but we have already determined that this juror was not
biased against Hronis. Hronis also identifies Juror No. 241721,
but he makes no argument on appeal that the trial court erred
by denying Hronis’s challenge to that juror. Hronis has
therefore failed to establish he was prejudiced by the loss of one
or more peremptory challenges. (Whalen, supra, 56 Cal.4th at
p. 45.)14
                  bb. Grant of prosecution challenges based on
                     death penalty views
      Hronis also argues the court erroneously granted the
prosecution’s challenges for cause of five prospective jurors
based on their death penalty views. We conclude substantial
evidence supports the trial court’s conclusion that these
prospective jurors’ views regarding the death penalty would
have prevented or substantially impaired them from performing
their duties as jurors.


14
      We do not need to address whether multiple errors by a
trial court that “substantially disadvantaged the defendant
relative to the prosecution” might also be sufficient to show
prejudice. (See Black, supra, 58 Cal.4th at p. 923 (conc. opn. of
Liu, J.).)


                                  90
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


      Hronis complains the trial court improperly dismissed
Prospective Jurors Selina B., Jennifer C., JoAnn Z., Barbara B.,
and Clarence T. All the jurors highlighted by Hronis were also
identified in his claim of judicial bias above. As previously
described, each of these jurors expressed doubt in their
questionnaire answers regarding their ability to impose death,
and their oral responses to the court confirmed they were unable
to do so. “When a prospective juror repeatedly says he does not
know whether he could realistically impose the death penalty,
we will not second-guess the trial court’s determination that the
juror is substantially impaired.” (People v. Turner (2020)
10 Cal.5th 786, 815; see People v. Wall (2017) 3 Cal.5th 1048,
1063 [prospective juror’s statements that she did not know
whether she had the ability to impose the death penalty “provide
substantial evidence that she ‘harbored very serious doubts
concerning whether, if seated on a capital jury, she could ever
personally vote to impose the death penalty’ ”].) Here too, we
find no error in the court’s excusal of the five prospective jurors
for cause based on their death penalty views.
      Hronis asserts the court failed to obtain sufficient
information regarding the prospective jurors’ state of mind to
permit a reliable determination regarding whether their views
would prevent or substantially impair their performance as a
capital juror. (See People v. Leon (2015) 61 Cal.4th 569 (Leon).)
We held in Leon that the trial court erred when it dismissed
three prospective jurors based on their opposition to the death
penalty because it did not inquire about the jurors’ ability to set
aside their biases and follow the law, despite clear statements
in the questionnaires expressing the jurors’ willingness to do so.
(Id. at p. 593.) We recognized that although “[p]rospective
jurors may be dismissed based on written questionnaire


                                  91
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


responses alone if the responses leave no doubt that their views
on capital punishment would prevent or substantially impair
the performance of their duties in accordance with the court’s
instructions and the jurors’ oath,” “if a juror’s questionnaire
responses are inconsistent and do not clearly reveal an inability
to serve, the court may not grant a cause challenge without
further questioning to clarify the juror’s views.” (Id. at p. 592.)
Because the dismissed jurors in Leon “expressed opposition to
the death penalty in their questionnaires, but all definitively
stated they could set aside their personal feelings and follow the
law as the court explained it,” their written responses indicated
the jurors appeared qualified to serve. (Ibid.) We concluded the
dismissed jurors thus “could not be excused for cause unless
further questioning established that they were in fact unable or
unwilling to set aside their personal views and follow the law in
determining penalty.” (Ibid.)
      Leon does little to advance Hronis’s claim. Here, unlike in
Leon, the trial court questioned each of the five prospective
jurors regarding their ability to set aside their personal views
and follow the law in determining a penalty. The prospective
jurors confirmed their views on capital punishment would
prevent or substantially impair the performance of their duties
in accordance with the court’s instructions and the jurors’ oath.
Substantial evidence supports the court’s excusal of these jurors
for cause.
         5. Claims related to DNA evidence
      Bertsch and Hronis raise various claims related to the
admission of DNA evidence at trial. They contend (1) the trial
court improperly permitted several expert witnesses to relay
case-specific, testimonial hearsay during pretrial hearings and



                                  92
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


at trial; (2) the court should have exercised its gatekeeping
function to exclude certain DNA evidence at trial; (3) the court
improperly quashed their subpoena of materials related to
experimental validation of specific DNA testing equipment;
(4) the court prejudicially erred by restricting Bertsch’s advisory
counsel’s participation in court when Bertsch was representing
himself; (5) the court improperly allowed the prosecutor to elicit
evidence regarding Hronis’s DNA experts’ pretrial actions;
(6) the court abused its discretion when it limited cross-
examination of a prosecution DNA expert; and (7) the court
improperly admitted out-of-court statements critical of a
defense expert’s work and compensation. Bertsch also contends
he suffered cumulative prejudice because of the DNA-related
evidentiary errors. We address these arguments in turn.
            a. Asserted errors under Crawford and Sanchez
       Before trial commenced in this case, the trial court
conducted numerous pretrial hearings relating to the
admissibility of certain scientific evidence pursuant to what has
become known as the Kelly rule.15 Described in greater detail
below, the Kelly rule “provides a framework within which courts
can analyze the reliability of expert testimony based on new or
novel scientific methods or techniques.” (People v. Lucas (2014)
60 Cal.4th 153, 223 (Lucas).) “Expert testimony based on the
application of a scientific technique is admissible in California
if the technique is generally accepted in the pertinent scientific

15
       Although “[f]ormerly known as the Kelly-Frye rule, based
on the rulings of [Kelly, supra, 17 Cal.3d 24] and Frye v. U.S.
(D.C. Cir. 1923) 293 F. 1013, the rule is now the Kelly rule in
California after changes to the Federal Rules of Evidence that
superseded Frye.” (People v. Nieves (2021) 11 Cal.5th 404, 442,
fn. 8.)


                                  93
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


community.” (People v. Azcona (2020) 58 Cal.App.5th 504, 510.)
At a pretrial Kelly hearing, the proponent of evidence derived
from a new scientific methodology must show (1) the reliability
of the new technique has gained general acceptance in the
relevant scientific community, (2) the expert testifying about
the technique is qualified to give an opinion on the subject, and
(3) the correct scientific procedures were used in the particular
case at hand. (Jones, supra, 57 Cal.4th at p. 936.)
      Bertsch and Hronis first contend the trial court reversibly
erred when it allowed various DNA experts to testify about
matters not within their personal knowledge in violation of
Crawford v. Washington (2004) 541 U.S. 36 (Crawford) and
People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). Specifically,
they claim the trial court erroneously admitted the testimony of
Steven Myers, Lawrence Presley, and Robin Cotton during
pretrial hearings and at trial.
              i. Legal principles
     This case was tried before the United States Supreme
Court’s decision in Crawford and this court’s decision in
Sanchez, which altered the paradigm for analyzing the
admissibility of expert testimony.
      Prior to Crawford, the admission at trial of a witness’s or
declarant’s hearsay statements did not violate the confrontation
clause of the Sixth Amendment if the witness or declarant was
unavailable and the statements had adequate “ ‘indicia of
reliability,’ ” meaning they fell within a “firmly rooted hearsay
exception”       or  bore    “particularized     guarantees    of
trustworthiness.” (Ohio v. Roberts (1980) 448 U.S. 56, 66,
overruled by Crawford, supra, 541 U.S. 36.) In Crawford, the
high court “announced a new standard for determining when the


                                  94
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


confrontation clause of the Sixth Amendment prohibits the use
of hearsay evidence.” (People v. Cage (2007) 40 Cal.4th 965, 969
(Cage).) Crawford held that the confrontation clause prohibits
the admission of hearsay that is testimonial “if the declarant
neither takes the stand at trial nor was otherwise available for
cross-examination by the accused.” (Cage, at p. 969.) Hearsay
that is nontestimonial does not implicate the confrontation
clause and is unaffected by Crawford. (Davis v. Washington
(2006) 547 U.S. 813 (Davis).)
      “Statements are nontestimonial,” the Davis court
explained, “when made in the course of police interrogation
under circumstances objectively indicating that the primary
purpose of the interrogation is to enable police assistance to
meet an ongoing emergency. They are testimonial when the
circumstances objectively indicate that there is no such ongoing
emergency, and that the primary purpose of the interrogation is
to establish or prove past events potentially relevant to later
criminal prosecution.” (Davis, supra, 547 U.S. at p. 822.) Stated
differently, testimonial statements are “statements, made with
some formality, which, viewed objectively, are for the primary
purpose of establishing or proving facts for possible use in a
criminal trial.” (Cage, supra, 40 Cal.4th at p. 984, fn. 14.)
     Following Crawford, we reexamined the permissible scope
of expert testimony in Sanchez. We observed that the line
between expert testimony as to general background information
and case-specific hearsay had become blurred, and the latter
was often presented to juries under the theory that such hearsay
was not offered for its truth but only to explain the basis for the
expert’s opinions. (Sanchez, supra, 63 Cal.4th at p. 678.)
Reexamining this logic in Sanchez, we determined it was not
persuasive. (Ibid.) We clarified that “[w]hen an expert relies on

                                  95
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


hearsay to provide case-specific facts, considers the statements
as true, and relates them to the jury as a reliable basis for the
expert’s opinion, it cannot logically be asserted that the hearsay
content is not offered for its truth.” (Id. at p. 682.) Instead, “If
an expert testifies to case-specific out-of-court statements to
explain the bases for his opinion, those statements are
necessarily considered by the jury for their truth, thus rendering
them hearsay. Like any other hearsay evidence, it must be
properly admitted through an applicable hearsay exception.
Alternatively, the evidence can be admitted through an
appropriate witness and the expert may assume its truth in a
properly worded hypothetical question in the traditional
manner.” (Id. at p. 684, fn. omitted.)
      “Nonetheless, an ‘expert may still rely on hearsay in
forming an opinion, and may tell the jury in general terms that
he did so. Because the jury must independently evaluate the
probative value of an expert’s testimony, Evidence Code
section 802 properly allows an expert to relate generally the
kind and source of the “matter” upon which his opinion
rests. . . . There is a distinction to be made between allowing an
expert to describe the type or source of the matter relied upon
as opposed to presenting, as fact, case-specific hearsay that does
not otherwise fall under a statutory exception.’ ” (People v.
Curiel (2023) 15 Cal.5th 433, 457, quoting Sanchez, supra,
63 Cal.4th at pp. 685–686.) “Thus, although Sanchez narrowed
the scope of permissible expert testimony, it did not impact the
ability of an expert to rely on hearsay evidence to reach his or
her opinions, relate those opinions to the jury, and explain in
general terms their bases. Nor did Sanchez foreclose the
introduction of case-specific evidence through other means.”
(Curiel, at p. 457.)


                                  96
                  PEOPLE v. BERTSCH and HRONIS
                 Opinion of the Court by Guerrero, C. J.


       In sum, adhering to Crawford and Sanchez, we analyze
the admissibility of expert testimony using a two-step analysis.
(Sanchez, supra, 63 Cal.4th at p. 680.) First, a court must
ascertain whether the testimony relays an out-of-court
statement and the statement is being offered to prove the truth
of the facts asserted. (Ibid.) If an expert relays case-specific out-
of-court statements to explain the bases for the expert’s opinion,
those statements are hearsay and require an applicable hearsay
exception to be admissible. (Id. at p. 684.) Second, if the
hearsay statement is being offered by the prosecution in a
criminal case, the court must decide whether the statement
contains testimonial hearsay. (Id. at p. 680.) If the statement
contains testimonial hearsay, it is inadmissible under Crawford
unless (1) the out-of-court declarant is unavailable to testify and
(2) the defendant had a previous opportunity to cross-examine
the declarant or forfeited the right to do so. (Ibid.)
               ii. Testimony of Steven Myers
                  aa. Pretrial testimony
       At one Kelly hearing, the prosecution called Myers to
testify as an expert about STR testing. Myers testified that he
tested the extracted DNA from Bertsch’s and Hronis’s reference
samples as well as from Canady’s vaginal swabs, anal swabs,
and underwear. Myers personally performed the quantification
work for the DNA samples, undertook PCR prep work on the
samples, reviewed the raw data produced by the ABI Prism 310
Genetic Analyzer (310 machine), and ultimately prepared a
report on his work.
      Myers testified that he performed two separate testing
runs on the 310 machine in the Bertsch and Hronis case because
he noticed a problem with elevated baselines on the


                                   97
                PEOPLE v. BERTSCH and HRONIS
               Opinion of the Court by Guerrero, C. J.


electropherograms generated after the first run. Myers related
that in his first test run of electrophoresis, he had used a
software module that was listed in the protocol by the
manufacturer, but which was not meant for the size syringe that
he was using. Myers explained that although a one-millimeter
or a two-and-a-half-millimeter syringe would work with the
machine, they utilized separate modules. Myers had initially
used the two-and-a-half-millimeter syringe with the one-
millimeter module. After he understood the difference, he
remedied the issue by using the one-millimeter syringe for the
second diagnostic run.
      On cross-examination, defense counsel followed up
regarding this troubleshooting work. Myers testified, “On the
very first training when someone was showing me how to set the
instrument up, I did not notice that he had used a module that
was different than the one specified in the protocol. [¶] And so
when I went and just simply followed the steps in the protocol,
I used what turned out to be an incorrect module for that
syringe. And then when we tried to figure out what was going
wrong with my runs, it was determined, oh, okay, used the
wrong module. Once we cleared that up, the runs went much
better, of course.” Myers clarified that his use of “we” when
discussing troubleshooting referred to himself and Martin
Buoncristiani, another criminalist who served as a second
reader or reviewer in the case. He explained that he and
Buoncristiani wrote notes regarding their troubleshooting work,
but he did not know the specifics of the troubleshooting runs
that Buoncristiani had performed. Myers added that he knew
Buoncristiani had concluded the syringe size was the source of
the problem because the second testing run was successfully
performed with the smaller syringe.


                                 98
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


       Following Myers’s testimony, the defense attempted to
subpoena Buoncristiani.          The trial court granted the
prosecution’s motion to quash the subpoena, finding that
additional testimony regarding the troubleshooting runs would
be irrelevant and cumulative. Specifically, the court found the
troubleshooting runs “were not part of the test in this case in the
normal sense of the words but, rather, were part of a repairing
or fix-it process directed at the machine and not runs designed,
for example, to produce something of evidentiary value.” It
believed the problem relating to the baseline was apparent in
the test results, analogizing it to a television showing a
scrambled picture as obviously not functioning properly. The
court added, “With regard to the data results that the People
intend to introduce, the baseline is not elevated. There was not
a problem with the baseline. [¶] As a result, the relevancy of
the trouble-shooting diminishes to the point of being — as to the
baseline issue diminishes to the point of being not relevant and,
in the alternative, certainly cumulative.”
      Bertsch and Hronis claim Myers improperly relayed case-
specific hearsay regarding troubleshooting work that
Buoncristiani performed on the 310 machine while Myers was
not present. We find no confrontation clause violation, and any
Sanchez error was harmless.
      We have not addressed whether the confrontation clause
applies at a pretrial evidentiary hearing. However, decisions
from the high court indicate that testimony admitted in a
pretrial Kelly proceeding would not violate the confrontation
clause. (Pennsylvania v. Ritchie (1987) 480 U.S. 39, 52 (plur.
opn. of Powell, J.) [“The opinions of this Court show that the
right to confrontation is a trial right, designed to prevent
improper restrictions on the types of questions that defense

                                  99
                  PEOPLE v. BERTSCH and HRONIS
                 Opinion of the Court by Guerrero, C. J.


counsel may ask during cross-examination”]; Kentucky v.
Stincer (1987) 482 U.S. 730, 740 [no confrontation clause
violation even though defendant was excluded from pretrial
hearing on witness competence when defendant subsequently
had the opportunity to cross-examine at trial]; Gannett Co., Inc.
v. DePasquale (1979) 443 U.S. 368, 394 (conc. opn. of Burger, C.
J.) [confrontation clause does not apply to pretrial hearing on a
motion to suppress evidence]; California v. Green (1970)
399 U.S. 149, 157 [“[I]t is this literal right to ‘confront’ the
witness at the time of trial that forms the core of the values
furthered by the Confrontation Clause”]; Barber v. Page (1968)
390 U.S. 719, 725 [“The right to confrontation is basically a trial
right”].)
       Our precedent also suggests that Kelly pretrial
evidentiary hearings allow for the admission of testimonial
hearsay without implicating the confrontation cause. In People
v. Gonzales (2012) 54 Cal.4th 1234, 1267, we found no violation
of the defendant’s federal confrontation rights when he was not
permitted to confront a witness at a preliminary hearing. “We
have made it clear,” we stated, “that the right to confrontation
is a trial right that does not apply with full force at a preliminary
hearing.” (Ibid.) In People v. Miranda (2000) 23 Cal.4th 340,
351, we held that testimony by a qualified law enforcement
officer relating single-level hearsay at a preliminary
examination was “admissible as against hearsay, confrontation
clause, and due process objections.” In Whitman v. Superior
Court (1991) 54 Cal.3d 1063, 1078, we found it “doubtful that
the federal confrontation clause operates to bar hearsay
evidence offered at a preliminary hearing held to determine
whether probable cause exists to hold the defendant for trial.”
We observed that the high court has never held that the Sixth


                                  100
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


or Fourteenth Amendment guarantees a right of confrontation
and cross-examination at preliminary hearings. (Whitman, at
p. 1078.) We have also concluded that a defendant does not have
a Sixth Amendment right of confrontation at a sentencing
hearing. (People v. Arbuckle (1978) 22 Cal.3d 749, 754.)
      Meanwhile, several courts in other states have held that
certain pretrial hearings do not implicate the confrontation
clause. (See, e.g., State v. Zamzow (2017) 374 Wis.2d 220, 234;
Oakes v. Commonwealth (Ky. 2010) 320 S.W.3d 50, 55; State v.
Daly (Neb. 2009) 775 N.W.2d 47, 66; Sheriff v. Witzenburg (Nev.
2006) 145 P.3d 1002, 1004–1005; State v. Woinarowics (N.D.
2006) 720 N.W.2d 635, 641; People v. Brink (N.Y. App. 2006)
31 A.D.3d 1139, 1140; People v. Felder (Colo. App. 2005)
129 P.3d 1072, 1073–1074; Vanmeter v. State (Tex. App. 2005)
165 S.W.3d 68, 71–75.)
      Consistent with the high court’s indications, our prior
decisions, and the decisions of our sister states, we hold that the
confrontation clause does not apply to Kelly pretrial hearings. A
Kelly hearing is very different from a criminal trial. At a Kelly
hearing, the trial judge decides whether evidence derived from
a new scientific technique may be put before a jury. (People v.
Pizarro (2003) 110 Cal.App.4th 530, 555.) Consistent with this
limited function, the focus of a Kelly hearing is narrower, and
fundamentally different from, the ultimate question of a
defendant’s guilt or innocence. (See People v. Venegas (1998)
18 Cal.4th 47, 81 (Venegas) [explaining that to satisfy this
prong, “the testifying expert [must] understand the technique
and its underlying theory, and be thoroughly familiar with the
procedures that were in fact used in the case at bar to implement
the technique”; the hearing is not concerned with “all
derelictions in following the prescribed scientific procedures”

                                 101
                  PEOPLE v. BERTSCH and HRONIS
                 Opinion of the Court by Guerrero, C. J.


such as “mislabeling, mixing the wrong ingredients, or failing to
follow routine precautions against contamination”]; People v.
Cooper (1991) 53 Cal.3d 771, 814 (Cooper) [“ ‘[T]he Kelly/Frye
rule tests the fundamental validity of a new scientific
methodology, not the degree of professionalism with which it is
applied,’ ” such that “ ‘[c]areless testing affects the weight of the
evidence and not its admissibility’ ”].) And if the People prevail
at a Kelly hearing, they must still present evidence at trial
concerning the technique and its application in the case, at
which time a defendant’s federal confrontation clause rights will
attach. These considerations all weigh against extending the
confrontation clause’s protections to Kelly hearings.16
      Sanchez, too, has not previously been applied to testimony
at a pretrial Kelly hearing. But even assuming that Sanchez
applies, and that Myers testified to case-specific hearsay
statements regarding Buoncristiani’s troubleshooting, we
conclude that any assumed error was harmless.
        Absent a confrontation clause violation, we evaluate
prejudice stemming from the allowance of expert testimony in
violation of Sanchez under the standard set forth in People v.
Watson (1956) 46 Cal.2d 818 (Watson), which requires reversal
if “it is reasonably probable that a result more favorable to the
appealing party would have been reached in the absence of the
error.” (Id. at p. 836; see also Sanchez, supra, 63 Cal.4th at
p. 698 [improper admission of nontestimonial hearsay



16
      Although we reject the application of the confrontation
clause to Kelly hearings, we express no opinion as to whether
the confrontation clause may extend to other types of pretrial
hearings.


                                  102
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


constitutes state law statutory error assessed under Watson];
People v. Valencia (2021) 11 Cal.5th 818, 840 (Valencia) [same].)
      As a preliminary matter, the trial court made a factual
finding that the troubleshooting runs conducted by
Buoncristiani were not intended to produce evidence in this
matter but were case-neutral actions taken to diagnose and
remedy a problem with the testing machine. Consistent with
that holding, we discern no reasonable probability that the
exclusion    of    Myers’s    pretrial      testimony   regarding
Buoncristiani’s troubleshooting of the 310 machine would have
resulted in the exclusion of Myers’s testimony at trial regarding
the STR DNA analysis in this matter, let alone a reasonable
probability that the exclusion of this testimony would ultimately
have affected the judgment.
      The purpose of Myers’s Kelly hearing was to determine
whether the trial court would allow the introduction of STR
DNA testing evidence based on (1) its general acceptance in the
relevant scientific community as reliable, (2) Myers’s
qualification to give an opinion on the subject, and (3) whether
the correct scientific procedures were used in the particular
case. (Jones, supra, 57 Cal.4th at p. 936.) Buoncristiani’s
troubleshooting of the 310 machine was, at best, only
tangentially related to these topics. Because the DOJ’s STR
testing would still have been admissible at trial even absent
Myers’s pretrial testimony on this point, there is no reasonable
probability that the exclusion of this testimony during pretrial
Kelly hearings would have affected the juries’ ultimate verdicts
of guilt.




                                 103
                PEOPLE v. BERTSCH and HRONIS
               Opinion of the Court by Guerrero, C. J.


                 bb. Trial testimony
      Myers also testified as an expert in STR testing at trial.
On direct examination, Myers explained that he conducted a
second testing run due to elevated baselines in the first run.
When the prosecution asked what happened between the two
runs, the trial court sustained hearsay objections from defense
counsel. The prosecution then asked Myers whether he
personally saw anything different on the testing instrument
during the second run. He responded that he saw a different
sized syringe was being used.
      On cross-examination, Bertsch’s counsel asked Myers
about the troubleshooting work performed by other individuals.
Myers testified that he had been away at a conference and that
Buoncristiani and a representative from Perkin-Elmer (the 310
machine     manufacturer)     had    performed     the   actual
troubleshooting work. Upon Myers’s return, he determined the
results from Buoncristiani’s last troubleshooting run appeared
good enough to proceed with a second testing run of the DNA
extracted in the Bertsch and Hronis case. Hronis’s counsel also
asked Myers about the troubleshooting work performed in his
absence. At Hronis’s counsel’s request, Myers related from
Buoncristiani’s notes that 15 troubleshooting runs had been
conducted.
      We conclude there was no Sanchez or Crawford error. As
to the asserted Crawford error, we are not persuaded that
Buoncristiani’s relation of his troubleshooting efforts to Myers
and his handwritten notes regarding troubleshooting runs
implicate Crawford. The primary purpose of Buoncristiani’s
communications regarding his troubleshooting work was to
determine whether the 310 machine was operating properly



                                104
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


rather than to establish facts for possible use in a criminal trial.
(See Davis, supra, 547 U.S. at p. 822.) Regarding claims of
Sanchez error, Myers’s testimony on direct examination did not
relate any case-specific hearsay regarding Buoncristiani’s
troubleshooting. It was not error under Sanchez. Moreover, to
the extent a Sanchez error can be predicated on testimony
elicited by a defendant (or a codefendant), any error was
harmless. Myers’s testimony regarding Buoncristiani’s 15
troubleshooting runs did not lend credibility to Myers’s
conclusions. If anything, the number of troubleshooting runs
cast doubt on the eventual result. There is no reasonable
probability that Bertsch or Hronis would have achieved a better
result at trial had it been excluded.
               iii. Testimony of Lawrence Presley
                  aa. Pretrial testimony
       At another Kelly hearing, the prosecution called Presley to
testify as an expert on the FBI’s RFLP testing procedures.
Presley was assigned to process the vaginal swab and blood
samples received in the Hronis and Bertsch case. Presley
supervised the technicians who extracted the DNA and
conducted the sequencing in 1989 and 1992, and he personally
reviewed the autoradiographs’ machine generated results.
Presley relied on the technicians’ records when he concluded
that the FBI’s RFLP testing in 1989 and 1992 followed
scientifically correct procedures. The technicians did not testify
at the Kelly hearing. The court found the FBI laboratory
records, including the technicians’ notes, were admissible under
either the official records exception or the business records
exception to the hearsay rule.




                                 105
                PEOPLE v. BERTSCH and HRONIS
               Opinion of the Court by Guerrero, C. J.


      Bertsch and Hronis first claim that Presley’s reliance on
the technicians’ notes during the Kelly hearing violated their
right to confrontation. We disagree. As previously explained,
the confrontation clause does not apply to a Kelly pretrial
hearing.
       As to Bertsch’s and Hronis’s claims of Sanchez error, the
Attorney General concedes that Presley related case-specific
hearsay statements within the meaning of Sanchez at the
pretrial Kelly hearing but contends the admission of these
statements, if error, was harmless because it is not reasonably
probable that exclusion of this testimony during Kelly
proceedings would have resulted in a more favorable ruling at
trial. Emphasizing that the thrust of the Kelly hearing was to
determine whether the FBI had used “correct scientific
procedures” in implementing the RFLP DNA testing (Kelly,
supra, 17 Cal.3d at p. 30), the Attorney General maintains
“[n]othing would have prevented Presley from testifying based
on his general knowledge about the steps of RFLP testing, then
explaining that he had reviewed the entire file, including
autoradiographs and bench notes, before forming an opinion
that the scientifically correct procedures had be[en] used,”
without violating Sanchez. The Attorney General also argues
that, even without Presley’s testimony regarding the
technicians’ bench notes, the existence of interpretable
autoradiographs supported Presley’s opinion that the correct
procedures had been used because each step of RFLP analysis
must be performed properly before an interpretable
autoradiograph can be produced.          (See Venegas, supra,
18 Cal.4th at pp. 60–62.)
      Even assuming the trial court erred in admitting Presley’s
testimony relaying the technicians’ notes under Sanchez, we

                                106
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


conclude any error was harmless because there is no reasonable
probability Bertsch and Hronis would have obtained a more
favorable result at trial if the technicians’ notes had been
excluded at the Kelly hearing. (Watson, supra, 46 Cal.2d at
p. 836; Valencia, supra, 11 Cal.5th at p. 840.) “To determine
prejudice, we examine the record as though [Presley’s]
testimony regarding the actions carried out by [the lab
technicians] had not been admitted. But this analysis does not
require us to set aside [Presley’s] testimony in its entirety.”
(Schultz, supra, 10 Cal.5th at p. 661.)
       Again, the parties agree that the purpose of Presley’s Kelly
hearing concerned whether the FBI had used correct scientific
procedures.      The existence of readable bands on the
autoradiographs supported Presley’s opinion that the FBI had,
in fact, used the correct scientific procedures in each step of the
RFLP analysis. As such, even without the technicians’ notes,
the trial court could readily have concluded that the evidence
derived from the FBI’s RFLP testing met Kelly’s standard for
determining the admissibility of new scientific techniques at
trial. And because the trial court could have allowed testimony
regarding RFLP testing even absent Presley’s pretrial
testimony on this point, there is no reasonable probability that
the exclusion of this pretrial testimony ultimately would have
affected the juries’ verdicts of guilt. We therefore perceive no
reversible error stemming from the trial court’s admission of
Presley’s pretrial testimony regarding the lab technicians’ notes.
                  bb. Trial testimony
     At trial, Presley testified that he supervised a technician
who had extracted the DNA in the Bertsch and Hronis case and
run the RFLP testing process up until the evaluation of the


                                 107
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


autoradiographs generated by the tests. Presley testified that
he personally reviewed the autoradiographs, measured the
actual bands, interpreted the results, and drafted his findings
in a report. After the trial court admitted the autoradiograph
generated results, Presley independently interpreted the
autoradiograph images from the witness stand.
      Bertsch and Hronis assert the admission of Presley’s
testimony relaying the lab technician’s analysis violated
Crawford and Sanchez. Specifically, they maintain Presley’s
testimony regarding certain testing steps performed by the
technician related case-specific hearsay and violated their
confrontation rights. They also claim that Presley’s separate
interpretation of the autoradiograph images was based on the
improper assumption that the lab technician correctly
performed the RFLP testing.
      “The question of whether and when statements in
technical reports qualify as ‘testimonial hearsay’ remains an
evolving area of the law.” (People v. Gonzalez (2021) 12 Cal.5th
367, 398 (Gonzalez).)       In Gonzalez, we summarized our
jurisprudence in this area as follows: “In 2012, this court issued
three companion cases that addressed confrontation clause
claims involving testimony detailing the results of technical
reports that had been prepared by a nontestifying witness.
(See People v. Lopez (2012) 55 Cal.4th 569; People v.
Dungo (2012) 55 Cal.4th 608 . . .; People v. Rutterschmidt (2012)
55 Cal.4th 650 . . . .) Those cases generated numerous separate
opinions, reflecting the fragmented nature of the high court’s
reasoning in this area. [Citations.] More recently, we have
noted that ‘ “considerable flux” [continues to] surround[] the
high court’s Sixth Amendment jurisprudence’ [Citation], and



                                 108
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


that ‘[a] comprehensive definition of the term ‘testimonial’
awaits articulation.’ ” (Ibid.)
        In Gonzalez, we declined to “delve further into the high
court’s divided confrontation clause jurisprudence” because,
even assuming a Sixth Amendment violation in that case, it was
“ ‘ “clear beyond a reasonable doubt that a rational jury would
have found the defendant guilty absent the error.” ’ ” (Gonzalez,
supra, 12 Cal.5th at p. 398.) We adopt that same approach here.
Even assuming the trial court violated Bertsch’s and Hronis’s
confrontation rights when it admitted Presley’s trial testimony
regarding the lab technicians’ RFLP testing procedures, these
errors were harmless beyond a reasonable doubt. (People v.
Livingston (2012) 53 Cal.4th 1145, 1159 (Livingston)
[confrontation clause violations are subject to Chapman
harmless error analysis].)
      Even without admission of the RFLP DNA evidence, the
evidence of Bertsch’s and Hronis’s guilt — including other, more
reliable DNA evidence — was overwhelming. The evidence
showed that Bertsch and Hronis committed a string of armed
robberies in the weeks preceding Canady’s murder and that they
were being pursued by law enforcement. Indeed, Hronis
pleaded guilty to five of the robberies and Bertsch admitted on
direct examination that he had also participated in the
robberies. Two witnesses testified that Bertsch and Hronis
communicated their plan to evade law enforcement by staking
out a shopping center parking lot, finding someone they could
overpower, and taking their car. Shortly thereafter, Canady
was carjacked and abducted from a shopping center parking lot.
     Two individuals that generally matched Bertsch’s and
Hronis’s descriptions then used Canady’s credit cards as they


                                 109
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


traveled south from Sacramento to Arizona, the very location
that Bertsch’s and Hronis’s friend had advised them to go.
Signatures on several of the credit card receipts matched
Hronis’s handwriting. Hronis admitted to Jerry B. that they
had killed a girl and later told Loren G. that he had used a stolen
credit card belonging to a woman who had been murdered,
possibly by his friend. Bertsch also told a deputy sheriff that he
needed to speak with the investigators and prosecutor about a
recent DNA article, adding he knew they had DNA evidence
against him that was found on the victim.
       DNA testing also provided convincing corroborating
evidence of guilt. Even without testimony regarding the FBI’s
RFLP DNA testing (or Cellmark’s DQ-Alpha/Polymarker DNA
testing, per our discussion below), the DOJ’s DQ-Alpha testing
and more advanced STR testing proved that Bertsch and Hronis
sexually assaulted Canady. The DOJ’s DQ-Alpha testing on a
sperm fraction extracted from Canady’s anal swab indicated a
major sperm contributor with a genotype consistent with
Bertsch’s genotype, and a minor sperm contributor was
consistent with Hronis’s genotype. STR DNA testing also
implicated Bertsch and Hronis. STR testing of the sperm
fraction extracted from Canady’s anal swab revealed allele
readings identical to those in Bertsch’s reference sample at all
nine loci, with the random match probability rate of one in 2.4
trillion Caucasians. The allele readings observed in the sperm
fraction extracted from Canady’s underwear were also identical
to the allele readings in Bertsch’s reference sample at all nine
loci and matched the allele readings in Hronis’s reference
sample at seven of nine loci. The random match probability rate
for the second donor profile that matched Hronis’s profile was
one in 2.4 trillion Caucasians.


                                 110
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


      The RFLP testing “added little if anything to the properly
admitted evidence” against Bertsch and Hronis. (People v.
Penunuri (2018) 5 Cal.5th 126, 158 (Penunuri).) It paled in
comparison to the force of the DNA evidence produced by STR
testing.17 Moreover, the jury was likely to give little relative
weight to Presley’s 1989 RFLP interpretation in light of his
subsequent downgrading in 1992 of the statistical significance
of those test results. Additionally, Mueller offered alternative
calculations of the RFLP testing, which produced significantly
higher probabilities of unrelated individuals randomly
contributing to the DNA found in the biological evidence
gathered at the crime scene than what Presley opined. Thus, a
defense expert’s testimony undercut the impact of Presley’s
1989 RFLP interpretation as well.
      On this record, it appears beyond any reasonable doubt
that any error in admitting Presley’s testimony did not
contribute to the verdict.
               iv. Testimony of Robin Cotton
                  aa. Pretrial testimony
      At another Kelly hearing, the prosecution initially called
former Cellmark employee Julie Cooper-Kidd to testify as an
expert in DQ-Alpha and Polymarker testing. Cooper-Kidd had
performed the actual DNA testing in Bertsch’s and Hronis’s case
at Cellmark, which Robin Cotton had supervised. However,
before defense counsel completed their cross-examination of


17
      The many advantages of STR testing over RFLP testing,
including its ability to test a smaller sample, less susceptibility
to sample degradation, simpler technology, and greater
discrimination power, eventually rendered RFLP testing
“obsolete.” (Cordova, supra, 62 Cal.4th at p. 127.)


                                 111
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


Cooper-Kidd, she informed the court that her continued absence
from her current employment would be challenging. After the
prosecution moved to strike Cooper-Kidd’s testimony due to the
incomplete cross-examination, defense counsel stipulated to the
admission of Cooper-Kidd’s direct examination and waived any
right to further cross-examination.
      The prosecution subsequently called Cotton to testify as
an expert in DQ-Alpha/Polymarker testing. Cotton testified
that Cooper-Kidd had conducted the DNA analysis in the
Bertsch and Hronis case, but Cotton personally reviewed the
data, notes, and other records in the file. Cotton also reviewed
the actual DQ-Alpha and Polymarker test strips as well as
photographs of the strips, taken immediately after testing, and
she provided her own interpretation of the results. Cotton then
compared her interpretation of the results against Cooper-
Kidd’s interpretation. After the court found Cotton’s final report
admissible under the business records exception to the hearsay
rule (Evid. Code, § 1271), Cotton relayed information from the
report, including the log sheet record of the handling of samples
and notations about how the samples had been amplified and
applied to test strips. Cotton explained that Cooper-Kidd and
another Cellmark employee had reviewed the test strips twice
while they were wet, and that Cotton personally reviewed
photographs of them. Based on her independent review of the
photographs, notes, and records in the file, as well as her
knowledge of Cellmark protocols, scientific testing, the testing
kit’s instructions, and her background and training, Cotton
determined that proper procedures had been followed in the
Bertsch and Hronis case.
     Bertsch and Hronis maintain that the admission of
Cotton’s testimony describing Cooper-Kidd’s work violated

                                 112
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


Crawford and Sanchez. For the reasons detailed above, we
again conclude the right to confrontation is not implicated at a
pretrial Kelly hearing, and thus no Crawford error occurred.
      Regarding Sanchez, we find that any error in admitting
Cotton’s testimony regarding Cooper-Kidd’s analysis was
harmless. As previously mentioned, Bertsch and Hronis
stipulated to the admission of Cooper-Kidd’s testimony on direct
examination, in which she described each step of her DNA
analysis using DQ-Alpha and Polymarker testing and concluded
that she had used the correct scientific procedures. Cooper-
Kidd’s testimony, standing alone, was compelling evidence that
the prosecution had met Kelly’s third prong, whether the
generally accepted scientific procedures had actually been
utilized in this case, and thus the DQ-Alpha/Polymarker
evidence could be introduced at trial. Accordingly, there is no
reasonable probability that the exclusion of Cotton’s pretrial
testimony regarding Cooper-Kidd’s analysis would have led to a
more favorable result for Bertsch or Hronis.
                 bb. Trial testimony
      At trial, Cotton testified that she had reviewed the records
produced by Cooper-Kidd and another Cellmark lab technician
of the DQ-Alpha and Polymarker testing in Bertsch’s and
Hronis’s case. Based on Cotton’s review of Cooper-Kidd’s bench
notes and the test strips produced in this case, Cotton related
the steps Cooper-Kidd undertook when Cooper-Kidd tested the
DNA extracted from the reference samples. Cotton also testified
that she personally conducted an independent analysis of the
raw data based on her review of photographs of the DQ-Alpha
and Polymarker strips produced in this case.




                                 113
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


      The Attorney General concedes that portions of Cotton’s
testimony relating the analysis of other technicians violated
Bertsch’s and Hronis’s right to confrontation. Assuming Cotton
related case-specific, testimonial hearsay, as we did with
Presley’s testimony above, we conclude any error was harmless
beyond a reasonable doubt. As previously described, the
scientific and nonscientific evidence in this case overwhelmingly
established Bertsch’s and Hronis’s guilt. Cellmark’s DQ-Alpha
and Polymarker testing “was cumulative of the stronger [DNA
evidence]” establishing Bertsch’s and Hronis’s guilt, most
notably the more advanced STR testing. (Penunuri, supra,
5 Cal.5th at p. 158.)
      Additionally, defense counsel’s cross-examination blunted
the impact of Cook’s testimony. Counsel was able to impeach
Cotton and highlight her limited role in running the DNA tests.
For example, Cotton admitted that her primary role in the
instant matter was to review the report authored by lab
technicians and sign off on that report. In other words, Cotton
acknowledged that she did not “do any of the work in this case.”
Defense counsel also impeached Cotton with her prior testimony
where she admitted that she was not present in the laboratory
while all the DNA testing was being conducted. Further, after
describing the steps taken to analyze the DNA samples, Cotton
admitted she did not observe any of those steps. Moreover,
Cotton admitted that the technicians did not analyze the DNA
samples in the usual way but, instead, decided to type the
reference samples first (DNA samples from Bertsch and Hronis)
before dealing with the crime scene biological material (evidence
samples).     Simply put, defense counsel’s effective cross-
examination undermined the effectiveness of Cotton’s
testimony, further supporting our conclusion that any error here


                                 114
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


was harmless beyond a reasonable doubt.18 Finally, as noted
below, defense counsel were permitted to present and argue to
the jury that there was internal disagreement at Cellmark
regarding certain aspects of Cooper-Kidd’s analysis.
            b. Asserted errors under Kelly
      Bertsch and Hronis contend the RFLP, DQ-
Alpha/Polymarker, and STR DNA testing failed to meet the
requirements for admission of new scientific evidence under
Kelly. We disagree.
               i. Legal principles
       As described above, under the Kelly rule, the proponent of
evidence derived from a new scientific methodology must show
(1) the reliability of the new technique has gained general
acceptance in the relevant scientific community, (2) the expert
testifying about the technique is qualified to give an opinion on
the subject, and (3) the correct scientific procedures were used
in the particular case. (Jones, supra, 57 Cal.4th at p. 936; Kelly,
supra, 17 Cal.3d at p. 30.)
      “Whether a new scientific technique has gained general
acceptance is a mixed question of law and fact. [Citation.] ‘[W]e
review the trial court’s determination with deference to any and
all supportable findings of “historical” fact or credibility, and
then decide as a matter of law, based on those assumptions,
whether there has been general acceptance.’ [Citation.] Once a
published appellate decision has affirmed admission of a
scientific technique, the technique’s general acceptance is


18
     Although we find any error harmless beyond a reasonable
doubt, Cotton’s testimony at trial underscores potential
drawbacks of using a surrogate analyst for testimony.


                                 115
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


established as a matter of law. Further hearings on general
acceptance are unnecessary ‘at least until new evidence is
presented reflecting a change in the attitude of the scientific
community.’ ” (People v. Doolin (2009) 45 Cal.4th 390, 447
(Doolin); see Cordova, supra, 62 Cal.4th at p. 127; Venegas,
supra, 18 Cal.4th at p. 53.)
      “The trial court’s determination on the qualifications of an
expert is reviewed for abuse of discretion [citation] as is its
ruling on the use of correct scientific procedures in the
particular case [citation].” (Doolin, supra, 45 Cal.4th at p. 447.)
               ii. The RFLP evidence was properly admitted
                   under Kelly
      After the completion of Kelly hearings, the trial court
made an omnibus ruling in which it found that the RFLP DNA
evidence was admissible under Kelly. The court pointed to
several published appellate decisions establishing that RFLP
testing was generally accepted by the relevant scientific
community. It also determined Presley was qualified to testify
as an expert on this procedure, and it found credible Presley’s
testimony that the FBI had used correct testing procedures in
this case.
      Bertsch and Hronis claim the RFLP evidence did not
satisfy Kelly’s first and third prongs. Specifically, Hronis
contends the court erred when it found the RFLP testing was
reliable because it was performed before the scientific
community had accepted the new technology. He also argues
the RFLP evidence was unreliable because the FBI later
discounted two loci probes, which altered their random match
probability calculations. Bertsch likewise asserts the evidence
did not support the court’s ruling that the FBI employed correct


                                 116
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


scientific procedures in this case. We find the trial court acted
within its discretion when it determined the RFLP evidence was
admissible under Kelly.
      At the time of the trial court’s ruling, three California
appellate decisions — Venegas, supra, 18 Cal.4th 47, People v.
Barney (1992) 8 Cal.App.4th 798, and People v. Axell (1991)
235 Cal.App.3d 836 (Axell) — had confirmed the general
scientific acceptance of RFLP analysis. Such authorities are
ordinarily sufficient to support a trial court’s finding of general
scientific acceptability. “In the absence of proof of any material
scientific distinction between the . . . methodologies, therefore,
the trial court could properly rely on [these decisions] as
establishing general scientific acceptance of the FBI’s RFLP
methodology used in this case to elicit and compare the DNA
profiles of the evidentiary samples.” (Venegas, at p. 54.) Hronis
did not offer any evidence at trial to rebut this showing, such as
that RFLP testing was no longer generally accepted in the
scientific community.
       Hronis argues that the FBI’s subsequent exclusion of two
loci probes in its random probability calculations renders the
RFLP evidence unreliable under Kelly. But the first prong of
Kelly requires proof that the technique is generally accepted as
reliable in the relevant scientific community. Numerous
published appellate decisions established that RFLP testing
was generally accepted. Once a scientific technique “is deemed
to be admissible, criticism of any particular methodology goes to
the weight of the evidence, not to its admissibility.” (People v.
Fierro (1991) 1 Cal.4th 173, 214.) The fact that the technique is
later refined does not mean the earlier approach was unreliable.




                                 117
                  PEOPLE v. BERTSCH and HRONIS
                 Opinion of the Court by Guerrero, C. J.


       Hronis maintains that the appellate opinions establishing
the general acceptance of RFLP testing must have existed at the
time the FBI conducted RFLP testing in this case, rather than
the time the trial court ruled on its admissibility. However, he
cites no authority and provides no reasoned argument in
support of his position. To the contrary, the Court of Appeal in
People v. Allen (1999) 72 Cal.App.4th 1093 (Allen) specifically
considered and rejected this argument, explaining, “The issue is
not when a new scientific technique is validated, but whether it
is or is not valid; that is why the results generated by a scientific
test once considered valid can be challenged by evidence the test
has since been invalidated.” (Id. at pp. 1100–1101.) We agree
with Allen’s reasoning. Accordingly, we hold that Kelly’s first
prong was met here as a matter of law.
      Regarding the third prong, the trial court acted within its
discretion when it determined the FBI used correct scientific
procedures in this case. The third prong of the Kelly test
requires “that the testifying expert understand the technique
and its underlying theory, and be thoroughly familiar with the
procedures that were in fact used in the case at bar to implement
the technique.” (Venegas, supra, 18 Cal.4th at p. 81.) Presley
clearly understood RFLP DNA testing and demonstrated a
familiarity with the procedures used in this case to implement
the technique. He was qualified to testify regarding the
correctness of the scientific procedures followed by the FBI in
conducting that analysis. As such, his testimony at the Kelly
hearing “satisfied the prosecution’s threshold burden of
producing evidence that correct scientific procedures were
used.” (Ibid.)
      Bertsch and Hronis contend Presley’s review of bench
notes describing the various steps performed by lab technicians

                                  118
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


did not provide a sufficient basis for him to conclude the proper
procedures were followed. We disagree. Kelly’s third prong does
not require the testifying expert to have personally performed
the technique in question but merely that he or she is
thoroughly familiar with the procedures that were used.
Indeed, in Venegas, we held that the FBI DNA examiner who
oversaw the RFLP testing in that case was “thoroughly familiar
with the procedures that were in fact used in the case at bar to
implement the technique” (Venegas, supra, 18 Cal.4th at p. 81),
even though a laboratory technician assisted her in her work (id.
at p. 68). (See also Axell, supra, 235 Cal.App.3d at pp. 849–850,
862 [finding third prong of Kelly satisfied where experts based
their conclusions that the correct procedures were performed on
their review of notes of technicians who actually tested the
DNA].)
     Accordingly, the RFLP evidence was properly admitted
under Kelly.
              iii. The DQ-Alpha/Polymarker evidence was
                   properly admitted under Kelly
      During the Kelly hearings, a dispute arose regarding the
applicability of Morganti, supra, 43 Cal.App.4th 643, in which
the Court of Appeal had affirmed that PCR analysis of the DQ-
Alpha gene was generally accepted as a reliable technique by
the relevant scientific community. (Id. at p. 671.) While the
prosecution argued that Morganti established as a matter of law
that DQ-Alpha testing was generally accepted, defense counsel
contended the scientific community’s consensus had changed.
The trial court deferred its decision on whether Morganti was
binding as to Kelly’s first prong and allowed additional
argument and expert testimony on this issue.



                                 119
                PEOPLE v. BERTSCH and HRONIS
               Opinion of the Court by Guerrero, C. J.


       Hronis’s counsel argued that Morganti did not establish
that DQ-Alpha testing was generally accepted in this case
because the PCR testing performed by the laboratory in the
Morganti case, SERI Labs, differed in certain respects from the
procedures used by Cellmark and the DOJ. A defense expert
testified that while Cellmark and the DOJ had used the
standard 32-cycle amplification process, the SERI lab in
Morganti had used 47 cycles, a fact that does not appear in the
Morganti opinion. The prosecution objected to any new evidence
about the DQ-Alpha procedures in Morganti that went beyond
what was described in the Morganti opinion, including the
different number of amplification cycles.
      The trial court ultimately held that any specific evidence
of nonstandard practices in the Morganti testing procedure was
not relevant to its Kelly determination in this case and granted
the prosecution’s motion to strike. It subsequently ruled that
Morganti and People v. Wright (1998) 62 Cal.App.4th 31
(Wright) established DQ-Alpha/Polymarker testing’s general
acceptance in the scientific community and there was no
evidence in the case law of a controversy surrounding DQ-Alpha
or DQ-Alpha/Polymarker.
      As to Kelly’s third prong, the court determined Cooper-
Kidd and Cotton were qualified as experts to give an opinion on
DQ-Alpha/Polymarker testing, and it credited their testimony
that correct procedures were followed in this case. The court
noted that although there was some internal disagreement at
Cellmark regarding whether the presence of a faint dot from a
possible second contributor on the anal swab should be excluded
from the analysis (with Cooper-Kidd and Cotton disagreeing
with another technician regarding whether it should be
included), the court determined the presence or absence of the

                                120
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


dot itself was a proper issue for the jury to consider. The court
also noted that the DOJ’s subsequent independent DQ-Alpha
testing had produced the same results, which further supported
its ruling with regard to Cellmark’s testing.
      We conclude the trial court properly found the DQ-
Alpha/Polymarker testing was admissible under Kelly.
Regarding the first prong, although Hronis maintains the trial
court erred when it relied on Morganti, he makes no such claim
regarding Wright, which was also binding appellate precedent.
The trial court correctly found that Kelly’s first prong was
satisfied here. (Wright, supra, 62 Cal.App.4th at p. 41 [“The
PCR method has obviously acquired general acceptance in the
scientific community”].)19
      Bertsch and Hronis also contend the court abused its
discretion in finding that Cellmark’s DQ-Alpha/Polymarker
testing complied with Kelly’s third prong, citing numerous
alleged problems with the testing, such as the inclusion of the
1.1 allele on the anal swab in the revised Cellmark report and
internal disagreement about the presence of a “B” allele and
faint “A” allele at different loci. These alleged issues go to the
weight of the evidence, not its admissibility under Kelly. (See
Wright, supra, 62 Cal.App.4th at p. 41.) As the trial court noted,
“the defense arguments focus on the issues regarding whether
the dot is there or not and the reporting or nonreporting of the
presence of that dot and focus less as to the meaning and


19
       More recent published decisions confirm this point. (See,
e.g., Jones, supra, 57 Cal.4th at p. 937 [“PCR analysis of the DQ-
Alpha gene is now firmly established as a scientific technique
that satisfies the Kelly test”]; People v. Stevey (2012)
209 Cal.App.4th 1400, 1411.)


                                 121
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


conclusions to be reached from the dot’s presence.” We agree
with the trial court that Bertsch’s and Hronis’s complaints
regarding the evidence are not truly Kelly issues. (See Cordova,
supra, 62 Cal.4th at p. 128.)
      Cooper-Kidd and Cotton testified regarding their
knowledge of and experience with DQ-Alpha/Polymarker
testing. Based on their testimony regarding their qualifications
and experience, the trial court was entitled to give due weight
to their opinions that the work in this case had been conducted
in an appropriate scientific manner. That Cellmark analysts
disagreed over whether certain results were intense enough to
warrant reporting does not undermine the court’s ruling.
Defense counsel were free to explore these issues at trial.
Accordingly, the trial court acted within its discretion in finding
Kelly’s third prong satisfied.
               iv. Sensabaugh’s statistical calculations were
                   properly admitted under Kelly
      Bertsch and Hronis maintain the court erred in finding
that prosecution expert Sensabaugh was competent to testify as
an expert on population genetics statistical analysis and that he
used correct scientific procedures in analyzing the RFLP and
DQ-Alpha/Polymarker data. We discern no error.
       During pretrial Kelly proceedings, Sensabaugh testified
that he had reviewed the FBI’s RFLP testing data and
Cellmark’s DQ-Alpha/Polymarker data and conducted his own
statistical analysis of that data using a random match exclusion
analysis. Sensabaugh considered using two different statistical
approaches, the random match exclusion approach and the
likelihood ratio approach. He chose the former because it was
“intuitively easier to understand” and generally gave a more


                                 122
                PEOPLE v. BERTSCH and HRONIS
               Opinion of the Court by Guerrero, C. J.


conservative estimate, which tended to be more favorable to the
defendant.
      To reach a statistical conclusion regarding the FBI’s RFLP
testing data, Sensabaugh evaluated the FBI reports from the
sperm cell fraction of Canady’s vaginal swab. Sensabaugh
included all four bands in his random match exclusion analysis
and calculated the sum of frequencies for every possible
genotype. Sensabaugh concluded that the FBI’s RFLP testing
could exclude as potential donors 99.95 percent of the Caucasian
population, 99.98 percent of the African American population,
and 99.91 percent of the Hispanic population. He testified that
he had also calculated the likelihood ratios based on the data,
which showed an even greater likelihood that the DNA was
contributed by Bertsch and Hronis.
      For the DQ-Alpha/Polymarker data, Sensabaugh
evaluated Cellmark’s report on the sperm cell fraction from
Canady’s vaginal swab. He calculated that the combination DQ-
Alpha/Polymarker data excluded 99.75 percent of the Caucasian
population, 99.8 percent of the African American population and
99.9 percent of the Hispanic population as potential donors.
      Sensabaugh acknowledged that the Second National
Research Council Report on Forensic DNA Evidence20 (NRC-2)
had recently endorsed applying the likelihood ratio approach
instead of the random match exclusion method because the


20
       Weir, The second National Research Council report on
forensic DNA evidence (1996) <https://pmc.ncbi.nlm.nih.gov/
articles/PMC1914912/> [as of Apr. 20, 2026]. All internet
citations in this opinion are archived by year, docket number,
and case name at <https://courts.ca.gov/opinions/cited-supreme-
court-opinions>.


                                123
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


former maximized the use of all available evidence.
Nevertheless, Sensabaugh opined that the random match
exclusion method remained an accepted scientific approach and
that he used the correct procedures in calculating the statistical
frequencies using the RFLP and DQ-Alpha/Polymarker data in
this case.
       The trial court ruled that Sensabaugh was qualified to
testify as an expert on statistical calculations arising from RFLP
and DQ-Alpha/Polymarker testing. Regarding Kelly’s third
prong, the court determined that Sensabaugh used the correct
scientific approach in his statistical calculations even though his
approach differed from the FBI’s approach. (Sensabaugh had
used four probes in analyzing the RFLP data, while the FBI
used only two in its initial RFLP calculations.) The court
determined that Sensabaugh’s use of additional probes was
justified, explaining that “given the different statistical
approach by Sensabaugh which makes no assumption on the
genotypes of the donor, Dr. Sensabaugh need not rely on band
intensity and therefore the use of four probes is in this [c]ourt’s
opinion correct scientific procedure.”
      Bertsch and Hronis contend the court erred under Kelly’s
second and third prongs when it found that Sensabaugh was
qualified to give an expert opinion on statistical calculations,
and that he correctly applied these calculations in this case. We
disagree.
      Regarding Sensabaugh’s qualifications to testify on
statistical analysis of forensic evidence, evidence admitted
during the Kelly hearing amply supports the trial court’s ruling.
Sensabaugh held a doctoral degree in criminology from the
University of California, Berkeley, where he focused on


                                 124
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


population genetics and statistical approaches for analyzing
genetic typing markers. He later served as a member of the
faculty at Berkeley, where he taught forensic biology, which
included the interpretation of forensic biological evidence using
population genetics, evolutionary biology, and biochemistry. He
also analyzed data published in scientific literature to
determine whether the population distribution results he
obtained in Berkeley’s laboratory were compatible with the
frequencies observed in other people’s typing. He had testified
as an expert about forensic statistical issues in approximately
30 cases. In some of these, he reviewed statistical computations
made by other people, while in others he made his own
calculations of statistical frequencies based upon forensic work.
The trial court properly ruled that Sensabaugh’s education and
experience qualified him to testify as an expert on statistical
analysis.
      As for the court’s ruling that Sensabaugh applied correct
scientific procedures in his statistical calculations based on the
RFLP and DQ-Alpha/Polymarker testing data in this case,
Bertsch and Hronis do not contend Sensabaugh incorrectly
applied a random match exclusion calculation to the data.
Rather, they assert the court should not have permitted
Sensabaugh to use two RFLP probes that the FBI had
discounted. But the trial court reasonably found Sensabaugh’s
decision in this respect was scientifically justified because he
utilized a different statistical approach than the FBI.
Sensabaugh’s approach made no assumption regarding the
genotypes of the donor, and therefore it did not need to rely on
band intensity, so use of the two RFLP probes was acceptable.
      The court was likewise entitled to credit Sensabaugh’s
testimony that the random match exclusion calculation was still

                                 125
                  PEOPLE v. BERTSCH and HRONIS
                 Opinion of the Court by Guerrero, C. J.


scientifically valid, notwithstanding the NRC-2’s preference for
likelihood ratio calculations. Bertsch’s and Hronis’s claim that
Sensabaugh’s use of the “excluded population” percentage was
unprecedented and “not a technique that is supported by any
case law or literature in the field” is incorrect. (See, e.g., People
v. Xiong (2013) 215 Cal.App.4th 1259, 1273–1274 [case law and
secondary sources show that “both the frequency and the
random match probability are relevant [even] in cold hit cases”];
id. at p. 1273 [“ ‘The rarity of the DNA profile shared by the
perpetrator and defendant, expressed by the random match
probability statistic, is always relevant and admissible’ ”].)
Likewise, Sensabaugh’s random match probability approach did
not invoke what has been “referred to as the ‘so-called
“prosecutor’s fallacy,” ’ ” because it did not encourage the jury to
assume “ ‘that the random match probability is the same as the
probability that the defendant was not the source of the DNA
sample.’ ” (Cordova, supra, 62 Cal.4th at p. 131.) Sensabaugh’s
analysis was properly limited to the probability of a random
match, and he did not refer to the probability that either
defendant had contributed to the DNA samples found on
Canady’s body.
      Accordingly, the trial court did not abuse its discretion in
ruling that Sensabaugh’s testimony was admissible under Kelly.
               v. The STR DNA evidence was properly
                  admitted under Kelly
                  aa. Background
       The DOJ conducted STR DNA testing in this case, which
is an application of PCR testing. It used a DNA testing kit called
Profiler Plus on a Perkin-Elmer 310 capillary electrophoresis




                                  126
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


genetic analyzer machine. Several witnesses testified about the
general acceptance of STR testing during the Kelly proceedings.
       Dr. Steven Lee, who worked in the DOJ’s DNA laboratory,
testified that STR testing was generally accepted within the
scientific community as reliable for analyzing crime scene
evidence. He further stated that the Profiler Plus testing kit
and the 310 machine were generally accepted by the scientific
community. He also explained that the DOJ had used both the
Hitachi 377 machine and the 310 machine, and the processes
utilized by each essentially performed the same function.
       Dr. Jurgen Henke, one of Hronis’s DQ-Alpha experts,
testified that STR testing was generally accepted by the
scientific community as reliable for forensic testing, and that the
310 machine and the Hitachi 377 machine were both generally
accepted for use in analyzing crime scene evidence.
Dr. Terrance Owen testified that he considered the use of gel
electrophoresis for STR testing to be generally accepted within
the scientific community as reliable for crime scene evidence,
but he did not yet view capillary electrophoresis to be
sufficiently established to produce reliable results.
      Defense expert Berger testified that the DOJ’s validation
studies for the 310 machine appeared to be in developmental
stages. Defense counsel maintained that the 310 machine’s
capillary electrophoresis process was not yet generally accepted,
and the prosecution could not rely on the scientific community’s
general acceptance of the 377 machine because that machine
used a different, gel-based electrophoresis procedure.
      At the conclusion of the proceedings, the trial court found
that the DOJ’s STR testing was admissible under Kelly. In its
ruling, the trial court noted the parties had disagreed about


                                 127
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


“what level, how far down the chain, to apply the general
acceptance standard.” It observed that while the prosecution
contended that published appellate decisions compelled the
court to conclude that all PCR testing is generally accepted, the
defense maintained that “not only must there be a general
acceptance for a PCR, but there must be general acceptance
shown for each test, STRs would be but one example, and
additionally for each kit — Promega, Cetus, Perkin-Elmer, what
have you — and each machine — Hitachi 377, 310, what have
you.” Based on its review of DNA cases in California and other
jurisdictions, the court held that a general acceptance
determination should be made as to the testing methodology,
such as RFLP and STR, but need not be made for each new kit
or machine. The court then cited Allen, supra, 72 Cal.App.4th
1093, as establishing STR testing’s general acceptance in the
relevant scientific community.
       In the alternative, the court independently concluded that
STR testing was generally accepted in the relevant scientific
community. Out of an abundance of caution, it also ruled that
if Kelly’s prong one required a kit-level or machine-level finding
of general acceptance, the scientific literature and expert
testimony supported a finding that the Profiler Plus kit and the
310 machine used in this case were generally accepted.
       Regarding the DOJ’s compliance with generally accepted
standards, Kelly’s third prong, the trial court found the weight
of the evidence supported the conclusion that the DOJ’s internal
validation substantially complied with that recommended in
scientific literature. It found frivolous the defense’s critique of
the literature supporting the validation performed by the DOJ.




                                 128
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


                 bb. Analysis
       Bertsch and Hronis do not dispute that at the time the
trial court issued its ruling on the admissibility of STR DNA
evidence, published appellate decisions confirmed that STR
testing was a widely used and generally accepted methodology
in forensic DNA testing. (Allen, supra, 72 Cal.App.4th at
p. 1100.) Nevertheless, they maintain the specific “capillary
electrophoretic method” utilized in the 310 machine failed
Kelly’s first prong because it had not yet become sufficiently
established to have gained general acceptance in the relevant
scientific community.
       Irrespective of whether capillary electrophoresis
amounted to a materially different scientific technique
requiring a prong one Kelly hearing at the time of trial, it is
uncontroverted that subsequent published decisions have
specifically found STR testing using the 310 machine and/or
capillary electrophoresis are generally accepted in the scientific
community. (See, e.g., People v. Lazarus (2015) 238 Cal.App.4th
734, 783; People v. Jackson (2008) 163 Cal.App.4th 313, 324;
People v. Henderson (2003) 107 Cal.App.4th 769, 783; People v.
Smith (2003) 107 Cal.App.4th 646, 671–672.) Indeed, in
Henderson, the Court of Appeal concluded that “since its
introduction to the world of forensic science, capillary
electrophoresis and its various permutations have gained not
only general acceptance, but also have become the method of
choice for DNA testing under certain circumstances.”
(Henderson, at p. 785.) That the trial of this case predated these
decisions provides no basis to doubt the scientific reliability of
using the 310 machine in STR testing. (Lucas, supra, 60 Cal.4th
at p. 245; People v. Riel (2000) 22 Cal.4th 1153, 1192 (Riel).) As



                                 129
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


such, Bertsch’s and Hronis’s contention that the DOJ’s use of
the 310 machine failed prong one of Kelly is unpersuasive.
      Relatedly, Bertsch and Hronis contend the DOJ’s failure
to properly validate the 310 machine precluded a finding that
the STR testing method was generally accepted. The trial court
properly concluded that criticisms regarding the DOJ’s
validation methods and troubleshooting issues had little bearing
on the general acceptability of the capillary electrophoresis
technique. Instead, these criticisms went to the weight of the
evidence and were proper issues for the jury to consider.
Bertsch and Hronis have not shown error.
      In their final Kelly-related claim, Bertsch and Hronis
contend the trial court failed to exercise its gatekeeping role
under Sargon Enterprises, Inc. v. University of Southern
California (2012) 55 Cal.4th 747 when it deferred to expert
opinions on the validity of STR testing. But as we made clear in
Sargon, the “ ‘general acceptance’ test for admissibility of expert
testimony based on new scientific techniques [citation] still
applies in California courts” despite the high court’s rejection of
a similar test in federal courts. (Id. at p. 772, fn. 6.) We
emphasized that “[n]othing we say in this case affects our
holding in [People v. Leahy (1994) 8 Cal.4th 587] regarding new
scientific techniques.” (Ibid.) In Lucas, we reaffirmed our
rejection of the argument “that the first prong of Kelly
improperly relies upon what the scientific community accepts as
to the reliability of a technique, thereby supplanting the trial
court’s independent determination of reliability as required by
Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S.
579.” (Lucas, supra, 60 Cal.4th at p. 245, fn. 36.) We also
reiterated that Sargon “did not, by using the term ‘gatekeeper,’
indicate any move away from the Kelly test toward the federal

                                 130
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


Daubert standard.” (Ibid., citing Sargon, at p. 772, fn. 6.)
Bertsch and Hronis provide no persuasive reason to revisit those
holdings here.
           c. Subpoena of Perkin-Elmer’s validation materials
      Bertsch and Hronis assert the trial court abused its
discretion when it quashed their subpoena for Perkin-Elmer’s
validation materials relating to the 310 machine used in the
DOJ’s STR testing. They claim the court should have required
Perkin-Elmer to produce these materials and reviewed them in
camera. Hronis separately contends that any material relevant
to the Kelly proceedings should have been disclosed to the
attorneys under a protective order. Bertsch and Hronis seek a
limited remand to permit the trial court to review the validation
materials that would have been provided had it ordered the
production. We conclude the trial court did not abuse its
discretion in quashing the subpoena, and there is no need for a
remand.
              i. Background
      In August 1999, as pretrial DNA proceedings neared
completion, Bertsch’s counsel informed the court he had
subpoenaed Perkin-Elmer for the raw data underlying its
internal development and validation of the 310 machine used by
the DOJ. Perkin-Elmer moved to quash the subpoena. At a
hearing on the motion to quash, counsel for Perkin-Elmer
represented it would take a team of four people nearly four
months to gather the requested documents. Bertsch’s counsel
estimated it would then take him a minimum of two to three
weeks to review the requested materials. The prosecution
responded that the lateness of the subpoena, which in its view




                                 131
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


would likely produce irrelevant information, “plac[ed] this trial
at significant peril.”
      The trial court granted the motion to quash. It found that
the subpoena would impose a significant burden on Perkin-
Elmer, which substantially outweighed Bertsch’s and Hronis’s
need for the materials given the extensive documentation about
the DOJ’s validation process that had been made available to
the defense. The court likened the subpoena to a “fishing
expedition,” describing defense counsel’s request as “hoping to
find information regarding deficiency in the kit as opposed to
specifically going after something that the defense knows will be
particularly relevant.”     It denied Bertsch’s and Hronis’s
subsequent motion for reconsideration, again ruling the burden
on Perkin-Elmer “far outweigh[ed] the demonstrated need for
information.”
              ii. Analysis
       “As a rule, a criminal defendant ‘may compel discovery by
demonstrating that the requested information will facilitate the
ascertainment of the facts and a fair trial.’ [Citation.] But the
trial court has discretion ‘ “to protect against the disclosure of
information which might unduly hamper the prosecution or
violate some other legitimate governmental interest,” ’ or when
there is an ‘ “absence of a showing which specifies the material
sought and furnishes a ‘plausible justification’ for inspection
[citations].” ’ [Citation.] Although policy may favor granting
liberal discovery to criminal defendants, courts may
nevertheless refuse to grant discovery if the burdens placed on
government and on third parties substantially outweigh the
demonstrated need for discovery.” (People v. Kaurish (1990)
52 Cal.3d 648, 686 (Kaurish).)



                                 132
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


      We find that the trial court acted within its discretion to
grant Perkin-Elmer’s motion to quash. Requiring Perkin-Elmer
to produce all its internal validation documentation would have
placed a significant burden on it. Perkin-Elmer estimated it
would take four people nearly four months to complete the
request. Bertsch and Hronis failed to demonstrate their need
for this discovery, particularly given the DOJ’s production of
substantial materials regarding its own independent validation
of the 310 machine used to test the evidence in this case. As
such, the burden placed on Perkin-Elmer substantially
outweighed the demonstrated need for discovery. (See Lemelle
v. Superior Court (1978) 77 Cal.App.3d 148, 165 [defendant’s
request for 10 years’ worth of arrest reports of two police officers
pertaining to charges of resisting arrest was overbroad and
burdensome].) The fact that Perkin-Elmer ultimately published
its validation materials four years later does not change the
facts that it would have been burdensome for Perkin-Elmer to
produce these materials at the time of trial and that defendants
had failed to demonstrate any persuasive justification for their
request, whatever the burden. Unlike State v. Pickett (N.J. App.
2021) 246 A.3d 279 cited by Hronis, neither he nor Bertsch
demonstrated any particularized need for the requested
materials.
     For identical reasons, we reach the same conclusion
regarding Hronis’s claim that the court should have ordered
Perkin-Elmer to disclose the materials under a protective order.
            d. Restrictions on the role of Bertsch’s advisory
               counsel
      Bertsch contends the trial court abused its discretion
when it precluded his advisory counsel from litigating DNA
issues while Bertsch was representing himself. Bertsch claims

                                 133
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


this ruling effectively prevented him from conducting his own
defense and forced him to relinquish his right to represent
himself. He is incorrect.
              i. Background
      Before trial began, Bertsch alternated between
representing himself under Faretta and being represented by
counsel. On March 22, 1996, Bertsch first invoked his Faretta
rights. He represented himself until December 10, 1996, when
he requested the appointment of counsel. On September 5,
1997, he asserted his Faretta rights again and remained self-
represented until November 12, 1998.
      On February 9, 1999, Bertsch filed a third Faretta motion.
At the hearing on the motion, the court advised Bertsch that if
it granted him advisory counsel after approving the Faretta
request, then only Bertsch would be permitted to speak to the
court, not advisory counsel. The court explained that although
it had previously given advisory counsel some leeway while
Bertsch was self-represented, it would not do so going forward
given Bertsch’s pattern of opting in and out of self-
representation and prior instances when Bertsch’s position
conflicted with that of advisory counsel. Bertsch countered that
his attorney, James Sherriff, had been appointed as a special
DNA counsel, and that he wished to keep that appointment. The
court responded that if it granted Bertsch’s Faretta motion, then
Bertsch, and not Sherriff, would be questioning the DNA
witnesses. Bertsch went forward with his Faretta motion.
     The trial court granted the motion and ordered Sherriff
and Mark Millard, another defense attorney, to remain as
advisory counsel. The court advised Bertsch that he could
consult with advisory counsel, but he alone would be permitted


                                 134
                PEOPLE v. BERTSCH and HRONIS
               Opinion of the Court by Guerrero, C. J.


to ask questions of witnesses and make arguments to the court.
Bertsch moved for reconsideration on this point, asking that
Sherriff be permitted to speak on all DNA matters. The court
denied the request, citing the multiple prior occasions when a
conflict arose between Bertsch and his counsel. It explained:
“Mr. Bertsch, in your pro per status you are your own attorney.
Mr. Sherriff is there to advise you. I will afford reasonable
opportunities for you to consult with him to garner that advice
even during the course of the proceeding. [¶] But you, sir, are
to address me on the matters that you, I underline the word you,
you want to address me about whether it be DNA or any other
subject.” Bertsch then withdrew his Faretta request and
requested the reappointment of counsel, which the court
granted.
              ii. Analysis
      A criminal defendant has a Sixth Amendment right to
conduct his or her own defense. (Faretta, supra, 422 U.S. at
p. 819.) However, “A criminal defendant does not have a right
to simultaneous self-representation and representation by
counsel.    [Citations.]   ‘[N]one of the “hybrid” forms of
representation, whether labeled “cocounsel,” “advisory counsel,”
or “standby counsel,” is in any sense constitutionally
guaranteed.’ ” (People v. Bradford (1997) 15 Cal.4th 1229, 1368
(Bradford).) “Criminal defendants have the constitutional right
to have an attorney represent them, and the right . . . to
represent themselves, but these rights are mutually exclusive.”
(People v. Moore (2011) 51 Cal.4th 1104, 1119–1120 (Moore).)
      “Although there is no constitutional right to hybrid
representation, we have long recognized that trial courts retain
the discretion to permit the sharing of responsibilities between



                                135
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


a defendant and a defense attorney when the interests of justice
support such an arrangement.” (Moore, supra, 51 Cal.4th at
p. 1120.) “For example, if the defendant so desires and assisting
counsel agrees, the court may allow counsel’s limited
participation as a trial advocate, where this will serve the
interests of justice and efficiency.” (People v. Hamilton (1989)
48 Cal.3d 1142, 1164, fn. 14 (Hamilton).) “The court retains
authority to exercise its judgment regarding the extent to which
such advisory counsel may participate.” (Bradford, supra,
15 Cal.4th at p. 1368.)
     Bertsch contends the trial court abused its discretion
when it declined to allow advisory counsel to litigate the DNA
phases of trial while Bertsch represented himself in all other
phases of trial. We disagree.
      “As we previously stated regarding a challenge to the
denial of hybrid representation, ‘as with other matters requiring
the exercise of discretion, “as long as there exists a reasonable
or even fairly debatable justification, under the law, for the
action taken, such action will not be here set aside.” ’ ” (Moore,
supra, 51 Cal.4th at p. 1120.) Here, the trial court provided
reasonable grounds for placing limits on the role of advisory
counsel, namely that Bertsch had exhibited a pattern of opting
in and out of being represented, and that while self-represented
he and advisory counsel had on occasions taken conflicting
positions and caused delay in proceedings. “Having granted
[defendant’s] requests for self-representation and for advisory
counsel, the court was not obliged to accede to the defense’s
requests both for self-representation and for whatever degree of
participation in the proceedings it desired for advisory counsel.”
(Bradford, supra, 15 Cal.4th at p. 1369.) The trial court’s
decision not to allow hybrid representation between Bertsch and

                                 136
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


Sherriff is also supported by the historic conflict between
Bertsch and his attorneys, which suggests the proposed
relationship would not have served the interest of judicial
efficiency. (Hamilton, supra, 48 Cal.3d at p. 1164, fn. 14.) We
therefore conclude the trial court did not abuse its discretion in
refusing to permit advisory counsel to address the court directly
on DNA issues. And because Bertsch has no constitutional right
to any manner of advisory counsel or hybrid representation
(Bradford, at p. 1368), Bertsch’s corollary constitutional claims
are meritless.
            e. Defense DNA expert
       Hronis contends the trial court deprived him of his right
to effective assistance of counsel when it allowed the prosecution
to elicit testimony and comment on the fact that defense experts
had observed the state’s DNA testing and had been provided
samples to conduct independent testing. He contends this
invited speculation regarding what the defense experts observed
and what results they received during their own testing. We
perceive no error.
               i. Background
      Prior to trial, at defense counsel’s request, the trial court
ordered the remaining DNA samples be divided and distributed
to the parties, and that defense experts be allowed to observe
the prosecution’s additional testing of its samples. Thereafter,
multiple defense experts were present for the DNA partitioning
and took possession of the defense’s portions of the samples.
One defense expert later attended and observed the DOJ’s DQ-
Alpha testing, and two defense experts observed the DOJ’s STR
testing.




                                 137
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


      Before opening statements commenced, Bertsch requested
the prosecution be prohibited from mentioning that defense
experts were present at the state’s DNA testing or that
biological samples for testing purposes had been made available
to Bertsch and Hronis. The court denied the request. It found
that these facts did not implicate the work product privilege and
were likely relevant to countering any defense attacks on the
reliability of the state’s testing. The court pointed to defense
counsel’s cross-examination of the prosecution’s expert
witnesses during the Kelly hearings, in which they challenged
the conduct of the tests and alleged negligence or even fraud.
      During trial, Bertsch and Hronis unsuccessfully lodged
the same objections. Noting that “the validity of the accuracy of
the DNA testing is . . . arguably the singular most substantive
issue in the case,” the court observed that defense counsel’s
opening statements had attacked the reliability of the DNA
testing. The court found the presence of a defense expert at
partitioning and testing relevant to the question of the DNA
tests’ validity because it demonstrated an openness of the
process and an opportunity for the defense to identify
deficiencies or anomalies or to produce expert testimony of their
own. It rejected a defense request that the evidence be excluded
under Evidence Code section 352, finding no undue prejudice.
       Subsequently, former DOJ criminalist Faye Springer
testified that several individuals were present when the DOJ’s
Sacramento crime lab divided the remaining DNA samples,
including Dr. Benjamin Grunbaum and Dr. Simon Ford.
Springer testified that Ford took possession of the partitioned
evidence, and that neither Grunbaum nor Ford worked for
Sacramento County.



                                 138
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


      During Cotton’s direct examination, the prosecution asked
whether she had arranged for an expert to be present while
Cellmark’s DNA testing took place in this case. Hronis’s counsel
objected on hearsay, lack of foundation, and relevance grounds.
Bertsch’s counsel objected under Evidence Code section 352.
Outside the presence of the jury, the parties agreed the
prosecution could ask one leading question regarding the
presence of Grunbaum, a non-Cellmark employee, during
Cellmark’s DNA testing in this case. When direct examination
resumed, Cotton testified that Grunbaum, a non-Cellmark
employee, had been present.
       After the prosecution concluded its case-in-chief, defense
expert Mueller testified on direct examination that laboratory
error rate was a critical factor in calculating probability
statistics. On cross-examination, the prosecution asked Mueller
whether the presence of defense experts during DNA testing
could provide direct observations of an error instead of
extrapolating an arbitrary error rate. The prosecution also
asked about a statement in a scientific report that independent
retesting could significantly reduce the risk of error. Hronis’s
counsel objected and later moved for a mistrial based on
prosecutorial misconduct and improper shifting of the burden of
proof. The court denied the motion. It noted that Mueller had
testified on direct examination that the error rate was critical to
the reliability of a statistical result, and the prosecution was
entitled to challenge that opinion. When cross-examination
resumed, the prosecution again asked Mueller whether the
observations of defense experts present during DNA testing
could provide direct evidence of an error instead of extrapolating
the possibility of an error from an error rate. Mueller responded
that the presence of another expert could catch a few errors that


                                 139
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


would otherwise go unnoticed, but that there were no
guarantees.
      Prior to closing arguments, the court ruled on a
prosecution motion addressing the bounds of permissible
argument concerning these issues. In light of Bertsch’s and
Hronis’s attacks on the validity of the state’s DNA testing, both
in their opening statements and in cross-examination of the
prosecution’s expert witnesses, the court determined the
prosecution could mention that defense experts were present for
the state’s DNA testing and themselves had DNA material
available for retesting, but no experts were called to testify
regarding their observations of the state’s testing or whether
any retesting had been performed. The court declined Bertsch’s
and Hronis’s subsequent request to reconsider its ruling.
      During closing arguments, the prosecution mentioned
that Grunbaum was present when Cellmark’s DQ-Alpha testing
was performed and when the additional DNA samples were
partitioned, that Grunbaum and Ford received portions of the
additional samples, and that the DOJ performed testing in the
presence of defense experts. The prosecution also reminded the
jury that the defense was under no obligation to call Grunbaum
as a witness even though he witnessed certain DNA testing in
this case.
              ii. Analysis
       Hronis contends the trial court deprived him of his right
to effective assistance of counsel by allowing the prosecutor to
(1) elicit evidence that defense experts were present during the
state’s DNA analysis and had received partitioned DNA samples
for independent testing and (2) comment during closing




                                 140
                  PEOPLE v. BERTSCH and HRONIS
                 Opinion of the Court by Guerrero, C. J.


argument on the fact that the defense had not called their expert
to testify.
      We recently considered and rejected similar arguments in
People v. Nadey (2024) 16 Cal.5th 102 (Nadey). There, the
defendant contended the trial court erred when it allowed the
prosecutor to elicit evidence that the defense had retained a
DNA expert. (Id. at p. 144.) We disagreed, observing that
although a criminal defendant is entitled to keep
communications with his or her experts confidential, “a defense
expert’s identity is not necessarily confidential in itself.” (Id. at
p. 149.) We noted that defense counsel had made the identity of
the retained expert known to the prosecution by asking the
prosecutor to release the DNA testing materials from the
prosecution’s expert to the defense expert. (Ibid.)
      We rejected the defendant’s contention that the
prosecution committed misconduct and violated work product
privilege when it called the jury’s attention to the defense
expert’s involvement by asking the prosecution’s expert witness
about it. (Nadey, supra, 16 Cal.5th at p. 150.) We first
distinguished People v. Coddington (2000) 23 Cal.4th 529, 603,
which involved evidence related to psychiatric experts and
reports that had never been disclosed by the defense. We
explained, “Here, defense counsel voluntarily disclosed to the
prosecution that [the defense expert] was their expert. By
making this disclosure, and encouraging their expert to
communicate directly with the prosecution expert about the
case, the defense effectively waived any work product
protections applicable to [the defense expert’s] identity and
role.” (Nadey, at p. 150.)




                                  141
                  PEOPLE v. BERTSCH and HRONIS
                 Opinion of the Court by Guerrero, C. J.


         We also noted that Coddington’s holding had been
superseded by statute, which now limits the definition of
“ ‘ “ ‘ “work product” ’ ” ’ ” in criminal cases to “ ‘ “ ‘any writing
reflecting “an attorney’s impressions, conclusions, opinions, or
legal research or theories.” ’ ” ’ ” (Nadey, supra, 16 Cal.5th at
p. 151, citing People v. Zamudio (2008) 43 Cal.4th 327, 355.) We
specified: “The fact that the evidence concerned the potential
retesting of samples by a defense expert is not sufficient to
establish a violation of the work product privilege or Penal Code
section 1054.6.” (Nadey, at p. 151.) “Moreover, testimony
establishing ‘that forensic evidence was made available to the
defense does not constitute comment on the “exercise of” the
work product privilege.’ ” (Ibid.)
       We likewise rejected the defendant’s claims of irrelevance
and undue prejudice, observing: “The DNA match identifying
defendant as the source of semen found on the victim’s body was
critical in establishing his guilt. It was apparent from
defendant’s opening statement, if not before, that a fundamental
part of the defense strategy would be to attack the validity of the
state’s DNA testing, and in particular the credibility of its
expert . . . . Evidence that a defense expert had reviewed all
notes from [the prosecution expert’s] testing, and that samples
had been preserved to allow retesting, was relevant to show that
[the prosecution’s expert] had professionally performed the
testing and to support his credibility by showing that the
evidence was made available for defense scrutiny.” (Nadey,
supra, 16 Cal.5th at pp. 151–152.) We noted that “[i]f the jury
had been left with the false impression that the DNA evidence
had been kept from the defense, they may have ignored it,
believing the defense had been put at an unfair disadvantage.”
(Id. at p. 152.)


                                  142
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


      We also rejected the defendant’s related claims of
prosecutorial misconduct. We explained that the prosecutor’s
questions merely sought to elicit relevant evidence that the
prosecution expert’s “work had been reviewed by an outside
expert.” (Nadey, supra, 16 Cal.5th at p. 152.) “The fact that
evidence, or an inference drawn therefrom, is harmful to the
defendant’s case does not mean the evidence is unfairly
prejudicial.” (Ibid.) We found unpersuasive the defendant’s
argument that testimony about a defense expert’s involvement
in the case improperly shifted the burden of proof. (Ibid.) We
noted that the jury was properly instructed on the burden of
proof and admonished that neither side was required to call all
witnesses who might have relevant knowledge. (Ibid., citing
CALJIC Nos. 2.11, 2.61, & 2.90.)
      Our prior case law is consistent with Nadey. In People v.
Foster (2010) 50 Cal.4th 1301, 1357, the trial court permitted
the admission of evidence establishing that serological evidence
was preserved and released to the defense. We held the
prosecution’s inquiries concerning defense testing were relevant
in light of defense attacks on the reliability of the state’s DNA
testing. (Ibid.) We added: “The prosecutor’s questions
suggested only what was implied by the evidence — that the
defense did not possess any contrary serological evidence. Nor
did the prosecutor’s focus upon the absence of contrary evidence
insinuate that defendant bore the burden of offering evidence of
his innocence.” (Ibid.; see Kaurish, supra, 52 Cal.3d at p. 680
[“The prosecution is entitled to comment on the state of the
evidence, including the lack of conflicting serological evidence”].)
     In Cooper, supra, 53 Cal.3d at p. 823, the prosecution’s
expert scientific witness testified that a defense expert was
present during the testing of a drop of blood and had made

                                 143
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


certain suggestions in retesting the material, which the
prosecution’s expert had followed. The defense expert also
testified regarding the analysis of the drop of blood. (Ibid.) On
cross-examination, he testified that he had previously worked
with the prosecution’s expert and the two had generally
obtained the same results. (Id. at p. 824.) On appeal, the
defendant asserted that the prosecution improperly “ ‘utilized’ ”
the defense expert as a witness against the defense, which
infringed on his right to the effective assistance of counsel.
(Ibid.) We rejected his contention. “Since the defense made an
issue of the manner in which the blood was tested,” we reasoned,
“the prosecution was entitled to question [the prosecution’s
expert] about all the circumstances surrounding the testing,
including the involvement of the defense expert. The defense
may choose either to have or not have an expert participate in
the analysis of evidence, but if it chooses the former, no
authority prohibits evidence of such participation. The jury was
entitled to learn of all the circumstances involved in the testing,
not merely the truncated version defendant desires.” (Ibid.)
      Although Nadey, Foster, and Cooper present somewhat
different factual scenarios than the instant matter, those cases
nonetheless support the conclusion that the trial court did not
err here when it permitted the prosecution to elicit evidence that
defense experts were present during the state’s DNA testing and
had also received partitioned DNA samples for independent
testing. That is not to say that the presence of defense experts
during the prosecution’s DNA testing was sufficient to prevent
all errors, but, as Mueller admitted during cross-examination,
the presence of defense experts at the testing could catch errors
that would otherwise go unnoticed. Moreover, Bertsch and
Hronis repeatedly attacked the veracity and reliability of the


                                 144
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


state’s DNA testing. The prosecution was entitled to rebut these
attacks by eliciting evidence that Bertsch’s and Hronis’s own
experts had observed the state’s testing and obtained DNA
material to conduct their own testing. This did not deprive
Hronis of his right to effective assistance of counsel or
improperly shift the burden of proof.
      Nor was it improper for the prosecution to comment on the
defense’s failure to call their expert as a witness. In People v.
Panah (2005) 35 Cal.4th 395, 464, we held the prosecution did
not commit misconduct when it commented on the defense’s
failure to produce DNA or fingerprint evidence, because the
defense had called into question the prosecution’s collection of
evidence. Similarly, in People v. Bolden (2002) 29 Cal.4th 515,
we found the prosecution’s comment on the defense’s failure to
call their expert, who had collaborated on bloodstain testing,
was appropriate. (Id. at pp. 552–553; see also People v. Wash
(1993) 6 Cal.4th 215, 263 [“prosecutorial comment upon a
defendant’s failure ‘to introduce material evidence or to call
logical witnesses’ is not improper”].) As in these prior cases, we
conclude the trial court did not err when it permitted the
prosecution to so comment here.
           f. Limitation on cross-examination of Myers
      Hronis maintains the trial court erred when it restricted
his cross-examination of Myers for potential bias. We conclude
the court acted within its discretion to limit this cross-
examination under Evidence Code section 352.
     Before trial commenced, the court granted a prosecution
motion precluding the defense from suggesting to the jury that
the DOJ had not complied with the court’s discovery orders.
During trial, however, Bertsch’s attorney asked Myers whether


                                 145
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


he had refused to provide the defense with printouts of the raw
data from his STR testing. The court sustained the prosecutor’s
objection on relevance and Evidence Code section 352 grounds.
      Outside the presence of the jury, Hronis’s counsel asked
the court for renewed discovery of the raw data mentioned in
cross-examination and urged the court to allow Bertsch’s
question. Hronis’s counsel claimed the question went to bias,
motive, and credibility because Myers was “willing to respond to
the prosecution’s request to pinpoint areas in the [testing] run
and do screen dumps,” but the defense did not have the same
opportunity. The prosecution responded that the court had
already ruled on the defense discovery request, which included
an allotment of twenty screen captures from the DOJ that
defense counsel had not utilized.
      Bertsch’s counsel persisted in his request to ask questions
of Myers to establish bias. He wanted to ask about Myers’s
refusal to agree to informal discovery requests made by the
defense or “even take a phone call” from defense counsel. The
prosecutor objected, noting that the law specifically required all
informal discovery requests go through the prosecution, and not
be made directly to the agency. The court declined to allow
further questioning. It explained that “the relevance is slight[,]
virtually nonexistent because there was an extended lengthy
discovery dispute” and the DOJ “complied specifically with the
[c]ourt rulings following that dispute.” The court also found that
the time consumption and confusion that would result from
getting into the court’s previous discovery orders exceeded any
probative value under Evidence Code section 352.
     Hronis maintains that this line of questioning would have
been highly relevant to prove bias and would not have consumed


                                 146
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


a significant amount of time or caused confusion, and the trial
court’s refusal to allow the inquiry amounted to an abuse of
discretion. We disagree.
      “Under Evidence Code section 352, the trial court enjoys
broad discretion in assessing whether the probative value of
particular evidence is outweighed by concerns of undue
prejudice, confusion or consumption of time. [Citation.] Where,
as here, a discretionary power is statutorily vested in the trial
court, its exercise of that discretion ‘must not be disturbed on
appeal except on a showing that the court exercised its discretion
in an arbitrary, capricious or patently absurd manner that
resulted in a manifest miscarriage of justice.’ ” (People v.
Rodrigues (1994) 8 Cal.4th 1060, 1124.)
      Applying this standard, we find no abuse of discretion.
First, there appears to be little impeachment value in Myers’s
failure to comply with defense counsel’s informal discovery
requests or to “even take a phone call” from them. Second, the
question of informal discovery requests, notwithstanding the
DOJ’s compliance with the court’s formal discovery orders, could
cause juror confusion and raise a number of collateral issues,
such as whether a DOJ policy existed that would have prevented
Myers from directly receiving informal requests from defense
counsel, the relationship between informal and formal
discovery, and the history of discovery actually provided. Under
the circumstances, we cannot say that the court exceeded the
bounds of reason in excluding this line of questioning. (People
v. Harris (2008) 43 Cal.4th 1269, 1291 [trial court has wide
latitude to exclude impeachment evidence in individual cases
under Evid. Code, § 352]; People v. Ayala (2000) 23 Cal.4th 225,
301 [“Within the confines of the confrontation clause, the trial
court retains wide latitude in restricting cross-examination that

                                 147
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


is repetitive, prejudicial, confusing of the issues, or of marginal
relevance”].)
            g. Admission of statements regarding defense
               expert’s work and compensation
      Hronis contends the trial court erred when it allowed the
prosecution to impeach defense expert Mueller with (1) letters
sent to Mueller rejecting publication of an article he had written
for a scientific journal, (2) Mueller’s correspondence with the
FBI regarding a disagreement over Mueller’s use of FBI
statistics, and (3) Mueller’s yearly earnings as an expert
witness. We conclude there was no error.
               i. Background
      Defense counsel offered Mueller as an expert in forensic
applications of population genetics.        During voir dire of
Mueller’s qualifications before the jurors, defense counsel asked
Mueller several questions regarding articles he had published,
including peer reviewed articles related to forensic testing.
Subsequently, the prosecution asked Mueller whether he had
submitted articles about forensic application of population
genetics that had been rejected. Mueller confirmed that he had.
Mueller acknowledged that he recognized a copy of the rejection
letter he had received from a scientific journal, as well as
accompanying peer review comments criticizing Mueller’s work
and suggesting changes.
      The prosecution requested the letters and peer review
comments be published or displayed to the jury. Defense
counsel objected on hearsay, vagueness, and foundational
grounds. The court initially ruled the peer review comment
letters were not admissible on the issue of Mueller’s competence
as an expert, but it subsequently reversed course and allowed


                                 148
                PEOPLE v. BERTSCH and HRONIS
               Opinion of the Court by Guerrero, C. J.


the peer review comments to be published. The court explained
that because Mueller had relied on what the peer review
comments said in forming his opinion about whether the article
was proper or needed more work and in deciding whether to
make the recommended changes to get his article published, this
reliance brought the comments within a hearsay exception. The
court also ruled it went directly to the issue of Mueller’s
expertise and experience, which was an issue in the trial. The
prosecution then used the screen projector to show certain
excerpts of the peer review comments criticizing Mueller’s
statistical methods.
      The prosecution also questioned Mueller during voir dire
about critiques he received from Dr. Bruce Budowle of the FBI
on a different draft article. Mueller had used unpublished
population data provided by Budowle in the draft article, with
the FBI retaining the right to decide whether it would be
published. Budowle reviewed Mueller’s draft article and
disagreed with its analysis, leading the FBI to prohibit
publication. Defense counsel responded by asking Mueller
about his own criticisms of the FBI’s methodology.
      Later, on cross-examination, the prosecution asked
Mueller about his yearly income for consulting and testifying in
DNA cases. Defense counsel did not object to this questioning.
During subsequent testimony regarding Mueller’s involvement
in cases in which Bertsch’s counsel had served as one of the
defense attorneys, Bertsch’s counsel specifically objected to
questions that mentioned specific DNA markers used in prior
cases. Hronis’s counsel did not object.
     The prosecution sought to introduce two letters to impeach
Mueller regarding his prior testimony regarding his dispute


                                149
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


with Budowle and the FBI. One was a letter dated May 14, 1990
from Budowle to Mueller, and the second was a response from
Mueller to Budowle dated June 11, 1990. Defense counsel
objected to their admission on confrontation clause and
Evidence Code section 352 grounds. The court overruled the
Evidence Code section 352 objection, finding the content of
Mueller’s letter was inconsistent with his testimony. It later
overruled the hearsay objections based on Evidence Code
sections 720 and 1235.
               ii. Analysis
       As relevant here, Evidence Code section 721 provides that
a witness testifying as an expert “may be cross-examined to the
same extent as any other witness and, in addition, may be fully
cross-examined as to (1) his or her qualifications, (2) the subject
to which his or her expert testimony relates, and (3) the matter
upon which his or her opinion is based and the reasons for his
or her opinion.” (Evid. Code, § 721, subd. (a).) An expert witness
testifying in the form of an opinion may not be cross-examined
regarding “the content or tenor of any scientific, technical, or
professional text, treatise, journal, or similar publication”
unless “[t]he witness referred to, considered, or relied upon such
publication in arriving at or forming his or her opinion.” (Id.,
subd. (b).)
      “ ‘The scope of cross-examination permitted under
[Evidence Code] section 721 is broad, and includes examination
aimed at determining whether the expert sufficiently took into
account matters arguably inconsistent with the expert’s
conclusion.’ ” (Townsel, supra, 63 Cal.4th at p. 55; id. at pp. 55–
56 [prosecutor properly cross-examined expert concerning the
discrepancy between her opinion and the contrary opinion of



                                 150
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


other experts].) “ ‘It is common practice to challenge an expert
by inquiring in good faith about relevant information, including
hearsay, which he may have overlooked or ignored.’ ” (Id. at
p. 56.)
      Hronis contends the trial court erred when, during
Mueller’s qualification voir dire, it published portions of a letter
from a scientific journal rejecting Mueller’s article and
corresponding critical peer review comments because they did
not fall within an admissible hearsay exception. Hronis is
incorrect. The rejection letter and accompanying peer review
comments are not hearsay because they were not offered for
their truth. (Evid. Code, § 1200.) Instead, they were introduced
for the purpose of impeaching Mueller’s qualifications as an
expert under Evidence Code section 721, subdivision (a), by
showing that Mueller’s work had not been accepted by the same
scientific community that he purported to draw his opinions
from. Nor do they appear to relate case-specific facts, meaning
“those relating to the particular events and participants alleged
to have been involved in the case being tried,” about which an
expert has no personal knowledge. (Sanchez, supra, 63 Cal.4th
at p. 676.) Instead, the prosecution’s questions regarding the
letter and peer reviews related to Mueller’s qualifications to
serve as an expert and amounted to background information,
which an expert may relate to the jury to support the expert’s
opinion. (People v. Veamatahau (2020) 9 Cal.5th 16, 21.)
      Similarly, we conclude the letters between Mueller and
Budowle are relevant and admissible as challenges to Mueller’s
qualifications under Evidence Code section 721, subdivision (a).
To the extent the correspondence could be construed as hearsay,
they also fall within a valid hearsay exception. Mueller’s
response letter to Budowle was admissible as a prior

                                 151
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


inconsistent statement because it appeared inconsistent with
Mueller’s testimony regarding the reason his article was not
published. Although Mueller testified that the FBI refused to
publish his paper because Mueller had reached scientific
conclusions that did not support the FBI’s implicit assumptions
regarding their statistics, Mueller’s letter suggested Budowle
had not agreed to publication because Mueller had repeatedly
attributed Budowle as an author without his permission. (Evid.
Code, § 1235; In re Bell (2017) 2 Cal.5th 1300, 1307; People v.
Homick (2012) 55 Cal.4th 816, 859 (Homick).)
      Budowle’s initial letter to Mueller, meanwhile, provided
context for and meaning to Mueller’s response. (Evid. Code,
§ 356 [“Where part of [a] . . . conversation, or writing is given in
evidence by one party, the whole on the same subject may be
inquired into by an adverse party; when a letter is read, the
answer may be given; and when a . . . conversation, or writing is
given in evidence, any other . . . conversation, or writing which
is necessary to make it understood may also be given in
evidence”]; People v. Harris (2005) 37 Cal.4th 310, 334–335;
People v. Zapien (1993) 4 Cal.4th 929, 959 [“ ‘ “In the event a
statement admitted in evidence constitutes part of a
conversation or correspondence, the opponent is entitled to have
placed in evidence all that was said or written by or to the
declarant in the course of such conversation or correspondence,
provided the other statements have some bearing upon, or
connection with, the admission or declaration in evidence” ’ ”].)
Budowle’s letter clarifies that the primary cause of tension
between the FBI and Mueller was the misappropriation of
Budowle’s name in Mueller’s work, not any specific
disagreement regarding Mueller’s methodology. Budowle’s
statements to Mueller were admissible for the nonhearsay


                                 152
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


purpose of placing Mueller’s response into context. Accordingly,
we conclude the court did not err in allowing the prosecution to
question Mueller regarding his correspondence with Budowle.
       Finally, as for the prosecution’s questions regarding
Mueller’s compensation in prior cases, Hronis’s counsel forfeited
any challenge to this line of questioning by failing to interpose a
contemporaneous objection.         (People v. Martinez (2010)
47 Cal.4th 911, 964 (Martinez).) In any event, his contention
fails on the merits, since “it is not misconduct to question an
opponent’s expert witness about payment for services or about
the expert’s testimony in prior cases involving similar issues.”
(People v. Price (1991) 1 Cal.4th 324, 457; see Evid. Code, § 722,
subd. (b) [“The compensation and expenses paid or to be paid to
an expert witness by the party calling him is a proper subject of
inquiry by any adverse party as relevant to the credibility of the
witness and the weight of his testimony”].)
            h. Cumulative error
      Bertsch contends the cumulative impact of the errors
relating to the admission of DNA evidence prejudiced him. We
have assumed error in two claims brought by Bertsch (Presley’s
testimony and Cotton’s testimony regarding testing performed
by lab technicians) as well as one claim brought by Bertsch and
Hronis (Myers’s testimony on cross-examination regarding
Buoncristiani’s troubleshooting) but found these errors to be
harmless. We have already determined that the cumulative
impact of these errors did not prejudice Bertsch or Hronis.
There are no other errors to accumulate.




                                 153
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


        6. Instructional error claims
           a. CALJIC guilt phase instructions as a whole
      Bertsch asserts the jury instructions were not sufficiently
understandable to satisfy the heightened reliability required for
a capital trial. In support, Bertsch cites a statement from the
Judicial Council’s Blue Ribbon Commission on Jury System
Improvement that California’s jury instructions “are, on
occasion, simply impenetrable to the ordinary juror,” and its
recommendation to create a task force to draft “more
understandable” instructions. (Wonder et al., Final Report of
the Blue Ribbon Commission on Jury System Improvement
(1996) 47 Hastings L.J. 1433, 1512, 1514.) Bertsch also
references empirical studies suggesting limited juror
comprehension of capital instructions.
      We rejected a similar argument in Lucas, supra,
60 Cal.4th 153. There, we held: “The fact that the commission
ultimately drafted the newer CALCRIM instructions, which the
Judicial Council subsequently adopted [citation], does not
establish that the prior CALJIC instructions were
constitutionally defective. ‘Nor did their wording become
inadequate to inform the jury of the relevant legal principles or
too confusing to be understood by jurors.’ ” (Id. at p. 294.)
Bertsch offers no persuasive reason for us to reconsider our prior
determination.
           b. Requested instruction regarding courtroom
              behavior and definition of evidence
      Bertsch contends the trial court erred by declining to give
Bertsch’s requested instruction to disregard his courtroom
behavior and by failing to instruct his jury sua sponte not to
consider the presence and conduct of Canady’s parents, thereby


                                 154
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


violating his federal constitutional rights to a fair trial,
confrontation, due process, and the right to counsel. We find no
error.
      Before trial commenced, Bertsch’s defense counsel
requested that the trial court instruct the jury to disregard
Bertsch’s appearance, demeanor, and conduct in the courtroom
and to not consider it for any purpose. The court declined the
request, reasoning that “some moments of tension between
Mr. Bertsch and his counsel” did not require a special
instruction.
      On appeal, Bertsch maintains that the trial court’s refusal
to instruct the jury on his courtroom conduct and provide an
alternative definition of “evidence” that would exclude the jury’s
observations of courtroom spectators’ conduct or presence
amounted to federal constitutional error. On the latter point, he
contends the court’s instruction of CALJIC No. 2.00, which
provides that “[e]vidence consists of testimony of witnesses,
writings, material objects, or anything presented to the senses
and offered to prove the existence or non-existence of a fact,”
allowed the jury to conclude that Bertsch’s courtroom demeanor
and Canady’s parents’ courtroom presence and conduct was
evidence because they were “presented to the senses.”
      We disagree. First, by failing to request an additional
instruction on the scope of evidence or a special instruction
concerning Canady’s parents’ presence and conduct in the
courtroom, Bertsch has forfeited any challenge on these points.
(Martinez, supra, 47 Cal.4th at p. 964.)
     In any event, these claims, as well as his claim regarding
an instruction on his courtroom demeanor, fail on the merits.
CALJIC No. 2.00 specifies that evidence must be “offered to


                                 155
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


prove the existence or non-existence of a fact.” (Italics added.)
The foregoing instruction makes clear that the jury could
consider only evidence that was offered and admitted at trial.
“We presume the jurors were capable of reading, understanding,
and applying the instruction in this commonsense manner . . . .”
(People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1225.)
Moreover, the trial court also instructed the jury with
CALJIC 1.00, which provided that jurors must “determine what
facts have been proved from the evidence received in the trial
and not from any other source.” Based on settled principles, we
conclude the jury understood and applied the instructions given,
which properly limited their consideration to evidence that was
offered and received into evidence during the trial. (See People
v. Williams (1997) 16 Cal.4th 635, 675 [claims of instructional
error are evaluated “in the context of the overall charge” to the
jury].)
           c. CALJIC No. 2.27
      Bertsch contends that CALJIC No. 2.27’s instruction on
single witness testimony erroneously implied that Officer
Jones’s uncorroborated out-of-court statement regarding
Bertsch’s abandoned vehicle was insufficient to prove any fact,
which resulted in prejudicial error. We disagree.
      Bertsch’s defense placed great emphasis on an out-of-court
statement made by Officer Jones to the officer investigating the
Sacramento robberies, Detective Edwards.           According to
Detective Edwards, Officer Jones had stated he was “positive”
Bertsch’s abandoned AMC Rebel was not parked on the side of
the road prior to January 3, 1986, when Officer Jones noticed it.
At trial, however, Officer Jones testified that although he had
reported first seeing the AMC Rebel on January 3, he also had



                                 156
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


no independent recollection of the timing of his discovery and
that January 3 was probably the date he first put “two and two
together.” Bertsch later impeached Officer Jones’s testimony
with his prior out-of-court statement to Detective Edwards.
      CALJIC No. 2.27, as provided, stated: “You should give
the uncorroborated testimony of a single witness whatever
weight you think it deserves. Testimony by one witness which
you believe concerning any fact whose testimony about that fact
does not require corroboration is sufficient for the proof of that
fact. You must carefully review all the evidence upon which the
proof of that fact depends.”        Bertsch asserts that the
instruction’s reference to “testimony” and not “out-of-court
statements” erroneously suggested the instruction did not apply
to out-of-court statements, which could have led the jury to
conclude that Officer Jones’s out-of-court statement required
corroboration and to disregard it because there was no
corroboration.
       We conclude there was no error. Even assuming the out-
of-court statement was not “testimony,” CALJIC No. 2.27 did
not suggest that Officer Jones’s prior out-of-court statement
required corroboration. Moreover, the jury was also instructed
on prior inconsistent statements using CALJIC No. 2.13, which
stated: “Evidence that at some other time a witness made a
statement or statements that is or are inconsistent or consistent
with his or her testimony in this trial, may be considered by you
not only for the purpose of testing the credibility of the witness,
but also as evidence of the truth of the facts as stated by the
witness on that former occasion.” These instructions properly
explained to the jury that it could consider Officer Jones’s
uncorroborated out-of-court statement concerning the date he
first saw the abandoned AMC Rebel.

                                 157
                PEOPLE v. BERTSCH and HRONIS
               Opinion of the Court by Guerrero, C. J.


           d. CALJIC No. 2.71.5
      Bertsch argues the trial court prejudicially erred when it
failed to admonish his jury to view his alleged adoptive
admission with caution. We find no error.
     As previously noted, Jerry B. testified at trial that he
spoke with Bertsch and Hronis over the phone after Canady was
murdered. Hronis told Jerry B. they killed a girl, and Bertsch
responded, “Don’t tell nobody that.”
      The trial court instructed the jury with CALJIC No. 2.71,
which defines admissions and advises that evidence of an oral
admission by the defendant not made in court must be viewed
with caution. The court further instructed the jury with
CALJIC No. 2.71.5, which defines an adoptive admission as
silence upon, or a false or evasive reply to, an accusation.
CALJIC No. 2.71.5 allows the jury to determine whether a
defendant’s silence or conduct indicated an admission that the
accusatory statement was true.
       Bertsch contends that because CALJIC No. 2.71.5 did not
admonish the jurors to view adoptive admissions with caution,
while CALJIC No. 2.71’s oral admission instruction did so, the
jury likely would have concluded that the court found Bertsch’s
alleged adoptive admission more credible than any oral
admission. We find this claim unpersuasive.
      As a preliminary matter, Bertsch forfeited his claim by
failing to request modifications to CALJIC No. 2.71.5, which
correctly stated the law. (See Martinez, supra, 47 Cal.4th at
p. 964.) Nevertheless, the claim also fails on the merits.
CALJIC No. 2.71, which defines admissions, properly instructed
the jury to view with caution any out-of-court oral admission by
Bertsch. CALJIC No. 2.71.5 gives additional context to CALJIC


                                158
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


No. 2.71 by defining and describing adoptive admissions. Here,
Bertsch made an equivocal response to an express accusation.
Read together, CALJIC Nos. 2.71 and 2.71.5 properly instructed
the jury to consider Bertsch’s oral adoptive admission with
caution. No additional clarification was required.
            e. CALJIC No. 2.21.2
       Bertsch contends the trial court prejudicially erred when
it failed to define the phrase “material part” as used in CALJIC
No. 2.21.2, thereby violating his state and federal constitutional
rights to due process and fair trial by jury. Again, we find no
error.
      The trial court instructed the jury with CALJIC
No. 2.21.2, which provided: “A witness who is willfully false in
one material part of his or her testimony, is to be distrusted in
others. You may reject the whole testimony of a witness who
willfully has testified falsely as to a material point, unless, from
all the evidence, you believe the probability of truth favors his
or her testimony in other particulars.”
      Bertsch claims the phrase “material part” has a technical
legal meaning and should have been defined for the jury as
relating to a fact which could be determinative of the case. The
court’s failure to do so, asserts Bertsch, permitted the jury to
rely on an overly broad ordinary meaning of the term and
affected its consideration of the evidence in violation of Bertsch’s
due process and fair trial rights. We have rejected such a claim.
(Lucas, supra, 60 Cal.4th at pp. 292–293 [trial court did not err
by failing to define “material” as used in CALJIC No. 2.21.2,
because the term had no peculiar technical meaning as used in
the instruction]; see People v. Wade (1995) 39 Cal.App.4th 1487,
1496 [holding that term “ ‘material’ ” as used in CALJIC


                                 159
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


No. 2.21.2 “carries its ordinary meaning of ‘substantial,
essential, relevant or pertinent’ ” and thus does not require sua
sponte definition].) We see no reason to depart from our prior
assessment of this issue.
            f. CALJIC No. 2.13
      Bertsch argues that the trial court committed reversible
error in instructing the jury on prior inconsistent statements
pursuant to CALJIC No. 2.13. Bertsch contends the instruction
improperly bolstered the credibility of Martha R. and Jerry B.
because it directs the jury to consider prior statements of
witnesses as evidence of the truth but not of their falsity.
      We have repeatedly rejected such claims, noting that “ ‘the
instruction in no way directs the jury to accept prior statements
as the truth; it merely covers the hearsay exceptions provided in
Evidence Code sections 1235 and 1236, in a neutral fashion.’ ”
(People v. Friend (2009) 47 Cal.4th 1, 41; accord, Bryant, Smith
and Wheeler, supra, 60 Cal.4th at p. 438; People v. Harris,
supra, 43 Cal.4th at p. 1293.) Bertsch offers no reasoned basis
for us to reconsider these holdings.
            g. CALJIC No. 2.52
      Bertsch asserts the trial court prejudicially erred when it
instructed the jury on flight as consciousness of guilt because
the instruction was unnecessary, misleading, argumentative,
and allowed the jury to draw irrational inferences against him.
He also contends the instruction should not have been given
over defense objection. We find no error.
       Over defense objection, the trial court instructed the jury
with CALJIC No. 2.52, as follows: “The flight of a person
immediately after the commission of a charged crime is not
sufficient in itself to establish his guilt, but is a fact which, if


                                 160
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


proved, may be considered by you in the light of all other proved
facts in deciding whether a defendant is guilty or not guilty. The
weight to which this circumstance is entitled is a matter for you
to decide.”
       We have long rejected claims that the standard flight
instruction is argumentative, unnecessary, and permits the jury
to draw irrational permissive inferences of guilt (e.g., People v.
Rogers (2013) 57 Cal.4th 296, 333), and we do so again here. As
to Bertsch’s specific contention that the instruction erroneously
allowed his jury to rely on consciousness of guilt to convict
Bertsch of the non-robbery charges, he ignores the evidence that
he fled to Georgia following Canady’s murder, which the jury
could properly consider in deciding whether Bertsch was guilty
of the charged offenses. Moreover, Bertsch’s argument that the
court should not have instructed the jury on flight over defense
objection must fail in light of section 1127c’s requirement that a
trial court provide such an instruction whenever the prosecution
relies on evidence of flight as tending to show a defendant’s
consciousness of guilt.
      Bertsch also maintains the trial court’s giving of CALJIC
No. 2.52 erroneously allowed his jury to consider his
consciousness of guilt in determining the special-circumstance
allegations. We have previously rejected this contention and do
so again here.
      As noted, CALJIC No. 2.52 instructed the jury that
evidence of flight “may be considered on the question of guilt.”
(People v. Covarrubias (2016) 1 Cal.5th 838, 933 (Covarrubias).)
The court also gave CALJIC No. 17.31, which ordered the jury
to disregard any instruction not applicable to its analysis of the
facts. As in Covarrubias, “if . . . the consciousness of guilt


                                 161
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


evidence was not relevant to the special circumstance
allegations, then the jury would have disregarded the
instructions. Consequently, there is no reasonable likelihood
that the jury applied the consciousness of guilt instructions in a
manner that violates the Constitution.” (Covarrubias, at
p. 933.)
            h. CALJIC Nos. 17.40 and 17.50
       Bertsch asserts the trial court erred when it failed to
sufficiently instruct the jury regarding the selection, duties, and
powers of the foreperson. As a result, defendant contends, the
foreperson was permitted to exercise undue influence over the
jurors and undermine the fairness and reliability of the guilt
and penalty deliberations. We perceive no error.
      After closing arguments, the trial court instructed the jury
with CALJIC No. 17.50, which provides: “You shall now retire
and select one of your number to act as foreperson. He or she
will preside over your deliberations. In order to reach verdicts,
all twelve jurors must agree to the decision and to any finding
you have been instructed to include in your verdict. As soon as
you have agreed upon a verdict, so that when polled each may
state truthfully that the verdicts express his or her vote, have
them dated and signed by your foreperson and then return with
them to this courtroom. Return any unsigned verdict forms.”
The court also instructed the jury with CALJIC No. 17.40, which
provides that each juror must decide the case for themselves and
may not decide any question in a particular way because a
majority of the jurors, or any of them, favor that decision.
     Preliminarily, Bertsch has forfeited this claim by failing to
lodge a timely objection to CALJIC Nos. 17.40 or 17.50 or
request an additional instruction. In any event, the claim also


                                 162
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


fails on the merits. The trial court’s instructions that “each juror
must ‘decide the case for yourself’ and not ‘decide any question
any particular way because a majority of the jurors or any of
them favor such a decision’ ” were sufficient to “negate[]” any
concerns that “the lack of instruction concerning the role of the
foreperson gave that person undue influence during
deliberations and that the jury should have been instructed that
the foreperson’s vote carried no greater weight than the vote of
any other juror.” (Lucas, supra, 60 Cal.4th at p. 299; see
Covarrubias, supra, 1 Cal.5th at p. 924; cf. People v. Engelman
(2002) 28 Cal.4th 436, 444 [CALJIC Nos. 17.40 and 17.50 “fully
informed the jury of its duty to reach a unanimous verdict based
upon the independent and impartial decision of each juror”].)
            i. CALJIC No. 3.19
      Bertsch and Hronis assert the trial court committed
structural error when it gave an instruction requiring the
defense to prove by a preponderance of the evidence whether
certain witnesses were accomplices in the charged offenses.
Specifically, they claim the court should have also instructed the
juries on the relationship between the defense and the
prosecution’s burden of proof. We disagree.
      The prosecution requested the court instruct the jury with
CALJIC No. 3.19, which addresses the burden to prove a
corroborating witness is an accomplice. The instruction as
requested would ultimately relate to Martha R. and Jerry B.
Bertsch later voiced concern that requiring the defense to prove
the accomplice status of Martha R. or Jerry B. would suggest
that Bertsch was also guilty as an accomplice. The trial court
determined the instruction’s language referring to the defense’s
burden was proper and declined to strike it.



                                 163
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


      As given, CALJIC No. 3.19 instructed the juries: “You
must determine whether the witness Martha [R.] and/or
Jerry [B.] was an accomplice as I have defined that term. [¶]
The defendant has the burden of proving by a preponderance of
the evidence that Martha [R.] and/or Jerry [B.] was an
accomplice in the crimes charged against the defendant.”
      Bertsch contends that because his defense focused on
Jerry B. as a perpetrator under a third party culpability theory,
the trial court should have instructed his jury, sua sponte, on
the relationship between the defense and the prosecution’s
burden of proof. Instead, Bertsch contends, the court’s giving of
CALJIC No. 3.19 without any additional instruction
unconstitutionally shifted the burden of proof to Bertsch.
Hronis joins these concerns. We are not persuaded.
      Regarding the third party culpability instruction, Bertsch
and Hronis were required to request a pinpoint instruction on
this defense theory, which they failed to do. (People v. Gutierrez
(2009) 45 Cal.4th 789, 824.) The trial court did not err by not
instructing the juries on this point. (Ibid.) In addition, no third
party culpability instruction was necessary because the court
properly instructed the jury with CALJIC No. 2.90, which
specifies that a criminal defendant is presumed innocent until
proven guilty and entitled to a verdict of not guilty if the jury
has reasonable doubt regarding his or her guilt, and the
prosecution bears the burden of proving a defendant guilty
beyond a reasonable doubt. (See Gutierrez, at pp. 824–825.)
      As to accomplice liability, we also perceive no error in the
court’s instructions. Section 1111 provides that a defendant
may not be convicted based upon the testimony of an accomplice
unless it is corroborated by other evidence. When a defendant


                                 164
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


claims that a witness is an accomplice, which would invoke
section 1111’s corroboration requirement, the defendant bears
the burden of so proving by a preponderance of the evidence.
(Rangel, supra, 62 Cal.4th at p. 1222; Bryant, Smith and
Wheeler, supra, 60 Cal.4th at p. 430; People v. Tewksbury (1976)
15 Cal.3d 953, 962–968.) Accordingly, the trial court correctly
instructed the jury that Bertsch bore the burden of proving by a
preponderance of the evidence that Jerry B. was an accomplice.
The giving of CALJIC No. 3.19 did not improperly shift the
burden of proof to Bertsch.
           j. CALJIC No. 2.90
      Bertsch and Hronis raise several arguments related to the
court’s instruction on the burden of proof. We conclude none of
their arguments has merit.
      The trial court instructed the jury with CALJIC No. 2.90,
which defines reasonable doubt. As given, the instruction
provides: “A defendant in a criminal action is presumed to be
innocent until the contrary is proved, and in case of a reasonable
doubt whether his guilt is satisfactorily shown, he is entitled to
a verdict of not guilty. This presumption places upon the People
the burden of proving him guilty beyond a reasonable doubt. [¶]
Reasonable doubt is defined as follows: It is not a mere possible
doubt; because everything relating to human affairs is open to
some possible or imaginary doubt. It is that state of the case
which, after the entire comparison and consideration of all the
evidence, leaves the minds of the jurors in that condition that
they cannot say they feel an abiding conviction of the truth of
the charge.”
      Bertsch and Hronis first assert the trial court erred when
it refused to give Bertsch’s proposed supplemental instruction


                                 165
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


elaborating on the reasonable doubt and clear and convincing
evidence standards of proof because CALJIC No. 2.90’s use of
the phrase “abiding conviction” suggests a clear and convincing
standard of proof. He contends the instructional error violated
his federal constitutional rights to a jury trial and to due process
of law.
      We discern no error. In Victor v. Nebraska (1994) 511 U.S.
1 (Victor), the United States Supreme Court held that “[a]n
instruction cast in terms of an abiding conviction as to guilt,
without reference to moral certainty, correctly states the
government’s burden of proof.” (Id. at pp. 14–15.) CALJIC
No. 2.90 does so. Moreover, we have on numerous occasions
rejected similar claims regarding CALJIC No. 2.90 and upheld
the “abiding conviction” language in that instruction (People v.
Freeman (1994) 8 Cal.4th 450, 501–505 (Freeman); People v.
Webb (1993) 6 Cal.4th 494, 531), as have the Courts of Appeal
(People v. Guerrero (2007) 155 Cal.App.4th 1264, 1267–1268;
People v. Haynes (1998) 61 Cal.App.4th 1282, 1298–1299; People
v. Light (1996) 44 Cal.App.4th 879, 885–886). Bertsch offers no
persuasive reason for us to reconsider this issue.
       Bertsch and Hronis offer the related contention that the
omission of the “moral certainty” language from CALJIC
No. 2.90 created an unconstitutional ambiguity because the
instruction does not define the degree of persuasion to which the
“abiding conviction” must be held. Initially, Bertsch and Hronis
forfeited this claim by failing to ask the trial court to modify
CALJIC No. 2.90. The argument also fails on the merits. In
Freeman, we held that because “[t]he high court [in Victor v.
Nebraska] made clear that the terms ‘moral evidence’ and ‘moral
certainty’ add nothing to the jury’s understanding of reasonable
doubt,” trial courts could safely delete that language in the

                                 166
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


standard reasonable doubt instruction.        (Freeman, supra,
8 Cal.4th at p. 504.) We have since reaffirmed this holding.
(People v. Brown (2004) 33 Cal.4th 382, 392 [“If the inclusion of
‘moral evidence’ and ‘moral certainty’ [in CALJIC No. 2.90] adds
nothing of value, then plainly their exclusion can take away
nothing of value”].) We find no compelling reason to revisit the
issue.
      Next, Bertsch raises (and Hronis joins) a series of forfeited
claims relating to CALJIC No. 2.90. He asserts the instruction
failed to adequately inform the jury that (1) the defense had no
obligation to refute or present evidence, (2) the rejection or
disbelief of defense evidence does not satisfy the prosecution’s
burden of proof, (3) a conflict in the evidence or lack of evidence
could leave the jury with a reasonable doubt as to guilt, (4) the
presumption of innocence continues through the entire trial,
(5) the instruction’s use of the term “until” should not be
interpreted to imply that proof will necessarily be forthcoming,
(6) the jury was not required to articulate the logic and reasons
for their doubt, (7) a “possible doubt” may amount to “reasonable
doubt,” and (8) the term “burden” carries a technical meaning,
which the trial court should have defined. We have rejected
each of these complaints as meritless (Covarrubias, supra,
1 Cal.5th at pp. 910–911; Lucas, supra, 60 Cal.4th at pp. 294–
296; Romero and Self, supra, 62 Cal.4th at pp. 42–43), and we
do so again here.
      In another forfeited claim, Bertsch asserts the absence of
an “application paragraph” from CALJIC No. 2.90, which would
have applied the abstract law to the facts of the case and
informed the jury what must be proven before Bertsch could be
convicted, amounted to reversible error. We conclude that
CALJIC No. 2.90, together with the other instructions defining

                                 167
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


the elements of the charged offenses, adequately explained what
was required for conviction.
      Bertsch raises another forfeited argument that CALJIC
No. 2.90 was constitutionally infirm because it failed to instruct
the jurors that the prosecution must prove every element of the
charge. We reject this challenge, as we have in previous
decisions. (People v. Thomas (2011) 52 Cal.4th 336, 356.) “A
single jury instruction may not be judged in isolation, but must
be viewed in the context of all instructions given. [Citations.]
The alleged deficiency in the standard [reasonable doubt]
instruction given here was supplied by other instructions, which
did expressly inform the jury that every element of the charged
crimes and special circumstances had to be proven beyond a
reasonable doubt.” (Ibid.)
      Bertsch also contends, in yet another forfeited claim, that
the giving of CALJIC No. 2.90 violated the equal protection
clause of the federal Constitution because it permits juries in
different cases to apply different standards of proof. We
disagree. As previously stated, the United States Supreme
Court has concluded that the language of CALJIC No. 2.90
correctly states the government’s burden of proof. (Victor,
supra, 511 U.S. at pp. 15–16.) In so concluding, the high court
implicitly held that the instruction provides an adequate and
uniform standard for determining the level of certainty a juror
must possess to be persuaded that the prosecution has met its
burden of proof. We find Bertsch’s perfunctory contention to the
contrary unconvincing.       (Cf. People v. Hearon (1999)
72 Cal.App.4th 1285, 1286 [regarding as frivolous the “well-
worn argument” that CALJIC No. 2.90 did not provide adequate
guidance regarding the level of certainty to which the jury must



                                 168
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


be persuaded, given the Court of Appeal’s resounding rejection
of it].)
            k. CALJIC No. 2.01
       Bertsch contends that portions of CALJIC No. 2.01, the
sufficiency    of    circumstantial      evidence     instruction,
unconstitutionally lightened the prosecution’s burden of proof
and created a mandatory conclusive presumption of guilt. We
perceive no deficiency in the instruction as alleged.
      The trial court instructed the jury with CALJIC No. 2.01,
which as given provided: “[A] finding of guilt as to any crime
may not be based on circumstantial evidence unless the proved
circumstances are not only (1) consistent with the theory that
the defendant is guilty of the crime, but (2) cannot be reconciled
with any other rational conclusion. [¶] Further, each fact which
is essential to complete a set of circumstances necessary to
establish the defendant’s guilt must be proved beyond a
reasonable doubt. In other words, before an inference essential
to establish guilt may be found to have been proved beyond a
reasonable doubt, each fact or circumstance on which the
inference necessarily rests must be proved beyond a reasonable
doubt. [¶] Also, if the circumstantial evidence as to any
particular count permits two reasonable interpretations, one of
which points to the defendant’s guilt and the other to his
innocence, you must adopt that interpretation that points to the
defendant’s innocence, and reject that interpretation that points
to his guilt. [¶] If, on the other hand, one interpretation of this
evidence appears to you to be reasonable and the other
interpretation to be unreasonable, you must accept the
reasonable interpretation and reject the unreasonable.”




                                 169
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


      Bertsch claims the instruction reduced the prosecution’s
burden of proof by requiring the jury to decide between his guilt
and innocence, and to assume the evidence was incriminatory,
and on that basis compel a finding of guilt, if the evidence
“appeared reasonable.” This claim is forfeited and, in any event,
unmeritorious. (See Riel, supra, 22 Cal.4th at p. 1200 [standard
instruction on circumstantial evidence does not reduce the
prosecution’s burden of proof]; People v. Crittenden (1994)
9 Cal.4th 83, 144 [CALJIC No. 2.01 does not convey an
unconstitutional, mandatory, conclusive presumption of guilt];
People v. Wilson (1992) 3 Cal.4th 926, 943 [same]; People v.
Jennings (1991) 53 Cal.3d 334, 386 [“No reasonable juror would
have interpreted [CALJIC Nos. 2.01 and 2.02] to permit a
criminal conviction where the evidence shows defendant was
‘apparently’ guilty, yet not guilty beyond a reasonable doubt”].)
       In another forfeited claim, Bertsch argues that CALJIC
No. 2.01 is also deficient because it failed to inform the jury that
if direct evidence, like circumstantial evidence, is susceptible to
two reasonable interpretations, the jury must adopt the
interpretation that points to Bertsch’s innocence. “We have
previously rejected this claim because direct evidence, unlike
circumstantial evidence, does not generate conflicting
inferences.”       (Lucas, supra, 60 Cal.4th at p. 298.)
“Differentiating between direct and circumstantial evidence
does not undermine the reasonable doubt standard or
presumption of innocence for the simple reason that direct
evidence and circumstantial evidence are different.
‘Circumstantial evidence involves a two-step process — first, the
parties present evidence and, second, the jury decides which
reasonable inference or inferences, if any, to draw from the
evidence — but direct evidence stands on its own. So as to direct


                                 170
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


evidence no need ever arises to decide if an opposing inference
suggests innocence.’ ” (Livingston, supra, 53 Cal.4th at p. 1166.)
We reject this argument again here.
           l. CALJIC Nos. 2.01, 2.21.1, 2.27, 2.51, and 8.20
      Bertsch, joined by Hronis, claims that a series of guilt
phase instructions unconstitutionally diluted the prosecution’s
burden of proof. They assert CALJIC Nos. 2.01, 2.21.1, 2.27,
2.51, and 8.20 implicitly replaced the constitutionally required
“beyond a reasonable doubt” standard with the “preponderance
of the evidence” test. We reject these claims.
       As to CALJIC No. 2.01, we have already rejected Bertsch’s
argument that the instruction reduces the prosecution’s burden
of proof. With regard to the rest of the challenged instructions,
this court has previously rejected identical challenges to them,
including claims that: (1) CALJIC No. 2.21.1, which pertains to
discrepancies within and between witness testimony, lessens
the prosecution’s burden of proof (People v. Carey (2007)
41 Cal.4th 109, 130–131); (2) CALJIC No. 2.27, which concerns
the sufficiency of testimony of one witness, erroneously
suggested that both the prosecution and defense had the burden
of proving facts (Covarrubias, supra, 1 Cal.5th at p. 912) and
violates the defendant’s right to due process because the “ ‘which
you believe’ ” language allowed for proof based on mere
“ ‘belief’ ” that a single witness was telling the truth (ibid.);
(3) CALJIC No. 2.51, which informed the jurors that motive is
not an element of an offense, conflicted with CALJIC No. 8.21,
the standard instruction on felony murder, by improperly
suggesting to the jurors that they need not find that the
defendant intended to commit robbery in order to convict him of
first degree murder (Covarrubias, at p. 912); and (4) CALJIC



                                 171
                PEOPLE v. BERTSCH and HRONIS
               Opinion of the Court by Guerrero, C. J.


No. 8.20 misled the jury regarding the prosecution’s burden of
proof because its instruction that premeditation and
deliberation “ ‘must have been formed upon preexisting
reflection and not under a sudden heat of passion or other
condition precluding the idea of deliberation’ ” could be
interpreted to require the defendant to disprove the possibility
of premeditation (Covarrubias, at p. 913). Bertsch and Hronis
offer no convincing reason for us to depart from our prior
precedent.
        7. Claims relating to the trial court’s use of court
            attendants during trial
      Bertsch raises several contentions relating to the trial
court’s use of court attendants, who monitored the jurors
throughout the trial. We find these claims unmeritorious.
           a. Lack of written communications between the trial
              court and court attendants in the record
      During trial, the court utilized two court attendants to
relay scheduling instructions to jurors and to ensure jurors did
not communicate or discuss the case with anyone. The record
indicates that the court received and responded to written notes
from the court attendants on occasion during trial. No court
attendant notes appeared in the clerk’s transcript.
      Appellate counsel for Bertsch requested that the record be
augmented to include all court attendant notes. In a tentative
ruling, the trial court ruled no correction to the record was
necessary, explaining:      “It is this Court’s procedure to
communicate with its staff via handwritten notes when court is
in session.       Most of these communications involve
inconsequential requests (such as retrieving books from
chambers, copying documents, or fetching office supplies and


                                172
                  PEOPLE v. BERTSCH and HRONIS
                 Opinion of the Court by Guerrero, C. J.


beverages for the judge). The notes often involve other cases or
scheduling issues that are unrelated to the trial at hand. [¶]
Whenever a note was pertinent to this trial, the [c]ourt ordered
it retained and it is already part of the appellate record. All
other notes were destroyed at the time and are not available.”
      At a certification hearing, the court reiterated that it “has
a habit of writing notes to my court attendants” about matters
unrelated to the case, such as “ ‘get me a soda pop,’ ‘bring me a
book,’ ‘check in the hall,’ ” or “related to the case in the sense of
checking the hall to see if a witness is there or a juror has
arrived,” or if the court needs more pens or is searching for a file.
The court repeated that these were operational notes and not
part of the trial. The court indicated it would ask the clerk to
look through the clerk’s transcript again to see if any individual
anomalies could be located and the court would issue an
appropriate ruling on that later.
       At a subsequent hearing, Bertsch’s appellate counsel
observed the trial court had not issued a ruling with respect to
whether a search for court attendant notes had been conducted
and whether any notes relevant to the trial from the attendant
had been located. Counsel added, “I’m assuming that no notes
were located. And if that’s the case, I would simply request an
order from the Court or minute order stating that that is
[indeed] the case. [¶] Obviously, if there were notes and they
haven’t been added to the record, then I would request that they
would be added to the record.” After hearing additional remarks
on lingering certification issues from the other attorneys of
record, the court stated, “The inquiry has been made and the
certified record will reflect the changes that the Court has
made.” It is not clear whether the court’s statement regarding



                                  173
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


inquiry was directed at the request for a search of court
attendant notes.
      Bertsch contends that because the clerk’s transcript does
not contain any court attendant notes, it is impossible to verify
whether any matters relevant to the trial were communicated
in those notes, which renders the appellate record incomplete
and constitutes structural error. He also maintains that
“[w]ithout the attendant notes themselves, their absence cannot
be shown to be harmless, and because the burden of showing
harmlessness lies with [the People], reversal is compelled.” We
are unpersuaded.
       “A criminal defendant is entitled under the Eighth and
Fourteenth Amendments to an appellate record that is adequate
to permit meaningful review. [Citations.] An appellate record
is inadequate ‘only if the complained-of deficiency is prejudicial
to the defendant’s ability to prosecute his appeal.’ ” (People v.
Young (2005) 34 Cal.4th 1149, 1170 (Young).) “No 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].” (People v. Samayoa
(1997) 15 Cal.4th 795, 820.) “Inconsequential inaccuracies or
omissions are insufficient to demonstrate prejudice.” (Young, at
p. 1170.) Nor is it sufficient to demonstrate prejudice to
speculate that “missing material may have contained matter
that demonstrated error or reflected a constitutional violation.”
(Ibid.; People v. Bennett (2009) 45 Cal.4th 577, 589
[“Inconsequential inaccuracies or omissions [from the record]
are insufficient to constitute prejudice.        Nor will mere
speculation suffice”].)



                                 174
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


       Bertsch has not met his burden here. As a threshold
matter, he has not identified any claim that is undeterminable
due to an inadequate record. Moreover, the record indicates
that the notes passed by court attendants were purely logistical
and ministerial and thus their omission was not error. The trial
court characterized its communications with court attendants
as involving trivial requests unrelated to the disputed issues at
trial, such as retrieving books from chambers or checking to see
if a witness or juror had arrived. Such instructions are
commonly relayed orally between and among the court and its
staff, and it has never been held that such instructions must be
made part of the trial record. The reporter’s transcripts support
the court’s description, as they refer to court attendant notes
related to matters such as scheduling, seating arrangements,
and juror attentiveness. Accordingly, Bertsch has failed to
demonstrate the record precludes meaningful appellate review
because it does not include court attendant notes.
           b. Utilization of court attendants to remind
              Bertsch’s jury of the trial court’s prior
              admonishments
       On a few occasions, the trial court also asked court
attendants to advise jurors on when to return to the courtroom
and to remind them that the court’s earlier admonitions
remained in effect. Bertsch contends the trial court erroneously
delegated its duty to admonish and instruct the jurors in
violation of his right to personal presence, counsel, and a public
trial. He relies on Riley v. Deeds (9th Cir. 1995) 56 F.3d 1117,
1121, in which the Ninth Circuit Court of Appeals held that the
trial court’s absence during jury deliberations and the law
clerk’s reading back of trial testimony amounted to a “complete



                                 175
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


abdication of judicial control over the process” and compelled
reversal.
      To the extent the trial court’s instruction to court
attendants to remind jurors that the prior admonitions
remained in force constituted a violation of section 1122,
subdivision (b) [describing trial court’s duty to admonish the
jury “at each adjournment of the court before the submission of
the cause to the jury”], we find such error to be harmless beyond
a reasonable doubt. By directing court attendants to remind
jurors that the prior instructions — which were given in open
court by the trial court — remained in effect, the trial court did
not abdicate judicial control over the process as the court did in
Riley. The court attendants were not given control over what
admonitions to give; the trial court made the decision to direct
court attendants to remind the jury of the prior admonitions
provided by the court. (See People v. Robinson (2005) 37 Cal.4th
592, 636, fn. 21.) Nor is it reasonably probable that the outcome
would have been different had the trial court, rather than court
attendants, reminded the jury that the court’s prior admonitions
remained in effect.
        8. Sufficient evidence supports Bertsch’s rape and
            sodomy convictions and corresponding special-
            circumstance findings
      Bertsch maintains the rape and sodomy convictions and
corresponding special circumstance findings must be reversed
because there is no evidence Canady was alive when the crimes
were committed. We disagree.
      “ ‘When considering a challenge to the sufficiency of the
evidence to support a conviction, we review the entire record in
the light most favorable to the judgment to determine whether



                                 176
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


it contains substantial evidence — that is, evidence that is
reasonable, credible, and of solid value — from which a
reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.’ ” (People v. Avila (2009) 46 Cal.4th 680, 701;
see Letner and Tobin, supra, 50 Cal.4th at p. 161, fn. 19 [we
apply the same standard of review in assessing the sufficiency
of the evidence supporting special circumstance findings].)
“ ‘Substantial evidence includes circumstantial evidence and
any reasonable inferences drawn from that evidence.’ ” (Clark,
supra, 52 Cal.4th at p. 943.)
       Applying these principles, we conclude the evidence is
sufficient to support the convictions for the rape and sodomy of
Canady and the true findings on the rape-murder and sodomy-
murder special-circumstance allegations. Bertsch’s semen was
found on swabs from Canady’s anus and vagina, as well as on a
clipping from her underwear. There was blood on the exterior
of Canady’s vagina, and the pathologist observed hemorrhaging
and small amounts of blood in Canady’s vaginal vault and the
lining of her uterus. The forensic pathologist testified that if a
victim is rendered unconscious at the time of the assault, little
to no trauma would result. He also testified, however, that if a
woman is beaten and does not resist physically in an act of
intercourse or sodomy, that would also explain why there may
be no trauma there. Moreover, when Canady’s body was found,
her wrists were bound behind her back with duct tape, and her
ankles, mouth, and head were also bound. Viewed in the light
most favorable to the judgment, a reasonable juror could
conclude that Canady was alive at the time of the rape and
sodomy but did not resist the attack because she was beaten and
bound at the time. (See People v. San Nicolas (2004) 34 Cal.4th
614, 659–661 [concluding substantial evidence supported the


                                 177
                  PEOPLE v. BERTSCH and HRONIS
                 Opinion of the Court by Guerrero, C. J.


jury’s finding that victim was alive at the time of the sexual
assault].)
         9. California’s felony-murder special-circumstance
             scheme is constitutional
       Bertsch argues the felony-murder special circumstance is
unconstitutional because it fails to narrow the class of death-
eligible murders, fails to require the prosecution to prove mens
rea, fails to require that the killing be intentional, violates equal
protection, and erodes the relationship between criminal
liability and moral culpability.               He also contends
Proposition 115’s amendments to section 190.2, the felony-
murder special-circumstance statute, were not validly enacted.
      As Bertsch concedes, we have repeatedly rejected these
claims. (See, e.g., Covarrubias, supra, 1 Cal.5th at p. 934
[felony-murder special circumstance is constitutional]; People v.
Boyce (2014) 59 Cal.4th 672, 700 [same]; People v. Stanley (2006)
39 Cal.4th 913, 968 [same]; Yoshisato v. Superior Court (1992)
2 Cal.4th 978, 991 [“the various modifications and amendments
made by Proposition 115 to paragraph (17) of section 190.2,
subdivision (a) . . . are . . . effective”]; People v. Morgan (2007)
42 Cal.4th 593, 622 [§ 190.2 is a validly enacted statute].) We
decline Bertsch’s invitation to reconsider our prior decisions.
      B. Penalty Phase Issues
         1. Trial court’s grant of Hronis’s Faretta motion
      Hronis contends that even if he was properly found
competent to stand trial, the trial court erred when it found him
competent to represent himself at the penalty phase. We
conclude that, due to intervening changes in law that altered the
governing standard for self-representation by certain
defendants suffering from mental illness, allowing Hronis to


                                  178
                  PEOPLE v. BERTSCH and HRONIS
                 Opinion of the Court by Guerrero, C. J.


represent himself at the penalty stage constituted prejudicial
error.
            a. Background
       As discussed above, on August 23, 2000, the jury found
Hronis guilty of first degree murder. Five days later, Hronis
made another Marsden request. Although the court denied the
Marsden motion, Hronis informed the court that he wished to
represent himself, indicating that he did not want to contest the
penalty phase. The court then ended the in camera proceedings
to allow Hronis to make his Faretta motion in open court. At
that time, Motion 820, questioning Hronis’s competence to stand
trial, was pending.
      In open court, Hronis confirmed that he was seeking to
represent himself for the reasons he expressed to the court
during the in camera hearing. His counsel observed that they
were in “direct conflict with [Hronis] on his intended course of
action.” The court then took a brief recess to determine how to
address Hronis’s Faretta request, “given the state of the record
at this point.” Ultimately, the trial court declined to rule on
Hronis’s request at that time.
      Nearly three weeks later, after the trial court denied
Motion 820, the trial court granted Hronis’s request to represent
himself at the penalty phase and ordered his attorneys to serve
as standby counsel and attend all further proceedings. Hronis
did not offer evidence in his own defense, testify, or give a closing
argument during the penalty phase.
            b. Legal principles
      As Hronis acknowledges, when the trial court issued its
Faretta ruling in 2000, it was understood that the standard of
competency for self-representation mirrored the standard of


                                  179
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


competency to stand trial. (People v. Johnson (2012) 53 Cal.4th
519, 526–527 (Johnson).) However, in 2008, the high court
decided Indiana v. Edwards (2008) 554 U.S. 164 (Edwards),
which held that “the Constitution permits judges to take
realistic account of the particular defendant’s mental capacities
by asking whether a defendant who seeks to conduct his own
defense at trial is mentally competent to do so. That is to say,
the Constitution permits States to insist upon representation by
counsel for those competent enough to stand trial under Dusky
but who still suffer from severe mental illness to the point where
they are not competent to conduct trial proceedings by
themselves.” (Id. at pp. 177–178.)
       We examined Edwards in Taylor, supra, 47 Cal.4th 850.
There, as here, a trial court granted a defendant’s motion for
self-representation before Edwards was decided. (Id. at p. 880.)
We rejected the defendant’s claim that the trial court erred by
using the pre-Edwards standard because “at the time of
defendant’s trial, state law provided the trial court with no test
of mental competence to apply other than the Dusky standard of
competence to stand trial.” (Id. at p. 879.) We based this
conclusion on a comprehensive examination of how California
courts had evaluated defendants’ requests for self-
representation before Edwards. We determined that California
had never applied a heightened standard of mental competence
to a defendant bringing a Faretta motion, so the Dusky standard
governed. (Id. at pp. 880–881.) Then we looked at the state of
the law at the time of the defendant’s trial and determined that
the trial court correctly applied that law. (Id. at p. 881.) In
doing so, we noted that the trial court “did not state or
necessarily imply that, if permitted to do so, it would find
defendant incompetent to represent himself.” (Ibid.)


                                 180
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


      Notably, in Taylor, we did not address whether California
courts should apply a new standard following Edwards and
whether any new standard would be retroactive. Instead, we
focused on the possibility of federal constitutional error and
explained that Edwards did not support any such claim of error
in a case where a defendant’s request to represent himself was
granted. (Taylor, supra, 47 Cal.4th at p. 878.)
       Our later opinion in Johnson addressed the proper
competency standard for self-representation in California after
Edwards. In Johnson, a trial court applied Edwards to revoke a
defendant’s self-representation. (Johnson, supra, 53 Cal.4th at
p. 525.) In concluding the trial court did not err, we explained
that “California law provides no statutory or constitutional right
of self-representation.” (Id. at p. 528.) Thus, “trial courts may
deny self-representation in those cases where Edwards permits
such denial.” (Ibid.) Moreover, we confirmed that no standard,
other than the standard in Edwards, should apply: “[W]e
believe the standard that trial courts considering exercising
their discretion to deny self-representation should apply is
simply whether the defendant suffers from a severe mental
illness to the point where he or she cannot carry out the basic
tasks needed to present the defense without the help of counsel.”
(Id. at p. 530.)
      Edwards and Johnson were decided well after Hronis’s
trial concluded. Thus, to determine whether the Johnson
standard applies here, we must consider whether this standard
should be applied retroactively to cases, like this one, that are
not yet final on appeal. The first step in this analysis is
determining whether Johnson articulated a new rule. (People v.
Guerra (1984) 37 Cal.3d 385, 399 (Guerra).) “If it does, the new
rule may or may not be retroactive . . . ; but if it does not, ‘no

                                 181
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


question of retroactivity arises,’ because there is no material
change in the law.” (Ibid.)
       “Under California law, a rule is new where the decision
‘(1) explicitly overrules a precedent of [the California Supreme
Court] [citation], or (2) disapproves a practice impliedly
sanctioned by prior decisions of [the California Supreme Court]
[citation], or (3) disapproves a longstanding and widespread
practice expressly approved by a near-unanimous body of lower-
court authorities.’ ” (In re Milton (2022) 13 Cal.5th 893, 906,
citing Guerra, supra, 37 Cal.3d at p. 401.)
      Before Edwards, “California courts tended to view the
federal self-representation right as absolute, assuming a valid
waiver of counsel.” (Taylor, supra, 47 Cal.4th at p. 872.)
Further, based on Faretta and Godinez v. Moran (1993) 509 U.S.
389, we generally concluded that courts could not impose a
higher standard of competency for self-representation than the
standard of competency to stand trial. (Taylor, at pp. 874–875.)
By contrast, Edwards explicitly allows states to apply a higher
standard to self-representation determinations if they choose to
do so. (Edwards, supra, 554 U.S. at p. 174.) We considered the
consequences of Edwards’s invitation in Johnson when we
confirmed that California courts could apply a new standard.
(Johnson, supra, 53 Cal.4th at pp. 528, 530.)          Johnson’s
application of Edwards changed the way trial courts should
evaluate Faretta motions. Accordingly, Johnson created a new
rule.
     A new rule is generally presumed to apply retroactively to
matters not yet final on appeal. “ ‘As a rule, judicial decisions
apply “retroactively.” [Citation.] Indeed, a legal system based
on precedent has a built-in presumption of retroactivity.’ ”


                                 182
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


(Guerra, supra, 37 Cal.3d at p. 399.) However, “we have long
recognized the potential for allowing narrow exceptions to the
general rule of retroactivity when considerations of fairness and
public policy are so compelling in a particular case that, on
balance, they outweigh the considerations that underlie the
basic rule. A court may decline to follow the standard rule when
retroactive application of a decision would raise substantial
concerns about the effects of the new rule on the general
administration of justice, or would unfairly undermine the
reasonable reliance of parties on the previously existing state of
the law. In other words, courts have looked to the ‘hardships’
imposed on parties by full retroactivity, permitting an exception
only when the circumstances of a case draw it apart from the
usual run of cases.” (Newman v. Emerson Radio Corp. (1989)
48 Cal.3d 973, 983.)
      None of these exceptions overcomes the general rule of
retroactivity here. Edwards was decided 17 years ago, and we
are not aware of any indication that trial courts are struggling
to properly apply Johnson. Similarly, because Edwards and
Johnson have been established law for over a decade, a finding
of retroactivity to nonfinal cases would not unduly impact the
general administration of justice or unfairly undermine the
reasonable reliance of parties on the previous law.
           c. Analysis
      Having concluded that Johnson applies retroactively, we
must evaluate whether the record demonstrates error. Here,
the trial court did not apply the new standard we articulated in
Johnson, which is not surprising because neither Edwards nor




                                 183
                  PEOPLE v. BERTSCH and HRONIS
                 Opinion of the Court by Guerrero, C. J.


Johnson had been decided at the time.21 Thus, the trial court
erred. To determine whether this error warrants reversal, we
apply People v. Brown (1988) 46 Cal.3d 432 (Brown) because the
error at issue is a “state-law error at the penalty phase of a
capital trial.” (Id. at p. 448.) Under this standard, an error is
prejudicial if it is “ ‘reasonably possible’ ” the error affected the
verdict. (Ibid.)
       We conclude the error in this case was prejudicial.
Although the trial court found that Hronis was competent to
stand trial under the Dusky standard, it did not consider
whether Hronis met the higher standard of competence to
represent himself that the high court allowed in Edwards. The
distinction between the two is not insubstantial in this case.
“ ‘[D]isorganized thinking, deficits in sustaining attention and
concentration, impaired expressive abilities, anxiety, and other
common symptoms of severe mental illnesses can impair the
defendant’s ability to play the significantly expanded role
required for self-representation even if he can play the lesser
role of represented defendant.’ ” (Edwards, supra, 554 U.S. at
p. 176.) Indeed, in Johnson, we agreed that there will be
defendants who, although competent to stand trial, are not
competent to conduct trial proceedings by themselves.
(Johnson, supra, 53 Cal.4th at p. 532.)



21
       Although it is conceivable for a trial court to have
anticipated what would later occur in Edwards and Johnson —
and apply a different and higher standard of competence to a
self-representation request than to the question of competence
to stand trial (cf. Mendoza, supra, 62 Cal.4th at p. 894) — the
record does not support the conclusion that the trial court did so
in this case.


                                  184
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


       Here, based on the entire record before us, we cannot
exclude the reasonable possibility that Hronis suffered from a
“mental condition that falls in a gray area between Dusky’s
minimal constitutional requirement that measures a
defendant’s ability to stand trial and a somewhat higher
standard that measures mental fitness for another legal
purpose.” (Edwards, supra, 554 U.S. at p. 172.) Hronis’s
competency to stand trial was extensively litigated below with
some evidence suggesting that Hronis’s certainty he would be
acquitted possibly impacted his understanding of the nuances of
a penalty phase defense. In addition, Hronis plainly had some
cognitive deficits. Although the court found that these cognitive
deficits did not prevent him from consulting with counsel, it is a
different matter entirely whether these deficits would prevent
him from taking on the expanded role of acting as his own
counsel. (Id. at p. 177 [“given the different capacities needed to
proceed to trial without counsel, there is little reason to believe
that Dusky alone is sufficient”].) The difficulties inherent in
assessing an individual’s mental condition add to this
uncertainty, particularly when trying to evaluate an
individual’s ability to perform the varied tasks associated with
self-representation. “Mental illness itself is not a unitary
concept. It varies in degree. It can vary over time. It interferes
with an individual’s functioning at different times in different
ways.” (Id. at p. 175.) Nor did any of the psychological reports
before the court address whether Hronis had a severe mental
illness bearing on his competency to present his own defense
without the help of counsel, since they utilized the pre-Edwards
framework in Dusky and section 1367. Further, although the
court was unpersuaded by Motion 820, it did order a court-
appointed psychologist (Nakagawa) to evaluate Hronis before it


                                 185
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


denied that motion. This decision reflects at least some
openness to the idea that Hronis was substantially impaired; if
Edwards and its progeny had already been decided, the court
could have expressly considered whether Hronis was sufficiently
impaired such that the court would not have allowed him to
represent himself.
      Our consideration of Hronis’s competency to represent
himself is informed by the individualized circumstances of this
case, combined with the fact that Hronis sought to represent
himself during the penalty phase of a capital case. “In focusing
upon the capital context presented by the case before us, we are
mindful of the United States Supreme Court’s repeated
admonition that ‘ “the penalty of death is qualitatively different
from a sentence of imprisonment, however long,” ’ and that, as
a result, ‘ “there is a corresponding difference in the need for
reliability in the determination that death is the appropriate
punishment in a specific case.” ’ ” (People v. Horton (1995)
11 Cal.4th 1068, 1134.)
      Finally, we note that the trial court did not have the
opportunity to determine the extent to which Hronis’s mental
capacity — versus his lack of technical skill or legal
knowledge — was the reason Hronis offered no evidence at the
penalty phase, filed no motions with the court, did not testify,
and gave no closing argument. (See Edwards, supra, 554 U.S.
at pp. 175–176, citing McKaskle v. Wiggins (1984) 465 U.S. 168,
174 [basic tasks of self-representation include organization of
defense, making motions, arguing points of law, participating in
voir dire, questioning witnesses, and addressing the court and
jury].) And had mitigation evidence been presented to the jury,
we cannot discount the possibility that the jury would have
selected a penalty other than death.

                                 186
                  PEOPLE v. BERTSCH and HRONIS
                 Opinion of the Court by Guerrero, C. J.


      For all these reasons, we conclude it is “ ‘reasonably
possible’ ” the error here affected the penalty phase verdict.
(Brown, supra, 46 Cal.3d at p. 448.) We therefore reverse the
judgment of death as to Hronis.
         2. Instructional error claims
      Bertsch raises several claims of error relating to the trial
court’s instructions during the penalty phase. He failed to
preserve several of these arguments by not lodging a specific,
contemporaneous objection below. In any event, none of his
claims has merit.
            a. Admonition to Bertsch’s jurors regarding penalty
               determination
       Bertsch contends the trial court erred when it admonished
the jurors, after they returned their guilt phase verdicts, to keep
an open mind regarding penalty but failed to repeat the guilt
phase instruction not to form or express any opinion on this case
until after the matter was submitted to them. Bertsch asserts
this allowed the jurors to prematurely consider the question of
penalty during the period between the guilt and penalty trials
in violation of his constitutional rights to due process, a fair trial
by jury, a reliable verdict, and protection against cruel and
unusual punishment. We find no merit to this argument.
      During the guilt phase trial, the court on several occasions
admonished both juries not to “form or express any opinion on
this case until the matter is finally submitted to you.” After
Bertsch’s jury found him guilty of the charged offenses, the trial
court informed the jury there would be a penalty phase hearing
and reminded it that “the admonitions still apply.” The court
reiterated: “[Y]ou want to keep an open mind. The issue of
penalty will be before you, but you don’t want to start leaning or


                                  187
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


closing off one option in favor of the other. You want to approach
the penalty phase hearing with an open mind. An open mind.”
Bertsch’s penalty trial commenced five days later.
      Bertsch contends the trial court’s admonitions allowed the
jury to think about the penalty question and to form tentative
opinions about it so long as they kept an “open mind.”
      Bertsch forfeited this claim by failing to object to the
instruction or ask for an additional admonition of the jury. The
claim also fails on the merits. During the guilt phase trial, the
court properly admonished the jury not to form or express an
opinion until the matter was submitted. Before the penalty trial
commenced, the court reminded the jury that its prior
admonitions still applied. Under analogous circumstances, we
have concluded that a direction to remember a previous
admonition not to form an opinion about the case, which was
complete and correct when previously given, was sufficient.
(Lucas, supra, 60 Cal.4th at p. 324; see also Lewis and Oliver,
supra, 39 Cal.4th at p. 1067 [“The trial court did not err in
failing to instruct on which guilt phase instructions continued
to apply at the penalty phase”].) The trial court’s additional
instructions to “keep an open mind” and to not “start leaning or
closing off one [penalty] option in favor of the other” reinforced,
rather than undermined, its previous admonition not to form an
opinion on the matter. And, as in Lucas, there is no evidence in
the record to suggest the jury improperly formed or expressed
opinions on the issue of penalty prior to the penalty phase.
(Lucas, at p. 324.) Accordingly, we discern no error.




                                 188
                  PEOPLE v. BERTSCH and HRONIS
                 Opinion of the Court by Guerrero, C. J.


            b. Lack of instruction prohibiting use of guilt phase
               findings in determining Bertsch’s guilt of prior
               violent acts
      Bertsch asserts the trial court prejudicially erred by
failing to instruct the jury sua sponte that it could not consider
its guilt phase convictions in determining whether the
prosecution had proven beyond a reasonable doubt that Bertsch
committed assault with a deadly weapon on two prior occasions.
We conclude there was no error.
      Bertsch forfeited this claim by failing to ask for additional
admonition of the jurors. (Lucas, supra, 60 Cal.4th at p. 314
[“[E]ven in the penalty phase trial of a capital case, ‘a trial court
is under no duty to instruct on the limited admissibility of
evidence of past criminal conduct in the absence of a request’ ”].)
His argument also fails on the merits. We have previously
rejected as speculative the claim that the jury applied cross-
admissibility instructions to the penalty phase in determining a
defendant’s guilt of prior acts of violence, even though no such
instructions were given at the penalty phase. (Ibid.) Bertsch
provides no cogent argument as to why we should not reach the
same conclusion here.
            c. Lack of limiting instructions regarding
               propensity other-crimes evidence
      Bertsch maintains the trial court erred when it failed to
repeat its guilt phase instruction that the jury was precluded
from considering evidence of other crimes committed by Bertsch
or witnesses’ fear of Bertsch to prove Bertsch had a criminal
propensity or bad character. Bertsch claims the omission of
these instructions unconstitutionally undermined the
presumption of innocence applicable to the other violent crimes
presented as factors in aggravation.


                                  189
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


       Here, too, Bertsch forfeited this claim by failing to request
additional instruction. (People v. Maury (2003) 30 Cal.4th 342,
443; People v. Johnson (1993) 6 Cal.4th 1, 49.) The claim also
fails on the merits. The trial court’s instruction regarding the
burden of proof for aggravating factors clearly articulated that
Bertsch was presumed innocent of prior acts unless the
prosecution proved those acts beyond a reasonable doubt.
Accordingly, the jury received adequate instruction. Moreover,
the record does not indicate that the jurors were confused about
the interplay between Bertsch’s underlying convictions and the
proof requirements for violent acts offered as factors in
aggravation. Thus, we conclude the court did not err when it
failed to instruct the jury that it was precluded from considering
the guilt phase findings as propensity evidence.
            d. Witness credibility instruction
      In another forfeited claim, Bertsch argues the trial court
prejudicially erred in not repeating certain instructions relating
to witness credibility at the penalty phase. Specifically, Bertsch
contends the court’s admonition to disregard the guilt phase
instructions and subsequent failure to reinstruct the jury with
(1) an addendum to CALJIC No. 2.20, addressing how alcohol
and drugs might affect witness credibility; (2) CALJIC
No. 2.23.1, which states the jury could consider Jerry B.’s past
misdemeanor criminal conduct in evaluating his credibility; and
(3) CALJIC No. 2.21.2, which informs the jury it may reject the
entire testimony of a witness found to have willfully testified
falsely on a material point, skewed the jury’s consideration of
the alleged aggravating factors in the prosecution’s favor.
Bertsch’s argument fails.




                                 190
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


      At the penalty phase, the court reinstructed the jury with
CALJIC No. 2.20, which addresses what the jury may consider
in assessing witness credibility, and CALJIC No. 2.13, which
informs the jury that a witness’s prior inconsistent statements
may be considered in evaluating the witness’s credibility and as
evidence of the truth of the facts as stated by the witness on the
prior occasion.    The court also gave CALJIC No. 2.21.1,
discrepancies in witness testimony, CALJIC No. 2.22, weighing
conflicting testimony, and CALJIC No. 2.81, opinion testimony
of lay witness. These instructions provided sufficient guidance
to the jury on how to assess the credibility of witnesses. (People
v. Wader (1993) 5 Cal.4th 610, 644–645.) The court had no sua
sponte duty to give additional instruction on this point. (Ibid.;
see People v. Valdez (2012) 55 Cal.4th 82, 139; People v.
Mendoza (2011) 52 Cal.4th 1056, 1094.)
           e. Lack of cautionary instructions regarding
              Bertsch’s out-of-court statements
      Bertsch similarly contends the trial court erred by failing
to reinstruct the penalty phase jury that his out-of-court
statements and adoptive admissions should be viewed with
caution. He claims that by not giving CALJIC Nos. 2.71, 2.71.5,
and 2.71.7 at the penalty phase, the jury was allowed to
reconsider guilt phase evidence of his statements and
admissions without caution, thus undermining his penalty
defense of lingering doubt as to guilt. We discern no error.
      We have previously held that a trial court has no duty to
give CALJIC Nos. 2.71, 2.71.5, or 2.71.7 on its own motion at the
penalty phase. (People v. Livaditis (1992) 2 Cal.4th 759, 782–
784; People v. Diaz (2015) 60 Cal.4th 1176, 1188–1195.) The
record does not indicate that Bertsch requested these
instructions at the penalty phase. Nor does he point to any out-

                                 191
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


of-court statements or adoptive admissions introduced a second
time at the penalty phase to merit such instructions.
Accordingly, the trial court did not err in failing to instruct the
jury sua sponte with CALJIC Nos. 2.71, 2.71.5, or 2.71.7.
            f. Lack of instructions pertaining to eyewitness and
               expert scientific testimony
      Bertsch likewise argues the trial court erred when it failed
to repeat certain guilt phase instructions regarding eyewitness
identification and expert testimony, which undermined his
theory of lingering doubt. We disagree.
      At the guilt phase trial, the court instructed the jury with
CALJIC Nos. 2.80 (expert testimony — qualifications of expert),
2.83 (resolution of conflicting expert testimony), and 2.92
(factors to consider in proving identity by eyewitness testimony).
The court also instructed: “Scientific evidence has been
introduced in this case. You are the sole judges of the reliability
of that evidence and of the weight to be given to that evidence.”
At the penalty phase, the court reinstructed the jury with
CALJIC No. 2.80, but did not give the other referenced
instructions a second time.22
      Again, Bertsch did not request the additional instructions
be given, and the trial court was under no sua sponte duty to do
so. (People v. Alcala (1992) 4 Cal.4th 742, 803.) Therefore, no
error occurred.




22
      The substance of CALJIC No. 2.80 at the penalty phase
was the same, except for an omitted paragraph listing the
various witnesses who testified as experts in the guilt phase.


                                 192
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


            g. Trial court’s comment that juror names would be
               sealed
      Bertsch argues the court prejudicially erred when, in front
of the entire jury, it informed a juror who was dismissed due to
an upcoming vacation that her name would be sealed in the
court record. Bertsch claims the court’s statement gave
remaining jurors the impression that Bertsch was dangerous
and might retaliate against them. He also asserts juror
anonymity could diminish the jurors’ sense of responsibility for
their verdict. We find no error.
      Bertsch forfeited this claim by failing to object or request
further admonition. The claim also fails on the merits. Code of
Civil Procedure section 237, subdivision (a)(2) requires a trial
court to seal the record of personal juror identifying information,
including the jurors’ names, upon the recording of a jury’s
verdict in a criminal jury proceeding. After recording the guilt
phase verdict, and consistent with prior discussions with
counsel, the court excused one juror and told her that her
information would be sealed and would not be released without
notice and a hearing. The court’s statement correctly conveyed
applicable law.
      Moreover, Bertsch’s stated concern regarding the
remaining jurors’ reaction to the court’s statement is pure
speculation. Nothing in the record suggests the remaining
jurors were confused regarding the reason for the court’s
admonition to the dismissed juror. The court stated on the
record that it found good cause to excuse the juror “because of
the family trip that has been long scheduled and that you are
taking commencing on [August] 30th” and that the juror could
now talk to anyone about the case. It then admonished the
remaining jurors that the case was ongoing and that they could

                                 193
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


not talk to anyone about the case. The court did not suggest the
dismissed juror’s name was sealed due to security concerns, nor
is there any indication in the record that the remaining jurors
inferred from the admonition that Bertsch was a security threat.
Accordingly, there was no error, let alone reversible error.
           h. Response to jury’s question regarding sentence
              modification options
      Bertsch maintains the court erred when, in response to the
jury’s question about sentencing options, the court repeated a
portion of the jury instructions. We determine the court acted
within its discretion in choosing to repeat the instruction.
       During penalty phase deliberations, the jury asked, “Do
we have the option of modifying the two sentences given us[?]”
The trial court denied Bertsch’s request to have the jury clarify
its question and replied, “As you have been instructed, your task
is to decide which of two possible penalties is to be imposed on
the defendant: death or life without the possibility of parole.
Your task is to choose between these two, and only these two,
possible penalties.”
      Pursuant to section 1138, when the jury “ ‘desire[s] to be
informed on any point of law arising in the case . . . the
information required must be given.’ However, ‘[w]here the
original instructions are themselves full and complete, the court
has discretion under section 1138 to determine what additional
explanations are sufficient to satisfy the jury’s request for
information.’ ” (People v. Brooks (2017) 3 Cal.5th 1, 97, quoting
People v. Beardslee (1991) 53 Cal.3d 68, 97.) Here, the original
instruction clearly conveyed to the jury that the only possible
sentences were death or life without the possibility of parole. By




                                 194
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


repeating this instruction, the court directly answered the
question posed. Therefore, no abuse of discretion occurred.
        3. Cumulative Error
      Bertsch and Hronis claim any guilt phase errors, even if
found harmless, should be deemed prejudicial as to the penalty
phase because the state cannot prove beyond a reasonable doubt
that the errors did not affect the penalty verdict. We found
three harmless errors at the guilt phase relating to the
admission of Presley’s and Cotton’s testimony as well as Myers’s
testimony on cross-examination regarding Buoncristiani’s
troubleshooting. We also assumed errors but found them
harmless as to the selection of a jury. However, there is no
indication that these errors prejudiced Bertsch and Hronis at
the penalty phase.
      Aside from the Faretta error as to Hronis only, for which
we are reversing the judgment of death as to Hronis, we
assumed only a single error during the penalty phase relating
to the use of court attendants at the penalty phase. Thus, there
is nothing to accumulate as to Bertsch. (People v. Reed (2018)
4 Cal.5th 989, 1018.)
        4. Challenges to California’s death penalty scheme
      Bertsch and Hronis challenge the constitutionality of
numerous features of California’s capital sentencing scheme.
We have consistently rejected such challenges, individually and
cumulatively (People v. Stevens (2007) 41 Cal.4th 182, 211
(Stevens)), and we decline to reconsider our prior precedents
regarding the following holdings:
      “ ‘The death penalty scheme is not unconstitutional for
failing to require . . . findings beyond a reasonable doubt as to
the existence of aggravating factors other than section 190.3,


                                 195
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


factors (b) and (c), that aggravating factors outweigh mitigating
factors, or that death is the appropriate penalty.’ [Citation.]
The United States Supreme Court’s decisions in Cunningham v.
California (2007) 549 U.S. 270, Blakely v. Washington[ (2004)]
542 U.S. 296, Ring v. Arizona[ (2002)] 536 U.S. 584, and
Apprendi v. New Jersey[ (2000)] 530 U.S. 466 do not alter these
conclusions.” (People v. Mataele (2022) 13 Cal.5th 372, 435
(Mataele); Ramirez, supra, 13 Cal.5th at pp. 1160–1161.)
      “The Constitution does not require that a jury make
written findings regarding aggravating factors, or reach
unanimity as to which aggravating evidence is true.” (Stevens,
supra, 41 Cal.4th at p. 212; see Mataele, supra, 13 Cal.5th at
p. 435; Homick, supra, 55 Cal.4th at p. 903.)
      “Section 190.2 adequately narrows the category of death-
eligible defendants and is not impermissibly overbroad under
the requirements of the Fifth, Sixth, Eighth and Fourteenth
Amendments to the United States Constitution. [Citations.]
The various special circumstances are not unduly numerous or
expansive.” (Winbush, supra, 2 Cal.5th at p. 488; see Schultz,
supra, 10 Cal.5th at p. 682; Ramirez, supra, 13 Cal.5th at
p. 1160.)
      “ ‘The absence of intercase proportionality review does not
violate the Eighth and Fourteenth Amendments to the United
States Constitution.’ [Citation.] ‘We do provide intracase
proportionality review. Defendant does not specifically request
such review, but given the crime . . . , it is inconceivable that it
would aid him.’ ” (Homick, supra, 55 Cal.4th at p. 903; see
People v. Anderson (2001) 25 Cal.4th 543, 602 (Anderson).)
      “Use of adjectives such as ‘extreme’ and ‘substantial’ in
section 190.3, factors (d) and (g), respectively, does not create a


                                 196
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


constitutionally impermissible barrier to the jury’s
consideration of a defendant’s mitigating evidence.” (People v.
Johnson (2016) 62 Cal.4th 600, 656.)
       “Prosecutorial discretion to select those death-eligible
cases in which the death penalty will actually be sought is not
constitutionally impermissible.” (Anderson, supra, 25 Cal.4th
at p. 601; see also Homick, supra, 55 Cal.4th at p. 903; People v.
Box (2000) 23 Cal.4th 1153, 1217.)
      Section 190.3 factors in aggravation have not been applied
so broadly as to result in arbitrary and contradictory results.
(People v. Gonzales (2011) 51 Cal.4th 894, 957 (Gonzales);
accord, Tuilaepa v. California (1994) 512 U.S. 967, 975–976
[rejecting facial challenge to § 190.3, factor (a)].)
       “ ‘ “[T]here is no requirement jurors be instructed there is
a ‘ “ ‘presumption of life’ ” ’ or that they should presume life
imprisonment without the possibility of parole is the
appropriate sentence.” ’ ” (People v. Tran (2022) 13 Cal.5th
1169, 1236; see Young, supra, 34 Cal.4th at p. 1233.)
      “Appellate review of death judgments is not impermissibly
influenced by political considerations in violation of the Fifth,
Sixth, Eighth, or Fourteenth Amendments to the United States
Constitution.” (People v. Prince (2007) 40 Cal.4th 1179, 1299;
see Gonzales, supra, 51 Cal.4th at p. 958; People v. Kipp (2001)
26 Cal.4th 1100, 1140–1141.)
      “CALJIC No. 8.85’s use of the phrase ‘whether or not,’ is
not an invitation to jurors who find ‘a factor not proven’ to then
‘use that factor as a factor favoring imposition of the death
penalty.’ ” (People v. Cook (2006) 39 Cal.4th 566, 618; see People
v. Krebs (2019) 8 Cal.5th 265, 348; People v. Miracle (2018)
6 Cal.5th 318, 354.)


                                 197
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


      “The jury’s consideration of unadjudicated criminal
conduct in aggravation is constitutional, and jury unanimity
regarding such conduct is not required.” (People v. Kelly (2007)
42 Cal.4th 763, 800; see People v. Brown, supra, 33 Cal.4th at
p. 402.)
      “California’s death penalty does not violate international
law or international norms of decency.” (People v. Frederickson
(2020) 8 Cal.5th 963, 1027; see Mataele, supra, 13 Cal.5th at
p. 436; People v. Kelly, supra, 42 Cal.4th at p. 801.)
      “The capital sentencing scheme does not violate equal
protection by denying certain procedural protections to capital
defendants that are available to noncapital defendants.”
(Scully, supra, 11 Cal.5th at p. 612; see People v. Molano (2019)
7 Cal.5th 620, 678.)
       We have previously rejected the argument that “a death
sentence cannot be imposed unless the jury finds the defendant
guilty ‘beyond all possible doubt.’ ” (People v. Gomez (2018)
6 Cal.5th 243, 314.) We have likewise rejected the claim that
“ ‘evidence of guilt must be stronger in a capital case than in a
noncapital case.’ ” (Ibid., quoting People v. Lewis (2009)
46 Cal.4th 1255, 1290, fn. 23.)
     C. Appellate Delays
      Bertsch argues that the five-year delay between his death
sentence and the appointment of appellate counsel violated his
federal constitutional rights to equal protection and due process
of law. Hronis similarly contends the delays in appointment of
counsel and filing of appellate briefs inflicted cruel and unusual
punishment on him in violation of the federal Eighth and
Fourteenth Amendments.



                                 198
                 PEOPLE v. BERTSCH and HRONIS
                Opinion of the Court by Guerrero, C. J.


       We have consistently rejected the claim that the delay in
processing a capital appeal violates international norms or a
defendant’s constitutional rights to due process, equal
protection, and freedom from cruel and unusual punishment.
(Winbush, supra, 2 Cal.5th at p. 488; People v. Wallace (2008)
44 Cal.4th 1032, 1098 [“The delay inherent in death penalty
appeals, including the delay in the appointment of appellate
counsel, does not violate due process”].) “Further, . . . we have
in the past declined to recognize the existence of a ‘right to a
speedy appeal’ as an offshoot of the United States Constitution
Sixth Amendment’s right to a speedy trial.” (Wallace, at
p. 1098.) The “ ‘automatic appeal process following judgments
of death is a constitutional safeguard, not a constitutional defect
[citations], because it assures careful review of the defendant’s
conviction and sentence [citation].’ ” (Winbush, at p. 488.)
“Moreover, while we remain sensitive to the evolution of Eighth
Amendment doctrine, we recently found no factual basis for
concluding that systemic delays render California’s capital
punishment scheme arbitrary and capricious.” (Ibid.)
      Bertsch’s reliance on Harris v. Champion (10th Cir. 1994)
15 F.3d 1538 is misplaced. “We previously have distinguished
that case, in which the federal court of appeals held that a two-
year delay in disposing of noncapital criminal appeals is
presumptively excessive, as ‘[not] address[ing] the unique
demands of appellate representation in capital cases’ ” (People
v. Dunkle (2005) 36 Cal.4th 861, 942, citing People v. Holt (1997)
15 Cal.4th 619, 709.) Bertsch provides no persuasive argument
why we should not reach the same conclusion here.
     In sum, Bertsch and Hronis have not shown that the
delays inherent with the appointment of counsel and the capital
appellate process violated their constitutional rights.

                                 199
                PEOPLE v. BERTSCH and HRONIS
               Opinion of the Court by Guerrero, C. J.


     D. Restitution Fines
      At sentencing, the trial court imposed $10,000 restitution
fines on Bertsch and Hronis. Subsequently, the Legislature
imposed a 10-year limit on the enforcement and collection of
these restitution fines. (§ 1465.9, subd. (d).) The statute
provides: “Upon the expiration of 10 years after the date of
imposition of a restitution fine pursuant to Section 1202.4, the
balance, including any collection fees, shall be unenforceable
and uncollectible and any portion of a judgment imposing those
fines shall be vacated.”
      Because the restitution fines were levied on Bertsch and
Hronis more than 10 years ago, any balance under those fines is
uncollectable and unenforceable by operation of law. Any
unpaid balance for both Bertsch and Hronis is hereby vacated.
                     III. DISPOSITION
      The judgment of conviction and the judgment of death as
to Bertsch are affirmed. The balance, if any, of the restitution
fine levied against Bertsch is vacated. The superior court is
ordered to prepare an amended abstract of judgment reflecting
the vacatur of the unpaid balance of the restitution fine and to
provide a copy of that amended abstract to the Department of
Corrections and Rehabilitation.
      The judgment of conviction as to Hronis is affirmed, but
the judgment of death is reversed. The balance, if any, of the
restitution fine levied against Hronis under section 1202.4 is
vacated. As to Hronis only, the matter is remanded to the trial
court for further proceedings in accordance with this opinion.
      At the conclusion of any further proceedings as to Hronis,
the superior court is ordered to prepare an amended abstract of
judgment reflecting the vacatur of the unpaid balance of the


                                200
                PEOPLE v. BERTSCH and HRONIS
               Opinion of the Court by Guerrero, C. J.


section 1202.4 fine, as well as any other necessary changes, and
to provide a copy of that amended abstract to the Department of
Corrections and Rehabilitation

                                             GUERRERO, C. J.
We Concur:
CORRIGAN, J.
LIU, J.
KRUGER, J.
GROBAN, J.
EVANS, J.
VIRAMONTES, J.*




*
      Associate Justice of the Court of Appeal, Second Appellate
District, Division Eight, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.


                                201
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.

Name of Opinion People v. Bertsch and Hronis
__________________________________________________________

Procedural Posture (see XX below)
Original Appeal XX
Original Proceeding
Review Granted (published)
Review Granted (unpublished)
Rehearing Granted

__________________________________________________________

Opinion No. S093944
Date Filed: April 20, 2026
__________________________________________________________

Court: Superior
County: Sacramento
Judge: Lloyd G. Connelly
__________________________________________________________

Counsel:

Thomas Lundy and Alex Coolman, under appointments by the
Supreme Court, for Defendant and Appellant John Bertsch.

Mark E. Culter, under appointment by the Supreme Court, for
Defendant and Appellant Jeffrey Hronis.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, James William Bilderback II, Assistant Attorney
General, Sean M. McCoy, Clara M. Levers, Kevin L. Quade and John
W. Powell, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):

Alex Coolman
Attorney at Law
3268 Governor Drive #390
San Diego, CA 92122
(619) 831-7129

Mark E. Culter
Attorney at Law
P.O. Box 501
Lincoln, CA 95648
(530) 305-5575

John W. Powell
Deputy Attorney General
1300 I Street
Sacramento, CA 95814
(916) 210-7770